The Faculty Lounge

Faculty Hiring: Arkansas

Our friends in Fayetteville pass along the following hiring announcement:

Arkansas Law has an opening for a criminal law clinician at the rank of assistant or associate professor starting Fall 2014 and will consider junior lateral candidates.

Full job description here:  http://hr.uark.edu/jobdetails.asp?ListingID=7073 

Predicting The Future Of Law & Legal Education

Nick Allard offers six predictions  about law schools, and the legal profession, for the year 2014.  One of them is that 20 schools will have larger classes in 2014 than in 2013.  He states (or the Brooklyn Eagle reports, at least) that only 11 law schools grew year over year in 2013.  That's an odd statistic, since the ABA reported that 27 schools grew their 1L class over 10% this fall.  

But as Dean Allard probably knows, the number of law school applicants this year has dropped again - over 10%.  He may be right that more law schools will grow 1L classes this year (compared to 20-13) but if that happens, it will only be because law schools can no longer sustain the current reduced-sized 1L cohorts.  

Putting this all together, if the number of applicants this cycle ends up significantly down again, and if many schools are forced to reinflate their 1L class sizes, we will either see a few law schools with median LSAT's of 145 or a fewer law schools.  

All of which leads me to wonder whether the ABA will wait four years to see bar results, or whether it will become proactive in regulating schools that choose the route of a 145 median.

Roth on Gender and Race in Antebellum America

I've already written about some of the books I'm looking forward to reading this spring, such as Robert Ferguson's Inferno: Anatomy of American Punishment and John W. Compton's The Evangelical Origins of the Living Constitution.  Both of those will be published by Harvard University Press in the spring.  I now want to branch out to Cambridge University Press' spring list and talk about Sarah N. Roth's expansive volume, Gender and Race in Antebellum Popular Culture.  Cribbing now from the CUP website: 

In the decades leading to the Civil War, popular conceptions of African American men shifted dramatically. The savage slave featured in 1830s' novels and stories gave way by the 1850s to the less-threatening humble black martyr. This radical reshaping of black masculinity in American culture occurred at the same time that the reading and writing of popular narratives were emerging as largely feminine enterprises. In a society where women wielded little official power, white female authors exalted white femininity, using narrative forms such as autobiographies, novels, short stories, visual images, and plays, by stressing differences that made white women appear superior to male slaves. This book argues that white women, as creators and consumers of popular culture media, played a pivotal role in the demasculinization of black men during the antebellum period, and consequently had a vital impact on the political landscape of antebellum and Civil War–era America through their powerful influence on popular culture.

I had the chance to read an earlier draft of this book and I have to say that I'm really excited to see the final version.  She talks about a lot of literature that I'd never heard of -- including some outrageously proslavery science fiction and some other really obscure work.  This will expand dramatically the sense of antebellum fictional literature.  Though Roth's interest is largely in the fictional literature of both the anti-slavery and the pro-slavery sides, I think the dramatically changing images of men of African descent can be very readily and profitably applied to the judiciary.  (The short version here is that in the 1820s/1830s enslaved men were depicted as savages by both anti-slavery and proslavery literature.  That shifted in the 1840s and 1850s as abolitionists depicted enslaved men (and other men of African descent) as people deserving citizenship.  The proslavery forces responded to that critique by accepting -- largely -- that men of African descent were not savages.  The proslavery forces replaced that with an image of enslaved people generally as happy and child-like, not vicious and rebellious.)

What interests me is that this framework correlates with what was happening in state legislatures and also in the judiciary.  I want to look closely at cases where judges discuss slaves' character -- such as cases involving torts by slaves against white people and against each other, cases invovling slaves' rights to freedom following travel in free states and because of the wills of their owners, and even criminal prosecutions.  Based on some as yet unscientific looks at judicial opinions I think that southern judges were talking in similar terms to Roth's subjects about slave personality over the period 1830 to the mid-1850s.  (And I think this follows, generally, academic thought, too.  On this I'm going to have a lot more to say right soon.)  But one thing that I notice in particular is that as the Civil War approached -- like in the late 1850s -- southern judges were talking again in dramatic terms about men of African decsent as savages.  That is, as they prepared for war the talk turned -- unsurprisingly -- to enslaved men as savages who had the power to wreck havoc and maybe even destroy the white slave-owning south.  Justice Harris' viciously proslavery opinion in Mitchell v. Wells in 1859 is an example of this.  I'd like to write an essay about this once the book comes out, because I think this is a very good way of thinking about the sine curve of proslavery southern thought, 1830 to 1860, especially in the judiciary.

