Month: August 2006

Just when you thought you’d heard the last about Hamdan v. Rumsfeld…

Both the government and Hamdan have filed motions with the D.C. Circuit suggesting how (and where) Hamdan’s petition should be handled going forward. In brief, the government argues for a limited conception of what claims Hamdan has left to assert, and contends that any such remaining claims are to be resolved in the D.C. Circuit. Hamdan argues for a broader understanding of his remaining claims, and for resolution of them in the first instance by the district court. SCOTUSBLOG’s Lyle Deniston has more details, including links to both motions, here.

The debate is interesting in several respects, but there is one point I’d like to highlight concerning the extent to which the Hamdan ruling entails a silver lining for the government.

Comments

I am not sure that I agree with what seems to be the consensus view of the scope of the Hamdan opinion regarding the conflict with AQ. Hamdan was captured in Afghanistan during a situation of clear armed conflict. What of the detainees who were initially arrested by police authorities in say, Bosnia, and turned over to U.S. armed forces later on? I did not read the Hamdan opinion as expressly validating the administration’s view of the existence of a global war against AQ, although it certainly seems to suggest that is the case. Is there, after Hamdan, any room to argue that persons captured in a country where no real armed conflict is taking place (armed conflict as was understood prior to 9/11) are not covered by LOAC at all, not even CA3, but are instead subject to treatment in accordance with human rights law?

Posted by: Jennifer Elsea | Sep 5, 2006 9:17:12 AM

I’ll line up with those who believe that the Court does not qualify the conflict in which Hamdan is being detained as either international or non-international, but merely concludes that the substance of CA 3 applies, either because it’s a non-international armed conflict or because it’s an international armed conflict, for which the protections of CA 3 are contained in the applicable treaty law (GC III or IV) or in customary international humanitarian law (Article 75 of Additional Protocol I). So if there is an impediment to Hamdan’s continued claim of entitlement to a GC III, Art. 5 “competent tribunal” proceeding, it ain’t this.

Also, in response to Marty Lederman’s comments, there WAS an international armed conflict between the US and Afghanistan, but it became non-international upon the transfer of power from Taliban to Karzai. (Likewise, the armed conflict in Iraq is no longer international). There is a question of the effect of that change upon the status of persons who were detained by a party to the conflict prior to the change and who continue in detention. If Hamdan continues to be entitled to international armed conflict (IAC) rights, then the lack of an Art. 5 proceeding remains relevant – not because he would likely be found entitled to PoW status, but because detainees about whose status there is doubt, and who have not had an Art. 5 proceeding, are entitled to PoW treatment (which would include the application of GC III Art. 102, which requires Hamdan to be tried (OK, sentenced) by the same courts using the same procedures as are applied to US military personnel). If Hamdan is no longer entitled to IAC rights, then it is only CA 3 and whatever additional customary IHL rules of N-IAC there may be. No, there is no issue of PoW status in that scenario.

As for Marty’s “more interesting question,” GC IV, Art. 4 says that everyone in the hands of a party to the conflict is protected unless they are a)nationals of the detaining authority, b)nationals of a State not bound by the Convention (no such thing any more), c)nationals of a neutral or co-belligerent state that maintains diplomatic representation in the detaining State, or d)protected by one of the other GCs. The text leads to the conclusion that as long as no other disqualifying features (above) are present, a person who takes part in hostilities but fails to achieve PoW status will default into GC IV protected status. It is relevant to note in this regard that unprivileged belligerency is certainly inconsistent with PoW entitlement, but it is not a violation of IHL (let alone a war crime), so there is no reason for it to be a disqualifier for GC IV protection.(This is why the term “unlawful combatant” should be tossed in the trash, unless it is a reference to domestic law that makes unprivileged belligerency a crime). I believe, however, there are some IHL heavy weights who disagree with this, but I don’t know their rationale.

As for Dave Glazier’s comment about one or two armed conflicts and the supposed need for the US to define the situation, I make no representation about the effect of domestic law, but CA 2 says that the Conventions apply to armed conflict between two or more Parties to the GCs “even if a state of war is not recognized by one of them.” I think the same rule must apply in connection with the IHL of N-IAC, since it cannot be that its application is optional. Indeed, AP II Art. 1 says it applies to ALL armed conflicts not covered by AP I (and that are non-international). As for NIAC that does not fall within AP II (either because the State is not a Party or because the rebels hold no territory), the customary IHL of NIAC also recognizes no “opt-out” clause, although domestic law may so provide. (See ICRC Customary International Law study, which cites all the various rules applicable in NIAC.)

As for Dave’s additional comment on the general inapplicability of GC IV to “war on terror” detainees and the need to go to Art. 75 of AP I, I think it important to note that if the “fundamental guarantees” of Art. 75 apply to “war on terror” detainees, it is not because of any default to Art. 75 upon failure to meet the criteria for the more specific status of protected persons under either GC III or GC IV. Article 75 would only apply de jure to a CA 2 armed conflict (i.e., between States). However, Article 75 is excellent evidence of what, in the language of CA 3, comprises “all the judicial guarantees which are recognized as indispensable by civilized peoples.” Thus, Art. 75 judicial guarantees apply to NIAC detainees (as do the ICCPR’s judicial and other guarantees, but that’s another story). Other bits of Art. 75, however, would only apply to the extent they are customary for NIAC.

Posted by: Gabor Rona | Sep 1, 2006 6:36:04 PM

This is just another dreary example of DOJ concoting a fraudulent argument and arguing out of both sides of their mouth at the same time. It’s all pretty clear is you just read their original briefs to the D.C. Cir. in Hamdan:

D.C. Cir. – Hamdan v. Rumsfeld, No. 04-5393

* BRIEF FOR [THE GOVERNMENT] (2004.12.08)

* REPLY BRIEF FOR [THE GOVERNMENT] (2005.01.10)

The Supreme Court simply said that it wasn’t necessary for them to resolve CA2 v. CA3, because the commissions were illegal either way and al Qaeda would be protected by CA3 even if the government’s arguments about the existence of separate armed conflicts were correct. The detentions simply were not an issue in this case.

And with respect, I think you are missing a few things here. There are four lower court opinions that are directly affected by Hamdan:

DDC – Hamdan, Khalid, and In re Guantanamo Detainee Cases

CAD – Hamdan

Only one of those opinions survived the S.Ct. Hamdan decsion intact, and that was Judge Robertson’s opinion in Hamdan. Judge Green’s opinion in In re Gitmo took a hit on her ruling that al Qaeda was not protected by Geneva, but that’s not critical because her main holding was that ALL of the detainees were protected by the 5th Amendment to the Constitution.

On the other hand, the CAD opinion in Hamdan and Judge Leon’s DDC decision in Khalid both got reduced to smoking piles of ashes. That is quite obvious from Judge Williams concurring opinion in Hamdan (CAD) stating that CA3 would in fact apply to al Qaeda detainees, but that it doesn’t matter for the reasons stated by Judge Randolph i the main opinion.

They never reached the merits – their holding was that abstention, and / or deference, and /or unenforcibility per the fraudulent DOJ party line precluded them even reaching the merits. Same story in Kalid, only more so — Clarence-Thomas-style.

Now DOJ is essentially trying to argue that the S.Ct. affirmed one of their utterly dishonest mis-readings of Geneva by decisvely repudiating all of their arguments as to WHY Geneva doesn’t apply.

It’s absolutely absurd.

Posted by: Charles Gittings | Sep 1, 2006 4:47:00 PM

Thanks to Steve, Marty, and Dave for their very interesting and insightful responses (typical of each of them, I should say). Let me boil them down to two issues:

1. Is there more than one armed conflict between the U.S. and al Qaeda? 2. Is it still possible after Hamdan to contend for CA2 status?

