The Faculty Lounge

Census of Law Professor Twitter Users Version 3.0

Below the fold is Version 3.0 of the census of law prof Twitter users.  Of the 553 faculty members included on this list, 330 are male; 223 are female. By way of comparison, Version 2.0 (here) from July 2012 had counted 204 faculty members -- 142 male, 62 female.  The beta version (here) had counted 93 users. 

Version 3.0 was developed over a period of approximately 2 weeks from comments received from readers, Twitter handles sent to me via email by faculty or law school staff members, and my own efforts to locate law faculty on Twitter.

All additions and corrections very welcome for future versions (at this time, there is no specific planned future publication date, however).  Feel free to use the comments or email me directly at bcrawford *at* law *dot* pace *dot* edu. Responsive signed comments with full names and email addresses only; all other comments will be deleted.

The list is meant to cover individual law professor tweeters only (not accounts of groups, programs, law schools, publications, students, practitioners, staff).  To be included, one must be a full-time law school faculty member (not, say, a law-trained prof working in a business school).

For folks interested in the raw data, my spreadsheet is available for download here: Download LawProfessorTwitterCensus3.0Published

View Census of Law Professor Twitter Users Version 3.0

1979 Greensboro Massacre: Historical Marker?

In November 1979, at an anti-Klan rally in Greensboro the Klan showed up -- and then massacred five of the protesters.  This led some years ago to a truth and reconciliation commission in Greensboro and now a debate about whether Greensboro should put up a historical marker.  Some of the city commissioners spoke against it because they object to the word "massacre" as part of the proposed language.  According to the Greensboro News and Record, one council members said, "I think if the wording was changed to ‘shootout’ or ‘shooting’ it would be closer to what actually happened ... The marker can’t tell the whole story but the word ‘massacre’ gives you the wrong idea about what actually happened that day."  So maybe there's a compromise on the way to "save history" as the News and Record phrases it.  Or, as another council member said, "I just don’t think it’s a positive for Greensboro."  That is about the best explanation you can find for why there isn't yet a marker there.

In fact, the city's already done a great job of erasing that history.  Some years back when I was visiting Greensboro I went looking for the site of the massacre.  It's hard to find because the roads there have been redrawn.  What I was able to find is the cemetery marker for those killed, which is in a cemetery a few blocks away.  

Of course I believe that a historical marker is more than in order.  This is going to a vote on February 3. For those of you thinking of attending, the Greensboro City Council agenda for February 3 is here. And here is an article that puts the debate into more context. The North Carolina Department of Cultural Resources has promulgated extensive guidelines regarding placement of new historical markers, which are available here.

Update: the city council voted 7-2 to approve the marker.

H/t Eric Fink.

Some Thoughts on In-House Bar Prep Courses

When I went to law school (I graduated from Harvard in 1994), no one ever mentioned the bar exam.   In fact, I don’t remember a single one of my professors discussing what subjects from their course were likely to be covered on the bar exam, for example.  That is not to say that what they were teaching us was not useful preparation for the bar exam or that the courses didn’t cover some of the material that we needed to know for the bar exam, because it was and they did.  My professors taught us how to think critically, how to approach problems from different perspectives, how to apply law to facts.  Along the way, we learned quite a bit of substantive law as well.  I had Arthur Miller for Civil Procedure, a year-long course.  He taught exclusively using the Socratic method.  There were no handouts, and certainly no PowerPoint slides (was PowerPoint even invented back then?), but he was the best teacher I ever had.  He inspired us, partially through fear and intimidation, partially through a desire to please and impress him, and partially by setting an example of meticulous preparation and consummate professionalism, to study harder than we ever had before.  And I learned a lot of civil procedure.  

In my third year of law school, I signed up for the Pennsylvania and New Jersey bar examinations, which were offered back to back, and enrolled in BarBri, which my father, then Dean at Widener Law School, assured me was far and away the best bar prep course available.  I followed the BarBri program and I easily passed both bar exams.   I felt at the time that I probably could have just skipped the last two years of law school and passed the bar just by taking BarBri, because the subject matter review was so comprehensive, and because I had mastered the basic form of the law school exam essay by the end of the first year.   I do not mean to imply that the last two years of law school were a waste of my time.  Quite the contrary,  I look back on those years as one of the most fulfilling and exciting times of my life, and I learned a lot.  My point is that I took hardly any courses that were bar-tested in my second and third years, so the bar review was mostly a review of my first year courses.  