But that's dealing really with only a part of Roth's book; the majority of it is focused on the depiction of enslaved men in antislavery literature.  One thing that I like about this -- and I should also say I find bold (or maybe brave is a better word?!) -- is the sense that white women were not just gauges of changing attitudes towards enslaved men, but their widely-read literature helped change the dominant image of them.  That is, white women in particular helped free enslaved men.  This is certainly true to some extent -- Harriet Beecher Stowe is a key person here.  (I've written some about her assessment of jurisprudence and I think it a fairly easily supported case that she not only critiqued law but helped change attitudes towards it.  Caleb Smith's written about this too, of late.)  The key question is just how much the independent variable of antislavery fictional literature produced by white women contributed to the the multiple regression equation that explains the huge change in our nation's attitudes towards enslaved people (and men in particular).  On this I suspect there will be a very lively debate coming soon to the history journals.

And with that I'll say happy new year!

The illustration is a print of the Nat Turner rebellion, which is from the early era of Roth's study, when enslaved men were depicted as savages.

Update: As of July 2015 I've posted an essay review of Roth, which uses her framework to view how southern judges drew upon changing images of enslaved people from the 1830s to the late 1850s.

And here's a link to the review, which appeared in the November 2015 issue of the Texas Law Review.

New (Replacement) Confederate Statue in Reidsville, NC

I've been following the story for a while of a Confederate statue in downtown Reidsville, which was knocked over in a car accident in November 2011.  Well, ... there's now a replacement, which came at a mighty hefty price ($90,000).  It's in the city-owned Greenview Cemetery, rather than downtown and the old statue has been donated to the Reidsville historical society.  I guess this is the newest Confederate statue in our country.

In November 2013 the North Carolina Court of Appeals dismissed on standing grounds a lawsuit filed by a heritage group that sought to have the new statue put where the old one had been.

I do wonder about the cost -- which this story says was paid for by the driver's insurance company. As the NC Court of Appeals decision makes clear, the statue was public property (even though it was originally paid for by private funds).  I am skeptical whether it was a good use of the city's money to buy a replacement statue.  I would have thought the city had a better use of the money.  

Oh well, I guess this episode of Civil War memory is closed.  I have some more on the law and morality of building renaming (and monument removal) in an article in the South Texas Law Review back in 2010.  The image is of the intersection in Reidsville where the Confederate statue used to stand.

Probate Code Wiki: Everyone a Legislator

Thanks to  Gerry Beyer's wills, trusts, and estates blog I see that a legislator in California has set up a wiki to "allow citizens 'to draft a piece of legislation directly.'”  And you know what?  They're using the probate code.  This ought to be very interesting -- so far there aren't a lot of participants, but they are what you might expect from California.  For instance, a participant who calls herself(?) Crazyliz says "I'm another retired lawyer, from California, and I'm also interested in citizen democracy, so I want to participate in this experiment. I've participated in the past in an experiment with rule-making by wiki, which didn't work out so well, but one unsuccessful attempt doesn't mean the idea can't work. It just means there's more to learn."

While they're starting with a section of the code that restricts those who draft a will (or other instrument) -- and people who're related to the drafter -- from taking under the will.  So not all that controversial yet.  I look forward to seeing what happens when they get to intestacy shares....  I often find that lay people (and even law students) are surprised at how little a surviving spouse takes via intestacy.  In fact, on the first day of trusts and estates I conduct a survey of students' attitudes towards intestacy as a way of gauging their thinking about default rules (and also as a way of introducing some of the concepts we're going to be studying).  Almost all of them are substantially more generous to surviving spouses than is the North Carolina probate code.  (One notable exception to this is when the surviving spouse has substantial assets of her own -- and that's worth some discussion at some point.)

