Persuasive Authorities

Farewell

2011-03-30T09:00:00.001-04:00

Persuasive Authorities is officially signing off. On behalf of our entire roster of contributors, I thank our readers for visiting us and interacting with us in this group blog. It has been fun, fruitful, and productive.

We look forward to seeing you again elsewhere soon.

Thank you. And farewell.

New Law School Rankings

2011-02-18T09:27:00.000-05:00

(from Malcolm Gladwell.) The full list is available here (subscription required), but you can get a quick glimpse of them here.

Women’s quota in major enterprises

2011-02-14T03:16:00.003-05:00

These days, in Germany there is a lively discussion about women’s quota in major enterprises. The facts are clear: in most German businesses, especially in leadership positions, women are still underrepresented. Only 13 percent of the boards of directors of the 30 leading firms in Germany are women. Many politicians believe it is not enough that political parties or private businesses establish self-made women’s quotas for their organizations. They claim that there must be a regulation to ensure an appropriate proportion of women in big businesses. Thus, Germany should again win the leadership among the international competition. For comparison, Norway adopted the women’s quota for boards of directors in 2003. Spain followed in 2007 with a similar regulation. France took the step on January 13, 2011.
However, the Chancellor of Germany, Angela Merkel, recently declared that there will not be a women’s quota in Germany, since it would not be enforceable anyway. Rumors are circulating that she decided this way because she was concerned to lose votes in this very important election year 2011. Yet, clever enough, she also mentioned that she only decided against women’s quota because economy should once again try to give themselves quotas without any state regulation.

Finally the women’s quota issue also made it in Swiss headlines. Whereas in Swiss politics and government, women slowly compete men (four out of seven federal councils, 26 percent of the National Council and 24 percent of the Council of States, the head of the Swiss financial market supervisory authority and the head of the state secretariat for economic affairs are female), in economy there are still not enough women visible, and there is no perspective of change in the next couple of years. On an international comparison, Switzerland is among the last if it is about women in the executive suites.

Voices are getting loud for women’s quota only partially. Arguments against are made and say that especially young women don’t want to be so called ‘quota women’. Others fear that state regulation displaces the individual freedom. Other arguments are made that it is unconstitutional: Art. 27 of the Swiss Federal Constitution provides the freedom of economy for individuals and private companies. However, given a statutory basis, it could be a legitimate restriction as being within a public interest and proportional. Another constitutional argument says that quotas violate the prohibition of discrimination based on gender according to Art. 8 Abs. 3 of the Swiss Federal Constitution. Yet, this argument is highly controversial.

Anyhow, some concerns might be more legitimate. Many examples show that women who finally made it to a leading position had to fight even harder to prove that they were not only quota women but qualified at least as much as a competing man was.

However, from my point of view, there are reams of reasons for the introduction of women’s quotas for major enterprises. There are several studies (among others one from McKinsey) which show that the equity return and the profit in all of a business is clearly higher in businesses with gender-mixed management teams than in men-only teams. A UN research study shows that US firms with women in the business management feature a 42 percent higher operating margin than firms led only by men. The hope that the older men dominated generation would step back from their leading position in big firms and both female and male would fill their positions, did not occur. If the economy is not able to fill the free seats in their leading management with woman, coercion is probably the only solution to achieve gender equality.

Women supply half the market of enterprises. Their exclusion possibly leads to an alleviation of the potential for economic growth. Also, women are half of the market of businesses. They make half of the decisions regarding consummation. Furthermore, researches show that women are needed in leading positions of big businesses because of the aging of our society. It is assumed that in 30 years in Europe there will be an absence of 24 Million employees. If women would participate to same parts in the working life as men, the number could be reduced to 3 millions.

Although I believe that women’s quota for big businesses are the best solution to reduce the discrimination against women, there would be several good alternatives and softer forms to augment the number of female employees in leading positions. One would be to reward the commitment for women’s quota of every major enterprise. Another possibility would be to certify enterprises which advocate gender equality and exhibit a certain women’s quota in their businesses. It is also possible that an enterprise can assert factual reasons to not fulfill the requested quota of female employees, e.g. because not enough women applied for open jobs, and that this would lead to the fact that these businesses would have to take action in respect of affirmative action programs for women and provisions for the advancement of women in big businesses. My favorite solution, however, is to legally regulate a women’s quota on time for major enterprises. Therewith it would not be a rigid institution but a promoter for a self-supporting development.

University of Colorado Law School

2011-02-10T11:57:00.002-05:00

The Law School is in the midst of a Dean search. The four finalists, listed here, have just been announced.

Guest Post from Madhav Khosla on "Making Social Rights Conditional: Lessons from India"

2011-01-29T20:46:00.000-05:00

It is widely believed that the Indian Supreme Court adjudicates social rights. The familiar narrative, about the rise of the Court during the post-Emergency years and the innovations of the PIL era, requires no elaboration. In a new article, available here (link: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1742746), and forthcoming in the International Journal of Constitutional Law (I-CON), I challenge this narrative and present a detailed study of the social rights jurisprudence of the Indian Supreme Court. Before embarking upon my own thesis, I show why the literature on social rights in India is deeply flawed and has presented an inaccurate account of our jurisprudence. I then introduce a new distinction in the social rights debate between what I call systemic social rights and conditional social rights. This thesis goes against the literature on social rights in India, and suggests that the paradigm that constitutional lawyers currently adopt to study the South African experience with such rights (weak v. strong form review) cannot adequately grasp the Indian experience. The conditional rights approach is, I argue, a new form of social rights adjudication, and is a rare private law model of public law adjudication. I also discuss in detail what implications follow from the conditional social rights thesis.

The abstract is as follows:

Recent years have witnessed important advancements in the discussion on social rights. The South African experience with social rights has revealed how such rights can be protected without providing for an individualized remedy. Comparative constitutional lawyers now debate the promise of the South African approach, and the possibility of weak-form judicial review in social rights cases. This Article considers the Indian experience with social rights, and explains how it exhibits a new form of social rights adjudication. This is the adjudication of a conditional social right; an approach that displays a rare private law model of public law adjudication. This Article studies the nature and significance of this heretofore ignored adjudicatory approach, and contrasts it with the systemic social rights approach. The conditional social rights thesis has important implications for the present debate on social rights adjudication, and presents an account of the Indian Supreme Court that is truer than those we presently encounter.

