0

Great To Be Here

Thank you to Dan, Dave, and the rest of the CO Gang for inviting me to make a guest appearance here. I suspect I’ll spend much of my first week commenting on the Alito hearing, which connects nicely to my scholarly and teaching interests, but whatever the nature of our discussion, I am very much looking forward to taking part in this virtual community of legal reflection.

In the weeks ahead I will try to take my responsibilities here seriously, knowing that CO’s reputation for analysis and insight is both important and the product of many individuals’ hard work. I fully expect also to have some fun, which should be easy given the wit and good humor of my co-bloggers.

Incidentally, the youngster in the photo with me is my son Steven, who will be 4 next month. Laura and I also have another son, Michael Jr., who is 5.

1

Christine Hurt on Blogging and Gender

female2a.jpgChristine Hurt (law, Marquette) at the Conglomerate discusses the issue of the disparity between male and female law professor bloggers. According to my latest law professor blogger census (November 2005), about 75% are male and 25% are female.

Part of the reason may be that female law professors are still severly under-represented in the legal academy. According to a Legal Times article, about 25% of fully-tenured law professors are female. In total, about 34% of law professors are female. There’s more equality when it comes to more junior female law professors. Over the last ten years or so, about 45% of newly hired law professors have been women.

1

Judiciary Committee to Vote on Alito by September [sic] 17, Specter Hopes

Over at How Appealing Howard links to this Newsday article, in which there is a humorous typo (one hopes) about concluding the hearings and taking a committee vote on Judge Alito’s nomination by September.

More significantly, it notes that the Republicans are expected to continue to stress Judge Alito’s qualifications and the rating the ABA has given him. This seems awfully short-sighted to me. The Republicans want to say to Democrats, “Even your shill organization likes this guy,” but in effect Republican use of the ABA ranking will legitimize the rankings — exactly the result the Republicans do not want for the long term, because of the ABA’s (at least perceived) liberal bias. The more Republicans argue that one’s qualifications should be enough to ensure confirmation, the more difficult it will be to oppose liberal but qualified nominees from Democratic presidents. Senate Republicans should be preparing for that eventuality now instead of just focusing on the present.

12

Green Bag Honors Good Legal Writing from Past Year

The Green Bag has published its first ever “Almanac of Useful and Entertaining Tidbits for Lawyers & Reader of Good Legal Writing from the Past Year: Selected by the Legal Luminaries and Sages on our Board of Advisors.” (whew!–it’s a lawyerly mouthful; too bad the editors couldn’t practice what they’re preaching).

The top vote-getters in each category:

1. OPINIONS AND ORDERS

Honorable Paul H. Cassell, U.S. v. Angelos, 345 F. Supp.2d 1227 (D. Utah 2004)

Honorable Alex Kozinski, In re Complaint of Judicial Misconduct, 425 F.3d 1179 (9th Cir. 2005) (dissenting)

Honorable Mark P. Painter, Kohlbrand v. Ranieri, 823 N.E.2d 76 (Ohio Ct. App. 2005)

Honorable James M. Rosenbaum,Rohwer v. Federal Cartridge Co. 2004 U.S. Dist. Lexis 23744 (D. Minn.)

Honorable Antonin Scalia, Roper v. Simmons, 543 U.S. 551 (2005) (dissenting)

Honorable Diane P. Wood, Gore v. Ind. Univ., 416 F.3d 590 (7th Cir. 2005)

2. BOOKS

David Currie, The Constitution in Congress: Democrats and Whigs, 1829-1861 (Chicago Univ. Press 2005)

Linda Greenhouse, Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey (Henry Holt 2005)

Sadakat Kadri, The Trial: A History, From Socrates to O.J. Simpson (Random House 2005)

Read More

12

Blogging Without Tenure

lawprofessor5.jpgAt a panel at the AALS conference this year entitled Blogging: Scholarship or Distraction?, Randy Barnett suggested that blogging may not be wise for untenured legal scholars. [Paul Caron of TaxProf Blog (and overlord of the Caron Law Professor Blogging Empire) has the complete highlights of the panel here.]

