Category: Uncategorized

As promised, a post on the life of new law teachers — and a bone I have been meaning to pick for a year now.

One common and, I think, very useful thing for new law teachers like Dan and Ethan to do is to attend the AALS’s workshop for new law teachers, which is held each summer for folks who are entering or have recently entered academic or clinical law teaching. As is, I suppose, not uncommon at such events, much of the advice you are given amounts to a set of slapdash universals, to borrow a phrase, about teaching and scholarship, and you may only internalize five or ten tips from two or three days of sessions (but keep your notes! I borrowed a colleague’s notes from an earlier conference when I started teaching, and found them quite instructive). But those tips alone can easily justify the time — not to mention the value of meeting a host of people in and out of your field who are in the same position as you. I had already been teaching for a year and a half, as a visitor at two other law schools, before I attended the conference, and I still found it beneficial. I did find two things noteworthy about the conference, however: one stemming from the new faculty, and the other from the speakers.

First, over the course of the workshop, I heard at least three or four fledgling law teachers (and, as we former journalists understand, three of anything is a trend) make comments or ask questions to this effect: (1) The institution I am joining is a bastion of conservatism and general old, white maleness. My future colleagues are hidebound, comfortable, ignorant of social reality, illiberal, and so forth. I intend to change all that. As a new faculty member, I intend to smash the institution, or at least to shake it up and raise my voice for a greater sense of justice and social equity in faculty deliberations and school policy. (2) I would very much like to achieve tenure. I would very much dislike doing anything that might jeopardize my tenure prospects. (3) How can I achieve (1) without putting (2) unduly at risk?

Perhaps I am charmingly naive, but I was taken aback. Is this what the long march through the institutions has come to? I had understood that a principal purpose of academic tenure, loosely speaking, is to safeguard a faculty member’s right (whether contractual, constitutional, or what have you) of academic freedom. I had further understood that academic freedom guarantees the ability to speak boldly and sail against the prevailing scholarly and/or political wind, subject to some professional constraints whose boundaries are to be policed primarily, if not solely, by one’s colleagues in the field. Moreover, academic freedom does not begin with tenure; it is simply reinforced by tenure. See, e.g., Vega v. Miller, 273 F.3d 460, 478 n.8 (2d Cir. 2001). To be sure, a junior faculty member might be concerned that speaking out on contentious issues within the faculty setting may make him a target for heightened scrutiny come tenure, and a magnet for unpleasant treatment before then. But if you seriously believe you are fighting the good fight, isn’t that risk (a fairly low one in most institutions) worth the gain? Again speaking loosely, I am not thoroughly convinced that someone who is so timorous about tenure is the most appropriate beneficiary of that protection, or that they are likely to make good use of it.

I must say that I find something especially unsettling about this uneasy — but not uncommon — marriage of self-proclaimed progressivism and self-evident careerism. I see no reason to think that this phenomenon is limited to political liberals or progressives. Rather, it’s simply a symptom of the less attractive elements of career orientation in what Robert Reich might call the symbolic analyst class. (Indeed, what are the twin presences of the Federalist Society and the American Constitution Society, with all their networking activities, if not proof of the political evenhandedness of careerism?) I am sure that there are political conservatives out there in the legal academy and other academic departments who think it better, on the whole, to keep quiet with respect to their views on issues like affirmative action until they are safely past the tenure point.

The charge of cowardice naturally applies to them, too. But this is a more politically progressive blog, and I’ve always taken the view that the goal of political affiliations is to have a position from which you can criticize your friends, not attack your enemies. (This may be why I’m not much of a good party man.) From that perspective, I must say I find something especially absurd and off-putting about someone who assures the world that she fully intends to remake an institution — just as soon as she has an engraved key to the place.

Does that mean there is no reason for new faculty members to keep a modest profile in faculty deliberations? No, it doesn’t. I have always been a fan of the old phrase: “I beseech you, in the bowels of Christ, think it possible you may be mistaken.” As a number of more seasoned faculty members gently and wisely remarked at the conference, three months before your first day of classes is a tad early to conclude with any confidence that your colleagues are all incorrigibly wrong about everything. Furthermore, it takes some time to learn what the relevant issues are at your institution — and still longer to discover that your radical proposals have already been tried and found wanting, or that you are entering in the middle of a very long and involved debate, and that you may not know all the facts on the ground. Not that junior faculty brashness has no place: one of the very reasons schools hire junior faculty is for their energy, for the motive force that may be brought to an apparently logjammed issue by a colleague who is still blissfully unjaded. But a touch of modesty doesn’t hurt. On the other hand, modesty is not the same as careerism. If the only reason a junior faculty member shuts his or her mouth is love of self-preservation, so much the worse for them, and the institution.

If I am particularly sensitive to this phenomenon, my experience as a journalist, before entering law school, may have something to do with it. In journalism school, almost from day one, some of my finest teachers encouraged their students to set aside some of what they playfully called “fuck you” money, against the possibility that they would have to choose between their jobs and their principles. Perhaps it’s not the most loyally observed advice, but my experience suggests that a fair number of reporters have taken it to heart. Most lawyers who have adequate credentials to win teaching jobs have a hell of a lot more (and more lucrative) alternative career options than journalists, of course, so I can’t be all that sympathetic to someone who is genuinely convinced that his institution is in desperate need of change, but unwilling to chance the risk of doing much about it for four or five years. (I grant you that I speak from a privileged position. Speaking, not as an untenured professor but simply from a position of deep conviction, I must say that my own colleagues are a fine and wise bunch, so these issues haven’t really arisen for me.)

I suppose, in short, that my response to the question I heard voiced several times at the new law teachers’ workshop — how can I be a successful pre-tenured radical? — would be that if you have to ask the question, it’s not clear that you deserve tenure, and even less clear that you ought to call yourself a radical.

Well, that’s a little heavy. On a lighter note, I was struck by a slightly different note at the conference, both on the part of the new lawprofs and the older and wiser heads. More precisely, I was struck by the absence of a note: levity. Teaching and scholarship are fun, and so too can be faculty interaction. Yet these things — and especially issues of faculty governance — were all discussed with a dominant note of gravity at the conference, save for one speaker. Am I the only one who, after a steady diet of academic satires, looked forward to faculty meetings? Is it possible to read Richard Russo’s Straight Man and not relish faculty life? I know that we lawyers can be serious people. But one thing I would counsel newly hatched law professors who are already thinking and strategizing about faculty governance matters is to sit back and enjoy it a little. No issue of faculty governance can be so grave as to excuse someone who fails to appreciate the privilege of being given a front-row seat at the human comedy.

Posted by Paul Horwitz on April 17, 2005 at 07:26 PM

Comments

I don’t get it. What do you want to change? Aging white male conservative law professors? or the wider world? I am not sure I see the connection between the two.

Posted by: Steve Diamond | Apr 19, 2005 12:50:24 AM

You mentioned that you were a visitor before landing a tenure-track position—as someone who hopes to follow in your footsteps, I’m wondering if you have any advice about what to do (or not to do). (I will be a VAP at a 2nd-tier school during 2005-06.)

Posted by: VAP designate | Apr 18, 2005 10:56:31 PM

A very interesting post on a topic I’ve given an awful lot of thought. A few disjoint points:

(1) Most who go into legal academia – heck, most who graduate law school – aren’t rabble-rousers by nature, but instead are believers in The System. There’s a wide gap between the number of profesors with left-wing views and the number who do anything about those views. “Be the change you want to see in the world?” Not so much.

(2) I’m a firm believer that in taking principled action, limited by the following:

(a) You must have a broadly reasonable institution, not one with too much psychotic infighting.

(b) You have to be judicious about how often you make this or that proposal, i.e., don’t be the guy with a new proposal every single facult meeting.

(c) Given that you can’t make 10 proposals a year, you have to be judicious about what which issues to push now and which to put off for later, i.e., some issues may tick off lots of folks, whereas others (e.g., “more diversity-focused student recruiting”) are broadly in the interest of everyone at the school, and your efforts in that regard are likely to be appricated rather than resented.

Posted by: Scott Moss | Apr 18, 2005 6:20:30 PM

Paul, this is an uncommonly thoughtful post, and I have two quick reactions which I think I’ll just enjoy prerogative to post about separately. Thanks.

