Category: General Law

9

Quantifying the Effect of Good Teaching

law1950.jpgWhy should law professors invest in being better teachers? Different professors would give you (no doubt) different answers. Similarly, the question of why we write has been asked, and answered, in a variety of ways.

I bet that for some law professors, the answer to the write/teach question is the same: they want to sell ideas to an audience and thereby change the world in some way. The transmission of law memes has historically been seen differently in scholarship and in teaching, however. Teaching is said to impart doctrine (the black letter law), and (to a greater extent) the method of legal practice. That is, law teachers help students to “think like a lawyer.” By contrast, scholarship is said to influence the world by changing theoretical perspectives. (Check out lists and criteria of “important” law review articles here and here.) A basic conclusion: important scholarship moves doctrine (i.e., judge’s minds). Important teaching moves hearts.

Since most scholarship isn’t read, and since most read scholarship isn’t read by judges, this view of the relative unimportance of teaching to doctrinal development feels off. But I wonder: has anyone tested the hypothesis empirically? A quick look on WL found no studies – but it might be there. Basically, the idea would be to look to the natural experiment of multiple scholars with different views teaching thousands of law students over the last century. Some of those thousands of students became judges. Some of those judges wrote opinions about topics discussed in the law school classroom. It would be interesting to know if there is any statistically significant relationship between being taught the law is X (or the way to approach the problem is Y) and writing an opinion holding X, or using method Y. To give a concrete example, do judges who were once students in Larry Tribe’s con law class produce similar opinions about the commerce clause as those who were once students of Charles Fried?

Obviously, coding and controlling the data would be tricky. You’d ideally want to look at the first-year subjects only, to avoid the selection biases that the Fried/Tribe example raises. You’d also want to find scholars who taught together at an institution, but who differed sharply on a easily codable area of law. Ideas include: the scope of the parol evidence rule; the enforceability of adhesion contracts; the usefulness of enterprise liability; the proper test for insanity in the criminal law; or even an Erie controversy. Finally, you’d want folks who entered teaching some time before, say, 15 years ago, so that you could have a significant enough crop of resulting judges.

Let’s pretend this project is possible and non-preempted. Do folks have ideas for professor pairs?

3

The New Orleans – Iraq Election Metaphor

Bill Quigley, a law prof from Loyola (New Orleans) who stayed in the city during the Katrina nightmare, and continues his activism today, posted one of his passionate analyses of the New Orleans situation over at Alexander Cockburn’s Counterpunch. I don’t want to get into the details of his piece – read it and agree or disagree. But I was intrigued by one point he made about long-distance voting in New Orleans. He wrote:

The state refusal to set up satellite voting for those displaced outside the state resulted in exactly the disenfranchisement predicted. While Iraqis who had not lived in Iraq in years were helped to vote in the US by our government, people forced out of state by Katrina for seven months were not allowed to vote where they are temporarily living.

Of course, whip-smart lawyers will be able to distinguish these two cases on multiple bases. New Orleans residents weren’t forced out by a dictator. It’s a lot easier to go back to New Orleans for a day. And although there was no effort by the relevant authorities to allow remote voting in Houston, and the many other out-of-state homes of these displaced residents, they could have voted absentee. But it struck me that the metaphor remains powerful. Given that we have accepted, as a nation, that displaced people ought to be helped to make sure they have a voice in democracy, shouldn’t the federal government have made a serious effort to promote or authorize remote voting in a place like Houston? Is absentee voting really sufficient access, particularly when the roles of displaced voters were – contrary to normal procedure – not made public? Like Iraqis, the future of those displaced citizens – and their ability to return – will be shaped by the new leaders. Is the task of re-enfranchising these citizens appropriately left to the state, particularly when so many of these folks don’t currently live in Louisiana? Is Iraq the right metaphor?

0

Trial by Stealth

This month’s ABA Journal Report has an amusing article regarding the growing problem of so-called “stealth jurors” — jurors who “lie on questionnaires and during voir dire to land seats on high-profile cases for bragging rights.” A jury consultant quoted in the article estimates that roughly 15 to 18 percent of today’s jurors view jury service not as a civic responsibility, but as “a way to comment on or influence the outcomes of trials.”

