An exhilarating first two days!

Thousands of visitors!! Come, hang around, drink scotch and bubble tea with us.

A few personal reactions. First, comments have been much better than I expected: none of the crap, or little of it at least, that I had been warned about. So I’m glad I was proved wrong. There’s some concern that we might end up with spam in the comments; I understand that’s happened to my man Kaimi at www.tutissima.com, which is why they closed comments down. It appears that K, N and Chad took a break but they’re back now. Perhaps they’ll end up throwing some bones in this blog too, if our imperial ambitious are eventually realized. They would provide some more balance to the center-left mush Leib and I sometimes push.

Second, blogging is incredibly rewarding, but we have to pace ourselves for the long haul. I think it gets faster as we get better. There seems to be a risk of blogger burnout to consider.

Third, it’s clear that on the tech side, we’re screwing all sorts of things up so far, or at least not optimizing our form and format, but I’m optimistic that we’ll address some of the issues soon.

Fourth, blawging about things that students care about (grades, jobs, admissions, hiring) is popular because students are surfing the web in their classes too much!

What am I missing?? Reactions generally?

Please note blogging may be slow to non-existent over the weekends. Or more thoughtful! But no promises.

Bon weekend.

DM

Posted by Administrators on April 8, 2005 at 05:09 PM

Comments

more site related stuff, really – perhaps allowing HTML in comments so readers can leave links and use italics and underline and bold and the stuff – otherwise, good read for a new blog!

Posted by: Gideon | Apr 8, 2005 6:45:13 PM

I’m not convinced we’re center-left, Dan. You are more center than left. And with me impugning a woman’s right to choose, I’ve infuriated and alienated lefties–never mind that I’m more pro-abortion than I am pro-choice.

So we’ve got work to do.

Posted by: Ethan Leib | Apr 8, 2005 6:03:06 PM

AA1: Crazy talk about gerontocracy?

AmosAnon1 on Lifetime Tenure for Judges

People such as TVC’s Lindgren, et al., tout the basic idea of eighteen year judicial term limits for four basic reasons. Supposedly, it would:

(1) stop judges from retiring based upon political considerations;

(2) open nominations to distinguished older lawyers and judges, who are now shut out as a result of every president’s interest in shaping the Court for decades;

(3) ensure that bad justices can’t haunt us for more than eighteen years;

(4) limit the partisan rancor that currently pervades the nomination process by reducing the stakes of a nomination.

As Ethan says below, the first benefit is undeniable.

But …

couldn’t it just as easily be accomplished by a mandatory retirement age of, say, 70? 65?

As for the second supposed benefit, I wasn’t aware that underqualified young people were getting Supreme Court jobs because older, better qualified people couldn’t be considered. This must be the only field in which a 45 or 50 year old is considered “untested” and “young.” If you are high profile enough to be in line for a nomination at age 45, then you are a star. Maybe you went to a top law school, maybe you clerked or published. In other words, you are qualified; and if you aren’t qualified, it isn’t because only the old people were qualified.

With respect to the prospect of “bad judges” haunting us for 20+ years, just flip it on its head: implementing 18 year term limits would deprive us of the best judges after 18 years of service.

The fourth supposed benefit is really what mystifies me. First, I don’t see Ted Kennedy standing up and saying, “Well, since it is only for eighteen years, we should confirm Mr. Bork.” But let’s assume that Ted would. The result would be more ideologues—from the right and the left—sitting on the Court. And it would make every presidential election revolve around the Court to an even greater degree than it already does. I don’t view these as positive effects.

Put differently, how does increasing the number of times politicians get to debate judicial nominations depoliticize of the process? That’s just crazy talk.

Finally, this would destabilize the Court. Every issue would be up for reconsideration every few years. Whatever you think about the Court’s stances on abortion, affirmative action, enemy combatants, sentencing guidelines, and whatever else, do you really want the Supreme Court re-debating it every four years? Bad decisions should be overturned, of course, but we’d end up with a situation in which Congress, agencies, businesses, and individuals couldn’t act, because the law would be in a constant state of flux.

One of the only things the Court has going for it is its stability and mystique. The moment it becomes just another political branch, reconsidering every foundational position every few years, is the moment the people will rebel against it.

So mandatory retirement age? Sure. Term limits? No way.

Posted by Administrators on April 8, 2005 at 02:56 PM

Comments

People also seem to have forgotten that we are living in an anomolous age. This is, I believe, the longest stretch of time the US has ever gone without a USSC opening. For some reason, the entire political climate seems to be approaching individual situations as representative of endemic problems. The problem with the judiciary isn’t that we have an aging set of judges, but it is that we are not retaining some of the best and the brightest of them through to retirement. The Chief Justice and Stephens (I think) made a report a few years back requesting an increase in the pay scale for Federal judges because too many Judges were using the judiciary as a stepping stone in tehir careers instead of as a capstone. Lets focus on retaining the good people before we arbitrarily decide we don’t like jurists over a certain age.

Posted by: Joel | Apr 8, 2005 4:03:27 PM

What do you think we are, sissies?

Duty to Retreat: A Problem for Conservatives?

Brooks Holland, currently a NYC Public Defender, and about to be a CrimPrawf at Gonzaga Law, writes to us about this interesting criminal law development in Florida about duties to retreat.

Gov. Jeb Bush appears ready to sign a bill that would eliminate any duty to retreat before one may use deadly force in self defense. The NRA apparently pushed for the bill. According to CNN “[t]he bill says a person has ‘the right to stand his or her ground and meet force with force.’” So, self defense in Florida no longer will focus on the necessity of taking one life to protect another in light of the defendant’s inability to retreat safely from deadly force, but instead on the victim’s forfeiture of his right to life due to his own violent misconduct? Perhaps sort of like the old Texas cliché, “He needed a killin’.”

Does this change transform self defense from a justification defense into an excuse defense? Contrast the more traditional approach illustrated in the NY Court of Appeals’ recent decision in People v. Aiken, 2005 NY Slip Op 02562 (Mar. 31, 2005). Interestingly, while this Florida bill would appear to reflect a “conservative” political view toward criminal justice, the Court of Appeals’ decision in Aiken imposing a pretty strict duty to retreat is rooted in the “protection of life.”

DM: I haven’t given tons of thought to the duty to retreat rule, but I know Dan Kahan (Yale Prawf) has written about this in various articles. It seems this is another example of the challenges of expressive politics: how law both constitutes and reflects our competing values and senses of social responsibility. I’d be interested if people had more thoughts on this, especially with empirical evidence, in the comments. Should I be learning target shooting in T-town? Or practicing my sprints?

Posted by Administrators on April 8, 2005 at 01:25 PM

Comments

For heaven’s sake, guys, this is the rule already in the majority of states and has been since the early 1800s. Florida is just joining the other states. The sky is not falling. This is just one aspect of the common law that American frontier judges never liked or adopted (with the exception of the minority states).

Posted by: ED | Apr 26, 2005 11:02:11 AM

By the way, Dan, I haven’t read it since law school, but as I recall George Fletcher’s _A Crime of Self Defense_ (dealing with Goetz) gives some interesting discussion of duty to retreat.

(That may have just been the class, though, and not the book — I had crim law with Fletcher, and he discussed the concept quite a bit).

Posted by: Kaimi | Apr 8, 2005 4:32:55 PM

I’m very interested in this issue, since next fall I’ll be opening a Philosophy of Law class for undergraduates with a discussion of the duty to retreat in self-defense cases. There is something to the notion that machismo is at stake: the no-duty-to-retreat rule in Beard v. United States, 158 U.S. 550 (1895), is called the “true man” rule–i.e., a true man would not retreat. “[A] true man, who is without fault, is not obliged to fly from an assailant, who by violence or surprise maliciously seeks to take his life, or to do him enormous bodily harm.” 158 U.S. at 561 (quoting an Ohio case). I’d appreciate any advice from anyone who has experience teaching self-defense doctrine to undergrads, though there may not be a lot of you, I understand.

Here’s the Findlaw address for Beard, though I can’t seem to put in into a link:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=158&page=550

Posted by: Chris Green | Apr 8, 2005 2:23:27 PM

Goetz is the most apt analogy for the situation. The jurisprudential question of whether this changes self-defense into an excuse based defense is interesting. Justification based defenses can be affirmatively proven by facts surrounding the event. In the case of self-defense, was there a threat? Could I reasonably retreat? Was the level of force I used commensurate with the danger involved? Changing this to an excuse paradigm runs into the question only of whether there was a threat? From what I have seen of this Bill trying to be an Act, the level of force with which a victim may meet force is not very clear. Hopefully the proportionality test is incorporated here …

Posted by: Joel | Apr 8, 2005 2:21:43 PM

What it seems to me as doing is creating a bar to prosecution as opposed to the traditional affirmative defense to prosecution. That is rather problematic. One can envision a scenario where self-defense is claimed in an otherwise outright “criminal” act.

Doing away with the duty to retreat seems rather foolhardy as well. While it almost never serves any purpose – scenarios are hardly ever conducive to “retreat” – the duty does encode common sense. Avoid the situation if possible, only then resort to violence.

