Tuesday, March 31, 2009

Law student writes a novel

We've received word from a tipster at the University of Pennsylvania Law School that a fellow student (we'll keep it confidential) has spent the majority of this school year writing . . . a novel. The novel apparently incorporates the student's classmate-friends into the story line and is replete with other interesting details. This is not the first time a law student has taken time to write a novel while in law school.

I came across an article in the Winston-Salem Journal about a student at Wake Forest University Law School, who spent the better part of her 3L year writing her first novel, The Killing Tree. How did she have time for classes and other law school activities, you ask? The article notes that "her husband . . . also in law school, took notes for both of them." She could never really get into it. As she noted:
I knew that I had this desire to write, but once you're in it and you're in the system and you're doing well in classes, it didn't make sense for me to quit then. . . . There are some classes and some cases that are wonderful, and they're reasons people become lawyers in the first place. But the day-to-day grind of learning civil procedure and things like that, it was dry, and I just think naturally I'm a creative person, and I felt a void. I felt something missing.
Following graduation and a few months of private practice, she decided to write on a full time basis. Regarding this decision, she said:
I had the bones of The Killing Tree and I had already felt what it feels like to do something I loved, and so I had that contrast there, and then I had a baby, too, and so everything just came together and made it an easier choice than it would have been.
Fair enough. With the bad economy, and the upcoming fall recruitment prospects dwindling, I guess students need to find ways to adapt. And if that means that more students will utilize their creative abilities, it could only end up being for the best.

Proposition 8's Demise Refuted on InTrade??

I thought this was kind of interesting given the previous postings about Prop. 8. InTrade, for those not familiar, is kind of a glorified online bookie that allows people to bet on the potential outcomes of particular issues of interest. It's kind of a cool, counter-intuitive barometer of what people really think.

Price for California Supreme Court and Proposition 8 at intrade.com

People Must've Taken Crazy Pills Today!

Oh, yeah, Craig? You dare challenge the Bastiat Monopoly on Ridiculous Legal-Related Articles of the Day? I'll see your breach of contract for failing to impregnate and raise it one DUI.

Lawyer-Writer For Playboy Sues For Harassment

I would've put up some sort of logo, but I'd hate to see what would happen if I searched 'playboy' on Google. Anyway, here's the article of the day!

Musings on Pro Bono Work

After my first "musings" post, I thought it would be nice to, well, muse every now and again about other items on my mind. And recently, "the" item on my mind has been pro bono--not necessarily because I've also fallen victim to the Good Samaritan Effect. Rather, my school requires that I complete 35 hours of pro bono by year's end. So here I am thinking about viable (sorry, Justices Scalia/Blackmun!) pro bono opportunities and, fortuitously, I see the message Jim Luce--contributor to the Huffington Post and founder of Orphans International--left in a comment to my Good Samaritan Effect posting, encouraging lawyers to take on more pro bono work. This really got me thinking. But now I'll stop stalling, and tell you where I'm going with this.

At first I was quite ambivalent to the mandatory 35 hours of pro bono a year (starting with the 2L year) that my law school requires each student to complete in order to graduate. Law school is a lot of work as it is, and if anything, I thought that this "mandate" would simply sour my perspective on pro bono work in general. I thought, why not make it optional? At least that way the work would feel more rewarding in that it was my own choice to do it if I so desired.

I must say that these initial apprehensions were wrong. I have found the work to be both intellectually challenging and very rewarding, and I do not think that I would have otherwise seriously considered taking it on had it not been for my school's requirement. Indeed, it is all too probable that I would have simply put it off out of the fear that my grades could have suffered if I had spread myself too thinly. I believe this is precisely one of the principal issues with which many students and practitioners are concerned.

I have resolved my own ambivalence toward mandatory pro bono work, but, as noted, I appreciate that lawyers do work in a variety of capacities, and often are quite preoccupied with numerous pressing matters--ostensibly more so than law students. In this vein, I think it can fairly be said that the prospect of taking on more work in general--be it pro bono or otherwise--does sometimes seem daunting. Nevertheless, I think it is at least worth considering (musing, if you prefer) the benefits of taking on pro bono work at least periodically throughout your career along with your other general responsibilities, notwithstanding the added inconvenience of the extra workload. Many practitioners with whom I have spoken find the work extremely rewarding; and from my own limited (albeit required) experience with it, I have as well.

Just some thoughts . . .

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In the interest of full disclosure, the "Finding Nima" logo was created by one of my good friends during my undergraduate years for an entirely different purpose. I think it fits well with the "musings" concept, however. If you disagree, feel free to comment or e-mail me. :)

Monday, March 30, 2009

What the Reasonable Man Would Bill

Members of the BBL posse: Today, I announce the creation of a new feature-- "Fred's Article of the Day."

Today's article is from Law.com and it cites an interesting trend followed by some SPs and smaller firms in their billing practices. I encourage any interested to check out the article here.

The Merits of Student Scholarship

Having just finished writing my student comment, I have had a lot of free time to ponder what’s next for my article—the product of five months of sustained effort. If it’s selected for publication, great…but it might not be, and I realize (and accept) that.

I ran a Google search on what students who have their work turned away do, and came across this link. The blog discussion is nearly three years old, but the points made are increasingly relevant and—surprisingly—not as frequently discussed as one would expect.

The question, as Professor Desai puts it, is whether student-written scholarship should “R.I.P. or Survive on SSRN.” Noting that rejected student pieces are rarely accepted for publication in other journals, Professor Desai explains that students can nevertheless post their rejected articles on SSRN—a scholarly research network which allows authors to upload their work for the public’s unfettered access. Of course, as he sees it, the arguments on whether students should (be able to?) do so cut both ways:
On one hand, the amount of information (some good and some perhaps not so good) would increase but I could see arguments about too much noise or information overload being raised. Then again, one already has to wade through volumes of information using search strings and the like so perhaps adding more narrow but hopefully well done pieces to that pool will allow scholars to focus on large implications of their research and use the increased access to notes as a way to more efficiently see what work has been done on a particular topic that is a footnote or small part of the scholar's work
I think Professor Desai makes some good points, and I can appreciate that there are information overload concerns associated with opening the "floodgates" to student comments on scholarly databases such as SSRN. On the other hand, such arguments seem to presuppose that student work—at least that of the “not so good” variety—contributes nothing to the discourse. I have several reactions to this.

First, I think even bad scholarship (whatever that means) could contribute something to legal academia. Even if it is only the research put forth by the authors that could be expanded upon, and improved.

Second, it seems that the same argument could also be made with respect to published pieces written by students and academics alike. Students, after all, are the ones who choose legal academia’s direction by determining what to publish as Journal editors, and there are 918 journals to publish in along with a corresponding pressure to publish…surely not every published work is a masterpiece. I’ve heard rumblings of a push for peer review, but any such movement is—for now, anyway—an unrealized ideal.

Finally, in light of my second point, I have to wonder why professors would not want to see what the next generation of lawyers is writing about. Given that we make the publication decisions on their work, shouldn’t they want to see what we care about? What inspires us? Moreover, couldn’t reading our scholarship forge a better classroom environment since professors would be attuned to our interests?

I hate to generalize, but far more of my professors than I would like have seemed very detached from their pupils, and utterly opposed to learning from us; this is unfortunate. Academic discourse, like the Socratic method, works best when there’s a two-way dialogue—that is, when the “floodgates” are open. Why is there such resistance?

