Monday, November 30, 2009
A "disgusting" case of mistaken identity...
The other day Larry Solum registered his reaction to Andy Koppelman's newest piece, Why Jack Balkin is Disgusting (forthcoming in Con Comm): "The title is over the top and in my opinion unprofessional. The reading of Balkin and his critics is surprisingly shallow." As I perused the piece today to see if I'd agree with Larry's assessment, I found that I was listed as one of Balkin's critics. I had one reaction: Huh? How did I get mixed up in this?
Well, according to the text accompanying FN 30 of the piece, I apparently wrote that Balkin “attempts to eliminate the rhetorical power of originalist arguments by making essentially everything an originalist argument.” Did I actually write that? Not quite. It doesn't sound that terrible but I didn't recall writing that. Turns out it was someone else, a person purporting to be named Orin Kerr. Easy mistake, right? And at least someone's citing, if not reading, my posts. But based on that gentle post, if anyone now cares, it's probably more accurate to label me as an anti-anti-Balkinite. Not a big deal, but fwiw I'd prefer in the future not to be quickly lumped with Ed Whelan and Matthew Franck, both of whom attacked Balkin in the National Review Online. I will do or say a lot in the name of intellectual pluralism, but I won't go *that* gently.
One last thought on L'affaire Koppelman: Balkin's got a great sense of humor (see, e.g., this), and a pre-existing relationship with AK (see, e.g., AK's citation of an email with JB making a (Straussian?) reference to the esoteric teachings of and connections between early and late Balkin), so my guess is that Koppelman got pre-approval from JB on the title. Based on his comments, I guess Larry thinks consent is no defense here. But, as a matter of "professionalism," would that be true, ie., assuming JB gave consent?
Posted by Dan Markel on November 30, 2009 at 12:07 AM | Permalink | Comments (0) | TrackBack (0)
Should anyone really care about "ex parte blogging" or editorializing?
Over on Balkinization, Eugene Fidell has a post expressing sympathy with the idea that newspapers and others should forbear from trying to influence the Supreme Court on the same day that the Court is going to hear oral arguments in a case. Fidell seems to be persuaded by the gist of this student note in the Stanford Law Review, which raises ethical concerns with "ex parte blogging."
With no disrepect to the competent job in the student Note, I find myself boggled at the suggestion that newspapers or other writers (including legal bloggers) should abjure from weighing in on matters before the Court. After the jump, I excerpt the guts of Fidell's argument and some reactions.
Continue reading "Should anyone really care about "ex parte blogging" or editorializing?"
Posted by Dan Markel on November 30, 2009 at 12:03 AM in Article Spotlight, Blogging, Current Affairs, Dan Markel | Permalink | Comments (3) | TrackBack (0)
Sunday, November 29, 2009
Shrinking-wrapping NYC: How Neighborhood Activists Are Strangling a City
This last October saw a momentous zoning milestone (at least for land-use wonks like myself who regard zoning decisions as "milestones"): Bloomberg's administration pressed through their 100th re-zoning, coincidentally Right In My Backyard, in the Carroll Garden neighborhood of Brooklyn. These 100 re-zonings collectively amount to the most substantial alteration of NYC's zoning resolution since the momentous 1961 revision: They are the most lasting legacy of the Bloomberg Administration's agenda.
The City's Planning Department expects NYC to add a million residents by 2030. Accordingly, Bloomberg has called for the creation of 165,000 more units of housing to house 500,000 New Yorkers. Given this pro-housing policy, you would think that Bloomberg's re-zonings would expand or at least not contract substantially the City's "zoning envelope" -- the buildable residential space between the existing residential structures and the possible structures that could be constructed or renovated.
Think again. According to the uniquely comprehensive survey of NYC's tax lots performed by my colleague, Vicki Been, Bloomberg's re-zonings between 2003-and 2007 seemed to increase the supply of buildable land for residential structures by a trivial amount. Why? Vicki does not yet have sufficient data to explain causation, but one promising hypothesis is neighborhood activism: Existing residential owners and renters support many laudable causes -- traffic calming, affordable housing, historic preservation, etc -- the common denominator of which is simply to preserve the land-use status quo against new development. The effect is the strangulation of a great city's housing supply.
