Author: Sarah Waldeck


Westlaw Next

Lately I’ve found myself thinking more than I have for a long time about the process of legal research.  This is because of an intriguing article by Ronald E. Wheeler, Jr., the director of the library at the University of San Francisco Law School.   Wheeler’s article (which can be found here)  discusses Westlaw Next, the new search engine rolled out by Westlaw in 2010.  Several features distinguish Westlaw Next from Classic Westlaw; most notably, that Westlaw Next is a sort of “Google for lawyers” because it uses a crowd sourcing algorithm that relies on the actions of other Westlaw users to rank the relevance of documents retrieved in a search.   Wheeler’s article is a must-read for anyone who teaches legal research to law students and a should-read for any scholar who uses or has research assistants using Westlaw Next. Read More


Laptops, Again

Over at PrawfsBlawg, Rick Garnett has drawn attention to Kristin Murray’s forthcoming article Let Them Use Laptops: Debunking the Assumptions Underlying the Debate Over Laptops in the Classroom.   Since my own laptop ban was cited in the article, I read it with particular interest.    I’m still thinking about the piece, which for me means that it was worth reading. 

One of Murray’s central points is something that I suspect most professors who decide to ban laptops have considered:   students have different learning styles and some of them will be genuinely aided by having a laptop in class.   Because of this, I tried or considered several of the alternatives to laptop bans that Murray endorses—incentives for participation, a personal request that laptops only be used for classroom purposes, and so forth—and ultimately found these alternatives  wanting.   For me, particularly in the large core courses that I teach, the relevant question is always:  what policy decision is going to benefit the most students?  

To argue that I and others of my ilk have gone too far with an all-out ban, Murray relies primarily on a survey of laptop practices that was taken by Temple and Georgetown law students.  In fairness, Murray notes her own reservation s about the merits of self-reporting.  But I found many of the survey comments unpersuasive, primarily because they so remind me of what my own students said prior to participating in my laptop-free classroom.  Many—although by no means all—students had very different comments about the value and effects of their laptops by the end of the semester.  

Murry’s paper arguably predicts this result. One of the assumptions (presumably made by laptop advocates) that Murray seeks to debunk is that “[b]ecause they are digital natives, law school students make informed choices about laptops and learning.”   Murray finds that students bring “laptops to class with only some of them thinking critically about their own note-taking, study and learning habits.”   This raises a question about these same students’ abilities to report critically on their own laptop practices.  What should we make, for example, of the more than 55% of students using their laptops for non-classroom related activities who say they “never miss anything” or only “occasionally miss something minor”?   

Murray’s article also has me thinking about how the professor side of the equation fits into the whole laptop debate.  I would not be the first to comment on how scary it is to walk into a laptop-free classroom and realize that you are the only entertainment in the room.  I will also confess that during a visit to a school where I didn’t ban laptops, teaching sometimes felt easier because I knew that if the students didn’t find the material engaging they had something else to do.   I don’t know how we would measure the effects that laptops have on professor performance, but it’s an interesting question.


Panel Discussion on Female Circumcision: Ethics and Human Rights

I’ve written previously about the firestorm surrounding the now-retracted American Academy of Pediatrics policy statement suggesting that doctors might make a ritual nick on girls to prevent them from being sent back to their home countries for more drastic forms of genital cutting.  Readers in the Boston area might be interested in attending a panel discussion at Harvard Law School that asks where those working to prevent female genital cutting should go from here.  Below is a description of the event, which takes place tomorrow (March 3) at 4:00 in Room 200, Pound Hall.

The practice of FGM has been at the center of health and human rights debates for decades. Public health, women’s rights and child rights advocates, governments and health professional associations–in Africa, Asia, Europe and the US– have taken positions running the gamut from abolition to harm reduction. In April 2010,  the American Association of Pediatrics issued a Policy Statement on female genital cutting that was quickly retracted in the face of significant opposition.  The controversy surrounding the report presents an excellent point of departure for examining the issues that still complicate our thinking about the issue.

In this panel we hope to explore the ethical, legal, and human rights dimensions of female genital circumcision.  These include dimensions of toleration, prohibition, harm-reduction, and cultural competency.


Introducing Jonathan Hafetz

I’m pleased to introduce Jonathan Hafetz, who will guest blog this month.  Jonathan is an Associate Professor of Law at Seton Hall University School of Law, where he focuses his research on national security, human rights, immigration, and constitutional law.  He is the author of a new book Habeas Corpus after 9/11: Confronting America’s New Global Detention System (NYU Press 2011). He also is the co-editor (with Mark Denbeaux) of The Guantanamo Lawyers: Inside a Prison Outside the Law (NYU Press 2009). Jonathan’s scholarship has appeared in numerous publications, including the Yale Law Journal, Fordham Int’l Law Journal, and American University Int’l Law ReviewHere is Jonathan’s SSRN link.

