1

A Lateral Hiring Information Market

Eric Muller, at Is That Legal, notes that there are now discussion boards dedicated to (non-law) faculty hiring rumors. This is one example and here is another. Eric suggests that this might be a new niche for blawgers. I’m not sure I’d like this job, but perhaps others feel differently. But why make this part of blogging? Lots of us have spent hours at the AALS conference gabbing about rumored moves. It’s time for our home institutions to recognize gossip as part of our “scholarship.” One obvious way to spin this straw into gold would be to create, and write about, an information market in law faculty moves. It’ll be fun, what with everyone contributing, and some of us earning nice profits. For some industrious academic entrepreneur – no doubt a junior prof stuck at Alaska State or the like – there may be tenure at the end of this rainbow. And better than even odds, a lateral move as well.

6

Who Cares if John Yoo is a Hypocrite?

Opinio Juris has been discussing whether John Yoo is a hypocrite, based on his criticism of the Clinton administration for violating the rule of law. (Heller: John Yoo’s Hypocrisy; Ku: Fair and Unfair Criticisms of John Yoo; Heller: John Yoo’s Defense of the NSA Program Part I & Part II). For what it is worth, I think that Heller has the better of the exchange on the merits. But his use of hypocrite as the ultimate pejorative label, as opposed to ideologue, or partisan, or bad lawyer, brought to mind a great exchange from The Diamond Age by Neal Stephenson:

“Mr. Hackworth,” Finkle-McGraw said after the pleasantries had petered out, speaking in a new tone of voice, a the-meeting-will- come-to-order sort of voice, “please favour me with your opinion of hypocrisy.

“Excuse me. Hypocrisy, Your Grace?”

“Yes. You know.”

“It’s a vice, I suppose.”

“A little one or a big one? Think carefully-much hinges upon the answer.”

“I suppose that depends upon the particular circumstances.”

“That will never fail to be a safe answer, Mr. Hackworth,” the Equity Lord said reproachfully. Major Napier laughed, somewhat artificially, not knowing what to make of this line of inquiry.

“Recent events in my life have renewed my appreciation for the virtues of doing things safely,” Hackworth said. Both of the others chuckled knowingly.

“You know, when I was a young man, hypocrisy was deemed the worst of vices,” Finkle-McGraw said. “It was all because of moral relativism. You see, in that sort of a climate, you are not allowed to criticise others-after all, if there is no absolute right and wrong, then what grounds is there for criticism?”

Finkle-McGraw paused, knowing that he had the full attention of his audience, and began to withdraw a calabash pipe and various related supplies and implements from his pockets. As he continued, he charged the calabash with a blend of leather-brown tobacco so redolent that it made Hackworth’s mouth water. He was tempted to spoon some of it into his mouth.

“Now, this led to a good deal of general frustration, for people are naturally censorious and love nothing better than to criticise others’ shortcomings. And so it was that they seized on hypocrisy and elevated it from a ubiquitous peccadillo into the monarch of all vices. For, you see, even if there is no right and wrong, you can find grounds to criticise another person by contrasting what he has espoused with what he has actually done. In this case, you are not making any judgment whatsoever as to the correctness of his views or the morality of his behaviour-you are merely pointing out that he has said one thing and done another. Virtually all political discourse in the days of my youth was devoted to the ferreting out of hypocrisy.

“You wouldn’t believe the things they said about the original Victorians. Calling someone a Victorian in those days was almost like calling them a fascist or a Nazi.”

Both Hackworth and Major Napier were dumbfounded. “Your Grace!” Napier exdaimed. “I was naturally aware that their moral stance was radically different from ours- but I am astonished to be informed that they actually condemned the first Victorians.”

“Of course they did,” Finkle-McGraw said.

“Because the first Victorians were hypocrites,” Hackworth said, getting it.

Finkle-McGraw beamed upon Hackworth like a master upon his favored pupil. “As you can see, Major Napier, my estimate of Mr. Hackworth’s mental acuity was not ill-founded.”