Continue reading "Shrinking-wrapping NYC: How Neighborhood Activists Are Strangling a City"
Posted by Rick Hills on November 29, 2009 at 01:47 PM in Current Affairs | Permalink | Comments (2) | TrackBack (0)
Odyssean Hospitality
I've been enjoying various books on CD during my daily commute -- hoping against hope that the officious Pollyannas that research driving cognition, or whatever, do not turn their intrusive attentions to the "dangers" of listening to books while driving. New York City, I was astounded to discover, has exactly one measly classical radio station -- it used to be owned by the New York Times but was recently sold, taking up an ignoble place way up the radio dial where you often can't hear it, and slowly adopting the kind of soporific aesthetic that is mass marketable (classical music -- "it's what you want when you need to RELAX and UNWIND"). Nothing says "I'm relaxed" like Puccini arias sandwiched between incessant reruns of the Pachelbel Canon and The Girl With the Flaxen Hair.
I'm listening to The Odyssey, narrated by Ian McKellan. He does a wonderful job with the Fagles translation -- one mark of a good narrator is that sometimes you actually forget that it's the narrator saying the words, and imagine that the words are really being said by the character portrayed in the story. McKellan can do that.
At any event, one facet of the story that I had not realized is so central is the theme of hospitality. Hospitality is in general an absolutely crucial ancient Greek virtue. Hospitality is of special importance to Zeus and acts of hospitality, or their absence, are a constant. Only utterly barbarous peoples -- the Cyclops, the Laestrygonians, the Lotus Eaters -- are brazen enough not to honor the importance of hospitality. The civilized world is steeped in the customs of hospitality -- to the point where hospitality is state policy. Telemachus receives it from all whom he visits when searching for his father, and Odysseus is greatly honored by the Phaeacians before being escorted home, with untold gifts. And, of course, a large part of the reason that the suitors are destroyed is their manifest lack of hospitality: they raid Odysseus's home, and when he returns (in the form of a beggar), they hurl footstools and invective at him. Then they all are killed mercilessly.
All of this emphasis on hospitality got me thinking about the virtue in this country. All in all, I doubt very much that hospitality is a virtue here. It is certainly not an official policy -- immigration law is particularly inhospitable. I understand that we live in a different time from Homer's, and that the demographics are radically different. Still, something important has, I think, been lost when Odyssean hospitality is not even a virtue to which we aspire, let alone achieve. For all of its barbarism, Homer's world was, at least in that respect, more humane than ours.
Thanks to Dan and the co-bloggers for their hospitality to me this month.
Posted by Marc DeGirolami on November 29, 2009 at 08:49 AM | Permalink | Comments (1) | TrackBack (0)
Saturday, November 28, 2009
Signing Off
Thank you to Dan and the PrawfsBlawg gang for the opportunity to blog here. I hope December brings with it painless exam grading and good cheer!Posted by David Friedman on November 28, 2009 at 09:37 PM | Permalink | Comments (0) | TrackBack (0)
Unanswered Questions Indeed
As the news reports, there are "plenty of questions" after Tiger Woods got in a car crash that sent him to the hospital. According to the story, Tiger hit a fire hydrant and a tree right near his own driveway, and his wife Elin had to smash a rear window with a golf club to get him out.
But the story is asking the wrong questions. "Where was he going at 2:25 am Friday? Why was there no word from the Woods' camp for nearly 13 hours?" That's not what golfers want to know. There's only one question on golfers' minds:
What club did she use?
Posted by Jonathan Siegel on November 28, 2009 at 05:18 PM | Permalink | Comments (2) | TrackBack (0)
"San Diego" Shirt -- And a Lot More -- Banned
From The First Amendment Center comes news of an interesting student free speech case from the Fifth Circuit, Palmer v. Waxahachie Ind. Sch. Dist.. Palmer is another case dealing with the scope of students' rights to wear t-shirts that have statements printed on them. The student, Paul Palmer, wore to his high school a t-shirt with the words "San Diego" printed on it. After being told the shirt violated the District's then-existing policy severely limiting the wearing of shirts with messages, Palmer phoned his parents, who (for some reason) brought him a shirt that read "John Edwards For President '08." The principal prohibited that shirt as well, and Palmer sued. His motion for a preliminary injunction against the policy was denied without prejudice when the district informed the court that it had changed its dress code.
The case reached the appellate court after Palmer presented the school with three possible t-shirts (the two noted above, plus, in a nice touch, one featuring the text of the First Amendment) and the school nixed all three under the new policy. Under the new policy, which was more draconian than the earlier one, no messages were allowed on shirts except those relating to approved school clubs, "school spirit," and logos smaller than two inches by two inches.