Madhav Khosla (madhav.khosla@aya.yale.edu) is currently at the Centre for Policy Research, New Delhi.

United States vs. Canada

2011-01-25T12:17:00.002-05:00

No, it's not a championship hockey game. It's the battle of law schools and the legal profession! Read about it here.

New Dean at UNH

2011-01-23T11:09:00.000-05:00

Tomorrow, the University of New Hampshire Law School will welcome its new dean, John Broderick, former Chief Justice of the New Hampshire Supreme Court.

Thinking About Getting a PhD? Well, Think Again

2010-12-17T10:23:00.002-05:00

I just finished reading this slightly depressing article in the latest edition of The Economist. Basically, there are too many PhD candidates, too few jobs, and the exploitation of grad students as cheap research and teaching assistants follows. Thus, the interests of grad students and those of universities are not aligned. Moreover, a PhD is probably worth less on the market today than it used to be, while a Masters degree comes close to the PhD in terms of financial remuneration. Admittedly, this might be a little less relevant for those of us pursuing a SJD/JSD, but it seems like this is only a matter of time, especially as the rate of JD/PhDs continues to grow. Check it out here.

Law School Clinics

2010-12-17T08:23:00.000-05:00

I've always thought law school clinics were one of the best things law students could do to learn about the law. Here is something interesting and important a group of law students is doing as part of a clinic.

Law School Personal Statements

2010-12-15T09:42:00.000-05:00

How should you write one? Here is some useful advice.

Be Careful What You Say About Document Review

2010-12-14T10:42:00.002-05:00

It could get invite very harsh criticism. Like this, for example.

Ulen on the Role of Law in Economic Growth and Development

2010-12-07T21:17:00.003-05:00

For those interested in law & economics, here´s an interesting talk that Prof. Tom Ulen recently gave at Torcuato Di Tella law school on economic development and law.

Dworkin Interviewed

2010-12-05T18:03:00.002-05:00

Here is a short and interesting BBC interview to Ronald Dworkin.

Whom Do Law School Attract?

2010-11-29T14:25:00.000-05:00

Apparently all types of people: the former Commissioner of Major League Baseball is now a faculty member at Marquette Law School, and a former Nigerian presidential candidate is now a law student at UNLV.

The Apprentice

2010-11-22T13:42:00.002-05:00

The lone attorney still in the running to become Donald Trump's next apprentice answers questions about the show here.

Congratulations to Jay Readey

2010-11-19T10:31:00.001-05:00

...on his appointment as Executive Director of the Chicago Lawyers' Committee for Civil Rights Under Law.

Here is what the Chair of the Board of Directors, Edward Feldman, said in announcing Jay's hiring:

I am very excited that Jay Readey will serve as our Executive Director. Jay's commitment to equal opportunity and disadvantaged communities has shown throughout his career, and his nonprofit management and leadership experience make him well-positioned to lead the organization through a new phase of expanded service in fulfillment of our mission.

Congratulations to Jay, my dear friend and former classmate!

Review of "When Governments Break the Law"

2010-11-02T23:51:00.003-04:00

Apologies for cross posting. My review of the new book edited by Austin Sarat and Nasser Hussain,When Governments Break the Law: The Rule of Law and the Prosecution of the Bush Administration, has been posted on Concurring Opinions. The book is great, and you can find my review here.

Harvard in State Capitols

2010-11-02T17:30:00.000-04:00

Ten states have a Harvard graduate on the ballot for governor. "So maybe this is the year of the anti-elite, after all," writes Edward Schumacher-Matos.

Constitutional Law... in High School

2010-11-02T17:28:00.002-04:00

This looks like a great program.

What Can You Do With a Harvard Law Degree?

2010-10-29T16:21:00.000-04:00

Become General Manager of the New York Mets.

Congratulations to Jeannie Suk!

2010-10-28T14:44:00.002-04:00

Now tenured at Harvard Law School.

New Issue of the Revista Argentina de Teoría Jurídica: "Law and Development"

2010-10-27T09:22:00.004-04:00

Revista Argentina de Teoría Jurídica´s new issue is now available online. Revista celebrates its 11th year with an issue entirely devoted to "Law and Development."
Revista Argentina de Teoría Jurídica is the law review at the School of Law, Universidad Torcuato Di Tella in Buenos Aires, Argentina.

The Changing Job Market

2010-10-27T09:22:00.000-04:00

Boston College recently hosted Indiana law professor William Henderson for a public lecture on the legal profession. Though I cannot provide a link to his remarks, here is a short piece Professor Henderson wrote on the subject.

Santa Clara Law School

2010-10-26T19:49:00.002-04:00

Happy 100th anniversary!

$4 Billion

2010-10-20T07:13:00.000-04:00

That's how much Columbia University is on-track to raise in its capital campaign.

Amartya Sen on his "The Idea of Justice"

2010-10-19T08:20:00.003-04:00

A short and very interesting talk by Sen on his book, here.

Louise Arbour and Self-Determination

2010-10-18T17:12:00.000-04:00

The former UN High Commissioner for Human Rights and former Canadian Supreme Court Justice gives her thoughts on the complicated question of self-determination and independence.

Federal Clerkships

2010-10-17T13:24:00.001-04:00

Are the clerkship hiring rules being bent? Yes, according to the National Law Journal.

Law Firm Apprenticeships

2010-10-13T23:26:00.000-04:00

Could this be a sign of things to come?

Yale Undergraduate Law Review

2010-10-11T17:43:00.002-04:00

It is now live, with an interesting first edition that includes an article on Supreme Court Justice Elena Kagan.

Good luck to the staff.

