The Faculty Lounge

Why Can’t Black People Sing About Chicken?

Some of you may be familiar with a recent controversy concerning R&B singer Mary J. Blige.  She filmed a Burger King commercial wherein she sang about fried chicken wrapped in a tortilla.   She faced a lot of criticism from blacks who decried her for her jingle concerning breaded poultry.  The commercial was called racist and she was even mocked in a hilarious spoof of her performance.

This got me to thinking—what is wrong with what Blige did?  I feel pretty comfortable in saying that fried chicken is a part of black American cuisine.  And I would concede that fried chicken is often used to mock black folks.  I recall golfer Fuzzy Zoeller’s comment about Tiger Woods. 

But who the hell cares?

I have a theory as to why some blacks decried the commercial.  It relates to a post I wrote a couple of weeks ago concerning blacks in the North before the Civil War.  In that post I noted that northern black newspapermen tried to push their brethren to behave in a manner that whites would approve of so that they would be given full citizenship. I think this mindset among blacks—to constantly monitor their behavior to inoculate themselves from whites’ possible disapproval—still continues to this day.  I have had countless conversations where an intelligent black person will disclose to me that they will modify their behavior, or hope that other blacks will modify their behavior, so as to minimize whites’ disapproval.  And in the back of my mind I always have the same thought: “How sad.”

Most people believe that racism’s biggest effect is that is takes away opportunities from blacks on the basis of their skin color.  I’ve always disagreed with this.  I think the biggest effect is that it renders many blacks incapable of being comfortable in their own skin.  There’s always a need to apologize for something.  Or defend something.  It’s exhausting.  Well, I imagine it is.  I’ve rejected this sort of thinking.  I wish others would too.  

 

CFP: Northeast Regional Law & Society Meeting, January 11-12, 2013 Amherst College

I'm passing along this conference announcement:

Northeast Regional Law and Society Meeting

January 11-12, 2013

Amherst College

Invitation and Call for Participation

You are cordially invited to participate in the third Northeast Regional Law and Society Conference which will be held at Amherst College on January 11 and 12, 2013. This meeting is intended for law and society scholars from New England, New York, New Jersey, and Pennsylvania.

We have designed this conference to bring together faculty and graduate students from the region's diverse community of law and society scholars for two days of intellectual exchange and community building. We hope to provide a collegial, informal, and small setting in which to explore law and society as a field, to introduce scholars to the field, to discuss areas in which our research agendas need to be developed, to engage debates about the various theories which animate our work, and to establish an intellectual forum for sustained and engaged conversation.  The meeting will provide the occasion for a lively mix of small group discussions, presentations, debates, and social gatherings, all designed to encourage spirited dialog and collegial conversation.

We will be organizing sessions of the following types:

• Paper Presentation Sessions. In these sessions we will have one paper and two commentators who read and discuss the paper and in which the paper which they discuss would be circulated in advance to those who would like to attend the session We invite scholars interested in having their work be the focus of such a session to send a one page abstract of your paper as an e-mail attachment in Word or RTF to [email protected] by October 1^st, 2012.  

• Critical Intervention Sessions.  For these sessions we will revisit classic texts in the field and/or leading scholars will pose questions about, and moderate discussions of, key research areas. Examples of the kinds of topics considered in past years: legal consciousness, law and war, psychoanalysis and law, and race and racial justice.

We will also have a plenary speaker.

 You are invited to attend without presenting work, to submit a proposal to present work in a paper presentation session, or to volunteer to serve as a chair/commentator.

If you are interested in serving as a chair/commentator, please send an e-mail to [email protected] by October 1^st, 2012 indicating your willingness to serve and your areas of expertise/interest.

If you have any questions please contact Austin Sarat at [email protected] or 413-542-2308.

Who Fact Checks the Fact Checkers?

Methinks the WaPo needs a new fact checker.  Andrew Sullivan has the details.  I really don't follow the news as much as I'd like. I find American media outlets to be an unbearable mix of moronic and unserious.  WaPo's Glenn Kessler seems to be a good example of this.

Tsesis on Declaration of Independence

Alexander Tsesis' new book, For Liberty and Equality: The Life and Times of the Declaration of Independence appeared a couple of months ago from Oxford University Press.  Cribbing now from the OUP website:

The Declaration of Independence is one of the most influential documents in modern history-the inspiration for what would become the most powerful democracy in the world. Indeed, at every stage of American history, the Declaration has been a touchstone for evaluating the legitimacy of legal, social, and political practices. Not only have civil rights activists drawn inspiration from its proclamation of inalienable rights, but individuals decrying a wide variety of governmental abuses have turned for support to the document's enumeration of British tyranny.