The Fifth Circuit upheld the policy after concluding that it was content-neutral and constitutional under US v. O'Brien. Most notably the opinion rejected the argument that the policy was content-based due to its allowance of messages related to school activities and small logos. Instead, the court concluded it was content-neutral because it was not imposed because of disagreement with a particular message. In particular, it concluded that the allowance of those messages was motivated by a desire to provide students "with more clothing options" then they would enjoy under a complete ban. Applying intermediate scrutiny under O'Brien the court upheld the policy.
Continue reading ""San Diego" Shirt -- And a Lot More -- Banned"
Posted by Bill Araiza on November 28, 2009 at 12:08 PM | Permalink | Comments (1) | TrackBack (0)
Friday, November 27, 2009
Timing of Holidays
I just learned that Franklin Delano Roosevelt actually re-set the dates of Thanksgiving a week earlier in 1939-1940 to extend the holiday-shopping seasons in those grim economic years. This interesting WSJ piece lays out how FDR did it, and why, and the instantaneously horrible reception the move received. FDR took the position that the date of Thanksgiving was set by Presidential decree, not by statute, and therefore, he could do it, and would do it. Maybe the absoluteness of holiday-setting power was a tempting draw in the wake of a halted larger agenda. The public didn't take to this very well. 62% in a Gallup poll disapproved of the date change. "Don't mess with Thanksgiving, Mr. President," seemed to be the message.
Many states did not go along with FDR for the ride in 1939-1940. 23 states stuck to the old date for the state holiday. 22 followed FDR's decree. 3 states, Colorado, Texas, and Mississippi, took the third way, declaring a Thanksgiving holiday for both dates. (Imagine that! Two Thanksgivings?) Among the more voluble critics of FDR's move: administrators of high-school and collegiate athletic leagues. Moving Thanksgiving a week earlier caused them all sorts of havoc.
FDR's gambit paid no economic dividends. (Why would it?) The Thanksgiving experiment was abandoned and since World War II, it remains where it is. On December 26, 1942, FDR signed a bill into law that represented a slight compromise. Thanksgiving, by statute, (5 U.S.C. 876) is to be celebrated as a federal holiday on the fourth Thursday in November, which is usually the last Thursday, sometimes, the next-to-last.
As a commenter points out, this statute prevents the holiday from being celebrated on the 29th or 30th, part of FDR's goal. (In 1939, Thanksgiving would have been on the 30th, In 1940, the 28th.) FDR's original 1939-1940 decrees were that Thanksgiving be commemorated on the "next-to-last Thursday," which this year, would have put Thanksgiving on November 19th. (Sounds a bit early to me.) That part of FDR's decree was not adopted by statute. Though Congress passed this bill in October 1941, FDR's pen crossed the bill a few weeks after Pearl Harbor. It must have been important to settle this knotty problem, establishing uniformity and preserving tradition. Thanksgiving would certainly take on more meaning in the half-decade ahead.
Continue reading "Timing of Holidays"
Posted by David Friedman on November 27, 2009 at 10:36 PM | Permalink | Comments (6) | TrackBack (0)
Flipping the Bird
Pittsburgh officials have tentatively approved a $50,000 settlement in the case of a motorist who flipped off a police officer (apparently not knowing at the time the offending gesture was made that the person was an officer). The motorist was cited under a state statute that prohibits obscene words and gestures. The county dropped the charges after the motorist appealed his conviction, but the motorist pursued the case to recover costs associatd with his defense. The settlement would also apparently require additional police training of some nature.
Some will undoubtedly find it absurd that the motorist will receive a settlement in this situation. But however offensive and rude it may be, "the bird" is expressive conduct. It may be bad judgment to flip off a cop (or anyone else) during a traffic altercation. But you cannot be punished for merely flipping someone off on the public streets (although the case may be different in the courtroom, the classroom, or the workplace). Imagine how busy our courts would be if the rule were otherwise.
Posted by Tim Zick on November 27, 2009 at 01:01 PM in First Amendment | Permalink | Comments (1) | TrackBack (0)
Detroit
Not a fact about law, but with all of the recent talk about the continuing decay of the city of Detroit, I was quite surprised to learn that Detroit is actually the 11th most populous city in the United States. (The link is to Wikipedia, but the data can be confirmed elsewhere; Wikipedia just presents the data in the most accessible form.) It clocks in ahead of San Francisco, Indianapolis, Boston, Washington DC, Atlanta, Omaha, and several other places I would have guessed were bigger. Of course, the surprising nature of the data derives in part from the fact that what we think of as the sociological unit of a city often includes a number of different municipal or governmental units all cobbled together (i.e., the "metropolitan area"). It would be interesting to see what systematic effects, if any, there are from that intra-city devolution of governance.