I thought these concerns might be a bit overblown, until post-exam-writing insomnia had me up at 3 a.m. last night doing an Amazon search on the subject. Turns out that someone has written a book entitled, appropriately enough, “Stealth Juror: The Ultimate Defense Against Bad Laws and Government Tyranny.” According to the author, “A stealth juror is an ordinary citizen serving on a jury who understands and is not afraid to exercise his right to judge not only the evidence in a case but the very law upon which the prosecution is based. If the law is bad or unfair, he secretly works to acquit any defendant being persecuted for a nonviolent, victimless crime. He must remain undercover because he represents a direct threat to the power of judges and prosecutors. He is the last champion of justice in the American courtroom.” The book promises to teach its readers “exactly how to become a stealth juror, including how to get yourself seated on a jury where you can do the most good for just causes (from preserving gun rights to opposing the War on Drugs), recognize and avoid the games that lawyers and judges use to manipulate the outcome of a case, secretly win over your fellow jurors in the deliberation room and much more.”

Hmm … I’m not sure this is exactly what Henry Fonda had in mind.

The ABA article points out that the “stealth juror” problem is exacerbated by the way in which voir dire is typically conducted: Potential jurors who might be biased against a particular defendant, for example, may be reluctant to speak up about their prejudices in an open courtroom, with tens or even hundreds of spectators watching.

Of course, sometimes the biases revealed during voir dire cut the other way. My father, a federal judge for twenty years in Arkansas, once conducted a criminal trial of a county judge who had been accused of buying up votes to win his election. At the beginning of voir dire, the judge informed the potential jurors of the charges against the defendant. A woman in the back row immediately stood up, hands on hips and full of indignation, and said, “Well, I guess you don’t want me, then. My husband and I always sell our votes. We get three dollars a piece for ‘em – five if it’s a close race.” The judge, without missing a beat, replied, “No ma’am, I don’t think we’ll be needing you today. Thank you for your service to the community.”

But those were 1980s dollars – I’m sure the price of a vote in Arkansas has gone up considerably since then.

7

Making an Impact as a Law Journal Editor

How can student editors efficiently improve their journal’s reputation? The problem is a hard one, as standard measures of journal rank (see here and click on 2005 Rank, JNLS tab) are correlated with overall school US News ranking, itself a sticky number. However, the Washington and Lee ranking methodology offers other options, including the increasingly popular IMPACT and IMMEDIACY variables. In this entry, I’m going to explore some ways that journal editors might be able to increase their scores on these factors, and (in a virtuous cycle) the number and quality of submissions. In no way should this post be seen as an endorsement of the current system. Indeed, Joseph Slater’s recent critique is quite interesting. This is more of a user’s guide to the devil we’ve got.

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0

Guggenheim Geography

brooklynsmall.jpgThe John Simon Guggenheim Memorial Foundation lists its 2006 U.S. and Canadian fellows in today’s New York Times. (They’re also available here.) The Foundation offers fellowships to individuals in the creative arts, humanities, social science, and natural sciences. In the Times, each winner is listed by area of interest, name and home town. I was most interested in the geography.

In the fields where an academic affiliation is almost a necessity – everything other than creative arts, that is – fellows are scattered very narrowly around the country. (A few live in Canda and other countries.) For example, 56 individuals won fellowships in the humanities. Twenty-four of the 56 come from just four states: New York, California, Massachusetts, and Illinois. Only five come from southern states – three from North Carolina’s Research Triangle. Eleven of the 20 social science winners come from those four northern states, thirteen if you add in Michigan. Two come from the south, including one from the Triange. And in natural sciences, 16 of the 26 come those four states, 18 if you include Michigan. Not a single natural science winner is a southerner.

The creative arts fellows may not have as much connection to these top universities, but to a slightly lesser degree they too are clustered in a few northern states. Of the 85 winners, 35 come from New York, 13 from California, and five from Massachusetts. Six come from southern states. In a notable artifact of our generation’s geo-cultural shift, Brooklyn is home to nine of the creative arts winners.

