Author: Dan Filler


Introducing Guest Blogger Laura Appleman

06-089-005-appleman.jpgI’m very pleased to announce that Professor Laura Appleman, of Willamette University School of Law, will be doing a reprise visit with us this month. Laura teaches criminal law, criminal procedure and sentencing. She received her J.D. from Yale University, and both her B.A. and M.A. from the University of Pennsylvania. Before joining the Willamette faculty this year, she visited at Hofstra University from 2005-06. Prior to entering law teaching, Laura served for five years as an appellate public defender for the city of New York, where she argued approximately 50 appeals (and actually won three!). Laura also served as a law clerk for A. Wallace Tashima of the 9th Circuit Court of Appeals.

Her current research focuses on the role of punishment theory in recent sentencing reforms, the conflict between 6th Amendment rights and plea deals/bench trials, and, more generally, issues of legal ethics in criminal procedure. Laura serves on the Green Bag’s Board of Advisers for Almanac of Good Legal Writing and occasionally blogs about legal ethics at The Legal Ethics Forum.

Her recent writing includes:

* Retributive Justice and Hidden Sentencing , 68 Ohio St. L.J. __ (forthcoming 2007)

* Rediscovering Retribution: Punishment Theory After Blakely, Fed. Sent. Rep., Vol. 18, No. 4, pp. 247-249 (April 2006)

* Reports of Batson’s Death Have Been Greatly Exaggerated: How the Batson Doctrine Enforces a Normative Framework of Legal Ethics, 78 Temple L. Rev. 607 (2005)

* The Rise of the Modern American Law School: How Professionalization, German Scholarship and Legal Reform Shaped Our System of Legal Education, 39 New England L. Rev. 251 (2005)


Farewell, For Now

On January 16, 2006, I became a guest blogger here at Concurring Opinions. The temporary gig was a great deal of fun but when I was invited to join permanently, I wondered whether I would be able to generate content on a regular basis. The answer, it turned out, was yes and no. I’ve been a binge/purge blogger ever since, cycling between periods of prolific writing and radio silence. I’m sure I could find many explanations for this style, but one of them is the nature of my work life. Helping to start a new law school turns out to be quite time (and mind) consuming.

The good news is that Drexel University College of Law is entering its second year in great shape. We have a fabulous group of new faculty and a remarkably strong entering class. On the other hand, as our Dean Roger Dennis likes to say, we’re building the plane while we fly it. Much remains to be done – and everyone on the faculty is a part of that construction project. All of which is to say: it’s time for me to leave blogging, for now at least.

Concurring Opinions has been an entree to a wonderful community of writers and readers. My co-bloggers are a great bunch of lawprawfs. I’ve particularly appreciated the regular readers – including those critics who think that I’m part of a vast left-wing conspiracy. And I am going to miss wading into debates that are well over my head.

What’s next? Plenty of mundane stuff, I suspect. I’ll be busy with hiring again this year; Drexel will be actively recruiting the next wave of faculty. And then there’s scholarship and teaching. At the same time, I hope to begin imagining fresh ways of cultivating virtual conversation and community. So to make this ending point also a starting point, I’d love to hear what others see as the New New Thing.



Law School Faculty Lateral Moves, Final 2007 Edition

Better late (and, inevitably, incomplete) than never! Here is my final list of lateral law school hiring for the 2006-07 hiring season. Thanks to all the people who emailed me. Thanks also to Brian Leiter, Paul Caron, Paul Secunda, and Mary Dudziak, all of whom collected and posted portions of this data set.

I’m looking forward to the new hiring year!

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DOJ Attorney Slams His Own Shop

John S. Koppel, a civil attorney with the Department of Justice, lashed out at DOJ in a Denver Post editorial the other day. Both the content and the (relatively shrill) tenor of the piece are notable, given that Koppel is apparently still employed by Uncle Sam. In an piece titled “Bush DOJ is a National Disgrace”, he pens some juicy lines like:

In more than a quarter of a century at the DOJ, I have never before seen such consistent and marked disrespect on the part of the highest ranking government policymakers for both law and ethics. It is especially unheard of for U.S. attorneys to be targeted and removed on the basis of pressure and complaints from political figures dissatisfied with their handling of politically sensitive investigations and their unwillingness to “play ball.”…. Law enforcement is not supposed to be a political team sport, and prosecutorial independence and integrity are not “performance problems.”