Posted by: Dan Markel | Apr 18, 2005 10:08:47 AM

Many thanks to my friend and erstwhile colleague, Dan, for allowing me to hitch a ride for a couple of weeks on this fine and very popular (at least in the echo chamber that is my bookmark universe) new blog. I assume he cleared it with Ethan, but my apologies to him, too. I am afraid I won’t do anything to improve the white male quotient. On the other hand, according to my doctor, at least I am currently not dead.

As enthusastic a reader of blogs as I am, and as glad as I am to climb aboard for a bit after a couple of years of contemplating establishing my own blog — especially after watching the success of my former Iowa colleague Tung Yin — I admit to some ambivalence about the blogging experiment, for reasons I hope to explore at some point in the next couple of weeks. Still, I gratefully welcome the opportunity to share a few thoughts, perhaps participate in some of the internal dialogue in this space, and also do my best, per Tung’s example, to mix legal discussion with more vital cultural concerns. (For example, am I the only one who tears up during the poignant scene in Old School when Will Ferrell sings “Dust in the Wind” at Blue’s funeral?)

By way of standard biographical information, I’m an associate professor at Southwestern University Law School, in Los Angeles. My bio is here. I don’t vouch for the picture. The obligatory link to my SSRN page is here. And given that Dan and Ethan have already been asked to discuss the legal teaching market, I plan to post a few things on the job process, the life of a new teacher, and related issues. Again, thanks for the soapbox.

Posted by Paul Horwitz on April 17, 2005 at 05:29 PM

Benjamin Wittes had a thought-provoking piece in The Atlantic a couple of months ago in which he urged liberals and democrats (not really the same thing, of course; it is a venn diagram) to allow Roe to die. Jeffrey Rosen has written about the subject as well. They make some of the same points I have made in the same-sex marriage context. Perhaps at some future date I’ll blog about Roe itself.

Posted by Hillel Levin on April 17, 2005 at 01:16 PM

DM: Rob’s informed me that the review of Ian McEwan’s Saturday that we ran the other day was somewhat incomplete, so we’re republishing it here in full.

A Day in the Life of Mr. Perfect: A Review of Ian McEwan’s Saturday By Robert Howse The protagonist in Ian McEwan’s new novel Saturday has too much going for him to be a plausible hero of contemporary fiction: Henry Perowne is a neurosurgeon of impeccable reputation and high stature; a loving, faithful and sexually adept husband; a model father of two kids who are turning into creative, functional adults; reasonably fit and healthy for early middle-age. That McEwan can hold our interest in this man through a several-hundred page account of his thoughts and actions in a single day says much for his skills as a writer. He has an impeccable eye and ear for the rituals, vocabularies, illusions and insecurities of the educated professional classes in our time. Saturday is set in the winter of 2003 — the lead up to the Iraq war, and McEwan captures beautifully the feeling of that very particular historical moment.

What makes Mr. Perfect at least barely believable and humanly interesting as a character (and not merely a device for McEwan’s own astute social observation), are the lingering self-doubt and even weak shame that shadow his accomplishments and virtues. Reflecting on the abstemiousness of his young adult daughter, instead of simple pride and self-congratulation at raising a kid without a substance abuse problem, we have Henry putting in question his own (very moderate) drinking; when he considers how natural it comes to him to be faithful to his wife, he ends up wondering whether there is something lacking in his masculinity. There is a nobility to Perowne’s combination of high mindedness and self-questioning unaccompanied by decisive transformative action, a nobility that reminded me of Turgenev’s Russian liberals, sometimes too gently noble and self-conscious for their own good, bourgeois intellectual Hamlets.

But Perowne isn’t really an intellectual, and in the sole drama of the novel that puts his decisiveness to the test, he does okay. Henry, rushing to get to his regular squash game on a morning when many side streets in London have been closed off due to anti-war demonstrations, ends up in a minor accident, and a not-so-minor run-in with some thugs. The main thug Baxter, however, turns out to have a debilitating neurological disorder, which Perowne is able to diagnose on the spot and exploit to undermine Baxter’s status with his henchmen, diffusing the confrontation.

Later that day Baxter, recouping his losses, comes around to Perowne’s home during a family get-together and terrorizes them, holding the wife at knifepoint and forcing the daughter to strip naked. But Baxter is once again undone by the superior knowledge of the educated classes; he is first of all charmed by what he presumes to be one of the daughter’s poems, which she reads to him, and then is lured away by Perowne’s false suggestion that in his study he has information that could cure Baxter of his disorder, providing an opportunity for Perowne and his son to physically overpower and disable the thug.

The final twist is emblematic of both the strengths and weaknesses of this novel, its inventiveness but also its over-vindication of the middle-aged professional male: before his Saturday ends, Henry performs brain surgery on Baxter to deal with the consequences of the scuffle in the Perowne home (Baxter ends up getting thrown down the stairs). Despite having had multiple glasses of wine on an empty stomach, then living through his family being held at knifepoint by a deranged thug, not only does Perowne pull off a flawless performance in the OR, but on a patient who is none other than that very thug. McEwan gives the grown-ups their own Harry Potter. Robert Howse’s first novel, Mozart, is available at Amazon.Com and Barnes and Noble online.

Posted by Administrators on April 17, 2005 at 08:34 AM

As Week 3 begins, we’re going to have some visiting bloggers who will join us, typically for a two-week window. Some of the future ones include Jennifer Collins from Wake Forest U, Daniel Solove from GW, and Trevor Morrison from Cornell, among others. The dates for these will be worked out soon.

In the meantime, I’m excited to announce the arrival of my friend Paul Horwitz on the PrawfsBlawg pages for the next two weeks. Paul is a fellow landsman from Toronto who eventually moved to the United States, first to study at Columbia’s J-school, and later to do an LLM there. We overlapped for a while in DC and discovered he was a law school classmate of my sister’s hubby. Paul now teaches in Los Angeles at Southwestern Law, where he teaches con law type classes and legal ethics.

He has two recent pieces of scholarship that are worth highlighting, both available here. The first piece rigorously applies the behavioral psychology literature to the doctrines of the First Amendment and the risks those doctrines impose, and the second is one that revisits the Grutter/Gratz cases through the prism of free speech, exploring the implications of the Court’s affirmative action cases for educational autonomy and the First Amendment. I highly recommend both.

Paul, welcome to PrawfsBlawg.

Posted by Administrators on April 17, 2005 at 08:13 AM

Americans spend 6.6 billion hours on tax preparation per year Well, I assume we aren’t talking individually here, but rather in the aggregate. Still, that’s . . . a lot. And a massive inefficiency. And wealthier people spend money on accountants and mine the code for deductions. I wonder what you all think about this proposal for a national sales tax, but before we all get into a tizzy about regressive taxation, check this out:

And his bill untaxes the poor by including an advanced monthly rebate, for every household, equal to the sales tax on consumption of essential goods and services, as calculated by the government, up to the annually adjusted poverty level.

I know there are flaws, but let’s hear them from you.

Posted by Ethan (for AmosAnon1)

Posted by Ethan Leib on April 15, 2005 at 05:06 PM

Comments

Some may be familiar with the work of the late David Bradford on the consumption tax. Rather than thinking about it as a sales tax — assessed by merchants as the sales tax is tody — a consumption tax would simply tax individuals based upon their income less their increase in aggregate savings (which itself could be negative). This approach has several advantages over a sales tax (like the congressman above seems to be suggesting): 1. it could be administered by a single central authority — without the duplication and error costs associated w/ individual merchants collecting and remitting a 23% tax to the government; 2. it doesn’t require the selection of certain “non-taxed” products, a procedure that would get incredibly politicized and thus create major rent-seeking costs; and 3. following up on 2., it could be as progressive as one wished — merely by exempting the first $X,000 of consumption.

I’m no expert on such matters, but apparently Bradford was quite influential. He spent many years considering the difficulties of transitioning to a consumption system: for example, what to do about built in losses or gains? what to do about accumulated NOLs? etc.

For non-experts, I think one interesting question is what kind of system is more just — an income or a consumption based system? Why, for example, should two people who earn the same amount but save vastly different amounts be taxed the same (today)? In other words, should a “rich person” who lives like a poor one pay the same taxes as another rich person who lives lavishly? I think there’s a good argument that the answer should be no.