Prior to joining Seton Hall, Jonathan was an attorney at the ACLU’s National Security Project, a litigation director at NYU’s Brennan Center for Justice, and a John J. Gibbons Fellow in Public Interest and Constitutional Law at Gibbons, P.C.  Jonathan has litigated leading national security habeas corpus cases, including Al-Marri v. Spagone, which involved the military detention of a legal U.S. resident. He was a member of the legal teams in Boumediene v. Bush and Rasul v. Rumsfeld in which the Supreme Court recognized the right of Guantánamo detainees to habeas corpus. Jonathan also has authored or co-authored numerous amicus curiae briefs for the U.S. Supreme Court and federal courts of appeals on a range of constitutional and legal issues.

Welcome Jonathan!


Circumcision: Rewind to 2010

Any day now the American Academy of Pediatrics is expected to release its new policy statement on male circumcision.  As I’ve already written, because of data suggesting that circumcision reduces the risk of males acquiring HIV through heterosexual intercourse, the AAP is expected to move from a neutral position to a more encouraging one.  I can predict how the news coverage will read:  a paragraph or two explaining the new position and its rationale, a few choice quotes from intactivists, comments from physicians and maybe a mohel.  All pretty standard stuff. 

This will be a walk in the park for the AAP, particularly compared to last spring.  That was when the AAP released its policy statement on female circumcision, which repeatedly decried all forms of female genital cutting.  Wisely, however, the AAP also recognized that female genital cutting is a cultural and religious practice and hence won’t disappear just because it is made illegal or because medical organizations reject it.  The AAP therefore left open the possibility that doctors, in a hospital and with anesthetic, might make a ritual nick on girls whose parents request it.  The goal was twofold: (1) give parents an alternative so that they would not send their daughters back to their native countries for far more drastic forms of genital cutting; and (2) begin to change cultural norms within certain immigrant communities.   As for how this all played out, suffice to say that the AAP retracted the policy statement a few weeks later to make certain, as the AAP’s president explained, that “the world health community understands the AAP is totally opposed to all forms of female genital cutting, both here in the U.S. and anywhere else in the world.” 

The contrast between that brouhaha and the yawn that is likely to herald the new statement on male circumcision should prompt a re-examination of American attitudes toward male genital cutting.  Because there are so many degrees of female circumcision—each increasingly horrific and terrifying to Western observers—it’s easy to put male and female circumcision into separate mental compartments.  In the “mildest” form of female circumcision, however, the clitoris is left intact and the clitoral prepuce (which is homologous with the male foreskin) is removed.  Consistency would demand that anyone who supports the parental choice to cut off a son’s foreskin also support the parental choice to cut off a daughter’s clitoral prepuce.    But very few Americans hold consistent views about male and female circumcision.   

Those of us with inconsistent views cannot satisfactorily justify them by pointing to the health benefits of male circumcision.  Even if all the medical authorities agreed that male circumcision had no health benefits, it is inconceivable that cutting off the male prepuce (also known as the foreskin) would be criminalized in the same way that federal law criminalizes cutting off the clitoral prepuce.  Put differently, even if cutting off the clitoral prepuce reduced the risk of urinary tract infection and of contracting HIV, the AAP wouldn’t recommend it and American parents wouldn’t do it.  This is because circumcision is a cultural practice and not a medical one. 

Lest I be misunderstood, I am not suggesting that we resolve these inconsistent views by endorsing or in any way supporting female circumcision.   I do think, however, that last Spring’s firestorm and the anticipated quiet reception of the AAP’s new policy statement on male circumcision reveal more than a little hypocrisy about our own cultural practices.


Male Circumcision in 2011

The first few months of 2011 will be interesting for those who care about male circumcision rates in the United States.  The American Academy of Pediatrics (AAP), which is currently neutral on the question of whether to circumcise, is expected to issue a new policy statement that will be more encouraging about the medical benefits of the procedure.   Reports have also been circulating for some time that the Centers for Disease Control and Prevention (CDC) will issue recommendations promoting routine infant male circumcision as a means of reducing the spread of HIV.

On the medical front, new data about HIV is the big development since the AAP last affirmed its neutral stance in 2005.  Studies from Africa have found that circumcision reduces the risk of a man becoming infected from an HIV-positive female partner and the evidence on this front is strong enough that the World Health Organization has deemed circumcision “an important intervention to reduce the risk of heterosexually acquired HIV.”   It is not clear, however, what impact circumcision has on HIV rates in the United States, because the health systems are vastly different and the disease spreads through different routes here than in Africa.  Most significantly, there is little to no evidence that circumcision protects men who have sex with HIV-infected men and it is unclear whether a circumcised HIV-infected male is less likely to infect his healthy female partner.

But let’s assume that the CDC issues its long-anticipated recommendations and that the AAP’s policy says that the medical benefits of male circumcision outweigh its risks.  What I wonder is whether these official statements will make much of a practical difference, particularly in the short term. Read More


Compstat and Police Subculture

Last Friday the New York Times reported that a New York City police commander and four officers are facing internal charges stemming from their alleged failure to record criminal complaints.  These charges are just one piece of a larger story about the reliability of information fed into NYC’s Compstat program.  In a study released earlier this year, more than 100 retired high-ranking officers reported that they were aware of “ethically inappropriate” changes to crime complaints that fell into the seven major felony categories tracked by Compstat.  A patrol officer in Brooklyn’s 81st precinct has also reported widespread manipulation of crime statistics in 2008 and 2009.  (You can hear a This American Life episode about that officer here, along with excerpts from surreptitious recordings the officer made on the job.)