Posted by Will Baude on November 27, 2009 at 12:30 PM in Culture | Permalink | Comments (1) | TrackBack (0)
Thursday, November 26, 2009
Best iPhone apps for Prawfs?
Well, the turkey is brining, the stuffing and corn pudding are in the oven, the pies are done, and wine is flowing. Happy Thanksgiving!
Naturally, my mind is focused sharply on matters professional, and so I ask: what, do people think, are the best iPhone apps, for law-profs? I've found Yelp and Open Table crucially important, when arranging the all-important conference-connected dinners. What else?
Posted by Rick Garnett on November 26, 2009 at 01:04 PM in Culture | Permalink | Comments (3) | TrackBack (0)
Happy Thanksgiving, a note on Prawfsfest! 6, LSA CrimProf, and AALS hooch
Just a note to wish you and yours a wonderful Thanksgiving weekend. Here at Prawfs, we have so much to be grateful for--a spirited and respectful atmosphere for discussion, and a community directed at the promotion of ideas and transparency within the legal academy. So, many thanks to all of you readers, writers and co-permaprawfs for making this space so special!
By the way, we'll be going from virtual to live next week as Prawfsfest! 6 is coming to LA on Wednesday night through Friday afternoon. Dave Fagundes, wunderprawf and former MVP of Pfest 4, is my co-organizer there, and I'm really grateful to him and our decanal friends at Southwestern Law School for helping make this gathering possible. We''ll be fortunate to have about 9 presentations and a few discussants, and as always, the goal will be to incubate relatively early works in progress in the areas of legal theory and/or public law. I'll be presenting Taxing Punitive Damages, my paper with Gregg Polsky that I hope will be compete in the sexiest tax paper of the year competition next spring. Also presenting: Sonja West (UGA); Jack Chin (U of Arizona); Adam Winkler (UCLA), Caleb Mason (SW); Miriam Baer (Brooklyn); Carissa Hessick (ASU); Susan Kuo (USCarolina), and the inimitable Fagundes himself. We're fortunate to have Andy Hessick (ASU); Asli Bali (UCLA), and Chris Lund (Wayne) join us as discussants also. If you're a prawf in the LA neighborhood, and are interested in joining for either some of the papers, which need to be read in advance, or social activities (no pre-reqs), please drop me a line.
After the jump, I've also placed a reminder to those interested in a Law and Society CrimProf gathering that Alice Ristroph and I are reprising.
Last, inchoate plans are underway for a AALS happy hour in NOLA in January. Watch this space for more info.
Continue reading "Happy Thanksgiving, a note on Prawfsfest! 6, LSA CrimProf, and AALS hooch"
Posted by Dan Markel on November 26, 2009 at 11:49 AM in Blogging | Permalink | Comments (0) | TrackBack (0)
"Cum Sancto Spiritu"
In a post below, Jonathan Siegel directs attention to the Third Circuit's decision in a case where a public school district thought that it would be educationally edifying to ban all music about religion during the month of December. I agree with Professor Siegel and with the court that this is not an Establishment Clause case, though I wonder a bit about his statement that there is a difference between banning the singing of religious music and requiring it. I would guess that banning any singing of religious music, year round and no matter the occasion, might well be unconstitutional -- perhaps it would be the emaciated post-Smith Free Exercise Clause that would be offended, or, if New Jersey has a state RFRA, a claim might be made on the old substantial burden/compelling interest model. And, at any rate, I think Professor Siegel and I would agree that there is nothing in the Constitution that would require schools, not only not to permit religious music, but also not to teach about it and cultivate the knowledge and appreciation of it.
Which brings me to what interests me here -- the school's decision that Vivaldi's "Gloria in Excelsio (Cum Sancto Spiritu)" would be properly excepted from the policy because it "does not have a religious orientation and it does not refer to a holiday." I wonder if Bach's B minor Mass would make the cut -- of course one would have to translate the title to Latin, or perhaps even French -- Messe en H-Molle meets this test too, I suppose. Even though it does of course have a religious orientation (slightly deeper than, say, Oh, Christmas Tree), the Latin gives it the special sanctifying smell of arcana -- no one knows any better. On the other hand, the MLK Gospel Choir was banned; they should have thought to translate their spirituals into Aramaic.
