Author: Jason Mazzone


Constitutional Law as Computer Science

Within universities there is a lot of talk about gender distribution in various academic specialties. It is well known, for example, that there are many more men in the field of computer science than there are women. Indeed, the gender gap appears to be widening. I wonder about legal specialties? Which fields have the largest gender gaps? It would be interesting to know the figures in legal practice as well as among law professors. It would also be interesting to know the numbers with respect to the most prominent people in particular fields.

In my own field, Constitutional Law, my impression, is that among the most prominent scholars there are far more men than women. (Here is an exercise: write down the ten best-known Constitutional Law professors: how many are women? And another exercise: how many prominent Constitutional Law professors who are women can you name?) There seem to be more men than women on panels at high-level conferences. Men seem to be quoted more often in national newspapers. More men seem to publish books with prestigious university presses than do women. And so on.

Some will say that women are not invited to appear on panels (and excluded from other opportunities as well) and that’s why the men are prominent. My impression, though, is that conference organizers at least try very hard to invite women as panelists. Women who have achieved a measure of prominence in the field are in high demand at events and often have to say no to many opportunities. Others will say that women do not get hired to teach in Constitutional Law in the same numbers as men. Again, though, my impression is that many schools aggressively try to find promising women candidates. If my impression about the gender distribution is right, the causes of the distribution would require research.

How about other fields of legal academia? Where are the largest gender gaps likely to be found? And what are some hypotheses about their causes? One might also look at sub-specialties within fields. (Do women work more on Equal Protection issues than on federalism questions?) It seems to me that somebody with some good statistical skills could generate a a study gender distribution in law and seek to test some hypotheses about its causes. Such a study would contribute to the existing literature done in other academic disciplines.

Finally, I should say that whether gender clustering in law (or other fields) is bad, good, or neither is a separate issue. People will formulate different views on that issue once the evidence is in.


Mid-terms and more?

This is the time of the year when 1Ls have received their first set of law school grades and are asking what went right, what went wrong, and what they can do differently the next time around. These conversations inevitably raise the point that the final exam counts for the entire grade for the course. Many students who do poorly consider this unfair: they do all the work during the semester but none of that is rewarded if they have an off-day when the exam is given. In thinking recently about this issue, I have been asking upper-level students whether they would preferred as 1Ls to have had mid-terms and a series of other graded assignments during the semester so that less depended upon the final exam. Under the model I suggested to them, the professor would give back the graded assignment so students would know how they were doing during the semester. Many of these students have taken seminars and other upper-level courses in which there is component grading. The feedback I have received from upper-level students has surprised me.

Upper-level students tell me to stick with final exam as final grade model. This is as true of students who did very well as of students who did poorly during their first year. These students tell me that component grading would have been much more work for them because they would have had to prepare for every graded assignment. (More work for professors, too, of course.) In addition, they say, component grading would increase the level of stress during the first year. Their reasoning is that students would be worried about every assignment; that getting a bad grade on a mid-term or other assignment would make them panic; and that it is less stressful to get a grade after the course has ended (and, in the spring semester, after everyone has headed off for the summer). Even if they would have done better under a component grading system, the costs, they say, are not worth the grade bump.


Red Herring

Writing in the New York Times, Adam Liptak casts the Supreme Court’s recent decision in Herring v. United States as a big step towards repealing the exclusionary rule the Court crafted in 1961 in Mapp v. Ohio. Liptak emphasizes that Chief Justice Roberts, the author of the majority opinion in Herring, had advocated doing away with the exclusionary rule while he served as a government lawyer under President Reagan. In predicting where the Court is headed, Liptak places greater stock in memos Roberts wrote as a government lawyer than I would. I doubt the Court is likely to overrule Mapp any time soon.

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One president at a time, thanks.

Why is Michelle Obama giving a speech on CNN today? She wasn’t elected President and she has not been appointed to any position that entails making speeches. In this instance, Ms. Obama spoke about education, during a trip (purportedly) to thank employees at the Department of Education for their service.

Here is what the AP reports:

“So many of you have been here struggling and pushing for decades and Barack and I want to say ‘thank you’ for what you’ve done and ‘thank you’ for what you will continue to do,” she told 350 employees who filled a department auditorium to capacity. “But we also know that there are new faces coming into this work and we want to welcome you and thank you for the hard work that you’re going to put in.” Mrs. Obama said the department will “be at the forefront of many of the things that we have to do in this administration” before she ticked off such agenda items as renovating and modernizing schools, increasing Pell Grants and providing tuition tax credits to college students.

Who is the “we” who will be doing “things” in “this administration”? Ms. Obama is not, thus far, part of the current administration. If the President wants to make her part of it, there are appointment procedures that need to be followed.

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Audit them all

Tom Daschle, former Senator and nominee for Secretary of Health and Human Services, didn’t fully pay his taxes. Apparently, Daschle didn’t tell his accountant about a free car service (worth a whopping $250,000) and consulting income (another $88,000) over a three year period. Tax laws are complex and so perhaps Daschle didn’t realize at the time that these things constituted taxable income. Regardless, the perception Daschle leaves is that powerful people don’t pay everything they owe.

In the world of tax compliance, perceptions matter a good deal.

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I recently bought a country house. Having an empty house leads immediately to many trips to buy all of the things a house needs to become a home. In making these trips, I learned two things.

First: stuff is really cheap. You can buy a coffee maker, a toaster, and a blender for $15 a piece. $20 gets you cutlery for six. Sales at Pier One offer up good quality dishes for a buck. A stop at the dollar store yields giant bags of cleaning supplies, kitchen gadgets, a hammer and a set of screwdrivers, plastic storage containers, and curtains: $40 total. A mere $49 gets a vacuum cleaner. Home Depot has nice rugs for $99. Bath towels are $3.99 at Target (I bought a dozen).