Friday, March 27, 2009

The Greatest 3 minutes and 44 Seconds In TV History?

Click here for: Margaritaville, South Park 3/3

If you want to see the entire episode: Click Here

What's Liberty Got To Do With It (With It, With It)?

Pop quiz Hot-Shots! What does the following mean? What substantive demarcations can be made so as to give the following addressable standards?

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

A practical approach to law school? Arthur Miller thinks so . . .

Last month, I wrote an article advocating a "Medical Based Approach" to legal education.  Today, I came across an interesting YouTube clip featuring NYU Law Professor and noted civil procedure scholar Arthur Miller discussing what he opines is a "great disservice" law schools are doing their students these days.  Specifically, he recognizes that, today more than ever in his career, there exists the largest disconnect between the "practicing branch" and the "academic branch" of the legal profession.  

With forceful language, he notes (and I think correctly) that "less attention is being devoted to the skill set for the practicing lawyer"--particularly with respect to legal research and writing.  Why?  "The answer, in part, is that some of . . . [law school's most] basic subjects have simply gotten crowded out by making more academic time available for things that didn't even exist when [he] was . . . a young academic."  The practicing lawyers, who account for roughly 90% of law school graduates, he suggests, are not getting the "skill set development . . . they used to, and part of that skill set is research . . . and its first cousin, writing."

Here is the full video.  If you like, take a look at my post before watching.  Enjoy.



Thursday, March 26, 2009

Is it Cruel if They Want It? What If They Need It?

Chemical castration for sex offenders?

Governmental Stimulus: It's Like Thinking You Can Play Jenga without Taking Gravity Into Consideration

Everywhere one turns today, he hears about how "the government" needs to "stimulate" the economy, and that such "stimulation" will provide a foundation for future prosperity. The implicit premise is that all the money spent by the government will be more wisely spent than if it were left in the hands of private individuals and institutions in this market. I question this premise not on the tried-and-true Hayekian "Use of Knowledge" grounds ; rather my criticism goes like this: what happens when you blindly pull the bottom legs of a Jenga tower (notwithstanding its quality)?

Let's assume, for the sake of argument that the stimulus bill "works" in the short-term (functionality being tied to the decrease in unemployment). Let's also assume that government does indeed "place all the logs" in the places it thinks best. Here, the governmental spending (whose wisdom is questionable at best) is banking on its placement of all sorts of "logs" at the bottom or foundation of the Jenga tower that is our economy. But, such a drastic increase in governmental spending is clearly unsustainable (one eventually runs out of space on the bottom where he can place the logs). What happens when the spending that drove such development goes away because it is thought 'the storm is over?' In other words, what happens when we pull those base logs (notwithstanding the need to place the logs back on the top)? History has shown that we end up right back where we started (i.e. the tower collapses).

Anyone who thinks that President Obama's budget + Stimulus bill + Federal Reserve liquidity will result in a costless return to prosperity need only watch this clip to see what the future holds.


The Constitutionality of Strip Searches in Schools to be Tested

The New York Times reports that the Supreme Court will hear arguments in what guarantees to be a watershed Fourth Amendment case, as it considers the constitutionality of a strip search conducted by school officials. I, for one, am eagerly awaiting the Court’s decision. One reason for my anticipation is that the conduct of these school officials strikes a nerve. How adults, supposedly working in an effort to improve the future of adolescents, can subject a thirteen year girl to such an astonishingly intrusive, embarrassing, and life altering ordeal is truly beyond my comprehension. Another reason for my close attention to this case is that it does present an intriguing legal question. The Court has yet to specifically limit how far searches conducted by school officials, and based merely on reasonable suspicion, may extend.

Savana Redding, of Safford, AZ, was only in eighth grade when she was subjected to the strip search at issue. A fellow student had been found with prescription strength ibuprofen and had informed officials that the pills came from Redding. Armed with this reasonable suspicion, the school’s assistant principal ordered two female school officials to strip search Redding, a thirteen-year-old honors student with no disciplinary record. While abuse of prescription medication, as well as over-the-counter drugs, is undoubtedly a serious problem amongst today’s youth, it should not permit school officials to resort to unreasonable searches in violation of a student’s Fourth Amendment rights. The question is, then, whether this search was “reasonable.”

The last time the Court heard a case even remotely similar to the circumstances at hand was in 1985 when it decided New Jersey v. T.L.O., 469 U.S. 325 (1985), a case upholding a search of a student’s purse for cigarettes. The Court explained that schools have a special need in maintaining order and discipline, and thus, to determine the reasonableness of a search, the school’s interest in such order and discipline must be balanced against the student’s interest in privacy (i.e. remaining free from searches). See id. at 349. But may a more intrusive search, like the strip search thrust upon an innocent thirteen year old, be justified by mere reasonable suspicion? The student’s interest in privacy would be greater than that of the student in T.L.O., but would it be so great as to tip the reasonableness scale in favor of a Fourth Amendment violation?

The Seventh Circuit held in 1993 that the strip search of a student whom school officials had reasonable suspicion to believe was “crotching” drugs was within the parameters of the Fourth Amendment. See Cornfield v. Consolidated High School Dist. No. 230, 991 F.2d 1316 (7th Cir. 1993). Although the Cornfield court recognized that some searches conducted by school officials may be so intrusive as to require probable cause, it ultimately held that the strip search did not rise to such a level. Id. at 1327.

It will be interesting to hear the Court’s reasoning in this upcoming case, no matter whether it holds in Savana Redding’s favor or not. In my opinion, the Court should hold the strip search to be unconstitutional. Although clearly biased (see my rant above), I do honestly believe that the law mandates such a holding. The T.L.O. opinion requires that the scope of the search be permissible under the circumstances. The aforementioned Seventh Circuit opinion regarding the student accused of "crotching" drugs focused on this reasonableness of a search’s scope and ultimately held that the suspected location of the drugs necessitated such an intrusive search. But is a strip search reasonable anytime reasonable suspicion exists that a student possesses drugs? The Ninth Circuit thought the search was excessively intrusive. See Redding v. Safford Unified School Dist., 504 F.3d 828 (9th Cir. 2007). Will the Supreme Court?

Wednesday, March 25, 2009

BCS Antitrust Update

ESPN reported today that the "Senate Judiciary's subcommittee on antitrust, competition policy and consumer rights" will conduct hearings on the potential antitrust issues presented by the BCS system for selecting a national college football champion. Sen. Orrin Hatch of Utah said that "[he] would introduce legislation 'to rectify this situation'" as the system "has proven itself to be inadequate, not only for those of us who are fans of college football, but for anyone who believes that competition and fair play should have a role in collegiate sports."

As I am sure some of our readers are aware, I wrote a piece analyzing the antitrust problems with the BCS a few weeks ago.  Enjoy the update.

Final Call: The Blackbook's Top Law Prof. Competition

We've already received a number of nominations, but wanted to remind you to stop by and nominate your favorite law school professor to be "Blackbook's Top Law Prof."

Feel free to shoot us an e-mail, or leave us a comment in our earlier posting.

A Gap to Be Bridged? You tell me...