On the first issue, it seems reasonable to me to assert that at any given time the U.S. may be involved in more than one armed conflict for purposes of jus in bello analysis (even if the domestic authority for the use of force is traced (for the sake of argument) to a single AUMF). These conflicts may overlap, however, complicating the analysis. On this theory, we have (or at least we had) a CA2 conflict in Afghanistan with respect to the Taliban (recall that the President ultimately determined that the Taliban would be deemed the government of Afghanistan in Fall 2001 for purposes of GC issues). Because our conflict with al Qaeda is not coextensive with the Afghanistan campaign either temporally or geographically, however, the conflict with al Qaeda arguably is best viewed as a distinct conflict that on the whole does not qualify under CA2, except insofar as it intertwined with the aforementioned CA2 conflict in Afghanistan (it does not follow in the latter case that AQ detainees are entitled to POW status, however, nor – for the reasons Dave highlights – that they would get the full benefit of GCIV either). In short, I think I agree with Marty on the two-track analysis.

The second issue – does the Hamdan decision foreclose a CA2 claim – is more complex than I originally suggested, as Steve and Dave point out. I agree that the majority opinion goes out of its way not to actually take a position on this issue. I also agree that there is language – particularly in note 63 – suggesting that CA3 standards are applicable to all armed conflicts, not just to those “not of an international character.” On the other hand, the thrust of the court’s analysis in that section (roughly pp. 67-70 of the slip opinion) is to rebut the government’s claim that CA3’s scope should be narrowly construed so as to apply only to civil wars within the territory of signatory states. The court does not expressly hold that CA3 itself can be construed to apply directly to those conflicts that qualify as “international armed conflicts” for purposes of CA2, and indeed it really would be hard to square such an interpretation with the fact that CA2 is conditioned on there being an “international armed conflict” while CA3 expressly refers to conflicts “not of an international character.” Nor need one adopt such a countertextual interpretation in order to maintain the position that the substantive standards embodied in CA3 are always applicable in armed conflicts generally, since one could reach that result by concluding that those standards have achieved CIL status for all armed conflict. That approach, of course, raises distinct issues regarding the extent of domestic judicial enforceability in the U.S. (compared to an approach that construes CA3 itself to always apply), a consideration which naturally will impact the extent to which the competing litigants will find it attractive.

All that said, the bottom line is that Hamdan does not clearly foreclose a CA2-based argument for AQ detainees, though in my view it ought to be understood as making such an argument harder to maintain. I also want to acknowledge that it is far easier to describe the categorical boundaries mentioned above in the context of a casual blog post than it is to operationalize them in the real world.

Posted by: Bobby Chesney | Sep 1, 2006 1:29:05 PM

Marty – a quick followup to address your last point. I think your assumption that Geneva IV should apply to persons not qualifying for POW/Geneva III protections in an international armed conflict is generally correct, particularly since you caveat it to apply to nationals of the enemy state. The practical problem with Geneva IV application in the war in terror is, of course, that the US is not at war with the nations where most members of al Qaeda come from, and Geneva IV’s definition of protected persons basically excludes citizens of states with which the belligerent has normal diplomatic relations. (All 10 of the persons currently facing military commission charges are from countries with which the U.S. currently has formal relations).

That’s why Article 75 of Additional Geneva Protocol I, which the U.S. has agreed in several past pronouncements is declaratory of customary international law, is so important. Unlike the very general CA3, it provides some useful specificity in its provisions, and more importantly, is intended to apply to anyone not covered by a more specific treaty provision. I think the Hamdan plurality’s suggestion that Art. 75 be read in conjunction with CA3 to clarify the latter’s more generic language is the preferable approach to persons not falling clearly within the purview of Geneva III or IV. The advantage of CA3 is that it (at least for now) has teeth by being addressed in the War Crimes Act; the advantage of AP I art. 75 is that it has useful specificity, making the two together a synergistic combination.

Posted by: Dave Glazier | Sep 1, 2006 12:52:46 PM

Marty/Bobby – (1) Can there really be separate armed conflicts against al Qaeda and the Taliban when Congress enacted a single AUMF? It seems to me that if we’re going to take the rule of law seriously, the U.S. must legally define a conflict consistently with our own constitutional processes. Whatever form congressional authorization takes, whether a declaration of war or authorizing resolution, should therefore be given sigificant authority in defining the legal scope of the conflict. I suppose it’s possible to read the AUMF as a series of blank checks that the President can simply fill in with the names of each new group/nation he finds participated in or aided the 9/11 attacks. But I’d think a better reading is that it authorizes a single conflict against those found collectively responsible. The war in Iraq, is of course, an entirely separate conflict both because it was separately authorized by Congress and because even President Bush has stopped just short of definitively claiming that Iraq’s involvement with terrorism reached the threshhold specified by the AUMF. (2) IF the Hamdan Court had definitively stated that the conflict Hamdan was captured in was a CA3 conflict and not an international conflict as defined in CA2, it would make sense to argue that an Article 5 tribunal was moot. But careful reading of Hamdan shows the decision is actually very imprecise – the Court essentially treats CA3 as if its lesser protections would necessarily be found in the full POW Convention, and by finding that at minimum CA3 would apply, the same result – halting the commissions – is reached whether it is a CA2 or CA3 conflict. The Court thus never holds Hamdan was not captured in a CA2 conflict, just that even if he was not, it was at least a CA3 conflict. Footnote 61 specifically addresses the Article 5 tribunal issue, noting that the Court is not deciding the issue of whether one still might be required. One thing the Court does not address is whether the DC Circuit was correct in holding that the commissions themselves could serve as the Article 5 tribunal, first deciding whether or not the accused was qualified for POW status before proceeding to the merits of the charges against them. While there are lots of reason to dislike this dual role, it does seem consistent with some historic precedents I’ve found dating back to the Civil War and seems implicitly supported by the language of Additional Geneva Protocol I article 45.

(3) I’ve rewritten my forthcoming BU Intl L J paper on international law applicable law to the commissions to address the Hamdan decision which I think really leaves all the key international law issues unresolved. My latest draft is posted here:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=896643

and I’d most definitely welcome any constructive criticism while there’s still a bit of time to make final changes.

Posted by: Davie Glazier | Sep 1, 2006 12:28:16 PM

Well, there are at least two armed conflicts here, right? — against Afghanistan and against Al Qaeda (not to mention the conflict in Iraq). I think the Article 5 issue probably remains with respect to someone detained in the Afghan war (or in Iraq), even if they are suspected of being part of Al Qaeda. Someone detained “solely” in the conflict with Al Qaeda, however — say, in Pakistan or in Europe — is detained only in a conflict not of an international character, and thus apparently receives “only” CA3 protections. Isn’t that what happens in a “traditional” internal civil war, which is the prototype of a conflict not of an international character — or is there some issue of POW status even there?

(I’m putting aside here any complications potentially arising in a case involving possible civilians, i.e., implicating GCIV.)

I must admit that I’ve never quite understood the emphasis on the Article 5 question. With the possible exception of a few Taliban detainees, it seems implausible that many of the detainees in these wars, outside of Iraq, would qualify for POW status. That’s why, for me, Common Article 3 has always been the whole ballgame. Which is no small thing, because CA3 *ought* to be read to prohibit most of the “enhanced” CIA techniques, and those secretly approved for the military in 2003 per the Working Group Report.