When I started teaching law in 2005 at Western State University College of Law in Fullerton California after a decade of practicing law, I quickly realized that for students who are not naturally gifted standardized exam takers and essay writers, the standard bar review course at the end of law school was, in many cases, not enough to help them achieve a passing score on the bar.  This was especially true in California, where the exam was longer (3 days), more difficult (with a higher cut line) and tested more topics than the bars I had taken.  

One potential method to help prepare students for the bar exam was to provide an in-house bar review/bar prep program to be taken prior to graduation, before the student started the traditional bar review course.  For a long time, the ABA Standards did not permit students to earn credit towards graduation for such a bar exam prep course.  This rule was modified in 2004-5 to permit students to earn credit for an in house bar exam prep course, but the credit couldn’t count toward the minimum classroom instruction time required by Standard 304, and law schools were not permitted to required a bar exam prep course as a condition of graduation.  As a result of these rules, in house bar prep programs in 2005-2007 largely consisted of sparsely attended voluntary evening and weekend workshops. In the summer of 2008, ABA Standard 302 was revised (by eliminating Interpretation 302-7) to permit bar preparation courses to be offered for credit, to allow such credit to count towards the minimum requirements for graduation, and to permit law schools to require such courses to be a required part of the curriculum for some or all students.   

Taxing Eggs: The Decision

Regular Lounge readers may recall the Taxing Eggs Mini-Symposium we held here last February, which gathered a number of tax experts to discuss Perez v. Commissioner, No. 9103-12 (Feb. 14, 2014) (Holmes, J.), the first case addressing the inclusion in taxable income (and perhaps the proper characterization) of compensation received for the sale or donation of human eggs and related services. 

The decision was filed today and, as predicted by our panel of experts, held that the money received by Perez was not “damages” under I.R.C. section 104(a)(2) and must be included in gross income. Because both parties agreed that the payment was for services, however, the case doesn't address any capital gains issues.  

From the opinion, which is available here: 

We see no limit on the mischief that ruling in Perez’s favor might cause: A professional boxer could argue that some part of the payments he received for his latest fight is excludable because they are payments for his bruises, cuts, and nosebleeds. A hockey player could argue that a portion of his million-dollar salary is allocable to the chipped teeth he invariably suffers during his career. And the same would go for the brain injuries suffered by football players and the less-noticed bodily damage daily endured by working men and women on farms and ranches, in mines, or on fishing boats. We don’t doubt that some portion of the compensation paid all these people reflects the risk that they will feel pain and suffering, but it’s a risk of pain and suffering that they agree to before they begin their work. And that makes it taxable compensation and not excludable damages. 

I note that the case includes citations to articles by three of our Taxing Eggs participants: Bridget Crawford, Lisa Milot, and me. 

 (Oh my, this post does contain the three cardinal sins of blogging: content links, use of the first person, and self-promotion. Oops, I just did it again).

(HT: Lisa Milot)

 

Related Posts:

Taxing Eggs: A Mini-Symposium

Taxing Eggs: Introduction to Perez v. Commissioner

Taxing Eggs: Paul Stephan

Taxing Eggs: Lisa Milot

Taxing Eggs: Lawrence A. Zelenak

Taxing Eggs: Bridget Crawford and Crawford, Part II

Taxing Eggs: What Have We Learned?

Taxing Eggs: Bridget Crawford III

Taxing Eggs: Lisa Milot Responds

Taxing Eggs: About That Other Case

Taxing Eggs: The Wrap-up

Jury Trial removal and the Boston Marathon bomber trial

With so much going on in the news, the details of the Boston Marathon Bomber's jury trial have fallen from the headlines a bit, at least for those of us not in New England.  Yet even before the trial starts, a controversy has erupted over whether the trial venue should be changed from Boston to another federal district.   I find this issue, one of jury rights and community rights and defendant's rights--fascinating, and so I wanted to share some of what's been published recently:

1) Tsarnaev's defense, having had their motion for removal twice rejected already, is hoping that hopefully third time will be the charm, filing today.  (hat tip:  Legal Times & Howard Bashman)

2) Leon Nefakh has a fascinating piece in Slate today discussing jury bias in the Tsarnaev, Eton Patz, and Colorado shooting jury trials

3) The New York Times recently held one of their "Room for Debate" online forums on whether Tsarnaev's trial should be moved, featuring Valerie Hans, Jeffrey Abramson, Lincoln Caplan, Richard Lind, Thaddeus Hoffmeister, and myself. 