I have this crazy theory that one key difference between the way doctors and lawyers think involves the way each assesses status conditions. I don't want to fully expound my idea at this time, because I think it will be more valuable to first test it by asking the following question:
If a condition is defined as "X," and an individual or entity would (seemingly) satisfy this condition without taking affirmative steps to avoid being classified as such, can they appropriately be defined as "X?"
I know this is kind of abstract, so I'll break it down into two more practical (medical) examples:

1. Assume arguendo the status of hypertension (i.e. continual high blood pressure) is defined by having a blood pressure in excess of 160/100 on four occasions during the course of a year. A patient so qualifies, and is put on an exercise/medical regime to lower said blood pressure. Subsequently, in the following year, there are no blood pressure readings in excess of the qualifying minimum for the status classification. Can this patient be said to be suffering from hypertension?

2. Assume, similarly, the status of Diabetes is defined by having a single blood glucose level in excess of 250 mg/dL within the past year. After being diagnosed as such, said patient takes insulin shots and controls his or her glucose level for several years, during which the patient's blood glucose level does not exceed the qualifying minimum for the status classification. Can this patient be said to be suffering from Diabetes?

To an extent, my question is (and my examples are) philosophical; more importantly, however, I think the answers obtained here will highlight an interesting disparity between the way the legal mind operates vis-a-vis the doctor's mind. Maybe there's a gap to be bridged that extends beyond adopting a "Medical Based Approach" to legal education?

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UPDATE (6:35 PM): Responding to my initial post, a commenter asked for more information:
The real question is this. Who is paying me? Viable arguments can be made on both sides. It would really benefit this conversation to know where you are going with this. Better yet, a more detailed abstract explanation will not be as distracting.
I wanted to see some more responses before fully articulating my hunch, but now's as good a time as any--particularly since many commenters have highlighted the very point I was trying to drive at. Let me work through the two practical examples I use (to expand on the more general proposition).

Although the definitions for "diabetes" and "hypertension" differ from the descriptions I provided, I believe that almost every physician would describe the patient in example #1 to be suffering from "hypertension" and the patient in example #2 to be a diabetic if these were the correct clinical definitions. Lawyers, on the other hand, would (I think) use the approach Nima and our commenter employed--namely that the "real question is . . . [w]ho is paying me . . . ." because "[v]iable arguments can be made on both sides."

It's an interesting divergence in views, and I think it's fair to (as a commenter did) characterize this latter type of analysis as "rote application of rule to fact." That's really kind of the point--the mechanical way in which we are trained to apply law to fact, and argue both sides affects the way we analyze a problem as compared to physicians.

More succinctly, I would posit that doctors make determinations as to status based on the totality of the circumstances and background, while attorneys are often blinded away from doing so in pursuit of a (perhaps erroneous) perception of an even-handed argument. So, whether an individual does not--strictly speaking--meet the criterion for a particular ailment would not prevent physicians from characterizing the individual as such where they would meet the definition if not for their actions. But it may well prevent attorneys from reaching the same conclusion.

First Impressions matter...

In the hopes of fulfilling my promise to contribute a different perspective to this blog, I am posting the following link to one of my favorite economic policy blogs on the web. The blog, "Long or Short Capital," is written from a libertarian perspective and it is an irreverent look at what's going on in the worlds of finance, law, economics, and policy. This particular piece is very funny in a dark "How Did We Get Here?" kinda way (hence, the new label) [Note: I did not write this article and take no credit for it; I just really liked it]. I hope to keep posting thought-provoking links in the future, and I have an interesting piece (regarding the stimulus and what happens next) waiting final revisions before posting. In the mean time, enjoy this piece...

http://longorshortcapital.com/did-you-get-that-legal-memo-i-sent-you.htm

And to many more,
Freddy B.

Tuesday, March 24, 2009

The Blackbook Welcomes its New Contributing Editor!

By popular demand (amongst ourselves), we've invited a new contributing editor aboard; we think he'll deliver a fresh new perspective--particularly because he, unlike us, is not an east-coaster.

We'll let him introduce himself:
My name is Freddy B.* and I attend a Jesuit law school in Chicago. (I have yet to figure out what that "Jesuit" label means in relation to the law school.) You may remember me as 'Master Shake'. I am BBL's new Chief Midwest Correspondent. I am interested in a ton of things and consider myself a "tinkerer," meaning I like to grab a new idea, gnaw on it for a while, and then move on. My interests include liberty, economics, law and the intersection of these things in the real world. Please feel free to write me at scrranger11@yahoo.com if you have any questions. I look forward to weighing in and posting in the future.
*- Real name has been withheld in order to maximize frankness and minimize future fall out.
Although pen names are not really our thing, we respect Freddy's decision. We'd be remiss, after all, to ignore the very real consequences of online blogging which have been observed by, amongst others, our friends at The Shark.

But while Freddy will be using a pseudonym, we assure you he'll adhere the theory underlying our decisions not to do so: namely, the desire to provide legitimate, substantive and--above all--thought-provoking content.

With that said, please join me in welcoming Freddy to the team!

Monday, March 23, 2009

Open Thread: Student Debt and Tax Credits

On March 9, Craig opened a successful thread allowing students to discuss the idea of whether the federal government should, in addition to giving trillions of dollar in bailout money to other industry actors, forgive student loan debt. Absent the obvious moral hazard implications noted in the commentary of that thread, the idea was quite popular. Indeed, we even had the privilege of having Rob Applebaum, the creator of the Facebook group that started it all--and, unsurprisingly, that has now been featured on CNN and the Huffington Post--answer our readers' questions, and discuss the merits of his proposal. We have received numerous requests for a follow-up. So, here we go.

I spoke with one of our readers who suggested a new related idea for discussion on the matter of providing some relief to students with loan debt: namely, whether providing tax benefits for paying back student loans is a technically feasible and desirable policy in our current economic climate. Specifically, he noted that the government should consider:
making paying back an educational loan like contributing to a 401k for tax purposes . . . [This] should make sense.  Any money you put into the loan payback is typically untaxed and not included in your salary.
Our reader considered this idea:
ever since President Obama started discussing higher taxes on salaries while running for President.  [He] figured that it just did not make sense for graduates with huge loans.  They should be able to pay off all of their loans before being taxed at such a high rate.
Accordingly, this proposal should be considered in the context of graduate students who can be expected to earn taxable income over the level at which President Obama has proposed to raise the marginal rates.

Thoughts?

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See The Wallet Pop Blog for a discussion of a similar idea

Sunday, March 22, 2009

AIG...again?

It seems like President Obama doesn't agree with Larry Tribe's analysis. Although the House has already passed a bill directed at recouping the AIG taxes, the AP reports that the Obama administration has some reservations:
The White House said Sunday that using tax law to pry bonuses from bailed-out company executives is "a dangerous way to go" and a Republican senator advised against Congress "grabbing its pitchforks and charging up the hill" in pursuit of the cash.
The article goes on to explain that the concern is constitutional in nature. As Vice President Obama's economic adviser, Jared Bernstein, told the AP:
I think the president would be concerned that this bill may have some problems in going too far — the House bill may go too far in terms of some — some legal issues, constitutional validity, using the tax code to surgically punish a small group . . . [t]hat may be a dangerous way to go.
A lot of this back-and-forth may be mere (political) posturing, but it's interesting to hear these concerns--again--where the tax passed extended beyond AIG itself. Indeed, as TaxProf Blog noted, legal scholars weighing on the issue have suggested that the law would not face any constitutional infirmities. As usual, we'll continue to follow this soap opera.