The more interesting question, for me, is what Geneva protections, if any, are available for non-POW belligerent detainees — e.g., terrorists or “brigands” — in a war that is of an international character, e.g., Al Qaeda detainees captured in Afghanistan. My rough understanding is that perhaps Geneva IV is the applicable law — at least as to nationals of the nation with whom we are at war — as it is with respect to most detainees in Iraq. But at this point I’m afraid I’m just repeating what others have told me.

Posted by: Marty Lederman | Sep 1, 2006 8:59:46 AM

Bobby — Is it possible to see the Court’s decision as an either/or proposition — that CA3 applies at a minimum, without reaching whether CA2 (and therefore the rest of substantive Geneva) applies? If so, then this doesn’t necessarily follow, right?

Posted by: Steve Vladeck | Sep 1, 2006 2:39:58 AM

I can’t top Marvin K. and I’m not even going to try. Thanks to Dan for inviting me to spend the past month on Prawfs, and thanks to the many folks who offered thoughtful comments on my posts. I appreciated the virtual conversation and look forward to the possibility of renewing it in the future.

Posted by Michael O’Hear on August 31, 2006 at 09:44 PM

Comments

One mustard-slathered knish?

Posted by: Dan Markel | Sep 1, 2006 12:48:45 PM

I think someone should say goodbye with the subject line “So long and thanks for all the fish,” or better, some witty alteration of it. Do guest-bloggers receive anything that rhymes with fish?

Posted by: Chris | Sep 1, 2006 11:40:16 AM

Thanks Michael–great posts. We’ll see you in the new year.

Posted by: Dan Markel | Aug 31, 2006 11:24:55 PM

One of the many interesting questions in the world of post-Booker federal sentencing is whether a judge, in sentencing one defendant, is required (or permitted) to take into account the sentences imposed on codefendants. Yesterday, the Third Circuit issued an interesting opinion on this question. (Doug Berman has an excerpt and link to the opinion here.) In United States v. Parker, the defendant received a sentence of 349 months, while his codefendants in the drug trafficking case received only 86 and 180 months. Parker argued this his sentence was “unreasonable” (the post-Booker standard for appellate review of sentences) “because it failed to take into account ‘the need to avoid unwarranted sentence disparities mong defendants with similar records who have been found guilty of similar conduct’ as provided by [18 U.S.C.] 3553(a)(6).”

I have argued elsewhere that (a)(6) should not be read to encompass codefendant disparities, so I was not unhappy that the Third Circuit rejected Parker’s argument. Yet, while the court did not require codefendant sentences to be considered, the court did indicate that judges were permitted to take the factor into account. I am a big fan of increased sentencing discretion post-Booker, but I am troubled by the prospect of a sentencing judge saying something like this: “I see, Mr. Defendant, that your guidelines sentence is about 20 years, but your coconspirator, whom I sentenced a few months ago, got only 10 years. So, I’ll split the difference and give you 15.” (For an example of a real case in which the judge seemed to be doing just that (United States v. Strange), see my article linked above.) This approach seems to make the sentence depend on the vagaries of who gets prosecuted and sentenced first–precisely the sort of arbitrariness that the guidelines were intended to eliminate.

Where I would find codefendant disparity the most palatable as a sentencing factor would be where the disparity highlights some systematic problem in the guidelines sentencing calculus. For instance, Section 3E1.1 of the guidelines operates as a de facto trial penalty, meaning that the defendant who invokes his constitutional right to a trial is likely to get a longer guidelines sentence than his codefendant who pled out. Such disparities are troubling, but what makes them troubling is not that two codefendants received different sentences per se, but that they received different sentences based on a consideration that shouldn’t really matter. To the extent that district courts take up the Third Circuit’s invitation to consider codefendant disparities, I hope they will do so with careful attention to what actually drives the disparities, rather than taking the more clumsy approach of Strange.

Posted by Michael O’Hear on August 31, 2006 at 12:00 PM

Comments

Here a link to the article on SSRN: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=871246 . The article is not in print yet, so the SSRN site is the only place it is available. Strange is at 370 F.Supp.2d 644 (N.D. Ohio 2005).

Posted by: Michael O’Hear | Aug 31, 2006 9:39:25 PM

Maybe I missed something, but I don’t see a link to the article discussing Strange or a link to that case for those of us without westlaw or lexis access.

Posted by: X | Aug 31, 2006 7:19:10 PM

Seuss-like: “The time has come, the time is now . . . [Paul M. Secunda] will you please go now.”

OK, well Dan didn’t actually say exactly that and in fact, he and the rest of the Prawfs have been every bit the gracious hosts.

It really has been a pleasant stay. While here, I’ve been facebooked, textbooked, addicted, stressed, dressed up, faced down, and along the way have opened my door, referred to students by their first names, had some awkward moments, and engaged in some really bad ’80’s music digressions.

I hope you will all come visit me at my regular blogging spot, Workplace Prof Blog.

But now, by Zumble-Zay, I must be on my way.

“The time had come. SO . . . [Paul] WENT.”

Posted by Workplace Prof on August 31, 2006 at 10:48 AM

Comments

Lot of thoughtful stuff and LOL frequently. Oh, and by the way, I used Dorothy and the Wizard to explain a letter of credit today (Dorothy is small and meek, but no fool; she wanted a letter of credit that said if she got the broomstick (girdle in the book) of the WWotW she could take it to Emerald City Bank and present it with her certificate, because she suspected there was something fishy behind that curtain), and, as far as I could tell, none of them knew what I was talking about. Maybe if I had referenced the movie to which you play Dark Side of the Moon….

We’ll miss ya, man.

Posted by: Jeff Lipshaw | Aug 31, 2006 12:33:28 PM

Paul, many thanks for your great contributions. See you at Workplace Prof!

Posted by: Dan Markel | Aug 31, 2006 11:42:05 AM

For the past six years or so, first-year students where I teach have attended a panel session (right before the opening-of-the-year dinner) featuring 3 or 4 faculty members who are asked to describe their own scholarship and research interests, and also to talk more generally about the scholarship dimension of law-professor-ing. My sense is that this tradition started in order to explain to students what professors do all day, when they are not teaching, and also in response to a worry that some students might devalue, or perhaps even resent, their professors’ scholarship goals. And, I think there was also the aim of firing up law students to think about doing scholarship themselves.

This year’s panel was last night, and I was one of the participants. I suggested that teaching (including mentoring, career counseling, etc.), citizenship (including public-education efforts, law-reform work, pro bono service, etc.), and scholarship are (or, can be) complementary dimensions of a law professor’s vocation, and that one of the challenges of that vocation is integrating these dimensions in a responsible and fruitful way. And, I tried to say that, because law students are preparing to live and work in what we like to think is a learned profession, they will almost certainly — whether or not they go into the academy — have to deal with a similar challenge.

What would you say, at such a panel? What would you ask, if you were a student attending such a panel?

Posted by Rick Garnett on August 31, 2006 at 10:38 AM

Comments

Where indeed! I guess I’d put it under “citizenship.” Or, maybe under “avoidance behavior.”

Posted by: Rick Garnett | Aug 31, 2006 1:11:05 PM

Where does blogging fit in?