Anyway, I'm looking forward to seeing how this experiment works out.

Dean Searches: If the chemistry is right ....

For some reason I keep thinking about Robin Williams' line from the movie Good Will Hunting when I think about dean searches lately ...

"You're not perfect. And let me save you the suspense, this girl you met isn't either. The question is, whether or not you're perfect for each other."

A school can be very ambitious/succesful, and a dean candidate can too, but will they be successful together?

Isn't a lot about what makes a dean successful his/her chemistry with the stakeholders - faculty, students, staff, alumni, local legal community, central university (where it's not a stand alone law school) etc? And how do you test for that? Sure, we have interviews with a committee comprised of various stakeholders and then larger scale interviews with more stakeholders, but doesn't a lot of it come down to matching not only skill-set but personality? And how do you gauge that, even after a day or two of interviews?

At least one search consultant I've spoken with has talked about whether candidates are the right man/woman for a particular school and while part of this has to do with skill-set, part has to do with chemistry.

Some deans who have been successful at one school have been unsuccessful at another, and vice versa. But how do we figure out the "matching" part of the equation i.e. working out who, as a person, will fit in where?

Obviously, this problem isn't limited to law schools. It's inherent in hiring for any managerial position in any institution. Is there anything academia could learn from the corporate world or from organizational behavior studies in ascertaining personality match? Is it simply a case of "you know a good match when you see it" or is there more science to this question?

[And I have to add the disclaimer that even though I'm currently on my school's dean search committee, this is a general musing not related to my school's current search or to any specific dean candidates.]

Reading, Writing, and Difference and Twelve Years a Slave

I want to turn to one of Henry Louis Gates' early articles, "Reading, Writing, and Difference," which appeared in the Mississippi College Law Review nearly thirty years ago, back in 1984.  (And in expanded and revised form as "Writing 'Race' and the Difference It Makes" in Critical Inquiry in 1985.)  One theme of the article is that Enlightenment thinkers portrayed people who could not read as unintelligent.  In an effort to reconfirm the status of slaves as unintelligent and thus confirm the prejudices of those living in the wake of the Enlightenment, then, southern legislatures prohibited teaching slaves to read.  Gates' theory is that Enlightenment "knowledge" drove restrictions on slave literacy and that people of African descent wrote in part to prove their worth as thinkers and as humans.

I see the world somewhat differently -- and in some ways with less hierarchy than Gates or at least with less emphasis on Enlightenment ideas as a driving force behind the statutes restricting literacy.  Slave literacy was a threat to the slave system and, thus, slave-owners needed to restrict literacy because they recognized its power.  The reaction of southern legislatures, thus, confirms the importance of literacy -- a key vehicle of the Enlightenment.  That is, I see the arrows indicating the direction of influence differently. I think the Enlightenment's recognition of the power of literacy was confirmed by southern legislators who feared literacy.  Restrictions on literacy are the end result of the recognition that literate slaves would undermine the system of slavery.  On this point I think there's a lot to be said -- and I hope to say some of it one of these days.

Let me turn right now to one piece of evidence: the discussion around Twelve Years a Slave and the way that Solomon Northup had to hide his literacy.  Epps specifically forbids him to read.  When Epps found out that Northup could read and write, Epps "assured [him], with emphasis, if he ever caught me with a book, or with pen and ink, he would give me a hundred lashes.  He said he wanted me to understand that he bought "niggers" to work and not to educate."  

