The Faculty Lounge

Is Early Voting Overrated?

Early voting has become one of the most contentious issues in election law. At present 39 states permit voters to cast a ballot before Election Day, sometimes as early as 45 days beforehand. Proponents argue that early voting periods increase voter turnout and thus promote democracy. Critics contend early voting increases election costs and leads voters to cast ballots before they have all the relevant information about the candidates. 

Like virtually everything else in our politics today, the debate has given rise to an intense partisan and ideological divide. Democrats have pushed to expand early voting periods whereas Republicans have generally opposed such proposals. Wisconsin, in particular, is a flashpoint in the debate over early voting. In December the outgoing Republican legislature cut the state’s early voting period from 6 weeks down to 14 days, setting off a bitter public controversy. Earlier this month a federal judge blocked the reduction from going into effect.

For all the controversy it generates, does early voting actually increase turnout?

The answer is no. In an excellent new analysis of the issue on FiveThirtyEight, Nathaniel Rakich points out that academic and government studies of early voting have consistently found that it “doesn’t increase turnout — it just shifts when existing voters cast their ballots.” In fact, if anything, the evidence suggests that early voting drives down turnout. As Rakich explains:

“a more recent study by political scientists at the University of Wisconsin, Madison discovered that, when not accompanied by other reforms, early voting actually leads to lower turnout — perhaps because the social and campaign-driven pressure to vote is not as focused as it is when voting must all occur on a single day. Finally, the Government Accountability Office reviewed 20 early-voting studies in 2016 and found that most of them said that early in-person voting has either an insignificant or negative impact on turnout.”

Notwithstanding the turnout data, there is no doubt that voters appreciate the convenience of casting an early ballot. In the 2018 midterm elections an all-time record of 36 million people voted early (including me). But as Rakich argues, we should not oversell the benefits of early voting periods. The evidence indicates that they are modest at best.         

The Frozen Logger

Many thoughtful friends have asked how we are handling the polar vortex in Chicago. As a half-Canadian, all I can say is that it's just another winter day in Winnipeg. Or, as Pete Seeger tells it:

May 3, 2019, will be the 100th anniversary of Pete Seeger's birth.

St. Mary's Law Seeks Criminal Law Faculty

This just in:

ST. MARY’S UNIVERSITY SCHOOL OF LAW invites applications for a full-time, tenure-track faculty member to begin in August of 2019. Experienced teachers are especially encouraged to apply and will be considered for appointment at an appropriate rank. Subject matter needs include criminal law and criminal procedure. Applicants should have excellent academic credentials, strong teaching evaluations, and a healthy publication record that demonstrates a dedication to scholarly research and writing in the field. Practice experience in criminal law is also beneficial. Knowledge of or experience with Texas criminal law will be considered in the evaluation of candidates. The successful applicant should demonstrate a commitment to the mission of St. Mary’s University and the mission of the law school and to manifesting that mission in teaching, research and service.

If the search does not yield a tenure track hire, applicants for a one-year, non-tenure-track, visitorship will be considered.

Located in San Antonio, Texas, St. Mary’s is the oldest Catholic university in the Southwest and continues to advocate the Marianist mission of academic excellence and servant leadership. Founded in 1852 by the Society of Mary (Marianists), St. Mary’s is a comprehensive Catholic and Marianist university with a strong tradition of integrating liberal arts with professional studies. The University fully subscribes to all federal and state civil rights laws banning discrimination in institutions of higher education. St. Mary’s School of Law also embraces the AALS Statement on Hiring for Diversity, Equal Opportunity and Affirmative Action. To this end, we seek to have a law faculty that is diverse with respect to race, color and sex.

Review of applicants will begin immediately and continue until the position is filled. Applications can be submitted at http://stmarytx.applicantpro.com/jobs/ with the option to upload supporting documents electronically. Along with the employment application, please also submit the following items via ApplicantPro: 1) a letter of interest in the position and a description of teaching and professional development goals, 2) curriculum vitae, 3) copies of graduate transcripts, 4) teaching statement, and 5) research statement. Also, please arrange to have three (3) letters of reference sent to: Professor Ramona Lampley, Chair, Faculty Appointments, at rlampley@stmarytx.edu. Any offer of employment will be contingent upon successful completion of a clear background check. General inquiries should be directed to Professor Ramona Lampley, Chair, Faculty Appointments, at rlampley@stmarytx.edu.