These recent revelations raise questions about the extent to which crime has actually fallen in New York City.   But the focus on crime reduction obscures another important issue about the occupational subculture.  For decades, police reformers have written about the importance of bringing down the “blue curtain,” that is, an occupational subculture in which a code of loyalty and secretiveness reign.  This subculture is widely believed to contribute to an “us and them” mentality which, among other harms, encourages police officers to do whatever is necessary to protect themselves and their fellow officers from criticism and administrative and legal penalties.  This mentality ultimately poses risks to those caught up in the criminal justice system and undermines public confidence in police work. 

When success is measured according to statistics, the temptation to manipulate is near irresistible.  Couple this with the dominant occupational subculture and almost anyone could have predicted that the data being fed into Compstat was unreliable.  The more important question is whether Compstat and its progeny are counterproductive to police reform over the long-term because they have the effect of reinforcing the dominant occupational subculture instead of remaking it.


Symposium on National Security Policy and the Role of Lawyering

On Thursday, October 28, the Seton Hall Law Review is hosting a day-long symposium in Newark, New Jersey entitled National Security Policy and the Role of Lawyering: Guantanamo and Beyond.  Here’s the description:

The broad focus of the Symposium will be to discuss preventive detention and the future of United States national security policy.  As the United States prepares for the closing of Guantánamo Bay detention center, the country still faces the challenge of balancing national security and individual rights.  Controversy continues to plague U.S.-run prisons abroad, such as Bagram in Afghanistan; at the same time, the country has yet to resolve critical questions surrounding the scope of executive detention authority in the “war on terrorism,” leaving the future of U.S. detention policy uncertain.  We hope to discuss the mark Guantánamo has left on the United States and explore the future of preventive detention from the standpoint of lawyers, scholars, policymakers, the media, and former detainees. 

Panelists will include Peter Finn of the Washington Post,  Dafna Linzer from ProPublica, Steve Vladeck from American University and Joe Margulies from Northwestern.   You can find the full symposium schedule and a list of panelists here.


Wisconsin’s Diploma Privilege: Here to Stay (At Least for a Little Longer)

I’ve written about the continuing challenges to Wisconsin’s diploma privilege here and here.  Now it appears that the privilege has successfully dodged two bullets.  First, today the Wisconsin Supreme Court voted 7-0 to deny a petition filed by 70 Wisconsin lawyers asking that the Court either extend the privilege to graduates of any ABA-accredited law school for a 10-year trial period or, in the alternative, require Marquette and University of Wisconsin graduates to take the bar.  Second, the federal class action challenging the privilege has ended.  As I described in my prior posts, the Seventh Circuit twice sent the case back to the district court that had dismissed it.  But over the summer the district court decertified the class.  This left only a single plaintiff, who settled with the state for $7,500.  She plans to take the bar exam in July.


Harmless Error (The Estates and Trusts Kind)

As I’ve previously discussed on this site, Uniform Probate Code 2-503 allows courts to probate documents that were improperly executed upon clear and convincing evidence that the decedent intended the document to be a will.  New Jersey, which codified this harmless error rule several years ago, finally has a published appellate decision interpreting it.  The case, In re Will of Macool (2010 WL 3608686 (N.J. Super. A.D.)) is notable because it may provide a counterweight to In Re Kuralt, in which a Montana court arguably extended 2-503 to probate a document that indicated how the decedent wanted to dispose of his property but was not intended to be a will. 

In Macool, Louise wrote a will in 1995 and codicil in 2007.   Her husband, Elmer, was the primary beneficiary of these documents and his children (Louise’s stepchildren) were the contingent beneficiaries.   In 2008, Elmer died and Louise went to her lawyer to revise her estate plan.  The crux of her new plan was to reduce what her stepchildren were taking and to make gifts to her niece and godchild.  Louise gave her lawyer handwritten notes that summarized her new plan; these notes were a bit cryptic and it’s hard to imagine that the lawyer would have known what to do with them in the absence of oral clarification from Louise.  The lawyer dictated a complete document while Louise was in his office and a secretary typed up the dictation that same afternoon or the next morning.  Louise was supposed to come back at a later date to review the document, but she died about an hour after leaving the lawyer’s office. 

The trial court found, and the appellate court agreed, that Louise intended to alter her testamentary plan to include her niece and godchild.  In refusing to probate the document, however, the court distinguished between evidence “showing decedent’s general disposition to alter her testamentary plans” and evidence establishing that the decedent “intended the draft will prepared by [the attorney] to constitute her binding and final will.”  The court held that for the harmless error rule to apply, the proponent of a writing must prove by clear and convincing evidence that “(1) the decedent actually reviewed the document in question; and (2) thereafter gave his final assent to it.”  Read More