“While I would never have supposed otherwise, Your Grace,” Major Napier said, “it is nonetheless gratifying to have seen a demonstration.” Napier raised his glass in Hackworth’s direction.

“Because they were hypocrites,” Finkle-McGraw said, after igniting his calabash and shooting a few tremendous fountains of smoke into the air, “the Victorians were despised in the late twentieth century. Many of the persons who held such opinions were, of course, guilty of the most nefandous conduct themselves, and yet saw no paradox in holding such views because they were not hypocrites themselves-they took no moral stances and lived by none.”

“So they were morally superior to the Victorians-” Major Napier said, still a bit snowed under.

“-even though-in fact, because-they had no morals at all.” There was a moment of silent, bewildered head-shaking around the copper table.

“We take a somewhat different view of hypocrisy,” Finkle-McGraw continued. “In the late-twentieth-century Weltanschauung, a hypocrite was someone who espoused high moral views as part of a planned campaign of deception-he never held these beliefs sincerely and routinely violated them in privacy. Of course, most hypocrites are not like that. Most of the time it’s a spirit-is-willing, flesh-is-weak sort of thing.”

“That we occasionally violate our own stated moral code,” Major Napier said, working it through, “does not imply that we are insincere in espousing that code.”

“Of course not,” Finkle-McGraw said. “It’s perfectly obvious, really. No one ever said that it was easy to hew to a strict code of conduct. Really, the difficulties involved-the missteps we make along the way-are what make it interesting. The internal, and eternal , struggle, between our base impulses and the rigorous demands of our own moral system is quintessentially human. It is how we conduct ourselves in that struggle that determines how we may in time be judged by a higher power.” All three men were quiet for a few moments, chewing mouthfuls of beer or smoke, pondering the matter.

“I cannot help but infer,” Hackworth finally said, “that the present lesson in comparative ethics-which I thought was nicely articulated and for which I am grateful-must be thought to pertain, in some way, to my situation.”

Is this tripe, or worth further discussion?

1

The Degeneration of Mankind

Today’s Washington Post has a collumn in which Robert Samuelson wags his finger at the mass of exhibitionism on the Internet. He writes:

Call it the ExhibitioNet. It turns out that the Internet has unleashed the greatest outburst of mass exhibitionism in human history. Everyone may not be entitled, as Andy Warhol once suggested, to 15 minutes of fame. But everyone is entitled to strive for 15 minutes — or 30, 90 or much more. We have blogs, “social networking” sites (MySpace.com, Facebook), YouTube and all their rivals. Everything about these sites is a scream for attention. Look at me. Listen to me. Laugh with me — or at me.

This is no longer fringe behavior.

Indeed! In the past screaming for attention and the insistent “Look at me! Listen to me!” was confined only to the sordid fringes of society. You know, people like Washington Post collumnists and television pundits. People like Mr. Samuelson…

2

Praising Allah In The Military

Congress is considering legislation that would allow military chaplains to use sectarian prayers at nondenominational events. Supporters argue that Chaplains should be free to pray as their faith demands. Opponents worry that such prayers (lets be more precise: prayers that invoke the name of Jesus) will have the effect of excluding some in attendance and erode cohesion within the unit. (The Pentagon, which opposes the bill, actually frames it less in terms of marginalized troops, and more in terms of marginalized chaplains, saying “This provision could marginalize chaplains who, in exercising their conscience, generate discomfort at mandatory formations.”)

This proposal is really a one-way ratchet which is likely to create discomfort for various non-Christian soldiers, but which will rarely marginalize Christian soldiers. For example, few Christian soldiers will be troubled by Jewish prayers since they always reference a single God, referred to typically in English as “God.” They are sort of like “lesser included” versions of Christian prayers. (It is possible that a rabbi might use a Hebrew term, and this would potentially be alienating…though in my experience, many might simply find it “curious.”) Christian prayers which invoke Jesus exclude all Jews and Muslims (and people of many other faiths, not to mention agnostics and atheists) because they involve praying to a person who, in other religions, is explicitly not God. Sooner or later, at a non-denominational event, a Muslim chaplain will praise Allah, an Arabic term for God (and indeed essentially the same singular God as one would find in Christianity and Judaism). But though Allah may reference the same God, the term now carries loads of cultural baggage, such that many may hear that invocation as an explictly anti-American or anti-Christian statement.

