Category: General Law


A Compelling Plot

At many law schools around the country, the deluge of the hiring season has arrived: job talks, dinners, interviews, oh my.

I actually kind of enjoy the opportunity to read articles I wouldn’t otherwise consider opening and there are worse things than sharing a meal with a candidate at Zahav (try the crispy haloumi cheese) or Amada (pulpo a la gallega!).

That said, there are moments when the whole process begins to grate on me, particularly when it comes to probing the character and disposition of the candidate. You know you’re in trouble when you begin to find your own questions nit-picky and inane.

Indeed, this week, I noticed myself asking a question that I’m not at all sure that I care about concerning the “common thread” tying together a person’s various projects, positions, and pursuits.

Why did I ask this question? Was it because other faculty members seem to ask it (or one of its cousins) with startling regularity or because I’d fielded “tell us what the theme is” questions many times when I was on the market?

Perhaps, but that doesn’t seem like a sound excuse. I think the question is only really justified if people with a consistent narrative trajectory actually turn out to better professors (that is, more productive academics, stronger teachers, and more collegial colleagues).

Maybe that’s true and maybe it’s not. (I’m very curious to hear what others think.)

Certainly, there is a danger that those whose paths through life have been circuitous and multidimensional will end up being dilettantes and dabblers, nipping about the edges of issues and never producing any seriously-engaged work—or, worse still, that such folks will lose interest in being legal academics altogether (either pre- or post-tenure). However, there seems to be an equal danger that a person with a very convincing “theme” answer may prove to be limited and narrow, unable to adapt to a changing legal landscape and lacking in the creativity and broad curiosity to make a significant and novel impact on the field. In addition, such a person may have little interest (or ability) in offering comments on colleagues’ work that doesn’t directly overlap with her own.

Next job talk perhaps I’ll ask the candidate why they always write on the same topic and why they never got an MFA in poetry . . .


Ed Baker

Yesterday brought sad news of the passing of Ed Baker, the Nicholas F. Gallicchio Professor of Law and Communication at the University of Pennsylvania Law School.  Others have written posts paying tribute to Professor Baker’s significant contributions as a scholar (see here, here, and here.)  I would like to take a moment to add some brief thoughts about Professor Baker’s brilliance as a teacher.

I was extremely lucky to have Professor Baker as my Constitutional Law Professor and can report that he was as fine a teacher as he was a scholar.   In class, Professor Baker had a knack for posing whimsical hypotheticals that seemed simple at first blush but quickly revealed themselves to be impossibly, but wonderfully, difficult.  I remember his hypotheticals spilling outside of the classroom and sparking, on more than one occasion, intense conversations over beers with classmates.  One of us would comment about how humorous Professor Baker’s remarks had been that day.  And, the next thing we knew, we’d spent an hour or more of our Friday night talking about the dormant commerce clause!  This wasn’t the usual obsessive 1L banter about our classes, but full-on inebriated debates.  In short, Professor Baker had the rare ability to make the material he taught so infectious that his students could not stop themselves from talking and thinking about it.

Outside of the classroom, Professor Baker was always kind and and unusually generous with his time.  I’ll never forget, for example, how he became the first person to give me (very informal) advice about a career in law teaching.  A friend and I were having lunch on campus one day.  We had gotten to talking about how great it would be to lead the life of a law professor when Professor Baker happened to walk by.  My friend, who is much bolder than I am, decided to stop him in his tracks and ask how he became a professor and if he might have any advice for law students interested in pursuing an academic career.  Instead of telling us to come see him during office hours (which would have been an imminently reasonable reply to our spur of the moment inquiry), Professor Baker stood and chatted with us for 15 minutes about his career and what he would do if he was a law student who wanted to find a teaching job today.

I’m sorry to say that I did not keep in contact with Professor Baker after I graduated.  But, I did run into him by the escalators at the AALS conference my first year of teaching (the 2007 New York conference.)  Not surprisingly, he did not remember me very well (I was not an especially frequent classroom participant and so not the most memorable student) but he was friendly as usual and happy to hear that I’d landed a teaching position.

As a teacher, Professor Baker touched thousands of students lives.  He will be sorely missed.


Soldier Salaries

I’ve been intrigued by people’s responses to monetary incentives ever since I first became interested in behavioral research.