Posted by: Dan Levine | Apr 17, 2005 2:19:13 PM

Right on the middle-class impact, partly because of the mortgage interest and state/local tax deductions, but also because of the simple math: if you’re lightening or holding constant the load on the poor, and you’re lightening the load on the rich, then where does the extra money come from? It has to be coming from the folks who aren’t “the poor” but who spend most of their non-rent, non-mortgage income on sales-taxable goods: food, clothes, etc.

Here’s who takes a big hit: a middle-income family with a number of kids (requiring lots of food/clothing expenditures) living in a modest apartment or house (because modest living means they’re not spending much of their income on non-taxable rent/mortgage — most of ther income goes to taxable goods). In fact, if this family has to spend a bit beyond their means for a few years (whether by accumulating credit card debt or expanding a home equity line of credit), they could be paying the sales tax on more than their income….

Posted by: Scott Moss | Apr 16, 2005 10:53:31 AM

I keep hearing complaints about all of the monstrous effort it takes to fill out tax forms and how the complexity keeps increasing in an endless spiral. In fact I would be willing to bet that the time to fill out tax forms is decreasing at a very fast rate due to the computerization of the process.

I can remember spending weeks in the past where today it takes just a couple of hours. When bills and finances are finally all on line, it probably will take no time at all.

Of course we may not be happy that the government has access to all of this, but that is another issue….

Posted by: Robb | Apr 15, 2005 6:14:14 PM

The only downside is that any politician who votes for it will be thrown out of office by the middle-class mortgage-holding homeowners who rely on Schedule A deductions and discover that their home-owning expenses have increased by 30% while the value of their homes has decreased by almost as much. If you think the 1986 tax reforms caused economic dislocation, wait ’til the income tax is replaced with a sales tax. And even with the rebate, it would be considerably more regressive than the current system. But if it can be shown that the long-term benefits outweigh the short-term dislocation, it may well be a great idea.

Posted by: Ted | Apr 15, 2005 5:28:38 PM

Christine Hurt, of The Conglomerate, has a series of posts in reply to my earlier queries about Ladies in the Law Schools. Check out her thoughtful analysis.

Posted by Ethan Leib on April 15, 2005 at 04:34 PM

Earlier this week, I argued that proponents of same-sex marriage would do well to focus on legislation rather than litigation to achieve our goals, even if it meant settling for civil unions rather than marriage.

I always knew that people tend to take my advice, but I never knew how quickly. Connecticut is now poised to become the first State to legislatively adopt a civil union law. The Republican governor has announced she would sign the House’s bill if the Senate adopts it.

To view the version that was passed, start here, and then read these two amendments that were adopted.

Is it perfect? Hardly: it does not come with the word “marriage,” and it reaffirms that marriage in Connecticut is only between one man and one woman. However, substantively, it appears that the bill bestows civil unions with all rights and responsibilities associated with marriage.

In my view, in this case, it is better to have rights than to be right. Of course, there is no reason that advocates of same-sex marriage need to stop at civil unions. We should continue to advocate full marriage equality and lobby for it. But right now, let’s enjoy the win.

Query: The theocrats have attacked VT and MA court opinions as judicial meddling in political questions. I wonder how they will attack this one? Perhaps they will finally admit to the real issue: the culture wars have nothing to do with principles like states’ rights or judicial activism. Rather, it is all about politics, and as soon as those principles are no longer useful, they will cast them aside and find some new reason to criticize legislation supported by the majority.

Posted by Hillel Levin on April 15, 2005 at 12:46 PM

» Ask and Ye Shall Receive from The Debate Link The stellar new blog Prawfs Blawg notes the passage in Connecticut of Civil Unions legislation which grants gay couples virtually all the same rights as heterosexual married couples (Balkinization points out the one niggling exception). So, they ask,… [Read More]

Tracked on Apr 15, 2005 4:18:35 PM

» Sanity and Insanity from The Debate Link Charles Krauthammer has a very interesting column on the judiciary in today’s Washington Post (Orin Kerr, among others, with the link). There were loads of points made, some which will anger liberals and others which are clear shots at conservatives…. [Read More]

Tracked on Apr 22, 2005 8:10:11 PM

Comments

living in ct, i think the process has been an interesting one. I greatly support full same-sex marriage rights and do believe that this is a step in achieving just that. The group, Family Institute of CT (classified as a “social welfare” group…interesting…) has a few major points – one which is to let the people vote (thus, their big “let the people decide” stickers) on this issue. Haven’t they read history?

when the interracial marriage ban was lifted in 1967, polls indicated that 70% of americans disagreed with that decision. Thank God the public does not decide the rights of others. Legally, it is the responsibility of the government and the courts to protect minority groups from discrimination, even when the majority supports that discrimination. also, there is no harm documented to allowing same-sex partners to enter into marriage. we already allow two-parent adoption, but we don’t allow those parents to be legally related to each other? now that’s just silly.

overall, I am happy to hear that it passed. Much like massachusetts, I think we’ll find that our state is not washed away, that couples continue living their lives, families are given added security and that public approval will continue to grow and support same-sex couples.

there’s a reason that educated people overwhelmingly support allowing same-sex couples to marry. they don’t fall victim to the fear-tactics and distorted “facts” offered up by the other side….

all it took was sitting at the judiciary hearings and listening to the opposition give their testimony to hear the difference…i encourage you to read their statements if you haven’t already.

I appreciate your blog!

Posted by: skye | Apr 20, 2005 5:30:48 PM

Conservatives don’t care, so long as the legislature decides these issues instead of the courts deciding for people

Following Bush v Gore, I no longer even have to think hard about whether to believe conservatives when they say they’re applying “neutral principles” of judicial deference and federalism. When the elected branches don’t do the bidding of the right, the right is more than happy to have judges step in and override the actions of Our Democratic Representatives. See, e.g., the whole 10th Amendment Jurisprudence of the past 10 years (including an admission by Scalia in Printz that he’s overturning a law under 10th Amendment principles even though the Constitution doesn’t literally speak to the point); the whole 11th Amendment Jurisprudence of the past 10 years (in which Kennedy, an opinion joined by Rehnquist/Scalia/Thomas) actually says that the Court “underst[ands] the Eleventh Amendment to stand not so much for what it says, but for the presupposition which it confirms”; the federal jurisdiction over the Terri Schiavo case; I could go on.

When less entrenched in power, maybe conservatives could fool some by hiding behind supposedly neutral principles to attack “the political seduction of the law” (Bork); now in power, they’ve been seduced by the same mistress.

Apologies for this long aside of a tirade, but nobody should let that conservative claptrap go unanswered. They’re against gay marriage because they don’t like gay marriage, not because “the wrong governmental body” enacted it. Do you think there’s so much as one conservative politician who’s against gay marriage now but would be in favor of it, if only a different branch of government enacted it?

As to the “theocrats” moniker: listen to some politicians’ speeches, where every policy comes from what God tells them to do (apparently God now chooses obscure state assemblymen as His Prophets); look at the fervent support for school prayer; look at the religious basis for virtually every policy suported by the religious right. Yes, we do not have a theocracy now. We would if certain elements of the country had the power they seek.

Posted by: Scott Moss | Apr 16, 2005 11:05:09 AM

I am interested in seeing whether readers think civil-union statutes represent any stable resolution to this debate, in any state or in the country. My sense is not, for two reasons: First, I think it likely that courts will strike down as irrational a classification that provides gay couples with all the benefits of marriage without calling it “marriage.” The only rationale for such a distinction is animus, thereby presenting a seemingly easy case under Romer. Thus, a civil-union statute will become a gay marriage statute by way of judicial constitutional interpretation. Second, few gay-rights advocates are satisfied with civil unions, and the vast majority (it is my sense) see laws like Connecticut’s proposed one as a first step toward full equality. Thus, we will see at least an organized enthusiastic lobbying effort for the foreseeable future. Do readers (and moderators) think I am right, particularly as to my first argument? If so, would civil unions be receiving as much support as they are if the public understood that the end result of passing a civil-union law would be to legalize same-sex marriage? What implications arise if public support is indeed not reflective of likely future court action?