If I truly believed that the Representatives supporting this legislation were ready – even eager – to hear chaplains praise Allah at non-religious events, I’d be more sympathetic to their cause. Call me a cynic, but I suspect that they’re simply trying to promote Christianity in circumstances where they see little downside. Twenty years from now, if Islam has grown in importance within the military, I suspect that these folks would be the first to argue for non-sectarian prayer. “It’s just not fair to our Christian troops”, they’d argue.

9

Gender and the Eve-of-Wedding Prenup

Gender wars are alive and well in the blogsphere recently. While it seems to me that more than enough cyber ink has been spilled over boobgate and the fracas over Above the Law, I do think that the role of gender in law and culture continues to be actually difficult and worth discussing. I am teaching Family Law for the first time this semester and have noticed that my students often find ideals of formal sex equality extremely unsatisfying. As an example, I offer the enforceability of the eve of wedding prenup.

wedding.jpg

Let’s imagine a couple — Catherine and Fred. Catherine is a 23 year old nurse and Fred is a 39 year old neurosurgeon. On the night before their wedding, Fred’s lawyer presents Catherine with a prenup limiting her to support payments of $200 per week with a max of $25,000 should their wedded bliss end in divorce. Catherine signs — without any legal advice. Should this be enforceable?

Read More

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BLAWG REVIEW #75

lawbooks3a.jpgWelcome to Blawg Review #75. We’re proud to be continuing this venerable tradition at its diamond anniversary. Others also just hitting this milestone: The University of Wisconsin Hoofers, Blondie (Dagwood’s better half), and Bilbo Baggins Ian Holm.

When it comes to diamonds, the entire world is reduced to the 4 C’s: carats, cut, clarity and color. And so it is with Blawg Review #75.

This post was created with the collaboration of the entire permablogger crew at Concurring Opinions — Dan Filler, Dave Hoffman, Nate Oman, Daniel Solove, and Kaimi Wenger.

Carat: The World is Not Enough

Venkat Balasubramani has launched Spamnotes, a blog about litigation related to spam.

Bruce MacEwen, at Adam Smith Esq., chewed on the possibility of a Dewey-Orrick merger. Who knew that the received wisdom is that two “elite New York firms will never merge.” Which leads to the questions of whether this merger will happen, and whether these firms qualify as NY elites. Somehow I don’t think the folks over at Cravath are doing much quaking right now. (Granted, it’s hard to quake when you are dead-tired, yelling at three paralegals simultaneously, and worried whether Seamless Web is down tonight. Can you tell that we miss practice?)

A large group of law professors and lawyers have launched Consumer Law & Policy Blog.

And David Lat of the famous Underneath Their Robes blog, has started a new blog, Above the Law. He’s gone from being Underneath to Above — now that’s moving up in the blawgosphere! Belle Lettre, however, is decidedly not impressed: “So this guy is out of stiletto drag now, and we are still supposed to care about his juvenile characterizations of legal figures?” Ann Althouse stooped from her lofty perch to attack young Lettre and generalize from her to a entire generation’s political strategy:

This dread of triviality, does it hurt? I wonder if Belle has considered whether this grim, censorious, humorless — nay, humor-phobic — attitude helps women. I know you want to be taken seriously, but being so intent on being taken seriously is one of the main things that make people want to mock you. And not just you, but feminism.

And then Althouse promptly launched what has become known as “boobgate“, leading to a powerful retort (and a further retort) and prompting Ann Bartow to ask: “What leads a law professor who describes herself as a feminist to do something like this?”

