Lobbying the Jury

The New York Times has an interesting editorial today in which it criticizes the Supreme Court’s decision this week to uphold a murder conviction in a case where members of the victim’s family wore buttons displaying the victim’s picture during the trial. The editorial argues that the buttons “were essentially an argument that the deceased was an innocent victim” in the fight that led to his death. Well, I’m not sure how that follows, unless the words “innocent victim” or the equivalent were displayed across the button. I think it is far more likely that the jury saw the buttons as a sign that a family was grieving, and not as a comment on the defendant’s guilt or innocence. In general, I think issues surrounding displays of emotion by the victim’s family in homicide trials are more subtle than the editorial suggests. Of course the focus of the trial rightly needs to be on the defendant’s guilt or innocence, but I am not sure that means the trial needs to be entirely sanitized of emotion. When I was prosecuting, for example, we had one judge who routinely instructed witnesses who were related to the victim that they had better not cry during their testimony. Instructions like these, or concerns over buttons that do no more than display a photo, seem to me to underestimate the the intelligence and commitment of jurors. I at least have never encountered a juror who seemed to think it would be appropriate to convict an innocent man just to ease a devastated mother’s pain — they recognize that would do nothing to help the family at all. Jurors seem to me quite capable of both empathizing with a family’s pain and at the same time putting those sympathies aside in order to focus on the evidence. Any other thoughts?

Song of Jersey City

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Rick Garnett recently wrote on “cities’ hipness competition.” According to a recent article in New York Magazine, my urban home (Jersey City) has recently won some prize:

To live [in New York now] is to endure a gnawing suspicion that somebody, somewhere, is marveling and reveling a little more successfully than you are. That they’re paying less money for a bigger apartment with more-authentic details on a nicer block closer to cuter restaurants and still-uncrowded bars and hipper galleries that host better parties with cooler bands than yours does, in an area that’s simultaneously a portal to the future (tomorrow’s hot neighborhood today!) and a throwback to an untainted past (today’s hot neighborhood yesterday!). And you know what? Someone is. And you know what else? Right now, that person just might be living in Jersey City.

It’s not just Tyler Cowen who’s rescuing New Jersey from punchline status–even the uberhip NYM is recognizing us (even if we’re shunned by NYC Bloggers). Our hospitals may be closing, but at least we’ve got a hot arts scene.

Of course, the NYM piece focuses not on all of the JC, but only on the “downtown” close to the Hudson waterfront. I live a bit further down the PATH line, in Journal Square. I think a comparison between the two areas may help us answer Rick’s question: “what law can do — e.g., zoning laws, liquor licensing, etc. — to make cities / metro areas more (or less) attractive to the young (or the old, for that matter)”? Can big urbanism work?

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Dateline Perverted Justice: Pedophilia That The Market (And Judith Butler) Can Appreciate

The NY Times has an interesting article today about Perveted Justice, the group that Dateline has adopted as a highly profitable vehicle for purveying mass anxiety about child sexual offenders. As many people have noticed by now, Dateline has neatly repositioned itself as an ongoing documentary about the battle to ferret out internet pedophiles. Perverted Justice volunteers troll the web, trying to draw in adults who seek hook-ups with kids. Dateline then sets up shop, waiting to capture these faux-meetings on video.

The article notes that this is lucrative business for everyone. Perverted Justice gets $70,000 for every hour of Dateline content. Clearly NBC is raking in the bucks, drawing over 9 million viewers per Pedo-Dateline, as opposed to their usual net of 7 million viewers for other Dateline episodes. And Dateline already has six more “episodes” of Pedo-Dateline in the pipeline for 2007. In Threatened Children and Random Violence, Joel Best explored how child protection activists have developed both economically and politically by tapping into longstanding public conern over child abuse – and particularly child sexual abuse. (Phillip Jenkins has offered related insignts in his book, Moral Panic.) Yet the explicit commercial trade in this anxiety – always present to the degree that such sex panics provide fodder to the daily news outlets – has never been clearer than here.

At the same time, the Times piece notes that some people are concerned that the very act of publicly pursuing and villifying these individuals effectively creates a new form of sexualized text, because by putting the transcripts of these conversations online, the group puts “out for unfiltered, unrestricted public consumption the most graphic sexual material that they themselves say is of a perverted nature.” Judith Butler, in Excitable Speech, makes the point that prohibition and desire are intertwined:

Prohibition pursues the reproduction of prohibited desire and becomes itself intensified through the renunciations it effects… .The prohibition not only sustains, but is sustained by, the desire that it forces into renunciation.