Is blogging advisable for untenured scholars? I bet that the answer differs in each specific discipline, and I’ll focus my observations on the law. I believe that blogging can be great for untenured legal scholars, but it must be done in the right way.

I. BENEFITS

Why is blogging good for the younger legal scholar?

1. Exposure and Name-Recognition. Blogging brings a level of exposure that junior scholars often do not achieve until much later on in their careers. More people will get exposed to their ideas, read their work, and recognize their name. It often takes years of networking and publishing to develop name recognition in legal academia. Blogging provides a head start.

2. Symposium Invitations. When law reviews or professors are planning symposia, they often brainstorm about whom to invite, and those who most readily come to mind often wind up on the list of presenters. Junior scholar bloggers are at an advantage since there names are more likely to be known.

3. Exposure Beyond One’s Field. Blogging enables scholars to get exposure outside of their fields. There are many scholars whose work I generally won’t be familiar with because I’m not researching or writing in their area. Unless those scholars are particularly well-known, I won’t be too familiar with them. But I may know about them from the blogosphere. When somebody asks me who writes about corporate law, a field I know little about, I immediately think of the folks at the Conglomerate or of Dave Hoffman or Nate Oman here at Concurring Opinions.

Read More

2

Introducing Guest Blogger Robert Tsai

robert-tsai1.jpgWe’re very fortunate that Robert Tsai will be joining us for the next few weeks. Robert is an assistant professor at the University of Oregon School of Law. He graduated from Yale Law School, where he was an editor of the Yale Law Journal, and then clerked for U.S. District Judge Denny Chin, S.D.N.Y., and the Honorable Hugh H. Bownes, U.S. Court of Appeals for the First Circuit.

Among Robert’s recent articles are Fire, Metaphor, and Constitutional Myth-Making, 93 Geo. L.J. 181 (2004) (discussing metaphor and free speech); Sacred Visions of Law, 90 Iowa L. Rev. 1095 (2005), (exploring the symbolic role of Marbury v. Madison and Brown v. Board of Education); Democracy’s Handmaid, forthcoming in 86 Boston U. L. Rev. (2006) (examining democracy, popular language, and constitutional law). Other papers by Robert are available on SSRN here.

Robert also has a forthcoming book about the First Amendment with Yale University Press: Eloquence and Reason: Cultivating Freedom of Expression.

Please give Robert a warm welcome!

0

Introducing Guest Blogger Mike Dimino

mike-dimino2.jpgJoining us from Widener University School of Law is Assistant Professor Michael Dimino. After an internship in the Public Information Office of the U.S. Supreme Court, Mike attended Harvard Law School. While at Harvard, he was an articles editor of the Harvard Journal of Law and Public Policy. After graduating, he clerked for Judge Albert Rosenblatt on the New York Court of Appeals (2001-03), then for Judge Laurence Silberman on the D.C. Circuit (2003-04) and Judge Paul Friedman on the D.C. District (2004).

Mike began teaching at Widener in 2004, where he teaches constitutional law, criminal procedure, legislation, Supreme Court politics, and election law. He writes on judicial selection issues, including the First Amendment and judicial campaigning. Some of his publications include: Counter-Majoritarian Power and Judges’ Political Speech, 58 Fla. L. Rev. __ (forthcoming 2006); The Worst Way of Selecting Judges – Except All the Others That Have Been Tried, 32 N. Ky. L. Rev. 267 (2005); The Futile Quest for a System of Judicial “Merit” Selection, 67 Alb. L. Rev. 803 (2004); Pay No Attention to That Man Behind the Robe: Judicial Elections, the First Amendment, and Judges as Politicians, 21 Yale L. & Pol’y Rev. 301 (2003). He also has a book review of Lee Epstein & Jeff Segal’s Advice and Consent coming out later this year in the Texas Review of Law and Politics. For more information about Mike, visit his webpage.