Most Powerful Women

2010-10-11T15:14:00.000-04:00

Two of the top five most powerful women in the world are lawyers, according to Forbes Magazine. See who those two women are here.

Joint Degree at BC and Tufts

2010-10-10T19:34:00.000-04:00

Boston College Law School and the Tufts Graduate School of Arts and Sciences are now offering a joint degree program, giving students a Master of Arts in Urban and Environmental Policy and Planning and a Juris Doctor in four, instead of five, years.

Canadian Law Schools in 2025

2010-10-08T13:00:00.000-04:00

How will they look? A former Dean makes five predictions here.

Law Reviews

2010-10-07T18:00:00.001-04:00

How should they be ranked? ATL weights in here.

The Upcoming Supreme Court Term

2010-10-04T13:00:00.002-04:00

Dean Minow and Professor Feldman analyze the forthcoming SCOTUS term, evaluating the importance of several big cases that are likely to make legal headlines when they'll be decided.

Officer´s Uprising at Ecuador: Standoff or Coup?

2010-10-01T11:16:00.005-04:00

President Correa captive for more than 10 hours

Call for Papers: Terrorism, Law and Democracy: 10 Years after 9/11

2010-09-28T11:10:00.001-04:00

Canadian Institute for the Administration of Justice
2011 Annual Conference
October 13 & 14, 2011
Montreal, Quebec

Terrorism, Law and Democracy: 10 years after 9/11

About the Conference

The conference will focus on how Canadian law has changed with the threat of terrorism in the decade since 9/11. Many of these changes have been controversial, especially in the way in which they reconcile (or not) civil liberties and human rights with enhanced state power to combat terrorism. At the same time, the last decade has been one of several public inquiries, investigating the actual practice of anti-terrorism by Canada’s security services. Key questions arising from the 2011 conference include, at the broadest level, whether Canadian law has successfully preserved fundamental rights and values of substantive and procedural justice while at the same time contributing to anti-terrorism.

More specifically, the CIAJ 2011 conference will grapple with the practice and law of anti-terrorism, focusing on themes such as:

Anti-terrorism in Context
o Understanding the Threat Environment 10 years after 9/11
o The Challenge of Intelligence Collection and Sharing
o Overview of Recent Canadian and Comparative Legal Developments

Developments in Substantive Anti-Terrorism Law
o Developments in Canadian Criminal Law and Anti-terrorism
o Developments in Canadian Administrative Law and Anti-terrorism

Procedure and Accountability in Anti-terrorism Matters
o Due Process and the Adjudication of Terrorism Cases
o Oversight and Review of Security and Intelligence Agencies

Call for Papers

Panels on these themes will comprise judges, government and private practitioners and academics. By this call for papers, the CIAJ welcomes expressions of interest from academic participants. Expressions of interest should consist of a brief cover letter explaining the applicant’s research interest in the area, a curriculum vitae and an abstract of one page or less describing the paper the applicant proposes delivering. Successful applicants will deliver a fully analytical paper offering a perspective on one of the themes listed above, or a subset of it.

Papers will be submitted to a peer-reviewed process for possible publication in a volume produced by the CIAJ after the conference.

Deadlines

Expressions of interest: By Friday, October 29, 2010, via email to Christine.Robertson@ciaj-icaj.ca

Notice to successful candidates: By end of December 2010

Draft conference paper: By Friday, May 27, 2011

Final pre-conference paper: By Friday, September 9, 2011

Contact persons for further information: Christine Robertson, Christine.Robertson@ciaj-icaj.ca

Parliamentary Elections in Venezuela: What´s at Stake?

2010-09-25T10:50:00.003-04:00

Tomorrow, Parliamentary elections will be held in Venezuela. Here´s an explanation of what´s at stake.

Call for Papers

2010-09-24T17:49:00.004-04:00

Civil Litigation as a Tool for Regulating Climate Change -- February 18, 2011

The purpose of this conference is to explore the interlinked policy, science, legal and political questions of utilizing the American litigation system, and particularly its tort theories of liability, to regulate climate change. Attempts to employ the courts as a tool for regulation are exemplified by cases such as Comer v. Murphy Oil, Connecticut v. American Electric Power, Co., and Native Village of Kivalina v. Exxon Mobil Corporation. Key presentations at the conference will be made by Professor Daniel Farber, Director of the Center for Law, Energy and the Environment, University of California at Berkeley; Professor Michael B. Gerrard, Director of the Center for Climate Change Law, Columbia University School of Law; and Professor Daniel Bodansky of the Schools of Sustainability and of Law, Arizona State University. Scholars and practitioners in the fields of environmental science, litigation, and tort law, among other areas, are encouraged to attend and present papers that will generate debate and discussion concerning the desirability of such litigation, strategies concerning it, and the impact it might have on efforts to bring about national legislation and international cooperation on global warming and related problems.

Valparaiso University School of Law issues this call for papers as part of the 25th Annual Monsanto Lecture/Conference on Tort Law and Jurisprudence, to be held at the School of Law on February 18, 2011. If you are interested in presenting, please submit an abstract of your proposed paper to Associate Dean and Professor of Law JoEllen Lind (JoEllen.Lind@valpo.edu). Abstracts are due on or before December 1, 2010. A limited number of stipends are available to defray travel and lodging costs of some participants.

A DEFENSE OF FREE SPEECH BY AMERICAN AND CANADIAN MUSLIMS

2010-09-22T15:44:00.001-04:00

A timely statement released by leaders and academics from the North American Muslim community.

Using Shari'ah to Advance Rights for Female Clients

2010-09-21T10:06:00.015-04:00

As a practicing lawyer over the past fourteen years, I am frequently consulted by femal Muslim clients who wish to advance their rights using Islamic law. Contrary to perception, Muslim women are more likely to raise Islamic law in Canada than their male counterparts. Some women may, in fact, be better off using Islamic law.