Thursday, March 19, 2009

The Blackbook's Top Law Prof. Competition

As I've made clear in prior postings, I place a pretty high premium on teaching ability. And we know law students love ranking things because it's "prestigious" to categorize and classify; it is, after all, the "law school way."

So, pursuant to a tipster's advice, we're pleased to announce our efforts to perpetuate the obsession with rankings by starting our own competition to determine who the "best" law school professor is--based on classroom performance, of course.

Here's how it works: e-mail us or leave us a comment to this posting nominating a professor. Be sure to specify what school the professor teaches at. In a week or two, we'll put everything together and create a poll of some kind. We'll pull the top five professors from that poll into another poll, and will determine--from there--who our readers think should be crowned "Blackbook's Top Law Prof."

Here's your chance to grade your professors...enjoy!

Congress to Vote on AIG Tax

The House is set to vote on the 90% tax we discussed the other day. While plainly geared to recoup the AIG bonuses, the tax is going to be broader. As the AP reports:
The House is scheduled to vote today on a bill that would levy a 90 percent tax on bonuses paid to employees with family incomes above $250,000 at companies that have received at least $5 billion in government bailout money.
We'll keep you posted on how this plays out.

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UPDATE (3:19 PM): It looks like Jeff and his allies will be upset, but we hope the most recent news won't scare them away. As it turns out, Congress overwhelmingly passed the bill 328-93, according to the New York Times. According to the Times, the Senate will take up the matter next week.

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UPDATE (5:25 PM): TaxProf Blog has posted further details on the bill, including PDFs of the relevant documents. We encourage you to take a look.

Constitutional Consequences of New Mexico's Ban on the Death Penalty?

CNN reports that Governor Bill Richardson of New Mexico signed a bill today "repealing the death penalty in his state." Part of the impetus to sign the bill related to personal conviction; as Governor Richardson explained to CNN:
Throughout my adult life, I have been a firm believer in the death penalty as a just punishment -- in very rare instances, and only for the most heinous crimes. I still believe that. . . .
Nevertheless, Governor Richardson said he ultimately signed the bill because he "do[es] not have confidence in the criminal justice system as it currently operates to be the final arbiter when it comes to who lives and who dies for their crimes," adding that he was bothered by the fact that minorities are "over-represented in the prison population and on death row." His action has sparked praise from the American Civil Liberties Union who said in an official statement:
Gov. Richardson’s decision today to sign the bill abolishing the death penalty in New Mexico is a historic step and a clear sign that the United States continues to make significant progress toward eradicating capital punishment once and for all. Gov. Richardson’s courageous and enlightened decision should send a powerful message to other states, governors and Americans about the need to take a hard look at our error-prone, discriminatory and bankrupting system of capital punishment. It is a system incapable of ensuring that innocent lives are not unjustly taken. It is a system plagued by racial, economic and geographic discrimination. And it is a system that police chiefs, criminologists and statistical experts around the country agree does not deter crime. Gov. Richardson deserves enormous credit for acting in the best interests of the people of his state and the people of this country.
I wonder if this might open up new avenues to the Supreme Court for death row inmates to argue against the constitutionality of the death penalty. The Court has previously held that the death penalty does not violate the Eighth Amendment's prohibition on "cruel and unusual punishment." Gregg v. Georgia, 428 U.S. 153 (1976). As with all of its Eighth Amendment jurisprudence, see Trop v. Dulles, 356 U.S. 86, 101 (1958) ("The [Eighth] Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society."), its decision was predicated on "evolving standards of decency." Gregg, 428 U.S. at 173. Recently, in Kennedy v. Louisiana, 128 S. Ct. 2641 (2008), the Court held that the imposition of the death penalty for the rape of a child was unconstitutional--at least where the life of the victim was not taken--partly because only five states had laws punishing such conduct on the books. Those five states were not enough to show "evidence of a national consensus with respect to the [imposition of the] death penalty for child rapists." Id. at 2653. Following this logic with respect to future challenges, if other states follow New Mexico's lead in banning capital punishment altogether--which seems possible given that roughly 14 other states have now banned the death penalty--the Court may choose to revisit its conclusion that the death penalty comports with the Eighth Amendment.

It is unclear, of course, how many state pronouncements against the death penalty would be necessary to establish that the penalty offends our "evolving standards of decency." Moreover, one has to wonder how the possibility of habeas relief would, if at all, influence the Court’s decision to overrule its precedent on capital punishment. Although collateral attacks on state court judgments are, as Craig noted, difficult to successfully lodge, a pronouncement that the Eighth Amendment prohibited the death penalty would be made retroactive to all pending death penalty prisoners notwithstanding Teague v. Lane, 489 U.S. 288 (1989), which generally requires habeas petitioners to depend on the law existing at the time their decision went final. See Penry v. Lynaugh, 492 U.S. 302, 330 (1989) (noting that one of two exceptions to Teague retroactivity “should be understood to cover . . . rules prohibiting a certain category of punishment for a class of defendants. . . ."). Decisions “on the merits,” and thus within the scope of 28 U.S.C. § 2254(d)(1) would likely also be subject to collateral attack assuming (as I do) that the applicable Teague exception would be imputed to cover the statute.

The Court should not refrain from holding the death penalty unconstitutional simply because it could upset many state court judgments, but one nevertheless has to wonder if the practical ramifications of such a decision would somehow influence the Court's decision to reconsider its precedent.

Wednesday, March 18, 2009

The Constitutionality of the Proposed AIG Bonus Tax (UPDATE)

In an earlier post on the probability of Congress taxing recent AIG bonuses, I mentioned that I would write a follow-up on the potential constitutional implications posed by the action. Well, it looks like the godfather of constitutional law, Harvard Law Professor Laurence Tribe, beat me to the punch. In a note responding to Connor Clark at The Atlantic, Professor Tribe noted:
I'm in the process of taking a closer look at this issue at the request of several others both in and out of government, but I can tell you this much on the basis of what I know from my past research and experience: It would not be terribly difficult to structure a tax, even one that approached a rate of 100%, levied on some or all of the bonuses already handed out (or to be handed out in the future) by AIG and other recipients of federal bailout funds so that the tax would survive bill of attainder clause challenge.

Such a tax would presumably be leveled on the basis of some criterion sufficiently general to avoid classification as a measure targeting solely a closed class of identified and named individuals. The fact that the individuals subject to the tax in its retroactive application would in principle be readily identifiable would not suffice to doom the tax either from a bill of attainder perspective or from a due process perspective. Moreover, the fact that the aim of such a tax would be manifestly regulatory and fiscal rather than punitive and condemnatory, and that the tax would be part of a measure that would be prospective as well as retroactive in its operation, would serve to blunt the force of any bill of attainder challenge. Finally, such a tax would be devoid of the sting of political retribution and would not partake of the classic "trial by legislature" that the attainder ban was designed to avoid.