Can a Non-Existent Amount of Duck Liver Extract Cure the Flu? (Part Three)

This is the concluding post in a three-part series on the marketing of oscillococcinum. Part One is here; Part Two is here.

It might be that a pharmacist's silence about oscillococcinum is preferable to the alternative. Using the “Chat” feature on a chain store's website, I asked about the uses of oscillococcinum. Here is my exchange with a person identified as Pharmacist A.R. (I am omitting the first name, which was  provided in the answers):

Me: Does oscillococcinum have any effect on flu symptoms?

Pharmacist: Some studies have shown that oscillococcinum can reduce the duration of flu symptoms.

Me: Are those studies reliable?

 Pharmacist: Yes, the studies were included in the US National Library of Medicine.

Me: Can you tell me anything else about it?

Pharmacist: Because it is a homeopathic medication, unfortunately not many clinical trials have been conducted as of yet. If you feel as though you are getting the flu or have been exposed to it, I would recommend talking to your doctor about treatment.

Seeing a doctor is always good fallback advice. But even so, I don't see how someone with a PharmD degree can refer to oscillococcinum as a "medication," which is a claim that even herbs and supplements do not make, given the absence of any active ingredient. Nor is inclusion in a comprehensive library – in this case, one that includes the archives of the National Center for Homeopathy – proof of reliability. In fact, the entry for oscillococcinum says only that there is insufficient evidence to rate it for effectiveness and that any claimed benefits “cannot be explained by current scientific methods.”

Given that Oscillo is, well, nothing, I find it troubling that it is carried in drug stores at all, and more troubling that it is stocked adjacent to the pharmacy, which gives it an imprimatur of usefulness, instead of in the candy aisle.

Most troubling, however, is the apparent muzzling of some pharmacists by their employers, and seemingly authorized misinformation from others, which make it impossible for consumers to obtain accurate facts from licensed professionals. There are over-the-counter products that actually do reduce the severity of cold and flu symptoms, but there is no way, without a pharmacist’s help, to distinguish Oscillo from effective medicine based on the labels alone.

Under the Code of Ethics of the American Pharmacists Association, a “pharmacist promises to help individuals achieve optimum benefit from their medications, to be committed to their welfare, and to maintain their trust.” Other provisions require pharmacists to consider the “needs stated by the patient as well as those defined by health science” and “to tell the truth and to act with conviction of conscience.” None of this can be achieved under practices that prevent explaining that Oscillo isn’t medicine.

Retail pharmacists are admittedly in a tough position. They have no control over the non-prescription products on the shelves in front of their counters, and stores will no doubt continue to carry any product that sells. Still, it would be good to see some pushback from pharmacists, who may have more leverage than they think. Yes, they need jobs from the big chains, but the retail pharmacies couldn’t sell prescription drugs without them. Consumers ought to get more than a tight-lipped grimace, or worse, a tepid endorsement, when they inquire about the purported benefits of Oscillo.

People have every right to believe and hope that a “body’s natural defenses” can be stimulated by non-existent amounts duck liver extract, and that there is a “shaking or succussing process that releases the energy of the substance.” If so, there are homeopathy clerks in specialty stores who would more than happy to answer their questions. It would be great if well-educated, licensed pharmacists could exercise the same freedom of speech.

Kathryn Stanchi from Temple Law to UNLV

Kathryn M. Stanchi, currently the Jack E. Feinberg '57 Professor of Litigation and an Affiliated Professor of Gender, Sexuality and Women's Studies at Temple University Beasley School of Law, will be joining the faculty of the UNLV William S. Boyd School of Law, beginning with the 2019-2020 academic year. At UNLV, she will be the E.L. Cord Foundation Professor of Law.