This data can be interpreted many ways. First, it’s possible that this year is simply atypical. Or perhaps the most talented people really are clustered in a small number of areas. This isn’t improbable, given that the very best universities are located in many of these home towns. If we assume Harvard is doing its job, it ought to be hiring away superstars from Mizzou and the like. And particularly in the creative arts category, I would expect artists to locate in communities where they can find many others to share their commitment to art. (Thus, it is easy for imagine an artist from Birmingham choosing to move to a city with a more robust arts community.) Alternatively, maybe news of the fellowship has not spread across the country. Perhaps Guggenheim fellowships are just better known in New York than Lubbock or Fayetteville, and the applicant pool reflects this skew. Finally, it could be that the selection committee has a bias towards people from particular towns and schools.

All I know is that 15 years ago, I decided to move to Brooklyn. Although I left a few years later, I’m feeling quite smug at my cultural prescience.

12

SLUSA, SCOTUS, and Unintended Consequences

Yesterday’s unanimous securities opinion in Merrill Lynch v. Dabit was unsurprising, but somewhat interesting. [More here on the same topic from Ribstein.] Some background. In 1975, the Court (in Blue Chip Stamps v. Manor Drugs [BCS],) held that private parties lack standing under the ’33 and ’34 Securities Acts to bring causes of action for fraud that fails to result in either the purchase or sale of securities. The Court reasoned that the statutory hook, “in connection with purchase or sale,” should not be read to mean merely holding on to securities. Chief Justice Rehnquist’s opinion evinced considerable fear of encouraging “vexatious litigation”: his decision explicitly rested on prudential concerns.

In Merrill Lynch, the Court considered this same “in connection with language” in a different statute, the Securities Litigation Uniform Standards Act of 1998 (SLUSA). SLUSA was passed (according to the Court) to deal with the “unintended consequence” of the allegedly onerous Private Securities Litigation Reform Act of 1995: forum shopping by the class action securities bar.* SLUSA, in relevant part, thus preempted state class actions “by any private party alleging [fraud…] in connection with the purchase or sale of a covered security…”].

The Second Circuit below had reasoned that Congress must have intended this “in connection with” requirement as a gloss on BCS. Thus, it held that state securities class actions that remained in the space left open by BCS survived SLUSA as well.

Not so fast, said Justice Stevens. Because BCS was just a standing decision, not flowing from the “text of Rule 10b-5,” and because more recent decisions found liability in the absence of purchase or sale, and because the SEC has long advanced this broad interpretation of the “in connection with” requirement, Justice Stevens held that SLUSA preempts even state court class actions that couldn’t be brought in federal court.

Why is this interesting? For at least three reasons.

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0

How to Sue: A Primer from North Country

Some people go see courtroom movies for entertainment purposes, I go for litigation tips. Which is why I could recently be found at North Country, a flick just shown at my educational institution in serendipitous tandem with the Oscars.

I learned a lot watching North Country, not least because of a particularly bold trial strategy choice made by the defendant mining company in the climactic courtroom scene. By discussing it, I warn you, I’ll be revealing the “surprise” of the movie.

To me, the big surprise was the company’s approach. Not everyone would try to discredit a plaintiff by putting on evidence that said plaintiff was both violently and statutorily raped in high school by one of her teachers. For one thing, this fifteen years prior event might not seem that relevant to whether the plaintiff had to put up with a culture and an environment of sexual harassment at work, or was a credible witness. For another, putting on this evidence might generate sympathy for the plaintiff.

But the defendant company definitely had a lot of resources at its disposal, and certainly a very well-dressed lawyer, so I assume that it knew what it was doing. It was, however, hard to keep track with all of the speeches that the lawyers were making during this scene – including the one by plaintiffs’ counsel accusing a witness of being likely to pee on the ice at a skating rink. The judge was keeping control with rulings along the lines of: “it’s unconventional, counsel, but I’ll allow it,” which was understandable, since when he would sustain objections counsel tended to just keep talking anyway.