Happy reading!

Law Blogging Best Practices

A commenter on my last post interpreted it as a general post on best practices in law blogging. I didn't think it was, but I thought the points deserved a reairing and expansion in a full post. The questions are: What is the purpose of law blogging? Is there a purpose? Is it all about analysis? When it is not about legal analysis, is there room for the personal point of view, or is that just narcisissm?

On the one hand, these comments might be discarded as simple grousing by a bored reader. On the other hand, I've seen enough comments like this through the years to wonder whether there are different views on the whole endeavor. Indeed, I limit this to "law blogging" because the early rise of such blogging came at a time when blogs, to me, were often little more than expanded "What I had for breakfast" Facebook posts. Law blogs were different. But now that blogging in general has essentially become alternate news service, perhaps expectations have changed so much that the occassional "Why I blogged this morning" posts are intolerable in law blogging.

Let's take the three concerns of the prior commenter:

1. Too much hyperlinking to prior discussion. The primary objection is that this is merely self-indulgent self-promotion to materials that no one cares about. The link to my last post above, in other words, is merely a self-promotional ploy to get the reader to read yet another one of my posts. Another commenter defends the practice, arguing that links can provide context and lead to discussions that might have been missed. My best practices takeaway is that links are helpful, but posts in which every single word seems to be hyperlinked are a bit much.

2. Too much me, me,  me. Posts should be in the third person, and should be neutral analysis. Well, sure, dispassionate analysis can have the most widespread impact. But this is really the heart of the question: is there room for anything else? And does it depend on the website?  Some people like me, me, me postings. I know because I get them shared on my Facebook wall every day. Even Stephen Colbert stepped out of character sometimes, didn't he? The question is, what's the best mix? I have no idea. But I will share one of my favorite comments on this discussion by Bruce Boyden from a prior debate at PrawfsBlawg:

It's an odd, odd view of the scholarly enterprise (but one that I've encountered before) that we are supposed to toil away for months or even years on our pet projects and NOT LET ANYONE KNOW ABOUT IT. It's a tragic fact of life that much of what professors produce is not read (and some subset of that is not worth reading) -- but that's not the ideal!

3. Too long. Bloggers shouldn't expect readers to read a 1000 word post. It's just gasbagging in this tl;dr world. I think length is not the issue, but quality. My own target is usually 800 words, because it forces me to be succinct (and also allows me to make two posts out of one, which keeps the content rolling when I'm busy).  But that said, I think tl;dr is ridiculous. Posters should have good intros and conclusions, but shouldn't accede to the desires of those unwilling to actually read the neutral, dispasionate analysis that they claim they want. I frequently read long, long blog posts that are way better than many shorter posts that simply gloss over the same information.

All of these points are really stylistic, though. It's possible to have a completely irritating, self-indulgent blog with really great content. This leaves me wondering whether best practices are in the eye of the beholder: should bloggers deliver how they want to write, or how people want to read?

Alicia Ouellette Named Dean Of Albany Law

Acting Dean Alicia Ouellette, of Albany Law School, has been named permanently to the position. She will also become the free-standing school's president beginning July 1, when former dean Penelope Andrews leaves that position.  Ouelette holds a JD from the law school. 

LSAC Data and Predicting of Applicants for Fall 2015, Part 5

The LSAC is reporting that "As of 1/16/15, there are 153,547 fall 2015 applications submitted by 22,272 applicants. Applicants are down 7.7% and applications are down 10.4% from 2014.  Last year at this time, we had 44% of the preliminary final applicant count."   If this year's applicants follow last year's pattern, we'll have approximately 50,618 total applicants for the class entering in fall 2015.

The last post in this series is here.