In this sweeping synthesis of the Declaration's impact on American life, ranging from 1776 to the present, Alexander Tsesis offers a deeply researched narrative that highlights the many surprising ways in which this document has influenced American politics, law, and society. The drafting of the Bill of Rights, the Reconstruction Amendments, the New Deal, the Civil Rights movement-all are heavily indebted to the Declaration's principles of representative government. Tsesis demonstrates that from the founding on, the Declaration has played a central role in American political and social advocacy, congressional debates, and presidential decisions. He focuses on how successive generations internalized, adapted, and interpreted its meaning, but he also shines a light on the many American failures to live up to the ideals enshrined in the document. 

Based on extensive research from primary sources such as newspapers, diaries, letters, transcripts of speeches, and congressional records, For Liberty and Equalityshows how our founding document shaped America through successive eras and why its influence has always been crucial to the nation and our way of life.

This reminds me of how difficult July 4 was as a holiday in the old South.

The New Yale Ph.D In Law: The Perfect Choice For...Whom?

Yale University has just announced that it is opening a new doctoral program in law.  Unsurprisingly, it will be offered through the law school - in addition to the existing JSD program.  Why in the world would you want a doctorate in law? 

It seems like this might be designed to appeal to people who, in the past, might have obtained a Yale LLM to supplement a JD from a non-top 10 institution.  I imagine that this degree will make these same people more marketable.  The problem is that the law faculty hiring market is very much segmented.  Different schools seek different attributes and hiring for different teaching areas can diverge radically.

The following considerations are commonly-used factors in hiring:

1. Quality of JD institution
2. Success in law school, including grades, law review, research assistantships, etc. 
3. Quality of references
4. Publications - quality, quantity, and placement
5. Legal practice experience, including clerkships
6. Post JD academic experiences other than a Ph.D including fellowships, VAP's, and LLM's
7. Ph.D, with different cognate fields and different empirical methodologies having differing values and appealing to different institutions
8. Field of teaching, and depending on field, degree to which experience and publications suggest a genuine interest rather than strategic selection of soft teaching areas 

How does this new three year, zero tuition Ph.D in law make it easier to get a job?  According to the Yale press release:

To secure entry-level appointments at law schools, candidates are now expected to present a relatively mature scholarly profile; they need a defined research agenda and a substantial portfolio of writing. Students who do not pursue a Ph.D. in an allied discipline increasingly obtain these qualifications by completing post-J.D. fellowships, which afford the time and opportunity to write, but such fellowships do not provide in-depth scholarly training. By contrast, students completing the new Ph.D. in Law will be required to take coursework, pass qualifying examinations, and write a dissertation. Students will also learn how to teach, and will have the full support of Yale Law School’s Law Teaching Program, which has had remarkable success in placing graduates in tenure-track positions at law schools. The Ph.D. in Law will ensure that students have the necessary background and skills to launch them on successful scholarly careers.

Yale Law School’s Ph.D. in Law will offer a new, alternative route into a career in law teaching and legal scholarship,” said Dean Post. “Some students will no doubt seek advanced degrees in cognate disciplines, but for those who wish to concentrate on law, we expect that the Ph.D. in Law will provide an attractive option.”

I'm guessing that the three main virtues of the program are: getting a Yale degree on your cv (relevant particularly for non-superelite JD candidates); getting Yale references to make calls for you (if indeed they will do so for their Ph.D candidates); and getting a several publications on your AALS form.  

I think that the Bigelow, and other similar fellowships, will be more valuable than this Ph.D.  And a Ph.D from a comparable institution in a cognate field will also be more valuable - even after four years, before the dissertation is complete.  The upside here, I think, is for people who are leaving practice after several years, have a non-elite JD, and would otherwise be looking at JSD programs.  Most of these folks aren't able to get fellowships or VAP's and might not be able to get into a top 5 political science, economics, sociology, or history department either.  The Yale Ph.D in Law won't promise most of these candidates jobs at elite schools - but it might do the lifting that the Yale LLM once did a generation ago.

 Update: Brian Leiter has comments on the degree here and here.  Jeff Harrison's comments are here.  Kevin Jon Heller comments here. Jason Mazzone comments here.

 

So... Did Mitt Romney Commit a Felony?