The situation may be no different in the United States. Rafia Zakaria, an American lawyer and Ph.D. candidate in Political Science at Indiana University, seems to suggest this as well. Here is a short piece written by Canadian law student Omar Ha-Redeye about one of Rafia's cases where she used Islamic law to enhance the rights of a female client from Jordan who had been married, abused in the U.S., and finally divorced. As I have argued in the past, Omar suggests that a sobre evaluation of the situation should make us reconsider whether Islamic law should be banned outright as was ostensibly done in Ontario (in arbitrations). A regulated and more nuanced case-by-case consideration may actually help advance the rights of women while ensuring that religious freedom is protected. In fact this was the conclusion by former Ontario Attorney General Marion Boyd, who was commissioned by the Ontario government to study the issue. Public opposition largely based on misunderstandings and xenophobia effectively led the government to reject their own report.

Here is a longer article discussing whether Islamic law may be useful in protecting Women's Rights by Rudi Stettner of the IndyPosted.

Female majority in the Federal Council of Switzerland?

2010-09-21T09:00:00.007-04:00

Tomorrow the Federal Parliament will elect two (out of seven) new Federal Councils which will start their period of office in January 2011. In July, Moritz Leuenberger, the head of the Federal Department of the Environment, Transport, Energy and Communications and member of the Swiss Social Democratic Party (SP) stepped back after 15 years in the Federal Council. One month later, Hans-Rudolf Merz announced his resignation as well. He is head of the Federal Department of Finance and member of the Liberal Democratic Party of Switzerland (FDP). After the proclamation of this double resignation, the parties started to prepare for the political contest and searching adequate candidates for the highest political office of the country.

The Swiss Federal Council is the highest executive institution with seven equal members as a collegial body. In a one year cycle one of the seven members is the president of the Federal Council. The members are elected for four years by the parliament. They represent the population and the main political parties. Since 2009 the balance in the Federal Council is constituted in two seats for the Swiss Social Democratic Party (SP), one seat to the Christian Democrat People’s Party (CVP), two seats to the Liberal Democratic Party of Switzerland (FDP), one seat to the Conservative Democratic Party (BDP) and one seat to the Swiss People’s Party (SVP). From 1959 to 2003 the so called magic formula was, however, stable and the offices of the Federal Council were in the hands of each two seats for SP, CVP and FDP and one seat for SVP. Since the SVP gained more shares in the population, this magic formula was modified and is now main bone of contention of every election of a new Federal Council.

This year however, the main candidates for the highest office are either from the SP or the FDP. Tomorrow, September 22, 2010, the parliament will most likely choose one out of the two SP candidates and one out of the two FDP candidates. The two candidates of the Swiss Green Party (GPS) and the SVP only get little support even of their own parties and therefore won’t have a real chance to be elected tomorrow.

As unspectacular the oncoming election seems, a sensation in Switzerland is most likely to happen tomorrow: for the first time in history, the highest executive authority of the country will be dominated by a female majority. The only question remaining is whether Switzerland will be represented by four or five out of seven female federal councils.

2011 Jessup International Moot Compromis Released

2010-09-19T11:50:00.003-04:00

The 2011 Jessup International Moot Compromis is now available at the ILSA website.

Justice Sotomayor

2010-09-17T16:21:00.001-04:00

Question: How does she explain her successful career?

Answer: "I am the most stubborn person in the world," she says.

Student Fights Islamophobia

2010-09-15T15:43:00.002-04:00

Yale Law School student Valarie Kaur has created the Common Ground Campaign whose purpose is religious reconciliation and renewal. Read her story, and see her video, here.

Gerald Newman

2010-09-13T19:43:00.000-04:00

Harvard Law professor Gerald Newman has been elected to the UN's Human Rights Committee, an increasingly important body tasked with the duty to hear complaints about rights abuses.

Meet Evan Kohlmann

2010-09-11T00:01:00.000-04:00

An anti-terrorism expert, 31 years old, whose first day of law school was September 11, 2001. What an interesting career he's had since then. Read about it here.

2010 World University Rankings

2010-09-09T11:10:00.000-04:00

Here they are!

Karl Rove at the Yale Political Union

2010-09-08T11:15:00.000-04:00

Say what you will about Karl Rove's years as "Bush's Brain," but don't deny that he is a very funny man.

Joe Miller

2010-09-03T09:10:00.000-04:00

Here is a fun read about Alaska politician Joe Miller's experience at Yale Law School, where he was a member of the Federalist Society.

UC Davis Law School

2010-09-02T19:40:00.000-04:00

UC Davis will open its new $30 million wing tomorrow. Here is an inside peak at the building.

Cynthia Kinser

2010-09-01T12:11:00.001-04:00

... will be the next Chief Justice of the Virginia Supreme Court. This is noteworthy because she will be Virginia's first female Chief Justice.

New Hampshire's New Law School

2010-08-31T10:10:00.000-04:00

The University of New Hampshire School of Law is now official. As of yesterday, what was once known as the Franklin Pierce Law Center is now the UNH Law School.

Karl Llewellyn's Introduction to Law School

2010-08-24T19:48:00.005-04:00

I just heard an interesting podcast of a lecture by Karl Lewellyn (an introduction to the law and the legal profession), delivered to Chicago's class of 1959. You can listen to Professor Lewellyn's podcast here.

John Yoo's First Day of Class

2010-08-22T21:39:00.000-04:00

Law school is back in session at UC-Berkeley. Which can only mean one thing: another protest greets Professor Yoo on his first day of class.

Second Private Law School in Germany

2010-08-19T23:23:00.003-04:00

German law schools are public. After the success of the first private law school in Hamburg, a second private law school in Wiesbaden will accept students starting this fall. The market is vast. Students expect to receive a better legal education when they pay tuition and the school can pick its students. And they do.

