1

Sexualizing Victims And Offenders

Rick Garnett blogged yesterday about a recent Eighth Circuit opinion in a sex abuse case. The appellate court reversed a trial court’s decision to close the courtroom during testimony of children allegedly abused by the defendant. A particularly interesting part of Judge Arnold’s short Sixth Amendment decision said:

The government implies in its brief that requiring children to testify in publicin this kind of case could only expose them to voyeuristic or prurient interests.

What did the government mean, exactly? Did it think that the defendant would get sexually excited during trial? Would pedophiles flock to the courthouse to witness the testimony?

I imagine that the government was suggesting that having a child testify about sex has the effect of sexualizing the child. Everyone watching this testimony, intentionally or not, would begin to see the child as a sex object. The government is probably right. Amy Adler has written a compelling piece arguing (in line with Judith Butler) that the criminalization of child pornography transforms images that would not otherwise be seen as sexual into sexual events. She suggests that, once we know child underwear ads might be pornographic, we’ll always look at these ads and ask: “is this this is a sexual image?” And of course once we ask that question, we’ve answered it.

In effect, the mere act of going to trial in a any sex crime case sexualizes the victim. We see that victim in his or her role as sexual object because that is how he or she is presented to us. If the right to a public trial is to have real meaning, Judge Arnold must be right that this phenomenon is no basis for closing a public trial.

This brings to mind an interesting post over at The Smoking Gun. TSG posted a series of mugshots under the heading “Foxy Felons.” One such canid, Casey Hicks, has threatened to sue TSG unless it removes her photo. It seems that she believes – based on blog commentary, no less – that TSG readers are using her photo for their own “private sexual gratification.” Perhaps Alabama, which is ever mindful of the dangers of sexual gratification, will add mugshots to its existing ban on sexual stimuli.

7

Racial Separation

Yesterday’s NY Times included an article about separate drunk driving courts in Phoenix for Spanish-speakers and Native Americans. I wasn’t particularly troubled about having special courts for Spanish speakers. As a practical matter, such courts will operate more quickly and efficiently because they will not need translators. At the same time, it seems likely that the proceedings will be, and will be perceived by to be, fairer. This is because Spanish speakers will presumably understand much more of what is occurring in the courtroom. (For example, defendants may benefit from understanding the proceedings in other cases, as well as from understanding the informal courtroom patter that would otherwise go untranslated.)

Creating special courts for Native Americans is different. On one hand, specialty courts are neither new nor troubling. As I’ve written, drug courts and mental health courts provide special benefits because the feature judges with specialized knowledge, as well as a more developed support staff trained to address particularly challenging personal problems. There are reasons to believe such courts may reduce recidivism because their sentences are more effective. But why couldn’t a specialized drunk-driving court provide that sort of individualized treatment plan for both Native Americans and non-Native Americans?

It seems to me that the only basis for having a separate race-based tribunal is if the use of a general tribunal itself prevents effective treatment. Thus we should ask whether there is something about having a special venue that changes the experience for the defendants. That is, do many Native Americans speak more openly in the Native American court? Do they acknowledge their problems more easily there? Do they follow court orders more frequently in such courts? Do lawyers advocate more aggressively in these courts? Even if the answers are yes, I’m not at all sure that I’d support these race-based courts. There are broad social costs to creating race-segregated courts; it seems far wiser to build a single inclusive tribunal.

On a separate note, I’ve been thinking a bit about recent happenings at NYU Law. As some others have noted, students at my alma mater are petitioning the Dean for creation of a “minority lounge.” The space would be open to all members of the community but according to one student, “it should be understood that this is a place where students of color can go to feel comfortable, to talk without hesitation, to be surrounded by those that understand or are more open to understanding their experience in law school.”

Read More

2

Excited To Be Here

After several years watching blogs from the outside, I just wanted to say how excited I am to become a full-timer here at Concurring Opinions. I’ve had a great time getting comfortable in the format and I’m enjoying having such fabulous fellow bloggers. Dan, Dave and Kaimi have set an exceptionally high bar. I’m not sure whether it will be easier to meet those expectations or to simply diminish them!

I hope that I’ll be able to contribute both useful and useless ideas, particularly in areas of criminal law and law and culture. But I also expect to go off-topic with regularity. Thanks to Co-op for inviting me inside. Thanks to everyone who spends time visiting us instead of being productive. And thanks to Al Gore for this fabulous thing, the Internet.