The best thing about this climactic courtroom scene, though, is that it wasn’t before a jury. It was a Rule 23(c) class certification hearing, definitely the most exciting class certification hearing I’ve ever seen or heard of. I bet, in fact, there’s never been a class certification hearing quite like it.

1

A Sick Feeling In My Stomach

This morning I was poking around, trying to discover what recent web searches had brought readers to our site. I noticed someone had visited my earlier post, Execution By Overdose, so I tried to discover what had directed them to Co-Op. It turned out that the reader had been searching Google for “overdose painless.” Discovering this inquiry made me instantly anxious and sick. Of course, I have no idea what motivated the reader. Maybe he or she was also troubled by the implications of state administered overdoses. But, like many others, I have lost people close to me to self-inflicted wounds. If our reader was seeking such an exit, I hope he or she will think long and hard about the choice. An overdose, I’m afraid, is never truly painless.

1

The Futures Market and the Enron Trial

The Business Law blog has a short post today on the futures market and the Enron trial. (Shorter: the market thinks the defendants are in deep trouble.) The post, a mere two paragraphs, is worth reading, not least because it notes that Skilling’s lawyers have protested that it is “crass to ‘trade on human life.'”

This quote reminds me of a statement in a brief by the State of Mississippi about (my former) professor Kip Viscusi’s use of cost-benefit analysis in estimating health costs saved by early smoking-related deaths: such calculations were said to be “utterly repugnant to a civilized society.”

Appeals to such moral heuristics are pretty common, but it sure was suprising to see them deployed by the defense team!

5

Blogging and IRB Approval

Do professors need IRB approval to blog?

Institutional Review Board (“IRB”) pre-approval is required for projects when members of institutions receiving federal funding conduct research intervening with or identifying the private information of human subjects. “Research” means “a systematic investigation, including research development, testing and evaluation, designed to develop or contribute to generalizable knowledge.” “Human subject” means “a living individual about whom an investigator (whether professional or student) conducting research obtains. “Intervention” “includes communication or interpersonal contact between investigator and subject.” “Private information” is “information about behavior that occurs in a context in which an individual can reasonably expect that no observation or recording is taking place . . . . Private information must be individually identifiable (i.e., the identity of the subject is or may readily be ascertained by the investigator or associated with the information) in order for obtaining the information to constitute research involving human subjects.”

Whew. So, in thinking about this definition, I think the answer is “maybe,” but I’m really interested in getting feedback from readers who have much more experience with their IRB board.

Start with the obvious. Were I to be planning to publish a paper, in a law review or otherwise, about my blogging experience, I think I’d probably want to get IRB approval, because part of that experience involves provoking and responding to comments from our readers. Although some might quibble that we’re dealing with texts not people, the better reading of the regulation would seem to be that the nub of what I’d be writing about would be my experiences with other human beings. Some of that project might involve “outing” anonymous visitors/commentators. I think that it is at least arguable that visitors to this site “reasonably expect” that no observation of their “individually identifiable” characteristics is being made – although that “reasonable expectation” in my view is not accurate.

How about a little harder question. Should papers about blogging in general, without a focus on a given Prof’s experience (e.g., an “applied” version of Larry Ribstein’s L&E of blogging paper) require IRB approval? Some seem to think so. Thus, before I start the data-collection part of a planned paper about commodification and the process of bringing legal opinions online, I might need to submit an application to the board so that I can talk to folks like Howard, etc.

Now for the real trick. Is blogging itself “research” under the relevant regulations? As far as I can tell, no one has actually done this, and being a believer in the power of large groups of people to be right, I tend to think that the answer must be no. And for most of us, that answer makes sense. I don’t consider this blog to be my scholarship. But there are some folks out there who disagree. I wonder if obtaining institutional “scholarship” credit for blogging would preclude a researcher from claiming that blogging isn’t “research” from an IRB perspective?

Other views on this topic:

1. An interesting listserve exchange.

2. The Association of Internet Research’s long PDF on the ethical implications of research on blogging.