Is That Legal?

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April 28, 2006

A Discussion About Law Professor Blogging

n impressive group of law professor bloggers are gathering today at Harvard Law School to talk about how blogging is transforming legal scholarship, and about the phenomenon of lawprof blogging more generally. If you click through to that page, you can listen to a live webcast, which I'm doing right now. (Doug Berman and Larry Solum have just finished talking, and now Kate Litvak's up.)

If I were there, I would certainly talk about my efforts (along with Greg Robinson), on this blog and as a guest-blogger at the Volokh Conspiracy, to enage in a real-time review of Michelle Malkin's 2004 book "In Defense of Internment: The Case for 'Racial Profiling' in World War II and the War on Terror."

The posts constituting the review are gathered here.

In a world without blogging, scholars would simply be unable to counter this sort of shoddily researched and poorly reasoned work -- work that, because of the high public profile of its author, can transform public debate on crucial subjects. In a world without blogging, a scholar would have to content himself either with the usually vain hope that a major newspaper might pick up a short op/ed or with a more comprehensive review published months or even years later in an academic journal that few people read.

To be sure, real-time book reviewing--whatever its attractiveness as a blogging enterprise--is an imperfect scholarly enterprise. Some of my arguments about her book were stronger than others, and if I had been writing a book review in a conventional way, I'm sure I would have sifted out some things and re-ordered others. On balance, though, I think the immediacy and broad reach of Greg's and my evaluation of Malkin's book more than outweighed any lack of polish.

UPDATE: I'm still listening to the webcast, although I had to turn the volume down slightly after Orin Kerr finished speaking for fear that the thunderous applause might break my laptop's little speaker.

Here's the thing that's striking me most of all: it surely says something important -- I'm not sure what, but something -- that thus far in the program, the thing that keeps coming up over and over again is the reaction of lawprof bloggers to an analogy (of lawprof blogging to water-cooler conversation) that was put forward at the conference by a law professor who is not herself a blogger.

Does this suggest that we lawprof bloggers are more worried about what our colleagues think of our blogging than we like to pretend we are?

Posted by Eric at 9:27 AM

Well, They Are Both Groups of Defendants.

'm not entirely sure, but I think my colleague Arnold Loewy is comparing the Duke lacrosse players to the Scottsboro Boys.

The op/ed's main arguments are, to be sure, quite sensible. The analogy, however, strikes me as a stretch.

Posted by Eric at 7:16 AM | Comments (3)

April 27, 2006

Now This Is Fresh Sushi.

Posted by Eric at 8:17 PM | Comments (3)

Symposium on Japanese American Redress

f you're in or near Seattle tomorrow, you might consider dropping in on this symposium reflecting on the movement for Japanese American redress. It will explore questions such as these: "How did a grassroots movement of everyday working people lead to a formal apology and monetary reparations from the U.S. federal government for the incarceration of Japanese Americans during World War II? What are the movement’s historical lessons and lasting legacies on the ongoing struggle for social justice?"

Timely issues, important history, great speakers.

Posted by Eric at 8:56 AM | Comments (1)

How Many Death Row Inmates Does It Take To Plug In An Electric Chair?

uried in this article about yesterday's Supreme Court argument in Hill v. McDonough, which concerns a death row inmate's challenge to the method of his execution, is this tantalizing tidbit:

[Justice Anthony] Kennedy reprimanded his colleagues for laughing as several justices joked about the mischief that defense lawyers could cause if forced to propose ways to execute their clients.

"This is a death case," snapped Kennedy.

This Washington Post account has the justices engaged in "light banter" rather than outright "joking." (And Linda Greenhouse didn't find the chortling worthy of mention at all.)

Inquiring minds want to know: Who was joking? Who was laughing? What was the joke?

Posted by Eric at 8:28 AM | Comments (3)

April 26, 2006

Thirteen of You Read The Onion, However.

ere are this blog's survey results from the survey run a couple of months back by blogads.com.

Not a damn one of you reads Soldier of Fortune or NRA Rifleman.

Wussies.

Posted by Eric at 3:42 PM | Comments (3)

Is That Love?

op songs don't get much better than this.

(And videos don't get much more early-eighties.)

Posted by Eric at 10:25 AM

Muller Week

assure yout that I am not related to these guys, and had nothing to do with the making of this film.