Congratulations, Kathy, and congratulations to UNLV!

 

Lewis and Clark Law Seeks Clinical and Lawyering Faculty

This just in:

Lewis & Clark Law School is currently accepting applications for an Assistant Clinical Professor in the Low-Income Taxpayer Clinic, an Assistant Clinical Professor in the Animal Law Litigation Clinic, and a Visiting Assistant Professor (two years) in the Lawyering program. Applications for the Low-Income Taxpayer Clinic and VAP positions are due February 8, 2019. Applications for the Animal Law Litigation Clinic position are due February 15. 

Can a Non-Existent Amount of Duck Liver Extract Cure the Flu? (Part Two)

This is the second post in a three-part series about the marketing of oscillococcinum. Part One is here; Part Three is here.

Lately, homeopathy has been showing up in mainstream drugstores, where customers can be misled, which brings us back to the mega-dilution of duck livers. (Well, more than mega, which only means 10³; there is no adjective for 10⁴⁰⁰.)

Oscillococcinum, under the brand-name Oscillo, is now available at many large chain stores, including CVS, Rite-Aid, Walgreens, Target, Walmart, and Whole Foods. According to the French manufacturer Boiron, the “non-drowsy medicine” in Oscillo “is a convenient and reliable first choice for adults and children ages 2 and up” that “reduces the duration and severity of flu-like symptoms such as body aches, headache, fever, chills, and fatigue.” Only if you search for the asterisk at the bottom of Boiron’s webpage will you learn that “these ‘uses’ have not been evaluated by the Food and Drug Administration.” (The curious quote marks around “uses” are original and unexplained.)

There are ten big-box drug stores in Evanston and no remaining independents. Entering one chain outlet at random, I first passed aisles of beauty supplies, shampoo, greeting cards, and coffee filters. Turning right at the frozen pizza, I saw a red wall (the others are all white) with the large word PHARMACY above a long counter. Before the counter, there were aisles marked with various health-related signs, such as “Pain Relief” and “Allergy.”

Oscillo was on a shelf in the “Cold and Flu” section. I picked up a package, which listed the “active ingredient” as “Anas barbariae,” which looks like Latin but doesn’t actually mean anything. According to the label, Oscillo “reduces the duration and severity of flu symptoms." The most accurate claim on the label was that Oscillo is “non-drowsy” with “no drug interactions,” because, of course, there is nothing in it other than dextrose and lactose.

I showed the box to a pharmacist, explaining that I was a Northwestern professor working on an article. “Does this stuff work,” I asked. The pharmacist hesitated and sighed, quite evidently embarrassed: “We aren’t allowed to give opinions,” came the reply.

I didn’t press for an answer, or explore the limits of the prohibition, but there is an obvious problem here. Oscillo is stocked on drug store shelves near FDA approved medicines such as ibuprofen, omeprazole, and antihistamines. These over-the-counter remedies don’t require prescriptions, but they have still gone through clinical trials showing them safe and effective. There are other products – mostly herbs and supplements – that have not been FDA approved, but at least they have actual ingredients. Vitamin C tables have real vitamin C; gingko biloba and saw palmetto capsules do contain the listed active ingredients. Oscillococcinum has neither attribute.

Part Three in this series will be posted tomorrow.

ABA Standard 316 Gets Shot Down Again - Here's How To Fix It

The ABA House of Delegates resoundingly defeated Resolution 105, the proposed revision to Standard 316, which would require all law schools to achieve a 75% bar pass rate for all graduates within two years of graduation.  (Read the ABA Journal Story here.) 