What is more effective in encouraging good food choices, carefully labeling items in a vending machine based on how healthy each is or raising the price of unhealthy snacks by five cents?

Does imposing a fine on parents who drop their kids off late to school result in less tardiness or more?

Do participants paid $20 after completing an extremely boring experiment report more or less satisfaction with the dull task than participants paid only $1?

Findings in this area prove to be a complex web to untangle and commonsense intuitions are often contradicted by experimental data.

Last evening I came across an article that presented the question of whether paying higher salaries increases military recruitment. The American commander in charge of Afghan security force training, Lt. Gen. William B. Caldwell IV, suggested that the answer appeared to be yes, at least with respect to Afghan Army recruits.

Without carefully controlling for various variables, it’s impossible to know if the significant rise in recruits this December (2,600 Afghans in the first seven days of the month) was actually caused by an announcement to increase the pay of soldiers from $180 to $240, but that seems highly plausible. Even if that’s true, however, it would likely be a mistake to conclude that to build a more effective military force in Afghanistan you just need to increase salaries.

Paying very high salaries during the U.S. occupation may actually have the effect of decreasing soldiers’ allegiance to the cause, in the same way that participants who were paid more in the boring experiment mentioned above reported less satisfaction with the dull task than those paid very little. It is possible that soldiers paid little may face a stronger dissonance than those paid a lot threatening their ability to see themselves as autonomous, coherent choosers who make good decisions. To bring their feelings about being in the military (i.e., it’s tiring, dirty, dangerous, frightening work) into alignment with their actions (i.e., I’ve chosen to serve in the military for a low salary), the best approach may be to change their attitudes (i.e., being in the military is honorable and vitally important and brings me great satisfaction). Those being paid high salaries are likely to experience considerably less dissonance: their choice to engage in the difficult and often unpleasant work of being a soldier is readily justified by the significant money they are receiving.

All of this aside, I must say that what really shocked me was learning that the Taliban pays better than the (U.S.-backed) Afghan army!

According to the article, the Taliban frequently provides insurgents with $250 to $300 a month.

Given the strong connection between the opium trade and the Taliban, perhaps it shouldn’t be all that surprising, but as the U.S. gears up to send more troops to the region, this seems deeply troubling.


CRS Lobbying Report

Last week, the Congressional Research Service issued a report titled, Lobbying the Executive Branch: Current Practices and Options for Change. The report summarizes how lobbyist registration requirements have evolved since 1995, when the Lobbying and Disclosure Act (“LDA”) was passed. It also examines steps taken by the Obama Administration to limit and monitor lobbying of the executive branch, particularly in connection with the American Recovery and Reinvestment Act of 2009 and the Emergency Economic Stabilization Act (“EESA”).

The report has received some flack for its statement that the Administration’s restrictions on lobbyist access to executive branch departments and agencies “has already changed the relationship between lobbyists and covered executive branch officials.” But amidst all the uproar over whether there is any real evidence of such change and continuing criticism of the Administration’s unprecedented directives barring lobbyists from talking about specific projects (stimulus funds) and preventing lobbyists from serving on agency advisory boards and commissions, I am most struck by a section of the report that no one seems to be talking about: the  recommendations for future action. That section discusses three suggestions or “options for change” that “might further clarify lobbyists’ relationships with executive branch officials.”

The suggested changes are:

1. Amend the LDA’s disclosure requirements to cover program-specific disbursement information — such as lobbying in connection with the Recovery and Reinvestment Act or the EESA.

2. Create a central database to collect all Recovery Act projects and contacts by federally registered lobbyists in a single, searchable location.

3. Take no immediate action, on the theory that the current lobbying registration and disclosure procedures combined with executive orders and executive branch rules on Recovery Act lobbying are effective.

Notice what is missing:  Any mention of requiring elected officials who are the targets of lobbyist activity, and who get to decide just how much access lobbyists receive, to disclose their contacts with lobbyists. It seems to me that both the CRS Report and the Obama Administration are missing something very basic here: The public’s concerns about lobbying do not begin with lobbyists themselves, but with the amount of access and influence that lobbyists exert vis-à-vis elected officials. Elected officials are, after all, the ones with whom the public has a direct (voting) connection and who the public expects to act on its behalf. Thus, it is just backwards for lobbying regulations to require disclosure after disclosure from lobbyists and nothing whatsoever from elected officials.