0

Suckering in New Collectors

The WSJ (free version) has a great article today on efforts made by collectors to try to maintain the market value of their goods by reducing costs for young entrants. Here is a taste

If new generations of collectors don’t materialize, the value of items will plummet. That’s why marble clubs, to generate enthusiasm, send free marbles to schools. The U.S. Mint has a Web site with cartoons and computer games to entertain kids about the thrills of coin-collecting. Indeed, children have shown considerable interest in the state quarters program . . . Some collecting groups have created unstated policies. The 650-member National Milk Glass Collectors Society — a group devoted to opaque glass — holds an annual auction. When the rare young person shows up to bid on an item, older collectors lower their hands. “We back off and let the young person buy it. We want them to add to their collections,” says Bart Gardner, the group’s past president.

Worth reading in full, if only to learn what the Oughtred Society does.

6

The Unraveling of the Market for Law Review Submissions

book21a.jpgProfessors, start your engines: it is time for the spring rush of law review papers. For those of you who are not law professors, aspiring professors, or student editors, you will be unfamiliar with the spectacle of thousands of professors submiting articles to dozens and sometimes hundreds of journals simultaneously, and, having received offers, attempting to expedite “up the ladder” under short time deadlines. Professors’ goals in this process are varied: maximizing characteristic X of the journal for citation/tenure/lateral movement purposes; maximizing quality of editing required (or minimizing it, depending on mood); obtaining “lead article” status; minimizing time to publication; selecting for generous copyright permissions; etc. Editors and journals simultaneously are competing to get the “best” articles, judged by a variety of measures (author individual prestige/author’s institutional prestige/expected citation by journals or important courts); beating a competing journal for quality work; making a statement on an issue of public importance; etc.

In any event, this is all old news. What is clearly new is that the time for submitting law review articles is creeping backwards. Just ten years ago, my colleagues tell me, late March was the beginning of the cycle and articles were routinely submitted and accepted in May. Now, as Kaimi’s post has highlighted, late February is the beginning of the cycle and many journals will be filled (at least for this round) by late March. Moreover, anecdotally, journals are increasingly “exploding” offers, trying to reduce competition through segmenting the market; and moving up board transitions to before Spring Break.

So what’s up? It seems to me [and, no, I can’t seem to find someone else who has said this although it isn’t earth-shattering] that we are experiencing what Alvin Roth called the “unraveling” of a sorting market. Classic examples of unraveling occur in the labor context – the judicial law clerk market is the paradimatic case – where the time the market begins to operate slowly is pushed back in time as the relevant actors try to get a first-mover advantage. As a result of this market failure, relevant information is not disseminated, and sub-optimal decisions are made.

In our law review example, similarly, the moving back of decisions has multiple pernicious effects. Authors may not be able to get any sense at all of the “market value” of their article (loosely reflected, the myth goes, by multiple offers at a variety of journals). Conversely, journals feeling pressure to move quickly will increasingly resort to proxies for quality like letterhead, prior publication, and the eminences listed in the article’s first footnote (which tell you who an author’s friends and professional contacts are).

Roth posited four stages of such markets:

Stage 1 begins when . . . the relatively few transactions [in the market] are made without overt timing problems. By the middle of stage 1 . . . some appointments are being made rather early, with some participants finding that they don’t have as wide a range of choices as they would like–students have to decide whether to accept early job offers or take a chance and wait for better jobs, and some employers find that not all of the students they are interested in are available by the time they get around to making offers. The trade journals start to be full of exhortations urging employers to wait until the traditional time to make offers, or at least not to make them any earlier next year than this year. Towards the end of stage 1, the rate of unraveling accelerates, until sometimes quite suddenly offers are being made so early that there are serious difficulties distinguishing among the candidates. There is no uniform time for offers to be made nor is there a customary duration for them to be left open, so participants find themselves facing unnaturally thin markets, and on both sides of the market a variety of strategic behaviors emerge, many of which are regarded as unethical practices. Various organizations concerned with the market may have proposed guidelines intended to regulate it, without notable success. As stage 1 ends, influential market participants are engaged in a vigorous debate about what can and should be done.

(Roth & Xing 1994, p. 996). By my reading, we’re in the middle of a stage 1 market. (Taking blogs for “trade journals,” check out Christine Hurt’s posts flagging the issue and exhorting others not to play the expedite game).

Read More

2

More on Blogs as Scholarship

bloggership1a.jpgRecently, I blogged about a National Law Journal article about law blogs and scholarship. Doug Berman points out that blogs and blog posts are even being cited by judicial opinions. Indeed, Berman’s blog was recently cited by the Ohio Supreme Court, and in the past it has even been cited by the U.S. Supreme Court.