Posted by: anon | Aug 31, 2006 1:03:59 PM

A few minutes ago Dave Lat sent word that he’s launching his new post-Wonkette website, a legal tabloid called Above the Law. The site is essentially a souped-up version of his other site, Underneath Their Robes, meaning that it bears the snark of UTR and the aesthetic sense of Wonkette. A few quick reactions. What makes the site particularly gruesome to the eyes is the obstreperous banner ads that change graphics every second or so. Great that cfo.com and Kayak.com are advertising; I only recently discovered kayak and sidestep for travel planning purposes. And Lat’s gotta make a buck now that he’s not at Wachtell or on the federal dole. But if the ads aren’t tuned down a notch, it will drive readers away, or at least this one. (I find Slate’s advertising also is going graphically overboard, fwiw.) Second, I noticed that UTR is not part of the ATL blogroll, which makes me wonder whether Lat will wind down operations at UTR. Third, as to the content of ATL, it’s very similar to UTR: high-end salaciousness that will likely make you feel a bit dirty for reading it but will also trigger a few smiles. Especially outre are the rankings and descriptions of the “legal eagle” couples in the NYT weddings section. As Lat notes elsewhere, it’s one thing to dis judges who are public figures. So I’m not sure the same rancorous treatment is called for regarding these listings, especially since what gets put in the published version is not necessarily what the couples asked for or submitted. Anyway, I have no doubt I’ll be reading it regularly. Good luck with the new venture, Dave!

Posted by Administrators on August 30, 2006 at 04:48 PM

Comments

“I think it’s fair to assume that by posting a wedding announcement in the NYT, you are risking some amount of snickering behind your back. But are you risking snickering by, say, Dan Rather on the CBS Evening News?”

Well, an acquaintance of mine got married, put a wedding announcement in the NYT, and had Jay Leno make fun of his and his bride’s last names. Leno isn’t Dan Rather, but Lat isn’t the National Legal Journal, either.

Lat’s satire of the NYT wedding pages is quite gentle, as compared to, say, xoxohth’s analysis of the looks of females in law-school facebooks and law firm associate biography web-pages. I’m inclined to give it a pass. If one finds it offensive, it’s easy enough to avoid.

Posted by: Ted | Sep 1, 2006 8:49:15 PM

In response to Bruce Boyden’s comment, in which he said “Unless you’re a celebrity, until recently you could safely presume immunity from public snickering, and I think there’s some amount of cultural inertia at work that continues to move that presumption forward, despite the fact that things have changed.”

I agree that the line has moved, so that non-celebs may be noticed and mocked more than before.

BUT, I think the more important trend is that the people David Lat is highlighting HAVE BECOME CELEBRITIES. If you seek the highest legal circles — BigLaw, PrawfWorld, The Elect Clerks, etc. — then you are seeking celebrity status. There have always been athletes or actors who wanted to practice their craft but then blend into the anonymous crowd as soon as the game or movie was over. But society has essentially told them “tough luck. You want to be in the big leagues; you accept the microscope.” Now it’s hitting a broader circle of lawyers than was once the case.

This is a form of Lat’s waiver argument, but I’d give it more teeth. Even if you don’t apply for the NYT wedding page, you are stepping into the spotlight by taking one of the brass-ring positions in Law, and you are fair game for Wonkette and all the rest.

Is this “fair” ? That’s another question. But is it happening? Yup. You’ve been warned.

Posted by: just me | Sep 1, 2006 6:23:18 PM

Hey, cool, I say his name and Lior appears! It’s sort of like “Hello sailor.”

Anyway, I’m not persuaded by the waiver theory, at least not until the Internet finishes seeping into ordinary culture. But I hasten to point out I don’t know that there’s anything wrong with David’s site either. I think it’s fair to assume that by posting a wedding announcement in the NYT, you are risking some amount of snickering behind your back. But are you risking snickering by, say, Dan Rather on the CBS Evening News? My sense is that most people — even tech-savvy teenagers — still see some sort of line there. Unless you’re a celebrity, until recently you could safely presume immunity from public snickering, and I think there’s some amount of cultural inertia at work that continues to move that presumption forward, despite the fact that things have changed. The iceberg’s been spotted, but the Titanic hasn’t started turning yet.

Posted by: Bruce Boyden | Sep 1, 2006 1:33:11 AM

Lior, thanks for coming to my defense! Even though you rejected my second defense, I’ll take rejection like that any time. 😉 And yes, some of the stuff on Veiled Conceit makes my remarks look tame by comparison.

At the end of the day, though, it’s all just commentary — nothing more. When people put themselves out there, in the pages of what’s arguably the nation’s “newspaper of record,” they know they’re opening themselves up to scrutiny (the waiver point you identify). So when observers comment on what’s in the newspaper, it’s hard to see what the cause for complaint is.

As a blogger, I put myself out there too. So when people say mean things about me, on message boards or in nasty emails, I don’t let it bother me (or try not to let it bother me). If I can dish it, I have to take it.

My new credo, courtesy of Samuel Johnson: “I would rather be attacked than unnoticed.”

Posted by: David Lat | Sep 1, 2006 12:02:53 AM

You rang, Bruce? I find Dave’s first defense (waiver) persuasive, but not his second. Dave is a supernode, a very successful and gifted blogger with a large readership, so he’s a lot closer to a newspaper reporter than a coffee-toting lawyer. If a lawyer snarks in his dining room, and no one is around to hear it, he may as well never have snarked at all.

For whatever it’s worth: Veiled Conceit has been dissecting the Times wedding pages for quite some time now. The blog has been inactive this summer, but beforehand, the venom really flowed. http://nytimesweddings.blogspot.com/

Posted by: Lior | Aug 31, 2006 10:14:50 PM

I’m only doing — in a blog, which is nothing more than a journal of my individual thoughts and ramblings — what pretty much every overachieving lawyer is doing every Sunday, with coffee and croissant in hand.

Well, this is interesting, and an issue for Dan Solove and Lior Stahilevitz and others to think about, but there is an important social difference between thinking something to yourself, discussing it with friends, and making a speech about it at a news conference. Blogs weirdly vacillate between the latter two categories, but it’s certainly different than thinking such thoughts by yourself.

Posted by: Bruce Boyden | Aug 31, 2006 12:25:39 PM

I think, in the interests of full disclosure, it might befit us to point out that no fewer than three of us on this blog have had our weddings in the New York Times. I don’t know which way this cuts, but we might as well be up front about it. My own view on whether David can or should include them on his site: mock away! Just make sure you get the name spelled right.

Posted by: Paul Horwitz | Aug 31, 2006 11:30:00 AM

I second Adblock. I rarely see ads. When I have to use explorer or another computer with firefox, I am like wtf? Where did all these ads come from. What’s great about adblock is that you can zap on the fly. Satisfaction!

Posted by: Bart Motes | Aug 31, 2006 10:56:07 AM

I’ve been in correspondence with Dave Lat about the site, and he gave me permission to reprint his justification for the Legal Eagle watch:

I did feel a little guilty at first. But I assuaged my doubts with two thoughts. First, the couples volunteered themselves up to be featured in our nation’s newspaper of record (even if they didn’t control the ultimate content). In fact, so many more couples get rejected than get included. People are vying for this! (Don’t get me wrong — I would totally want to make it into them myself! Indeed, I see my life as incomplete until I’m featured in the Times wedding pages. It’s one of my goals in life.) Second, and perhaps more persuasively, I’m only doing — in a blog, which is nothing more than a journal of my individual thoughts and ramblings — what pretty much every overachieving lawyer is doing every Sunday, with coffee and croissant in hand. When we read the Times wedding announcements, we do so to compare ourselves to the happy couples. We ask ourselves: How do I stack up? Is that person smarter than I am? Is that person more attractive? Is that person from a wealthier family? So I’m just bringing out into the open what’s going on inside thousands of little heads every week…

Posted by: Dan Markel | Aug 31, 2006 10:10:26 AM

Dan, isn’t the NYT wedding page itself a bit more alarming than satire of those on it?

