Salt Blog

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law I just checked the schedule and saw that the oral arguments for the Affordable Care Act challenges are the week of March 26, 2012.  All of a sudden, much of what appeared to be craziness made sense.  No doubt this is obvious to others, but in case it is not obvious I thought I would try to put this down. I have heard some pundits wonder why there is such an attack on women’s right to control their bodies right now.  We see the efforts in states to place burdens on abortion such as we have seen in Virginia stoking the flames of the abortion battles.  We see the efforts to defund Planned Parenthood and limit access to it in other states and at the federal  level.  We also see the recently defeated amendment to the highway transportation  bill introduced by Senator Roy Blunt seeking an exemption to the Affordable Care Act for institutions and corporations who object on religious or moral grounds to providing such a service, with emphasis on contraception on those supporters of the Blunt amendment  and emphasis on protecting women’s reproductive health rights for those opposing the Blunt amendment.  I have noted the strident tone of Rick Santorum on rejecting the JFK vision on separation of church and state, religion’s role in the public square, and opposition to contraception and a similar emphasis by Mitt Romney in his support of the Blunt amendment.

By Benjamin G. Davis, Associate Professor of Law, University of Toledo College of Law Over at lawfareblog.com, the presentation of the guilty plea by Majid Khan in the military commission is done.  Reading what he admits to is terrible to read - he is accused of, admits to, and is convicted of, many many awful things. Along with the transcript of the hearing  before Military Judge Pohl and the documents for the case there is a press statement by Chief Prosecutor Mark Martins dated February 29, 2012 in which he states, among other things (it is available at http://www.lawfareblog.com/2012/02/majid-khan-arraignment-5-prosecution-remarks-to-the-press/#more-6176): "In conclusion, I will note that astute observers familiar with international terrorism prosecutions in the federal courts have predicted that military commissions would need to decrease the level of legal uncertainty in order to develop into a more effective part of our national security and justice institutions.  I submit that what you have seen today is just that.  Today, you saw in open court an intelligent defendant accused of serious violations of the law of war.  He has been well-advised by a zealous and competent team of three defense counsel, having regular access to that defense team.  He faced overwhelming and admissible evidence of guilt, resulting from thorough criminal investigation and prosecution work.  And he decided to plead guilty to his crimes, to accept responsibility for his actions, to face up to a long sentence of confinement, and to fully acknowledge the lawfulness of his detention to date as a belligerent despite previous denials.  Experienced criminal justice practitioners will tell you that this requires predictability in outcomes, both as to what the system will determine with regard guilt or innocence and on what charges, and as to what the system will adjudge as a sentence on those charges.  Such predictability was achieved here, and the agreed-upon outcome upholds the interests of the people of the United States, the security interests of our nation and other nations, and the interests of justice. The reforms incorporated into the 2009 Military Commissions Act, resulting from action by all three branches of our government and review by our federal courts, have reduced the legal uncertainty of the system and made it more predictable in its outcomes.  While appreciating the criticisms leveled by concerned Americans and international partners, we believe that these reformed military commissions are fair and that they serve an important role in the armed conflict against al Qaeda and associated forces.  There is increasing evidence that the American people support this view, and we aim to be worthy of their trust. Your military exists to fight our nation’s wars, not to police its streets.  We do not lobby for missions, and we did not lobby for this one.  But we will carry out this assignment, as customary with other assignments, with integrity, dedication, and skill, and availing ourselves of expertise from across the federal government. When called upon to try those within our jurisdiction who have violated the laws of armed conflict, we will do so faithfully, transparently, respectful of the various roles within an adversarial system, and in accordance with the rule of law.  Thank you."

I just finished reading Moneyball by Michael Lewis, although I haven’t seen the film yet, which is up for six Oscars on Sunday night. As someone uninterested in sports (except for basketball), I couldn’t quite understand why I was so intrigued by a book about baseball and statistics. And I mean engrossed in this book, reporting like an eager third grader every night at dinner as I delved deeper into the Oakland A’s dugout. Billy Beane, played by Brad Pitt in the film, decides to use a different schema for recruiting and retaining ball players during the 2002 baseball season. Breaking all of the rules of what matters about a player’s stats, Oakland's general manager Billy Beane, with the help of Peter Brand, a Harvard educated math wonk, played by Jonah Hill, methodically holds fast to a new set of statistics to assess the value of any player. This is called sabermetrics. Beane throws out 150 years of baseball wisdom in a single baseball season. A totally different way of assessing the value of a player, um, that sounds intriguing.

An interesting chart appears in this week’s Chronicle of Higher Education, February 24, 2012. Although giving to colleges and universities is up again, 8.2% in 2011, amounting to $30.3 billion, 86% of that giving went to just 25% of schools.