While Bass is on Epps' plantation in Louisiana Bass (the white hero of the book) comments on the restrictions on slave literacy.  He uses the restriction to explain why slaves are poorly informed: "your slaves have no privileges. You'd whip one of them if caught reading a book. They are held in bondage, generation after generation, deprived of mental improvement, and who can expect them to possess much knowledge?"  This fits with the thesis that literacy was feared because of its power -- rather than prohibited because illiteracy would confirm the Enlightenment theories of slave-owners.  Of course, this is just one piece of evidence and it is not inconsistent with other motives.  Bass' conversation with Epps supports the idea that slaves were kept from learning so that they would both be ignorant and appear to be uneducable.  The latter fits with Gates' thesis in "Reading, Writing, and Difference."  Twelve Years a Slave is also consistent with the thesis that restrictions on literacy were designed to make it much more difficult for slaves to challenge the system of slavery.

Southern Intellectual History Circle, February 2014

From the Southern Intellectual History Circle's Facebook page come details of their 26th Annual Meeting 20-22 February 2014.  It will be at the Crystal Bridges Museum of American Art and the University of Arkansas, Fayetteville.  The program is as follows:

Thursday February 20, 4:30 - 6:30 p.m., Inn at Carnall Hall,

Writers and Journalists in the Twentieth Century

Sarah Gardner, Mercer University, John Shelton Reed, UNC Chapel Hill, Jennifer Ritterhouse, George Mason University.  Michael O'Brien, Cambridge University will chair and comment.

Friday, February, 21

9 - 11 a.m., Ozark Hall (Honors College)

New Histories of Class, Race, and Politics in Arkansas

John Kirk, University of Arkansas, Little Rock, Story Matkin-Rawn, University of Central Arkansas,  and Michael Pierce, University of Arkansas, Fayetteville.  Ray Arsenault, University of South Florida, and Ben Johnson, Southern Arkansas University, Magnolia, will comment.  Timothy Nutt, Head of Special Collections, Mullins Library, UA Fayetteville, will chair.

12:15 - 2:15 p.m., Ozark Hall,

Circle Discussion, Journalists and Writers

4 p.m., Great Hall, Crystal Bridges

Public Keynote Address, Rachael DeLue, Department of Art & Archaeology, Princeton University

Saturday February 22 
10 a.m. - noon, Ozark Hall

Response to the keynote address

Leo Mazow, University of Arkansas, Fayetteville and Dell Upton, University of California, Los Angeles.

2 - 4 p.m., Ozark Hall,

Circle discussion, New Histories of Arkansas.

This looks terrific.  Go Razorbacks or should I say "woo pig sowie!"  Registration is here.

Peculiar Bequests (and inter vivos gifts and devises) to Harvard

Just in time for the start of my spring trusts and estates class comes this entertaining article in the Crimson on ten unusual bequests to Harvard.  They run the spectrum from modest but funny (novels given to Widener and graded by the donor) to the extraordinary (the largest gift ever given to Harvard -- though that seems to be an inter vivos gift rather than a bequest).  Another was a gift of a forest via will and yet another was a villa in Florence, Italy -- so we'd say those are devises not bequests, but who's quibbling.  It's not as though someone at Harvard confused verbal with oral.  (Smile to my friends in Chapel Hill.)

You may recall that I blogged a little about an early nineteenth century devise to Harvard a few months back.  That might have been a good one to include on this list.  Probably time to start collecting some cool stories about other devises to colleges....

Alliance For Paired Donation Finalist for Edelman Prize

Via Al Roth, The Alliance For Paired Donation, a pioneering organization in Non-simultaneous Extended Altruistic Donor Chains (NEAD Chains), which is chaired by Organs & Inducements participant and University of Toledo renal transplantation specialist Michael Rees, is a finalist for the 2014 INFORMS Franz Edelman Prize. The Prize is the world’s most prestigious recognition for excellence in applying advanced analytics to benefit business and humanitarian outcomes. 

The full press release is here.

Congratulations to Mike and the Alliance for Paired Donation!

For more on NEAD chains see the video below or this article with Kieran Healy on the topic. 