The proposal now goes back to the ABA Council of the Section of Legal Education and Admissions to the Bar.  According to Barry Currier, the Council has three options: "abandon the effort to revise the standard; propose a different revision; or reaffirm and implement the changes." In my opinion, the Council should follow the middle course.  The current Standard 316 is a joke and there is widespread agreement that it needs to be overhauled.  It is so weak, and so riddled with loopholes, that no school has ever failed under it, despite years of woeful performance on the bar at many schools.  The proposed revision would close all those loopholes, simplify and toughen the Standard, and would be a huge improvement over the current version.   But the proposed revision is not perfect.  While simplicity and uniformity is desirable, there is an inherent problem with a one size fits all standard for bar passage in a country with widely different bar pass cut scores.  Critics of the proposal have made a credible case that the Standard would have a disparate impact on minority admissions in at least some jurisdictions, especially in California, which has the second toughest bar pass cut score in the country.  (The proposed Standard would also be virtually impossible to meet in Puerto Rico where the pass rates are historically far below 75%.)   Last March, I proposed a way to modify the Standard that would keep virtually all of the positive attributes of the proposed revision while blunting the unintended consequences on diversity.

As the Council sits down to review Standard 316, I thought it would be a good time to reintroduce my (slightly refined) proposal as a potential middle ground that might satisfy most of the major stakeholders.  First, let's look at the current rule and the Council's proposal.

Conference announcement: National Conference of Constitutional Law Scholars

The Rehnquist Center is pleased to announce the second annual National Conference of Constitutional Law Scholars.

The conference will be held at the Westward Look Resort in Tucson, Arizona, on March 9-10, 2019. Its goal is to create a vibrant and useful forum for constitutional scholars to gather and exchange ideas each year.

David Strauss will deliver a keynote address, and there will be many distinguished presenters and commentors.

All constitutional law scholars are invited to attend. The Rehnquist Center will provide meals for all registered conference participants. Participants must cover travel and lodging costs. There is a conference registration fee of $50, which will increase to $75 after February 28, 2019. Registration fees are waived for students and faculty at UA Law. In addition, a limited number of scholarships are available to those unable to attend the event otherwise.

REGISTER NOW

Please send questions to Andrew Coan (acoan@email.arizona.edu).
For logistical questions please contact Bernadette Wilkinson (bwilkins@email.arizona.edu).

 

Can a Non-Existent Amount of Duck Liver Extract Cure the Flu? (Part One)

This is the first post in a three-part series about the marketing of oscillococcinum. Part Two is here; Part Three is here.

As explained in a recent post on the important Science Based Medicine site, oscillococcinum is a homeopathic remedy for the treatment of colds and flu. It is derived from the organs (heart and liver) of a decapitated Barbary duck, which are thought to be reservoirs of an oscillating microbe – unknown to real biologists – that homeopaths call Oscillococcus. The two basic premises of homeopathy are that “like cures like” and dilution increases effectiveness (when appropriately shaken). Thus, the duck offal extract for oscillococcinum, which is believed to be both the cause and cure for flu symptoms, is diluted to a ratio of 1:10^-400, which is supposed to make it super powerful, but in fact leaves no actual amount of the so-called active ingredient in any of its solutions. (By comparison, a light-year expressed in miles has 13 digits; oscillococcinum is diluted by a factor 30 times as great.)

Homeopathy has been around since 1796, when the theory was first developed by the German physician Samuel Hahnemann. “Physician,” however, is a relative term, as eighteenth century medicine had not yet discovered the germ theory, and doctors were still bleeding people (see Washington, George) as a remedy for unbalanced “humors.” In that light, homeopathy was progressive. It didn’t cure anything, but it also didn’t make anything worse, while the placebo effect and normal recovery occasionally made it seem like it was working. Without any meaningful medical alternatives, eighteenth century homeopathy was at least doing no harm.

Plenty of people still swear by homeopathy despite the impossibility of its claims, which are contradicted by modern principles of biology, chemistry, and even physics. Even so, there is not much downside to homeopathy, as long as its concoctions are taken only for mild ailments, which are usually self-limiting anyhow, or as preventives, if people then go to real doctors if they actually get sick.

There is a homeopathy shop in Evanston, where I live, that describes its products as “proven medicine and a great choice for those taking prescription drugs.” True to tradition, the website adds that its “medicines are potentized by dilution, which is followed by a shaking or succussing process that releases the energy of the substance.” In an impressive twist of logic, the shop touts the advantage of extreme dilution by explaining that while “no actual molecules of the substance” remain, “this is why homeopathic medicines do not interact with prescription drugs or herbs.” Nonetheless, homeopathic remedies are advised for both acute (cold, flu, injury) and chronic (arthritis, lupus) illnesses. More serious conditions (such as, no kidding, multiple sclerosis) are said to require greater dilution.