Romney supposedly left Bain Capital in 1999 and filled out certified paperwork affirming this to be true.  But the Boston Globe has a report out (that it stole from Mother Jones and TalkingPointsMemo.com without giving the proper credit) that claims that Romney headed Bain as late as 2002.  FactCheck.org claims that Romeny "would be guilty of a federal felony by certifying on federal financial disclosure forms that he left active management of Bain Capital in February 1999."

Is there any there there? 

Four Quick Takeaways From The Freeh Report On Penn State & Sandusky

Louis Freeh and his firm delivered a fat package at 9am this morning - 267 pages of stuff all about the Jerry Sandusky sexual abuse scandal at Penn State.  Much of the material is not fresh to the report, but he lays it out nicely and makes some important points.  I see several different takeaways from the report, some of relevance to this case and others of relevance to all schools with major (and powerful) sports programs. 

1. This is a wake-up call for every university with a major sports program.  I imagine that every (competent) General Counsel at a school with Big Sports will be reading this closely.  Key issues at PSU include: a leadership that keeps the Board at bay around important issues; a school that fails to comply properly with the Clery Act regarding crime reporting;  and more generally a university that treats the athletic program as a freestanding, separately managed entity not responsive to university concerns, processes or oversights.  

This third matter - Big Sports as a separate entity from the U itself - is basically the same arrangement as you'd find at most schools that have had a Top 25 football or basketball program in the last couple of decades.  Such a structure only makes sense in a world where everyone agrees that  what's good for the athletic program is always good for the overall brand.  We've long known that Big Sports exists in tension with academics.  But this tension is allowed to continue because, supposedly, it's good for the university as a whole.  But the interests of the sports program - particularly around risk management - may NOT always be aligned with the interests of the larger University (even setting aside academics...which, personally, I don't think we ought to set aside.)  And simply from a skill set and values perspective, the individual people running the athletic program may not be the best stewards of the overall brand.

Seems to me that this ought to be good for business for my former colleague Gene Marsh.

2. The four relevant leaders at Penn State - President Graham Spanier, Senior Vice-President Gary Schultz, Athletic Director Tim Curley and Coach Joe Paterno - engaged in magical thinking.. .or put another way, self-delusion.  Yes, they wanted to protect the football program.  But something more was going on.  In 1998, Sandusky was accused of sexual misconduct with a kid on the Penn State campus.  Though the DA decided not to bring charges, officials learned more than enough details to put them on high alert.  Sandusky would have immediately merited more internal supervision.  

Then, in 2001, with the McQueary report, officials should have concluded that their worst fears were coming true.  Even viewed through rose-colored glasses,  this report should have set off alarms and fears that the institution might be facing a repeat of 1998. (And here, I'm setting aside an issue that should have, but clearly did not, trouble them: the plight of the victims.)  Even if officials thought that the new incident was less than a crime, it was enough to make obvious the need for serious action to protect the school's reputation.

Even if it they thought it wasn't a crime, and even if they didn't care one whit about the victims, any rational, risk-averse administrator would have insured that Sandusky never again brought a child to campus.   They told Sandusky not to bring children to campus.  Yet they never considered banishing Sandusky even though, Curley conceded, they knew they couldn't enforce the ban on children.  If your priority was protecting the brand, why wouldn't you just ban Sandusky?  

The answer, I think, is that in the face of all the evidenc to the contrary, they didn't actually think that Sandusky was engaging in any improper sexual behavior.  Remember, as recently as the Sandusky trial a few weeks ago, a defense witness explained that he showered with young boys all the time.  I'm guessing that Penn State administrators figured that was all that had occurred; Sandusky couldn't possibly be molesting boys, notwithstanding a bunch of very discomforting evidence.  And that is delusion.

3. The report is a roadmap for lawyers litigating the upcoming civil cases.  Freeh has set out all the available statements and documents, and juxtaposed them in ways that strongly suggest - without explicitly asserting - which witnesses might be shading the truth.  OK, lying.

4. Graham Spanier needs a lawyer.

The Possible Irrelevancy of Fisher: Intent and Affirmative Action

I’m starting some preliminary research on an article that I’d like to write about Fisher, the Texas affirmative action case.  It seems as though many expect the Supreme Court to declare affirmative action unconstitutional.  But would such a holding be inconsequential?