The Variable Cost Of Law School: Geography And LSAT

Over at Legal Whiteboard, and at SSRN, Jerry Organ is presenting his new data in a package called The Variable Affordability of Law School - How Geography and LSAT Profile Impact Tuition Costs.  He shows that students with strong LSAT's have significant opportunities to minimize the cost of law school by trading down to a school ranked lower in US News.  The charts are interesting and worth a look.

ME/CFS Follow-Up

In addition to the supportive comments on this and other blogs, I have received quite a few private emails since writing about ME/CFS, especially after my post was picked up by the ABA Journal.  I heard from two academics who are not “out,” and who asked me to keep their illnesses confidential.  I received an email from a lawyer for whom “the isolation and dealing with something people diminish and don't understand have been almost as bad as the symptoms at times.” 

Most affecting was a series of emails from a law student who described in detail the ordeal of attending school while coping with ME/CFS.  In addition to problems of concentration and stamina – especially at exam time – the student has to cope with a social situation in which s/he does not feel free to confide in others the nature of his/her difficulties. [I am using the awkward split pronouns because the student quite reasonably requested absolute anonymity.]  In addition to apprehension about the reaction among peers, the student expressed concern that the bar examiners would interpret ME/CFS as a psychiatric problem, which might then delay admission to practice.  Consequently, the student has told no one about ME/CFS, including the Disability Office,  for fear that accommodations would lead to gossip, and then to broader disclosure, and then to stigma. 

My experience has been the opposite.  Disclosure of ME/CFS has brought me nothing but thoughtful support.  But I am tenured and well-established (although, of course, I have no idea about the reaction of people who have not contacted me).  Nonetheless, I think that a student’s anxiety about going public with ME/CFS is entirely rational, even if the worst of his/her fears would never come about.  

So, to law professors reading this blog:  Please be alert to jokes or casual remarks – among faculty or students – about ME/CFS.  The disease is invisible, and I guarantee you that a student with ME/CFS would be profoundly discouraged to hear the illness dismissed or minimized by a professor or classmate. 

Finally, I think it is necessary to say something about productivity and expectations.  A number of commenters, here and on other blogs, have commended me for being able to keep up my publishing and teaching during my illness.  Well yes, I have done that, and it has been a daily struggle.  But it is important not to over-emphasize success or “triumph” stories, which can sometimes be taken to suggest that others simply haven’t tried hard enough.  As I trust Faculty Lounge readers will understand, it takes much more than an iron will and settled determination to overcome the challenges of ME/CFS and similar conditions.  If other people have had less success, it is only because they have not had my privilege and advantages (not to mention my uniquely flexible job). 

[Note:  I have omitted or changed identifying characteristics for the people whom I have described in this post; they are not associated with Northwestern.]

Law Prof Twitter Census Version 3.0 -- Call for Entries

Bumping to the front from 1/6/2015; deadline for updates is 1/22/2015

The abundance of tweets at the AALS Annual Meeting (#AALS2015) made me sit up and take notice of how many more law professors there seem to be on Twitter now compared to 2012 when I last updated the Census of Law Professor Twitter users (see Version 1.0 here and Version 2.0 here).   I thought it would be worthwhile to crowd-source an update to the prior list.

The list below the fold is Version 2.10, which is Version 2.0 updated with any additions I received directly since August, 2012 or any law prof accounts that I have happened to encounter (typically because they follow me on Twitter or I follow them).  The list is far from accurate or complete as of now, and I need your help updating it.  If you are not on the list and would like to be, or if you have corrections or additions, please leave information in the comments or email me at bcrawford *at* law *dot* pace *dot* edu.  The list below is not editable.

As with prior versions, the list is meant to cover individual law professor tweeters only (not accounts of groups, programs, law schools, publications, students, practitioners, staff).  Folks should be full-time law school faculty members (not, say, law-trained profs working in business schools).  Non-U.S. law profs very welcome.

Responsive signed comments with full names and email addresses only; all other comments will be deleted.  Deadline for updates is January 22, 2015.  Version 3.0 will be published shortly thereafter.