[The Bush administration] has systematically undermined the rule of law in the name of fighting terrorism, and it has sought to insulate its actions from legislative or judicial scrutiny and accountability by invoking national security at every turn, engaging in persistent fearmongering, routinely impugning the integrity and/or patriotism of its critics, and protecting its own lawbreakers. This is neither normal government conduct nor “politics as usual,” but a national disgrace of a magnitude unseen since the days of Watergate – which, in fact, I believe it eclipses.

The news isn’t that attorneys at the DOJ have these political views – they are, after all, squarely in the mainstream – but that DOJ attorneys are at the point of uttering them very publicly. It is possible that Koppel is an outlier – a person with questionable judgment – or maybe he is trying to place himself in the spotlight so that he can win an offer from another shop. (One cannot understate the difficulty of lateral movement for a mid-career government attorney.) Still, it seems to me emblematic of both the challenges the Bush administration must face from within and, perhaps more importantly, the degree to which DOJ has lost control of its own operations. Perhaps Koppel will, as he fears, be punished. But more likely, based on the active blogging about this piece, he will become a 15 minute superstar whose fame innoculates him from retaliation. In any case, I supsect that there are hundreds (or thousands) of DOJ attorneys who are quietly applauding this piece. “Not sure I would have written that”, they’re whispering at dinner parties. “But he sure is right.”


The Raging Fox v. Hedgehog Debate

Eric Muller and Belle Lettre have been stirring the pot on the strategic question of how best to advance in academia. Should one be a fox (engaged in many ideas, fully immersed in few) or a hedgehog (diving deeply into one big thing.) Belle fears that she may be a a “dilettantish fox” and asks whether this is toxic for one’s career. Eric says that he started his career as a crim pro hedgehog, went vulpine with his interest in Japanese internment, and ultimately became a hedgehog on internment issues. And he thinks that the hedgehog approach is strategically best unless you have a really big brain (i.e., your name is Ian Ayers, Mitu Gulati, or Jerry Kang.)

These are hard and largely unanswerable questions, but here are some thoughts. First, I must self-identify as a fox. I do have a general area of interest – social anxiety about crime – but it’s a large landscape. I wrote about anxiety over Columbine. I wrote about Megan’s Law. I wrote about anxiety over terrorists as pedophiles. But I also wrote about The Starr Report. About lawyers in the Yellow Pages. And about juvenile specialty courts.

Were these good choices? Some good things came of them. I managed to get several pieces placed in well-branded law reviews. By selecting topics that were engaging for me, and the rest of the world, I was able to create articles that 24 year old editors would enjoy reading. I also managed to have fun with scholarship. I am a dilettante in my day to day anyway; how great to be able to translate that into publications. (Well, let’s be fair here…writing is a beast for me. But the process of thinking about these matters was great.)

But there are downsides to foxhood. First, foxes find it tougher to join a community of scholars. At meetings, and all year long, academic hedgehogs connect over shared issues and interests. They invite each other to give talks and join panels. They share each others’ names when law schools seek potential lateral hires. Foxes often exist on the edges of hedgehog communities but the hedgehogs rarely think of foxes as true experts. And this is the second problem: foxes may in fact be less expert than hedgehogs. The immediate cost of this is that the scholar’s institution (and the world, gosh darnit!) never get the benefit of this additional quantum of knowledge. A secondary effect of this reduced expertise also relates to lateral movement potential: in many cases, better scholars have more opportunities to move. But this is a complicated claim. The truth is that social connections and article placement are absolutely critical predictors of success in the lateral market. Sociable foxes with strong (if not brilliant) scholarship and/or nice placements can move. Yet because many excellent articles never find a marque placement, many hedgehogs are unable to move…despite their expertise.

There is no right answer to this debate. If your school demands that you become a leader in some particular sub-field, you’re probably best playing the hedgehog. But if you’re at one of the 150 law schools that are primarily concerned about productivity (teamed with reasonable quality), the choice is up to you. And simply having that choice is one of the great pleasures of academia.


Will There Be A Pill Panic?