Posted by Eric at 10:10 AM

A New Book on White Collar Criminality

n teaching criminal law, I've always been struck by how our conceptualizations of mens rea (guilty mental states) come from crimes (especially crimes of violence) in which both the guilty acts (the "actus reus") and the victim's harm are pretty clear and uncontroversial. So many of the crimes that my office (the US Attorney's Office in NJ) prosecuted didn't fit this mold. Political corruption cases, bank fraud, health care fraud, mail and wire fraud -- so many of these cases presented tough questions about the line between guilt and innocence, between "aggressive business" and "criminality."

Stuart Green has a new book out from Oxford U. Press, "Lying, Cheating, and Stealing: A Moral Theory of White Collar Crime," that promises to help us think through these tough questions of white-collar criminality more carefully. I've not yet read it, but plan to. If you're in the field, you ought to look it over!

Posted by Eric at 9:45 AM | Comments (3)

April 22, 2006

Picture This.

hecking in from Cambridge ("Our Fair City"), MA, where I've just attended a fantastic two-day criminal procedure conference at Harvard Law School. This was the first time I've ever been here (at Harvard Law, that is).

The conference was held in Pound Hall, one of the approximately 750 buildings that make up the Harvard Law School campus. Having strolled the hallways and examined what's hanging on the walls, I can say with confidence that Harvard Law School's budget for faculty photographs is larger than UNC's budget for faculty salaries.

Posted by Eric at 4:30 PM | Comments (6)

April 21, 2006

Please vote . . .Would you rather have the Chinese believe that we are rude or incompetent?

ana Milbank of the Washington Post nicely summarizes the slights inflicted on the Chinese head of state yesterday by the White House. Highlights include accrediting as press someone who had heckled the previous Chinese head of state and referring to the People's Republic of China as the "Republic of China," the name claimed by Taiwan. Putting aside the merits of human rights grievances in China and of the Taiwan issue, it is obviously rude to allow someone to heckle a head of state for three minutes while standing on a platform reserved for press and to refer to the head of state's country by the wrong name. So the question is are we better off if the Chinese think we were being deliberately rude or that we were merely incompetent? What do you think? I am torn.
Joe Kennedy

Posted by at 2:28 PM | Comments (14)

April 20, 2006

McClellan, Bush, Lying, and Willful Blindness

hank you to Eric for allowing me to guess blog for him for the next couple of days. As I think back over Scott McClellan's various defenses of the President over the last couple of years, a recurring theme comes to mind. "The President can only be held responsible for what he knew at the time." Whether the topic was leaks or uranium in Niger or Iraqi WMDs, the argument goes that the President could not be lying because he did not know that what he was saying was untrue.
Many critics of the President, even some ardent ones, carefully stop short of ever using the "L" word to describe President Bush's mistatements of fact for this reason. There is a basic legal doctrine that rejects this sort of reasoning: the doctrine of willful blindness. Under that doctrine you can be held responsible for making a false statement if you say something with deliberate disregard for whether it is true or false or if you have a conscious purpose of avoiding learning the truth. If, for example, a President and his staff cherry picks intelligence reports in order to avoid learning the falsity of a claim that is to be included in a State of the Union adress, no one should hesitate to call that a lie. The criminal law would not.
Joe Kennedy

Posted by at 3:28 PM | Comments (9)

Guest-Blogger: Joe Kennedy

'm off to a couple of conferences for the next few days, and though l might put in an appearance or two here, I've asked my UNC colleague and good friend Joe Kennedy to guest-blog for me for a few days.

Joe is a criminal law specialist who thinks and writes about crime, criminal justice, and society.

Please welcome Joe and be sure to leave him a comment or two.

Posted by Eric at 8:49 AM | Comments (1)

April 19, 2006

Oh, well...

uestion.

Answer.

Posted by Eric at 2:48 PM | Comments (2)

Phew!

odged that bullet!

Posted by Eric at 10:28 AM | Comments (2)

Person, Yes. Persona? Not So Sure.

ere's an interesting little vignette about one law professor's struggle to reconcile marriage with feminism.

This line struck me: "I had been sheepish about telling my students I was getting married. It seemed inconsistent with my professional persona as an independent, fearless, freedom-fighting law professor."

As I read that, I thought, "Wow, she has a professional persona, and she knows what it is and everything. Do I have a professional persona? What might it be? It's nothing I've ever really thought about. If I do have one, would I even want to know what it is?"

And then I thought, "Hmm, do women professionals need to pay more attention to these issues of 'persona'-creation than men do? Is that what explains why Professor Anderson has and knows her professional persona and I either don't have one or don't know what it is? Or does gender not have anything to do with this?"

If you're a reader of this blog, and you are a professional, tell me: do you consciously try to cultivate a "professional persona?" Do you think others do? If so, why? Does gender have anything to do with it?