Constitutional Court of Columbia Declares that the US - Columbia 2009 Agreement on Military Bases is Unconstitutional

2010-08-19T19:25:00.002-04:00

According to the Colombian Constitutional Court, a recent agreement signed by Colombia and the US that allows US military services to use military bases in Colombia is unconstitutional under the Colombian Constitution. The Court held that signing the November 2009 agreement entailed new duties for Colombia - that is, the agreement is not an extension of already existing duties. That meant that the agreement can only be binding if it is approved by Congress. Thus, the Court asked th Executive to send the agreement to Congress for its ratification - or, of course, for its rejection. The Court did not discuss whether the content of the agreement is consistent with the Constitution; it just pointed out that, procedurally speaking, it would not be binding unless it is ratified by Congress. A summary in Spanish is available here

Ayaan Hirsi Ali and Realism in International Relations

2010-08-18T10:20:00.007-04:00

Ayaan Hirsi Ali is an interesting character. Shaped by circumstances she encountered growing up in Somalia and her subsequent career in the Netherlands, she is a vocal critic of Islam (her memoir is titled Infidel). In today's article in the Wall Street Journal, she draws upon the body of her previous works (and raises the flag of Samuel Huntington in the process) when she says that we should recognize the civilizational divide between Islam and the West, and forget any illusions about a so-called "one world" for everybody. As a result, she argues that the West should counter the active propaganda of radical Islam with its own.

I have two problems with her thesis. Her premise and her conclusion. She presupposes that the behavior of Turkey and other supposedly Muslim-moderate countries does not hew to the One World script of secular liberal democracies. As an example, she cites Turkey's support for the aid flotilla to break the Israeli blockade of Gaza and the rumblings within the Turkish corridors of power of going back to their Ottoman heydays. Wait, there's more. Malaysia and Indonesia are also clamoring for Islamic law in their countries. Her conclusion therefore is that since the Saudi sheikhs have been spreading oil dollars around promoting their brand of Islam, the West should do something in order to actively promote their civilization.

Is it always easier to find things that divide than is shared? Perhaps. Is a prescription to just look at the world for what it is, rather than what it should be more practical? Sure. But that doesn't really get us very far in terms of human progress doesn't it? Hirsi Ali forgets to mention that these countries - Turkey, Malaysia, Indonesia, are not monolithic entities. Not very much unlike Islam, too. Or the West for that matter. What does she mean exactly by it? Surely the French or Swiss approach to religion differs greatly from that of the United States. I suspect that Hirsi Ali's problem is with religion in general, though that's for another post. It seems counterproductive for the West to engage in a marketing war against radical Islam. In this war of ideas, a tolerant and liberal West (whoever might fall under this category) should be promotion enough.

Dalrymple on the Mosque Controversy

2010-08-18T07:17:00.004-04:00

I first became familiar with William Dalrymple's writing when I lived in India in the summer of 2009. I was there working for a human rights NGO based in Delhi, and I rented an apartment in south Delhi, a short distance from my job. Nothing really prepared me for India, let alone living in Delhi as a foreigner. I loved my time there, but I was also lucky to have had Dalrymple there with me. Well, not physically, but I read his "City of Djinns" when I was living there. The book is basically a history of the city of Delhi, while also telling the story of his life there for one year (he now lives with his family outside Delhi). Reading his book (and then others, all about India, past and present) introduced me to the incredibly complicated and fascinating history of that magnificent city and to India more generally, and I would recommend him to anyone who's going there.

I'm writing this now because Dalrymple, who is also a historian, has a terrific column in the New York Times, discussing the NYC mosque controversy. Unlike other people who have written about this, Dalrymple goes to great lengths to explain what is behind the Cordoba Center, and, more specifically, about Sufism, the mystical stream in Islam. No doubt Dalrymple draws upon his knowledge of Sufism from his studies of India and Pakistan, both having a rich Sufist history and present. Hearing Sufi singers sing their devotional music (called Qawwali) in the Nizamuddin neighborhood in Delhi on Thursday nights is an experience that will not be forgotten.

Anyway, read Dalrymple.

Mosque controversy

2010-08-17T18:32:00.001-04:00

Jon Stewart weighs in on Mosque controvery....

http://www.thecomedynetwork.ca/Displayblog.aspx?bpid=f9a69673-ff7d-4373-bdb4-6c8dbe6a05ba

The Hidden National Security World

2010-08-14T17:24:00.000-04:00

Here is a link to an article by Hendrik Hertzberg in the New Yorker providing a brief summary of the Washington Post’s in-depth investigative Special Report by, Top Secret America, published last month. Here are some very interesting snippets:

* Some 1,271 government organizations and 1,931 private companies work on programs related to counterterrorism, homeland security and intelligence in about 10,000 locations across the United States.

* An estimated 854,000 people, nearly 1.5 times as many people as live in Washington, D.C., hold top-secret security clearances.

* In Washington and the surrounding area, 33 building complexes for top-secret intelligence work are under construction or have been built since September 2001. Together they occupy the equivalent of almost three Pentagons or 22 U.S. Capitol buildings—about 17 million square feet of space.

* Many security and intelligence agencies do the same work, creating redundancy and waste. For example, 51 federal organizations and military commands, operating in 15 U.S. cities, track the flow of money to and from terrorist networks.

* Analysts who make sense of documents and conversations obtained by foreign and domestic spying share their judgment by publishing 50,000 intelligence reports each year—a volume so large that many are routinely ignored.

Law Schools Coming (and Going?)

2010-08-13T14:11:00.001-04:00

As Fiji gets a new law school, Louisiana College searches for a location for its own new law school, and one political candidate proposes shutting down two law schools in Illinois.

Citizenship and the 14th Amendment

2010-08-12T19:09:00.000-04:00

Two constitutional law professors recently appeared on flagship radio and television shows to discuss the recent controversy over citizenship and the 14th Amendment: Yale's Akhil Amar appeared on the Colbert Report and Harvard's Randall Kennedy appeared on The Takeaway.

Interesting Protest by Unemployed Law Grad

2010-08-11T11:45:00.003-04:00

A law school grad identifying himself as Ethan Haines says he has been on a hunger strike since Aug. 5 in an effort to prod law schools to become more transparent in employment statistics.