(I posted on this a few days ago: http://publicdefender.typepad.com/public_defender_blog/2005/04/meet_force_with.html)

Posted by: Gideon | Apr 8, 2005 1:53:34 PM

There’s an obvious analogy to the Bernard Goetz case. One of the key issues there was, did he have a duty to retreat — to wait until he was actually cornered — before using force?

Posted by: Kaimi | Apr 8, 2005 1:31:49 PM

Gerontocracy

Over at the Volokh Conspiracy, Jim Lindgren is further pitching his new idea (with Steven Calabresi) to limit Supreme Court Justice terms to 18 years. Given that the average stay on the Court is now 25.6 years, will 18 years really solve the problem of “mental or physical decrepitude”? Stevens remains sharp as whip as far as I can tell; and O’Connor surely remains perfectly competent. Rehnquist is ailing, no doubt, but he was perfectly fine until this term — everyone expects his resignation in June (for real this time!).

I suppose the idea has one thing to recommend it: Justices would stop being able to choose to step down during a Presidency with which they are in political sympathy. That would surely be good so Justices’ political leanings can be further swept under the rug. But I’m not really sure I’m eager to see more fights over filling judicial vacancies…

Posted by Ethan Leib on April 8, 2005 at 11:08 AM

Comments

Like many other issues, the discussion requires identifying the real problem. Nominations to the court now come from a small group of essentially judicial elites instead of the previous wide group of members of the legal profession. The only people selected are sitting federal judges who have previously gone through the confirmation process and therefroe are free from private controversy. We no longer get people like Hugo Black, Bill Douglas or Earl Warren. Justice O’Connor was the last non-judicial candidate and she had the fact that she was the first woman going for her. The nominees tend to be people in their 50’s and thus they end up serving longer. We don’t select someone like Justice Powell who had a long and distinguished legal career before his nomination. But even he ended up serving a long time. Until the entire process is substantially changed we will get sitting federal judges in their late 40’s or early 50’s who will serve until their 70’s.

Posted by: Stuart Shiffman | Apr 8, 2005 12:15:59 PM

Senator Cornyn

So Senator Cornyn has been asking us to consider whether there may be some “cause-and-effect” relationship between “judicial activism”– judges making “political” decisions — and violence against judges. Here’s one recent story. And some commentary.

Here’s another cause-and-effect to consider: Conservative activist judges struck down an act of Congress called the Violence Against Women Act in 2000 (See U.S. v. Morrison). Do you think women, frustrated by their inability to sue men civilly for their abuse, now fight back with violence?

A similar conversation is going on at Dissemination.

Posted by Ethan Leib on April 8, 2005 at 09:34 AM

Comments

Fair enough. But I think you get the point. And I suppose we’d need empirical evidence to answer the question about whether having additional fora to pursue a claim makes it more likely that an aggrieved party would pursue redress rather than resort to self help.

Posted by: Ethan Leib | Apr 8, 2005 12:08:55 PM

Women can “sue men civilly for their abuse” – they just have to do it in state court. Is there an issue with state courthouse doors being locked shut for women personal injury victims that I am unaware of?

I can’t sue my neighbor in federal court (absent some law school hypothetical of diversity)if he comes over and punches me in the mouth. Does that mean I therefore have no legal recourse against him?

Not every issue is a federal issue.

Posted by: MJ | Apr 8, 2005 12:01:19 PM

Law School Teaching

So it seems from the emails we’ve been getting that there’s quite a demand for discussion about law school hiring. Where’s the demand for discussion about how best to end the Darfur genocide? Fine. We plan on blogging about all those in the near future.

In the interim, we invite those who actually went on the market this past year or the last two years to share some of the funniest and/or frustrating experiences you had. Feel free to email us in confidence if you don’t want us to share particulars about names or places. Just let us know how to treat it. Comments are also open.

Posted by Administrators on April 8, 2005 at 09:24 AM

Comments

The calls may be related to perceptions of expertise. You have managed to get a job teaching law school, but you have not been nearly as successful at ending genocide.

Posted by: Nate Oman | Apr 8, 2005 10:10:30 AM

Our Broken World

I think the only thing that can fairly be said about this story: Yikes.

Posted by Administrators on April 8, 2005 at 08:31 AM

DeLay’s Strategy: Divert, Divert!

It seems that Tom Delay’s new strategy to deflect attention from his scandal-besotted tenure is to excoriate judges for their judicial restraint in light of Schiavo. Bravo, Tom!

There’s not too much to cry over in the downfall of DeLay’s henchman Jack Abramoff, but let it be said that Abramoff is no longer bankrolling the jobs program that was once Stacks Kosher Deli here in DC. During its brief life, Stacks was teeming with employees milling about, but none seemed too interested in waiting tables effectively. Not to mention that the food was bad (gefilte fish out of a jar! Yuck!), and the portions weren’t big enough either 🙂

DM

Posted by Administrators on April 8, 2005 at 08:27 AM

Comments

MJ: 1. Liberals tend to criticize individual judges and decisions, whereas conservatives seem, every few years, to go totally nutso and say the entire system has “run amok,” based on one decision. Liberals seem to have enough common sense and sanity to recognize that the hypocrisy and idiocy of five justices in Bush v. Gore doesn’t mean that the whole legal system needs to be torn down by its roots. Tom Delay does not seem to share such sanity.

2. Liberals, and honest conservatives, tend to criticize decisions when they disagree with them. Tom Delay appears to be criticizing the judiciary only to distract the public from his own extreme misconduct.

Posted by: Paul Gowder | Apr 8, 2005 2:25:06 PM

Sorry for the multiple posts – non-responsive computer stuff.

Posted by: MJ | Apr 8, 2005 1:57:13 PM

Serious question for the prawfs and their readers:

If you believe (as reasonable people can and do) that the Florida courts and the Federal Courts (M.Dist of FL and the 11th Cir.) exceeded their authority in one, striking down “Terri’s Law” (FL courts) and two, ignoring the call for de novo review of the evidence in the statue the congress passed and the President signed(the federal courts), what is wrong with condemning the acts of the state judges, who are elected officials after all, and criticizing the federal courts.

1. If that is improper, then what means (I doubt that you are advocating court stripping legislation) do the two elected branches have when a state or federal court is (arguably) acting improperly? Just shut up and live with whatever the courts decree? (I would guess that means no more criticism of the conservatives on the Supreme Court for Bush v. Gore – you might chill the Court’s independence!)

2. How is it that Rep. Delay’s remarks, which are unquestionably a direct criticisms, and Sen. Cornyn’s statement, which is at best innuendo, are more damaging to judicial independence than the daily castigation of conservative judges and appellate court nominees? (And upon request I can provide reams of horrendous things said about the judges who are currently being filibustered and conservative Justices like Thomas and Scalia).

Assume for one minute (without judgment) that conservatives feel the same way about some of the recent decisions (Lawerence, Grutter, Simmons) that the left feels about Bush v. Gore. I didn’t hear, and still haven’t heard, any clarion calls for criticism to be muted re: Bush v. Gore lest we undermine the independence of the judiciary. Why not?

In short, it doesn’t appear to me that the left has a monopoly on restraint when it comes to complaining about federal and state judges. Roy Moore anyone?

Posted by: MJ | Apr 8, 2005 1:55:45 PM

Great forum for discussion. I wanted to put to you and your readers a serious question about the criticism directed at Rep. Delay for his remarks:

If you believe (as reasonable people can and do) that the Florida courts and the Federal Courts (M.Dist of FL and the 11th Cir.) exceeded their authority in one, striking down “Terri’s Law” once it was enacted (FL courts) and two, ignoring the call for de novo review of the evidence in the statue the congress passed and the President signed(the federal courts), what is wrong with condemning the acts of the state judges, who are elected officials after all, and criticizing the federal courts.

1. If that is improper, then what means (I doubt that you are advocating court stripping legislation) do the two elected branches have when a state or federal court is (arguably) acting improperly? Just swallow whatever the courts decree?

2. How is it that Rep. Delay’s remarks, which are unquestionably a direct criticism, and Sen. Cornyn’s statement, which is at best innuendo, are more damaging to judicial independence than the daily castigation of conservative judges and appellate court nominees? (And upon request I can provide reams of horrendous things said about the judges who are currently being filibustered and conservative Justices like Thomas and Scalia after Bush v. Gore).

I’m not being smarmy, I actually want to know if left-minded folks honestly feel it is dangerous to judicial independence for the two elected branches to criticize the courts? If so doesn’t the routine castigation of conservative judges, nominees, and potential nominees who would someday like to be judges, have an equally chilling effect on their independence?

Posted by: MJ | Apr 8, 2005 1:34:31 PM

More on the Right to Choose

Oy. I really hope I’ve been clear that Rivki is misreading me. Indeed, I feel she may be willfully misrepresenting the argument. Three out of four of the proposed solutions in the article she should have no quarrel with. In the article, my most important claim is that a woman should not jump to her legal right to choose before hearing out the semen provider’s positions. Is that really controversial? I can’t see how. But it still manages to raise people’s ire.