For a different feminist perspective, check out this terrific post by Christine Hurt (Conglomerate), who described how in 1925, the governor of Texas convened the first – and last – all woman Supreme Court of Texas. This three judge panel heard a single case involving a fraternal organization – the Woodmen of the World – and was immediately disbanded. But we digress…

Jurisdynamics has launched an affiliate blog, First Movers, written by law students, graduate students in law, and law school graduates. The blog will focus on “law amid societal and technological change.”

Bobby Chesney, guesting at PrawfsBlawg while simultaneously starting a new blog, asked: “Here’s a question for the students out there: does it bother you when a professor cancels a class in order to attend a conference or workshop?” Will Baude, a Yale Law School student, offered his thoughts at his blog, Crescat Sententia. Professor Michael Froomkin offered his views at Discourse.net. Will Baude replied.

PENNumbra, the University of Pennsylvania’s online companion to the Penn Law Review, was born (…in a field of corn? Sorry. We’ve been reading The Big Red Barn an awful lot lately.)

Speaking of expansion, law prawfs are beginning to buzz about faculty hiring.

Each year, law schools hire new law professors through a process known affectionately as the “meat market.” Roughly 1000 people apply each year, and their resumes are currently being pored over by committees across the nation. Most law schools do first round screening interviews at a conference in Washington, DC. Each school interviews about 15-30 people. Over at the Volokh Conspiracy, Orin Kerr estimated the chances a person will get a second-round interview (the “callback”) at 20%. And the odds that a candidate will get an offer after the callback interview? Kerr estimated that at about 33%.

Meanwhile, Al Brophy at Moneyball considered the possibility of law school affirmative action based on class background. He wondered whether prawfs from lower income backgrounds might be more likely to support what he terms “aloha jurisprudence.” We’ll hold off on assessing the coherence of this new jurisprudence movement category, but he’s surely got a Top 50 article title on his hands.

Then there’s the century-old debate about whether size matters, and exactly what counts anyway. Joe Hodnicki of Law Librarian Blog attacks Chapman Law School’s claim that it has the highest scholarly output of all law schools in the country. Dan Markel of PrawfsBlawg weighed in, and over at MoneyLaw, Tom Bell of Chapman responded.

Clarity: Law Professors and Others Try To Make The World Coherent, And Also Contemplate The Process By Which Their Ideas Are Distributed

One of the great attractions of the legal blogosphere this week was the cage match on corporate governance at the Manhattan Institute’s blog Point of Law (Motto: “Two will enter, one will leave”) between Gordon Smith and Stephen Bainbridge. Topics included shareholder power, authority and accountability, director primacy, hymns of praise to the status quo, and calls for change. Needless to say, it was the sort of thing that gets the adrenaline pumping among teenage boys.

Duncan Hollis (Opinio Juris), analogizing presidential signing statements to treaty reservations, suggested that the comparison might save IL from the “not law” objection, and might constructively restrain the executive to boot. Not bad for a morning’s blogging. Perhaps it’s work like this that has led the increased prominence of IL in flagship law reviews, as Peter Spiro observed here.

Over at the Yale Law Journal’s PocketPart, Christopher Bracey, Paul Caron, Eugene Volokh, Jack Balkin, Ann Althouse, and Steve Vladeck ruminate on the future of legal scholarship. Over at Madisonian.net, Mike Madison critiques the symposium: It “had a chance to advance the ball, but failed.” Mike writes: “The problem is that things like The Pocket Part, and Harvard’s Forum, for example, aren’t really designed to extend the law review in new and innovative directions; they’re designed to save the law review, and all of its traditional tics, from various challenges to its authority and prestige.”

Terry Smith (Blackprof) considered the racially-charged primary in New York’s 11th Congressional District. After attacking both black and white candidates for undermining what he sees at the spirit of the Voting Rights Act, Smith concluded

Black voters will ultimately have to take matters into their own hands by forming strong community-based satellite parties (often referred to as political clubs) to conduct informal caucuses among black aspirants as a means of winnowing the field.