VERSION 2.10 (last updated 1/21/2015)

 

CFP: Sexual Regulation in Asia

From an email I received today:

The Centre for Asian Legal Studies (National University of Singapore) is organising a conference entitled "The Life and Future of British Colonial Sexual Regulation in Asia" for 8-9 October 2015.  The co-conveners of the conference are Dean Hor and Assistant Professor Lynette Chua (NUS) and the event will take place at NUS in Singagpore. Hong Kong Law Journal will publish selected papers in a special focus issue. 

Scope of the conference: conference organisers hope to bring together scholars who study various facets of same- sex sexual regulation, including recent developments, its colonial legacies, and its future in Asia. The goal is to share insights on new research and collectively showcase contemporary scholarship on a timely issue in the region. The conference papers may focus on one or more of the following related to section 377 ('carnal intercourse against the order of nature') and section 377A ('gross indecency') of the penal code, and other similar provisions inherited from the British by its former colonies in the Asian region: doctrinal analysis of judicial decisions, legislative contestation over repealing/retaining the law, new interpretations of the legal history of the provisions, activist campaigns/litigation efforts, post- repeal developments and further legal reforms, and feminist or other critical analyses of related judgments etc. They could feature one or more jurisdictions that were former British colonies in the Asian region, widely construed to include South Asia, Southeast Asia, East Asia, and the Pacific Islands.  

Interested? Scholars who would like to participate in this conference should submit an abstract of 150 words and a biographical sketch of 100 words by April 15, 2015. Proposals should focus primarily on the conference scope and objective set out in this call for papers. Funding may be available for those who are selected (no separate funding application is required). Decisions, including funding availability, will be announced by 15 May 2015. Complete versions of all conference papers must be submitted by 10 September 2015. Abstracts can be submitted here.

Mark Gordon Named Dean Of William Mitchell Law

Mark Gordon, the president of Defiance College, in Defiance, Ohio, has been named the new dean of William Mitchell College of Law.  He was previously the dean of Detroit Mercy School of Law.  Gordon, who holds a JD from Harvard Law School, will take over in July.

On Blogging

I'm pleased to be hanging out in the Faculty Lounge for a bit. I hope to be able to discuss some topics that don't fit in my regular (new) blogging home, Written Description. For my first post, I want to discuss blogging. I'll just discuss some of my own experiences, which may be interesting or useful to others deciding whether to spend time doing it.

I began blogging in late 2008, when Dan Markel invited me to guest for the first time at PrawfsBlawg. I had only been a tenure-track faculty member for a little over a year at the time, so I ignored whatever "don't blog pre-tenure" advice there might be out there. I soon became a regular guest contributor and also joined the group as a permablogger at Madisonian. I thought of blogging as having two primary purposes: 1) writing about things that I don't normally write about, and 2) writing about things that I normally write about. I suppose that covers the waterfront.

Michael Risch Stepping into the Faculty Lounge

I'm delighted to report that Michael Risch of Villanova University's law school is stepping into the faculty lounge to sit with us for a spell.  Cribbing now a little from his webpage:

Professor Michael Risch joined the Villanova faculty in 2010 from the West Virginia University College of Law, where he directed the Entrepreneurship, Innovation and Law Program. Prior to joining the West Virginia faculty, he served as an Olin Fellow in Law at Stanford Law School. Professor Risch’s teaching and scholarship focus on intellectual property and internet law, with an emphasis on patents, trade secrets and information access.  His articles have been published in the Stanford Law Review and Duke Law Journal, among others; online in the Yale Law Journal Online and PENNumbra; and less formally at the Madisonian, Prawfsblawg, and Patently-O blogs. Two of his articles have been cited by the United States Supreme Court. Professor Risch received his A.B. with honors and distinction in Public Policy and with distinction in Quantitative Economics from Stanford University, and his J.D. with high honors from the University of Chicago Law School. Prior to entering academia, he was a partner at intellectual property boutique Russo & Hale LLP in Palo Alto, California.

Welcome, Michael.  I'm pushing a chair into the lounge for you now; looking forward to your posts.

