Midwestern Mugwump (mw)2

More Interesting than it appears (maybe)

When I see something entitled "A Progressive Debate" (particularly on church and state) and described as a "Liberal-Liberal" debate - my hopes aren't too high.  Particularly at the Yale Law School, even moreso given that it's sponsored by the American Constitution Society, who does not (IMO) have nearly the same penchant for providing balanced and challenging forums as the Federalists.  BUT, all of that said, the idea of a debate (a term I really have begun to loathe as a description of a panel discussion with opposing sides) that could force Jim Wallis to defend the role of religion in the public sphere against Barry Lynn of Americans United For Separation of Church and State might be interesting. 

Or, it could just turn into a celebration of how much better they are than the 'religious right,' which would be depressing if that's what Wallis gets reduced to.

The Proper Place of a Law School (and a few other things)

Rick Garnett wonders about the place of law schools in 'great Catholic universities' - to which I would answer - the law school in the great Catholic university should be treated much better than it is - but he knew that already.

My actual inclination would actually be similar.  As a practical matter, I think that absolutely law schools should be given a strategic place because of the place of law in American culture. As Rob Vischer points out (in what I would describe as a vile and degrading movie, forgettable is being generous - if only it were) - lawyers are the new high priests (at least of political and many cultural matters).  Culture pays attention to lawyers and to law schools, so they offer a certain strategic usefulness in communicating the central truths of Catholic (and Christian) legal, cultural and political reflection. 

But law schools have problems to - they are intellectually underresourced, sometimes shallow, neglectful of moral and ethical formation (both in faculty and students), typically privilege cleverness over more substantive intellectual attributes, are often arrogant (both in faculty and students) and sometimes disdain interaction  with the rest of their universities. 

All that said, they truly are great and important places, deserving of greater resources and offer the potential to be a true jewel in the crown of a great Catholic university - but they will have to alter their approach substantially to achieve such status.

Why I Can't Stand Con Law

Professor Bainbridge notes that Instapundit is disappointed in conservatives embrace of the Schiavo legislation because it violates the principals of federalism, which PB accuses GR of fetishizing.  Nice.

My point is that not only is the difference between the two one of libertarian (more or less) v. conservative, it also reflects a difference in legal specialities.  Constitutional lawyers have a much greater tendency to take a principle/doctrine to its absolute end (and often, beyond) - building doctrines on top of metaphors that are picked up from dissents years later.  Business lawyers have much different styles.  Essentially working out of contracts, the core doctrines of business and contract law are (in my opinion) of a very different character.  They are more interested in balance and equity and are typically an outgrowth of the English common law tradition.  It is a telling of the gradual accumulation of common sense intended to get at a right result.  Doctrine plays a much more distant role.

My first semester in law school, I had Contracts immediately following Con Law and the contrast could not have been more stark between two radically different styles of thinking and legal reasoning.  And I don't think it was a function of the professors - this was Yale,after all, even the business lawyers tended toward the ethereal and had never substantively practiced.

Martha and My Job

I obviously don't work with Martha Stewart and her ongoing legal issues, but her travails occasionally touch on things I am familiar with and often make me laugh - a fact that I greatly appreciate.  The latest, her company's 10-K reveals that she has made a claim against her D & O insurer.  To wit:

"Martha Stewart has submitted a claim, pursuant to the Corporation's
By-laws, for approximately $3.7 million, for reimbursement of certain
expenses relating to her defense of the count of the federal criminal
complaint against her alleging she made false and misleading statements
intended to influence the price of the Corporation's stock. Ms. Stewart's
defense of this count was successful and a judgment of acquittal was entered
in her favor. The Corporation and Ms. Stewart submitted the question of
whether or not she is entitled to indemnification to an independent expert
on Delaware law. On March 15, 2005 the independent expert determined that
Ms. Stewart is entitled to indemnification. The Corporation believes that
any amount to be reimbursed to Ms. Stewart will be reimbursable to the
Corporation under its Directors & Officers insurance policy and,
accordingly, does not believe that the payment will result in an expense to
the Corporation."

I wouldn't want to pay that legal bill, either, but  I continue to get the feeling that she sees herself as a victim in this whole mess.  I can't imagine that in the long term that will be good for her, her company or her shareholders. 

Oh, well.  Thanks for the laughs, good luck with the claim.

Bainbridge on Everything (or so it seems)

The Good Professor takes to task Andrew Sullivan's article - "I-Pod World" and in the process picks apart Robert Putnam and others.  He also (again) cites to one of his own pieces - Community and Statism: A Conservative Contractarian Critique of Progressive Corporate Law Scholarship - that I would read if I didn't actually need to bill hours and sleep.  I must admit that I am amazed at his productivity.  And the article looks quite interesting. 

Given the above, I didn't actually read Sullivan's article, but  I presume he answers the obvious question - Apple didn't invent the personal listening device, so how has the I-Pod separated us to any greater extent than the Walkman?  After all, I had one youth pastor who strongly encouraged an informal ban on these walkmans, etc. (in the 1980s) so that we would talk and get to know each other on trips instead of sit with our headphones blasting.  I wasn't happy but it seemed reasonable enough.