 

 

 

Swanson, Banking on the Body

Northeastern University law professor Kara W. Swanson's terrific study Banking on the Body: The Market in Blood, Milk, and Sperm in Modern America will be published by Harvard University Press this coming May.  Cribbing now from the HUP website:

Scientific advances and economic forces have converged to create something unthinkable for much of human history: a robust market in human body products. Every year, countless Americans supply blood, sperm, and breast milk to “banks” that store these products for later use by strangers in routine medical procedures. These exchanges entail complicated questions. Which body products are donated and which sold? Who gives and who receives? And, in the end, who profits? In this eye-opening study, Kara Swanson traces the history of body banks from the nineteenth-century experiments that discovered therapeutic uses for body products to twenty-first-century websites that facilitate a thriving global exchange.

More than a metaphor, the “bank” has shaped ongoing controversies over body products as either marketable commodities or gifts donated to help others. A physician, Dr. Bernard Fantus, proposed a “bank” in 1937 to make blood available to all patients. Yet the bank metaphor labeled blood as something to be commercially bought and sold, not communally shared. As blood banks became a fixture of medicine after World War II, American doctors made them a frontline in their war against socialized medicine. The profit-making connotations of the “bank” reinforced a market-based understanding of supply and distribution, with unexpected consequences for all body products, from human eggs to kidneys.

Ultimately, the bank metaphor straitjacketed legal codes and reinforced inequalities in medical care. By exploring its past, Banking on the Body charts the path to a more efficient and less exploitative distribution of the human body’s life-giving potential.

I read an early draft of this and I have to say that it's a terrific linking of legal history with the history of science.  And there are some unexpected twists to this book, too -- like how ideas about eugenics and immigraiton affected the development of milk banks.  It's really interesting to see how Swanson mixes all sorts of ideas into this story.  I think you'll enjoy it a great deal, even if you work in areas outside of property and technology.

Christmas Musings

What an unusual day this is -- a secular day of gift-giving, family and food, and for some a day of contemplation of the advent of God's incarnate presence on earth.  I know that many readers of this blog will dismiss the  latter as a silly fable, a superstition, and it is not my objective to persuade otherwise, save to note that all metaphysical questions begin with an assumption of faith, whether it is faith in rational thought to explain the unexplainable (e.g., where did the matter come from that exploded in the BIg Bang?) or faith in the existence of an almighty power that is the source of creation.  Be that as it may, here are some thoughts about the birth of Jesus.  

If Jesus is the incarnation of God, note that he arrived as a helpless infant and lived a human life.  He made himself accesible to humans; he did not come as sword wielding, fire breathing avenger of the world's disorder and injustice.  Perhaps, as George Weigel has suggested, God was in search of us, seeking to teach us his ways and express his desire for us to experience the transformation of unity with him.  Note also that the first announcement of his divinity was delivered to the marginalized, the pariahs, the outliers.  It was the scruffy shepherds, tending their smelly sheep in the fields, who were visited by the divine angels.  The entire arc of Jesus's life was devoted to the despised, the unwanted.  Samaritans, tax collectors, the halt, the blind, the leprous were those with whom Jesus consorted.   Those who are content with their ego accumulations are the most impervious to his message.  Who needs God when you have all you need in this life?  That's why Jesus observed that it was easer for a camel to go through the eye of a needle than for a rich man to receive the transformative power of God's peace.  

Whatever you may think of the Biblical account of Jesus's birth, it remains as one of the most powerful moments in human history.  If God searches for us, but refrains from coercion, that is a conception of God that offers us a gift, which we are free to accept or refuse.  Nonsense or not, it is a day to contemplate mysteries.

3L Nuggets: How can lawyers be happy? (Holiday Edition)

Is happiness is a niche practice?

    A couple of nights ago, I played the mega millions with my wife. We discussed what would happen if we won (spoiler alert: we didn’t). She, a dentist, and I, both knew that our respective careers would endure. That was a good sign that the kinds of law I was writing about and considering practicing made me happy.

    I recognize that the legal field is so competitive and the legal economy so uncertain that it would be a great privilege to be able to align one’s personal interests with one’s career. The job market for graduating law students is brutal enough that even considering the pursuit of happiness in a legal career must take a backseat to the more urgent priority of securing employment.

    Nevertheless, the holiday season might be a particularly apt one for considering the question of the happy lawyer. Is he or she a chimera?