Posted by Eric at 7:51 AM | Comments (11)

Blogging for Your Life

his is an interesting thing: a death penalty lawyer using a blog to draw attention to his death-row client's efforts to get the DNA testing that might exonerate him.

Given advances in DNA technology, it's a bit hard to understand why the state wouldn't do DNA testing before a clemency hearing in any case where there's a plausible claim of actual innocence. And as the blog itself says, if the state can run DNA testing on 46 Duke lacrosse players in a week, it's hard to understand why the state can't also run DNA testing on anyone it's about to execute.

Posted by Eric at 7:35 AM

April 17, 2006

Beat the Beetles.

bark beetle is infesting trees on national forest land in the West.

The timber industry has a solution. To protect the trees, cut them all down.

That would certainly show those bark beetles a thing or two!

Posted by Eric at 5:25 PM | Comments (4)

"Attempts to cash in on legitimate concerns about terrorism to stoke anti-immigrant hysteria.'

athy Young writes sensibly here about how some on the right are distorting valid concerns about terrorism into dangerous immigrant-bashing.

Posted by Eric at 2:09 PM

April 16, 2006

A New Film On The White Rose

caught "Sophie Scholl - The Final Days" last night. I'd heard great things about it, and was looking forward to seeing it. But I was disappointed. The story of the White Rose is a dramatic one, and the film narrates the history adequately. But the director's storytelling is mechanical and uninspired, and the actors in the roles of the key Nazis (Sophie's Gestapo interrogator and the chief judge of the court that condemns her) play their parts like cartoon characters.

(I read here, however, that the depiction of the chief judge may not have been so far-fetched.)

All in all, a disappointment. Michael Verhoeven's take on the same story had its own problems, but on the whole, I prefer it.

Posted by Eric at 4:24 PM | Comments (1)

April 13, 2006

The UNC Dean Search: A Correction

rian Leiter reports that Alabama dean Kenneth Randall has withdrawn from UNC Law's dean search, but this is false. The chair of our search committee has just circulated the following message:

"There was an entry on Brian Leiter’s Law School Reports indicating that Dean Ken Randall, University of Alabama, had withdrawn from the UNC dean search. That is not true. I talked with Dean Randall this morning and he remains an enthusiastic candidate in our process."

Posted by Eric at 2:52 PM

April 12, 2006

Research Opportunities.

Study of the Survivability of the Cockroach to Novel Stress Conditions.

Note that several of the methods have yet to be tested.

Posted by Eric at 8:49 PM | Comments (3)

Are You Better At Remembering Jokes Than I Am?

ometime quite recently, I heard a very funny joke about colorblindness from the Colbert Report. I can't remember what it was, though. Does anyone who watches the show remember it?

Posted by Eric at 5:42 PM | Comments (1)

And Remember: Prunes Are Kosher for Passover!

o those of you for whom it's relevant, a very happy Passover!

Posted by Eric at 5:34 PM | Comments (3)

Anti-Catholic Vandalism in Wyoming?

omebody keeps vandalizing a statue of a Roman Catholic cardinal.

Posted by Eric at 10:04 AM | Comments (2)

Kevin Cosgrove, RIP

n one way, Kevin Cosgrove's 911 call on September 11, 2001, from high in the South Tower of the WTC is even more excruciating than Melissa Doi's. (Go here and click on the mp3 link on the left side of the page.) I'm referring, I guess, to the final two seconds of the recording, when the tower begins to collapse beneath and around him.

Tough, brutal stuff. My heart goes out to Cosgrove, Doi, and all of the other innocents killed that horrible, horrible day.

Posted by Eric at 9:05 AM | Comments (3)

April 11, 2006

Melissa Doi, RIP

f you are in a mood that might withstand it, you can listen to Melissa Doi's 911 call--including her voice, not just the 911 operator's--from the World Trade Center by clicking the link on the link on this page at the NYTimes.

It will rip you up. Be warned.

Posted by Eric at 1:37 PM

Conference: "Criminal Procedure Stories"

n Friday and Saturday, April 21 and 22, Harvard Law School will host a conference called "Criminal Procedure Stories: Challenges in Constitutional Criminal Procedure, Past, Present, and Future." It will launch editor Carol Steiker's book of the same name.

The speakers are truly a Who's-Who of American criminal procedure. If you're in the area, it'll be well worth your time to drop in. All presentations are free and open to the public.

Posted by Eric at 9:16 AM | Comments (1)

April 10, 2006

An Ugly Case Takes A Stunning Turn

omorrow promises to be a tough day in Durham, NC.