The second thing I learned in filling my house up with all these products is that the hardest part is accessing them once you get them home. Packaging is out of control. Virtually every household good is embalmed in cardboard, plastic, Styrofoam, metal, tape, and glue.

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Who’s Your Daddy?

The New York Court of Appeals has held that:

[A] man who has mistakenly represented himself as a child’s father may be estopped from denying paternity, and made to pay child support, when the child justifiably relied on the man’s representation of paternity, to the child’s detriment. We reach this conclusion based on the best interests of the child as set forth by the Legislature.


The case is Matter of Shondel J. v. Mark D.

The opinion indicates that under New York law the doctrine of estoppel in paternity matters focuses on the child and as such is gender neutral. The court demonstrated this neutrality by citing to a case where a wife was not allowed to challenge paternity when she had treated and accepted the husband as the father for two and half years before challenging his paternity and “permitted her husband and child to form strong ties together.”

The court also noted that when a man “acquiesced in the establishment of a strong parent-child bond between the child and another man” he would be precluded from asserting paternity because “the child would be harmed by a determination that someone else is the biological father.”

This case reminded me of Jared Diamond’s, The Third Chimpanzee. In that book he noted that one study indicated that 10% of babies in the study were not biologically related to the legal father. One blog has dug into the mistaken paternity numbers issue and lists several studies before concluding that the rate may be closer to 2-4%.

By the way one study seems to show that when a father is pretty certain about paternity the rate of finding non-paternity is low (median 1.7%) but when the father has questions about paternity the rate is high (median 29.8%). The full paper is How well does paternity confidence match actual paternity? Evidence from worldwide nonpaternity rates by Kermyt G. Anderson.

Which bring us to the dissent in the case. Judge Smith argues forcefully that the evidence shows that the mother lied and committed fraud (she swore she did not have sexual relations with any other man) and that the ostensible father did not commit a fraud of any sort and as such should not be subject to the doctrine. The argument denies the majority’s position that the child is the one upon whom the fraud is committed.

The majority opinion countered the dissent by putting the problem this way:

Given the statute recognizing paternity by estoppel, a man who harbors doubts about his biological paternity of a child has a choice to make. He may either put the doubts aside and initiate a parental relationship with the child, or insist on a scientific test of paternity before initiating a parental relationship. A possible result of the first option is paternity by estoppel; the other course creates the risk of damage to the relationship with the woman. It is not an easy choice, but at times, the law intersects with the province of personal relationships and some strain is inevitable. This should not be allowed to distract the Family Court from its principal purpose in paternity and support proceedings — to serve the best interests of the child.

Thus it seems that if someone is in that high doubt range that Anderson documents, he should ask for a paternity test and risk his relationship with his wife.

I do not claim to have an answer here. I am merely teeing this one up to see what comments if any can enlighten me on the issue of when paternity should be found despite a lack of biological connection between the father and child.


James Joyce & Fair Use

Represented by Larry Lessig, Carol Loeb Shloss, an English professor at Stanford University, has filed a law suit in the U.S. District Court for the Northern District of California, against the Irish estate of James Joyce.

The lawsuit alleges that the estate has improperly interfered with the professor’s efforts to reproduce, consistent with the provision of “fair use” under copyright law, portions of Joyce’s writings. The estate reportedly has a long history of telling scholars and others that they cannot reproduce anything Joyce wrote without the estate’s permission. The professor seeks a declaratory judgment that her reproductions constitute fair use and, further, that the estate has engaged in copyright misuse and therefore cannot enforce its copyrights against her. The complaint is available here. The New Yorker also recently published an account of the case.

My article, Copyfraud, published this month in the NYU Law Review, deals with the problem of publishers, archives, and estates leveraging copyright law to prevent legitimate forms of copying and makes some proposals for how Congress and the courts should respond to this problem, including by expanding the rarely used “copyright misuse” doctrine.

Though I’m all in favor of developing the law in this area, I’m not sure that this is the right case to do it.

Some judges are going to bristle at this lawsuit. The materials at issue are excerpts from Joyce’s writings that the professor’s own publisher told her to remove from her book. At Lessig’s suggestion, she decided to post those removed excerpts on a website and provocatively told the Joyce estate of this plan. Copyright misuse, like patent misuse, is normally a defense once you’ve been hauled into court and found guilty of infringement. Here, the professor has not even been sued by the Joyce estate for infringement. Granted, she fears a lawsuit (as did her publisher), but there is a good chance that the court will deny the motion for declaratory relief–not wanting to intervene until the professor is actually sued.

This is a case to watch.


Mary Cheney

Mary Cheney’s book, Now It’s My Turn, is a flop.

With just a few thousand copies sold, the publisher will never recoup the $1 million advance. One explanation for the poor sales figures is that Republicans don’t want to read about lesbians in their ranks. And vice-versa.

I buy a lot of books but in this case I was turned off by the title. It seems to me that it’s been the Cheneys turn for an awfully long time. Surely by now it’s somebody else’s.


The Pop-Up President

President Bush has made a surprise visit to Iraq this week. Even Iraqi Prime Minister, Nouri al-Maliki, had no idea he was coming. During the past few years the President and other members of his administration have with some frequency popped up in Iraq, Afghanistan, and other places unannounced. Is this normal behavior for a President? Anybody know whether prior Presidents regularly surprised us and their hosts with unannounced trips abroad?