Miriam Cherry (guesting at PrawfsBlawg) lamented being preempted by a paper on SSRN. After Miriam solicited sniglets for such a happenstance, Adam Kolber commented: “After someone posted on the same topic I was writing about, I realized my project had reached its ‘SSREnd’.”

Meanwhile, the folks at Shlep are trying to tear the walls down. They asked if your local bar a “guide (helping to improve and expand self-help) or a guild (building walls against self-help and looking after the financial interests of lawyers first)?”

Dennis M. Kennedy at Between Lawyers wrote: “Professor Charles Nesson, Rebecca Nesson, Gene Koo making their class at Harvard Law School called “CyberOne: Law in the Court of Public Opinion” available to anyone using the Internet for free.” The course website is available here. Question: will the online Nesson experience involve techno music, dancing, and a exam question asking students “what they learned in this semester?”

In a beautiful “day in the life” post, Scoplaw painted a picture of his first courthouse adventure as a criminal defense clinic student.

Hanno Kaiser of Law and Society Blog offered some interesting thoughts about terrorism: “The crux with terrorism is that it terrifies, even though it is, objectively speaking, not particularly dangerous.”

Over at the Volokh Conspiracy, Orin Kerr compared attitudes toward the USA-Patriot Act and the Specter Surveillance bill.

And finally, a moment of clarity. Criminal defense lawyer Lawrence Taylor, one of the few critics of DUI laws that is not employed by the hospitality or liquor industry, decries those jurisdictions that prosecute individuals found sleeping (and drunk) in cars pulled off to the roadside.

Bobby Chesney slices, dices, and parses the statistics on terrorism prosecutions. Elsewhere, the British, after an eight-century long prohibition on double jeapordy, have finally decided to convict people notwithstanding a previous jury acquittal, and Opinio Juris opines on the first conviction under the relaxed standards.

According to Religion Clause the IRS has revoked the tax-exempt status of Operation Rescue. Elsewhere on the non-profitish front, in a shocking departure from institutional and family reputation, Eric Posner extolled the virtues of the for-profit charity on the University of Chicago Law School Faculty Blog. Meanwhile Times & Seasons had a post on the law and economics of religious utopias and the preference for institutions over property rules.

Cut: How to Succeed in Business Without Really Trying

Mike at Crime & Federalism had some tips about what not to write on a Bar Exam essay and what not to say in an interview at the prosecutor’s office.

Yale Law School graduate and Information Society Project fellow Katherine McDaniel created The Clerkship Notification Blog as a “forum for law clerk applicants to share information regarding their clerkship applications.”

Tung Yin at PrawfsBlawg wrote about what makes for an effective letter of recommendation for a judicial clerkship.

Ian Best at 3L Epiphany offered a roundup of law advice to second year law students. Hanno Kaiser of Law & Society Blog offered advice to LLM students. So there’s a lot of advice out there for 1Ls and 2Ls — and even LLM students — but what about 3Ls? 3Ls need some tips for what to do in the few minutes when they’re not slacking off.

Color: Fun Oddities From Around the Blawgosphere

In the law and popular culture category, Blackprofs had a post on the politics of race in the new season of Survivor (Survivor does not come off well), and Larry Ribstein opined about corporations and the movies.

Evan Schaeffer at Evan Schaeffer’s Legal Underground has a post listing Nobel Prize winners in literature who studied or practiced law. Sadly, we hadn’t heard of most of these writers. And we didn’t realize that Gabriel Garcia Marquez (the writer on the list we’re most familiar with) studied law before becoming a journalist. Many of those on the list never completed their legal studies. Who was the first – and thus far only – law professor to win the Nobel Prize in literature? Theodor Mommsen, a law professor at the University of Leipzig who won in 1902. And today, it seems, writing a novel is the “in” thing for law professors to do – Paul Goldstein, Kim Roosevelt, Stephen Carter, and Jed Rubenfeld have recently written novels.