Posted by: Michael Dimino | Apr 16, 2005 12:41:02 AM

I said that conservative across the country will not care, I didn’t say no one in CT won’t oppose the bill! How is asking the CT house and governor not to pass a bill (by the way – nothing has passed until both houses pass it and the governor signs it – bicameralism and presentment) that they allege doesn’t have public support anything other than political advocacy? What is the alternative: conservatives in CT shouldn’t be allowed to lobby or vote?

Let me be more specific: neither U.S. House and Senate members, nor the White House, nor conservative papers, magazines, or opinion writers will give a damn IF CT ACTUALLY PASSESS A CIVIL UNION LAW.

Supporting or opposing a bill that has not yet achieved passage, during the legislative process, is not exactly radical behavior.

Posted by: MJ | Apr 15, 2005 5:08:37 PM

Or how about the gigantic nothing from these folks: http://www.ctfamily.org/Crosshairs.html

Or are they just chalked up to the 10%? If so, that’s who I was talking about.

Posted by: amosanon1 | Apr 15, 2005 4:55:04 PM

A gigantic nothing from the right? Here’s what the Family Research Council has to say:

“Connecticut is known as the Constitution State. This week, Connecticut state senators ignored history and decided to also ignore the will of the people by passing a bill that would grant civil unions to homosexuals. While the senate thinks it is putting together a “great compromise” by allowing civil unions and not same-sex “marriage,” it is only doing an end-run around Connecticut voters. Whatever they are called, civil unions or domestic partnerships, allowing government benefits normally reserved for a wedded man and woman to be granted to any coupling diminishes the status and stability of traditional marriage. This has significant impact since marriage is the most basic relationship in the fabric of society.

The Family Institute of Connecticut and the Connecticut Catholic Conference recently announced the results of a jointly commissioned poll which shows that seventy-six percent of Connecticut residents want the chance to vote on a constitutional amendment defining marriage in Connecticut as the union of one man and one woman. The Connecticut house should reject the senate bill and Governor Jodi Rell (R) should veto any civil union legislation that reaches her desk. If legislators are fearful of defending the cornerstone of society, then they should let the citizens have an opportunity to do so by voting on an amendment to the state’s constitution defining marriage and its benefits as between one man and one woman.” http://www.frc.org/get.cfm?i=WU05D06

In other words, now it isn’t good enough that a civil union law is passed by the legislature AND included a DOMA. Now the only democratically legitimate method is a referendum!

Hat tip: The Debate Link http://dsadevil.blogspot.com/2005/04/ask-and-ye-shall-receive.html

Posted by: amosanon1 | Apr 15, 2005 4:52:01 PM

Disparaging terms like “theocrats” are just childish. If you really believe that the vast majority of Republicans and/or conservatives want to replace our government with a church, then you are just as ignorant as the folks on the right who say that the left wants to turn us into a communist country.

As to the point of your post, I think that you’ll see that conservatives across the country don’t give a damn if individual states enact civil unions or domestic partnerships. What people on the left don’t or won’t understand is that 90% of the people on the right (I wish I could say 100% but that wouldn’t be true) have absolutely no animus towards gays at all; they just don’t want issues such as the definition of marriage decreed to them by the courts.

As far as CT’s civil unions go, mark my word: you will hear a gigantic nothing from the right. Conservatives don’t care, so long as the legislature decides these issues instead of the courts deciding for people.

Posted by: MJ | Apr 15, 2005 4:31:01 PM

I must admit that I am no expert on the contours of California domestic partnership law. Each article I’ve read suggests that CT really is a first, but if it is a second, I’d be even happier. And would it were the 25th!

Posted by: amosanon1 | Apr 15, 2005 3:29:43 PM

I thought California adopted its domestic partner law legislatively — a law that grants marriage-in-everything-but-name. Two states can’t both be the first to do something, unless you mean that a “civil union” is different from a “domestic partnership,” even though both confer the functional equivalent of marriage.

I’ll agree that the fact that Connecticut, like California, adopted a civil union legislatively is significant development indeed, particularly in the Northeast, where the only other developments have been judicial. Let’s hope the legislative adoption of civil unions or domestic partnerships continues — it’ll be more politically legitimate in the eyes of our enemies. It won’t stop them from complaining, but it will push them closer to acknowledging their bigotry.

Posted by: keith | Apr 15, 2005 2:16:33 PM

A few clarifications, since we’re all over the place in the comments to Ariela’s questions.

First, on the question of WMBs (that’s White Male Blawgs). Brian Leiter wrote a comment to complain that I unfairly lumped him with the likes of The Right Coast, The VC, Bainbridge, etc. He questioned: “What light does my being a “white male” shed on my similarities in blogging with Bainbridge, Volokh, Bernstein, Smith, Rappaport, etc.? None, I should have thought–at least for anyone who had read these blogs–which might have given one pause before clustering bloggers that way.” Fair enough.

In response, I commented: “Obviously anyone who reads these blogs knows that you are clearly not aligned with the right-wing echo chamber. But I think we just can’t get around the fact that the blawgosphere is dominated by white men, who together, if not individually, must acknowledge that voices are missing here. Even if you are a powerful advocate for the left, it still matters that you are a white man. I could be wrong–and I hope one day gender and race don’t matter.”

Now I’m getting complaints that I shouldn’t be lumping the libertarians with the social conservatives. Let me be clear: I apologize for lumping the multi-flavored conservatives and Republicans together–and I’m even more sorry for lumping Leiter’s Leftism in with the motley crew of Right-thinking bloggers.

But please don’t avoid the question I was trying to raise: Is there something missing in this fun blawgosphere, when the vast majority of voices are coming from WMBs, whether from the libertarian Right, the social conservative Right, or the socialist Left? I’m not one for “mirror representation” (in the political theory parlance), but is something awry?

Finally, this leads to the next question: why is legal academia predominantly male? Are more men going to the AALS? If so, why? Obviously, academia is hard work. But only someone who hasn’t worked as a lawyer–whether for a firm, a government, or legal aid–could suggest that there aren’t huge benefits to the freedom of schedule academia affords. As a starting point, take a look at Larry Solum’s tally here. By my count (and I’m sure it is a bit off because some names are hard for me to categorize), 61% of starting law profs are men. Given that law school graduates tend to break down closer to 50/50, I’m curious what is going on. Any ideas?

Posted by Ethan Leib on April 15, 2005 at 09:48 AM

» Prawfsblawg on Women in the Legal Academy: from The Volokh Conspiracy

About half of all law students, including at top schools, are women. But most applicants for academic jobs, and most hires, are men. Why? [Read More]

Tracked on Apr 15, 2005 1:43:50 PM

» Women in the Academy and Legal Profession (Sigh) Again from Conglomerate Prawfsblawg is throwing out highly charged questions about women in academia, and so I guess I have to take the [Read More]

Tracked on Apr 15, 2005 2:34:35 PM

» White Blawgs and Women in the Academy. from Dissemination.org Interesting discussion on PrawfsBlawg (I know the name blows) on White Male Blawgs and Women in the Legal Academy here. The post that sparked this debate is here. I would urge interested readers to get in on the discussion there, which has generated so… [Read More]

Tracked on Apr 15, 2005 2:36:51 PM

Comments

The Black male high school graduation rate from the Indianapolis Public Schools last year was 19%.

It’s difficult for me to get too worked up about the hardships of adult female lawyers in the academy.

Posted by: Mr. Y | Oct 30, 2008 9:37:28 PM

“Excellent post, Ariela. Just one thought: Maybe dad had been the victim of the vomit attack the previous time?”

I’m sorry, but these posts are really minimizing the difficulties that women face in all career tracts. There are very few women out there who are thinking, “either I stay home with the kids or my husband does.” Most are thinking “either I stay home with the kids or no one does.” It is still socially acceptable for a working woman to take on all the responsibilities of maintaining a household as well as handling both child and eldercare.

In countries like Spain, Italy and Japan, birth rates are plummeting because women are starting to realize that as working women they’re still responsible for taking care of everything in the home. So in couples where both spouses work, the woman comes home from her 40 hrs/week job and does another unpaid 40 hrs/week on all of her “traditional duties” while her husband sits on his butt and expects to be served. These women just don’t think it’s worth it so they get divorces or refuse to have more children. Spain thinks this is such a big problem that they just passed a law requiring men to take part in child/elder care and housework.

