Category: Sociology of Law


Law School Admissions Standards As Law

Harvard’s decision to end its early admission program was the big story early week. As President Bok explained, the university worried about the social consequences of its admissions process:

“Students from more sophisticated backgrounds and affluent high schools often apply early to increase their chances of admission, while minority students and students from rural areas, other countries, and high schools with fewer resources miss out . . . . Others who apply early and gain admission to the college of their choice have less reason to work hard at their studies during their final year of high school.”

Harvard’s decision got me to thinking about the relationship between admissions standards at high-prestige universities and legal rules.

Both legal rules and admissions standards are conduct shaping regulations. When you set admissions standards to select for trait behavior X, the prevalence of X in the applicant universe will increase. Such an increase will not be uniform, for the reasons that Bok gives, and there will be further distortions depending on individual (or mass) psychology. But there are reasons to believe that law school admissions address a particularly sophisticated and resource-rich audience, who are well suited to governance. Thus, law school admissions are ripe for evaluation as a form of law itself.

I thought about this after talking with a friend last night who told me about business schools’ strong emphasis on community service as a part of the application of a well-rounded applicant. This probably creates a class of business school students who are more likely to be civic-minded after graduation. But it also (and more simply) results in a great deal of public service by pre-MBA types in the world. The question is: why don’t law schools use the application process to improve the world too?

You might object: “this is paternalistic social engineering.” Yes, yes it is. But law schools, like HLS, already require onerous mandatory pro bono commitments during school. The problem with such programs is that the incentives are all wrong – toward clock management instead of results. But if you made pro bono service an important part of the admissions decision, and suggested that particularly effective public service would be highly weighted, then you’d set folks incentives well to achieve good. Elite schools might collude to create a list of potential law-related public work that candidates would be “well-advised” to perform in order to increase their chances of admission: volunteering for a public interest firm or tax law clinic; working for the PD or DA as a part-time investigator; assisting social security ALJs as a paralegal, etc.

To be clear, I don’t mean to say that admissions committees aren’t already considering public service. Surely, they are. But they aren’t communicating the idea that public service counts in a meaningful way. Check out HLS’ admissions FAQ, and note the silence on this point. The silence is shared by other top schools. The point is that law faculties (at least those I’ve seen) have traditionally seen the admissions committee as wearing a judicial, rather than legislative, hat. As a result, faculty might tend to think of admissions as a necessary chore accomplished by the folks who run the operations side of the school, instead of an extension of the pedagogical mission. [Update: Even the affirmative action debate, which is a policy choice effectuated through admissions, isn’t intended to shape the conduct of pre-law students.] Perhaps its time to rethink that model.


Turn Off Your Cellphone or Go To Jail?

cellphone.jpgIs this legal?

An Indiana state court judge held three spectators in contempt (and restrained them for “more than an hour”) after they allegedly refused to admit whose cellphone was ringing. Two spectators later admitted their malfeasance: one was fined $100, the other forced to serve 40 hours of community service. And a third spectator is to serve 40 hours for not telling the judge that he knew whose phone was ringing!

I hope there is more to the story than this. Because if there isn’t, this seems like a fairly tough, verging on punitive, remedy, especially for the spectator whose only contempt was not disclosing that he knew that another spectator’s phone had rung. Punitive contempt proceedings require more than summary justice.

This should also serve as a reminder to incoming first-year students. Turn your phones off. Professors, who may conceive of the classroom as a mini-courtroom, will certainly become annoyed if a phone rings during class. For what it is worth, my remedy is to call on the owner of a ringing phone, and continue to dialogue with them for the duration of class. My contracts class this fall lasts two hours. I imagine it won’t happen twice.


Does familiarity breed contempt?

I have been reading some interesting articles on the factors that contribute to a court’s or judge’s reversal rate. Because I live in, and litigate cases in, Washington, D.C., where the federal district and circuit court judges occupy the same building, I began to wonder whether there is any correlation between sharing a courthouse and the frequency with which the appellate court reverses the district court. Similarly, I would be interested to know whether workplace proximity affects the frequency with which the appellate court orders a district court judge to recuse him or herself from sitting on a case. The articles I have found do not address this question.