Coupled with the school district policy's stated aim to cultivate learning about cultural traditions, including religious ones, I am mystified by these decisions. Professor Siegel called them "churlish." For reasons I've written about here, I'd go much further. A few thoughts below the break.
Continue reading ""Cum Sancto Spiritu""
Posted by Marc DeGirolami on November 26, 2009 at 11:12 AM | Permalink | Comments (0) | TrackBack (0)
Wednesday, November 25, 2009
More on Amicus Briefs, With a Question
Will beat me to the punch. I think Orin raises some interesting points in his discussion at VC, especially in his responses to commenters. But I am not sure that the concerns he raises are ultimately all that great. I have three general points, and a question for Orin.
First, it seems to me that amicus briefs filed by members of Congress -- and like Will, I would insist that we not elide the difference between briefs filed by Congress as some kind of official institutional action, and briefs filed by members of Congress, no matter how numerous -- can provide all kinds of information that might be useful to the Court in deciding some statutory question. I can imagine briefs that would be less helpful -- briefs, for instance, of the ilk of those filed by some members in the Schiavo litigation, in which members simply say, we wrote the bill and this is what we intended, and you should interpret the statute accordingly. Even those like me who do not categorically oppose the use of legislative history might find this too cute a move, although of course the Court would be free to disregard such a brief. But congressional amicus briefs could offer all kinds of other, more useful information that is more within the members' own expertise and epistemic authority than the Court's: analysis of policy implications, a sense of how a particular statutory provision relates to the whole statute (although this is surely closer to the Court's own epistemic realm), highlighting particular evidence that came before Congress when the bill was being debated, and so on. I am not saying the Court must give undue weight to any of this. But I should think it would be as free to give some weight to it as it would be to consider information offered in amicus briefs by subject-matter experts or by institutions or interest groups affected by a particular piece of legislation.
Second, while I think Orin raises some interesting separation of powers questions, I am not convinced they ultimately amount to much. Amicus briefs are just arguments to the Court. They fully accede to and participate in the Court's own processes. They do not involve any action of a "legislative" character (or, I would argue, although I think Orin makes stronger points here, of a genuinely executive character). I should add that I also do not object to judges opining, at least in judicial opinions, that some particular statute is poorly drafted and should be revisited by Congress -- arguments that Congress is of course free to disregard. So perhaps my differences with Orin on the amicus brief issue track some broader difference of opinion.
Third, in his comment on Will's post, Orin suggests that because Congress has a good deal of authority to alter the operations of the Supreme Court and other federal courts, an amicus brief will carry some kind of implied intimidation or threat. But I don't see this as really raising any unique threat. Congress has that authority anyway, whether it mentions it or not, and the Court is already aware of this and always operates under the shadow of congressional ability to retaliate. I don't see how a member or members filing an amicus brief really raises the threat level beyond its present state.
That leads to my question. I wonder whether Orin thinks that amicus briefs in which a member or members of Congress urge the Court to follow a particular interpretation of a statute (and in which any threat of retaliation surely will remain unstated) raise different concerns than, say, a member or members taking to the floor of the House or Senate to suggest that the Court has erred in some area or had better not err in some area in the future, under threat of, say, a jurisdiction-stripping statute. If they are different, what is that difference? And if they raise the same concerns, which does he think is worse?
And, of course, happy Thanksgiving to all.
Posted by Paul Horwitz on November 25, 2009 at 10:57 PM in Paul Horwitz | Permalink | Comments (3) | TrackBack (0)
Amicus Briefs and the Separation of Powers
Orin Kerr recently wrote a blog post criticizing Congressional amicus briefs that attempt to influence the outcome of cases:
[T]he filing of briefs to try to influence individual cases seems to me to enter inappropriately into the core of the judicial process. Deciding cases isn’t Congress’s job, and it’s unseemly and inappropriate for legislators to step in and try to influence how the Justices exercise “the judicial Power of the United States” that the Constitution vests in the Supreme Court. It doesn’t help that the Congressional briefs tend to be substantively weak. . . .
I will leave aside the substantive weakness of the briefs, which is complicated in part by the fact that many amicus briefs have some influence because of the authority of their authors (or putative authors) rather than what their substance. I'm dubious about the claim that trying to influence the outcome of a case is an entry into the core of the judicial process.
Continue reading "Amicus Briefs and the Separation of Powers"
Posted by Will Baude on November 25, 2009 at 03:45 PM | Permalink | Comments (4) | TrackBack (0)
Newsflash: Marriage Illegal in Texas!(?)