Here’s a quote from the Noah article I linked to:

“The Times wedding pages are clearly more meritocratic than they were in the bad old days of what Nicholas Lemann has termed the Episcopacy, but there’s a limit to how meritocratic they can be because most people, even today, are too young when they get married to have acquired much wealth or power on their own. Although the Times wedding pages no longer give much preference to Mayflower descendents, it’s still true that the best way to get your wedding written up by the Times is to be the daughter (or, increasingly, the son) of the chief executive officer of a Fortune 500 company. There’s little reason to believe that a female telephone receptionist’s civil union with a female dental assistant stands any greater chance of getting a Times write-up under the new, more “inclusive” policy than it ever did under the old.”

Not that I don’t know of a few folks who more than merited their inclusion! 🙂

Posted by: Frank | Aug 30, 2006 8:18:00 PM

If you use Firefox as your browser, and you download the Adblock add-on, you can block the ads on the site.

Posted by: Random Lawyer | Aug 30, 2006 6:05:52 PM

ATL’s design is the same as the publisher’s primary site, DealBreaker. Direct your criticism not to Lat, but to DB founder Elizabeth Spiers.

Posted by: Adam White | Aug 30, 2006 5:55:34 PM

That site is so revolting, sad, and utterly fascinating — kind of like watching the remains of a car wreck.

Posted by: Don Anon | Aug 30, 2006 5:09:04 PM

Whenever people ask me whether I like what I do for a living, I invariably respond: “Being a law professor is the greatest job in the world.”

And I really mean it. What with the ability to satisfy intellectual curiosity by engaging in scholarship and interacting with wonderful colleagues, to teach and interact with students, to have flexible work days and lots of vacation time to spend with family, to be in an academic environment, it really is a hard gig to beat (especially compared to billable large law firm life).

Yet, I and so many of my fellow law professors seem really stressed out. Do we as Type A personalities not know how to relax (this from a guy who take his computer on family vacations so he can blog) and no matter the job we would be equally stressed out? Or is it something about the nature of what we do for a living, which even though it is a great job, very much causes stress (even with worrying about getting tenure put to one side).

Well, think about that while I am frantically trying to prepare for teaching labor law in a hour or so. Of course, after that I need to worry about what I’m going to have for lunch, and then . . . .

Posted by Workplace Prof on August 30, 2006 at 10:28 AM

Comments

I read somewhere that today having no free time and being busy is considered a proxy for being important and successful. So naturally, people learn the value of this signal and emulate it. The other explanation is that there is so much information in the modern academic universe that there is always more to read and to know. That is stressful.

Posted by: Bart Motes | Aug 30, 2006 12:12:03 PM

Getting a law prof job requires being an academic overachiever; faculties are filled with overachievers. So we keep on overachieving, or at least trying to, and trying to do that is stressful.

At the same time, I don’t think it’s stressful after the first 5 years. Looking around at my colleagues, for the most part they are not stressed out about anything work-related.

Posted by: lawprof | Aug 30, 2006 12:05:56 PM

Per your post on Workplace Prof blog, at least workplace stress has fewer adverse health effets on professionals than non-professionals.

More seriously, this is a great job but some parts of it are stressful. The teaching part of it is an enormous amount of work the first few times you teach a class (something profs — and even “prawfs” — don’t talk about enough, I think). The scholarship part is stressful both in the writing (is it ever “good enough”?) and submission/acceptance process. And all this is assuming nothing major is going wrong (big faculty splits, students not liking you).

Also, let’s face it: law profs, at least at the start of their careers, are usually “Type A” personalities, at least in the “ambitious and perfectionist” sense.

In sum, just because whatever you’re working on right now COULD be better, don’t worry about it … too much.

Posted by: Joseph Slater | Aug 30, 2006 11:24:22 AM

If you’re like me, and enjoying the two days of school that have been cancelled on account of Ernesto, you’re probably wondering, Hmmm, what interesting criminal/constitutional law article can I read today? Let me help. Guest blogger Michael O’Hear has just posted on SSRN his very interesting article entitled: Two Types of Consequentialism, Two Types of Formalism: Reconsidering Bordenkircher in Light of Apprendi. I read a draft earlier this summer and think Michael has found and analyzed a very challenging and unusual problem. Here’s the abstract:

While the Supreme Court approved of the use of charging threats nearly thirty years ago in Bordenkircher v. Hayes, a more recent line of cases has subtly undermined key premises of that landmark decision. In order to induce guilty pleas, prosecutors might use any of a number of different tactics. A prosecutor might, for instance, charge aggressively in the first instance and then promise to drop the most serious charges in return for a guilty plea to a lesser offense. Bordenkircher addressed the mirror-image of this tactic: the prosecutor filed relatively minor charges at first, but then threatened to pursue more serious charges if the defendant did not plead guilty. The Supreme Court approved of such charging threats based on two considerations: the efficiency benefits of resolving cases by plea instead of jury trial, and the possibility that prosecutors would evade a ban on threats by charging more aggressively in the first instance. The Court’s reasoning, however, is inconsistent with Apprendi v. New Jersey and its progeny. Apprendi rejected the use of both efficiency considerations and evasion concerns as grounds for impairing access to juries. Apprendi instead emphasized a need for robust checks and balances within the criminal justice system. Because the Apprendi line of cases addressed sentencing procedures, not plea bargaining, their relevance to Bordenkircher has thus far escaped notice. The Article argues, however, that the Court should now overturn Bordenkircher in light of the values it embraced in Apprendi. The Article also proposes a new test for evaluating the constitutionality of charging threats.

The rule Michael proposes to the Apprendi 5 prohibits prosecutors “from carrying through on threats made after formal charging that have the effect of increasing the defendant’s sentencing exposure.” What appears to motivate this proposed test is a special solicitude for the welfare of the defendants who want to go to trial and yet, because of that decision, face higher penalties. This group is obviously one that elicits sympathy, for as Michael explains, their decision to go to trial follows from “a firm belief in their innocence, unusual optimism regarding their chances of winning at trial, extraordinary bullheadedness, ineffective legal counsel, and/or an expectation that the results of a conviction will be especially onerous.” These condions, it bears emphasis, have essentially little connection to the defendant’s culpability. But, as Michael adeptly shows, one cannot embrace this new rule without an acute understanding of the difficulties that are likely to result in a system where the government wields great power and will search for other means of evading this new procedural tax on the prosecution. Check out this very interesting paper.

Posted by Administrators on August 30, 2006 at 12:08 AM

Comments

I agree with most of what Dave has to say, but disagree about his diagnosis of the cause of the problem. The prime reason for the prevalence fo plea bargaining is that modern legislatures enact much “more” criminal law than they have the stomach or wherewithal to pay for. In most jurisdictions, the longstanding shortage in funds for defense services has been joined with new shortages in funding for sufficient prosecutors, judges, jails, etc. The criminal sanctions regime is one giant unfunded mandate. The implications of this are striking. First, on a theoretical level, the failure of society to feel the full costs of the laws it chooses to enact calls into question the democratic legitimacy of many criminal laws. Second, on a practical level, the unwillingness to fund the resources necessary for the criminal justice system to operate properly creates a vicious cycle in which the prevalance of harsh unfunded criminal laws requires substantial plea bargaining which then requires even harsher laws to give prosecutors better clubs with which to force plea bargains.

Posted by: Andrew Siegel | Aug 30, 2006 10:34:49 AM

I utterly fail to see the distinction between charging low first and threatening a more serious charge if the person goes to trial, and charging high first and pleading down if the person accepts a deal. From a contract perspective, it’s the same thing: the prosecutor forces the defendant to pay a price to go to trial. Both can be expected to have the same screening capacity: defendants will more or less accept sentences in plea deals that are less than the expected value of going to trial: the likelihood of defeat at trial times the offered sentence.