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Justice Sotomayor, Civil Procedure, and the “Tradition” of Unanimous Debut Opinions

Yesterday brought the Supreme Court’s first decision in a case argued this Term. The Court in Mohawk Industries v. Carpenter writes:

“The question before us is whether disclosure orders adverse to the attorney-client privilege qualify for immediate appeal under the collateral order doctrine. Agreeing with the Court of Appeals, we hold that they do not. Postjudgment appeals, together with other review mechanisms, suffice to protect the rights of litigants and preserve the vitality of the attorney-client privilege.”

The issue of when interlocutory district court orders can be immediately appealed is one that’s particularly interesting to me (though perhaps not to many others outside the civil procedure world). From a historical perspective, Mohawk is significant as the first opinion authored by Justice Sotomayor. She is thus forever linked to civil procedure (as is Chief Justice Roberts, I might add, whose debut opinion involved the attorney-fee provision in 28 U.S.C. § 1447(c). See Martin v. Franklin Capital Corp., 542 U.S. 132 (2005)).

Justice Thomas’s concurring opinion in Mohawk has also attracted attention. Although he agrees with the Court’s result, Justice Thomas writes that Justice Sotomayor’s opinion “needlessly perpetuates a judicial policy that we for many years have criticized and struggled to limit.” He concludes:

“I would leave the value judgments the Court makes in its opinion to the rulemaking process, and in so doing take this opportunity to limit — effectively, predictably, and in a way we should have done long ago — the doctrine that, with a sweep of the Court’s pen, subordinated what the appellate jurisdiction statute says to what the Court thinks is a good idea.”

Some have argued that Justice Thomas’s opinion contravenes the Supreme Court’s “tradition” that a new Justice’s first opinion be a unanimous one. (See Eric Muller’s post at The Faculty Lounge: Clarence Thomas “Welcomes” Sonia Sotomayor to the Supreme Court). The New York Times described the concurrence as “testy” and “a swipe at his new colleague.” On the other hand, Mohawk was unanimous in the sense that all nine Justices agreed in the result. And Justice Thomas did sign on to two whole paragraphs of Justice Sotomayor’s opinion (“I concur in the judgment and in Part II-C of the Court’s opinion”). What do folks think?

At the end of the day, maybe it doesn’t really matter. Justice Breyer did not enjoy the benefit of this so-called tradition. He prompted outright dissents from Justices Scalia and Thomas in his first opinion. See Allied Bruce Terminix v. Dobson, 513 U.S. 265 (1995). Then again, Justice Breyer went on to serve a remarkably long tenure as the Court’s most junior Justice. Could there be a “Curse of the Nonunanimous Debut Opinion”?

(Cross-posted at the Civil Procedure & Federal Courts Blog)


Wow, Lawsuits Really Take a Long Time . . .

I was pretty “stoked” three years ago when I received a notice informing me that I was a potential claimant in a settlement against BAR/BRI (having purchased a bar review course from the company between August, 1997 and July 31, 2006, during which time BAR/BRI was allegedly violating federal antitrust laws). Not only was it a settlement involving real money ($100+), but the entity getting dinged was one that I associated with pain in my life. Ah, sweet revenge!

No, receiving the check wasn’t likely to feel the same as winning a judgment against the bar examiners of the state of New York for spoiling what could have been a relaxed and pleasant month of July, but it was going to be deeply satisfying nonetheless.

Well, it’s been three years and my day of glory has still not arrived.

According to the class action website:

(1) “Over 88,000 Claim Forms representing claims for over 130,000 BAR/BRI courses have been processed by the Claims Administrator”;

(2) “Under the terms of the Settlement, Defendants deposited forty-nine million U.S. dollars ($49,000,000) into an interest-bearing account for the benefit of the Class”; and

(3) “On November 2, 2009, Plaintiffs’ Motion for Final Distribution of the Net Settlement Fund and Approval and Distribution of Attorneys’ Fees and Expenses came on for regular hearing before the Honorable Judge Manual L. Real. The Court, on its own motion, continued the hearing to December 7, 2009. NO CLAIMS CAN BE PAID UNTIL THE DISTRICT COURT HAS ISSUED A DISTRIBUTION ORDER AND THERE HAS BEEN A FINAL RESOLUTION OF ALL APPEALS.”