I further proposed that a man and woman jointly could contract out of forcing support payments. That is an option not apparently available under current law (that I know of) and could enable women to say: I agree with you, semen-provider, that we had agreed–explicity or implicitly–not to reproduce and that I now am choosing to carry that child to term against your wishes. Accordingly, I am enabling you to sign a document that will prevent me from trying to collect money from you to support this child for the next many years. While the support rights might belong to the child, I have the right to make decisions for the fetus now and am doing so, terminating your rights and responsibilities. The man still has to pay the cost of having a child in the world, an emotional cost that cannot be ignored. Is this actually deeply controversial? I’m not convinced it is.

Under a second potential legal implementation, the man can sue for intentional infliction of emotional distress. Obviously, there are evidentiary problems. Are they insuperable? I doubt it. If the woman was on the pill and the man concededly wore a condom and a medical miracle happened anyway, it isn’t clear to me that it would be inappropriate to relieve the father of support payments. I acknowledge this assumes that both parties were pro-choice when they had intercourse. There is a complexity if the man knows ahead of time that the woman would keep the child. If he is on notice, the equities may change. But I still hope having the discussion ahead of time might lead to contractual arrangements, as unromantic as they seem. Hey, so are marriage contracts and pre-nups. But many people get over it to protect themselves and reap the benefits thereof.

I know there are hard questions–both evidentiary and moral–about the garden variety case, where the man just wants an abortion and the woman doesn’t. I probably would cede some territory here down the road. But for now I’m content to expose a weakness of the rhetoric of “procreative choice” and think through ways to be more egalitarian about it. Nothing rides on Irons and Philips–it was always an ad absurdum to begin thinking through the limits of the right to choose.

Posted by Ethan Leib on April 7, 2005 at 06:25 PM

Comments

I just happened upon a link to this discussion, and I apologize if I’m beating a dead horse by following up two years after the fact. It’s a pet issue of mine, and some of the more recent material here seems to indicate that the topic’s still of some interest to Ethan, at least, so I’m giving in to the impulse to toss out my two cents’ worth.

First, let me note that while I disagree with the bulk of Ethan’s policy proposals, I’m also not a big fan of the counterarguments that rely on the rights of the child. I do think children are entitled to support, but (dangerous pinko type that I am!) I see that as an entitlement against society as a whole, not against producers of sperm. Frankly, I see the current US-law constructions of biological fathers’ obligations to children as illogical, ahistorical, and not altogether compatible with due process. They also draw way too heavily for my comfort on our nasty cultural tendencies to pass the buck whenever possible, to delight in the dire consequences of other people’s sexual behavior, and to forget our impassioned concern for children’s well-being whenever the children in question don’t come from the right genetic stock.

Besides, while playing the “interests of the child” card may be expedient for feminists in this context, and while I realize it’s important to recognize the frequent identity between children’s interests and women’s interests in practice, I think it can also do us real harm to continually subordinate our own interests to children’s interests in this dialogue.

But leaving off the interests of the child, I do think that when two people have consensual sex, and it turns out to have expensive consequences for one of them, it’s only fair that, to the extent possible, the other be obliged to share in the expense. And I think fathers’ child support liability is a better way to implement that than any alternative I’ve seen proposed.

In that vein, one of the suggestions from Ethan’s article entirely fails to persuade me: Letting the man off the hook because he tried to avoid a pregnancy effectively lets him enjoy a “negligence” standard for responsibility, while the one who’s pregnant despite anyone’s best efforts is stuck with strict liability. If she has to roll the dice and take her chances, so does he. That she has (maybe, as Rivki already discussed) the option to abort doesn’t cure anything for me, because it’s not clear that that option actually reduces the costs (including personal as well as financial costs) she faces. I’m sure there are situations in which women become unexpectedly pregnant and think “Well, abortion would be a fine option, but hey, having a baby would be even better!” Just as often, though, I suspect it’s a lesser-evil kind of situation–one decides to go ahead and take on (or even embrace) parenthood because it’s even harder to reconcile oneself to the alternative. Under those circumstances, it’s awfully hard to claim that the existence of the alternative makes the pregnancy itself cost-free, and thereby let the man off the hook for his responsibility for it.

Of course, one way to dodge this is to take the woman’s feelings and moral compunctions out of the analysis, claiming that the woman is wholly responsible for those internal factors. Then you can argue that any costs associated with the abortion (beyond cost of the procedure and a bit of physical pain and suffering) aren’t caused by the pregnancy; they’re caused by the woman herself. So the man doesn’t share in the responsibility for those, and they don’t belong in the equation, and we’re back to the pregnancy itself as just a little thing that doesn’t have to cost the woman much of anything and shouldn’t cost the man anything either. After all, it’s not like we’re asking her to commit suicide to save us the costs of letting her pregnancy go to term; it’s just a simple medical procedure that a reasonable person would recognize as the efficient alternative…so of course we shouldn’t make the man pay for any inefficiency caused by the woman’s unreasonableness, right?

That works, if you can sell me on that idea of the reasonable person. Problem is, I think constructing a reasonable person that way serves the interests of men who want sex to be cheap, but only by denying the real experience of women in this society, and the natural effects that that experience has on how women view their choices. I think if one’s arguments depend on a reasonable person’s–and in particular, a reasonable pregnant person’s–seeing abortion as an appropriate more-efficient alternative to having a baby, one needs to go way beyond simply legalizing it. One needs to dismantle those parts of the culture that still treat fetuses at least as kind-of-sort-of-babies rather than just semi-foreign internal growths (after all, even in the most left-wing of communities, it’s not socially-appropriate to think of a fetus the pregnant woman plans to carry to term as the biological equivalent of a tumor), or at least those that indoctrinate women in the virtues of motherly self-sacrifice, and certainly those that still paint abortion as something seedy and morally suspect. After all, for all that it is occasionally useful if women see no problem with casually terminating pregnancies, we as a society generally profit heavily off of a quite contrary set of norms, so there’s something quite distasteful about turning around and, as a matter of law, declaring the women whose exercise of agency is shaped by those norms “unreasonable.”

So, I’m not buying the “he tried to avoid the pregnancy, so he should get off cheap” argument. The way I see it, under current law and in the society we’ve got, whatever a woman chooses will probably cost her more than it costs the man who participated in getting her into the situation, and so I’m pretty comfortable with the fact that she has the privilege of deciding what form the costs will take and then (sometimes) passing on a share to him.

As to the contract notion, I see two interlinked issues that would raise problems for me with most such contracts: unequal bargaining power and lack of consideration. After all, neither moral consideration nor nominal consideration generally supports an enforceable contract. If the woman’s just promising to forgo her entitlement to collect child support because she believes it’s the right thing to do–even if she formalizes it with “consideration” as token as the hypothetical one-time payment to defray the costs of birth–you don’t have a contract. You might have a case for promissory estoppel, but there you’re limited by equity (which takes us back to questions of bargaining power), and you’re probably looking at recovering the reliance interest (i.e., that previously-made lump sum payment), not the full benefit of the bargain. So I wouldn’t rule out the possibility if the man could show that, under bargaining conditions not so unequal as to be unconscionable (taking honest–which in my view means extensive–account of gendered sexual power dynamics, economic duress, and so on), he put up the kind of consideration that might plausibly have induced the promise in an arm’s-length bargain. However, it’s my experience that this is almost never what men who want to contract out of support payments are talking about; instead, it’s an attractive option only because one is anticipating a much better bargain than one could get in any commercial context.

So, that leaves the scenario wherein the woman “has forced the man to become a parent against his will,” presumably by committing rape, having sex with someone who lacked the legal capacity to consent, impregnating herself with sperm the man discharged elsewhere than into her reproductive organs, or deliberately sabotaging his efforts to prevent pregnancy. In the abstract, I am actually one hundred percent behind the idea that a man should not, in these scenarios, have any legal obligations toward the woman or the resulting child–and I’m probably fine with letting him collect his damages from her, too. Unfortunately, the only scenario there that’s at all easy to prove is statutory rape, and one would be implementing this policy in a setting where women are consistently, systematically disadvantaged when it comes to getting judges and juries to believe their word against a man’s on just about anything sex-related, and where they’re often treated downright nastily in the process. So I’m not sure how okay I am with the idea of giving men the power to, based on bare allegations alone, put a woman through that any time she tries to collect child support. I realize that’s an unfair result for men who are genuinely victimized, but I nonetheless suspect it does less harm than the alternative. Still, I’d love to see a way that the system could be improved for male victims without handing a powerful weapon to men who just want to avoid obligations. Requiring a higher burden of proof might suffice to level the playing field and discourage harassment via unmeritorious claims (albeit, of course, excluding more male victims from protection too), but I don’t know.

All that said, I do agree with the general principle that women making choices about pregnancies should take the male sperm-producers’ preferences into account in some fashion. However, I see it as the sort of situation-dependent question of personal ethics that is very, very difficult to translate into public policy, and perhaps shouldn’t be so translated at all. And I think the suggestions in the Legal Times article are way too glib and idealistic even to provide a plausible starting point.