So the question isn’t really, do women want to work in acadmia/other high paying highly stressful field? The question is whether women have to make a choice between working in said field or having kids. Men don’t have to make this choice – they can assume that their wives will take care of the kids. Men can have it all. Women, on the whole, can’t.

Posted by: rivki | Apr 18, 2005 3:27:59 PM

Ariela,

I think that aspiring dads know that to get married and have children at all it will help to be prepared to be a breadwinner. Put another way, the focus is on women’s choices because women have choices that men do not. For men (unlike women) to “choose” to de-emphasise career is a choice to increase the likelihood not that you will wind up a stay-at-home dad or a less-affluent dad (both fine choices in my opinion) but that you will never be a dad at all. Once in that situation, even if both parents are willing to reduce or stop working outside the home, when mom and dad sit down to talk about which parent or parents will take time off, often both agree that it would be best for the family and everyone in it for dad to continue full time employment.

Posted by: AnoniProf | Apr 18, 2005 3:01:43 PM

Excellent post, Ariela.

Posted by: amosanon1 | Apr 18, 2005 7:04:40 AM

AnoniProf and femalelawprof are both right: in the general population, stay-at-home dads are, perhaps, not viewed as desirable mates (being incorrectly confused with bums and couch potatoes). I’ve seen those same kinds of studies that AnoniProf quotes. However, I do think that in certain circles, that kind of husband is very valued (I’m not supposed to say “the law school set,” but I’m talking about people with more than one post-high-school degree — you know who you are). Moreover, I think that the choices men make (again, those who HAVE choices, economically speaking) should be the most important focus of inquiry. Articles about feminism, career, and family still tend to focus on WOMEN’s choices, as in our previous thread about whether this or that wife is suffering from false consciousness when she chooses to stay home and raise kids. The discussions tend to assume Dad is at the office, and that this is not a “choice” or dilemma for him.

This is true even (especially?) of articles written by working women themselves. On Christine’s excellent Conglomerate blog (http://entrepreneur.typepad.com/conglomerate/), she links to an article by a professor who tells of her harried life being a mother and a professor. When asked to lecture on the subject of how she did it all, she told a story about her daughter getting sick on the day of the professor’s last class of the semester and ultimately throwing up all over Mom/Prof in the elevator, thus eliminating the possibility that Mom could just teach the class while the sick daughter watched TV quietly in the back. The point of the story was, apparently, that you can’t do it all. I certainly agree.

But I have to ask: Where the hell was Daddy during this vomiting episode? Why was Professor Mom even involved in picking up the sick daughter at all? The story was depressing in its assumption that Mom/Prof had to deal with everything herself. Last year, I also got a call from daycare the morning of an important oral argument. My daughter had cocksackie virus, commonly (but not comfortingly) known as “foot and mouth disease.” For those of you who are not parents, it’s not as bad as it sounds (it is not the same disease that required the burning of thousands of sheep in England a few years ago, that’s “hoof and mouth”), but it does get your kid kicked out of daycare for a week. When I got this call, did I panic? Did I try to figure out how I could bring my toddler to oral argument, or leave her with the boss’s secretary for an hour? Did I feel guilty? No, I did not. I said to the daycare teacher, “That sounds awful. Her dad will pick her up in half an hour.” I could say this with confidence because Dad was the primary parent that year. In my personal opinion, there has to be a primary parent at all times. There is no such thing (or it’s really hard) to share childcare duties “equally.” Someone’s career has to be on the back burner. Someone has to get vomited on.

I know plenty of professional women who are happy when their spouse takes on that role, at least for a few years. Incidentally, my coclerk from that year is now working at a fancy DC appellate shop while her MBA husband continues in his role as SuperDad. I think Ted on this blog said he’ll be doing the same for awhile. These men are the feminists of today. I’m not saying every man has to do this, but it shouldn’t be as rare as it still is.

This change in behavior by men is a more promising solution to me than the others proposed so far on this blog, like minimizing the importance of visiting at another law school for a year or downplaying the role of academic conferences. Law teaching is, and should continue to be, an “alpha” profession requiring a lot of effort, creativity, and energy. The same is true of being a litigator (my goal in life — yes, I’m an impawster on this blawg). It simply does require long hours, travel, moving around, and so on. For prawfs and litigators who want to succeed, having a spouse who’s willing to take the backseat, at least for some years, is probably crucial.

Am I too pessimistic?

Posted by: Ariela | Apr 18, 2005 3:18:09 AM

In my earlier post, I made the mistake of generalizing from my own personal experience, which is probably unrepresentative. Nevertheless, I think the research–FWIW–shows that women value earning potential in mates more than men do. See David Buss (Psych., Texas): “Two universal clusters of sex differences are the desire for youth and beauty(men value more than women) and the desire for a mate who has good financial prospects and elevated social status (women value more than men).” http://homepage.psy.utexas.edu/homepage/Group/BussLAB/pdffiles/Human%20Mating%20Strategies.pdf

If this research is correct, it is to be expected that men in a consumer society like ours will on average be more committed to work. An unspoken piece of this problem (and here I _am_ generalizing from my own experience) is that professional couples want to live at least a lower-upper-middle-class lifestyle. It would be easy for two part time professionals to earn the median household income, but I haven’t seen many profs in mid-life go half time, say–less time for non-work activities is traded off against higher income.

Posted by: AnoniProf | Apr 17, 2005 11:38:04 PM

Minor point, but a correction to Ann B’spost above: UVa has so far had two women and two men accept entry level offers this year. But agree with the overall point. And, for the guy who thinks women don’t want stay at home dads: that sort of misses the point, doesn’t it? Most adults with active emotional and intellectual lives want both to work and have a rich family life. Similarly, most such adults want to have a partner who feels the same. The goal isn’t to find men who want to drop out of the workforce to raise the kids while the women slave away at the office. The goal is to have both parents have interesting, humane jobs that allow reasonable flexibility so time can also be spent with the kids– plus, of course, decent leave while they’re babies, and affordable, decent, day care available.

Posted by: bytheway | Apr 17, 2005 9:22:04 PM

Anoniprof,

You are underestimating women. My husband and I have discussed his willingness to quit his job and take care of the future child if that makes the most sense. This is one of the (many) things that I treasure about him; I certainly didn’t choose my spouse primarily for his high earnings potential, and this holds true for most of the women I know. In fact, most women I know with “big careers” and equally big paychecks would be happy for their husbands/future husbands to earn less and contribute more with the children. Marriage is supposed to be a partnership, not a battle over who earns more and who “gets” to stay home with the children–at least in my view.

Posted by: femalelawprof | Apr 17, 2005 12:19:10 PM

Ann: I strongly second your thoughtful and excellent message. What is your view of a class action lawsuit to remedy this unfortunate discriminatory pattern of hiring and promotion by law schools?

An estimated $tril or 2 in those endowment funds. There is insufficient accountability in this racist, sexist, homophobic, speciesist country. It is time for these law schools to pay reparations for all the injuries inflicted on people of other color, of other gender, of other ability, of other IQ’s, of other capacity for issue spotting, of other height, of other weight, of other species, and of other victimization.

On a personal note, I happen to be othered in all those categories. I am being bullied over my othered grades, for example, by insensitive, gradist profs.

I am extremely upset, and I do not feel safe in law school.

Posted by: SupremacyClaus | Apr 17, 2005 11:06:06 AM

Given the trollishness of some of the “participants” I imagine this will be my last visit/comment, but for what it is worth:

The 39% figure for female entry level hires this year seems high to me, though I recognize that with constant updating the figure is in flux. Some of the men with “possibly female” names may be getting counted as women, though. In any event, what is also quite striking is the way the top schools seem to hire men disproportionately. While Tennessee (e.g.) managed to hire three women, schools like Berkeley, Chicago, Fordham, GW, Georgia, Minnesota and NYU etc. seem to only be hiring men, and UVA hired three men and one women, it appears. Tulane seems to have managed to hire two women (as well as a man), and one out of two listed for Texas is female, while Columbia’s only new entry level hire seems to be female. Overall, though, the “presigious” entry levels jobs are overwhelmingly going to men. Some women will “move up” by getting hired laterally, but that usually requires a geographic move too, which family considerations may preclude, so the pool of female “lateral possibles” is likely to be even smaller than the pool of entry level women, as of course is also true for men.