Sigh. Those 100 bucks really would have come in handy this month. I guess the orphans are going to have to go without presents for another year . . .


Transactional Teaching Conference

Emory University School of Law’s Center for Transactional Law and Practice asked me to post the following.
“[We are] delighted to announce its second biennial conference on the teaching of transactional law and skills, Transactional Education:  What’s Next? The conference will be held at Emory Law on Friday, June 4, and Saturday, June 5, 2010.

We are accepting proposals immediately, but in no event later than 5:00 p.m., February 1, 2010. We welcome proposals on any subject of interest to current or potential teachers of transactional law and skills. To find out more information about the conference or how to submit a proposal, please click here.

The Steering Committee
Tina L. Stark, Chair, Emory University School of Law
Danny Bogart, Chapman University School of Law
Deborah Burand, University of Michigan Law School
Joan MacLeod Heminway, The University of Tennessee College of Law
Jeffrey Lipshaw, Suffolk University Law School
Jane Scott, St. John’s University School of Law”
[Update 3/25/2010: Registration is now open, at this link.  Registration closes May 25, 2010. ]

The Yale Law Journal Online: Is It Important To Be Important?: Evaluating the Supreme Court’s Case-Selection Process


On September 19, 2009, Frederick Schauer discussed the state of the Supreme Court’s certiorari process at a conference sponsored by The Yale Law Journal Online and the Yale Law School Supreme Court Advocacy Clinic.  Professor Schauer’s Essay on the topic, evaluating the dwindling caseload of the Court, the potential for an informational disadvantage on the part of the Justices themselves, and means by which a solution may be found, is now available on YLJ Online.


Huckabee Weighs in on Commutation (Again)

Via Jeralyn Merritt at TalkLeft, I see that former Presidential candidate and Arkansas governor Mike Huckabee has an op-ed out in the Washington Post further explaining his decision to commute the sentence of Maurice Clemmons (discussed earlier at Co-Op here and here.)

The op-ed, and Jeralyn’s post, are worth a read in their entirety, but here are the key points from Huckabee’s piece:

Between 1,000 and 1,200 requests for some form of clemency came to my desk each and every year of the 10 and a half years I was governor. An overwhelming majority of the time, I denied the requests. When I did grant them, it was based on the recommendations of all five of the members of the PPTB [the Post Prison Transfer Board], with consideration given to input from public officials and my own personal review of each and every file.

Maurice Clemmons was 16 years old when he committed the crimes of burglary and robbery. He was sentenced to a total of 108 years in prison, dramatically outside the norm for sentencing for the crimes he committed and the age at which he committed them.

In 2000, the PPTB unanimously recommended that his sentence be commuted after he had already served 11 years in prison. As per the recommendation, I commuted his sentence to the term of 47 years (still a long sentence in comparison to others for the type of crime he had committed), making him parole eligible. It did not parole him, as governors do not have that power in Arkansas. He would have to separately apply for parole and meet the criteria for it.

Three months after the commutation, Clemmons met the criteria for parole and was paroled to supervision in late 2000. When he violated the terms of his parole, he was returned to prison and should have remained behind bars. For reasons only the prosecutor can explain, he ended up dropping the charges, allowing Clemmons to leave prison and return to supervised parole.

Clemmons moved to his native Washington State and engaged in intermittent criminal activity that increased in violence and frequency. He was arrested on charges of raping a child, yet was allowed to post bail in Washington. While out on bail, he committed the unspeakable acts of murdering four valiant police officers.

Based on Huckabee’s account, his clemency decision in this case does not seem extraordinary or unusual.  Similarly, while I don’t have the statistics before me, my bet is that the 11 years Clemmons served is probably closer to the average (or higher than the average) sentence that a 16-year-old convicted of burglary and robbery would receive.

In short, as Jeralyn concludes, the prosecutor’s decision not to pursue charges on the parole violation and the failure to heed warning signs that Clemmons was mentally ill indicate that perhaps we should be looking at the support and oversight of parolees or at our mental health system, rather than at Huckabee, if we want to try and prevent tragedies like this one in the future .  Of course, the prosecutor was not a former candidate for President.  And thinking about the systemic shortcomings of our mental health and corrections systems is hard work.  So I guess that the focus on playing the political blame game with Huckabee shouldn’t be all that surprising (even if it is disappointing) given our current media climate.