The federal courthouse in D.C. provides district and circuit court judges with lots of opportunity to interact in the elevators, cafeteria, parking lot, gym, and at various courthouse functions (for example, at the annual chili cook off organized by Judge Sentelle, or at the holiday caroling hosted by Judge Henderson). Would these sorts of frequent, casual social interactions change the way the appellate judges review their district court colleagues? I could see it cutting either way. On the one hand, the appellate judges might give a little more deference to that district court judge who seems friendly, sensible, smart, and always remembers to ask after the kids when they run into each other in the hallways. On the other hand, the water-cooler familiarity might lead appellate judges to view some of their lower court counterparts as less reliable and trustworthy than others. Although I doubt workplace proximity is a major factor in reversal rates, I would guess that it plays in a little at the margins.

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Solum on the Need for Opinions

opinion.jpgLarry Solum recently posted a kind response to my post on the need for judicial reasoning. Here is a taste of his analysis:

An obligation to offer justification has obvious accuracy-enhancing effects: it forces the decision maker to engage in an internal process of deliberation about explicit reasons for an action and to consider whether the reasons to be offered are “reasonable” and whether they are likely to be sustained in the event of appeal. Balancing approaches, which consider the costs of procedural rules as well as their accuracy benefits, point us in the direction of the costs associated with requiring justifications on too many occasions and of the costs of requiring justificatory effort that is disproportionate to the benefits to be obtained. Requiring reasons facilitates a right of meaningful participation as well: when a judge gives reasons, then the parties affected by the action can respond–offering counter reasons, objecting to their legal basis, and so forth. Moreover, the offering of reasons provides “legitimacy” for the decision.

Very helpful. Clearly, the procedural justice literature has much to say on whether it is illegitimate for judges to rule without explanation. It seems to me that much of Larry’s discussion would seem to foreclose the legitimacy of what our commentators have suggested as the backstop for expressed opinions: back-pocket explanations, i.e., reasons produced by litigant demands.

But I still think that much of our thinking on the problem of “why and when reasons” is driven by biases built into our legal-DNA by the law school experience. I’ll ramble a bit more on this problem below the jump.

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Must District Judges Give Reasons?

gavel.jpgJonathan Adler highlights this astonishing Ninth Circuit opinion on the alleged misconduct of now-embattled District Judge Manuel Real. Some interesting facets of the case (previously blogged about here, here, and elsewhere). First, dissents matter. It is more than tempting to attribute the current push to impeach Judge Real to Judge Kozinski’s harsh dissent from the panel’s order exonerating him on the misconduct charge. Second, the case raises a neat issue which relates to what I’ve been writing this summer. While the overall facts of the case are well worth reading in the original, if you’ve ten or twenty minutes, I want to focus briefly on part of Judge Kozinski’s charge against Real: that he failed to explain the reasoning for a controversial order.

The basic story is that Judge Real withdrew the petition in a pending bankruptcy case and stayed a state-court judgement evicting a woman who was appearing before his court in a criminal matter. Both orders were entered apparently sua sponte, or at least without hearing the evicting party’s arguments. According to Kozinski, Judge Real “gave no reasons, cited no authority, made no reference to a motion or other petition, imposed no bond, balanced no equities. The two orders [the withdraw and stay] were a raw exercise of judicial power…” In a subsequent hearing, Kozinski continued, “we find the following unilluminating exchange”:

The Court: Defendants’ motion to dismiss is denied, and the motion for lifting of the stay is denied . . .”

Attorney for Evicting Party: May I ask the reasons, your Honor?

The Court: Just because I said it, Counsel.

Kozinski wrote:

I could stop right here and have no trouble concluding that the judge committed misconduct. [Not only was there a failure of the adversary process . . . but also] a statement of reasons for the decision, reliance on legal authority. These niceties of orderly procedure are not designed merely to ensure fairness to the litigants and a correct application of the law . . . they lend legitimacy to the judicial process by ensuring that judicial action is-and is seen to be-based on law, not the judge’s caprice . . . [And later, Kozinski exclaims] Throughout these lengthy proceedings, the judge has offered nothing at all to justify his actions-not a case, not a statute, not a bankruptcy treatise, not a law review article, not a student note, not even a blawg. [DH: Check out the order of authority!]