The Supreme Court currently requires that claimants prove intent to discriminate under the Equal Protection Clause, an exceedingly heavy burden.  But if universities change their admissions policies, still take race into account yet deny that they are actually doing so, how could white claimants prove that they are the victims of intentional discrimination?  Indeed, it seems as though the Court has painted itself into a corner here.  By requiring that racial minorities prove the impossible—that the state intentionally discriminated against them on the basis of race—the Court has amassed some very unhelpful case law to potential white litigants should affirmative action ever be made unconstitutional.

Sure there will be some racial disparities in admissions data.  But that shouldn’t mean anything.  Just ask Warren McCleskey. 

If the Supreme Court strikes down affirmative action, expect to see some folks running away from an intent standard but only in affirmative action cases.  Statistics will quickly become dispositive.  Disparate impact will suddenly become king.  Hypocrisy will ensue.

Boston Archdiocese Restrictive Covenants

Jack Sullivan has an extensive story about restrictive covenants that the Boston Archdiocese and the Springfield Archdiocese place on property that they sell in the summer issue of CommonWealth.  Sullivan lists some of the restrictive covenants.  One property in Holyoke has restrictions against an abortion clinic, exotic dance club, or satanic materials.  One property in Lowell has restrictions against "prurient activity," including nude, semi-nude or sexually suggestive activity or entertainment, production, publication, display, or promotion of pornography.  A property in Cambridge has restrictions for housing use only and a property is Lawrence is restricted against use by a charter school.

Property professors will love this -- and I'm going to use some of these examples in my property class this fall. There are a ton of interesting things to talk about here.  I suspect some of these restrictions are enforceable -- like the ones against the exotic dance club.  And some of these are understandable when the church is thinking about protecting its schools, such as the restriction of property for use by a charter school.  I'd want to look at Massachusetts competition law on this; my guess would be that's a reasonable restriction, but I'd want to know a lot more about the neighborhood and alternative property the charter school.  This restriction on use might be struck down as unreasonable.  

What interests me in particular are the restrictions on abortion.  Couple of things to think about here.  The Restatement Third of Servitudes § 3.1 -- if applied in Massachusetts -- would be a problem for the enforcement.  Recall that § 3.1 construes a servitude that unreasonably burdens a fundamental constitutional right as a violation of public policy.  (I get the restatement's references to constitutional rights in this private law context is odd and I'm always somewhat confused by it.)  But even if Massachusetts doesn't follow § 3.1, I would be surprised if a court thought that restriction were enforceable.  That seems like an expansive intrusion the rights of the new owner, the kind that courts would likely think goes too far.  Another problem is that the benefit is probably not even appurtenant to any surrounding property.  That seems like the benefit's probably in gross and thus the burden is unlikely to run.  I looked at a couple of these deeds a few months ago and they say that the restrictions are for the benefit of the property the church retains, but in some cases that property is miles away from the property that's being sold.  And then there's the issue of Shelley v. Kraemer. Assuming Shelley continues as good law, the enforcement of the covenant through the courts would be state action.  This would be subject to an analysis the same as a municipality passing a zoning ordinance that restricted abortion, I would think.  Perhaps it could pass, but I'd be very skeptical.

But my guess is that these restrictions, as so many, are really more about making a statement about the seller's values than thinking that they're really going to be enforced.  Anyway, lots of things to talk about in there and just in time for planning the fall property class!

Broadening What We Talk About When We Talk About Innovation Law and Policy

Thanks very much to Dan and the other loungers for having me, and to Al for that very generous introduction. Owing to other projects, I’ll be posting a bit more sporadically, but hanging out a bit longer, than some other guests.

I have varied interests, but of late, I’ve been obsessed with what is generally known as “human subjects research” (HSR) and with the institutional review boards (IRBs) that review it. I’ll talk about some of my own work in this area in later posts, but for now let me explain why readers of The Faculty Lounge care about HSR and IRBs — even if you don’t know it.

In legal scholarship and education, innovation law and policy is almost synonymous with intellectual property in general, and with patent law in particular. This, I think, is a mistake.

We can all agree that incentives to engage in knowledge-producing activities are important, even as we disagree about whether the current patent system in fact provides optimal incentives and about what values we should be trying to maximize when we establish those incentives. But one of the things that gets lost in our focus on patents, technology transfer, and so on is the next step in the innovation chain: optimal incentives to engage in knowledge-producing activities will be of little use if the regulation of knowledge-producing activities themselves is suboptimal.

Innovations with the potential to affect human welfare at some point generally have to involve human beings. That’s where HSR comes in. In the law school curriculum, HSR tends to be relegated to the final weeks of courses in health law or FDA law (themselves often marginalized in the curriculum, if they are offered at all). But this curricular choice rests on a conflation of HSR with biomedical research in general, and with pharmaceutical drug trials in particular.

This narrow focus doesn’t remotely match the regulatory reality, which is that virtually every research methodology (not only randomized, controlled trials but also data collection and analysis, online Stroop tests, surveys, interviews, and even simple observation) and academic discipline (not only biomedicine and psychology but every social science, many humanities and, yes, empirical legal studies) is subject to federal regulation, including prospective review by an IRB.

In later posts, I’ll have more on the breadth of the current regulatory framework, what that framework entails, how we got here, what’s wrong with the current system, and what might be done about it. For now, let me suggest that the regulations governing HSR should be of concern to scholars of innovation law and policy (because HSR is a critical link in the innovation chain), to virtually all other scholars (because their work is, or easily could be, considered HSR and thus subject to regulation, even if many of them don’t realize it), and — most importantly — to citizens (because you presumably want the laws and policies to which you are subject to be evidence-based, and that depends on being able to conduct well-designed, generalizable HSR without undue delay, cost, or restriction).

Thanks again to Dan, Al, and the other loungers for letting me hang around the lounge. I look forward to the conversation.

Michelle Meyer Stepping into the Lounge

It's my pleasure to announce that Michelle N. Meyer is stepping into the faculty lounge to sit with us for a spell.  Michelle is a Petrie-Flom Fellow at Harvard Law School, where she taught a course last spring on "Regulating the Production of Knowledge: The Law and Ethics of Research."   She was previously a fellow at Johns Hopkins in Bioethics and Health Policy and before that clerked for Judge Stanley Marcus of the United States Court of Appeals for the Eleventh Circuit.  

Michelle is a graduate of Harvard Law School, where she was an editor of the Harvard Law Review. Before law school she earned a Ph.D. in religious studies from the University of Virginia and she is a summa cum laude graduate of Dartmouth College.  Her many publications include "The Plaintiff as Person: Cause Lawyering, Human Subject Research, and the Secret Agent Problem," in the Harvard Law Review in 2006.  "The Plaintiff as Person" was recommended reading in The Green Bag's 2006 list of exemplary legal writing.

Michelle's works in progress, which I hope she'll be talking some about with us here, include "Regulating the Production of Knowledge: The Heterogeneity Problem in Human Subjects Research and Its Private Ordering Solution," "The Mythical Right to Procreate," and "Human Subjects Research from a Behavioral Regulatory Perspective."  You may follow Michelle's tweets @MichelleNMeyer or link to them here.

Welcome, Michelle!

The Distribution of Law Professor Twitter Users

Given the criticisms in the comments to Bridget Crawford's post on the law professor Twitter census, I think it might be worth it to look a little more deeply at the issue of law professor "tweeters."  As I indicated in the comments on Sunday afternoon, I'm coming late to the issue of Twitter.  I wondered why a law professor would tweet?  Michelle Meyer had some apt observations about its importance in the comments.  

I thought Bridget's census might be worth a little more inspection, in terms of the question: who's tweeting?  There are 139 tweeting professors identified as of June 8th by Bridget Crawford after removing 7 professors at schools outside the U.S. and one at UC-Irvine, which U.S. News has not yet ranked.  The professors are on the law faculties of 92 schools in the United States.  Many professors are the sole known tweeter on their faculty, but one school (Pace) has five, Pepperdine and SMU each have four, and Chicago, Drexel, Harvard, Southern Illinois, and St. Louis University each have three.  Focusing now on the ranks of schools of the 121 professors at U.S. News “top schools” (ranks published in March 2012):  The range of school ranks is represented from 1 through 145, with a median rank of 58.0 and a mean of 65.4 (SD = 44.3).  Schools of 25% of professors in this group had a rank between 1 and 26, and schools of another 25% had ranks between 101 and 145.  Eighteen other professors are at U.S. News “second tier” schools, whose ranks were not published. They are at 14 different schools.  One thing is clear: law professors at schools throughout the U.S. News spectrum are tweetting.

I'm guessing that tweeting is about getting information out, building a community, and -- ultimately -- a reputation.  We could debate whether faculty are entitled to build their personal reputation on the law school's budget.  But I think most people think they are not only entitled to but expected to help build the institution's reputation.  Student reliance on U.S. News suggests that strong reputation is something students want.  As we have seen repeatedly and in many contexts, school reputations are important.

At right is a bar graph that shows the distribution of law professor tweeters according to their schools' U.S. News ranking.  

Reflections on Online Course Evaluations

My school has gradually moved from paper-based course evaluations to online evaluations over the last couple of years.  I have now had about three or four of my courses evaluated electronically.  The first go around, I had a rather small class but was pleased to see a good response rate ie higher percentage of students filling in the online evaluation than had filled in the paper evaluations probably because the online evaluations are available outside of class time for a window of several weeks for students to fill in.  I was also pleased and surprised to see no negative comments at all.  I noticed the same pattern the following year ie a high response rate and a dearth of negative comments. 

I also noticed that there were fewer substantive/qualitative comments overall in the online evaluations than there had been in their paper-based counterparts.  In the paper-based evaluations, most of my students had written something in the 'comments' sections even if it was only a word or two.  In the online evaluations a much smaller number of students wrote anything at all under 'comments'.

This got me to wondering whether the move to online evaluations skews the results in unfortunate ways.  For example, although I'd love to think I've become such a magnificent teacher that no one can think of anything negative to say about me, I suspect this is not the case.  I wonder if the lack of negative evaluations might be explained by students' suspicions that anonymous online surveys are not really anonymous at all and can be traced to them in a way that paper-based evaluations cannot. 

The lack of negative evaluations might also be a function of the smaller number of qualitative/substantive comments overall.  However, I can't see why a move to an online format would skew evaluations in favor of positive feedback unless students were concerned that they would be tracked and somehow punished for negative evaluations.

It's also interesting that students have written less comments in the online format when one would assume it's easier and quicker to type comments into a computer screen than to handwrite them on a paper form.

Has anyone else had the experience of a switch from paper to digital evaluations and, if so, what have your experiences been?  Clearly online evaluations are convenient for students as well as being easier to collate and access remotely.  But are there downsides we might have been missing?

 

 

Patent Bar Ethics

    As I continue developing my summer’s writing project, I am faced with another issue. The patent bar is not comprised of just attorneys; instead, almost a quarter of the individuals who can file patent applications for others are “patent agents” rather than “patent attorneys.” The only difference between the two groups as far as the Patent Office is concerned is that a patent attorney is a self-reported member of a state’s bar. Both groups must establish generalized technical competence (but see here) and familiarity with the rules of practice propagated by the PTO.

    The lack of legal training has another significant difference, however. All law students (at least at ABA Schools, see Interpretation 302-9) are required to study legal ethics and are introduced to the idea that their conduct as attorneys must be done within the bounds of the rules of practice. This training would not be obtained by most patent agents.

    Two questions occur to me. First, does it make a difference? Are patent agents more likely to engage in inappropriate behavior before the PTO than a patent attorney? Second, which ever way the first question is answered, what does it say about the ethical training we provide in law school?

    I am beginning to think about ways my first question can be measured. One possibility is to determine who is disciplined more by the PTO for ethical breaches, attorneys or agents. My guess, though, about this approach is that the number of disciplinary cases is so small that no statistically significant result will be obtainable.

    Assuming there is a solution to the first measurement problem, there would be one answer — there is no significant difference between attorneys and agents — that is reinforcing of the status quo at the PTO. If agents turn out to be statistically less reliable than attorneys, it would behoove the PTO to reexamine the admission standards for patent agents. Of course, if attorneys are established to be the more problematic — or evan as problematic — we may have to reevaluate how we train them in ethics in law school.

What is Applied Legal History?

I've been working on a short review of the first volume of G. Edward White's Law in American History trilogy.  I'm particularly interested in his method -- how law occupies a sort of ancillary place in the story of American history from European settlement through Civil War.  Where other legal historians tell stories about the evolution of law or of lawyers and judges, or lawsuits and legislation -- all with "law" as a central piece of the story -- White makes law more an ancillary piece.  Law is a gauge, often; or sometimes a bit player.  It's one small part of a multiple regression equation that explains American economic, social, and intellectual development.  This is a really interesting move by White and I'm interested in why he does this; I think part of it may be that we need to put law into context in that way to see its overall impact.

This has gotten me thinking and reading about other methods of doing legal history -- in part this is motivated also by the recent Law and Social Inquiry symposium on Robert Gordon's "Critical Legal Histories." (subscription necessary).  And this reminds me that I want to return to talking about something I've been calling "applied legal history" -- that is, work that is pretty directly motivated by contemporary issues.  The motivation may be -- as has happened in the historical profession with immigration -- searching for the roots of contemporary problems.  That's a short of low-level of application; there may not be any direct prescriptions that arise out of such work.  