We’re delighted to have Mike on board for the next few weeks.

2

To D or not to D, that is the question

Let’s talk for a second about every law student’s favorite subject – grades.

Back when (and where) I attended law school, the curve was right around B+. For any given class, perhaps 25 or 30 percent of students would receive an A or A-minus, perhaps 30 percent would receive a B-plus, and another 30 or maybe 40 percent a B. A small group of stragglers might receive B-minuses, but only truly derelict students – serial killers, for example, or Republicans – ever stood to receive anything less.

Things are different at my current employer. There is a 2.5-2.8 mandatory average, and there are caps for each grade level. As a result, my curve required me to assign a number of B-minuses, C’s and C-pluses.

Below that group lay a subset of exams which is the topic of this post: Those which were clearly going to end up below C level. The question on my mind was just how far below C level these should fall. Should I lump them all together under the C-minus umbrella? Or were some of them destined to receive D’s?

Read More

5

The Fundamental Issue of Presidential Power

president1.jpgNoah Feldman (law, NYU) has a very thoughtful essay in the New York Times Magazine about the rise of presidential power. He writes:

Not since Watergate has the question of presidential power been as salient as it is today. The recent revelation that President George W. Bush ordered secret wiretaps in the United States without judicial approval has set off the latest round of arguments over what the president can and cannot do in the name of his office. Over the past few years, the war on terror has led to the use of executive orders to authorize renditions and the detention of enemy combatants without trial. . . . The limits of presidential power will almost surely be a major topic of discussion during Samuel A. Alito Jr.’s Supreme Court confirmation hearings, which are scheduled to begin this week.

The stakes of the debate could hardly be higher: nothing is more basic to the operation of a constitutional government than the way it allocates power. Yet in an important sense, the debate is already long over. By historical standards, even the Bush administration’s critics subscribe to the idea of a pre-eminent president. Administrative agencies at the president’s command are widely understood to be responsible for everything from disaster relief to drug approval to imposing clean-air standards; and the president can unleash shock and awe on his own initiative. Such “presidentialism” seems completely normal to most Americans, since it is the only arrangement most of us have ever known.

For better or worse, though, this is not the system envisioned by the framers of the Constitution. The framers meant for the legislative branch to be the most important actor in the federal government: Congress was to make the laws and the president was empowered only to execute them. The very essence of a republic was that it would be governed through a deliberative legislature, composed carefully to reflect both popular will and elite limits on that will. The framers would no sooner have been governed by a democratically elected president than by a king who got his job through royal succession.

Feldman goes on to describe how this growth in the power of the president occurred:

Read More

0

AALS Contracts Session

As ContractsProf Blog spotlighted here, today was the Contracts Section meeting at the AALS Conference. The theme was empirical studies in contract law. Section Chair David Snyder moderated a discussion of papers by: Mitu Gulati (presenting on disclosure and sovereign debt contracts); George Geis (presenting on the optimal specificity of default rules); Debora Threedy (presenting on “legal archaeology”, i.e., qualitative research on leading cases); and Stewart Macaulay.

Macaulay in particular provided a good perspective on the field, based on his long experience as one of the founders of the law and society movement. He noted the increasing prevalence of private dispute resolution for contractual disputes, and evidence (some presented today) of contracts’ lawyers lack of interest in the existence of, or changes in, governing default rules. The message of his talk – somewhat implicit – was that there would be surprisingly few economic consequences were contract law to pick itself up and disappear off of the face of the earth. That is, the hierarchical model of American legal education, which posits that judges (and professors?) generate law, lawyers interpret it, and clients follow it, bears little to no relationship to observed experience. Obviously, Macaulay said it better than I could, and certainly this isn’t a novel idea (he’s said it before, in many places and in many forms) but it was a good thing to be reminded of as I begin to get ready to teach the second semester of my contracts course.