Further, both strategies stem from essentially the same problem: our system of jury trial, with all its attendant procedures and rules of evidence, is an extraordinarily expensive way of finding out “what happened,” as compared with civil law systems of justice, which employ repeat-player professional judges who can decide much more cheaply. Society cannot possibly fund a jury trial for every criminal defendant, the vast majority of which are guilty: thus we have the institution of plea-bargaining, which allows defendants to trade trial rights for lower sentences, and allows prosecutors to save time and money. Given the existence of plea-bargaining, which is not going away without wholesale reform of our criminal justice system, I simply can’t see the distinction between charge high and charge low strategies: one or the other is going to be around. From the perspective of the defendant, it doesn’t much matter which one it is.

Posted by: Dave | Aug 30, 2006 9:53:46 AM

It’s going to be an interesting year here at Wake Forest, as our dean, Bob Walsh, is stepping down after a remarkably successful 18-year run at the helm. Not having been involved in a dean search previously, I’m not quite sure what to expect of the process. I’m sure universities vary widely in their approach to dean searches, but nonetheless would be curious to know whether readers have any comments on the issue from the junior faculty point of view. Is this a time for junior faculty to be assertive? Cautious? Assertively cautious? What qualities, in your view, should junior faculty be looking for in a dean candidate? Are there red flags to watch for?

Posted by Bobby Chesney on August 29, 2006 at 10:28 PM

Comments

I served on a dean search committee as the designated “junior faculty” represenative during my second year of teaching. My colleagues on the committee had all been through at least two dean searches, and had a better ability to judge the promising candidate from the risky one. Trust that your senior colleagues, who had the good sense to hire you, will also make smart choices when it comes to the school’s next dean.

I tried to view my role less as evaluator of candidates than as an advertisement for the school. Potentential deans need to know that a school has good up-and-coming talent, since it’s in no small part due to the efforts of junior faculty that a school can avoid decline in its scholarly reputation or faculty productivity. Most dean searches involve two-way selection — in the sense that potential candidates often need to be convinced this is the right school to which to forever tie their professional preputation, and schools are obviously looking for the best candidates. My suggestion to junior faculty on such committees is to concentrate on selling your school to the candidates, rather than seeking to expose candidates’ weaknesses.

Also, block off some time, because it’s a ton of work!

Posted by: Geoff | Aug 30, 2006 11:03:23 AM

Mone more thing: my advice is to lay low. Tensions will run high, as people who have been at the school for a long time will be playing the battles they need to play. But if you’re pre-tenure, it’s better to keep a low profile to avoid ticking people off. That’s my 2 cents.

Posted by: beenthere | Aug 30, 2006 2:39:08 AM

I went through a dean search when I was a junior prof, and it was really hard: The factions of the faculty came out of the woodwork, and the experience really made you choose your faction. Are you a diversity guy? A scholarship guy? A political activist guy? You may think you’re all of the above, but Dean searches make you chose your camp — and will bring out a lot of tensions on your faculty among the various factions.

Posted by: beenthere | Aug 30, 2006 2:37:26 AM

From the linked article: “I’ve been privileged to participate in developing the best law faculty in America,” Walsh said. Good thing he’s stepping down since apparently he’d been spending his time helping out Yale!

Posted by: Matt | Aug 29, 2006 11:00:14 PM

This Wall Street Journal piece reports that “[o]ver the past two years scores of organizations have faced scrutiny [from the IRS] for allegedly mixing their political convictions with their religious ones. And this summer the IRS expanded a program it first launched in 2004 to take direct aim at political advocacy inside houses of worship.” It continues:

The IRS has also announced it will no longer wait for complaints to come in, but will instead take action “to prevent violations.” It will be reviewing the content of sermons, it says, as well as the financial books of religious organizations.”

This problem — that is, the problem that attends the perhaps-unavoidable task of enforcing the terms of religious organizations’ tax exemption — is, I think, such an interesting one. If we think (as I do) that such organizations ought to be largely exempt from tax burdens, but worry (as we well might) both about fraud and abuse and about the tricky enterprise of distinguishing between prohibited politicking, on the one hand, and faithful engagement, on the other . . . what should we do?

I wrote a few months ago, in USA Today, that:

Religious leaders and activists have always spoken provocatively — and even prophetically — about faith’s implications for citizens, candidates, policies and elections. Not surprisingly, these reminders often prompt criticism and resistance in the pews, the news media and the public square. But we should neither demand nor expect our faith commitments or religious ministers to tell us only what we want to hear, or always to assure us that we and the status quo are doing just fine. What’s more, it should not be the place of government officials or IRS agents to impose and enforce a line between pastors’ stirring sermons and partisan stump speeches. . . .

Of course, there are good reasons — religious reasons — for clergy to be cautious and prudent when addressing campaigns, issues and candidates.

Reasonable people with shared religious commitments still can disagree about many, even most, policy and political matters. It compromises religion to not only confine its messages to the Sabbath but also to pretend that it speaks clearly to every policy question. A hasty endorsement, or a clumsy or uncharitable political charge, has no place in a house of worship or during a time of prayer — not because religion does not speak to politics, but because it is about more, and is more important, than politics.

See also this paper I wrote a while back, “A Quiet Faith? Taxes, Politics, and the Privatization of Religion”:

The government exempts religious associations from taxation and, in return, restricts their putatively “political” expression and activities. This exemption-and-restriction scheme invites government to interpret and categorize the means by which religious communities live out their vocations and engage the world. But government is neither well suited nor to be trusted with this kind of line-drawing. What’s more, this invitation is dangerous to authentically religious consciousness and associations. When government communicates and enforces its own view of the nature of religion­, i.e., that it is a “private” matter, ­and of its proper place­, i.e., in the “private” sphere, not “in politics,”­ it tempts believers and faith communities also to embrace this view. The result is a privatized faith, re-shaped to suit the vision and needs of government, and a public square evacuated of religious associations capable of mediating between persons and the state and challenging prophetically the government’s claims and conduct.

Posted by Rick Garnett on August 29, 2006 at 10:54 AM

Comments

Oh, so churches are normal 501c3 orgs? I always thought they had a separate exemption category. Shows what I know about tax law too, I guess.

Posted by: Paul Gowder | Aug 31, 2006 9:46:36 AM

“tax exemption for churches is constitutional at all? I”

exemption is not limited to churches. one can support any charitable or eductational, etc. purpose (just don’t tell bob jones university that). organizations advocating gay rights etc. get 501c3 exemption along with the churches.

Posted by: andy | Aug 31, 2006 9:31:38 AM

I’m not an establishment clause person, so can someone give me the 30 second explanation of why the tax exemption for churches is constitutional at all? I mean, primary purpose to advance religion?

Posted by: Paul Gowder | Aug 30, 2006 6:18:45 PM

Thanks, Marty. On the question whether the application of the condition to churches is unconstitutional, I guess my view is, “it depends.” Like you, I doubt that the relevant doctrine precludes the government from attaching viewpoint-neutral conditions having to do with campaigning and electioneering to (c)(3) status. I *think* I’ve tried to suggest only that the enforcement of that condition can, as you put it, “raise serious constitutional [concerns].”

I also agree with you that exempting churches, but not other (c)(3)’s, from the condition could raise concerns, under the relevant doctrine. (It could also have bad effects on the churches and their understanding of their vocation and mission.) I’m genuinely unsure, though, whether or not exempting them (or, subjecting them to a scaled-back, less entangling set of brighter-line conditions) would be a good idea, and a good way of operationalizing our religious-liberty commitments.