He sent a letter to to ten randomly selected law schools from among the top 100 according to U.S. News & World Report’s annual law school rankings. The schools incuded Chicago (No. 5) , U. Penn. (No. 7), Fordham (Tied-No. 34), Washington (Tied-No. 34), American (No. 48), Florida State (No. 54), Georgia State (No. 60), Baylor (No. 64), U. of Hawaii at Manoa (No. 72), and Pacific McGeorge (No. 98) .

The letter states:

“My name is Ethan Haines. I stand in place of countless law students and recent law graduates who have been disillusioned by law school employment statistics, commercial school rankings, and antiquated career counseling programs. I designated myself class representative since these students are not able to come forward themselves for fear that vocalizing their concerns will negatively affect their careers.

On August 5, 2010, I will begin a hunger strike to bring awareness to the concerns of my classmates. Their primary concerns are inaccurate employment statistics, ineffective career counseling, and rising tuition costs. My intention is to have these concerns addressed by law school administrators.

This hunger strike was motivated by the recent Report issued by the American Bar Association (ABA), the organization charged with regulating legal education, which investigated U.S. News & World Report’s annual law school rankings. It specifically examined the methodology behind the rankings and the public’s overwhelming reliance on these controversial rankings. The Report identified U.S. News’ rankings as having an adverse effect on law students by increasing the cost of legal education, discouraging need-based financial awards, and reducing the incentive to enhance diversity in the legal profession.

My greatest concern with the Report is its conclusion: “there is relatively little that leaders in legal education can do to change [the adverse effects of U.S. News' rankings] in the short term.” I disagree. My classmates are pawns in this legal education standoff and are powerless to resolve any of the aforementioned concerns without the full cooperation and support of law school administrators.

Effective August 5, I will reject food until the recipients of this Notice address the following pleas:
(1) Agree to comply with Law School Transparency’s (LST) employment disclosure request or state whether it anticipates declining their request. Provide written confirmation of your intent to comply with LST’s request.
(2) Agree to audit your career counseling programs for effectiveness, resourcefulness, and accuracy. Provide written confirmation of your intent to comply with this request.”

For more, see the ABA Journal.

Proposition 8

2010-08-09T20:48:00.000-04:00

This is an interesting perspective from Nelson Tebbe of Brooklyn Law School. Read more about it here.

Congratulations to Liberty University

2010-08-08T13:23:00.000-04:00

...whose law school was just recently granted full accreditation by the ABA.

Rabb on WBUR's On Point

2010-08-06T20:47:00.000-04:00

My colleague, Intisar Rabb, appeared on On Point this week to discuss Islam in America. This show is well worth listening to. Listen here.

SWM

2010-08-04T19:42:00.006-04:00

Today I talked to a friend I haven't met for some time (naturally he's a lawyer, why would anyone have friends who didn't go to law school? seriously) and he told me he worked in the legal department of a big German network, the ProSieben Sat1 Media AG. They own four major TV channels. My friend looks a bit like Barney Stinson. I asked him why he chose the job and he said that he used to be unable to make the decision whether he wanted to go into television or whether he wanted to become a lawyer and so he became a media lawyer. That completely convinced me. In Germany for some years now we have a mock word for young people between 20 and 35. We call them The SWM Generation. Because no matter who you ask in Germany they all want to do 'something with media'. Something with media is among young students what modeling is on female Facebook profiles. Everybody is modeling. (For male profiles it is: 'part time DJ'). I'm not sure my friend is truly doing anything glamouros in his job because eventually it's just a corporate legal department (they may have fancy coffee machines though). But the point is: at least he's doing something with media. It depresses me. I'll probably only do something with law.

Proposition 8

2010-08-04T17:06:00.000-04:00

Proposition 8 is unconstitutional, according to a judgment released just a few moments ago by a federal judge in California. Proposition 8 was a ballot initiative defining marriage as a heterosexual union. Californians adopted the measure by a majority in 2008.

Conscientious Objection to Same Sex Marriage?

2010-08-03T13:27:00.003-04:00

A few weeks ago I mentioned that Argentina passed the same sex marriage law. The debate is now on whether public officials would be allowed to claim conscientious objection against same sex marriage. In informal interviews, some judges have said that they would not marry same sex couples. This is a very old and always interesting topic. To my mind, there seems to be a difference between, say, a doctor claiming she will not participate in an intervention that goes against her religious views and a public official not willing to marry a couple under the civil law.

Professor James Gordley Elected to the British Academy

2010-07-30T18:21:00.002-04:00

Last year we discussed our academic heroes. I think I had not mentioned Professor James Gordley in my list, but I should have done so. As a private law scholar and professor working in the civilian tradition, I find Gordley´s work on the foundations of private law very inspiring. Most legal scholars working in the civilian tradition are, for example, unable to explain the doctrine of cause in contract law. So far, Gordley´s explanation is the only one I find clear and convincing - my students agree. Gordley´s "The Philosophical Origins of Modern Contract Doctrine" and "Foundations of Private Law" are impressive treatises on comparative private law. Congratulations!

See the mention at the British Academy website here

The End of the Electoral College?

2010-07-28T16:19:00.000-04:00

Massachusetts has come one step closer to becoming at least the sixth state to adopt a law awarding all of the state's electoral votes to the winner of the national popular vote.

Persistent oddities

2010-07-26T15:36:00.003-04:00

It would be normally funny if not for its real-life consequences. But things like this continue to confound me. According to TPM news, Tennessee Lt. Gov. Ron Ramsey, running in the primary to become the Republican contender for the governorship, says he's not sure if Constitutional guarantees of freedom of religion apply to Muslims.

That, and the recent controversy about building a mosque near Ground Zero makes me wonder if we're back to the Middle Ages. At least Jon Stewart speaks out.

Wikileaks and National Security

2010-07-26T10:57:00.004-04:00

Dubbed the current generation's Pentagon Papers, Wikileaks' Afghan War Diaries - now serialized in three major news sites (the New York Times' War Logs is here) we are again faced with the ever-familiar conundrum between free speech (in the service of transparency and accountability) and national security.