CNN is reporting that “pills are becoming the new marijuana“. This follows on the heels of Al Gore Jr.’s arrest for improper possession of prescription drugs. My question is whether this will trigger a moral panic – a surge of public anxiety exceeding the real extent ot the social problem. (I’ve blogged previously about social panics here and here. I’ve written at greater length about moral panics here.) Will we begin to see a surge of stories documenting this “growing crisis”? We’ve seen as much with crack and methamphetamine, and there’s a long tradition of such panics over marijuana, opium, and other drugs, to say nothing of the ongoing panic over child abduction and sexual abuse. But there’s one big difference between prescription pills and all other types drugs: the pharmaceutical industry has high quality public relations management and easy media access. And many content providers – the very businesses that like to spread fear and anxiety – depend on Big Pharma advertising for substantial revenue.

I suspect that the PR staff of many of these big pharmaceutical companies (to say nothing of industry trade groups) are on high alert, watching this potential pill panic closely. And I have faith that they’ll manage this moment reasonably well. Remember that Oxycontin panic of a couple years back? Not so much anymore.


The Criminal Law (Like All Information) Wants To Be Free

In the last couple of days, the Pennsylvania House passed legislation making the state’s statutes freely available over the Web. Remarkably, Pennsylvania will be the last state to provide this free and easy access.

It’s hard to believe that only a few years ago, it was actually quite difficult to find state and federal statutes. Sure, they were available in selected public libraries, as well as all law libraries. But law libraries can be a bear to access: in some states, one would have to travel miles to find a law library. And many of these libraries limit public use in one way or another.

When we discuss punishment theory in criminal law, I like to noodle with students about whether, and how, prospective criminals come to learn the law. After all, most theories assume that a defendant has advance notice about what is expected of him and the consequences of lawbreaking. Deterrence theories – essentially, economic punishment models that suggest that higher sentences reduce crime by scaring off potential offenders – all assume that these miscreants can accurately predict their punishment. Putting aside the question of whether offenders act rationally – a serious question for individuals who are working under intense emotion, or the influence of drugs and alcohol – does anyone really know what a second degree burglary is “worth”? Surely there is information flow on the street, but it is far from the perfection assumed in economic modeling.

Obviously, making laws more obvious is much simpler than making potential sentences clear. But the fact that we’re only now completing the task of distributing the easily reproducible information – the statutes themselves – tells you just how much further we’d have to go to provide the information flow needed for criminal sanctions to be even halfway efficient as a deterrent. As Dave suggested a while back (echoing Stefananos Bibas), criminal information markets anyone?


Bush Commutes Libby’s Sentence

The President commuted Scooter Libby’s sentence today, eliminating the prison term but leaving the non-incarcerative sanctions in place. There is no surprise here but it does bring up at least two interesting issues. The first is the way in which Judge Reggie Walton was pivotal in forcing Bush’s hand. Once Judge Walton decided to impose the prison sentence immediately, Bush was left only two options: infuriating his base or nakedly giving cover to a political and professional ally. He did manage to split the baby a bit – by commuting his sentence, rather than pardoning him, Libby will now have to live with at least a few of the nasty collateral sanctions (potential loss of voting rights, loss of the ability to obtain certain professional licenses, etc.) that come along with a felony criminal conviction.

The second interesting issue is that this maneuver shows how the executive can manipulate sentences. I don’t know federal law, but I wonder whether Bush could have ordered imposition of a different, lesser prison term. Could he have altered the length (to say nothing of terms) of probation? Could he have put Libby on house arrest for eight months? And what if Libby gets caught driving drunk next month. Can he be sent to the pokey for a probation violation? Given that Bush respects the jury’s verdict, why exactly is probation, rather than 30 months, or 20 months, or 6 months, appropriate?

Sometimes a President has to spend some political capital for a friend. He did so today – a bit sooner than he might have liked.

UPDATE: Doug Berman has a flock of good posts here, here, and here. Orin Kerr adds good commentary here . And Ellen Podgor has some thoughts and questions here. Then there is P.S. Ruckman, Jr., who has dedicated an entire blog to the (partially realized) prospect of a pardon for Libby. It’s at


The Department of Ill-Advised Job Titles

UC Berkeley’s Boalt Hall School of Law has just announced the creation of a Lethal Injection Fellowship. I applaud the institutional commitment to this work – the fellow will create and manage a clearinghouse of information regarding lethal injection challenges – but the title is a bit ghoulish.

Or perhaps the discomforting title was strategic. It will certainly create some unusual interview chat as fellows go off to find their first post-fellowship position.

UPDATE: A spelling error has been corrected.