Posted by: Laura Back | Jun 26, 2007 8:44:15 PM

Not set up! The right to choose! We do not believe in abortion, though we do support adoption! That’s a choice!

Posted by: L DeMello | May 7, 2006 5:18:10 PM

This may be tangential, if not outright orthogonal, but here it is:

You say that your setup “assumes that both parties were pro-choice when they had intercourse.” Interestingly, this seems to use the term pro-choice to mean “open to having an abortion.” Yet, many pro-choicers insist that the term means only “willing to preserve the legal option for others, i.e., no government ban.” Thus the formula: “I’m personally pro-life (against abortion, would never have one, etc.), but am pro-choice.”

But it seems that your usage does not mean “legally pro-choice,” as it would be meaningless for this hypothetical couple to merely support the legal rights of others to abort, but were both opposed to it themselves.

So does this usage mean nothing, or does it reflect that in normal usage — i.e., when one’s antennae are not up for some battle with those who do support legal restrictions — most of us really do think that pro-choice means personally OK with it in some circumstances?

Just wondering.

Posted by: just me | Apr 26, 2006 11:54:46 PM

I’m not as well spoken as everyone who posted earlier. I am a wife to a wonderful man,who was a single Dad to 2 small boys when I met him in 1992. In 1995, one year after we were married, a girl he had dated in 1989 filed for a paternity test. She had a baby in 1991. He never knew about it. She claimed to be on birth control while they dated. It turned out to be his biological child. We were devistated to say the least. At the time, we were raising his 2 boys and my son, (3 children). She already had 1 child out of wedlock. She won an order of 600 per month, they took away his lisence, biz lisence, and all our accounts and taxes were siezed. We lost everything within 8 months. We had to move in a studio apt. and go to food banks for over 2 years to feed our 3 boys while she gets $$, housing, Insurance, Medical, free edjucation, & on and on. because of CSE/DOR. What rights do men have? NON! They are just a paycheck for irresponsable woman who USE children for $$$ and emotional blackmail! I’ve known a few! If men had the same rights as women, things would change quick and I don’t think this Country would have this huge problem. If women knew that a man had a right to say NO, she would make other choices. SORRY women, but most of you are horrible and blame men for all YOUR bad choices and hold them accountable. IT IS A CASH COW!

Posted by: Lelia DeMello | Apr 26, 2006 8:10:46 PM

I THINK MANY PEOPLE FAIL TO CONSIDER THE MOST IMPORTANT FACTOR OF A FORCED PARENTHOOD; THE LACK OF EMOTIONAL ATTACHMENT FROM THE FATHER TO THE CHILD. I AM IN A SITUATION THAT HAS ME SO BITTER THAT AT ANY TIME IN THE DAY I HAVE SUICIDAL OR HOMICIDAL TENDENCIES. I NEVER WANTED CHILDREN BEYOND THE AGE OF 30, YET BECAUSE OF SOMEONE ELSE, I AM FACED WITH TWINS THAT I DON’T HAVE AN ABILITY TO LOVE. I’VE TRIED TO VISIT WITH THEM AND EVEN TRIED TO TALK WITH THEM. THE HARSH REALITY IS THAT I WILL NEVER LOOK UPON THEM AS I DO MY OTHER CHILDREN. IN FACT, I LOOK AT THEM AS CAUSES THAT WILL KEEP ME FROM PROVIDING FOR MY OTHER CHILDREN.

LET ME LET IT BE KNOWN, I DON’T WANT ANYTHING TO HAPPEN TO ANYONE WHO IS ALREADY HERE. I JUST TRULY DON’T WANT THIS BURDEN AND I TOLD THE MOTHER THIS THROUGHOUT OUR RELATIONSHIP. IN FACT, SHE SAID HER TUBES WERE TIED AND COULDN’T GET PREGNANT. SHE HAD THREE OTHER CHILDREN AND NO JOB PRIOR TO THE BIRTH OF THE TWINS. NOW, WHAT KIND OF SENSE DOES THAT MAKE? IF I CAN BE EVEN MORE BLUNT; LOOK AT THE STATE OF SOME URBAN AREAS, MINORITIES (I AM A BLACK MAN) ARE PRODUCING OUT OF WEDLOCK CHILDREN AT A RATE SO ALARMING THAT IT IS REDICULOUS TO SUPPORT THE RIGHT OF CHOICE FOR WOMEN OR MEN WHEN THE ECONOMIC STATE OF THE PARENT DOESN’T SHOW THE ABILITY TO SUPPORT THEM WITHOUT GOVERNMENT ASSISTANCE. WITH THIS BEING THE CASE, WHY SUBJECT ANYONE TO FORCED PREGNANCY WHEN THERE IS NO “MODERN EVIDENCE” TO SUPPORT ANY SOCIAL BENIFIT FROM OUT OF WEDLOCK PREGNACY. THIS APPLIES TO THE MOTHER, THE ALLEGED FATHER, OR THE CHILD. THE TIME HAS COME FOR AMERICA TO TAKE A CANDID LOOK AT THIS PROBLEM. I STRESS THE ISSUE IN THE BLACK COMMUNITY BECAUSE IT IS THE ONE THAT IS MOST EASY FOR ME TO IDENTIFY WITH. ANY ARGUMENT ABOUT MORALITY ARGUEMENT IS THROWN OUT OF THE WINDOW FROM THE MOMENT 2 UNMARRIED PEOPLE HAVE SEX. TOO MANY BASTARD CHILDREN ARE BEING BORN TO WOMEN WHO ARE DOING NOTHING SHORT OF BREEDING. MOTHER’S HAVE TRUE INTANGIBLES THAT MAKE THEM SPECIAL. GIRLS ARE HAVING BABIES AT 14 AND 15 AS IF IT WERE A “RIGHT OF PASSAGE” OR BADGE OF HONOR. I’M SURE IF YOU LOOK INTO THEIR HISTORY YOU’LL SEE SOME SORT OF NEGATIVE PATTERN. MOST OF THE WOMEN I KNOW WHO HAVE MULTIPLE CHILDREN HAVE MULTIPLE FATHER’S FOR THEIR CHILDREN. ALSO, THERE ARE A NUMBER OF WOMEN WHO HAVE MULTIPLE CHILDREN WHO HAVE NEVER BEEN MARRIED AND PEOPLE TALK ABOUT THE MORALITY OF KEEPING CHILDREN. THIS CYCLE ONLY BENIFITS THE CRIMINAL JUDICIAL SYSTEM, BECAUSE IT JUSTIFIES MOST OF ITS EXISTENCE BY PROVIDING BODIES TO KEEP IT IN MOTION. ALMOST EVERY MODERN STUDY WILL SHOW THAT THERE IS NO CORRELATION BETWEEN SUCCESSFUL AND ABSENT FATHERS. MOST CHILDREN ARE BORN FROM A SEXUAL ACT TO RELEASE PRESSURE OR PLEASURE. THAT IN NO WAY DEMONSTRATES A DESIRE FOR ALL MEN WHO HAVE SEX TO BE FATHERS. IN MY OPINION, THERE ARE ONLY TWO REAL REASONS THAT THE COURTS HAVEN’T REALISTICLY ADDRESSED THIS ISSUE: 1) THE AFFECTS ON THE GREATER POPULATIONS MALE ISN’T AS SEVERE AND 2) IT’S A CASH COW THAT RAPES THOSE WHO ARE LEAST ABLE TO DO ANYTHING ABOUT IT. YOU HAVE THE ABILITY TO GO INSIDE THE NUMBERS. DO IT AND TELL ME WHERE I’M WRONG.

Posted by: GDOSS | Sep 13, 2005 9:56:00 AM

Ethan, I certainly did not intend to misrepresent your argument, although it is possible that I did not fully understand it. In order to clarify my concerns, why don’t I got back to your original op-ed. In this piece you proposed three remedies as well as a request for women to take their partner’s desires into account.

On that issue, of consulation and discussion between partners, I agree with you, and I believe that I’ve made that clear. It is in everyone’s best interest to discuss situations with all those affected by them. Barring extraordinary circumstances (abuse, inability to find partner, etc.) consultation should take place. And we both agree that, in the end, it is the woman’s choice that rules.

Your third remedy (I realize I’m going out of order, but I’ll try to be as clear as I can) involves creating a contract which allows a woman to recognize that her partner does not desire paternity and absolve him of any financial responsibility for the resultant child. I don’t see how this isn’t already a possibility (though it may not yet be enforceable). Child support and custody only come before the courts when there is a dispute between parties. If the mother chooses not to pursue child support than the father does not owe any. So, I’m perfectly happy to agree with you on this point.