One of the most explosive news to date is the feature of a double-crossing Pakistan which has been in fact helping the Taliban insurgents all along. The US government has remarked that this puts national security at risk. Julian Assange, the founder of Wikileaks, the disseminating organization of these secret military records pertaining to the US war in Afghanistan, commented that he was doing so for reasons of transparency and for "comprehensive understanding of the war in Afghanistan and provide the raw ingredients necessary to change its course."

So what do you think? I'm not sure what kind of legal action can come out of this - Wikileaks is based in Europe - and given the precedent of the Pentagon papers case, the NY Times is safe for now at least, but this will be an interesting thing to watch out for.

The Supreme Court is More Conservative, But Hey, So is the Country

2010-07-25T07:48:00.004-04:00

In a good, though not groundbreaking, piece in today's Times, Adam Liptak details how changes in the Court's composition, most notably the retirement of O'Connor and the appointment of Alito, have shifted the Court to the right wing of the political spectrum. Indeed, as anyone who has been following the Roberts Court can tell you, the Court has taken a right turn on most of its issues. The shift to the right is fairly modest, since the Court was no bastion of progressivism even before that.

Still, what's slightly more interesting (though again, not surprising), is that this conservatism closely tracks public opinion. 30% of Americans think the Court is too liberal (TOO LIBERAL!!!), and about 50% find themselves roughly along the lines the Court has delineated. One can make the argument that the Court shapes public opinion and is perceived as an authority, and thus it is not surprising that its decisions are reflected in public opninion. But this is unlikely. It is much more likely that the Court reflects preexisting political preferences among the citizenry. This is to be expected, given, among other things, the appointment process which seeks broad bipartisan support. This is also a further validation of the attitudinalist line of research in law & political science.

This is all old hat, of course. But here are two things to think about. First, do we want the Court to be a majoritarian institution? (Barry Friedman has for years claimed that there is no counter-majoritarian difficulty because the Court reflects the majority). On the one hand, the confirmation process makes this inevitable. On the other hand, as many people have shown, when the Court acts as a counter-majoritarian institution, it is unlikely to succeed in enacting real social change, unless it is suppressing outliers. Second, why is this country so damn conservative? This is tongue in cheek, but I do wonder. As someone told me after the lawsuits against the healthcare bill started flooding the courts, a bill which would give tens of millions of Americans health insurance, the US is the only country where ideology consistently trumps self-interest.

ICJ rules Kosovo independence legal

2010-07-22T11:24:00.000-04:00

Still reading the opinion but this will obviously have huge implications for all separatist movements as the New York Times note here.

Congratulations to Obiora Okafor

2010-07-21T04:40:00.000-04:00

Obiora Okafor, a law professor at Osgoode Hall, has won the Canadian Association of Law Teachers' 2010 award for academic excellence.

I met Obiora a couple of years ago in Toronto. He is a tremendously caring and friendly person who has a wonderful manner--three qualities that make a terrific teacher.

Congratulations!

Plagiarism and other sins of the intellectual world

2010-07-20T09:39:00.004-04:00

I don't think I am airing dirty laundry out to dry. Three days ago, I was as surprised as the rest of the "interested" world to learn that the Philippine Supreme Court has been accused of plagiarizing substantial portions of three law review articles by international law profs (Evan Criddle, Syracuse, Evan Descent-Fox, McGill, Christian Tams, Glasgow and Mark Ellis, FSU) in a high-profile ruling denying a group of Filipino "comfort women" to compel the Philippine government to get a public apology and claim reparations from the Japanese government. (Main ground is that this has been settled by the 1952 San Francisco Peace Treaty already)

Evan Criddle's comments are in Opinio Juris and the Supreme Court's decision can be found here.

As this is a high profile and diplomatically sensitive case, a lot of IL professors are paying attention. Last I've heard, and I am not sure if this is true, Criddle and others will be registering a complaint with the Court. Criddle says that their arguments have been taken out of context and in fact have been used to argue the opposite in the Court decision.

This brings to mind some questions: what are the citation practices of law clerks and justices in other countries? Are academic articles often cited?

And of course, in keeping with the Kagan-mania (and the Kagan vote today), Brian Leiter also recently noted that the Senate Republicans has called attention to Kagan's handling of the plagiarism accusations that afflicted HLS(namely with Tribe and Ogletree) in the past.

Paul McDaniel

2010-07-19T18:40:00.000-04:00

Boston College has lost one of its former professors. I did not have the pleasure of meeting Paul McDaniel but my colleagues held him in very high regard. You can learn more about Paul here.

Argentina Legalizes Same Sex Marriage

2010-07-15T13:59:00.002-04:00

See the news here.
This is, I think, a huge step forwards in a historically conservative country

America's Aristocracy

2010-07-12T18:25:00.000-04:00

Is America building an aristocracy? Yes, argues my colleague, Ray Madoff, in an important op-ed in the New York Times.

Here is a taste:

American have always assumed that wealth comes and goes. A poor person can work hard, become rich and pass his money on to his children and grandchildren. But then, if those descendants do not manage it wisely, they may lose it. “Shirtsleeves to shirtsleeves in three generations,” the saying goes, and it conforms to our preference for meritocracy over aristocracy.

This assumption is now being undermined, however, through the increasing use of so-called dynasty trusts.

Read the full piece here.

Memo to Sheryl Crow

2010-07-07T08:24:00.000-04:00

I am a big fan of Sheryl Crow. But she is wrong when she states, as she did in this interview, that Tea Party members are not educated.

Perhaps she should meet West Point and Yale Law School graduate Joe Miller, a Tea Party-backed senatorial candidate in Alaska.

Is Law School Necessary to be a Lawyer?

2010-07-05T17:24:00.000-04:00

One former convict, Clarence Carter, says no. The state of Indiana says yes.

Here is part of the story:

A federal lawsuit filed by Carter against state court officials takes aim at what he sees as an unfair rule. It requires graduation from law school to take Indiana's bar exam, necessary to become a licensed lawyer.

