Constitutional Daily

Founding Principles

The Tenure Paradox - Robot pimp

Slap on the Wrist for "Non-Consensual Sex" - Lampshade, Esq.

Intelligence: The Gathering - Graphic and Gratuitous

Grads are the New Illegals - Robot Pimp

Meet Entitlement Eric - Robot Pimp

Wherein I Solve World Peace - Lampshade, Esq.

A Necessary Delusion - Shadow Hand

Do you even need to shave overhead? - Lawyerlite

LSAT Jenga - Publius Picasso

Time, Place, and Manner

...Should have some links here or something.


Constitutional Daily

3 Kinds of Common Occupational Accidents that Often Result in Work Injury Lawsuits

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[Sponsored Content]

Work injuries are a lot more common than many people think, and until you're the one being injured, you probably won't give much attention to occupational hazards, unless your job involves a particularly hazardous work environment or inherently dangerous processes. Many jobs are more dangerous than you'd expect, especially in positions that require frequent movement, heavy lifting, or the use of heavy machinery.

Work injury lawsuits typically occur when the injured employee believes their injury was caused by their employer's neglect or mismanagement. Any time an employee is injured at work they should investigate the opportunity to receive worker's compensation and/or compensation for the pain and suffering caused by the possible lack of proper management. In the following paragraphs we'll go over three of the more common kinds of work-related injuries that sometimes result in lawsuits against the employer.

1. Restaurant Kitchen Injuries

Working in a restaurant kitchen can be extremely dangerous if an employee is not careful or if management staff is not diligent about educating employees and maintaining a safe work environment through established company policies. Common kitchen injuries include slip and falls, burns, strains caused by transporting items, and cuts. In many cases the injury is caused by lack of caution on the part of the employee, but in other cases the injury is a direct result of a manager not taking the proper precautions or providing inadequate work orientation material. For example, if a manager does not tell an employee to wear non-slip shoes, or allows the employee to work in the kitchen knowing they are not wearing non-slip shoes, then any resulting slip and fall would be the fault of the manager. In addition to contacting a professional work injury lawyer, anyone who has been injured by falling or slipping in a restaurant kitchen should also become familiar with the slip and fall law.

2. Heavy Machinery Accidents

Heavy machinery accidents can happen in a wide variety of forms, from minor marks and bruises to severe, life-changing accidents. People that work in the building, agriculture, warehouse management, factory work, and road construction injuries are especially at risk for being injured during the use of heavy machinery at work. For example, oil mining equipment can be especially dangerous to operate if it hasn't been inspected for necessary repairs or maintenance. Faulty oil mining equipment can result in severe or even fatal injury, which is why the companies who employ oil miners are responsible for making sure their employees are using safe and well-maintained equipment. Anyone injured in the oil field should seek advice from experienced oilfield injury lawyers like Slack & Davis to determine whether they may be able to receive additional compensation for the pain and suffering endured due to the neglect or mismanagement of their supervisors.

3. Construction Injuries

Construction injuries are extremely common and can really include any kind of injury from minor to major, depending on the equipment and processes involved in the project. In some cases, construction workers are injured because their supervisor fails to take the necessary precautions or puts the crew in an unsafe situation. If the construction company provides poor quality equipment and the injury occurs because of this lack of oversight or unsafe building conditions, then an employee may also have a case for a work-related injury lawsuit. If a construction worker is injured doing something one of their supervisors instructed them to do, and the appropriate warnings or guidelines were not introduced first, then that employee has a good chance of suing their employer for neglect to provide the proper equipment, preparation, or precautions. Thus, construction supervisors should be adamant about conducting detailed safety checks to prevent liability in the event of a worker injury.

Always Contact a Work Injury Lawyer

Regardless of whether you feel the injury was the fault of your manager or yourself, you should always contact a work injury related lawyer if the injury is bad enough to make you miss work or endure pain and suffering while continuing work. In many cases people don't even realize that they may be able to receive a larger settlement of cash from their employer, so discussing your case with a professional during a free consultation can only help your cause.

Law Schools Have Not Yet Hit Bottom

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LSAC has announced a 6.6% increase in June LSAT takers, which could indicate more applicants for the next 1L class.

The National Law Journal has reported that "Legal educators are cautiously optimistic that the 2015-16 academic year will mark the low point for law school enrollment."

Al Brody at The Faculty Lounge has repeatedly speculated that the enrollment numbers have hit bottom.

Brian Leiter even made it "official," stating "It's official, the enrollment decline is over!"


To quote Jaime Lannister, "The war's not won."

Even if enrollment numbers reverse direction and increase next year, we still won't have hit bottom. The reason is quite simple: students (typically) stay in law school for 3 years. When that math enters the calculation, we can see how far from the bottom schools really are.