Conflict and Backlash

In a prior post I looked at the connections between Griswold  and poverty law that were brought out at the AALS constitutional law panel.  For this entry I would like to focus on another issue raised at that panel—the problem of conflict and backlash in the development of constitutional rights.  Reva Siegel, in her opening remarks, suggested that the history of Griswold reflects the importance of conflict, rather than consensus, to the development of constitutional law and constitutional meaning.  The basic idea here is that the conflict over the meaning and extension of privacy rights after Griswold, and the conflict over contraceptive rights themselves, has had a substantial impact on the meaning of the underlying rights, to the point that the right to contraception reached near-canonical status after the battle of the Bork nomination.  All subsequent Court nominees professed acceptance of Griswold, at least to the extent of its holding regarding contraceptive rights. In this way conflict can itself build consensus.  As people and groups stake out their competing arguments about one aspect of the right--the role of privacy rights and abortion, for instance--consensus may appear, or at least be professed, around a baseline application of the right, such as contraception, especially when that right has gained status in social practice.  

Liberty Leading the People by Eugene Delacroix (1830)

This idea presents an important counterweight to the idea of backlash. The backlash thesis is well known, and is associated most commonly with the work of Gerald Rosenberg and Michael Klarman.  The (overly) simplified version is that when the courts advance constitutional rights in periods of social conflict, political and social opposition to those rights will coalesce and harden in a manner and degree that would not have happened had courts and litigants stayed their hands.  By provoking backlash, the Court may well retard the poltical development of the very rights it hopes to advance.  One can apply this basic framework to reproductive rights in the 1970s, where the reaction to Roe arguably resulted in a backlash both politically and judicially (with cases like Harris and Maher). (In a future post I will discuss how the work of Mary Ziegler begs us to complicate that assessment.)  Backlash is then sometimes cited as a reason for caution in pressing for constitutional change through the courts.  

 

A New Student Debt Ranking

By now, most Lounge readers are likely already familiar with SeekingArrangement, a website that connects sugar “babies” and “daddies.”  For those that aren’t, SeekingArrangement claims 3.6 million active members, 2.6 million of them babies and 1 million daddies (and, supposedly, mommas, though other references on the site are exclusively to daddies).

US Colleges With The Highest Number of Babies

According to the website, sugar daddies receive no strings attached relationships with attractive women. In exchange, sugar babies receive “shopping sprees, expensive dinners, and exotic travels,” a “mentor” who can provide “valuable guidance,” and the freedom to no longer worry about unpaid bills.

But that’s all old news. 

What is new news, according to the Atlantic, is the impact that the rising cost of student debt has had at SeekingArrangement.  Apparently, sugar daddies are rushing to the rescue at campuses across the country, volunteering to subsidize tuition costs:

What might have been little more than a nuisance in the past has turned into an outright hindrance to many students’ financial security: It takes about 14 years on average to pay off the debt. As a result, young women across the country are turning to sugar daddies in droves. Many of them use SeekingArrangement, which describes itself as "the world’s largest Sugar Daddy dating site." More than 1.4 million students have signed up as members, including nearly 1 million in the U.S., according to the company. The website claims that 42 percent of its members are students. . .

 

Colleges With The Highest "Babies" Growth (2014)

Georgia State, Arizona State and Kent State are all sugar baby hot spots.  But it is NYU, which charges $46,170 a student for tuition and fees, that this year became the first college ever to cross the "1000 sugar babies" threshold. 

(HT: Joan MacLeod Hemingway)

Same-Sex Marriage: The Aftermath

Now that the Supreme Court will decide whether the Constitution forbids limiting marriage to opposite-sex couples, it's time to ponder the rationale for what will likely be a 5-4 decision striking down such laws.  (Justice Kennedy will probably assign himself the opinion for a majority of Ginsburg, Breyer, Sotomayor, Kagan, and himself.)  Here are some possibilities and their likely consequences.

1) Strict Scrutiny: Equal Protection.  The Court may say that sexual orientation is a suspect category of discrimination.  Sexual orientation may well be an immutable characteristic but it is not the highly visible trait that makes race a "discrete and insular minority."  Nor have gays and lesbians lacked political power in recent decades.  Gay rights advocates have won and lost battles, much as any other lobby has done.  Of course, there has been a history of prejudice against gays and lesbians, and while that is abating it is not nonexistent.  If the Court makes this move it will then have to confront possible state laws that insulate from anti-discrimination statutes people who refuse to provide goods or services to gays and lesbians on account of their religious convictions.  The outcome is not obvious.  Such cases as Romer suggest that these laws might flunk strict scrutiny, but an argument can be made that the government has a compelling interest in protecting religious convictions, even if that interest is not so high as to invoke the free exercise clause.  But the effect of such laws is to single out gays and lesbians for disadvantegeous treatment and I think Romer would apply.