    For a student nearing the end of the law school, it can help  to start visualizing the kind of career you want. When you find something you think would survive a win in the lottery, you are nearing the right answer. And you’ve given yourself a goal worth pursuing.

See The Happy Lawyer: Making a Good Life in the Law

    Of course, we cannot always be so lucky. School loans and the realities of buying a home, starting a family, etc. make making money important. Sometimes the job you take is the job you can get. But finding a career that is sustainable in the long term seems much easier if you can find a job you like. This becomes quite clear over three years in law school, when you find out how much better you can do in a class when you actually enjoy the subject. Some classes helped me realize the kind of law I did not want to practice.

    As hard as it might be to believe for some, there are tax lawyers, M&A lawyers, real estate lawyers, et al. who enjoy their work, and likewise would really not enjoy doing another kind of law. The practice of law is not a monolith.

    Unhappy lawyers might share feelings of being underpaid and/or overworked. Many of my friends and family worried when I told them I was going to law school; “aren’t lawyers miserable?” they asked.

    But surely there is a spectrum of happiness among lawyers. Those toward the higher end of that range appear to believe their brand of law suits them best.  Just as all happy families might be alike (hat tip: Tolstoy), have all happy lawyers found their niche?

    Faculty Lounge readers, what say you about the niche/happiness nexus? Have you practiced law in a niche you did not like and then found contentment in another?

    Have a great holiday! 

 

Hamline Law Names Jean Holloway as Dean

Holloway, currently VP of CR Bard, Inc., will step into the deanship on Jan. 6.  More information is here.   

Building & 1980s music video trivia

Well, usually I have building trivia questions that relate to legal history.  But I'm going to branch out some here to an old building that appeared in a music video from back in the 1980s. 

I am certain I'm not making this question too easy by saying that this trivia question was inspired by a song I heard on the radio by a  1980s band from Philadelphia.   I hadn't heard the song in probably 15 years, maybe 20.  That led me to look at the youtube video of the song and -- lo and behold -- I saw a colonial-era (or maybe it is very early federal-era) building in the background at the beginning of the video.  I said, holy cow.  I know that building!  

So, fresh from a trip to the land of hoagies and Wawas (to quote Governor Romney), I have an absurdly difficult two part trivia question.  First, where's the building at right.  Second, what music video is it used in?

Good luck.  I think this is only slightly easier than the world's most difficult antebellum building trivia question from last December.

Catharine A. MacKinnon Wins Ruth Bader Ginsburg Lifetime Achievement Award

The AALS Section on Women in Legal Education is pleased to announce that the recipient of the 2014 Ruth Bader Ginsburg Lifetime Achievement Award is Professor Catharine A. MacKinnon. Professor MacKinnon is Elizabeth A. Long Professor of Law at the University of Michigan Law School, long-term James Barr Ames Visiting Professor of Law at Harvard Law School, and an internationally-acclaimed scholar and lawyer.

The award will be presented at the Section Luncheon on January 3 at 12:15 p.m. at the New York Hilton Midtown, 1335 Avenue of the Americas, New York, New York.  Advance ticket purchase is necessary.  Tickets may be purchased by conference registrants only at on-site registration until 9:00 p.m. on Thursday, January 2.  The price is $85.  The award will also be announced at the Section’s Business Meeting to be held on January 3, 2013 at 6:30 p.m. at the same hotel.  There is no cost to attend the Business Meeting.

According to the award criteria, “[T]he purpose of the Ruth Bader Ginsburg Lifetime Achievement Award is to honor an individual who has had a distinguished career of teaching, service, and scholarship for at least 20 years. The recipient should be someone who has impacted women, the legal community, the academy, and the issues that affect women through mentoring, writing, speaking, activism, and by providing opportunities to others.”  Justice Ruth Bader Ginsburg was the first recipient of the award that is now named in her honor.  This is the second time the AALS Section on Women in Legal Education is making its most prestigious award.

