Author: Sarah Waldeck


Attention All Flatlanders, Fudgies, and Other-State Equivalents II

Now for some seasonally-appropriate scholarship:

A while back, I asked readers who were involved with family cottages (or summer homes or cabins or whatever you want to call them) to tell me their stories. I was curious about how many generations the property had been in your family; how you handled carrying costs, improvements, scheduling and use; whether your property was governed by a tenancy in common or other legal arrangement; and whether that arrangement was rocky or smooth.   Some first-rate sociology had already been done in this area, but I was curious enough to want to supplement with some casual empiricism.

I recently posted the article that grew out of these inquiries on SSRN.  Forthcoming in the Notre Dame Law Review, the article discusses how “identity property” is passed along from one generation to the next.  Identity property is that which is valued for what it represents about self and family—a sort of ratcheted-down version of Margaret Radin’s “personhood property.”  In the absence of more sophisticated estate planning, identity property is often inherited by the decedent’s children, who take as tenants in common.   Standard doctrine relies on familial bonds and the unilateral right of partition to mitigate bilateral monopoly problems and to foster cooperation in the management of the children’s common resource.  I argue that with identity property, this standard account is often wrong.  Because courts favor partition by sale, the exit of one tenant often means that the remaining co-tenants will be forced to sell the identity property.  Because the remaining tenants perceive the property as non-fungible, the threat of exit can be powerful enough to exacerbate bilateral monopoly problems and decrease the likelihood of cooperation. 

The article makes use of some of the stories that readers of Concurring Opinions told about their family cottages to elucidate how devisees modify the default rules of a tenancy in common, particularly the right of partition.  What I found most interesting about these stories was how willing some individuals were to radically restrict their right of exit from the co-tenancy and the corresponding belief that a strong right of exit would ultimately work against their collective interest.  The Article ultimately argues that when it comes to identity property, the right of exit through partition should not be as absolute as current law allows. 

For those who are interested in learning more, the abstract and article are available here.

 p.s.  And for those of you who are gearing up for another season in property that is jointly owned with other relatives, rest assured that not one single person who responded to my request reported an entirely smooth arrangement!


Announcing the Loyola Second Annual Constitutional Law Colloquium

Just a quick note that the Loyola University Chicago School of Law has scheduled its Second Annual Constitutional Law Colloquium for October 21 & 22, 2011.  The conference is being organized by Professors John E. Nowak, Juan Perea, Alexander Tsesis and Michael Zimmer.  

 The goal of the conference is to allow professors to develop new ideas with the help of supportive colleagues on a wide range of constitutional law topics.  To this end, the conference is aimed at bringing together constitutional law scholars at all stages of their professional development to discuss current projects, doctrinal developments in constitutional law, and future goals.  The organizers are hoping to be able to schedule presentations for all who submit and will group participants by subject matter.   

Professors who are interested in participating should submit an abstract of  150 to 200 words by May 31, 2011.  

Topics, abstracts, papers, questions, and comments should be submitted to:

 Program Administrator Carrie Bird,

Participants are expected to pay their own travel expenses. Loyola will provide facilities, support, and continental breakfasts on Friday and Saturday, lunch on Friday and Saturday, and a dinner on Friday night.


More Data on Classroom Laptop Use

Jeff Sovern of St. John’s University School of Law recently conducted a research study that observed student laptop use in 60 sessions of various law school courses.  Although the study contains some methodological limitations (which Professor Sovern fully acknowledges), it is another window into how laptops affect classroom dynamics.  The full article can be found here and Professor Sovern’s abstract is reproduced below:

This article reports on how law students use laptops, based on observations of 1072 laptop users (though there was considerable overlap among those users from one class to another) during 60 sessions of six law school courses. There are many laptops on options to Students with various specs. We’d recommend teachers promote there students to use a 13.3 ultrabook as it is light and dynamic and will offer them all the features for their educational purposes. Some findings:

 •More than half the upper-year students seen using laptops employed them for non-class purposes more than half the time, raising serious questions about how much they learned from class. By contrast, first-semester Civil Procedure students used laptops for non-class purposes far less: only 4% used laptops for non-class purposes more than half the time while 44% were never distracted by laptops.

•Students in exam courses were more likely to tune out when classmates asked and professors responded to questions and less likely to tune out when a rule was discussed or textual material read in class.

 •For first-semester students, policy discussions generated the highest level of distraction while displaying a PowerPoint slide which was not later posted on the web elicited the lowest level.

 •With some exceptions, what was happening in the class did not affect whether upper-year students tuned out or paid attention.

• The format used to convey information – lecture, calling on students, or class discussion – seemed to make little difference to the level of attention.

 •Student attentiveness to the facts of cases is comparable to their overall attention levels.

The article speculates that student decisions on whether to pay attention are responses to the tension between incentives and temptation. While the temptation to tune out probably remains constant, ebbs and flows in incentives may cause students to resist or yield to that temptation. Because first-semester grades have more of an impact on job prospects, first-semester students have a greater incentive than upper-year students to attend to classes. Similarly, because students probably anticipate that rules are more likely to be tested on exams, students perceive that they have more of an incentive to pay attention when rules are discussed. Conversely, students may suspect that matters asked about by classmates are less likely to be tested on and so their grades are unlikely to be affected if they miss the question and answer, reducing the incentive to pay attention.

Because of methodological limits to the study, the article notes that its conclusions cannot be considered definitive, and so it urges others to conduct similar studies.


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. They each have their own laptop and each class has a laptop rack in to store and charge the laptops. Laptops are super easy to use!! If you are wanting to get a laptop for school, but are unable to afford one then you might want to check out something like these 17 schools giving out laptops to help you out a little bit.

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.