Death and Minors

I must admit that I (again) find myself agreeing with Rick Garnett and Stephen Bainbridge - this time regarding the Supreme Court's decision in Roper v. Simmons. 

Garnett states (at Mirror) - "Still, it is not plausible to me that the 8th Amendment to the United States Constitution prohibits the people of a particular State to decide, through their elected representatives, that some 17-year olds are capable of committing and intending acts that warrant capital punishment. . . Nor am I persuaded that the practices of, and changes in, other countries -- invoked admiringly by the majority -- are relevant to the meaning and application of the 8th Amendment's ban on "cruel and unusual" punishment."

Bainbridge quotes Scalia as saying:

Worse still, the Court says in so many words that what our people’s laws say about the issue does not, in the last analysis, matter: “[I]n the end our own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment.” The Court thus proclaims itself sole arbiter of our Nation’s moral standards, and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures. . . In other contexts where individualized consideration is provided, we have recognized that at least some minors will be mature enough to make difficult decisions that involve moral considerations. . . Whether to obtain an abortion is surely a much more complex decision for a young person than whether to kill an innocent person in cold blood.

In law school, most death penalty advocacy centered around work in courts - a concept rooted in both the arrogance of the legal academy (and its students) and the nature of the skills we were developing.  Which is to say, I'm more familiar with legal angle on the death penalty than the political and legislative angle, but it seems to me that legal advocacy is more active than political advocacy.  Why is that?

What if Scalia had a 'blog?  He couldn't as a justice (probably), but what if he just threw up his hands, quit the court and started a 'blog?  Watch out.

Bainbridge on Negotiation

The Good Professor criticizes Bush and Santorum for pre-negotiation caving on Social Security saying - "It's not how they taught negotiation when I was in law school."  Of course, we know that Bainbridge prefers a more confrontational style. 

Personally, I like the way Aragorn conducted the negotiation with the Mouth of Sauron; but I don't think Roger Fisher would approve.

Sanctions and Oppression at Yale Law

Yeah, right. 

Well, it seems there is some limited conversation going regarding Alabama Federal District Court William Acker refusal to interview Yale Law students for clerkships because of the law school's ban of military recruiters.  A heroic gesture?  Eugene Volokh points out that this seems a bit unfair (but not illegal or unconstitutional), though on the grand (or even not so grand) scale of unfairnesses, this isn't really that big a deal.  They do have other opportunities. 

Regarding the unfair treatment of students, Bainbridge puts it in the context of rational choice - incoming students won't be treated unfairly because they can factor this in.  Maybe, but are they aware and do they fully understand how this might impact them before they even enter law school?  Then he throws in a constituent v. institution questions in there (all things are low-level corporate governance questions for the good Prof.)and throws in Kant for good measure.  Where, I ask, is Rawls?  There must be a Rawlsian angle to all of this (not that law students read Rawls, they just talk about him).

He then quotes James Joyner who states that students aren't being harmed because "one could argue that the students are somewhat complicit in the policy since, one suspects, it would be overturned if enough students raised a fuss."  This comment, to me, is where things really fall apart.  'One could argue that' (this kind of construction is a pet peeve of mine and was rife throughout law school where it was much more egregious), but you would fail.  Not only is this not the way law schools work (for the most part, though student input is solicited), but the, at most, 10% of YLS students who felt this way would never carry the day.  To call these students 'complicit' is ridiculous (though only slightly less ridiculous than tempest the judge, rather effectively, stirred up). 

Shouldn't Drezner jump in here with wise words about the unintended consequences of sanctions?  Given the partially ideological nature of choosing clerkships, most likely the only students who would even apply to work with Judge Acker (pre-sanction) would have been those students who would support his disagreement with the administration.  Now, they, and not their administration supporting colleagues, are being excluded from this opportunity.  I'm not sure Dean Koh is really going to care - except in that "I'm the dean and I feel deeply about all of you" sort of way.

Lawyer Joke Arrest

According to MSNBC - two guys on Long Island were arrested for disorderly conduct after telling a not very funny lawyer joke.

The Joke - “How do you tell when a lawyer is lying?” Harvey Kash reportedly asked Carl Lanzisera.

“His lips are moving,” they said in unison.

Of course, after being arrested for disorderly conduct, they followed up with this rather lawyerly comment - “This violates our First Amendment rights.” 

Alas.

Specific Drunkenness

This contract between George Washington and his gardener (at ContractsProfBlog - the official blog of the AALS Contracts Section - are there unofficial competitors?) made me laugh.  Specifically:

• "Gardner, to the best of his knowledge and abilities, and that he will not, at any time, suffer himself to be disguised with liquor, except on the times hereafter mentioned."
• "four Dollars at Christmas, with which he may be drunk 4 days and 4 nights; two Dollars at Easter to effect the same purpose; two Dollars also at Whitsontide, to be drunk two days

Who says law and history are boring?  It isn't particularly useful information, but it's funny.  Oh, and a great way to celebrate Christianity's most important holidays.