Your first point, allowing suits charging forced paternity as intentional infliction of emotional distress, is rather more thorny. The decision to bear a child is not a malicious one, and quite frankly not made with the intent to harm. The elements of intentional infliction of emotional distress are: “In order to prevail in a law-suit for intentional infliction of emotional distress, the plaintiff typically must show the following: (1) the defendant intended to inflict emotional distress; (2) the conduct of the defendant was extreme and outrageous; (3) the actions of the defendant were the cause of the plaintiff’s distress; and (4) the resulting emotional distress to the plaintiff was severe.”* While the third and fourth elements may be proven, I highly doubt any court would grant the first two elements. The first element, intent, is difficult to prove because the distress is the side effect of a woman’s decision to bear a child to term, and not the desired outcome. In other family law an analogy may be made to a custodial parent moving: if the move is being made to deprive the noncustodial parent of visitation the move is judged to be illegitimate, however, if the move is being made for clear financial or social motives and the deprivation of visitation is an unfortunate side effect the move is judged to be legitimate and is allowed. The second element would be even more difficult to prove as it relies on a judge to consider bearing a child to term as an extreme and outrageous act. Considering that the majority of the country considers bearing a child to term to be the correct, and in many cases only, moral choice I doubt that this element will ever be proven. (Obviously cases such as Irons would be able to meet this burden. I think that everyone would be outraged by the intentional theft of sperm to create a child with the sole intention of inflicting emotional and financial damage. But since I think that the guy is a liar I can’t really side with him.)

Your second remedy, simply absolving unwilling fathers of their financial duty to their children, was the remedy that I was focusing on in my earlier posts. I concentrated on this point, admittedly to the exclusion of the others, because I found it to be the most troubling both legally and morally. First of all, it does not take into consideration the rights of the child to support, a right that has been the bedrock of family law for years. I will not belabour this topic as I believe that I have covered it exhaustively in my earlier posts. However, I have yet to hear your answer to this dilemma, both legally and morally. Perhaps you simply believe that the law is wrong and that a child is not entitled to the financial support of its parents. I don’t know what you think about this topic, but I do know that if you want to change this you’ll be taking on the entire family law system. I also would like to repeat the point I made at the end of my last comment, that any law which allows a man to deny child support should his will not be followed would become a dangerously coercive tool disproportionately effecting the poor and vulnerable.

In the end I think the best choice for actually solving issues of unwilling paternity is prevention and not subsequent remedies. If unwanted children are not conceived (or are not conceived at nearly the rate they are now) then this issue will never come up. In order to implement such prevention a number of issues must be faced. First, the right of women to abortion must be enshrined and no longer controversial, and abortions must be cheap and easy to obtain. None of this is currently true – women are still threatened and shamed for daring to abort and many women do not have access to any abortion services at all. Second, the right of women to cheap and effective birth control must also be enshrined. But birth control is still not as easily available (or as cheap) as it ought to be, and there is a growing movement in this country to do away with is entirely. Third, men’s access to hormonal birth control should be drastically improved. A male pill would go far in ensuring against unwanted pregnancy. Using a condom and female birth control already prevents the vast majority of unwanted conceptions – adding another layer of protection on top of that can only improve matters. It would also give men more control of their own reproductive systems, which is obviously a worthy goal. Quite frankly, if your goal is to minimize the number of men who are stuck with unwanted children, then your best bet is prevention.

*http://www.hofstra.edu/PDF/law_labor_cavico.pdf

Posted by: rivki | Apr 8, 2005 11:57:17 PM

In some class, long ago, I wrote a piece similar to yours. I was shocked at how many people had never even considered the issue, though presently surprised at the number that said something like, “you may have something there.”

I think I went further than you and said a man should have the right to opt out, even if there were no protective measures taken at the time of conception. Though I would say in such a case that the man would then have no more rights vis a vis the child than some stranger, but he similarly would have to contribute to the costs of the birth or abortion. I think I would add that the man would have to make his decision within a short period of time after being informed, and that it would be irreversible.

Posted by: Ugh | Apr 7, 2005 7:47:25 PM

The Economics of Admissions

I don’t get it.

My buddy Orin is miffed by anecdotes that Bob Brian Leiter (poor Brian! he was misnamed in the WSJ earlier) has shared regarding the “strategery” going on at law schools and colleges, through which lower ranked schools are apparently turning down candidates who are expected to end up at higher places, or at least are placing extra obstacles before conferring admission.

Doesn’t this make sense though, even if it instrumentally helps schools out for US News purposes? Is it really that bad? What it does is moderate the tendencies of the superstar (winner-takes-all) economy (as Robert Frank has called it), where people at the top vacuum up all the goodies (or offers of spots).

When I was applying for college, I got rejected at Princeton, waitlisted at Brown, and accepted at Harvard. I always suspected there was some collusion: Harvard happened to be my first choice by far (even though I may have received a better education at Princeton or Columbia). So if Princeton had given me a slot, it would have diminished (though not eliminated) its ability to take someone who would have gone there in the first instance. Of course, Princeton probably knew what they were doing in rejecting me, but the point stands: there’s nothing wrong with seeking out extra signals of commitment.

The clerkship market and law school faculty hiring should play this game even more. (Sort of like the match system in medical residencies, I suppose.) To be sure, some schools “lower” down in the food chain don’t bother pitching themselves to certain candidates because they seem out of reach and it would a waste of faculty time and money to go after them. But many schools hiring practices seem positively bizarre, where schools ranked far down in the second tier are actively bidding on people chased by Harvard, Yale, and Stanford. There are so many quirks and pathologies associated with faculty hiring (and we will blog on that too eventually), but surely this is one of the stranger ones. It has the effect of keeping out perfectly wonderful candidates from schools that would benefit from their presence.

So, Orin, Brian, why shouldn’t schools make educated guesses about where people want to go, and give them opportunities (such as the “please write us to confirm that you want to be on the wait list” letters) to send the correct signals?

What moral dimension am I missing here? That top people DESERVE all the slots they can get to exclude others? That can’t be the case, especially in the markets we’re discussing. Is the scandal here merely ex post whining?

UPDATE: A wise comment below reminds me that I had forgotten something crucial, so crucial that I am almost prepared to recant my critique, though here too, I invite more comments. Students, unlike clerks and entry-level hiring, pay a fee to the schools for consideration. Does the payment of that fee morally entitle applicants to be treated differently than they are now? I guess it’s unclear whether students are bargaining for fair and full consideration, or merely a lottery ticket as it were. Ex post, we might think the fee should allow top candidates to “buy” more admission spots. Ex ante, we might think the fees are simply admission tickets to this horse-trading scheme, in which schools reasonably divvy up scarce slots to schools.

DM

Posted by Administrators on April 7, 2005 at 06:08 PM

» Offer and Acceptance from Class Maledictorian Admissions officers should ding people they think will not attend . . . [Read More]

Tracked on Apr 8, 2005 11:17:06 AM

» The Games Law School Admissions Play from CALI’s Pre-Law Blog This question on fee waivers was submitted to me:…if I get a fee waiver from [a] school, what are my chances of actually getting in? Obviously they must think I am somewhat qualified, but when I look at the statistics for a particular school, my L… [Read More]

Tracked on Nov 14, 2006 12:51:38 PM

Comments

Susan’s consideration is certainly a valid one. Another one might be in-state tuition. Perhaps someone would rather pay less money to attend a lower-ranked in-state school. If said person has a 180 LSAT and a 4.0 GPA, s/he might get yield-protected at an in-state school ranked in the 30s and admitted to Harvard, Yale, and Stanford. The person may have a genuine desire to practice locally, for which the connections garnered at the lower-ranked local school might actually be more helpful.

Posted by: 3E | Nov 5, 2006 10:17:53 PM

One concern I haven’t seen raised here regards non-traditional students. I am one such, and when I was applying for law schools I was trying to get into a school in the same city where my husband was matched for medical residency. Thus I was paying to collect admissions — not because I needed to stroke my ego, but because the residency match process results in only a single option. I needed the maximum number of options on my end to increase the chances that he and I would end up in the same city. Thus I paid for several application fees. Having a strong academic record meant that every school I applied to admitted me. It would be ironic if such a strong academic record actually counted against me and limited my options.

There are a hundred personal and rational reasons for someone with a strong record to apply to (a) many schools and (b) lower-ranked schools, and to want to get in to all of them. If we apply and pay (and go through all the hoops that each school requires of us) then the schools should take the time to evaluate each application fairly and to admit those students that they would like to be part of the class. That’s the deal we made when they cashed my check.

This isn’t just about money, either. It’s about not making choices for me. If I choose to apply to Michigan (which I did) or even Vermont (which I also did) I must have some reason and it’s really not appropriate for either school to second guess why and determine that my reason is not good enough (beyond evaluating why I want to go to law school at all, of course).

And regarding Michigan’s admissions, there’s plenty of material on their search for balance in the quality of the incoming pool in terms of more than numbers in Grutter v. Bollinger.

Posted by: Susan | Apr 12, 2005 5:51:13 PM

Well, I guess I’m flattered that a short, typo-riddled response written between my morning shower and commute has seemingly invalidated the argument of an experienced lawyer and earned me the label “wise.”

For what it’s worth, though, I’m not so sure that DM should recant his critique based on the application fee issue. I don’t agree that the practice of wait-listing or “holding” overqualified candidates is some sort of breach of contract. Applicants pay a school to consider their application by whatever standards the school elects to use. Applicants’ expectations of how the process will work is usually based off of a combination of hearsay and the body of admissions counseling books found in your average bookstore; both of which are based in turn roughly on what schools have done in the past. While these are often reliable sources, their descriptions of the admissions process should not be seen as terms of a binding contract between applicants and the schools that they apply to.