But Carter cannot gain admission to law school:

With felony drug convictions on his record and a low score on a standard entry exam, the LSAT, his applications to 13 law schools have met with rejection.

Read the full story here.

What Referees Teach About Legal Theory

2010-07-04T20:34:00.003-04:00

While Germany is on a national (not natural) high over the Soccer World Cup I teach my students that you can learn almost everything about legal theory from watching a soccer game. And I mean it. And I mean the referees. The way they stick to the rules and they way they sometimes don't. The way they enforce the rules, but do not dare to enforce them when outcry (politics) would be too big. The way they always have to maintain acceptance for their decisions. And the way the FIFA, the world soccer association refuses to allow video proof with regards to 'close' decisions. The FIFA knows a lot about law. When you allow too much judicial review or too much public review, the law loses acceptance. The law lives off of a metaphysical presumption that it is valid. And that it is not subject to entire comparison with what is 'really just' and 'really fair'. Law is not fairness. Law might be (and should be) fair in most regards. But it is not identical with fairness. This is not bad. It is part of an important step in civilization.

Is This One the Best Goal of the World Cup So Far?

2010-07-01T14:27:00.001-04:00

Carlos Tévez against Mexico

New Dean at Suffolk Law School

2010-06-29T12:26:00.001-04:00

Congratulations to Camille Nelson, a fellow Canadian!

A Graduation Long Overdue

2010-06-28T15:26:00.000-04:00

This is a touching story that reminds us how far the United States has come--and how far it has left to go.

How to Become President of the United States

2010-06-26T11:11:00.001-04:00

It turns out that modern presidents have a lot in common. Beginning with their respective resumes. Take a look here.

Prime Minister Returns Home

2010-06-25T07:25:00.001-04:00

Dean Barrow, the Prime Minister of Belize, returns to his law school alma mater today. Barrow is a graduate of the University of Miami Law School.

The World's Worst Dictators

2010-06-25T04:20:00.000-04:00

Who is the worst of the worst? One activist compiles his own list here, leaving no doubt that evil abounds in our world.

Thank you to Dylan Hayre for sending me a link to the short article--including photos of each dictator--which appears the current edition of Foreign Policy magazine

The Passing of William Richardson

2010-06-24T16:25:00.000-04:00

Farewell to a "champion of all of Hawaii's people," to repeat the tribute given by Hawaii Senator Daniel Inouye. Richardson, for whom the University of Hawaii Law School is named, was formerly Chief Justice of the Hawaii Supreme Court. Read more about him here.

ad hoc legal pluralism a.k.a. World Cup Courts

2010-06-21T08:58:00.003-04:00

The Guardian has an interesting article on the establishment of fifty-six World Cup Courts by FIFA, with the permission of the government of South Africa. First, security goes on strike. Second, this - apparently South Africa was keen to get rid of the crime-infested image prior to the start of the matches. The Guardian calls this as "justice branding" and worries that the International Olympic Committee might do the same for London in 2012.

Even if these courts only prosecute petty crimes to say the least, this poses a question as to what is unquestionably a delegation of sovereignty by South Africa. Who do the FIFA prosecutors officially work for? Or would these World Cup courts take jurisdiction, if say, God forbid, there is a terrorist attempt in the event?

Death by Firing Squad

2010-06-18T23:52:00.000-04:00

Believe it or not--I did not believe it until I read the news article--the state of Utah used a five-person firing squad to execute a convicted murderer. Shocking, in my view.

Long Awaited Air India Bombing Inquiry Report Released

2010-06-17T13:06:00.006-04:00

The long awaited report of the Commission of Inquiry into the Investigation of the Bombing of Air India Flight 182 is finaly out today. Confirming what many security experts have believed for some time, former Supreme Court of Canada justice John Major wrote that Canada's air security system needs sweeping changes to ensure the safety of travellers. Flight 182 went exploded over the Atlantic Ocean near Irland on June 23, 1985, killing all 329 people on board.

The four volume report calls for ramped-up powers for a new national security adviser to oversee communication between agencies and settle disputes. To be more explicit, Justice Major blasts government security agencies for their handling and analysis of information leading up to the bombings.

The report notes that the Royal Canadian Mounted Police (RCMP) and the Canadian Security Intelligence Service (CSIS) were in possession crucial pieces of information "that, taken together, would have led a competent analyst to conclude that Flight 182 was at high risk of being bombed by known Sikh terrorists in June 1985."

Justice Major also called the existing arrangements and practices of information-gathering agencies "wholly deficient" in their sharing of information. The report blames this deficiency for "the worst mass-murder in Canadian history."

Should This Be the Last Generation?

2010-06-17T10:04:00.003-04:00

A recent article by Peter Singer in the New York Times has spawn an interesting discussion on "intergenerational justice." As Singer suggests, for this issue, it is worth looking into Part IV of Derek Parfit´s "Reasons and Persons."

Yale Law Faculty/Students vs. Yale Law Alum

2010-06-17T01:20:00.001-04:00

Who will win?

All kidding aside, serious questions of law and justice rest beneath the surface of Yale vs. Yale.

Cultivating the Rule of Law in Afghanistan

2010-06-16T10:23:00.003-04:00

This strikes me as one of the most important things that can be done to help Afghanistan govern itself well.

The Most Famous Harvard and Yale Students

2010-06-15T09:45:00.000-04:00

These two lists come courtesy of the Wall Street Cheat Sheet. Here is the Harvard list, and there is the Yale list.

Missing Influences in the Legal Academy

2010-06-14T18:04:00.005-04:00

John Inazu, at the Faculty Lounge, asks an interesting question to readers outside the legal academy: Who are the top three thinkers that you doubt most law professors read but wish they did? Current suggestions include Sheldon Wolin, Ludwig Wittgenstein, David Harvey, Simone de Beauvoir, and Amartya K. Sen . You can follow the discussion here.

From Dean to President?

2010-06-14T09:31:00.002-04:00

EagleIonline, the informative and always interesting student-run website at Boston College Law School, reports that Dean John Garvey is one of two final candidates for the presidency at Catholic University.