So it (possibly) appears, according to this news report. Of course this interpretation of the law won't stick. But it does seem a fairly extreme example of sloppy drafting; even a quick glance at the offending provision (quoted in the article) reveals an easy fix. (Note: I have not looked at the full piece of legislation, so maybe the fix is already there, in some definitions or other section.) Of course it is sometimes hard to draft language that expresses exactly what one wants to say. But any student who has suffered through a poorly-written exam question will rightfully ask why people whose responsibility it is to draft clearly make such obvious mistakes.
Posted by Bill Araiza on November 25, 2009 at 03:43 PM | Permalink | Comments (0) | TrackBack (0)
That Holiday Spirit
With the holiday season officially kicking off tomorrow, an interesting decision arrives from the Third Circuit. The question: can a school district adopt a policy forbidding religious music in holiday celebrations, including school concerts?
The South Orange-Maplewood school district in New Jersey adopted such a policy in an effort to achieve religious neutrality. After receiving a complaint from a concerned parent following a holiday concert that included traditional Christmas carols, the district's Director of Fine Arts indicated that schools should avoid music representing any religious holiday of any faith and suggested instead secular seasonal selections of the "Frosty the Snowman" type. Needless to say, this decision raised concerns with different parents, who brought a lawsuit.
Although these kinds of issues have become excessively polarizing, this case has a fairly straightfoward answer, which all the judges (including appointees of Presidents Carter, Clinton, and G.W. Bush) reached. Although the court was handicapped by having to apply the somewhat tangled official doctrines surrounding Establishment Clause issues, the decision follows from pretty basic distinctions.
A school's decision not to have its students present religious music in the holiday concert is different from the decision to have the students sing such music. The school district can hardly be obliged to present religious music in school. If the school district's policy violated the Constitution, it would follow that an individual school's similar decision would too, with the impossible result that every school's choral director would be legally required to present Christmas music in the school concert, not to mention music requested by other religions represented among the school's families.
Of course no one is trampling on a parent's right to have their children exposed to religious holiday music -- and children will get ample such exposure. Just not in the South Orange-Maplewood schools. Just because you have a right to teach your children something doesn't mean you have a right to have the school teach that same thing, if it doesn't want to.
Sigh. I remember my high school holiday concerts fondly, with I and the other Jewish kids cheerfully singing Christmas songs and not worrying about it. The South Orange-Maplewood policy does seem unnecessarily churlish. But it's constitutional.
Posted by Jonathan Siegel on November 25, 2009 at 12:06 PM | Permalink | Comments (1) | TrackBack (0)
Tuesday, November 24, 2009
Connecting the Dots
"Connecting the dots," is a weighty metaphor. Oliver Stone abused the concept. The National Commission on Terrorist Attacks Upon the United States, emphasized the gravity of doing so competently.
With the information that comes to us in our profession, floods over the transom, we need to take shortcuts. I rely on the pithy e-mail that lands regularly in my in-box from the ABA Journal Weekly for basic updates on the profession. (If I have time for fun, I will read Above the Law as my news aggregator.)
ABA Journal Weekly forces itself on me on my iPhone quite frequently, though I would never unsubscribe to the update.
This week, the top four ABA Journal Weekly "stories of the week" were independently ho-hum unsurprising. Connecting the dots, a broader picture emerges that illuminates the legal industry structure. (Note: Though I use the term industry interchangeably with profession here, I recognize there is a difference.)
Again, on their own, no a-ha moments from each "story of the week," but taken together, I think we can see where this movie heads more clearly every day.
Or maybe we connect the dots differently? Here are the top four stories, and I will say nothing earth-shattering about them standing alone.
1) LSAT-Test-Takers Jump by Nearly 20%; Should They Consider the Alternatives?
- Answer: What are the alternatives? Taking the MCAT or GRE? Backpack through Europe with an anemic dollar on Mom and Dad's account? (Not an option for most.)
2) 64% of Law Departments Have or Will Implement Rate Freezes, Survey Says
- This is an easy thing for law departments to say in a survey. They would certainly like to freeze rates in a tough economy and a potentially deflationary environment. Do firms have the market power to prevent it? No freeze would be permanent with a dramatic economic uptick. But why should we assume that dramatic uptick is coming soon- or (shock) EVER?
3) Several States Move Closer to National Bar Exam
- I have no doubt that in some jurisdictions this might upgrade the quality of legal representation, diversifying representation options and enhancing price competition. No doubt this competition will extend to price and breadth of choice. This would benefit the legal consumer and might be laudable.