The practices referred to by Prof Leiter were not popular in the recent past; accordingly, this year’s class did not expect these types of tactics from admissions offices. This is a source of consternation, because our class was subject to an admissions process that it didn’t truly understand. But that doesn’t mean that the process was immoral or some sort of breach of contract. It was just frustrating, and something that merits a response along the lines of what I was trying to convey in my earlier post: annoyance.

In reality, I agree with DM’s original position; this practice probably improves the admissions process overall by allowing schools to choose students that really want to enroll at their institutions. Also, I think we have to keep in mind the fact that most of the possible remedies to these tactics are impractical. It would be impossible to expect school to refund application fees to overqualified students that were waitlisted, for example. And, for a number of reasons, I don’t think that raising the application fee in order to deter applicants from applying to too many schools is a good idea, either.

But none of that keeps me from moaning about the intricacies of the law school admissions process, and I hope to continue my practice of moaning about the law school and job search experiences when those come, as well.

Posted by: Jeff V. | Apr 11, 2005 10:33:08 PM

What evidence is there that there is yield protection going on here? All we know is what posters choose to tell Leiter about their own records. Applicants don’t even know the full contents of their own applications in most cases – they haven’t read their own recommendations. There are lots of reasons someone with good numbers can be wait listed at a school they seem to be able to gt into easily – a recommender may have said something to indicate the person was arrogant, or difficult to get along with, or painfully shy (all qualities that, especially at a small school, make the person undesirable as a member of a class, and will make them a problem in the job placement process once matriculated). Or the applicant may have been careless in submitting his or her application and screwed up a find-and-replace – saying in their Chicago essay how they can’t wait to attend Harvard, or have submitted a personal statement and resume full of typos. Or the applicant may have a criminal or disciplinary history that gives the admissions committee pause. Or the applicant may be a poor and/or careless writer, have a weak resume, have earned a high GPA but at a school known for major grade inflation or by taking an easy courseload, etc, etc. After all, at Chicago, for example, one of the things that can happen when you’re put on the waitlist is an interview – if one of the things listed above is a problem in your application, they might want to meet you and see what the story is. If you can’t be bothered to come for the interview and clear it up, why should they admit you?

The top schools probably have significantly more people apply with numbers *above* their medians than they have seats, and they also have a lot of people with numbers below their medians that they *want* to accept because they’re interesting or diverse or talented or whatever. They can’t accept everyone. You can call it yield protection if you want, but it’s just the selection process.

Applicants spend so much time complaining about how they think law schools make all their decisions on the numbers, but when they don’t get in where they think they should on the numbers, they get upset. If you want schools to admit people for the people they are, then understand that the numbers aren’t going to be a perfect predictor.

And if you want schools to stop gaming the system due to US News, then stop giving so much power to the US News rankings, by saying things to schools like “I’m going to go to Columbia instead of NYU, even though I like NYU better, because Columbia is #4 and NYU is #5 and I can’t turn down a better school for a worse one.”

Posted by: Rachel | Apr 9, 2005 12:54:52 PM

“If a candidate has numbers that are above a schools’s 75%, and gets waitlisted because the school is yield-protecting, I imagine an admittance would be rendered rather quickly if the candidate calls the school to emphasize his or her interest.”

But that’s the “reading between the lines” thing I was talking about. Most applicants would just be incredibly disappointed that they weren’t accepted at their dream school, despite trying so hard in UG and on the LSAT. Why leave it up to the applicant to guess the secrets of the admissions process?

“Or perhaps the candidate could have made his or her genuine interest known in the actual application.”

Seriously, what applicant doesn’t try to get the school to believe that they have a genuine interest. Short of saying that you guarentee that you’ll matriculate, it’s pointless. But this is another area where an applicant would have to know exactly what she was doing when applying. And this application process is hardly transparent. It’s not what’s advertised on the application, that’s for sure.

“However, what happens is that the “overqualified” applicant knows he or she is overqualified and gets miffed that a school with “only a ranking of X” wouldn’t just admit him or her right off the bat.”

Actually, I very much disagree. Admissions professionals certainly have a much better idea of who is more and less qualified. If an applicant knew where she was well qualified, she would never apply to safety schools at all. She’d only apply to one school.

“I bet there are “overqualified” applicants who didn’t find themselves yield-protected. Who are these people? They’re the ones who applied early (often an indicator of interest) or who tailored their personal statement and other application documents to each school.”

You have no evidence that this works to prevent oneself from being “yield protected.” Furthermore, it is another way that an applicant has to guess how the law school admissions game is played. It’s another way that an applicant has to guess right about the admissions process — another way that the admissions process is not as advertised.

“”Overqualified” applicants who send out the same packet to every school right before application deadlines and expect to get in on the numbers (but then also expect their reach schools to look at their “soft” factors) are asking for what they get.”

Again, you don’t have anything close to evidence that this is actually the case — that it’s the applicants who look like they don’t care who don’t get admitted. In fact, I’d say that this is exceedingly rare for applicants of this caliber. The tough thing is that when you get to that level of school, probably every applicant looks as though she has every intention of matriculating. That’s the tough part.

Posted by: Mike | Apr 8, 2005 5:01:32 PM

“Why should an applicant have to be put on a waitlist, write an extra essay, read between the lines, and wait until April or May to be accepted to a law school — just because that applicant is overqualified? “

If a candidate has numbers that are above a schools’s 75%, and gets waitlisted because the school is yield-protecting, I imagine an admittance would be rendered rather quickly if the candidate calls the school to emphasize his or her interest. Or perhaps the candidate could have made his or her genuine interest known in the actual application. However, what happens is that the “overqualified” applicant knows he or she is overqualified and gets miffed that a school with “only a ranking of X” wouldn’t just admit him or her right off the bat.

I bet there are “overqualified” applicants who didn’t find themselves yield-protected. Who are these people? They’re the ones who applied early (often an indicator of interest) or who tailored their personal statement and other application documents to each school. “Overqualified” applicants who send out the same packet to every school right before application deadlines and expect to get in on the numbers (but then also expect their reach schools to look at their “soft” factors) are asking for what they get.

Posted by: kristine | Apr 8, 2005 4:40:13 PM

Perhaps I’m oversimplifying, but doesn’t the impact of accepting overqualified applicants occur when those applicants actually accept? After all, over-enrollment can only happen when people you don’t expect to attend your school actually do.

Posted by: Eric | Apr 8, 2005 4:07:09 PM

Why should an applicant have to be put on a waitlist, write an extra essay, read between the lines, and wait until April or May to be accepted to a law school — just because that applicant is overqualified? Why should an applicant have to put a deposit down on Stanford when she wishes to attend Michigan — just because Michigan is playing a waitlist game with overqualified applicants (i.e. the process takes so long that the applicant wouldn’t hear until mid to late April)?

And yes, there is truth to the notion that a lot of things can make you competitive for admissions to a great law school (e.g. diversity, experiences, hard factors). But the point is that no matter what you’re considering, if you’re putting an applicant on the waitlist (or rejecting their application) b/c they’re overqualified, it may very well be a breach of contract — that contract being the application for admission. Perhaps I’m wrong. At best it seems unethical.

And you can try to justify it, I suppose. But it doesn’t change the fact that the motivator for all of this is a ranking put out by a magazine that uses an flawed methodology. It’s sad that such great law schools pander to this. It would be better if law schools jointly decided to not respond to US News until they changed their methodology. But I assume this violates antitrust law somehow.

Posted by: Mike | Apr 8, 2005 2:00:52 PM

You might want to consider (analogize to) the way residency slots are filled for graduating MDs. I believe they apply to several programs but also provide a rank preference. Often, the new MD is qualified for each residency slot but not offered all slots b/c she ranked one lower than another.

Couldn’t the law school admissions process be thought of as having an implied ranking system? Admissions folk can sometimes tell when an applicant is applying to the school as a safety. Why waste a slot when there is such a slim chance of the applicant accepting the offer for admission?

Regardless, job offers work the same way. Maybe it’s a good learning process for the real world.

Please ignore if repetitive (I haven’t read the other posts).

Posted by: Dubya | Apr 8, 2005 11:32:57 AM

Mike, the problem is that all else is not equal — the 3.8/178 group is, on average, not as enthusiastic about attending Chicago, Penn, or Michigan as it is about attending Harvard and Yale. Are there *some* people in that group who have Michigan as their dream school? Of course… and those people tend to get in.

Three of the four schools mentioned in Leiter’s post (Michigan, Chicago, and Georgetown) have early decision programs. If you have a 3.8/178 and have your heart set on Chicago and not Harvard, go apply early decision to Chicago… since early decision binds you to attend, schools are not going to engage in yield protection during that process.