Professor MacKinnon’s nominators cited her groundbreaking scholarship and her legal activism that has made it possible to address sexual harassment and violence against women as forms of sex inequality.  Professor MacKinnon will also be recognized for her inspiration of several generations of law students toward creative careers in a variety of legal and policy pursuits.  As one nominator said, “No one in our field has had more impact on women's rights, possibilities, and self-respect.  Professor MacKinnon's leadership and co-operation with peers has opened doors and inspired hope in women everywhere.”

The AALS Section on Women in Legal Education invites conference attendees to attend the luncheon in honor of Professor Catharine A. MacKinnon’s outstanding career of law teaching, scholarship, and service.

Questions or comments about the AALS Section on Women in Legal Education Ruth Bader Ginsburg Lifetime Achievement Award may be directed to Dean and Professor Cynthia Fountaine, cfountaine@law.siu.edu

A Plea for Bayesian Reasoning in Assessing the Appropriateness of Anal/Vaginal Probes Following K-9 Alerts

I wrote previously about a pending lawsuit to be filed by the ACLU on behalf of 54-year-old Jane Doe, a U.S. citizen who alleges that she was subjected to six hours of increasingly invasive cavity searches by U.S. Customs and Border Protection (CBP) agents and clinicians at the University Medical Center of El Paso as she attempted to return to the U.S. from Mexico via the Cordova Bridge in El Paso, Texas. That lawsuit has now been filed.

The facts alleged in the complaint, which are more or less those previously alleged in the media by Doe through her lawyer, are horrific. Here's the gist (Doe consented to none of the following searches, and none turned up any evidence of contraband):

• After she presented herself for inspection at the check point, a CBP agent confiscated her passport and told her she'd been randomly selected for additional screening.
• She was then subjected to an over-the-clothes frisk, in which a female agent "ran her finger over Ms. Doe’s genital area" and then, after ordering Doe to squat, "put her finger in the waistband of Ms. Doe’s pants and inserted her finger in the crevice of Ms. Doe’s buttocks."
• Doe was then told to stand in line with other people, at which point a drug dog appeared to alert to her.
• Doe was taken to a private room, where she was told to drop her pants and crouch. An agent examined her anus with a flashlight. An agent then "parted Ms. Doe’s vulva with her hand, pressed her fingers into Ms. Doe’s vagina and visually examined her genitalia with a flashlight."
• Agents sealed the cuffs of Doe’s pants by taping her pants to her legs. They then transported her, handcuffed, to University Medical Center of El Paso, where they handcuffed her to an exam table.
• Medical staff wheeled a portable toilet into the room, instructed Doe to take a laxative, and waited for it to take effect. They then observed her produce a bowel movement.
• Doctors x-rayed Doe's abdomen.
• Agents once again handcuffed Doe to an exam table and watched (along with passersby, since the exam room door was left open) while doctors inserted a speculum into Doe's vagina.
• Doctors conducted a digital probe of Doe's vagina while palpating her abdomen.
• Doctors conducted a digital anal probe of Doe.
• Finally, doctors gave Doe a CT scan.

Having found absolutely nothing incriminating, agents then gave her a choice: Retroactively sign a medical "consent" form and CBP will pick up the medical bill, or refuse to sign and be billed. Doe refused to sign and was later billed over $5,000 for her "treatment." She has not paid.

If true, this fact pattern suggests either that those involved are sadists or—far more likely—that they, like those who searched David Eckert and Timothy Young, are grossly overconfident in the evidentiary signal provided by a K-9 alert.

Under Florida v. Harris,

If a bona fide organization has certified a dog after testing his reliability in a controlled setting, a court can presume (subject to any conflicting evidence offered) that the dog’s alert provides probable cause to search. The same is true, even in the absence of formal certification, if the dog has recently and successfully completed a training program that evaluated his proficiency in locating drugs.

I have no earthly idea what a "bona fide" organization means, but my understanding is that there is wide variation in the standards employed by various training and certification organizations, some of which will "pass" a K-9 with a very high false positive rate. Among other things, K-9 responses have been shown to be significantly influenced by their handlers' beliefs about the presence of contraband. Or, on second thought, maybe not.