In 2013 there were 59,400 applicants, in 2014 there were 55,700, and for 2015 there's a predicted 54,130. If there should end up being a 6.6% increase in applicants for 2016, the numbers would only rise to 57,700. That's more than the 2015 number, but the appropriate number to compare it to is 2013. That is the cohort of students the new 1Ls are replacing, and in that comparison the numbers are still lower.

Looking at a few schools' enrollment stats illustrates how we're not yet at the bottom. Let's project a 2% decline in 2015, followed by a 6% increase in 2016.

At Golden Gate, the 2013-2014-2015 numbers are 150-137-134, total 421. The 2014-2015-2016 numbers would then be 137-134-142, total 413. Despite seeing the 1L class increase by 6%, the total enrollment would still decline by 2%.

At American university the 13-14-15 numbers would be 473-429-420, and 14-15-16 would be 429-420-445. Some quickie math confirms that 473 is larger than 445, indicating a total decline of 28 students despite a 1L class size increase of 25 students.

At Florida International we're looking at 158-144-141, total 443, and then 144-141-149, total 434.

It's certainly not every school that's going to be grinding along the bottom for at least an extra year before they can say "It's official, the enrollment decline is over." But, if the school saw its 2014 class decrease by 4% or more compared to 2013, then it should be predicting an even smaller total enrollment in the 2016-17 school year, not an increase.

Many schools will see this be their worst year. Indeed, some schools already have their worst years behind them. But that's not where the real action is. The schools most likely to see a decline next year are also the ones that have already slipped the furthest. We'll see some school's conditions go from Serious to Fair, or Fair to Good, but the schools we should be looking at are the ones in Critical condition. It's not yet safe to say they'll be upgraded to Serious, rather than downgraded to Deceased.

Something Mundane Happened On The Way Out Of Chipotle

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Hillary Clinton's presidential campaign is barely into its infancy (after a very long gestation period, mind you) and she's already committing some pretty remarkable gaffs. According to a Chipotle manager, when Clinton visited the store recently with a $20 order, she didn't leave any money in the tip jar. [Bloomberg]

The question of Clinton tipping at Chipotle was first raised by Rush Limbaugh who said on his radio program:

I would like to know if she left anything in the tip jar, because that would be an indication that she understands the average, ordinary, everyman that she seeks to represent.

There's just one slighty, teensy, itty bitty problem with Limbaugh's criticism. You know who else doesn't tip at Chipotle? The average, ordinary, everyman. Clinton doesn't just understand the everyman, she embodies the everyman!

And you know why she embodies the everyman? Because she shares a psychic link to so many ordinary working folks. Clinton is adept at using the Dark Side, and is constantly in a battle meditation to enhance the skills of her campaign team. Why else does she, day after day, continue to more closely resemble Emperor Palpatine?

And it's that same Dark Side that makes get closer and closer to looking like Folks, it's going to be a very long campaign season.


In other news, Chris Christie was spotted at Chipotle waiting until his meat had been added to his burrito before telling the staff he'd like double meat, using the classic fat guy trick to get the most meat possible at Chipotle.

When A Law School Shill Goes Full Derp

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Those of you who follow the debate over the value of JDs (especially post-Lehman) are likely familiar with Michael Simkovic's research which found a million dollar life time earnings premium. Criticism, quite rightly, abounded. One of the most glaring problems was the claim about how many hours per week lawyers work compared to the rest of the workforce (warning, your sides may split):

We find that, after applying controls, law degree holders typically work 3.9 hours more per week, or about 45 minutes per day.

While the rest of the world is working 9-5 jobs, lawyers are working 9-5:45. Tell that to your boss today and see how things go...

This problem illustrates one of the biggest flaws in looking at the JD premium, it treats the JD like a passive investment. Put in your $150,000 of tuition and 3 years and (maybe) pass the bar, then just go about the rest of your life as usual and you'll see a $20,000 per year increase to your pay check. Anyone who's ever worked a day as a lawyer (as Simkovic briefly did) should know that's not how it works. The JD will bring many people an increase in their hourly earnings, but most of the earning premium has to be worked for. You work longer, more stressful hours. The true earnings bonus comes from removing the 40 hour cap on most white collar jobs, and allowing you to work 60, 70 or 80 hours a week. Now, if you happen to enjoy legal work, that's going to be an awesome situation for you. If you don't like it, then the ability to work longer, harder hours isn't a bonus at all.

But that's all beside the point for what we want to discuss today. We can kinda see how maybe if you come across some not so reliable data and you've got a bunch of confirmation bias in your head, you won't question it too much and just land on the conclusion you already wanted to reach. That's just regular derp. In a recent post on Brian Lieter's blog, Simkovic went full derp.

Simkovic claimed that when schools report salary data it is not unethical to not disclose response rates. He defends this first by saying it's standard practice. That argument is a non-starter, because it's entirely possible that the standard is just to engage in unethical behavior. The "everyone else is doing it" argument doesn't fly.

His next line of reasoning is that prospective students are subject to information overload, so the data needs to be kept away from them:

Sometimes, too much information can be distracting. It’s often best to keep communication simple and focus only on the most important details.