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Book Art

What happens when nerds and art collide? Book art. The National Museum of Women in the Arts in DC is having a really cool exhibit on it:

The Book as Art: Twenty Years of Artists’ Books from the National Museum of Women in the Arts explores the sometimes controversial art form that is artists’ books. Defined as art objects in the form of books, artists’ books combine content and form to create something that is more than a simple container for information. To celebrate the twentieth anniversary of the National Museum of Women in the Arts (NMWA), The Book as Art will feature 108 artists’ books, by 86 artists, from 12 countries, culled from the museum’s collection of more than 800 volumes.


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You can see some of the books at the museum’s website. I sure hope I can stop by to see the exhibit, but right now, alas, I’m staring at a stack of exams. Perhaps I could donate the stack (ungraded of course) to the museum with the title: “Hours of Pain.” Under one interpretation, the artwork would serve as a depiction of the students’ pain in taking the exam. But others might see it as representing my impending pain in grading the exams. I’m sure my dean would understand, as I’d be doing it for the sake of art. . . .


One Step Forward, Two Steps Back?: Empirical Research Rising and Falling

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Just as Crooked Timber has a post about a new book that examines the impact of social science research and how the survey culture has affected how Americans view themselves, the California Supreme Court has heard a case regarding the extent to which the subject of such research can oppose the use of her information. The case is Taus v. Loftus, S133805. It involves the tension between research that may require lying to achieve its goals and the subject’s privacy rights. The defendants, Elizabeth Loftus and Melvin Guyer, are psychologists challenging the theory of repressed memory. When they first encountered the plaintiff’s information, they did not know her name but did have a case file with her picture. The article indicates that the file was “widely distributed in psychiatric circles.” The defendants questioned the story about the plaintiff’s repressed memories and investigated. The researchers’ report did not name the plaintiff but according to the article did include statements from the step mother that the plaintiff “had been a troubled teenager who slept around and used drugs.”

Now here’s the part that may sound familiar to those who followed the HP spying case: the researchers apparently hired a private investigator to dig into the plaintiff’s past and allegedly one of the researchers posed as the supervisor of the plaintiff’s therapist, David Corwin, to obtain some of the information. From the appellate decision the researcher claimed “‘she was working with Dr. Corwin and was actually his supervisor in connection with his study of [Taus].’” And there folks is the intrusion claim before the California Supreme Court. It doesn’t help that the appellate court had evidence pointing to the gathering of information from sealed juvenile court records either: “In light of these circumstances, the unanswered questions as to whether the Solano County files were confidential and, if so, how they were accessed may have a significant impact on Taus’s intrusion claim.”

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Criminal Background Checks Of Jurors

Perhaps it’s necessary, but the decision of Illinois federal court officials to conduct criminal background checks on prospective jurors in selected cases strikes me as troubling. I imagine that both prosecutors and – where feasible – defense lawyers sometimes run criminal record checks on jurors. But once the court system adopts this as a normal part of jury selection – and people learn about it – i worry that it will begin to corrode the jury process. If coming to court means that these records will be dredged up, it seems possible that many ex-offenders (be they drunk drivers or drug dealers) will just stay home. It saves potential embarrassment. And it avoids a pointless trip: these individuals might assume they won’t be selected.

Once a court goes down this path, what is the logical end? There are many factors that may play into an individual’s biases – marital status, bankruptcy history, job expeience, political affiliation, and the like. Just as some jurors will lie about their criminal record, others may choose to lie about these sensitive matters. Should courts engage in the broader background checks that are now available, simply to give interested lawyers additional data about their venire? In a sense, it would put urban lawyers on the same footing as their rural counterparts. Any good small-town lawyer will know, or will bring along someone likely to know, the backgrounds of many potential jurors. But urbanites value privacy, and any policy that tends to undermine that – from criminal background checks, to checks of voting records, to a quick search on ChoicePoint – has the potential to scare off jurors.