So here’s the issue: in the ordinary case, to what extent are judges required to explain themselves?

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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.


Benjamin Nelson and “Good Faith”

Benjamin Nelson (who appears to be a lawyer *and* philosopher) from Law & Society Blog fortuitously took an interest in my “not in good faith” theory and my “good faith” debate with others. (**In a great addition to Mr. Nelson’s comments, law professor Steven L. Winter from Wayne State sent Mr. Nelson an e-mail, with permission to post the e-mail on See here.) Before I say anything about “not in good faith,” let me thank Mr. Nelson and everyone else who has commented on my posts here, on truthonthemarket, and on theconglomerateblog. Commenting on posts (posting in general) takes time, and I appreciate the generosity folks have shown me in commenting. Those comments and criticisms allow me to look for new ways to bolster my arguments, modify my arguments, or consider disgarding them.

Luckily, Mr. Nelson was able to support my “not in good faith argument.” He does it, however, with a super diagram that is different from the one that I would have drawn. Upon reading his post and seeing his incredible color diagram, I undertook to draft a responsive diagram with my new “Visio” software. Easier said than done. When I finally completed my pathetic diagram (after days of effort, while on vacation, nonetheless), I could not upload the diagram as a pdf. So I am trying now to upload it below as a text document. Hopefully this will work.

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Why Is There a Shortage of Organ Donations?

organ-donation1.jpgI was watching a show on CNN about people in need of organ transplants going to China for organ donation tourism. China harvests organs from prisoners it executes, sometimes without their consent, and then offers them to “tourists” who come in need of transplants.

The show focused on the immorality of China’s practices, but I kept thinking about how needless all of this would be if we didn’t have such silly organ donation policies in the United States. The Department of Health’s website for organ donation provides the following statistic: “Each day, about 74 people receive organ transplants. However, 18 people die each day waiting for transplants that can’t take place because of the shortage of donated organs.” That’s about 6500 people who die every year in the United States waiting for an organ donation — two times the number dead in the 9-11 attacks. Why aren’t we doing anything about it?

About 2.4 million people die each year in the United States. Only a fraction are organ donors. Why are so many life-saving organs being thrown away?

One solution is to switch the default rule — to have the presumption be that people consent to donating their organs upon death unless they indicate otherwise. In other words, we could change organ donation from opt-in to opt-out. This might strike some as unfair, as there may be people who are uniformed who don’t realize their rights to opt-out. On the other hand, the value of saving thousands of lives each year is quite high. Those who have strong moral objections to organ donation will likely be informed about their opt-out rights because it is an issue that matters a lot to them.

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Is “Gay” Over?

The most recent edition of The Advocate features an interesting article by Adam B. Vary entitled, “Is gay over?” The thesis of the article is that, “gay in all its meanings — personal, communal, cultural, political — seems to be going through its own identity crisis.” In the piece, one commentator suggests that “gay as an identity . . . may be pretty much at an end,” and that “people are thinking of their sexuality in a much more diffuse way.” The article notes that this is particularly true with respect to young people. Vary observes that, “along with feeling more free to come out in high school or sooner, many people in their teens and early 20’s are also free to reject gay as an identity. Instead, they’re defining their sexuality as queer or open or opting for no label at all.”

One response to the article might be to argue that it could only have been written by someone living on one of the two coasts — the magazine identifies Vary as a “Los Angeles-based writer” — where life as a gay person is often quite different than in many other areas of the United States. Thus, one argument is that the article reflects more than a little bit of geographic elitism. But my response to the piece is somewhat different.

In the article, Vary pinpoints April 1997 as the moment when gay as an identity started to evolve and become more fluid. It was during that month that Ellen DeGeneres came out on the cover of Time Magazine and famously proclaimed “Yep, I’m Gay.” According to Vary, that moment was a “major cultural touchstone,” ushering in an era of unprecedented LGBT visibility. But from my perspective, there is another more recent moment that was perhaps even more significant in forming a post-gay identity: the Supreme Court’s decision in Lawrence v. Texas. Simply put, it is really only possible to question the nature and basis of one’s sexuality once the most basic expression of the sexuality has been de-criminalized.