Posted by Lisa R. Pruitt The Occupy Wall Street movement has recently drawn national attention to economic inequality, and several new studies and a book just published also invite us to consider the acuteness of this inequality, as well as its causes and/or consequences.  These publications all highlight education, to one degree or another, as a key indicator of class and class mobility. The New York Times, NPR and the Los Angeles Times all ran features this week on Charles Murray's new book, Coming Apart:  The State of White America, 1960-2010.  Murray, labeled "a libertarian social scientist" by NPR (and worse things by other liberal pundits), is a controversial figure due in large part to his co-authorship of The Bell Curve.  In that 1994 book, Murray described  a "cognitive elite" who, he argued, get ahead in large part because of their superior IQs.  The controversy was understandable given his assertion that whites tend to have higher IQs than African Americans and some other minorities. I want to focus here, however, on some of the less controversial information featured in Coming Apart. By this, I mean to steer clear of the book's commentary on values and related suggestions for remedying the problem.  (I do, however, recommend Paul Krugman's op-ed and Nicholas Confessore's review which offer incisive observations regarding those aspects of the book).  Also, to be clear, I have yet to read the book and so rely here on characterizations from media reports.

On my office door is a cartoon by Luckovitch for the Atlanta Journal-Constitution. It’s a church wedding. The minister, at the altar, is calling down the aisle to the couple. “One step forward, two steps back, now three forward, one back . . . .” In one of the pews, someone is saying “Gay weddings take forever.” This week’s marriage equality decision in Perry v. Brown (9th Cir. Feb. 7, 2012) is a lot like that. It takes a very small step forward and a large step sideways towards marriage for same-sex couples in California. And it’s a good thing, too.

by andré douglas pond cummings With most banks in “full-delay” mode in connection with foreclosures during 2011, California homeowners can expect a change—for the worst—in 2012 as banks look to aggressively pursue seriously delinquent mortgages this year. The foreclosure rate is expected to rise significantly, based…

  Written by Raquel Aldana, University of the Pacific, McGeorge School of Law Today was a historic day for Guatemala. A few hours ago, after a long day of heady hearings, a Guatemalan court opened a criminal case for genocide against Retired Military General Efraín Ríos Montt and…

Written by Hari Osofsky Last night, President Obama delivered his annual State of the Union Address.  Like last year, he focused on the potential for unity over energy independence, transition to cleaner energy, and energy infrastructure rather than on addressing climate change. He continued to tie that transition to innovation, construction, and jobs. However, the tone was somewhat different.  Unlike last year, where he did not mention climate change directly, he openly acknowledged partisan divisions with respect to climate change and even energy while trying to find bipartisan ground.  The President also spent time discussing the expansion of offshore drilling and natural gas as positive rather than just emphasizing the need to shift towards cleaner sources. I liked the realism of this shift.  One of the reasons I spent time in the aftermath of the BP Deepwater Horizon oil spill exploring the complexity of offshore drilling and oil spill regulation, and principles for moving forward and addressing environmental justice concerns, is because I believe that the desire for energy independence and security will compel us to keep drilling deep in at least the short-to-medium term.  Similarly, I think that natural gas is an important transitional energy source because we are not ready to shift dramatically to cleaner sources in the near term. I do think it's important, though, to think beyond our present constraints.  I live in the Midwest, with its massive wind capacity, and was particularly heartened by two experiences I had during my Climate Change and Clean Energy capstone course last semester.  First, when John Dunlop of the American Wind Energy Association visited us, he emphasized that between on-shore and off-shore wind, we have capacity to more than meet our energy needs and that intermittancy is more manageable than it is often portrated as being.  Second, when we went on a tour of the MISO, the Midwestern regional transmission organization, the operator answering our questions emphasized that they try to get as much wind online as possible.  This effort is not motivated by any type of environmental mandate, but out of their mission of reducing cost and maximizing reliability--the wind is cheaper than the more polluting sources.  I hope that we can move beyond bipartisanship to use law as a tool for the energy transformation--through a combination of conservation, efficiency, and transitioning sources--that would be a win-win for this country. I include the most relevant portion of the State of the Union below:

It’s hard to imagine that in 1950, roughly half of the practicing attorneys in the United States were not college educated, but had gone to law school from high school or less. Post World War II brought with it an influx of students, thanks to the GI Bill, and most of those students were men. That wartime anomaly—twenty-five percent of law school students being women—ended quickly. Standardization won out, too, according to Robert Stevens in Law School: Legal Education in America from the 1850s to the 1980s, (the basis of this series of articles on how law schools developed into what they are today). There was not that much difference in the content of the curriculum offered at a local or regional law school and that offered at Harvard, Yale, or Stanford by the late 1940s. The ABA and AALS won: four years of college and three years of full time law school was mostly needed to sit for the bar with the noticeable exception of California (and a few other states), which still had state-accredited law schools and an apprenticeship avenue into practice. What did law school look like: large classes, the case method, and no written work apart from a final examination in each course. This was the time when law schools were the cash cows for many universities. There had been some “reform” in the 1950s and 1960s, mainly, introductory law classes, teaching fellows for tutorial help, the introduction of legal skills courses using the problem method, a few specialty seminar classes, and finally, clinical education. The biggest innovation, of course, was the acquiescence that negotiation, drafting, and counseling needed to be taught even if the case method couldn’t be instructive here.

The End of the Pipeline: A Journey of Recognition for African Americans Entering the Legal Profession by Dorothy H. Evensen and Carla D. Pratt (faculty members at Penn State and proud SALT members) is a “must” read for every law school dean, law school admissions officer, and pre law college adviser. Reading this book will deepen our knowledge about the roadblocks African American students face academically, economically, and culturally in order to cultivate an understanding of what help individuals and institutions can provide to these aspiring students along the way. Reading this book, although fraught with indignities and disappointments, is essentially optimistic, because it makes diversity more likely by identifying institutional and programmatic choices that can make achieving diversity more feasible. Evensen and Pratt’s research examines the stories of twenty-eight African American attorneys who graduated from law school after 2000 as the new millennium began. Each participant passed the bar and is working in the profession. Using an analytic/interpretive research methodology, Evensen and Pratt interviewed these “successful” pipeline travelers. The stories reveal what at first appear to be very specific and individual paths through high school, college, law school, the bar exam, and into practice. But Evensen and Pratt found patterns and organized these stories into categories in order to understand what works to navigate through the often difficult and circuitous pipeline. These stories illustrate how much power a teacher, family member, or friend can wield with a comment or a casual attitude—whether encouraging or not. These personal histories also reveal just how much our colleges and law schools have to restructure themselves as institutions to compensate for the educational inequities that isolate and alienate especially poor African Americans. If we want to have a diverse profession, we need to shake up the cultures of our law schools.

The Durban Conference of the Parties (COP17) of the United Nations Framework Convention on Climate Change (UNFCCC) is finally over two days after talks were scheduled to conclude. These extra two days were very productive, resulting in some good news on the big picture of treaty negotiations that needs to be contextualized in the big picture bad news for addressing emissions in the timeframe scientists say are needed.

The middle tier law schools in the years between World War I, essentially pre-standardization, and World War II, when much had been accomplished to establish a singular way to teach law, were driven to emulate Harvard, Yale, and Columbia, just as they do now. Of course, this desire back then was to get onto the approved ABA list of law schools and an invitation to join the AALS. Now this emulation comes from an additional source: U.S. News & World Report rankings. In the years that the ABA and AALS were on the ascent, to call a law school merely a step to get its graduates through the bar exam was considered a horrific insult. To emulate Harvard, Yale, and Columbia, a law school had to ascribe to the case book method and hire scholars, avoiding experienced practitioners who were considered mediocre in the classroom, perhaps because their intellect had been diminished by pragmatism or worse yet, cynicism.

The United Nations Framework Convention Convention on Climate Change has begun its annual conference of the parties in Durban. From the start, the news is depressing, and as Lesley McAlister noted in her blog, has a bit of a deja vu quality, and not in a good way. The Chief Economist of the International Energy Agency, Fatih Birol, indicated that we're on track for 6 degrees of warming by 2100 if we don't change our energy use patterns. Meanwhile, Canada, which is failing to meet its Kyoto Protocol commitments, has announced it won't sign on for another commitment period. While there are many nuanced negotiations going on regarding many important issues, which small groups of people fully understand, the progress on some of these topics since last year's Cancun negotiations does not address the fundamental problem: we are nowhere any kind of big picture solution to this problem. This is why the soon-to-be-released casebook I'm writing with Lesley McAlister ends with major climate change and geo-engineering as it's two primary scenarios, and asks our students to try to get us to an alternative future.

I actually don’t think we need a major reconfiguration. Clinics are extremely expensive. Extern programs are very often problematic. I would be satisfied if each and every law school teacher would include practice components in every course taught with the possible exception of con law. Every legal principle discussed should be followed with a discussion of how the principle is implemented in the real world. In addition, there should be an advanced course in the curriculum that focuses on practice aspects for each substantive discipline. Finally, I think recruitment committees and faculties as a whole should be reeducated to value practice in the candidate pool and the willingness of candidates to not only teach practice but to get involved in school service that exposes students to practice and helps students make career choices.