4) Levi's is Paying Orrick a Flat Fee to Handle All But Its IP Work.
- Is the death of the billable hour inevitable? Nancy Rapoport thinks so. So does Doug McCollum of American Lawyer. Other smart industry observers agree, but commercial traditions die hard. They die faster in dire times.
See after the jump for my version of connect-the-dots.
Continue reading "Connecting the Dots"
Posted by David Friedman on November 24, 2009 at 09:45 AM | Permalink | Comments (2) | TrackBack (0)
Casual Empiricism and Data Quality
David Zaring has a short but interesting post over at the Conglomerate about different types of empirical researchers in the law. He describes the political science types, who study Supreme Court data, the quant types who study finance and accounting data in business schools, and the cross-over types who teach at law schools but use their inter-disciplinary PhDs for empirical legal research.
Finally, he describes what I would call the "casual empiricists" (and what I suspect the other three groups would call the "wannabe" or "fake" empiricists). I prefer "casual," of course, because I fall into this group. These law professors are interested in quantitative data but may lack the skills or training for hard core, PhD level quantitative analysis. For example, though rusty, I have plenty of econometric skill. I took the same basic graduate level courses given to economics PhD students and worked as a research assistant to an economist defining, running, and evaluating complex regressions. However, I never took the advanced data gathering and analysis courses, nor did I work on a dissertation. I suspect many of my casual empiricist colleagues are in the same boat.
As a group, we clumsily gather data about legal questions we want to study, and then run basic regressions on the data. Even so, there is something to be said about casual empiricism, and for reasons discussed below, I reject arguments that all casual empiricism is unworthy as legal scholarship. Of course, this is an old debate, even on this blog.
Continue reading "Casual Empiricism and Data Quality"
Posted by Michael Risch on November 24, 2009 at 08:06 AM in Life of Law Schools | Permalink | Comments (1) | TrackBack (0)
Monday, November 23, 2009
From Letters to the Editors of Mirror of Justice
Back when The New Yorker didn't run a Letters to the Editor section, Spy Magazine used to run a feature called "Letters to the Editor of The New Yorker." Since my good friend Rick's other blog, Mirror of Justice, doesn't have a comment section, for reasons I fully accept, let me use this space to call attention to and respond to a recent post of his at MoJ. Rick reprints a description of a recent lecture on Catholic voices in the public sphere by Helen Alvare, including the following passage describing the speech:
Alvaré suggested that we hammer home two points that ought to be obvious but aren’t: Most Americans are religious in some fashion, and few people are motivated by purely secular considerations to become . . . well, better people. This is why liberalism’s standard prescriptions for addressing various social problems—especially unwanted pregnancies, births out of wedlock, STDs, and family breakdown—just don’t work.
I have some questions about both of these statements. On the first score, I'm not sure what it means to say that few people are motivated by "purely secular considerations" to become better. I suppose it depends on what you mean by "purely secular," but I am not sure that it is true that few non-religious people are motivated by non-transcendent considerations to become better people. I take it, incidentally, that this is what Alvare means. If she just means that because most Americans are religious after a fashion, then sheer numbers dictate that few Americans are motivated to become better people by secular considerations, that may be true as a matter of mathematics but also fairly meaningless. It certainly won't tell us how many non-religious people, as a percentage of the non-religious, are motivated to become better people. It also does not tell us how many religious people are successfully motivated to become better people by non-secular considerations. Again, much of the work may actually be being done here at the definitional level, but if we take her comment more seriously than that, then I am not sure she is right.
The other proposition also demands some inquiry, I think.
Continue reading "From Letters to the Editors of Mirror of Justice"
Posted by Paul Horwitz on November 23, 2009 at 03:37 PM in Paul Horwitz | Permalink | Comments (6) | TrackBack (0)
Foreign Contacts and the First Amendment
I am editing a paper concerning the relationship between territory and the First Amendment, which I hope to post to SSRN next month. The paper will examine a variety of restrictions on cross-border information exchange, including laws that limit contacts between domestic speakers and foreign audiences and organizations. It will also examine efforts to "export" the First Amendment beyond the nation's borders, as something akin to a universal norm.