Posted by: Rick Garnett | Aug 30, 2006 10:14:35 AM

“This scrutiny is undesirable, and bad for religious freedom, *even when* churches submit to it.”

Hard to argue with that. And perhaps that means that many churches should simply settle for being 501(c)(4)’s rather than 501(c)(3)’s.

But the current issues, or so I had thought, are whether the current application of the condition to churches is unconstitutional (I think not), and whether churches should be made exempt as a matter of law from the condition for 501(c)(3) status that applies to all other nonprofits (again, I think not — largely because I think such an exemption would raise serious constitutional).

Posted by: Marty Lederman | Aug 29, 2006 6:53:36 PM

Marty, you are right, definitely, that a religious organization wanting to avoid having its conduct and expression scrutinized for excessive political content can simply opt out of being tax-exempt. I should have been more careful, and added that, as I see it, this scrutiny is undesirable, and bad for religious freedom, *even when* churches submit to it. (I tried to flesh this out a bit in the Boston College essay).

Posted by: Rick Garnett | Aug 29, 2006 5:35:28 PM

But Rick, that question — whether contributions will be tax-exempt — is the *entire* issue, isn’t it? The condition for such tax-exempt contributions is that the entity not engage in any political advocacy. Every other nonprofit wishing to retain 501(c)(3) status must abide by this condition. If a church does not wish to be subject to the condition — if it wants no IRS review of its expression (including sermons) — it can say so tomorrow, no questions asked. But it will then sacrifice its 501(c)(3) status — same as all other nonprofits.

In my view, if churches, and churches alone, were able to receive 501(c)(3) status *without* abiding by the speech condition that applies to all similarly situated entities, it would raise serious Free Speech and Religion Clause questions, because it would give churches a speech advantage that no one else has *with respect to core political activity.*

Posted by: Marty Lederman | Aug 29, 2006 3:16:48 PM

Thanks for the comment. I guess I *don’t* think that “religious” contributions to “political” conversations and contests should be “financially privileged.” (It could be, though, that they have to be, in effect, financially privileged, because the entanglement and religious-liberty costs of policing a electioneering / religiously-informed-activism line are too high. I’m not sure.) I am entirely open (I think!) to the possibility that, while churches *should* be tax-exempt, contributions to churches should not (at least, they should not be privileged over contributions to other entities that might, as part of their mission or activities, engage in advocacy and activism). Of course, the churches almost certainly don’t want this!

Posted by: Rick Garnett | Aug 29, 2006 2:39:54 PM

Rick, I agree generally that we have more acute entanglement issues when we try to tax religious activities.

But, as I understand it, your view is that relgiously-motivated views are legitimate contributions to political discourse. Is there any particular reason those views should be financially privileged?

If you think not, then you probably have to agree that 501(c)(3) organizations — that is, those for whom a contributor’s donation is deductible — should not engage in politics, or not much of it. Gregg Polsky and Guy Uriel-Charles, among others, have made strong arguments along those lines. Consider, for example, their claim that, because deductions are more valuable to high-income taxpayers, permitting (c)(3) organizations to engage in politics favors the wealthy. (That seems especially perverse, I would argue, if there is a declining marginal utility of money, so that equivalent campaign-type contributions by high-income contributors do not express the same intensity of voter interest.)

Extending the P/U-C argument, potential donors should recognize where their contributions are most advantageously applied. That suggests that over time (perhaps by now) “religious” exemption really becomes a whichever-party-is-primarily-the-party-of-the-rich (I leave it to readers to decide which one they think that is) exemption. Why isn’t that more entangling, more corrupting, than government regulation? To get yet more technical, why shouldn’t a church that wants to engage in electioneering activities (a term of art) pay tax on them, in the same way that a 501(c)(4) or 527 organization does?

Or, if you agree with these points, but are troubled by the side-effects of current enforcement efforts, how would you suggest balancing the competing interests?

Posted by: BDG | Aug 29, 2006 11:46:22 AM

I guess we all face uncomfortable moments in our lives as law professors, but the ones I dislike the most by far are the awkward meetings between myself and a student I have just given a “D” or “F” on an exam. I know we have to give students what they deserve, but it doesn’t make these encounters any easier, especially when you really like the student.

You would think that it would be these students who would be the first to your office during exam review to see what they did wrong and how they can improve. Interestingly, most students who review their exams with me fall in the A or B range.

In any event, instead of seeking me out and finding what went wrong, these students avoid me like the plague and if we should happen to meet outside in the parking lot or in the hallways of the law school, they look away embarrassed and mumble some inaudible greeting at best before making their get away.

Any good advice out there with how to deal with these “D” students? Is it: if they don’t want to help themselves, you shouldn’t go out of your way to assist them? Or is it: many of these students will inevitably become lawyers, and so any good I can do now, let me do it now, for they shall not pass this way again?

Posted by Workplace Prof on August 29, 2006 at 09:41 AM

Comments

A colleague gave me a good tip on this issue. He said that he grades the exams but does not inquire into who got what grade. Additionally, he tells the students about this practice. I’ve tried this and find it helps in two ways. One, I *think* it avoids some of the sheepishness among the low-scoring students. Of course, I can’t say for sure because I don’t know who those students are, but in theory, it should help some. (It won’t help with the anger, though.) Second, and perhaps more useful, it forces to me to focus on teaching every student as well as possible, regardless whether they seem gifted in that area of law or not. I’m not sure that knowing what grades students earn impedes this goal necessarily, but since using this method I have noticed a curiosity about what grades students are getting. Perhaps it’s just an innocent curiosity, but in the end I feel slightly more comfortable not knowing.

Note: the professor who gave me this tip taught a year-long course and adopted the policy specifically to keep the C and D students from giving up on him the second semester. This trick would also help, of course, with keeping 1Ls from avoiding you (and thereby a class they wanted to take) in the 2L and 3L years.

Posted by: Jack Preis | Aug 30, 2006 11:08:56 AM

I strongly encourage students who received Ds to review the exam with the me to learn what went wrong — and our Dean of Students sometimes requires students who are struggling generally to meet with Professors. I have therefore had many occasions to work through the shame and anger students invariably feel upon receiving a D. For every exam review, I require students to read the strongest exam from the class and then their own to see the difference. For a student to receive a D, they will undoubtedly have missed major issues, mis-stated doctrine, and written poor analyses of the issues they did spot. I will explain all of this to them as gently but firmly as I can, and then will spend time talking with them about their class preparation, outline, and exam studying techniques. When Property was a 2 semester class, I would have a few students in the second semester who received Ds the first. On several occasions, students were able to move from a D to a B or B+. These were always students who had been receptive to my suggestions — and often came to office hours and showed me their outlines and practice exams. I think we owe it to students to help them through the shame factor and explain in a detailed way what they should have done differently. I also give many practice hypotheticals and offer to read the answers during the course of the semester so that students have a chance to see how they are doing before the end of the semester grade.

Posted by: Rachel Godsil | Aug 30, 2006 10:21:11 AM

I think that Alkali’s point is noteworthy in that part of the problem is the “all or nothing” conjunction of both the way most law classes are graded (one test at the end for 100% of grade) and the way legal employers focus so much on grades from the first year. The “that train has sailed” quote is appropriate – students would far prefer more data points in the grading process so that they could make improvements that actually matter to their employment outcomes.

To a degree this may be a matter of perception by the students, since not all career opportunities are lost forever b/c of bad first year grades (as anonymous demonstrates), but it may seem like that to students just getting through with their first year and getting few to no interviews based on the 1st year.