2. Strict Scrutiny: Due Process.  The Court might say that marriage is a fundamental right, invoking Loving and other cases.  But the assumption of all of those earlier cases was that marriage was an opposite-sex arrangement.  Racial barriers to opposite-sex marriage are subject to double scrutiny: race and an absolute bar to what was then understood to be marriage. Of course, society's perceptions are rapidly changing, and this may be the Court's tack.  If so, it does raise questions about how much the definition of marriage may (or must) be constitutionally expanded.

3. Intermediate Scrutiny.  Applying either or both of equal protection and due process the Court could say that intermediate scrutiny applies. But then the Court would have to confront the circumstances that make sexual orientation or absolute denials of same-sex marriage justified.  If there are none, why not just apply strict scrutiny? As Justice Scalia once remarked, "We apply intermediate scrutiny when we think it's a good idea to load the dice."

4. Minimal Scrutiny.  The Court might say one (or both) of two things:  i) States have no legitimate reason to deny marriage to same-sex couples because the denial is rooted in animus towards gays and lesbians, and ii) even if there is a legitimate reason to limit marriage to opposite-sex couples the limitation is not rationally related to that reason. This works well for such hypothesized reasons as procreation, but it fits uneasily with the claim that it is legitimate for states to refrain from expanding marriage until the larger social consequences of a redefinition of marriage are widely understood.  If irrationality means what it has meant in other contexts it's probably rational to have some hesitation about abandoning the ancient custom of marriage. And if this is irrational it opens the door to a more widely applicable voiding of laws on the basis of irrationality.  Maybe that's good -- it's certainly libertarian -- but it undermines the long-standing presumption that government actions are usually presumed to be valid.  Also, if the Court takes this tack it will have to explain why the Court's deference to state definitions of marriage in Windsor  is inapplicable here.

I have no idea what the Court will do, but I'm skeptical that they will apply any form of heightened scrutiny.  Prediction is dangerous:  "He who lives by the crystal ball must be prepared to eat ground glass." 

LSAT Policy of Limiting Test-Takers to Law School Applicants

An anonymous correspondent writes to remind us that the LSAT requires all test-takers to make the following declaration:

"I certify that I am the examinee whose name appears on this answer sheet and that I am here to take the LSAT for the sole purpose of being considered for admission to law school. I further certify that I will neither assist nor receive assistance from any other candidate, and I agree not to copy or retain examination questions or to transmit them in any form to any other person."

The anonymous correspondent complains of only the first sentence.  He or she notes that even if he intended to apply to law school but also wished to determine his skill at the LSAT (perhaps as a temporary LSAT tutor) he would violate his oath if he were to do so.  I have no strong opinion on this issue; I raise it only to give it a public airing.  I recognize the LSAT desire to curb the advantage gained by people who have paid for excellent LSAT tutorials (and limiting test-takers in this manner does serve that end, though probably not particularly well).  On the other hand a person might wish to take the LSAT to see how promising his odds of admission to a good law school might be, and lack any present intent to apply to law school.  Even if the LSAT is considered a public accommodation, the LSAT's discriminatory access policy does not offend any recognized wrongful basis for discrimination.  So I think the LSAT can do as it likes on this matter, though its policy may be unduly restrictive. 

Conway named Dean of University of Maine

University of Hawaii professor Danielle Conway has just been named Dean of the University of Maine's law school. Cribbing now from the university's announcement:

Conway is the Michael J. Marks Distinguished Professor of Business Law and Director of the Hawai‘i Procurement Institute at the University of Hawai’i at Mānoa, William S. Richardson School of Law. Over the past 14 years at Hawai’i, Conway has earned a reputation as a leading expert in public procurement law, entrepreneurship, and as an advocate for minorities and Indigenous Peoples. She also has more than 20 years of active and reserve duty service with the U.S. Army, and currently serves as a Lieutenant Colonel.

H/t Mark Levin.