Contacts between domestic speakers and foreign audiences, organizations, and would-be collaborators have obviously increased substantially owing to globalization and digitization. Many laws and regulations that impose restrictions on cross-border information exchange, including travel bans and trade laws, have been liberalized or repealed over the past few decades. This is not to say that we have "open borders" insofar as informational materials and foreign audiences are concerned. U.S. laws and regulations continue to impose significant restrictions on cross-border travel and information exchange, many of which would be problematic from a First Amendment standpoint but for the fact that they are imposed at the nation's borders. Cross-border information flow is affected by strict licensing requirements, subject matter review of certain materials, trade embargoes, and limits on the export (and import) of materials, data, and information that may implicate national security concerns.
Contacts between domestic speakers and foreign contacts can raise serious diplomatic and security concerns. Alien scholars and other foreign speakers have no First Amendment or other constitutional right to enter the country for any purpose, including what would otherwise be lawful speech and association activities. The government's power to determine who may enter U.S. territory is subject to few, if any, limits. Contacts between domestic speakers and foreign organizations that are believed to be involved in terrorist activity have come under increasing scrutiny. The State Department has the power to designate certain organizations "foreign terrorist organizations" (FTO). Charities and other organizations have challenged these laws, with relatively little success, on vagueness, overbreadth, and First Amendment grounds. In a case now pending before the Supreme Court (Holder v. Humanitarian Law Project), several domestic organizations that wish to collaborate with foreign organizations designated as FTOs are challenging federal laws that prohibit the provision of "training," "expert advice or assistance," "service," and "personnel" to foreign terrorist organizations. In their opening brief, the organizations argue that these criminal provisions suppress "pure political speech," including the "provision of training in the use of humanitarian and international law for the peaceful resolution of disputes." At the very least, the organizations argue that the Court should limit the statutory prohibitions to “"spech intended to further a group's illegal ends."
The proposed limiting construction would likely avoid the most serious First Amendment questions posed by the statutory prohibitions on material assistance. This route may well be appealing to a majority. But let's assume the Court reaches the First Amendent questions. Does the First Amendment apply with equal force to communications and associations involving foreign organizations, particularly those designated as FTOs? Some thoughts on this issue after the break.
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Posted by Tim Zick on November 23, 2009 at 03:01 PM in First Amendment | Permalink | Comments (2) | TrackBack (0)
How I Write?
Via The Faculty Lounge, here's an interesting story from the Wall Street Journal about how writers write -- where, when, how they plan their books, how they avoid writer's block, how much they throw away, and so on. We've talked a fair amount on this blog about the "why I write" question but less about the "how I write" question. I'd love to hear from people about how they get their most productive work done. Given that I'm in the process of writing two books, the question is of some urgency to me.
For myself, I would give a couple of answers. For most major projects, I (or a combination of my research assistant and I) transcribe all the little quotes, sections, and arguments, along with my occasional marginalia, from the articles and books I'm reading into a single document, with cites and page references noted, so that once I'm writing, instead of combing through all the work I've read I can refer to a relatively discrete document. (Although my "source notes" document can run to 80 or 90 single-spaced pages.) For the most part, I don't commit words to paper until I've gone through this process; I'm not one of those who can start writing with "fill in later" or "cite tk" peppered through the draft. My first drafts thus take quite a while to come together, and the process often fills me with a certain sense of nausea or of approaching an unclimbable hill, but they also tend to be fairly polished and in far less need of multiple drafts. There are second and third drafts, to be sure, but the first one is often quite close to the final result. Typically, for a longer project, I'll also do a fairly full outline for each section or chapter. Although I still often have to work my through the argument(s) in each section, I have a fairly strong sense by that time of what will go where and how the course of the argument will proceed. Although I can go for weeks without writing (and in a mire of self-loathing and borderline panic), once I start a lot can get written at a time.
That's my general approach, but I think there's some value in messing with your method now and again. It's fun to challenge yourself from time to time by trying something different. Maybe that means a new genre. Maybe it means trying some approach you've seen and admired elsewhere. Maybe, a la Peter Gabriel recording his third solo album without cymbals, it means aiming fairly deliberately and experimentally for some goal or other. (For example, can I write a piece without (excessive) commas? As you can imagine, this is one I usually fail, although striving for it helps to discipline my sentences.) Occasionally, and for the right kind of piece, it does mean trying the approach of just writing freestyle and then filling in the blanks later.
I really would love to hear what works -- or doesn't! -- for others. That goes especially for books. I'm enjoying writing these books immensely, but it is decidedly a different kind of challenge.
Posted by Paul Horwitz on November 23, 2009 at 09:54 AM in Paul Horwitz | Permalink | Comments (8) | TrackBack (0)