However, even outside of early decision many 3.8s/178s are accepted to these schools — these schools are NOT blanketly rejecting “overqualified” applicants. Some get in, some don’t get in. In fact, these schools are not even outright rejecting these people — it seems that when these schools have questions about a candidate’s dedication, they put them on some sort of “priority waitlist,” with it being implied that if they make it clear they wish to intend (ie. writing a short essay) they will be accepted. Of course, it seems as if many of the impacted individuals are skirting around this fact — and (not surprisingly) it seems like few of them are even doing these optional essays (perhaps because they already have their Harvard acceptances in hand and don’t care about Chicago and Michigan?).

Keep in mind that these schools already openly discriminate based on race in order to ensure diversity in their incoming class, for they feel diversity positively adds to the law school experience. Like diversity, achieving a critical mass of students who truly *want* to be at the school and enjoy being at the school positively adds to the law school experience (who would want to go to a law school where 75% of the student body is only there because they didn’t get into Harvard, Yale, Stanford, Columbia, and NYU?). Just as a rejected white applicant with numbers higher than the average black applicant cannot use the application fee as an excuse to sue for admission, a rejected or waitlisted 3.8/178 who didn’t properly convey enthusiasm for the school relative to those with lower numbers cannot use the application fee as an excuse either.

Posted by: Anthony | Apr 8, 2005 11:12:18 AM

Applicants have no conception of the rules of the admissions game (truly a game for some, although not so for applicants). And for the occasional applicant for whom their longtime dream is to attend Michigan or Boalt (instead of Harvard or Stanford), such policies are fundamentally unfair. Applicants agree to pay a fee to be considered for admissions based on credentials, not based on whether they’re expected to matriculate. The reasonable implication of the law school application process is that if your academic credentials outweigh another student’s academic credentials (assuming, of course, all else is equal and you’re being primarily admitted based on what are traditionally called “hard factors”) you’ll receive an admissions decision equal to or above that of the other student (i.e. an acceptance is better than a hold or waitlist and a hold or waitlist is better than a rejection).

To current and recent applicants this conversation comes off as law professors and administrators trying to rationalize a tactic that borders on being unethical (but is, of course, necessary for their schools to maintain rankings in a publication with severely flawed methodology, albeit an important publication nonetheless. And although I have little experience with the law, I wonder if this tactic isn’t a breach contract (it certainly seems like a stretch that any reasonable person would assume otherwise).

Posted by: Mike | Apr 8, 2005 10:43:19 AM

Maybe the student with the 3.8/178 needs to ask himself why he applied to so many schools. In general law applicants apply to way too many schools, employing the ‘shotgun’ method of applications. Maybe if the applicants were a little more selective in their applications, schools would have an easier time in their admissions process and wouldn’t have to ‘game’ it. If you look at MBA applications, students typically apply to between 2 and 4 schools. Many law students will apply to between 6 and 12 schools. The difference is MBA applications are significantly more expensive and some have more essays (take longer). But an additional difference is the students are older and thus possibly a little more mature in figuring out what program they want to attend and why. The net result in this is that the yield of the best MBA programs range from about 60 to 90% where as law schools are significantly lower (across the board). Instead of blaming the law schools for taking ‘defensive’ measures, let’s blame applicants who shotgun applications for no other reason than to stroke their own egos.

Posted by: Kevin | Apr 8, 2005 8:40:57 AM

I don’t mind this practice. I just don’t think it’s fair for law schools to charge an application fee if they do. When an applicant pays an application fee, they are paying for a school to consider their application and make a decision. When a law school decides to waitlist or “hold” an overqualified candidate, this looks to me like they are not fulfilling their end of the bargain.

I applied to 17 law schools (although I think only 1, Chicago, really tried these tactics on me), and I only got a few fee waivers, so I probably spent something like $700 on application fees. This is not a trivial amount of money for a new colle grad.

Also, I think that this practice suggests that the yield stat is too easily manipulatable to really be included in the USNEWS ranking.

Posted by: Jeff V. | Apr 8, 2005 8:20:12 AM

It’s not about the costs of sending out a waitlist mailing versus an acceptance letter. There are several factors in play:

1) The costs of overenrolling are HIGH. If you automatically accept everyone with a certain GPA/LSAT combination (who aren’t felons and the like), you run the risk of overenrolling if yield is higher than usual. Go look at what happened to Penn just a few of years ago The school accepted the same number of applicants as usual, assuming that the yield rate was going to be constant — however, a lot more of those applicants enrolled than in previous years. End result? The 1L class is 50% larger than it was in the past, and the school spends god knows how much money on having additional sections of 1L classes — not to mention dealing with overcrowding/space issues, and the opportunity cost of having fewer upper level courses available for 2Ls/3Ls because of the extra 1L classes. For a more extreme example, look at what happened to Princeton undergrad a few years ago when it overenrolled — it had to spend millions of dollars to build new dorms to house all the extra freshmen.

Keep in mind that even a *tiny* change in the yield rate can cause catastrophic results. For example, during the 1995-1996 admissions cycle, Yale’s undergrad estimated that its regular decision yield rate would be between 46 and 50 percent; however, Yale’s regular decision yield was 52 percent that year. At first glance, one might not think this is a serious problem. After all, 50 percent and 52 percent are close enough, right? Wrong. While Yale had been planning to enroll around 1,335 freshmen that year, due to the higher than anticipated yield it ended up enrolling 1,415 freshmen — the largest freshman class in Yale’s history. As a result, Yale had to spend a lot of money offer more courses than normal that year.

In contrast, the costs associated with underenrolling are low — worst case scenario, you accept too few people, and you just go and accept additional people off of the waitlist. In the best case scenario,however, if the yield rate were to be higher than anticipated, by accepting fewer people you can avert an overenrollment crisis. For instance, if Penn Law had been more conservative in its admissions a few years back, it could have avoided overenrolling by 50%. In other words, underenrolling doesn’t have too much of a downside.

2) Now, you might counter that by saying that a school should just automatically admit those at the top of the numbers pool, and then just accept others as they turn it down. However, that does not work in practice — admitting a lot of top students who then turn the school makes it harder for the school to then attract the same students that are more likely to enroll.

Let’s say that someone with a 3.9/167 really wants to go to Michigan, but Michigan has a practice of autoadmitting the top students and then only making offers to those with lower numbers once the top students turn them down. After all, the 3.9/167 would get accepted eventually, right? This sounds good in theory, BUT in practice the world doesn’t work like that. Deposits are usually due in late April — and, like it or not, many admitted students never inform the other schools they got into that they’ve accepted offers elsewhere. So, the guy with a 3.8/178 who got into Harvard, Yale, Columbia, and Michigan might send a deposit to Yale by April 31, but never formally inform Harvard, Columbia, and Michigan that he sent a deposit to Yale and is no longer planning to attend.

So, what happens to Michigan if it autoadmitted people? It would suffer from a ridiculously low yield, but not know that it’s yield is ridiculously low until right before or right after deposit deadlines for both itself and other schools. By the time Michigan accepts the guy with the 3.9/167, chances are he would’ve sent in a deposit to Duke or Cornell — and by then, it’ll be significantly harder to convince that individual to completely change his plans. It’s one thing to take a few people off a waitlist if the school underenrolls — it’s another thing to fill significant chunks of a class like that.

3) Yet again, there’s the issue of wanting a student body where the overwhelming majority of students *want* to be there. Do you think Chicago wants to have a student body where 75+% of the students are only there because they got rejected from Harvard, Yale, Stanford, and Columbia? Do you have any idea how horrible that kind of environment is? Wouldn’t it be far more pleasant to attend Chicago if 75+% of the students there had Chicago as their #1 (or even #2) choice?

It’s not like Chicago waitlists or rejects everyone who applies with a 3.8/178 — if the Chicago admissions officers believe the 3.8/178 is likely attend Chicago if accepted, they’ll accept him. A 3.5/170 who had Chicago as his first choice (and made this clear to the admissions office by applying early decision, or by writing the optional essays) is a greater asset than a 3.8/178 who applied to Chicago as a safety school and ended up enrolling because he got rejected everywhere else. Of course, a 3.8/178 who has Chicago as his top choice trumps both other candidates — however, these individuals are relatively rare, but when a Chicago admissions officer knows Chicago is his top choice, the individual will be accepted (assuming there’s nothing else wrong with the application).

Yes, there are rankings benefits to this too — however, as Leiter pointed out, the ranking benefit is extremely small since acceptance rate is only 2.5% of the overall rank and the difference in acceptance rates among peer schools is already rather small. This practice isn’t for rankings manipulation, it’s for enrollment management and to bring about a better campus culture/environment.

Posted by: Anthony | Apr 7, 2005 11:56:20 PM

I’m not sure I understand the logic of not accepting an exceptional student. It’s not as if the law school is saving costs by placing them on the waitlist – they’re still sending the students the same amount of mail. Why not just send the student an acceptance letter?

The logic that admitting the top student takes a spot from somebody else doesn’t hold together. The school apparently knows that the student is likely to decline, so it can just accept one additional student than it believes it needs to fill its class. The worst thing that can happen is that more students accept than the school expects – the 1L class ends up a dozen students larger, but all of those dozen students are exceptional.