Posted by Eric at 8:02 PM | Comments (3)

An Update On My Thus-Far Futile FOIA Requests of the Department of Homeland Security

n September 6, 2005, I submitted a FOIA request to the Department of Homeland Security for documents pertaining to Purple Crescent and Purple Crescent II, two pre-Katrina exercises sponsored by DHS that modeled government responses to the scenario of a disastrous hurricane in New Orleans followed by a terrorist attack of the conventional or cyber variety. I said at the time that I wasn't holding my breath.

Good thing I wasn't. Months went by with no response at all from DHS. I followed up and was told about two months ago that the information officer in charge of the request would be meeting that very day with a DHS attorney about the Purple Crescent requests. Since then, nothing. I've inquired twice more since then, and have gotten no response at all.

I worked for the federal government, and therefore understand that by far the likeliest explanation for the delay is just bureaucratic inertia and the press of other business. I'm now starting to wonder, though, whether maybe there isn't something about these Purple Crescent exercises that DHS would prefer we didn't talk about.

UPDATE: By email, I've been promised a response from DHS by this Thursday. The sound you hear is me not holding my breath.

Posted by Eric at 8:49 AM | Comments (4)

Springtime for Bichons

gave the dog a bath yesterday, and with the flowers blooming in the front yard, it seemed like portrait time.

Posted by Eric at 8:03 AM | Comments (4)

April 8, 2006

Think There's Such A Thing As Colorblindness or Gender-Blindness? Think Again.

saw a mind-blowing presentation yesterday by University of Michigan psychologist Margaret Shih.

Shih studies, among other things, the impact of stereotype and social identity on performance. Her work explodes the notion that anyone really is "colorblind" or "gender-blind," even if they think they are.

In one study, for example, Shih and her assistants gave a group of female Asian-American undergrads a math test. Before taking the test, some of them had to fill out a questionnaire that highlighted their Asian identity. Some of them had to fill out a questionnaire that highlighted their status as female. And some (a control group) had to fill out a questionnaire about their telephone company. The results: the women whose Asian identity had been highlighted scored significantly better than the control group, and the women whose gender had been highlighted scored significantly worse!

In another experiment, subjects had an email exchange with somebody they thought was a Harvard student, but was actually the researcher. At some point in the exchange, the researcher mentioned her SAT scores. Some of the subjects were corresponding with a person whose email address was "chen@harvard.edu," some were corresponding with a person whose email address was "Amy@harvard.edu," and some were corresponding with a person whose email address was "ac@harvard.edu." After the exchange, subjects were asked to recall their correspondent's SAT scores. Those who were corresponding with the email address that implied Asian ancestry ("chen@harvard.edu") remembered that their correspondent scored higher on the math test than the verbal test. And those who were corresponding with the email address that implied their correspondent was female ("Amy@harvard.edu") remembered that their correspondent scored higher in verbal than in math.

Fascinating and troubling.

UPDATE: This piece from last week's Newsweek is not entirely unrelated.

Posted by Eric at 7:16 AM | Comments (4)

April 6, 2006

Proving Discrimination: Why Armstrong's Gotta Go.

've always been troubled by the Supreme Court's 1996 decision in United States v. Armstrong. The question in the case was how much evidence of a racially discriminatory motive a criminal defendant has to produce in order to convince a trial court to give him access to possible evidence of discrimination from within the prosecutor's office itself (memoranda, statistics, and the like).

The defendants in the Armstrong case had come forward with some evidence -- not a ton, but some -- that the US Attorney in Los Angeles was singling out blacks for crack cocaine prosecutions in federal court. It was enough evidence to persuade the federal trial judge to allow the defendants discovery of some material in the prosecutor's files and records. But the Supreme Court shut that discovery down, pooh-poohing the evidence of racial discrimination that the defendants had managed to come up with and setting an absurdly high burden of proof for defendants trying to prove discriminatory prosecution.

When I teach the case in class, I always take time to get students to see how high that burden really is, and how the ordinary, relatively impoverished criminal defendant could never dream of being able to assemble the body of evidence of discrimination that the Court's Armstrong opinion insists upon.

Enter the ACLU. In Georgia, prosecutors are allegedly discriminating on the basis of race in deciding which convenience store owners to charge with selling constitutent materials for the production of methamphetamine. They're said to be going after just the South Asian store owners, and leaving white store owners alone. After a federal judge rejected their request for discovery of the prosecutor's motives under Armstrong, the ACLU decided to spend $60,000 on a study documenting the discrimination. It's compelling stuff:

"Of 629 convenience stores in the six-county area in the sting, 80 percent are owned or operated by whites, according to the A.C.L.U.'s court filing, but fewer than 1 percent of the stores in the sting are white-owned or operated. The filing said the clerk at the only white-operated store was known widely as a methamphetamine addict whose husband was in prison for making the drug. None of the Indians charged are accused of using or making methamphetamine."