I am certainly sympathetic to students wanting numerous grades, but I also recognize the practicalities of such a system when one is teaching 100 person classes. Perhaps some sort of middle ground can be reached on this matter. Anon also makes a reasonable point about the perceived arbitrariness of grading – I think that if we are honest with ourselves as teachers, know that this sometimes occurs, if not by us, then perhaps we’ve heard of it. Certainly some of us may have experienced what we perceived (maybe accurately or inaccurately)as arbitrary grading back when we were on the other side of the podium.

I think that Bill’s method makes sense and I have begun using a similar technique in the past few years and have found that it greatly diminishes student protests over their grades.

Posted by: Jeff Yates | Aug 29, 2006 7:39:27 PM

I write a detailed exam memo after each exam (~3,000 words). As a precondition of discussing the exam, a student must read that memo, which is readily available for review. I think this policy has made my “face downs” both rare and short in duration. The grades are far from arbitary. bh.

Posted by: William Henderson | Aug 29, 2006 2:56:45 PM

I once got a very poor grade in a class from a professor, and I sought him out prior to grades being released. Instead of talking to me, he took me to the Associate Dean’s Office to break it to me and said “Frankly it was one of the worst exams I’ve ever read.” Then he looked at the Dean, said “That wasn’t too hard” (referring to telling me), and then turned and walked out. The Dean then talked with me, convinced me that I still could do it, and not to give up if I truly wanted to be a lawyer.

I spotted all the issues, stated the rules and reached the correct conclusion – he simply didn’t like the way I wrote my analysis. Hindsight being 20/20 I should have challenged his review.

Needless to say, I graduated, passed the bar on the first attempt, got a good job, have progressed up to better jobs that many of my contemperaries are fighting tooth and nail over. I have also since published extensively, taught as an adjunct, sought to be CLE instructor, and have avoided the silly “transcript” questions. If someone still wants to see my transcript after 10 plus years, then I know the job isn’t worth it. How can so many people be stuck in the past and rely on what they did 15-20 years ago in law school, but have done nothing significant since.

On another note, I did a lot of journalistic type of writing in my undergrad for newspapers, TV, radio, etc., however I was never able to write the “law school” way to get the good grades. I met with the profs, took a “How to” class, etc. Funny thing is that I do quite a bit of appeal work and get nothing but praise.

I don’t believe law school is a very good predictor on how good of a lawyer you will be – I think that comes from one’s own personal drive, etc. However having that black spot on my record is something that bothers me in that if I’m ever given an opportunity to go to the next level (the bench, etc.), that my transcript may actually be an issue.

Am I angry at that prof? No, just disappointed that his type teach.

Posted by: Anonymous | Aug 29, 2006 2:47:36 PM

Paul — One of my most memorable conversations last year was with the student who did the most poorly in one of my classes. It took him/her awhile to get to a point where s/he was comfortable coming to talk to me, but we had a really productive chat about where I thought the student could improve, how I thought a poor grade first semester could be overcome, and volunteering to do whatever I could to help them in their other classes.

I think some of these students are angry, and others are embarassed. There isn’t much you can do for the former, but for the latter, I try very hard to make it clear that I don’t think any less of them, and that they should feel comfortable soliciting my advice.

Posted by: Steve Vladeck | Aug 29, 2006 1:39:26 PM

The problem you identify surely has something to do with the custom in American law schools of grading on the basis of a single end-of-course exam, and the joint practice of law schools and law firms in encouraging hiring on the basis of a small set of first and second year grades. It follows that by giving someone a D or F, deserved or not, you have essentially branded someone unemployable as a lawyer. It would be admirable if some law student who suffered that calamity looked upon it as an opportunity for self-improvement, but at that point, as Austin Powers memorably remarked, “That train has sailed.”

Posted by: alkali | Aug 29, 2006 12:10:22 PM

It’s not shame or embarrasment, it’s anger.

Posted by: Guest | Aug 29, 2006 11:46:44 AM

Surely the main reason they don’t want to talk is shame and embarrassment. This can be awfully hard to get over. If you have the time and inclination and think it will help perhaps you should specifically ask such students to come in and talk with you. If you do so I suspect that more will come in.

Posted by: Matt | Aug 29, 2006 10:00:49 AM

John Locke was born on this day in 1632. (So were Ingrid Bergman, Charlie Parker, and Slobodan Milosevic.)

Here is Locke’s Letter on Toleration (1689). Here is a paper by Steve Smith, “Toleration and Liberal Commitments.” And, here is an interview with Stanley Fish, “There’s No Such Thing as Free Speech.”

Question: Which term is more often used (or misused) in law-school classes: “Lockean”, “Kantian”, or “Rawlsian”?

Posted by Rick Garnett on August 29, 2006 at 09:14 AM

Comments

To merge this with the popular culture thread, this reminds me of the MASH episode in which the doctors tell Radar how to impress an intellectual nurse for whom he has fallen. One way is to say, when Bach is mentioned, “Ah, Bach.” So he says it, and immediately she responds “Ah, Bach? What do you mean when you say, ah Bach?”

Ah, Wittgenstein. Ah, Rawls. Ah, Kant. Ah, Locke.

Posted by: Jeff Lipshaw | Aug 29, 2006 12:41:34 PM

I did plow through the TLP & Investigations for a course in Early Analytic Philosophy, but you’ll notice I don’t pretend to understand what he’s saying (e.g., by citing him in my paper). Kripke’s book on Wittgenstein was far more comprehensible, but even he doesn’t put much stock in actually getting Wittgenstein right.

Posted by: Chris | Aug 29, 2006 12:30:50 PM

Even as someone who like Wittgentein pretty well I must agree that I cringe whenever I hear someone in a law school invoke him since, with a few exceptions (Brian Bix, for one) the vast majority of people in a law school who mention him (including faculty) give not the slightest indication of having read or understood him.

Posted by: Matt | Aug 29, 2006 12:08:16 PM

If I had a dime for every time I heard “Wittgensteinian language game” in law school! I don’t think the term is misused, but the assumption typically undergirding use of the term–i.e.,that Wittgenstein was right about language–seems wrong to me. One of my career goals, not very likely to be fulfilled, is to make “Fregean” as common in law schools as “Wittgensteinian.” If you want to get in on the early action, there are two schools of thought on the pronounciation: Fruh-GEE-an and FRAY-gee-an (with soft G’s, not J’s, if that makes sense).

Too bad the PBS Bleak House didn’t win the acting Emmys. Tulkinghorn and Gillian Andersen were great. I guess it did win for makeup & cinematography, which were also great.

Posted by: Chris | Aug 29, 2006 11:21:44 AM

All three are miss-used quite regularly, but probably Rawls the most these days simply because he’s “fresher”. Most invocations of all three in law schools are not very good, in my opinion, but the miss-use of Locke and Rawls comes from different areas. In the case of Locke it’s usually from libertarians who invoke what they think to be his account of property but mostly just show that they’ve never bothered to read the second treatis with any care, if they’ve read it at all, since Locke quite clearly doesn’t have a libertarian account of property and it’s not all that obvious how you could derive one from his actual view.

Posted by: Matt | Aug 29, 2006 9:56:56 AM

In my Secured Transactions class, even I cannot work in Lockean, Kantian or Rawlsian. I do have a little thing where I can bring in Bleak House, however (can Richard Carstone grant a security interest in his expectation of a settlement from Jarndyce v. Jarndyce?).

Posted by: Jeff Lipshaw | Aug 29, 2006 9:48:00 AM