Nobody walks into a homeopathy shop by accident, so customers can’t complain about ending up with sugar pills – lactose being the only real ingredient in homeopathy tablets. It’s their money and they can spend it on anything they want, assuming that they haven’t been tricked or misled.

NOTE: This post has been edited for clarity.

Shel Silverstein Songs

Shel Silverstein was born in Chicago, where he grew up in the working class Logan Square neighborhood (which has lately become home to artists and vegan restaurants). He is probably best known for his children's books, including The Giving Tree and Where the Sidewalk Ends, but he was also a prolific songwriter and performer. He wrote in many genres, including country music, children's songs, rock, and humor (some of which was pretty weird, as he described it himself). He won a Grammy for "A Boy Named Sue," which was Johnny Cash's only top ten single. Here are some of his songs, performed by Silverstein and others:

"Show It at the Beach"

Danielle Conway Named Dean of Dickinson Law

Penn State Dickinson Law School has named Danielle Conway as it's new dean.  She is currently the dean at Maine Law, a position she has held since 2015.  She will take over in July.  

Some Rules for Writing

Over the years, I have developed some rubrics for writing that I try to follow without exception. They are not the standard editing rules (which I also respect), but rather a set of idiosyncratic conventions that I impose on myself for the sake of self-discipline. Violating these rules does not result in bad writing. Others ignore them all the time -- because, why not? they aren’t really rules -- but I find it helpful to have a set of (nearly) unbreakable conventions as an exercise in self-control, even if no one else would even notice them.  They keep me alert to small details and aware of alternative phrasings:

Never begin successive paragraphs with the same word. 

Never begin any piece with “I,” even if it is a memoir, an opinion, or a personal observation. Find some other phrase to introduce it. 

Never use two quotes back to back; always have some original text in between. 

Do not use a person’s name in successive sentences. Alternate proper names with pronouns, but never substitute pronouns more than two sentences in a row. 

Never begin successive sentences with the same introductory conjunction, especially “although.” 

Never end a sentence and begin the next one with the same word.

Never begin a sentence with “however,” which should always be placed after the subject. It is, however, okay to begin a sentence with other conjunctions such as “and” or “but” or “because.” (Yes, I added an unnecessary “or” to separate the quote marks.) 

Along with keeping adverbs to a minimum (as all style books advise), never use the words “mere” or “merely.” Find some other way of minimizing or downplaying. Same goes for “clearly.”

Do not use “of course” more than once within roughly 1000 words (500 on either side).

Does anyone else follow self-imposed conventions? And if so, why and what are they?

NOTE: This post has been edited to correct a typo in the first sentence. I try to follow my conventions without exception.

Marcus Cole Named Dean of Notre Dame Law

Stanford Law professor Marcus Cole has been named the new dean of the University of Notre Dame School of Law.   He joined the Stanford faculty in 1997.  Cole is a Northwestern Law grad; he'll take over from Nell Newton this summer.  

University of Wisconsin Law Seeks Con Law Visitor

This just in:

THE UNIVERSITY OF WISCONSIN LAW SCHOOL is seeking to hire a visiting professor for the fall 2019 semester and/or the spring 2020 semester. For more information about the University of Wisconsin Law School, please review our website: https://law.wisc.edu/.

We invite applications from candidates who have a distinguished academic background and a record of teaching excellence. The visitor will teach Constitutional Law I (structure of national government; separation of powers; federalism) and possibly Constitutional Law II (civil and individual rights at the federal level).