But even if we assume a very reliable K-9, and whatever we deem the predictive value of a positive test (i.e., an alert), it will be less than 100%. We should update our confidence in the presence of contraband when subsequent human searches yield nothing. And at some point in a series of false human searches following an initial K-9 alert, our updated belief should be considered insufficient to justify continued searches.

Agents and clinicians in this case — who had no reason to suspect Doe other than the K-9 alert combined with  the base rate of drug smugglers among those who enter the U.S. at El Paso — behaved as if the reliability of K-9 alerts were 100%, or something very closely approaching it. Since these are the same principles that govern when it is appropriate to offer, and how to interpret the results of, medical screening tests, it's more than a little ironic than so many doctors seem willing to go to the mat for these K-9s and their handlers.

Kansas Law Censured By ABA For Offering LLM Without Acquiesence

Busy times over at the ABA.  Following Rutgers-Camden Law's  ABA censure and fine a few weeks back, imposed because the substituted alternative tests in lieu of the LSAT without an ABA waiver, yesterday the Accreditation Committee of the American Bar Association Section on Legal Education and Admission to the Bar censured and fined the University of Kansas School of Law for offering an LLM without first obtaining ABA acquiesence.

3L Nuggets: 2. Are typos the enemy?

The legal profession takes a strong stand against typos.

I will admit that as a history graduate student, I thought the research and the writing would speak for themselves. The occasional typo or style slipup, while I would try to catch them when I proofread, would not faze me too much.

For more than two years now I have seen hawkeyed professors and firm partners find even the smallest typographical error with a kind of typo omniscience that puts the fear of the almighty into law students everywhere.

This is especially the case when it comes to legal citation, when a misplaced apostrophe or comma is an easy sin to commit.

Indeed, legal professionals can make a strong argument when pressed on the importance of eliminating even the smallest typos:  Lawyers need to care about such things because they have clients to represent and judges to persuade.

Clients see carelessness that ignores how important the case is to them and how much money they are spending on your services. Judges see an insouciance that keeps them from trusting you. How can they be sure you are citing cases properly and advancing credible arguments when you reference a “squid pro quo” exchange?

I will say that I read and reread what I write many more times and much more carefully than I did before law school. Will I catch everything? Maybe not. Maybe there's a typo in this very post! But if I don’t, at least at this point it won’t be because I don’t care. This is another area where law school successfully indoctrinates the law student.

Can you spot the difference between the italicized and regular period? . .

Anyone out there want to defend the occasional typo? One argument I can think of is that spending hours checking for typos can increase legal costs and make law less efficient. 

Nuggets of Wisdom from a 3L: 1. How do I "think like a lawyer"?

After my 1L Year, I guest-blogged on another fantastic site, the Legal History Blog. I prepared a top ten list for students with graduate training in history making the transition to law school. Now that I’m nearing my last semester, I thought it would be enjoyable to add three nuggets of wisdom I have gathered about being a law student and a soon-to-be lawyer.

Foremost, I am beginning to feel more like a lawyer than a law student. What does this mean? I will post my reflections in three parts. 

The Village Lawyer, c. 1621, by Pieter Brueghel the Younger

1. “Thinking like a lawyer” isn’t just about analytical skills.

    Going in, I knew law school would emphasize a new way of thinking and analyzing problems. I would learn how to "think like a lawyer." Well, this much is definitely true. But I also think a good law school experience will help budding lawyers accept the heightened responsibility that comes with that skillset.

    Experiences in my first two and half years of law school have helped me realize how important it is for lawyers to feel a sense of duty to others. Lawyers, put simply, have a certain wherewithal that lay people do not. During my past two summers, writing research memos for cases related to national security or the financial crisis, I realized how much could ride on a lawyer’s work. Likewise, when I field legal questions from friends and family, I see the personal responsibility that will come with becoming a lawyer.

    What might seem oversentimental to cynical or jaded practitioners appears essential and basic to an enthusiastic law student. It helps, I think, for students just out of law school to start their careers with that sense of purpose. It will keep members of the bar from forgetting just how much rides on what they do and the advice they give.