As such, its hard to view the waitlisting practice (if it is actually occuring) as anything other than a play to improve schools’ ratings.

As for mid-tier schools pursuing top professors, the practice seems explainable by probability versus reward. A middle tier school stands a much smaller chance of getting a prestigious professor than does a top school, but getting a single top professor will provide a proportionally larger benefit to the middle tier school than it will to a school whose ranks are entirely filled by outstanding professors.

Posted by: Kurt | Apr 7, 2005 11:11:37 PM

With respect to the comment that “there are many benefits to having a student body that is overwhelmingly made up of individuals who truly wanted to be there,” I’d just like to say that I completely agree.

My undergraduate institution was something of a tweener in this regard. Though Case Western Reserve is a good school and can provide a great education, it’s not Ivy. Problem was, a lot of the students there felt like they were Ivy material, and were upset that they had to settle. The result was an incredibly bitter student population, which made those four years seem a lot longer.

Posted by: Jeff | Apr 7, 2005 10:18:22 PM

I completely agree. From an email I sent to Prof. Kerr about this:

— If individuals with 3.8+s/175+s overwhelmingly prefer Harvard, Yale, etc. over Michigan, and consider Michigan their “safety school,” why should Michigan admit such individuals over people with 3.6s/168s when the latter group overwhelmingly sees Michigan as one of their top choices, and would genuinely be excited about attending Michigan if accepted (whereas the 3.8/175 group attending Michigan is almost certainly doing it because they got rejected from Harvard etc.)? There are many benefits to having a student body that is overwhelmingly made up of individuals who truly wanted to be there.

— The fact that this 3.8/178 applicant from a “top liberal arts college” felt the need to whine to Leiter about his situation makes me believe that he probably considered Michigan, Penn, Chicago, etc. his safety schools and didn’t bother to write any of the optional essays (ie. Penn’s highly important “Why Penn?” essay) for those schools. If an applicant doesn’t tailor his or her application to the school he is applying to, and doesn’t convey to the admissions officer that he truly would be excited about attending, why should the admissions officer accept the candidate over individuals who *do* take the extra step?

— Penn, Chicago, etc. are not devoid of people with high GPAs and high LSATs, including 3.8s and 178s. Clearly, there must have been something to distinguish this individual’s application from the 3.8s/178s who did get in; for instance, those other individuals might’ve applied earlier in the cycle, or may have actually written the optional essays.

— Furthermore, one can’t downplay the enrollment management benefits of a lower acceptance rate. A high acceptance rate (which would happen if Penn, Michigan, etc. automatically accepted everyone with a 3.8/178 regardless of other factors) greatly increases the chances of overenrolling, and the negatives of overenrolling are far worse than the negatives associated with underenrolling (if you underenroll you can just go to the waitlist — if you overenroll, you need to beg people to defer, or spend a lot more money on additional classes etc.). Penn and Chicago, for example, are among the smallest top schools, and the impact of overenrolling even by a little would be disasterous (especially for Penn, which is renovating several major 1L classrooms and therefore simply cannot accomodate a larger than normal 1L class — combine that with a 25% increase in applications and you can see why they’d be more conservative).

Posted by: Anthony | Apr 7, 2005 9:30:00 PM

Dan Markel on the Death Penalty (I)

The Retributivist Case Against the Death Penalty

The blogosphere has been abuzz about Sunstein and Vermeule’s paper arguing that capital punishment may be morally required. I have a long blog on that, which I will post later. In the meantime, let me get the shameless self-promotion out of the way first. A draft of my forthcoming piece on the death penalty is now available at SSRN. Its full title is State, Be Not Proud: A Retributivist Defense of the Commutation of Death Row and the Abolition of Execution, and it is coming out soon in the Summer 2005 issue of the Harvard Civil Rights-Civil Liberties Law Review. (Note that the version on SSRN is still a draft and pagination, format, etc. will change.)

Basically the piece explains how best to understand retributive justice, how it differs from revenge, and why that distinction can justify both former Illinois Governor Ryan’s blanket commutation of death row and a general abolition of capital punishment. The goal of the piece is to deliver a (figurative) punch in the stomach to those who justify the death penalty (e.g., various members of the Supreme Court and an array of commentators) in terms of retributive justice.

I will be grateful, of course, for any comments. If the comments come in the next few weeks, there’s a decent chance I’ll be able to revise the piece in light of them. Please send comments of any sort to our email account at prawfsblawg at gmail.com, and substantive comments below.

Posted by Administrators on April 7, 2005 at 04:33 PM

Contracts Theory

Over at The Conglomerate, there is an interesting discussion about the theory of contract law. Nate Oman has written two fascinating articles on the subject here and here. At the core of his most recent article is the claim that autonomy theories of contract should not be precluded merely because corporations must be seen as central to the practice of contract law. I whole-heartedly agree with this thesis and hope it gets the attention it deserves.

My own foray into contracts theory emphasizes that a general theory of contract will need to address three different sorts of contracts, all of which have a rightful place in contract law: contracts between individuals (Type I), between firms (Type III), and contracts between individuals and firms (Type II). No doubt, autonomy theories may have a proper place in all three Types. But surely the general theory of contract will need to be able to explain and provide guidance on the differences between the three Types. As the literature stands now, most theorists try to cabin one Type as the core of contract and proceed from there in theory-construction. In this forthcoming piece, (Download types_of_contracts_and_their_relevance.doc), I argue that this strategy must be abandoned. I’ll be fixing the draft over the summer and welcome comments.

Posted by Ethan Leib on April 7, 2005 at 03:05 PM

» Corporations and Autonomy from Tutissima Cassis My latestest offering on contract law is up on SSRN and is seeking a home amongst the law reviews even as we speak. The piece is entitled “Corporations and Autonomy Theories of Contract: A Critique of the New Lex Mercatoria.”… [Read More]

Tracked on Apr 8, 2005 10:18:33 AM

Comments

Sure they’re nice articles, Ethan, but do you really think that they’re really “fascinating”? I’ll conceded “not terminally boring,” sure. “Marginally more interesting than the average law review article” — maybe. But “fascinating”? That’s a pretty high hurdle for a contract piece. Now if the pieces had been on the Takings Clause, it becomes a different matter altogether.

Nice digs, Dan. And congratulations on the job, of course. I still think you would have made a nice addition to Tutissima, but the desire for one’s own proprietary blog is certainly understandable. (Now I’m wondering if you’re going to try to steal Chad.)

Posted by: Kaimi | Apr 7, 2005 10:21:31 PM

Part of this gets into the question of what is contract law. Interestingly, Fried and Stephen Smith “save” their theories by contracting what counts as contract law, e.g. damages rules aren’t part of contract law. Schwartz & Scott make a similar but expansive move, eg many contracts are governed by propertly law, etc.

FWIW, Brian Bix has a paper that he is working on that addresses this issue.

As for the holy grail, I frequently have my moments of doubt. I am working on a piece on duress right now, and I began my research by going through a bunch of cases, treatises, and basic practice materials, eg CJS, Am.Jur, etc. There is such a bewildering amount of factual nuance in the cases that it makes me despair of the possibility of creating meaningful legal theories. Maybe it really is ad hoc-ery all the way down.

Posted by: Nate Oman | Apr 7, 2005 3:28:42 PM

I am only first trying to get theorists to focus on the problem Dan-Cohen highlighted back in 1986: that different Types of contracts may deserve different treatment and different theoretical underpinnings. But maybe you are right that there is a holy grail that can unify contract theory. Much work to be done indeed!

Does the doctrine recognize the differences in contracts? That’s an empirical question that I will only first be able to undertake when I start teaching contracts in the fall. But Schwartz & Scott surely suggest that there are different regimes for Type I contracts, which often fall to property law to handle, and Type II contracts, which often fall to consumer protection law. We’ll see where this inquiry takes us.

Posted by: Ethan Leib | Apr 7, 2005 3:22:20 PM

Ethan: Thanks for the kind words. My contracts piece is a bit conflicted because while I don’t think that you can use corporations to dismiss autonomy theories, I don’t ultimately think that autonomy theories are adequate as theories of contract law. It makes me a bit mealy mouthed, but I hope I make up for it with fun factoids about medieval Italian corporate law.

I think that the typology you propose (endorse) is tremendously important. One theoretical problem is that the law of contracts itself doesn’t make a distinction between these sorts of contracts, at least at the level of doctrine. (Realistically, I think that judges notice who is sueing who in the lawsuits before them.) The theory tends to be homogeneous because the doctrine is homogeneous. Once the heterogeneity is recognized, I think that the theoretical respons has been as you portray it. My question, however, is that if theory becomes sensitive to the heterogeneity of contracts what happens? Do we end up having three more or less independent contract theories? Will every theory yield results at odds with current doctrine, namely policy suggestions that different sorts of contracts be treated differently?

The good news, is that the standard categories of efficiency, autonomy, and reliance that have dominated the theoretical debate for the last several decades are not going to get the job done. Lots of interesting stuff to be done. The problem is that working these sorts of theories out is damn difficult!

Posted by: Nate Oman | Apr 7, 2005 3:14:35 PM