Armstrong is bad law; the ordinary defendant could never come up with the $60,000 that the ACLU threw at this case. Hopefully, the Supreme Court will someday recognize that race discrimination still sometimes infects prosecutor's charging decisions, and that its Armstrong opinion just wishes the problem away.

In the meantime, props to the ACLU for stepping in and doing what the defendants themselves could not.

Posted by Eric at 12:22 PM | Comments (4)

This Is Not A Guarantee of Actual Results. Investment Involves Risks. Consult An Investment Professional Before Investing.

hy should Halliburton be the only one to prosper? Get into this whole Iraq thing on the ground floor.

(Thanks to buddy Brad for the pointer.)

Posted by Eric at 10:24 AM | Comments (1)

Bravo Again, Pope Benedict.

n light of the Pope's childhood in Nazi Germany, and the controversy that swirled around the disclosure of his membership in the Hitler Youth, his apparent decision to visit Israel is a welcome development.

See also here, and here.

Posted by Eric at 8:26 AM

April 5, 2006

Wild Pitch!

nsert joke here.

Posted by Eric at 8:06 PM

I'm Guessing This Is An Email He Regrets Sending.

haven't been following the rape controversy swirling around the Duke Lacrosse Team very closely, but my gut tells me that this email message, if admissible in evidence, will not be especially helpful to the defense in any eventual prosecution.

But who knows? Maybe a jury will look favorably on a desire to kill people and cut their skin off.

Posted by Eric at 2:33 PM | Comments (5)

They Left the Light On For Him.

ow if they could just clean up a little.

Posted by Eric at 2:26 PM

My Bad.

t appears that I was wrong when I implied yesterday that Michelle Malkin's blogging schedule didn't leave a gap large enough for a plane flight to Minnesota. I apologize to her for that.

As for the claims about stalking and fixation and such: Geez Louise. The time stamps are right there at the top of each post. It took me about 15 minutes to throw together the post linking to them. Come now. (Incidentally, if you want fixation, look here. Or here. Or here. Or here. Or here.)

The idea that Michelle Malkin has a co-author did not originate with me. Indeed, Malkin has herself vaguely acknowledged that her husband has "helped [her] with a handful of blog posts out of the estimated 3,000 [she's] written since June 2004." Of course, everything on her blog goes out under her own byline, not her husband's, so readers never really know for sure whether a particular idea or turn of phrase is hers or her husband's. For a person whose whole career is about presenting her ideas, it strikes me as important to be very clear about which words are her own and which are someone else's.

I speculated yesterday that some of yesterday morning's posts must have been among the "handful" that somebody else wrote, and she has suggested that I'm wrong about that. I believe her, and I apologize.

Posted by Eric at 7:51 AM | Comments (41)

April 4, 2006

Michelle Malkin: Blogging While Flying?

[POST TEMPORARILY REMOVED]

(It has come to my attention that this post has been linked (as of 4/20/06) by by at least one blog that is now publishing information about Michelle Malkin and her family in response to her having published people's telephone numbers with the knowledge that they are receiving death threats. While my post neither revealed private information about her nor threatened her with harm, I wish to disassociate myself entirely from the dangerous and misguided response that some anonymous bloggers are purusing to Malkin's provocative and harmful tactics. Threatening someone with harm is dangerous, illegal, and completely reprehensible.

(I retain a copy of this post (as, no doubt, does Google's cache), and I may post it again down the road if and when things settle down. In other words, I am not trying to "disappear" this post. I am simply trying to send some bloggers the message that I deplore what they're doing.)

Posted by Eric at 2:16 PM | Comments (220)

A Puzzle.

hy is it that we Jews, who can be so damn funny, can also be so not funny?

Posted by Eric at 12:23 PM | Comments (6)

April 3, 2006

Michelle Malkin Was Here...

nd she didn't so much as drop by to say hello.

The nerve.

Posted by Eric at 7:23 AM | Comments (7)

April 2, 2006

The Feminist Side of the Blawgosphere

just discovered Feminist Law Professors, a blog by ... feminist law professors.

Posted by Eric at 9:22 PM | Comments (1)

April 1, 2006

Term Limit Hypocrisy

yoming Style.

Barbara Cubin promised in 1994 that she'd serve no more than 6 terms.

She's now running for her seventh.

Posted by Eric at 2:51 PM