I love Project Runway, Work of Art, and Top Chef. Each of these shows uses a similar formula. Challenge ambitious, technically skilled, designers, artists, or chefs with creative tasks without enough time to thoughtfully complete them, forcing them to take shortcuts, and then judge their clothes, paintings, or dishes on their results not how they got there. Contestants get a mid-course critique from someone like Tim Gunn, Simon de Pury, or Tom Colicchio but mostly it’s taking the technical skills of the craft and then having the confidence to “make it work.” Mistakes that are made affect the way a dress falls, a sculpture engages, or a meal tastes. No one is evicted or jailed if a mistake is made. They are just “out.” Elizabeth who has worked for SALT as my assistant for three years is now a full time graduate student getting a master’s degree in landscape architecture. She still works at SALT on Fridays, and last week over our fish tacos at “Bubba’s Burrito Bar” she described how her program works. As she described grad school, we shared an “ah ha” moment. Every week new projects get thrown at her without enough time or instruction as to technique—designing environments and building models to illustrate them. “It’s just like Project Runway!” Never enough time, feeling like she is winging everything, and relying on self-discovering new technical skills as she goes along. There are some who believe this is the way we should teach law in the future because it is cheaper than the current models. It’s not so easy. Unlike tailoring, artistry, culinary arts, or landscape architecture, lawyering requires a true understanding of the structures of government and regulation; an ability to interact with people, technology, and systems, like bureaucracies and complex regulatory environments; and an ethical and professional value system that insists on rigor, integrity, and courage in the face of authority.

I think the major problem with David Segal's November 19, 2011 article in The New York Times, like much of what has been written in the vein lately, is that the perspective is way too narrowly on the large law firms and the elite law schools. While many law schools follow the lead of the elites, many also do not, but most of the schools who do not follow the model as closely are the lower ranked schools. The large law firms could solve some of their problems by recruiting at law schools that actually do produce practice ready graduates. USNews is also a big factor and could change the ranking formula to account for practice ready curriculum and teaching excellence. I realize that there has been a trickle down effect in the legal job market so that all new graduates are likely to find themselves competing with more experienced lawyers for any openings, but that is likely a very short term effect, and many of the newly unemployed former associates from large firms will find that they actually did not get much useful transferable experience during the first couple of years at those firms.

"The devastating events of 9-11 brought a tangle of complex issues, dangerous realities, and hard choices. To help meet these challenges, the United States began interrogating detainees. The interrogation settings included the Abu Ghraib Prison in Iraq, the Detention Center at Bagram Airbase in Afghanistan, and Camps Delta, Iguana, and X-Ray at Guantanamo Bay Naval Base. The American Psychological Association (APA) played a key role in supporting detainee interrogations and highlighted psychologists' contributions to this aspect of national security. For example, APA submitted a statement on psychology and interrogations to the US Senate Select Committee on Intelligence explaining that "psychologists have important contributions to make in eliciting information that can be used to prevent violence and protect our nation's security"; that "conducting an interrogation is inherently a psychological endeavor"; and that "psychology is central to this process" (American Psychological Association, 2007b). U.S. officials also saw a central role for psychologists: "Pentagon officials said . . . they would try to use only psychologists, not psychiatrists, to help interrogators devise strategies to get information from detainees at places like Guantanamo Bay, Cuba. The new policy follows by little more than two weeks an overwhelming vote by the American Psychiatric Association discouraging its members from participating in those efforts" (Lewis, 2006). APA promoted support for its interrogation policies in its press releases, its journals, its web site, its Internet lists, its conventions, the APA Monitor on Psychology, and other venues.

by andré douglas pond cummings America’s middle class is disappearing.  The emergence of Occupy Wall Street highlights a growing oligarchy in American society.  An oligarchy is defined by Merriam-Webster as “a government in which a small group exercises control especially for corrupt and selfish purposes.”  While many…

The first rule of persuasion is to choose when to begin a story. All of this talk about deregulation of legal education and the practice of law as being good for everyone needs some historical context. (This talk sounds dangerously like it was manufactured by the U.S. Chamber of Commerce). I started that examination last week when I posted Deregulation is Just Another Word for … . Today I am moving deeper into history to help us understand how the legal profession became a profession. It’s not a pretty story, because it happened here in the United States: a radical, young, immature, racist, and intolerant place that has always had a hard time living up to its aspirations. Looking back to the time when the American Bar Association—ABA—first began to influence legal education, I am once again heavily relying on the scholarship of Robert Stevens, Law School: Legal Education in America from the 1850s to the 1980s (University of North Carolina Press 1983).