There is other work that is more directly motivated with contemporary legal issues.  We've seen a series of works of late on how we might interpret federal civil rights statutes in light of their history -- or at least how their history of interpretation affects litigants now.  I suppose this is related in some ways to the original intent scholarship we have so much of, which looks to history to make some kind of argument about contemporary constitutional law.  The literature on the original meaning of the second amendment comes to mind, obviously.  (My recent questioning (and here) of the continuing reliance on Founding-era federalism is a very modest part of the use of history to inquire about contemporary doctrine.)  Then there's the literature that seeks to provide a historical grounding (and sometimes context, too) for contemporary doctrine.  In essence, it's scholarship that legitimizes current practices -- one of my favorite examples along these lines is Richard Posner's early work on nineteenth century tort law and economic efficiency.  (And, rather oddly, given their different political orientations, I think Morton Horwitz' first book did that as well for the economic interpretation of the common law in the nineteenth century.)

And then there's work that is pretty directly engaged with the continuing effect of past events on the present disputes or to put those disputes into a better context.  A lot of the work on Native American history fits this -- books like Robert Williams' The American Indian in Western Legal Thought and Lindsay Robert's Conquest By Law, come to mind here.  A lot of recent African American history that falls into this category as well, obviously  -- like Doug Blackmon's Slavery By Another Name.  There are a lot of works one could put in the category of applied legal history and I hope to talk a lot more about how this genre seems to be increasing in importance.

The illustration is the Confederate Soldier outside the Albemarle, Virginia County Courthouse.  I put it there to illustrate that history -- often linked to law -- is used to shape contemporary debate.

Are Our Sex Crime Laws So Radical They Deter Reporting?

I have an op/ed in the Philadelphia Inquirer today arguing that one overlooked takeaway from the Jerry Sandusky - Penn State child sexual abuse scandal is that current sex laws actually may deter victims and others from reporting incidents.  

From my conclusion:

There is no question that society needs strong laws prohibiting and punishing sexual abuse. But those laws must be well-reasoned and tailored to be both just and effective. Over the past 20 years, society has approached sex crimes with unbridled passion and anger. This emotional search for justice is entirely appropriate in particular cases; that is one purpose of sentencing. But when the same intense feelings become an engine for policy-making, they may undermine the crafting of effective laws. The goal, after all, is to prevent Jerry Sandusky and others like him from victimizing children, and that won't happen if we deter people from reporting their crimes. When laws become so radical that they work against the protection of victims, they are inherently inhumane.

Faculty Hiring: Memphis

From an email that I received earlier today:

The University of Memphis Cecil C. Humphreys School of Law announces a tenured or tenure-track position as Associate or Full Professor/Director of its developing Center for Health Law.  Applicants are expected to have a J.D.; demonstrated experience in teaching health law or related subjects; and a clearly established record of scholarship in the field.  We seek candidates with established or developing national reputations.  Responsibilities include strategic planning, fundraising, curriculum, scholarship, and developing relationships with relevant local, national, and international entities.    

Candidates are invited to discuss salary with the Hiring Committee Chair.  We have a strong institutional commitment to faculty diversity.  

Submit applications to https://workforum.memphis.edu.  Send nominations to [email protected] or to:  Steven Mulroy, Chair, Health Law Hiring Committee, University of Memphis School of Law, 1 N. Front Street, Memphis, TN 38103.   Review of applications will begin in early fall. 

 The University of Memphis is an EEO/AA employer.

AAUP Seeks Staff Counsel

The AAUP is seeking a new Staff Counsel, its senior general counsel position.  The application deadline is short.  The full job listing is after the jump.

LatCrit/SALT Junior Faculty Development Workshop

From an email that I received a few days ago:

Tenth Annual LatCrit-SALT
Junior Faculty Development Workshop
October 4-5, 2012
University of Maryland, Francis King Carey School of Law
Baltimore, Maryland

LatCrit, Inc. and the Society of American Law Teachers (SALT) are pleased to invite you to the Tenth Annual Junior Faculty Development Workshop (FDW), immediately preceding the SALT Teaching Conference. This annual workshop is designed for critical, progressive, and social justice oriented pretenure professors, including clinicians and legal writing professors, as well as those who may be contemplating a teaching career. However, we encourage more senior members of the profession to attend, share their experience, and serve as resources and mentors.