I worry about the race effects of this policy. We know that African-Americans are disproportionately represented among those convicted of crimes in America. Relatedly, they are also disproportionately represented among criminal defendants. The decision to engage in widespread criminal background checks on members of the a jury venire may have a disparate impact on African-American jurors. Worse, it could further undermine the actual – and perceived – fairness of the justice system itself.


Wasting Genius?


Over at MoneyLaw, Jim Chen posted a blog on Juniority

a couple of weeks ago in which he quotes Thomas S. Kuhn as noting that:

Almost always the [individuals] who achieve these fundamental inventions of a new paradigm have been either very young or very new to the field whose paradigm they change. . . . [B]eing little commited by prior practice to the traditional rules of normal science, [these individuals] are particularily likely to see that those rules no longer define a playable game and to conceive another set that can replace them.

Chen applies this reasoning to the world of legal academia, and worries that:

the creeping insistence on an ever larger set of credentials — clerkships, degrees beyond the J.D., VAPs — necessarily delays the physical age at which law professors begin their careers in earnest. Indeed, if Thomas Kuhn’s observation about scientific revolutions holds true in law, we may be wasting some of the most potentially transformative years of individual careers by delaying would-be upstarts’ full-fledged arrival within the academy.

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on exams and motivation (or “good luck on exams!”)


Good luck to all students on their exams.

Given that it’s exam time, it only seems fitting that there’s been some talk lately in the blogosphere about motivation. See this terrific first post by fellow C.O. blogger Marcy Peek, and this great little note by Jim Chen over at MoneyLaw.

Here are my two cents. First, I couldn’t agree more with Jim & Marcy that one should frequently remind one’s self of the big picture reasons why one came to law school, why one is struggling through exams, etc. Second, I think it’s also key to find a way to appreciate the day-to-day struggle itself. Sure, there’ll be lousy days, depressing moments. That’s part of being human. But if you can find some joy, purpose and excitement in the day-to-day process, make some good friends along the way, and remember your big picture reasons for going through that process – especially in the not-so-joyful moments — well, that makes for a pretty successful existence, I think.

So good luck and enjoy your well-deserved breaks when exams are done!


Teaching Loads

I am on my law school’s long-term strategic planning committee, which should be working pretty intensely in the spring thinking about lots of different aspects of our law school. One issue that I have been thinking about lately is teaching loads. It seems to me that many schools are moving toward a 3 course teaching load, and I would be grateful if our law professor readers could help me collect some data. What is the teaching load at your school? If you have recently gone from four courses to three, has that made a meaningful difference in your academic life or in the number of course offerings at your school? (I also want to apologize in advance to any readers who may teach undergraduate students, who are no doubt appalled at the notion that law professors only have to teach three or four courses a year!)


The Decline (and Fall?) of Hunting

elk.jpgToday, I’m blogging from the CocoaPerk, a coffee shop on Cocoa Road, in Hershey, PA. (Turn right off of Chocolate Avenue.) Very good coffee, reliable wireless, so-so art on the walls. [Update: Great muffins.] [Update 2: Hershey’s public library has no decent maps of the town available to the casual tourist on inquiry. Nor internet access without a residency card. I’m back at the ‘Perk, trying to get oriented via the web. Hopefully, continuing angst about the library will burn off muffin #2.]

While thinking about my classes for next semester, I couldn’t help but listen into a conversation at the next table. A few of the locals were discussing the decline of hunting. According to that hearsay (confirmed by google), the number of licenses sold in Pennsylvania has crashed in recent years, reflecting a nationwide trend.

This is a story you don’t see discussed much in the national media (although Newsweek covered it last week) – probably because reporters didn’t grow up hunting. According to the guys at the next table, the decline largely has to do with the disappearance of small game hunting (and prey) as a result of sprawl, and the increased expense associated with big game hunting. I wonder too what part the reduction of leisure time (for the non-wealthy) plays in the story.

The interesting facet of the story for this law blog is the tension between the decline of hunting and the rise of the constitutional case for gun rights. Of course, the argument for an individual-rights view of the Second Amendment doesn’t depend on the existence of a single rabbit, deer, or quail, but hunting surely gives gun rights advocates with some political cover. Home-defense is hard to connect with the need for large-caliber weapons (not impossible, to be sure, but it is a tougher sell politically I’d think). And the transformation of hunting into an elite activity would seem to be a blow to the cause, at a time when it seems poised on the brink of some major victories in court.

You see what you can learn by eavesdropping?