Posted by: Ann Bartow | Apr 17, 2005 10:41:26 AM

A stay at home dad may be the professional woman’s dream, but I see no interest on the part of professional women in PAYING for a dad to stay home. A male on the marriage market candid about a desire to be Mr. Mom would never be taken seriously by women in the midst of big careers (while a woman taking that position would be attractive to many men). Similarly, few high achieving professional women send signals during courtship that their dedication to career will mean that their husband will have lots of choice about working outside the home or not. Obviously, if squirelling away the husband’s Cravath draw (or whatever) allowed him to retire early and take care of the kids, great. But there is little evidence to support the theory that women are eager to break their tails at the office so their husbands can go to PTA meetings and keep house.

Posted by: AnoniProf | Apr 17, 2005 1:42:39 AM

Don’t worry about academic positions. Women can have them all. Worry about how many women got this:

http://www.williegary.com/plane.html

Posted by: SupremacyClaus | Apr 17, 2005 12:56:48 AM

See also: http://www1.law.umkc.edu/Lawreview/upcoming.html

Posted by: Ann Bartow | Apr 16, 2005 4:13:58 PM

Note to Stuart Buck:

There are significant flaws in the AALS hiring data. I don’t have the time to get into a detailed explanation here, but basically many law schools give nontenure track people the title of Asst Prof, Assoc Prof or even Prof. They argue they do this becuase it is helpful to the people in these positions, and that is hard to dispute, but at the same time, folks who are counted as “Asst. Prof” year after year but are not tenure track tend to be women, and this makes the numbers look a lot better than they actually are in terms of the progess women have made on law faculties. I’d love to see all clinicians and LRW teachers be tenured/tenure track but to count them the same as tenured and tenure track people is to skew the statistics in a way that makes it look like women are 50% of new TENURE TRACK hires when the actual number is about half that.

Posted by: Ann Bartow | Apr 16, 2005 4:10:49 PM

I think that fundamentally, it is pretty hard to argue that women make less than men when all factors (greater leave time, less likely to sacrifice family for job, etc.) are taken into account.

Secondly, I think that it is a mistake to try to make women and men “equal”. Equal means that there are no differences – a laughable idea. One of the key differences that is being run into in this case is the fact that womens’ fertility declines before that of men. This is only one of the many, many differences between women and men. To isolate this difference and try to influence it to the exclusion of others is to be blind to the complexity inherent in the situation at hand.

Posted by: nordsieck | Apr 16, 2005 3:25:16 PM

I think Laura Appleman’s discussion is quite on point. I am an academic scientist, not a lawyer, but a lot of the same issues are important for us, too. (Most tenure-track biologists–my field–are male, although 50% of the PhD’s are earned by women.)

In order to get a tenure-track posting as a scientist, you generally need to do a couple of high-profile post-docs, which means you may pick up and move every two years for 6-7 years before finally finding a permanent slot. A friend of mine just completed this process, and the only way she was able to do it was by having her husband be a classic “trailing spouse”, picking up whatever work he could find in whatever city she landed in. Now that they’ve found a more permanent posting, he can try to kick-start his career again, but it was definitely a sacrifice.

Most of my female colleagues with tenure are either unmarried or married after finding a permanent position; most of the men have “trailing spouse” wives who work as office managers or teachers. I suspect relatively few men are willing to be trailing spouses, so the average academic woman has to choose between flying solo until her mid-30’s, or changing careers. Since academia won’t make you rich, you have to do it for the fun of it–and if the other emotional penalties are too great, it isn’t fun, either. Hence the leak in the pipeline, IMO.

Does this mean that women are discriminated against in academia? No, but it doesn’t mean that the women don’t have the intellectual firepower to make it, either. Women just usually pay a higher overall price for the same reward.

Posted by: Dictyranger | Apr 16, 2005 8:56:32 AM

Laura: Reminder. You make $1 bil/year. You have 3 endowed law school chairs to your name. You run 6 law blogs simultaneously, comment on 12, each day. You are truly brilliant. But, you forgot something: children. You are a biologic dead end.

A year after your death, the $bil is gone. No one remembers your name nor cares about the pointless academic achievement.

Women know this. This debate underestimates their savvy. Men have little to offer the future. So they peddle puffery. Don’t fall for it. Don’t envy their inferior position. Don’t imitate.

Posted by: SupremacyClaus | Apr 16, 2005 7:57:08 AM

Sorry to post anonymously, but I had to tell you this. My law school has a program with the state bar that hires 10 1L’s a year. This year, out of 10 hires, 8 were women. 1 of them is on academic probation. That’s right. Probation with a 1.8 GPA after 1 semester. The only 1L’s at my school still begging for jobs are white males.

As far as my school and the state bar association is concerned, they are trying to remedy the problem you mention, even if they have to hire women who may not even be allowed back in the fall.

Posted by: Mr X | Apr 15, 2005 11:01:49 PM

In my experience, women were less eager to write papers on their own after law school and while working as a clerk or elsewhere. Therefore, most women who would otherwise be eligible to be professors don’t have the academic credentials that would impress most committees.

Posted by: Laryr | Apr 15, 2005 3:29:22 PM

Isn’t it potentially also an effect of time lags.

That is, it’s not like most people go straight from law school grad up to law prof. Many people work, get some practice experience, clerk, work for the government, and so forth. Years down the road, they enter the academic market.

Thus, the total pool of academic market is probably skewed by the fact that, in years past, the law school graduation pool _hasn’t_ been 50-50 male-female.

Or in other words, “why are new law profs (in 2005) only 40% female when new law school grads (in 2005) are 50% female” is a little like asking “why are new military hires at the level of ‘general’ only 40% female while new hires at the level of ‘private’ are 50-50?” There’s bound to be some lag between point A and point B.

Posted by: Kaimi | Apr 15, 2005 2:38:51 PM

AA2, the bias in favor of families is going to exist. There is nothing we single types can do about it. Society, both culturally and politically, puts a premium on the continuation of humanity. Family units are the underlying core components of society (in whatever form that unit takes). FemaleProf notes that there should be greater value given to raising children in or society; she is right. While we value it and assume it is going to happen we should value and give the leeway to the people who are raising the next generation. We want healthy, well-adjusted children who will mature into adults with respect for others, respect for the law, and a thirst for learning. If those who are currently able to raise the next generation, such as single men and women, are resentful of the respect given to family I think that it is a very selfish perception.

Posted by: Joel | Apr 15, 2005 1:57:52 PM

Actually, I don’t think what I was saying (“give generous maternity/parental leaves) *does* reflect or urge a “bias in favor” of those who choose to reproduce. I am urging an elimination of what are, currently, career *penalties* for those who reproduce and plan to actually spend some time bringing up their children. Since women in heterosexual relationships are more likely to be primary caregivers of young children, this penalty therefore falls more heavily on women.

I would like to live in a world where all persons are encouraged to devote significant time to loving relationships of all sorts, and where no one is penalized for attempting to have both a meaningful and successful career and loving relationships. All relationships take time — I would be equallly delighted to see law schools, and other employers, offer leave time to faculty members of either gender and sexual orientation struggling to care for a child, a sick spouse or partner or parent or even very close friend.

All that said: I think that given the historically subordinated position of women… given that women are still undercompenstated relative to men… given that women have fewer social choices than men when it comes to “how to be a good parent,” etc., it is perfectly reasonably to have a few programs geared particularly towards women.

Also, while choosing not to have children is fine (and maybe good, in an over-populated world), I think it is defensible to argue that having and caring well for children is an activity that ought to be valued socially more than it is.

Posted by: femaleprof | Apr 15, 2005 1:24:20 PM

I have an odd question that I’m posting on both of these discussions. To what extent, if any, should we realize that this discussion is motivated by a bias in favor of persons or couples that raise children. I initially was going to say there’s a heterosexist bias in the discussion: namely, that giving women special maternity rights (or men paternity rights) basically is a wealth transfer on the margins from gays on faculties to straights. Of course, nowadays, increasing gay families are emerging, so there’s no need to assume a heterosexual bias for procreation and raising kids, so much as a bias for raising kids simpliciter. Should singles or couples who don’t want kids be resentful of the suggestions here to give longer times or more leaves to the procreating types? Or is a renunciation of “family-friendliness” something that is off the table altogether here?