The FDW is designed to familiarize critical, progressive, and social justice oriented junior faculty with LatCrit and SALT principles and values and support them in the scholarship, teaching, and service aspects of professional success. In addition, the FDW seeks to foster scholarship in progressive, social justice, and critical outsider jurisprudence, including LatCrit theory, among new and junior faculty, students, and practitioners. Finally, the FDW aims to cultivate a community of scholars interested in the continuation of this and similar projects over the years.

Sessions at this year’s workshop will be focused on entering the academy, connecting critical theory and social justice lawyering in the classroom, developing a flourishing progressive scholarly agenda, and other topics especially relevant to academics interested in making social justice central to their teaching, scholarship, and activism. This year we will also be offering a limited number of opportunities for FDW attendees who are not yet in the academy or are seeking to move within the academy to present mock job talks.

For more information on the mock job talks, please contact Jonathan Glater ([email protected]) or Christopher Hines
([email protected]).

Registration for the FDW opens on August 15 and will be conducted in conjunction with registration for the SALT Teaching Conference. See http://www.saltlaw.org/events/view/160 for more details.

No ID? The Marginal Cost Of Voting In Pennsylvania

In my recent post about the new PA voter ID law, I noted that a very, very significant number of registered voters - up to 18% of all registered voters in Philadelphia (home to half of the state's African-American population) - may not currently possess an identification card that will allow them to vote in November. Supporters of these laws argue that requiring people to get an ID is a small price to pay in order to prevent voter fraud.  It seems worth figuring out what the actual supplemental cost of voting is for those who currently lack required ID.

I therefore present may totally back-of-the-envelope calculation of the poll-tax assessed by PA's voter ID law.  I use the working assumption that time is worth 7.25/hour.  This is a fiction if the preparation time does not actually displace paid labor, but does allow us to monetize the cost of voting to be allocated to ID acquisition.  I assume that photocopies cost .15 per page and that all mailings can be done for .45 first class postage.  I also assume that this is all occuring in Philadelphia County, where there is public transportation to help you get to one of the five DMV locations in the county.  In other counties, a person without a driver may have to spend even more to get cab service.  Of course, some people will be able to get a ride - but given gas prices (and the cost of parking in cities), it seems unlikely that the effective cost of such travel will be less than the SEPTA public transit fare of $2 each way.   More elaborate details on my calculations appear at the bottom of the post.  And yes: I recognize that some people miss work, school or other activities in order to vote.  I assume, however, that this cost is borne by all voters.

1.  Grab your Social Security card.  Hopefully you have it in hand, if you don't - if, for example, you're retired or you just lost it - you'll have to order one.  

Cost of Acquiring Social Security Card.  $8.00

2. Grab your birth certificate with raised stamp, or certificate of citizenship or naturalization.  If you don't have one in hand, you'll need to order one and I assume that the average person would be ordering a birth certificate from the Commonwealth of Pennsylvania.

Cost of Acquiring a birth certificate in PA.  $19.00

3.  Grab two proofs residency like lease agreements, utility bills, W-2 forms, and the like.  I will assume that you have some version of this around the house to take with you to the DMV.

4. Head to the DMV!  Since you can't drive, you'll probably be taking public transit - $4 roundtrip.  A reasonable guess is that it will take you 90 minutes roundtrip to get to the nearest facility.  And given normal waits, it seems equally fair to assume the visit itself will take 60 minutes.  2.5 hours time is worth $18.12.  But good news - they'll waive the ID fee if you sign an affidavit that you need it to vote! Total cost of the DMV trip: $22.12.

Thus, if you have all your documents ready and at hand, the total cost of voting is $22.12.  But if you don't have all your documents right now, that's probably because you don't need them right now - and thus the cost of obtaining new ones is entirely caused by the voter ID law.  

If you need to acquire a Social Security Card, total cost of voting is $30.12.  If you need to get a birth certificate, total cost of voting is $40.12.  And if you need both a Social Security card and a birth certificate, total cost of voting is $48.12.  

What to make of this?  For those concerned about fraud, a $48 fee may seem like a minimal price-tag.   But since this cost is allocated only to a sub-population, I propose that the state compensate those who need an ID by this amount.  Why should this sub-population be required to fully subsidize the state's anti-fraud efforts?  If all citizens gain from requiring ID's, a reasonable person might conclude that voters who bear the brunt of this effort should receive both their PA issued photo-ID and a compensation check in the mail.  If legislators supporter voter ID requirements were willing to step up to the plate with a $40 reimbursement to those forced to acquire proper ID, I'd be far less cynical about their motives.