This position will remain open until filled, but applicants are encouraged to apply no later than February 10, 2019, to receive priority consideration.  To apply, please submit a cover letter expressing your interest and C.V. via email to Professor Susannah Tahk, Associate Dean for Faculty Development, University of Wisconsin Law School, 975 Bascom Mall, Madison, WI 53706 at susannah.tahk@wisc.edu

Employment will require a criminal background check. If you are a finalist, policy also requires you and your references to answer questions regarding sexual violence and sexual harassment.  The University of Wisconsin is an Equal Opportunity and Affirmative Action Employer. We promote excellence through diversity and encourage all qualified individuals to apply.  The University of Wisconsin System will not reveal the identities of applicants who request confidentiality in writing, except that the identity of successful candidate(s) will be released. See Wis. Stat. §. 19.36(7). Applicants who need to request an accommodation because of a disability can find information about how to make a request at the following website: http://www.oed.wisc.edu/748.htm

Justin Trudeau on the BDS Movement

BDS is the movement to boycott, divest from, and sanction Israel. In the below video, the Prime Minister of Canada explains why he opposes it:

 

The Stennis Flag

In 1894 Mississippi adopted its current state flag, which prominently incorporates the Confederate battle flag saltire. Thus far every effort to remove the Confederate emblem from the state flag has failed. In 2001, for example, 65% of Mississippi voters chose to keep the current flag in a statewide referendum.

But change may be afoot. According to a Washington Post article yesterday, a new flag is gaining traction in Mississippi. Known as the “Stennis Flag,” it consists of a large blue star on a white background, surrounded by 19 smaller stars, and bordered by two large red bars. 

As explained by Laurin Stennis, the flag’s designer, the Stennis Flag incorporates four distinct symbols:

Why Didn't Justice Ginsburg Resign in 2014?

There are many good reasons – both humane and political – to wish Supreme Court Justice Ruth Bader Ginsburg a speedy and complete recovery from her recent lung cancer surgery. Nor is it cynical to hope that she returns to good health at least through the end of the Trump presidency, which looks to be January 20, 2021, at the earliest. That hope, of course, brings with it an inevitable question: Why didn’t she resign in 2014, when Barack Obama was president and Democrats still controlled the Senate? At the time, Ginsburg was 81 years old and had already been through two rounds of cancer surgery, yet she famously said that she would stay on the job as long as she could do it “full steam.” In a recent Slate interview, Dahlia Lithwick provides some well-informed speculation about Ginsburg’s reasoning.

According to Lithwick’s sources, Ginsburg declined to retire out of resistance to sexism. After all, “nobody was demanding that John Paul Stevens retire,” and he was 90. That would indeed seem to be a double standard, except that there was actually no need to urge Stevens’s retirement. He announced it himself on April 9, 2010, four years before anyone began questioning Ginsburg’s intentions. Justice David Souter had been even quicker to ensure that Obama would get to name his successor, announcing his own retirement on April 30, 2009, at age 69. It is true that Justice Stephen Breyer was not called upon to resign during the Obama administration, but he is five years younger than Ginsburg and has not battled cancer.

New Riders of the Purple Sage

The New Riders of the Purple Sage opened for the Grateful Dead at the famous Berkeley Community Theater concert in the summer of 1971 -- from which I was kicked out, which led to my first successful lawsuit.

"Hello Mary Lou"

It’s Not Just Football

If recent history is any guide, the National Football League’s AFC and NFC championship games on Sunday afternoon will be viewed by over 60 million people. Viewership for the Super Bowl on February 3 will likely exceed 100 million. When combined with gate receipts and merchandising, the television viewership translates to massive revenues for NFL owners. In 2017 alone the NFL generated $14 billion in revenue, the most of any professional sports league in North America.

But no one can confidently predict what football’s long-term future holds. Yesterday ESPN’s website posted a fascinating and important piece on the disappearing insurance market for football. The article, which is titled For the NFL and all of football, a new threat, is authored by Steve Fainaru and Mark Fainaru-Wada. In 2014 they wrote the book League of Denial: The NFL, Concussions, and the Battle for Truth, which detailed the NFL’s unconscionable campaign to conceal the scale and gravity of the health threat posed by sports-related concussions.  

The ESPN article explains how the rising tide of concussion-related lawsuits has driven insurers to flee the football marketplace. As Fainaru and Fainaru-Wada explain: