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Imagine my panic when my son’s school invited me to present for 250 sixth graders on immigration – in the time slot just before lunch. On the one hand, I welcomed a chance to counter the distressing anti-immigrant xenophobia I witness every day on the web, in social settings, and even in court.

Written by J.D. King I always get excited when obscure issues of criminal procedure find their way into popular culture.  Last week, the issue of expired sodium thiopental was featured on both the CBS drama, “The Good Wife” and Comedy Central’s “The Colbert Report.”  Most…

Written by Michael Perlin Note: I originally published this in the CrimProfs blog last year, and, in a slightly modified version, in the Clinicians With Not Enough To Do blog shortly thereafter. I’ve updated it a bit, and hope it is of interest to SALT members, especially those grappling with P&T committees, etc. Many years ago, when I began teaching (I had litigated for 13 years prior to changing careers, and had written a good number of law review articles during those years), I received all sorts of well-meaning advice from colleagues (both at my own school and elsewhere) about what to do and what not to do as part of my pre-tenure years (being me, I proceeded to ignore almost all that advice, and I have never regretted it for a moment, but that’s another story). Much of the advice was predictable, and made sort of sense, given how tenure decisions are mostly made. But one piece of it flabbergasted me, and has remained stuck in my mind for years as an example of one of the many things wrong with the legal scholarship enterprise. “Never write anything with a colleague,” I was warned, “because the tenure committee won’t be able to figure out what was yours and what was your colleague’s and, therefore, it won’t count.” The whole notion of what “counts” also struck me as bizarre (I was at the time engaged in writing a three-volume treatise in mental disability law, an area of the law in which there had never been a treatise, and was told blithely that it wouldn’t “count” because it was a book (well, three books), and “books don’t count.” I was also told that it was time for me to abandon writing in behavioral journals and cross-over “law and ...” journals, since they weren’t really law reviews and this they told me, you guessed it, “wouldn’t count.”

Inside Job is the new documentary by Charles Ferguson that examines the financial crisis that erupted in 2008, but which had been brewing since Ronald Reagan began his campaign to convince the American public to accept two “undemocratic” principles.

Martha T. McCluskey Nov. 30, 2010 SALT has been a leader in opposing recent proposals to weaken ABA standards supporting faculty governance and tenure.   It’s a good time to read more about what it means to structure work so that “choice,” “flexibility,” and “productivity” come from minimizing workers’ voice and encouraging hierarchical controls that channel power mainly into calculations of the relative merits of obedience versus exit (the threat of firing, quitting, or covert shirking). The U.S. is the international leader in what some economists call “guard labor,” devoting the highest share of its labor force to supervisory workers than any other advanced capitalist economy – 15.7% in 2002, compared to a mere 4.4% in Sweden, and up from .8% of the U.S. workforce in 1890 and 11.7% in 1979.  Adding workers primarily involved in internal and external security and punishment (military and prisons), the U.S. stands out even more, arguably allocating more than a quarter of the workforce to what “new governance” scholars like Charles Sabel might call “monitoring” seemingly separate from (and generally opposed to) “learning” – or what law-and-economics might term “transaction costs”  rather than productive transactions.   Some decades back, Sabel and others held out hope that new global economic pressures could inspire the replacement of command-and-control bureaucratic hierarchies with decentralized, creative and dynamic cooperation between  managers and empowered workers, thereby mobilizing workers’ expertise to enhance productivity.    Surveying the data on “guard labor,” economist Michael Perelman concludes, to the contrary, that numerous studies have shown that worker control tends to have more allure than profit for U.S. firms.[1] As this context of stepped-up surveillance, control, and punishment has come to shape not just blue collar and service work but professional labor such as law firm practice, law faculty positions may offer rare opportunities for creative productivity not squelched or distracted by hierarchy.  Yet Perelman’s analysis of guard labor warns that the obsession with supervision at the expense of productivity takes more subtle forms in white collar work, forms that may be familiar even to law faculty.   

It’s no mere coincidence that the release of the film Fair Game occurred on November 5, just four days before George Bush’s memoir Decision Points was published.

Written By Hazel Weiser Back in the days about which Tea Partiers seem naively nostalgic—the pre-Civil Rights 1960s, before the Beatles invasion, before JFK was assassinated—there was plenty of poverty in the United States.  OK, I’m making another reference to Mad Men, the AMC drama series that reveals the racist, sexist underbelly of post-World War II America.  (I can’t help myself, because Don Draper, played by handsome Jon Hamm, is falling apart stripping away the illusion of the perfection of those neat little suburban communities.) Back then  I recall the day I learned about pervasive poverty.  I was in the eighth grade, Miss Welch’s geography class.  She announced in her precise diction  (I can still hear her dentalized "t" in my head)  that 20% of the population of this country lived in poverty.  My arm shot up, I had to ask the question: Why?

by Margaret Martin Barry I was driving back from the rally for sanity, when I heard Andrea Seabrook's report on NPR.  I wrote a response to NPR and thought I would share and expand a little on the blog.  Seabrook called the rally odd.  I agree that there was time lost on what seemed to be no more than goofing around, but that in and of itself had a message Seabrook either did not understand or did not take the time to analyze.  One of the points that Jon Stewart and Stephen Colbert were making is that people are hungry to rally around something, anything that is contrary to the absurdities they are fed on a daily basis by the media and politicos, to the extent there is a difference. That Seabrook compared the rally to the Glenn Beck’s in terms of size, content and attendance, was simply inaccurate.  I can understand being innumerate, but a rough look at the Mall would have made clear that there were many times the number of people at this rally.  In terms of content, the message was respect for ideas, thoughtful dialogue and the hard work of developing one's ideas based on factual investigation and analysis.  That was 180 degrees from what Glenn Beck was trying to evangelize.  Furthermore, this rally in no way attempted to cynically co-opt the civil rights movement to preach the opposite. 

by andré douglas pond cummings Professor Timothy Canova at Chapman University School of Law has recently published “The Federal Reserve We Need” in The American Prospect.  Therein, Professor Canova details, painstakingly, the path that The Federal Reserve has taken from a governmental agency charged with safeguarding the…

Written by: Denise Roy I have a confession, and I’m more than a little nervous about making it, but here goes.  I am passionate about democracy.  Though often disheartened by the reality of democracy—in the name of which we have Prop 8 and the Tea Party—I remain enthralled with and buoyed by the idea and promise of democracy, convinced of its necessity in moving toward peace and justice. In my SALT blog posts this month, I will attempt to explain my faith in democracy as an instrument of justice despite all apparent evidence to the contrary. Now, what you and I understand when we think of “democracy” may well be quite different.  Though it might clarify to provide my working definition of democracy, I’m going to hold off until a later post to talk about the nature of democracy in more depth.  For now, suffice it to say that I am not talking about a passion for U.S. democracy or majority rule or any other particular version of “democracy” that exists in the real world or that serves as shorthand for a very complex, contextual and “essentially contested” concept.  Nor am I limiting my use of “democracy” to the governmental sphere.  Democracy’s relevance has much wider scope, extending beyond government to communities, organizations and even intimate relationships.  Says Walt Whitman: Did you, too, O friend, suppose democracy was only for elections, for politics, and for a party name? I say democracy is only of use there that it may pass on and come to its flower and fruit in manners, in the highest forms of interaction between [people], and their beliefs -- in religion, literature, colleges and schools -- democracy in all public and private life....

Written By Hazel Weiser For those of us who adore Mad Men, the AMC series that snidely reveals the underbelly of a racist and gendered post-World War II America through a peek into the advertising business, this season is the best yet.  Don Draper, played by the incredibly handsome Jon Hamm, is falling apart: from alcohol, lies, and too many women.  He is divorced, living in a drab Greenwich Village apartment, and everything is catching up to him.  Why in a recent episode, he even threw up from drinking too much.  And now the advertising agency where he is creative director just lost the Lucky Strike cigarette account.  This might mean financial ruin for them all.  So what does Don do?  He takes out a full page ad in the New York Times announcing that the agency will no longer represent tobacco companies. To save the company, he pretends to have some ethics, but it’s really just about money. Although certainly not as handsome as Don Draper, Ward Connerly, the former member of the California Board of Regents and founder of American Civil Rights Initiative, is as slick as a Mad Man.  An African American businessman, Connerly has put together the campaign to end affirmative action by coopting the language of the civil rights movement.  The ACRI was behind efforts in California, Washington, Michigan, Florida, and Nebraska to ban affirmative action by claiming to be for civil rights.  Ms. Magazine published an expose about Ward Connerly in Winter 2008, revealing that he brought in $1.6 million in fees from ACRI in 2006, the last period documentation was available.

Written by Deborah Post The push to deregulate tenure is justified by its advocates in several ways. In a prior post, I discussed one strategy the trivializing of faculty opposition which is characterized as “interest group politics” focused on “terms of employment.”  The role of faculty as managers of law schools is erased, usurped by decanal assertion of management expertise. The more powerful argument, at least where the lay public and a good portion of the legal practitioners are concerned, is the allegation that tenure prevents a dean and a school from removing faculty who are unproductive to make a place for new, young, industrious, creative faculty.  The spectre of a doddering faculty member who comes to school only to teach, riffling through pages as old as he or she, is powerful.  In its worst form, it suggests that law professors are the worst form of slackers, earning salaries completely disproportionate to the value they deliver to the law schools. Not only is this caricature unfair and misleading, but it is inaccurate to say that tenure means unproductive faculty must be retained and that tenure keeps schools from hiring new, young faculty.

Written by Ezra Rosser This summer I decided to read up on the bailout and the origins of the economic crisis because, while I was aware of the broad strokes, I thought the near collapse of our financial sector was a topic that could have sufficiently lasting impact that it was worth learning more.  I read (in order): Lawrence MacDonald & Patrick Robinson, A Colossal Failure of Common Sense: The Inside Story of the Collapse of Lehman Brothers (2009); Michael Lewis, The Big Short: Inside the Doomsday Machine (2010); and Roger Lowenstein, The End of Wall Street (2010). I decided to read A Colossal Failure of Common Sense because I liked the cover, which features a great photo of the Wall St. bull.  But the common advice about buying a book for its cover held true in this case.  It is billed as an inside account, but the insider is not sufficiently powerful to have played much of a role and too often fails to recognize the larger problems at Lehman and similar banks.  The mortgage department is subject to scorn and hindsight-aided insults, while the successful trades of the author are celebrated for whole chapters.  What is missing is recognition that the gains in non-mortgage arms of Lehman and the gains and eventual losses in the mortgage and real estate arm were driven by the same tool: tremendous leverage.  The authors attribute the failure of Lehman largely to a distant CEO - Fuld - and while you leave the book convinced that a change in leadership would have helped pull Lehman back from real estate, I did not get the sense that that change alone would reduce the bank's exposure to the next bubble.  Mortgage brokers are described as flashy with fancy cars and big muscles, but the authors seem unaware of the irony of spending so much time describing the fancy meals and presents that Lehman executives lavished on well performing mid-level employees.  The culture of mortgage lenders at the height of the bubble described in the book could have been, but was not, a way for the primary author and Wall St. to look in the mirror.

Imagine for a moment that this is a march of Wall Street titans, other social elites and their pampered children, marching to show gratitude for having been rescued and bailed out, thanking the rest of us for shouldering the costs of their insane risk-taking. No, that’s not a sight we are likely to see.

by andré douglas pond cummings In a completely under the radar moment, a new law of considerable importance was passed by Congress and signed into law by President Obama last month.  The Fair Sentencing Act of 2010 was introduced by Senator Richard Durbin (D-IL) in March 2010 and signed into law by President Obama on August 3, 2010.  Before passage of the Fair Sentencing Act of 2010, defendants that possessed 5 grams of “crack” cocaine were sentenced to a mandatory minimum prison term of 5 years.  In contrast, a defendant possessing powder cocaine had to possess 500 grams of powder before the same 5-year mandatory minimum sentence would be triggered.  For more than 20 years, a 100:1 crack-powder sentencing disparity has existed in our nation’s federal legislation.  This disparity has literally devastated urban communities across the nation and has cost the U.S. government millions of dollars as federal and state prisons are overflowing with non-violent inmates, an overwhelming majority of which are African American. As an example of this devastating racial disparity, 80% of all defendants sentenced under federal crack cocaine laws in 2008 were African-American, and prison sentences for crack cocaine offenses averaged two years longer than those for powder cocaine.  As President Obama observed at the signing of the Fair Sentencing Act, the old sentencing regime was “fundamentally unfair.”  The Fair Sentencing Act of 2010 aims to “restore fairness to Federal cocaine sentencing,” by significantly reducing the crack-powder cocaine sentencing disparity from 100:1 to 18:1.  Today, a defendant must now possess 28 grams of crack cocaine (rather than 5 grams) before a 5-year mandatory minimum sentence is required. This difference represents an enormous practical effect, which is that this new threshold essentially eliminates the mandatory 5-year minimum for simple possession—most dealers and traffickers carry crack in amounts of 28 grams or more.

Written by Jeannine Bell Every year I’m approached by students who have an interest in public service.   Though I myself am quite public-service minded–I’ve spent some time working with nonprofits, I know several public interest lawyers and I believe fervently in doing this work, whenever I’m asked…

Written by Ezra Rosser The New York Times recently published a story -- Norimitsu Onishi, Toiling Far From Home for Philippine Dreams, New York Times, Sept. 18, 2010 -- that gives me a chance, really an excuse, to blog about an issue that interests me a great deal: immigrant remittances.  The New York Times has to its credit covered this issue quite well.  Although slightly dated, a 2007 interactive graphic -- Snapshot: Global Migration -- includes eye-opening global maps of money sent home (the N.Y. Times' language, not mine) by immigrants, and the related percentage of GDP that amounts to for receiving countries.  Perhaps the most in depth Times article on the topic also focused on the Philippines and is a great place to start for those not familiar with the topic of immigrant remittances: Jason DeParle, A Good Provider Is One Who Leaves, New York Times, Apr. 22, 2007. The legal academy is in the midst of what optimistically might be called a mini-wave of writing on immigrant remittances.  Adam Feibelman has recently published, The Very Uneasy Case Against Remittances: An Ex Ante Perspective, 88 N.C. L. Rev. 1771 (2010).  That one article is enough for a mini-wave in this area considering how under-explored remittances have been by legal academics.  But Heather Hughes also has a book chapter on remittances coming out soon. My own article, Immigrant Remittances, 41 Conn. L. Rev. 1 (2008), is a bit older and is less technical than the book chapter and, given the newest article, perhaps could be characterized as The Uneasy Case For Remittances.  In it, I argue against what I call institutional capture of the remittance phenomenon.  The focus is on remittances to Latin America and in particular to El Salvador.  Remittances raise a number of questions about immigration, law and development, family law, and poverty alleviation...

Written by Jeannine Bell I recently had an occasion to address a group of 1Ls to give them advice for law school. I've done this for the past several years and found myself with somewhat mixed emotions for the first time about the type of advice I would give them. When I first began dispensing advice of the sort I was very close to my own law school days. Unsurprisingly perhaps, my advice was a combination of what I imagined law students needed to know and what I wished I had been told as a law student. My comments were heavily peppered with advice about work/life balance, study skills, course selection, and preparing for exams. As I gave this advice over the next several

Written by Ezra Rosser I am writing this post in the hopes it will inspire discussion, not because I have any good answers.  This semester I am lucky enough to be living in San Salvador, El Salvador, where my wife is from.  I am there because, given a new baby and family around to help, I can get more work done in El Salvador than I can in the U.S.  On most flights to and from the U.S. there are many Salvadorans and usually a group or two of non-Salvadorans going down to do service projects -- often but not always connected to a church -- in El Salvador.  You can pick them out by their nervous excitement on the way down and more muted expressions on the way back to the U.S. When I talk to them or when I talk with others from the U.S. about El Salvador, I end up getting a lot of questions about safety or concerns for my safety.  Usually people have in mind the vague memory of the country's civil war and know very little about the true reason for concern: the gang violence in the country. Safety and gang violence/gang extortion is the central topic in El Salvador; an NPR story from 2009 gives a small taste of the issue.  President Mauricio Funes, the first leftist-FMLN candidate elected, campaigned against the candidate chosen by ARENA, the former police chief.  But on the wake of an attack by gangs on a bus in which passengers were burned to death, Funes pushed a 'no one is going to intimidate El Salvador' campaign with billboards throughout San Salvador and television spots highlighting the decision to deploy the military to support the police.  (Here is a speech by Funes on the topic of violence in the country.)  Finally this week a new law was passed that criminalizes gang membership, period.  The recent killing of 72 immigrants in Mexico, among them many Salvadorans, only highlights the international problem of gangs, but does not detract from the attention the issue is getting in El Salvador.

Written by Jeannine Bell On Sunday, August 28th 2010 we marked the fifth anniversary of Hurricane Katrina which flooded 80% of New Orleans metro area. My parents live in New Orleans and I remember Katrina making landfall and the subsequent…