All things considered, I believe it very likely that Congress could design a fully constitutional means of clawing back into the federal treasury all amounts paid (or to be paid in the future) in the form of retention bonuses from federal funds disbursed either by the Federal Reserve Board pursuant to legislative authorization tracing to the 1930s or by the Treasury pursuant to the most recently enacted federal bailout and stimulus measures.
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Further, for an interesting analysis on whether the government can retroactively invalidate the AIG contracts which contained the bonus provisions for executives, take a look at this article by Lawrence Cunningham.  

It's Awesome Baby!

It’s the most wonderful time of the year. Yes, March Madness is upon us. On Sunday, we all gathered in unison around the television and watched as the brackets were revealed. This week we’re researching the field of 65 (as of last night, 64) teams selected and filling out our brackets. Which number one seed will be the first to lose? Who will be this year’s Cinderella? Will Dick Vitale ever stop talking about Duke? While those are undoubtedly important questions to consider, there is perhaps another question that everyone, and especially those in the legal community, should ponder: are we breaking the law?

An article I came across online asks, “Will the FBI become the real bracket buster?” I think the short answer is no. As the article rightfully notes, most small pools won’t attract the attention of the legal authorities. The chance of you being arrested for illegally gambling after filling out your $5 bracket is as remote as Radford beating North Carolina.

But, for those of us in the legal community, it is important to recognize that we gamble more than money when we enter our bracket in a pool. The general rule is NCAA Tournament pools are illegal. The aforementioned article notes, however, that as with almost all general rules, there are exceptions. If the proceeds go to charity, then you’re safe. Additionally, some states (e.g. Vermont) permit such pools as long as the organizer doesn’t take a cut. Other states (e.g. Montana) differentiate between illegal public betting and legal private betting, meaning that office and law school pools (knew I should have gone to UMT Law!) may be safe.

It should also be noted that many of us in law school join pools with friends and family back home. Gambling may occur over the phone or through the internet, which could then constitute a federal crime. Who knew filling out a bracket for an NCAA Tournament pool could be such a serious offense? It feels so right. It feels so American. What’s next, criminalizing the consumption of apple pie?

The end result is that, sadly, gambling is gambling. But, you better believe I’ll still be filling out my bracket and ponying up my hard earned $5 for a chance at being crowned champion. By the way, it’s UConn over Duke, circa ’99. You heard it at The Blackbook first.

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UPDATE (2:30 P.M.)
We have received an interesting reply from a former SCOTUS clerk. Our source informs us that Justice Rehnquist used to run his own NCAA Tournament pool, so take that for what it's worth.

"Petition Denied"

The title says it all: these are very familiar words to the federal habeas petitioner attacking his or her state court conviction. Habeas is a maze of sorts with many dead ends invariably leading back to the jail cell that gave rise to the petition.

I'm not going to bore you with a long-winded discussion of how habeas works. But, when I was perusing the internet the other day, I stumbled across this boiler plate form from the Eastern District of New York--presumably to be "filled in" and filed as a memorandum and order to dismiss a habeas petitioner's case. It's not really surprising that something like this exists given that the pleading patterns in many habeas cases are similar. Indeed, it makes good sense to handle simple, routine cases with non-precedential, boiler plate opinions--whether made by macro or some fill-in-the-blanks form. And I know these types of forms are used in other contexts, too.

On the other hand, it kind of makes me doubt the system as a whole. There's enough judicial access for petitioners so as to warrant this method for efficiency reasons, but the fact that the judiciary is able to readily (and successfully) resort to boiler plate demonstrates how difficult recovery really is. So the floodgates for habeas are open just enough that they're burdening the federal judiciary, but not necessarily enough to ensure that everyone with a valid claim can recover.

What solution would I propose? I don't know that there is one and, moreover, I don't think we need one. The current system--albeit flawed in some respects--may just strike the appropriate balance between judicial efficiency concerns, and our continued reverence for liberty.

Monday, March 16, 2009

The Good Samaritan Effect

In light of our earlier open thread regarding changes in BigLaw compensation, we wanted to highlight a new emerging trend a reader alerted us to.  It appears that a few firms, instead of "[just] hand[ing] out severance package[s]," have given attorneys the option of working in public interest for lower salaries.  

As Stephanie Chen of CNN reports, many associates are jumping at this opportunity.  This seems like a fantastic idea to us.  We commend the initiative taken by firms that have encouraged associates to take on public interest work in any respect.

Open Thread: Safe Job Choices?

It is easy to feel dejected as a law student these days—the 1Ls are getting shut out in their summer job hunt, the 2Ls are fearful of failing to obtain a full-time job offer, and 3Ls are facing offer revocation and deferred start dates. To make matters worse, even clerks are struggling in this economy.

While I do think Josh’s earlier article makes a good argument for the fact that we, as a group, tend to overreact to market trends, times are clearly bad (albeit, perhaps improving). Many of our readers have asked us to address what avenues of employment are safe in this economy. The easy—albeit disappointing—answer may well be that there are none. But we did some rudimentary research, and were prepared to write a segment featuring secondary markets as the route for wistful 1Ls gearing up for fall OCI.

There are, after all, good reasons to believe secondary market firms would be safer in a volatile economy. Featuring lower billable rates, clients looking to cut back on expenses could actively seek out such firms. Interestingly, though, other outlets have reported mass layoffs at secondary market firms. And, perhaps more onerously, we have heard that at least one Midwestern firm has recently cut associate salaries by $15,000 per year.

So, frankly, we just don't know what to think anymore. Were we wrong to assume that there may be safer "regions" as opposed to "practice areas?" Are our profession's woes extended across America? Across all types of firms? We turn to our readers to weigh in on these questions.

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UPDATE (3:54 PM): We've received some e-mails noting, quite correctly, that our statement regarding 2Ls being "fearful of failing to obtain a full-time job offer" suggests that all 2Ls have summer jobs lined up in the first instance. Implying as much was not our intention, and we apologize if this somehow sounded insensitive. We realize there are many 2Ls still looking for jobs in this tough economy, and are cognizant of how lucky those of us who have secured summer employment truly are.

Friday, March 13, 2009

(Good) News on the Economy

With so much bad news permeating the airways, I thought it might be nice to share some good information I gathered today on the economy:

President Obama has declared that the economic situation is not as bad as the authorities once assumed -- which I guess begs the question of why we should incur another trillion in debt for a stimulus plan.  AP

"Sales at U.S. retailers in February fell less than forecast and a gain in January exceeded the previous estimate, indicating the biggest part of the economy may be beginning to stabilize." Bloomberg

"Faint but welcome signs of optimism emerged Thursday from the most troubled corners of the economy — the banking system, the automakers and cash-desperate stores — and helped push the stock market to its best three-day run in four months."  AP

China sees U.S. law firm growth.  Bloomberg
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While I think it is a bit premature to be calling this the end of the recession, it does not hurt to be a little optimistic.  The economic wealth built in this country since the Great Depression is substantial--most of it not from speculation and hype like the housing values bubbled from this current crisis.  Hopefully, all actors in our economy--the government, consumers, and investors--learn from the mistakes made the next time around.

Thursday, March 12, 2009

New York to 190K?

We are pleased to confirm reports that several New York law firms will be raising first year salaries to $190,000 per year. A spokesperson for one of the firms reports “the move is necessary to draw top law students to this expensive city.” We expect, however, that this change in salary will eventually permeate all major legal markets. It’s time for law students nationwide to rejoice. Take out a few more grand in student loans. Buy yourself some expensive clothes. Book an exotic vacation. Times are good!

Unless you’re drinking the (spiked) kool-aid, you know the preceding paragraph was entirely facetious; I apologize for toying with your emotions. The bottom line is this wouldn’t have seemed so far fetched a year or two ago. In fact, such news was even expected within our legal bubble. Try telling a first year today that firms are raising salaries and they’ll have you committed to a mental asylum faster than the next batch of associates are laid off.

Sure enough, while cleaning out my e-mail’s in-box, I came across a message that a friend and fellow law student sent me during my first semester of law school. He wrote, “Just so you know, we’re not doing this for naught,” and then linked to an article. Ah, to be a 1L again...it feels like a lifetime ago. I mean, I really had no recollection of this e-mail at all. And then I clicked the link: surprise, surprise! Optimism abounds! The article matter-of-factly asserts that “the question isn’t so much whether some New York City firms will up the ante again, but when” and explains that “[a]nother round of raises is inevitable.” Perhaps first semester of law school was another lifetime, metaphorically speaking, anyway.

I find it rather humorous (and a bit embarrassing) that the legal community legitimately believed that BigLaw salaries were going to rise to $190,000; that it was, in essence, a fait accompli. The economic recession that our nation is currently steeped in didn’t come out of nowhere. Granted, it wasn’t reasonable to expect a financial collapse of such epic proportions, but the market wasn’t exactly stable either.

What triggered this unrealistic assumption that salaries would rise (and rise, and rise, and rise….)? Perhaps the belief that salaries would increase stems from a sense of entitlement. Maybe the belief was caused by the insurmountable debt of law students. I can’t say for sure one way or another, but I have a hunch. In the sage words of Billy Joel, I—like everyone else in the legal world—“go to extremes.” Maybe it’s part of the law school mentality.

When times are good, the legal community basks in its greatness and expects there to be a never ending pool of wealth. Our unwarranted optimism is surpassed by only Wall Street. But, when things take a turn for the worst, the legal community is also only surpassed by Wall Street with the pessimism and panic that ensues. There just “ain’t no in between.”

So what can we learn from this? I think that, just as the contention that firms would raise salaries to 190K was unnecessarily optimistic, the word on the street that BigLaw is dying is unnecessarily pessimistic. Let’s face it: the legal community doesn’t handle highs and lows very well. Make sure to remember this before making any drastic decisions about your future in the profession.

Wednesday, March 11, 2009

Ohhhh LSAT

Times are tough, and going to law school is not as easy a choice as it was in prior years. But there are those who are not phased by the harsh economic conditions and truly do want to be lawyers. These prospective students still must face the obstacle all law students have faced: the LSAT. A 2L at a top 5 law school agreed to speak with me about her encounters with the test and her desire for a change in how law schools evaluate applicants.

The typical argument in favor of the LSAT is that it is the most useful predictive measurement of how well a student will perform in her first year of law school. As I understand, this rationale is not full-proof, but given the stark differences in quality and rigor between undergraduate institutions across the country, there simply must be some means to "level" the applicant playing field so to speak. The interviewee said:
I scored a 156 on the LSAT, and was accepted into a local, state school. I was pretty distraught because I worked hard for roughly 6 months before I took the exam. Unfortunately, I waited until the last possible date to take the test for the first time, so I gambled on the possibility of transferring to a top 14 school after my first year.
Well, it worked. She did extremely well her first year and transferred to a Top 5 school, where she has since excelled. She offered the following suggestion for a change in the format of the LSAT:
I think the LSAT should focus more on writing ability and the ability to rationally apply principles to fact patterns rather than forcing the applicants to merely parse through difficult logical questions under ridiculous time constraints. There should be flexibility, and the test should illustrate an applicant's reasoning ability in "real time."
Her suggestion is fair. After speaking with her, I did some solo research and found that Professors Sheldon Zedeck and Marjorie M. Shultz have instituted a study assessing the effects of a "test that they say is better at predicting success in the field than the widely used [LSAT]." The professors conducted a preliminary survey asking judges, law firm clients, and law professors what traits are vital for future lawyers:
The survey produced a list of 26 characteristics, or “effectiveness factors,” like the ability to write, manage stress, listen, research the law and solve problems. The professors then collected examples from . . . Berkeley alumni of specific behavior by lawyers that were considered more or less effective.
In response to these results, the professors created and administered an exam to a study group of roughly 1,100 lawyers.  The exam had interesting features:
Instead of focusing on analytic ability, the new test includes questions about how to respond to hypothetical situations. For example, it might describe a company with a policy requiring immediate firing of any employee who lied on an application, then ask what a test taker would do upon discovering that a top-performing employee had omitted something on an application.
The proposed exam tests the qualities the interviewee thought would better predict her future success in law school.  It appears that many deans have been receptive to the idea of another factor that would assist them in making admissions decisions when an applicant with an otherwise impressive file has a sub-par LSAT score.  "David E. Van Zandt, dean of the law school at Northwestern, said he would welcome a supplement to the LSAT to evaluate applicants, a sentiment echoed by other law school deans." 

Because it focuses on an applicant's ability to be a successful lawyer rather than his ability to merely do well in law school, this exam seems desirable.  Hopefully, the research sparks some change.

Monday, March 9, 2009

Open Thread: Student Debt Solutions

It's hard to feel optimistic about our country's economic future these days, and it is increasingly apparent that the legal industry is no more immune to America's new reality than anyone else. With the prospects for high paying legal employment (seemingly) dwindling by the day (see AboveTheLaw if you're in the mood to be depressed), it seems evident we need to come up with innovative solutions for dealing with student loan debt. Most law students, after all, have loan debt in excess of $150,000--the repayment of which will begin only a few short months after graduation. How can those of us who graduate without a job, or are deferred (perhaps perpetually) from our start date reasonably be expected to pay off our debt?

One solution I've come across is the "Cancel Student Loan Debt" movement on Facebook. The group, which has already attracted over 100,000 people, advocates canceling student debt to stimulate the economy:
Forgiving student loan debt would have an IMMEDIATE stimulating effect on the economy. Responsible people who did nothing other than pursue a higher education would have hundreds, if not thousands of extra dollars per month to spend, fueling the economy NOW. Those extra dollars being pumped into the economy would have a multiplying effect, unlike many of the provisions of the new stimulus package. As a result, tax revenues would go up, the credit markets will unfreeze and jobs will be created. Consumer spending accounts for over two thirds of the entire U.S. economy and in recent months, consumer spending has declined at alarming, unprecedented rates. Therefore, it stands to reason that the fastest way to revive our ailing economy is to do something drastic to get consumers to spend.
Several major news outlets have already reported on this interesting idea. But surely there are other plausible solutions that could both improve our economic woes and help students who are, regrettably, bound to face student debt struggles.

I invite our readers to share their solutions...

Saturday, March 7, 2009

The Fixation on Prestige


“Are you not ashamed of caring so much for the making of money and for fame and prestige, when you neither think nor care about wisdom and truth and the improvement of your soul?” Socrates

Why do you want to be a lawyer? This was the (predictably obvious) question posed to me at a pre-law seminar as a freshman in college. One student raised her hand and proclaimed that she wished to enter the legal profession because she wanted to change the world. How idealistic! I raised my hand and stood to attention. Confidently, and without thinking twice, I stated that I planned on becoming an attorney because I desired the prestige and the money. From the looks of others in the audience, it was the answer they had in mind too, but were ashamed to admit.