Posted by: AA2 | Apr 15, 2005 12:46:12 PM

Two facts are pertinent:

1. According to the AALS’s data, male applicants consistently outnumber female applicants by more than 2-to-1.

2. For all years tabulated, the average success rate for female applicants was 13.9%, compared to a success rate of 11.3%.

Without controlling for quality, of course, these overall stats on the success rate are fairly meaningless — there could still be a bias against female applicants (i.e., perhaps many the male applicants weren’t even qualified in the first place).

Posted by: Stuart Buck | Apr 15, 2005 11:54:44 AM

I have some fun with Prof. Leib’s attempt to prove that he is a “properly-gender-correct husband” over at Red State Lawblog. What would the boys from Monty Python do?

Posted by: Rick Duncan | Apr 15, 2005 11:02:05 AM

I think that the issue Ethan is grappling with is whether people are better understood according to the contours of their genitalia (or skin color or ethnicity or whatever) or their actions, words, and thoughts. There is no simple answer, other than: both. It depends on the context, and even within one context, both factors are in play.

It is fair game to ask about diversity along both measures.

Also, Ethan says that because the comments are “all over the place,” the earlier post requires clarification. I disagree. That the comments are indeed all over the place indicates that the earlier post was successful in generating thought, conversation, disagreement, understanding, and misunderstanding. Isn’t that what we want from out bloggers?

Posted by: amosanon1 | Apr 15, 2005 10:14:42 AM

Ethan,

I read the yesterday’s blawgswarm on white male predominance in the legal academy with great interest. Here’s my take, for what it’s worth. I think the reason that there are fewer women in legal academia, even at the junior levels, is a three-part problem.

First, in law school, many fewer women are mentored by professors (who also tend, at this point, to be male). To generalize, women tend to be quieter in class, less self-promotional, more shy about actively seeking mentorship, less encouraged to pursue academia (due in part to above factors) and sometimes less comfortable about finding mentorship in male, as opposed to female, professors. At least that’s how it was in my law school (Yale).

Second, once out of law school, women get hit by the societal and biological pressures discussed in yesterday’s feminism debate. Certainly the desire to get married and have children coincide for many women with the difficulties of working and writing articles to prepare for the AALS process.

Once in the AALS process, the same pressure are doubled, if not tripled. Whether it’s right or wrong, realistically it is much less common, in two career heterosexual couples, for the male to give up his career to go follow his wife to teach at Midwest U. Children complicate it even more, as the first few years of teaching are very intense (prepping for new classes plus writing), and the needs of young children still fall predominantly to the woman to meet. So that would be a third limiting factor.

Of course there are women who do it, who actively pursue their academic interests in law schools, receive mentorship, have the help of supportive husbands and families; Christine Hurt comes immediately to mind. But it’s a lot less common, and society still looks askance at a couple where the woman works full-time while the man stays home with the kids.

On a personal note, I consider myself very fortunate; I had plenty of mentorship in law school, I’m teaching as a visiting prof next year while I go on AALS, and my husband (also a lawyer) is willing to move anywhere with me. No kids yet, but when we do, we are going to try to equally divide responsibilities (try being the operative word). But I sense I’m the exception, not the rule.

Posted by: Laura I Appleman | Apr 15, 2005 10:11:02 AM

Hey! What are you doing lumping neo-libertarians with the traditional libertarian rights?!?! J/K

Posted by: JMoore | Apr 15, 2005 10:07:55 AM

Someone’s got to stop this business of reaching out and touching no one.

Zylinderhut tip: Althouse.

Posted by Administrators on April 15, 2005 at 03:36 AM

There is an old saying that the only people who serve on juries are those who are too dumb to get out of it. That pretty much sums up scholarly wisdom as well: educated members of society are underrepresented on juries, resulting in juries that are too dumbed-down to adequately assess the complex evidence and testimony that are increasingly the focus of modern trials. Scholars have written dozens of articles theorizing as to the cause of the problem (among other things, lawyers don’t want educated jurors), as well as offering suggestions as to how to solve it, from the simple ( e.g. fewer peremptory challenges) to the radical (no more juries). A friend of Prawfsblawg, Hillel Levin, and his coauthor, Jay Emerson, have just released a draft of an article forthcoming in the 2006 Connecticut Law Review that begins the process of debunking this little nugget.

Assessing Connecticut census data and juries in federal courts, Levin and Emerson find that educated members of society are not underrepresented on juries; in fact, juries are generally better-educated than the community from which they are drawn!

This is interesting, and not something I know much about, but query whether there’s anything about CT that might make its jury results unusual. Perhaps the fact that it’s among the wealthiest states in the country? I’m not sure.

The paper also considers why commentators make the assumption they do about jury education. Among other explanations, the authors suggest that ivory-tower scholars simply haven’t been reading the right materials: the practical literature on jury selection–the literature practitioners are likely to refer to–does not encourage lawyers to strike potential jurors based on their education levels. Hmmm…something for us to learn, no doubt. In the death-defying words of Larry Solum: Download it while it’s hot!

Posted by Administrators on April 14, 2005 at 06:41 PM

» Study on Connecticut federal juries from PointOfLaw Forum Dan Markel is excited by a study of Connecticut federal juries that he says helps “debunk” the understanding that jurors are less educated than the general population. But the paper’s results aren’t quite that strong. (Hillel Levin, “Is There a… [Read More]

Tracked on Apr 14, 2005 11:41:05 PM

» Study on Connecticut federal juries II from PointOfLaw Forum Hillel Levin responds to my original post that remarked on a PrawfsBlawg post:… [Read More]

Tracked on Apr 15, 2005 1:05:34 PM

» Study on Connecticut federal juries II from PointOfLaw Forum Hillel Levin responds to my original post that remarked on a PrawfsBlawg post:… [Read More]

Tracked on Apr 15, 2005 1:11:34 PM

» Study on Connecticut federal juries II from PointOfLaw Forum Hillel Levin responds to my original post that remarked on a PrawfsBlawg post:… [Read More]

Tracked on Apr 15, 2005 4:42:27 PM

Comments

I’ve had too many vivid examples of the sock-em jury to readily accept that it’s a myth — and with juries empowered to issue multi-billion-dollar awards…

Did you read the big news story about the meritorious slip-and-fall case in which the jury unfairly ruled for the defendant? How about the race discrimination case that lost because of the all-white jury?

Of course we don’t hear about such cases, because the media cover the unfair big verdicts, not the unfair zero verdicts. It’s a tremendous example of the salience bias (see behavioral economics) in how we receive and process information.

I was a lawyer in NYC for 6 years before teaching. In some counties the jury pools were good for plaintiffs. In others, like Westchester County — the mostly affluent, mostly white suburb just north of the Bronx — a plaintiff can’t buy a verdict. A very conservative friend of mine at a firm in Westchester who practices insurance defense litigation admitted there’s a lingo for a plaintiff with a good case who loses in that county: “he got Westchestered.”

There may be eight plaintiffs who “got Westchestered” for every one McDonald’s coffee verdict — but we’d never know from the media, and there aren’t a lot of good statistics about that.

The point is that we can’t say “hey, look at those big verdicts” as evidence of drooling illiterate jurors emptying out defendants’ corporate coffers to every plaintiff able to call a slip-&-fall lawyer’s 800 number.

Posted by: Scott Moss | Apr 16, 2005 12:45:37 PM

I agree with Dave. Most people who disagree with what juries do don’t understand what happens in a trial. Much of what you read about a trial is not available to the jury. When you sit in a jury box, the information that you have is extremely limited and controlled. You cannot take notes or refer to any resource material. You must make very serious decisions with no way to walk away if you can’t decide between two alternatives. The Judge will not tell you what alternatives you really have. Under the circumstances, juries mostly do the best that they can. Of course if you think about it, this logically means that they will tend to some of what Ted complains about, which is to over compensate for injury.