Mike at Crime & Federalism observes:

Scholarship is something that moves our legal knowledge forward. If x-article or blog post helps us understand something we hadn’t understood, then it’s scholarly. . . .

Anyhow, I’d love to hear those who disapprove of blogs to explain what separates Doug Berman’s blog from his casebook or a sentencing treatise. If Orin Kerr writes a lengthy entry about the PATRIOT Act, is it not scholarly because he publishes it online?

Larry Ribstein observes:

[S]ome blogs have a lot to do with scholarship in the sense of importantly contributing to the process. My blog, for example, conveys scholarship-relevant information, and I learn the same from other blogs. I also use my blog to germinate and develop ideas that eventually appear in polished scholarship.

Rick Garnett at PrawfsBlawg notes:

Look, of course it is true that most blogging looks a lot more like “chit chat” than like “scholarship.” But isn’t there a pretty big chunk of middle ground here? My sense is that — at least in the law-blogger world — a fair bit of what gets blogged and blogged about does “have [something] to do with scholarship”: People blog about what others are writing about, about what they are writing about, about what they plan to write about, or what they tried to write about. No one thinks that blogging could or should take the place of scholarship. But it seems quite a stretch to suggest that law-blogging does not have — unlike, e.g., enthusiastic and engaged conversations around the lunch table, or during a workship? — anything at all to contribute to the scholarly enterprise.

And here’s a link to the lineup at Paul Caron’s conference on blogging at Harvard this April.

40

It’s February 27. Do you know where your Articles Committee is?

Colleagues are talking about it in the hallway. How many boards have switched over? Where exactly are the windows, and when exactly is the “sweet spot” for sending a piece out?

I’m hoping to solicit some responses from our readers, in the comments to this post, to help provide our readers with the information that may help them answer those questions. Are you affiliated with a law review? Has your board turned over? If so, please indicate this in the comments. If enough readers comment, we may be able to collect some useful information. (I believe this could be useful both for the authors, who will send their pieces out at the best time, and for the editors, who will hopefully see fewer premature articles).

Details — “the West Dakota Law Review board turns over on March 1” — are particularly appreciated. Thanks!

1

Law School Lateral Hiring Report

Brian Leiter has been very helpful in sharing information about lateral moves by law faculty. Due to time constraints, however, he is limiting his list only to faculty moving to/from schools that figure in his faculty rankings. Since many of us want to learn about ALL faculty moves, Concurring Opinions has decided to emulate Professor Solum’s Entry Level Hiring Reports. As a public service, we – OK, I, Dan Filler, the new kid on the blog (and no, this assignment is not part of normal Co-op hazing) – will collect all your news about law school lateral movement.

Let me know:

Current School

Future School

Teaching Areas

Current Law School Webpage Address

Any Other Details (chair or administrative titles, etc.)

If you have heard of others’ moves, feel free to alert me to those as well. I’ll double check before posting.

Please send this information to danielmfiller@gmail.com.

I’ll post results shortly, and update as necessary.

0

The Decline of Blogging?

A WSJ article (free online content) tries to debunk rumors of the demise of blogs:

Maybe you’ve heard: Blogs are a vanishing fad — this year’s digital Pet Rock. Or a business bubble about to pop. Or a sucker’s bet for new-media fame seekers.

Recent weeks have seen the rise of a cottage industry in Whither Blogging? articles.

I find it hard to believe that rumors of blogging’s demise have even surfaced. It strikes me as ridiculous to presume anything about whether blogging has peaked given how early in the game it is. The WSJ article debunks these rumors, but concludes by reaching some middle ground:

But blogging will no longer be a phenomenon. When people talk about it, they’ll often be referring to tools for putting up simple Web sites easily, or a certain style of Web publishing: brightly written, frequently updated and inviting reader conversation. That may feel a long way from the claims of blogging’s first heady days, but then that’s the way most such things turn out: Wikis aside, today’s Web looks very little like Tim Berners-Lee’s original idea for a kind of digital whiteboard. Blogging is easier, faster and more conversational than traditional Web publishing, but that doesn’t change the fact that relatively few people actually yearn to be publishers. Nor do they particularly care what category the things they read fit into, or what technological tools produced them. That may not sound like the stuff of revolution or VC riches, but it also doesn’t sound like a fad or a failure.

The author should have also looked at social network chat sites such as MySpace, Xanga, and Facebook. Members of the upcoming generation are living their lives online, and blogging is the way that many are communicating with each other. These sites are growing at a phenomenal rate. MySpace boasts 50 million users.

Hat tip: Bashman