I’d like to think my answer was that of an immature eighteen year old, and, to an extent, it was. I ultimately chose to attend law school because I believed I’d be challenged intellectually and have the opportunity to study interesting issues and concepts. I am no longer eighteen and clearly there’s more to life than prestige.

If I keep telling myself that, maybe I can will myself into believing it?

But while I wish the prestige fixation was a lost vestige of the past, I've come to learn that law student’s prestige-focus is second-to-none (ok, maybe Anne Coulter gives us competition, but still…). As I have addressed earlier, (most) prospective law students desire to attend the most prestigious institution possible. For many, acceptance to the illusive “T14” consumes their existence. Undoubtedly, these students are eagerly anticipating the newest edition of U.S. News and World Report’s graduate school rankings. I can picture it now: incoming first years having panic attacks because the law school at which they deposited drops in the rankings.

It doesn’t end there. The next goal for law students is to place on the most prestigious law journal possible. Following that, of course, is fall recruitment. Law students nationwide compare their offers. For all too many, the most important indicator of a prospective employer’s worthiness is their vault ranking or “selectivity.”

Surely, a law student can relax after he or she has locked up a position at a prominent high-paying law firm. Right? You’ve done it! You’re (finally) a success! Think again. The question turns to what position you have on your respective journal’s editorial staff, and, then, (perhaps) to whether you have a prestigious clerkship lined up for post-graduation. Even those who don’t really want to clerk—who aren’t even interested in clerking at all—may choose to clerk. I guess I can’t blame them: it’s “prestigious” (although, in today's economy, risky). But when does this obsession with prestige end? And what’s the source of the law student’s infatuation with prestige?

I don’t have the answers to these central questions, but I do think that I have finally overcome my own prestige-obsession. This isn’t to say that I won’t continue to slosh through the morass of prestige with my peers. I almost certainly will—but, hopefully, for the right reasons: I’ll do what I do because I believe it will make me the best attorney rather than for its own, intrinsically “prestigious” sake.

Friday, March 6, 2009

Here they come (with some controversy)

It's nearing that time of year again when U.S. News and World Report release their annual graduate school rankings. According to Robert Morse, the rankings will be published online on April 23, 2009--roughly a month later than last year's. The law school rankings "will be getting an upgrade" as U.S. News will publish its "first-ever ranking of part-time J.D. law programs."

I also came across an interesting article from last year providing a comprehensive summary of a debate among various legal blogs on the other changes implemented by U.S. News in the ranking methodology employed for this year's edition.

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Check out some other blogs on these issues: TaxProf Blog, The Shark

Thursday, March 5, 2009

The Wave of the Future? We hope...

We were recently informed that an Admissions Dean of a top-tier law school was offering candid advice to prospective law school candidates via a student-based online message board. While we had our doubts initially, we are able to formally confirm that Paul Pless, Assistant Dean for Admissions and Financial Aid at the University of Illinois College of Law is, in fact, the poster posting as "Pless" on the Top-Law-Schools Message Board.

Noting that he believes law school admissions should be more "transparent," Dean Pless explains his intentions and rules for discussion at the beginning of the (currently) 33-page thread:
I thought I would take the opportunity to answer questions anyone might have about the University of Illinois College of Law. Couple of ground rules:

I won't answer questions about your specific application (just email me directly and I would be happy to answer any questions you might have)

I won't discuss other law schools

Other than that, have at it. I won't be online all the time, but I will try to check every day and answer questions.
And he's kept his word. So far, he's addressed a wide-array of (prospective) student questions ranging from job prospects, to scholarships and everything in between. His answers have been informative, thoughtful and--to be deliberately redundant--candid. Above all, they yield interesting insights into the otherwise furtively guarded admissions process. We thus recommend that every prospective law student peruse through the thread, and we believe that many current law students and practitioners will find this to be of interest as well.

More importantly, however, we believe that Dean Pless' approach of availing himself in cyberspace is an important innovation that should be followed by other law school admissions deans. Law school is a big, risky investment that is (far too) often made in an abundance of haste or misinformation. By providing a direct avenue for public correspondence, law school admissions deans can both foster a greater sense of their school's virtues, and ensure that the clientele to be served are more informed--and thus better prepared to enter law school. Whether it's done via pre-existing message boards or a school-developed website on a secured server, we hope other law school admissions officers will follow suit.

This is a positive development for everyone involved, and we're delighted to share it with you.

Proposition 8 Round-Up

Today's discussion of the California Court's oral argument regarding the legality of Proposition 8 provoked a lot of interesting and--unsurprisingly--disparate views.

In response to some reader's requests, we are linking you in to the Law Dork's round up of what transpired today. Although it is only a rough version of the transcript, it's the best we've come across so far. We will continue looking for a complete transcript to post for your convenience.

In the interim, here are the links we have so far:

1) The (rough) transcript of the petitioner's oral argument.

2) The (rough) transcript of the intervenor's oral argument.

We also think the Law Dork's commentary sheds some valuable insight into what transpired, and recommend glancing at it if you're interested in getting a better sense of the issues implicated.

UPDATE (8:35 PM): Here's a link that has all the briefing and documents for today's argument. The transcript is not currently posted, but we expect it will be soon. There's also a neat e-mail sign-up feature that alerts you to any action on the docket.

Proposition 8's Legality to be Tested

As the New York Times reports, the California Supreme Court will hear arguments today concerning Proposition 8's legality. Passed during the November 4, 2008 general election, Proposition 8 eliminated--perhaps via constitutional amendment (more on this below)--the right to same-sex marriage that the California Supreme Court, in In re Marriage Cases, 183 P.3d 384 (Cal. 2008), had previously held state constitutional law to require.

The question the Court will consider is whether Proposition 8 amended the state constitution or revised it. If Proposition 8 revised, rather than amended, California's constitution, there are more stringent requirements for implementation. Indeed, as the New York Times notes:
Under California law, an amendment is a matter that the state’s longstanding initiative process deals with routinely. A revision, however, entails a fundamental change to the Constitution, and requires approval of either two-thirds of each house in the Legislature or a constitutional convention. That could be much harder to achieve than passage in a referendum.
Although the legal question presented of whether Proposition 8 was an amendment or revision is mundane, the case brings to the fore a number of interesting considerations. I personally find the implicit "role of the Court" question most fascinating given that Proposition 8 proponents have repeatedly pointed to the "will of the people" in defending the measure--a view which suggests the Court would somehow be encroaching on the democratic process by invaliding the provision. If anything, however, these views are an argument for judicial oversight and review; who, after all, is better equipped to vindicate rights (constitutional or otherwise) than the Courts? In a different, albeit related, context the Supreme Court recognized as much when it struck down a voter-enacted amendment to Colorado's constitution in Romer v. Evans, 517 U.S. 620 (1996).

Wednesday, March 4, 2009

University fundraising . . . in this economy

The economy is affecting everyone. I suppose it was just a matter of time before it started to pluck holes in the pockets of the nation's elite universities. For example, Harvard University, as Peter Coy noted:
is expecting a roughly $11 billion endowment decline over the current academic year-- 30% of the total . . . [T]he university is in such a financial squeeze that it has frozen faculty salaries and offered retirement to 1,600 employees.
Ouch. This is a problem when Harvard "gets about one-third of operating funds from its endowment."  Unfortunately, the problem is not confined to Harvard; the outlook is not much better elsewhere.