Posted by: Robb | Apr 15, 2005 6:26:53 PM

Wow. First, thanks to Dan for highlighting our little paper. And thanks to everyone for your comments.

Now, let me address some of the excellent points you’ve all made.

Dan and another commenter wonder whether CT is really a good model, since it is wealthier an perhaps better educated on the whole than other jurisdictions. We thought a great deal about this issue, but couldn’t think of any way it would skew our results, for a couple of related reasons: (1) The wealth and education in CT is due largely to Greenwich and Fairfield County more generally. Once you head north and hit places like New Haven (and evirons), Hartford (and environs), New Britain, and Waterbury, all bets are off. (2) Relatedly, we don’t compare the juries to the jurisdiction as whole, and certainly not to the population as a whole. If we did, surely our results would be skewed, because CT would obviously have better educated juries than, say, Alabama; and some seats of court within CT would have better overall education than others. Instead, we simply compare the jury to the specific venire from which it is drawn. So we may have a relatively uneducated venire or a relatively well educated venire; but the jury that comes out of that venire is likely to reflect the venire itself. If the same selection methods were applied in Alabama, we may have lesser educated juries than in CT, but we would not expect to have lesser educated juries AS COMPARED TO THE VENIRES from which they are chosen.

To Laura: (1) The trend is against automatic exemptions for professionals. I think it is a stupid idea; it isn’t accepted in the federal system; and states (like NY) are fast moving away from it. But yes, you would expect that jurisdiction that retain such exemptions would have lesser-educated juries (and lesser-educated venires, since the doctors and such don’t even get onto the venires). So to those jurisdictions, I say: get rid of your exemptions and adopt federal jury selection methods. (2) We make no assumptions or judgments as to the desirability of educated juries, although we do cite to literature and studies that suggest that better-educated jurors are better equipped to handle complex cases. All we do is examine whether the conventional wisdom (educated people get out of jury duty) is borne out in practice.

To Ted: I appreciate your comments very much, and I hope you’ll post my response on your own blog. Your first comment hits the nail on the head when you suggest that our paper is limited by the length of trials in the data set. Ultimately, we must deal with the data set we are dealt, and we are very upfront about this limitation in the paper. It is why we intend to do a far more expansive study, once funding and time come through. But I will say this: (1) We have to start somewhere, right? This conventional wisdom has been around for at least three decades, and no one has bothered to even attempt to empirically test it. Further, as the conventional wisdom becomes more entrenched, it also becomes stronger. If you read the articles we cite in footnote four, you’ll find that many of them don’t distinguish among short and long trials, or complex and straightforward issues and evidence. Instead, they simply condemn the system and offer “scholarly” alternatives. We think that we’ve shown that if the system is infected, it is only some kinds of cases. Further, our findings are buttressed by the real world literature on the topic, which seems to have escaped the notice of the commentators. Finally, we do not argue that juries are adept at dealing with cases; we make no such normative judgments. The juries we have may be ill-equipped to deal with them, and it may be worth considering major changes. But not until we have the data to back it up, and that data that we have presented does not support the charge that educated members of society are excluded from juries. (2) You point to the differences between state and federal selection methods. You may well be correct, again. But we aren’t willing to assume that you are correct. Instead, we are going to study it. And if state juries underperform federal juries in this area, then shouldn’t we simply advocate that states adopt the federal system, rather than argue for wholesale, untested, and radical reforms based on no data? (3) On your blog, you argue that judges subtly favor one side or the other and get rid of educated jurors as they see fit. Our study would have picked this up; indeed, many of the cases in our study did plead out or settle before trial (but after jury selection), and we see no correlation between those that go all the way to trial and those that don’t.

In short, yes, our study is limited. But since it is done blindly and systematically, don’t you think it is less limited than your own anecdotal experiences; and don’t you think it is less limited than the theory, conjecture, and assumptions that passed for evidence before? You case a critical eye towards our data and conclusions, as well you should, but I wonder whether you are quite so critical about the articles that contain NO data, but perhaps affirm your own assumptions? The proper response to our study, I think, is this: It is limited and it should be expanded and repeated. We agree.

To Dave Hoffman: Thanks. Do you want to be our P.R. rep?

Posted by: Hillel | Apr 15, 2005 9:23:36 AM

Forgive me, Dave, I’ve had too many vivid examples of the sock-em jury to readily accept that it’s a myth — and with juries empowered to issue multi-billion-dollar awards, even if over 90% of juries are conscientious deliberators, it takes only a small percentage to have severe negative social consequences. Much litigation is the result of the search for those outlier juries.

Posted by: Ted | Apr 15, 2005 5:51:32 AM

What a great paper. Most real-world looks at jury behavior and identity supports the idea that jurors are astonishingly good decision makers (I say astonishing, because the trial process doesn’t help them, and the instruction process probably actively hurts them). Nevertheless, you constantly see scholars (and law professors in ad hoc classroom attacks) pooh-pooh juries. Studies like this one ought to change people’s minds, but I think they won’t, until law professors (through mechanisms like reducing exemptions for lawyers mentioned above) are forced to serve on more juries and are confronted with vivid counterexamples to the lazy/sock-em/jury myth.

Posted by: Dave Hoffman | Apr 14, 2005 11:57:41 PM

I comment at Point Of Law. In short, this paper doesn’t tell us much, because, as the paper acknowledges, it’s the longer trials where the education factor is most likely to come into play, and this paper doesn’t look at the longer trials. Second, the paper ignores the distinction between federal courts, which have a much wider-ranging venire, and state courts, where plaintiffs forum-shop for a favorable venue with the narrow type of venire that is likely to be plaintiff-friendly.

Posted by: Ted | Apr 14, 2005 11:50:12 PM

I haven’t read a enough of the scholarly of literature on this subject, so I’ll be interested to read this article on the CT experience. Some general thoughts, though. Jury pools of course are limited by the demographics of the local community from which the court draws its jurors. If a court sits in a poor county with sub par educational opportunities, people should not expect to see as many investment bankers or doctors appearing for jury duty as in Greenwich, CT. In addition, even in more affluent communities, or if you look to juror demographics state-wide instead of by county, some jurisdictions maintain automatic jury duty exemptions for many “educated” professions, such as lawyers, doctors and judges. As Laura commented, New York eliminated its own exemptions a few years ago, and suddenly we had all kinds of doctors, lawyers and other “educated” professionals showing up for jury duty. Indeed, a friend of mine had a judge as a juror in her recent drug trial, and I just finished a burglary trial with a corporate lawyer sitting on the jury.

But, on a broader level, I wonder about the apparent assumption that better educated jurors necessarily result in “smarter,” or as Laura suggested, “improved quality” juries. Although a banker might have the technical expertise to make a complex securities trial easier to digest, or the scientist the DNA evidence in a rape or paternity trial, most trials require of jurors in the end only the simple ability to assess individual human accuracy and truthfulness as part of a larger story to be told. In other words, good old common sense and fair mindedness. I know it sounds like a cliché, but unless you’re trying a strictly technical claim, it’s quite true. And, I have yet to identify any necessary correlation between higher education and these traits. On the contrary, I have met highly educated people who appear to have little or none, and many modestly educated people who have heaps. So, perhaps the inclusion of more “educated” professionals in the jury pool benefits the trial process, not because of their greater education, but because they enlarge and diversify the pool of potential jurors with common sense and fair mindedness. Then again, in Manhattan, it also has seemed to result in more hung juries …

Posted by: Brooks Holland | Apr 14, 2005 10:30:06 PM

Ever since NY state changed its rules for jury duty a few years ago, making it much more difficult for professionals (lawyers, doctors, judges, even Mayor Guiliani) to get out of serving, the quality of the average jury pool for New York County has improved. Moreover, attorneys, even criminal attorneys, often make it through voir dire and serve. I don’t think it’s just a CT or a federal phenomenon.

Posted by: Laura | Apr 14, 2005 9:33:42 PM

Fascinating piece in the New York Times Magazine (hey, I’m reading it slowly this week!) by Linda Greenhouse on Justice Blackmun’s journey that led him to author Roe and to become an icon among feminists. Let’s just say he didn’t exactly start out that way.

Posted by Hillel Levin on April 14, 2005 at 01:49 PM