Slashdot published a question-and-answer session with recording industry opponents Ty Rogers and Ray Beckerman, the attorneys who maintain the Recording Industry v. The People blog.

Paul Horwitz (Prawfs) wondered who is the coolest professor in the legal academy in American today. Hint: it’s not him, it’s someone who likes lyrics. Hey, we can play that game too: “Everybody hurts . . .”

Finally, TaxProf, Paul Caron had a great post pulling together coverage of 9-11.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

1

Life in Philly

I’ve previously noted that Philadelphia politics are fun to watch. From a distance, the chaos may even look like democracy in action.

In a recent dispute, a local write-in-candidate for state representative office, who happened to be the dominant party’s favorite son, challenged his May loss to the only candiate who was on the official party line. He won in court, after a judge found that voters writing in the wrong place deserved to have their votes counted, even if (apparently) they got to vote twice as a result.

Two reactions to nuggests from the article about this bitter teacup tempest:

First,“[the write in candidate] . . . was the beneficiary of an extraordinary write-in campaign on his behalf, with stamps and ink pads and training sessions for poll workers.” Stamp and ink pads, I sort of get. But training for poll-workers? Doesn’t that sound fishy, even for Philly?

Second, the court “dated his ruling Thursday, a ittle more than two months after a one-day trial on the issue . . .” I’m sure that it is tough to be a judge on a busy state trial court. But it strikes me that this dispute isn’t, you know, another Bush v. Gore. I doubt that Rick Hasen was waiting by his fax machine when it came out. (Although between the time I wrote this post and the time I put it up, Rick did talk about the decision on his blog, which shows me!) Doesn’t two months seems like a pretty long time to hold up a decision that upsets the status quo?

6

To upload or not to upload, that is the question…

ssrn.jpgAfter a couple of months as a law professor, I now have a few manuscripts for articles that I am working on. One of my manuscripts is more or less “finished.” There are few footnotes that say things like “cite to UCC incorporation literature” but you can read the piece from beginning to end. It has a complete argument. So now I am in the circulating phase, finding people who can give me criticisms and suggestions for revision going forward. Which leads to my question: Should I fill in the gaps in the footnotes and post this piece to SSRN? There are advantages and disadvantages.

On the positive side of the ledger, posting now will make it easier to distribute the manuscript among various commenters as I can send them to an SSRN page rather than clogging their in boxes with an attachment. Furthermore, to the extent that posting it on SSRN makes the work generally visible, it might attract the attention of someone that I don’t know but who is interested in the field and might give me useful feedback. Finally, from a purely cynical point of view, early posting allows me to boost my download numbers by having reviewers of my early draft access the paper via SSRN.

Then there are the negative sides of the ledger. As it now stands, my manuscript is hardly an embarrassment (I think that I make some good points), but I fully expect to revise it before submitting it to publication. I’ve no doubt that there are problems that I have not seen, and regardless I ought to be able to tighten up and deepen the argument in the face of criticisms offered on the early draft. In other words, should I post an early version of a manuscript that I hope will be improved in later drafts. SSRN is not the same thing as publication, but a paper on SSRN nevertheless becomes part of your public oeuvre. Do you want an early draft to be part of that? Then there is the issue of law review placement. Should one ever post on SSRN prior to submitting to law reviews? Will pre-publication downloads of an early draft impress future articles committees (“Hmm. There seems to be interest in this piece…”) or turn them off (“Hmm. It’s already up on SSRN; nothing new here…”)?

Any thoughts or suggestions?

1

Politicians Try to Make Lemonade

573707_lemons.jpg

The traditional economic analysis of law analyzes the market for lemons by assuming that folks will try to signal honesty through warranties or other contractual mechanisms, but may fail. A political case in point:

A number of Nigerian politicians have been conned out of thousands of dollars by people selling papers purporting to certify them as “corruption-free”.

The scam follows a warning by Nigeria’s anti-graft agency EFCC that anyone guilty of corruption would be banned from contesting next year’s elections.