As an interesting caveat, I also came across a study from the Council for Aid to Education, which surprisingly showed substantial gains in fundraising at many elite universities. The study notes that contributions to the top 20 fundraising institutions--which "account for only 1.9% of the 1,052 survey respondents, but represent 26.6% of all 2008 gifts to higher education institutions"--jumped 11.5% from 2007 numbers. The top five institutions were:
1. Stanford University ($785.04 million)
2. Harvard University ($650.63 million)
3. Columbia University ($495.11 million)
4. Yale University ($486.61 million)
5. University of Pennsylvania ($475.96 million)
The study includes a barrage of interesting statistics on university fundraising patterns (if you're into that sort of stuff). Specifically, it notes that the 2008 numbers are likely not sustainable in 2009--principally due to the economy. The numbers also beg the question--in the spirit of this blog--of how much the "trickle-down" effect might hurt law schools affiliated with these institutions.

Tuesday, March 3, 2009

Our Interactive Mission

So, it's been roughly two weeks since we've gotten up and running, and we want to thank our avid readers and cursory visitors. We started this blog to encourage student legal blogging which, according to Professor Orin Kerr at the Volokh Conspiracy, has been progressively disappearing. Our first two weeks saw thousands of visits, and we are very grateful for all of the support.

We also want to take this time to clearly outline our aim in writing this blog. Our principle goal is to provide an open forum for law students and practitioners to voice their thoughts, opinions, and ideas on issues of concern to the profession (and hopefully how to change it for the better). In a sense, this goal is about thoughtful interactivity. To that end, here are a few features we continue to employ so as to make our efforts fruitful:

1. A completely anonymous article tip line: This tip line is designed to enable our readers to alert us to topics that interest them. You can--in fact, you should--send us ideas to write about. We will oblige. Craig wrote an article this week in response to a request from an up-and-coming 1L regarding law school supplements and I wrote one considering the implications of potential bank nationalization on the legal profession.

Many more articles prompted by requests will be forthcoming to facilitate further discussion along these lines.

2. Easy anonymous posting: While a lot of blogs allow anonymous commentary, not all blogs offer it for the same reasons. We want you to feel comfortable in giving your opinions in a truly open forum (within the bounds of our site policy, of course). And, more importantly, we will actively discuss your thoughts with you because our goal is to continuously challenge our own views throughout the process.

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Again, we are very thankful to the supporters of this site. Please continue to send us any recommendations or thoughts.

Monday, March 2, 2009

The BCS and the antitrust laws

Following their improbable upset of the Alabama Crimson Tide in the 2009 Sugar Bowl, the undefeated Utah Utes had a seeming legitimate claim as to why they—instead of the one-loss Florida Gators or the Oklahoma Sooners—deserved to be in the Bowl Championship Series (BCS) National Title Game. Utah should have, at least, received a share of the title, right? Utah Attorney General Mark Shurtleff believes so. He has threatened to challenge the legality of the BCS under the Sherman Act for leaving the Utes out of the game. In a nutshell, his potential claim would allege that the "[BCS] system unreasonably restrains the opportunity of [Utah] educational [institutions] to freely and fairly compete to be designated as a national college football champion" and thus, it deprives these institutions of a competitive stake in the "millions of dollars a year of potential revenue [that instead goes to affiliated NCAA] institutions [in the traditional power conferences]."

The BCS, for those who are not college football maniacs, is the selection system that the NCAA uses in order to determine which two Division-I institutions will play in the national title game. It uses a complex formula that incorporates an average of six computer selection rankings, which judge, among other factors, the strength of schedule of participant institutions, along with human polls compiled by various college football coaches (the USA Today/Coaches Poll), members of the Associated Press (The AP Poll), and members of Harris Interactive (the Harris Poll). College football is presently the only NCAA-sponsored sport that does not utilize a tournament to determine its national champion.

The Supreme Court has held that some collaborative activity within the NCAA--which could otherwise produce illegal anticompetitive results in other contexts--is outside the scope of antitrust scrutiny. See Nat'l Collegiate Athletic Ass'n v. Bd. of Regents of Univ. of Oklahoma, 468 U.S. 85, 117 (1984) (concluding that the NCAA requires a “certain degree of cooperation . . . if the type of competition that . . . member institutions seek to market is to be preserved.”). But this case does not give the NCAA or its member institutions a carte blanche to institute whatever type of rule they want regardless of the potential for anticompetitive harm. See id. (suggesting that rules likely to be overtly anticompetitive may not be permissible).

Thus, Attorney General Shurtleff could conceivably prevail in a case like this if he could show that the likelihood of anticompetitive harm of the BCS's system for selecting a national champion outweighs its plausible pro-competitive benefits. There are, to be sure, substantial advantages associated with the joint collaboration of academic institutions; this is particularly true with respect to athletics (more on this below). But is any NCAA member institution (in Division I) really denied a legitimate shot at the national title under the current BCS system? And, if so, is there sufficient anticompetitive harm to outweigh any pro-competitive benefits the system offers? Probably not, as John Patashnik at The Plank notes:
There is an argument that can be made in this vein against the BCS--but the problem for Utah is that it doesn't happen to correspond to their particular grievance this year. Utah's current beef is that it was excluded form the national championship game despite its undefeated record. But, critically, in the context of the national championship game, the BCS doesn't discriminate against Utah or other members of non-BCS conferences. The national championship game matches the top two teams in the country, regardless of what conference they come from. . . . [A]s SMU law profession C. Paul Rogers III noted in a 2008 article in the Marquette Sports Law Review . . . it's unlikely a plaintiff could demonstrate that the BCS's conduct (as opposed to the conference structure of college football more generally) serves to exclude non-BCS schools from the championship game, which would be required under the Sherman Act.
While I grant that the BCS computer selection process may itself pose a flaw that prevents meaningful substantive judgment of just who deserves a shot at the national title, the system does have some pro-competitive benefits. There are arguments both against, and in favor of, antitrust liability in this case, but these arguments have practical limitations and may, if taken too far individually, prevent college football from continuing to thrive. On the one hand, it is patently clear that collective rules are needed in order to choose a national champion; sports leagues simply need some means to do this. Further, there cannot be much doubt that the BCS presides over a status quo that, overall, provides exposure and massive financial benefits for a substantial number of Division I football institutions--i.e., the dozens of bowl games with televised contracts which create opportunities for participating universities to showcase their talents and educational programs. Yet, the current convoluted system, which is so complicated that it requires experts to explain its particular mechanics, would seem to militate in favor of adopting some sort of playoff system—a step which might introduce a level of predictability and fairness to the process of selecting teams to play in the championship. The Mountain West Conference is lobbying Congress for that precise solution, and even President Obama has weighed favorably on the issue.

It should be interesting to see if the system gets an overhaul. If a playoff is adopted, I hope that the NCAA finds a way to still provide some sort of a post season to the roughly 100 institutions that benefit from the current system. However, as it now stands, it is not likely that anything will happen until after 2010, when the BCS contract with Fox runs out.