Remember those lawsuits from a few years back when students claimed they were deceived by their schools about employment prospects? They lost because the courts found they were sophisticated consumers capable of seeing through the schools' puffery and other bologna. Simkovic is now arguing the opposite, that including a response rate would be too much and hurt their precious widdle bwains.

The issue here is the word "best." Yes, if your goal is to increase enrollments, especially among students paying full sticker price, it is "best" to keep your salary data as "simple" (read: favorable) as possible. If your goal is to help prospective students make a fully informed decision, then no. God fracking no, it's not "best" to exclude the friggin' response rate.

But wait, Simkovic hasn't gone full derp just yet.


His last defense of excluding response rates is that it doesn't matter because, well... we'll let you see it for yourself (emphasis added):

Nonresponse is not the same thing as nonresponse bias. Law school critics do not seem to understand this distinction. A problem only arises if the individuals who respond are systematically different from those who do not respond along the dimensions being measured. Weighting and imputation can often alleviate these problems. The critics’ claims about the existence, direction, and magnitude of biases in the survey data are unsubstantiated.

High non-response rates to questions about income are not a sign of something amiss, but rather are normal and expected. The U.S. Census Bureau routinely finds that questions about income have lower response rates (higher allocation rates) than other questions.

Law school critics claim that law school graduates who do not respond to questions about income are likely to have lower incomes than those who do respond. This claim is not consistent with the evidence. To the contrary, high-income individuals often value privacy and are reluctant to share details about their finances.

His claim is that people who don't answer salary data might not be any different than those who do, so the low response rate doesn't affect the numbers, but even if they were different, non-responders probably earn more, so the salary data schools claim is actually lower than the real earnings.

If you just stepped in something, it would be Simkovic's brains leaking out on to the floor.

He backs up this claim to a citation about how urban lawyers are less likely to respond than rural lawyers, and urban lawyers earn more, so blah blah blah. That's some evidence to back up his claim, but it's hardly compelling. It's even less compelling if you just sit down with a couple NALP reports and actually look at the salary data and response rates. We'll grab a few at semi-random (focusing on schools that have a lot of students in both large and small firms, so we can see if there's a difference in response rates):


#1. American University 2013:

53 students were employed in firms with 101+ lawyers, 47 (89%) provided salary data, which ranged from $135,000 to $160,000.

49 students were employed in firms with 2-10 lawyers, and only 27 (55%) provided salary data, which ranged from $50,000 to $65,000, the lowest range for any firm size band.


#2 Boston College 2013:

75 students in 101+ firms, 74 (99%) provided salary data, ranging from $145,000-160,000.

26 students in 2-10 firms, 15 (58%) provided salary data, ranging from $53,000-65,000.


#3 Fordham 2013:

164 students in 101+ firms, 163 (100%, yay rounding!) provided salary data, ranging from $132,500-160,000.

38 students in 2-10 firms, 23 (61%) provided salary data, ranging from $52,500-75,000.


#4 George Mason 2013:

23 students in 251+ firms*, 21 (91%) provided salary data, ranging from $135,000-160,000.

37 students in 2-10 firms, 19 (51%) provided salary data, ranging from $42,500-70,000.

*4 students were in 101-250 sized firms, but NALP does not report salary data when there are fewer than 5 people in the category.


#5 Pepperdine 2013:

16 students in 101-250 and 500+ firms*, 16 (100% without rounding!) provided salary data, ranging from $76,000-160,000.

50 students in 2-10 firms, 33 (66%) provided salary data, ranging from $52,000-75,000.

*Only 3 students in 251-500 firms


#6 Wayne State 2013:

14 students in 101-250 firms, 14 (100%) provided salary data, ranging from $100,000-100,000. (Maybe this is a good time to note the salary figures are the 25th to 75th percentiles.)

39 students in 2-10 firms, 11 (28%) provided salary data, ranging from $31,200-52,000.


Do you see a trend? We sure as hell do. People who do not respond are, in Simkovic's words, "systematically different" from those who do respond. Nearly everyone working in a large firm provides salary data. Only about half of those working in small firms do. That's a systematic difference. And now here comes the full derp:

Simkovic thinks that the people working in small firms not reporting are withholding the data because they're making bank.

At virtually every single school the lowest salaries are found in the 2-10 sized firms. But according to Simkovic, this is only because the high earners aren't reporting their salaries. But only at small firms! High earners at large firms aren't so shy about their salaries. The numbers are only off because there's a bunch of tiny firms paying $160,000 right out the gate, and no one is talking about them.

He's just one step away from claiming that the lack of news coverage about the Illuminati is proof that the Illuminati controls the media.

Even the Columbia School of Journalism Screws Up the UVA/Rolling Stone Rape Case

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So by now you've probably heard all about the story of a gang rape at a frat party at UVA that was published in Rolling Stone in December of last year. And you've probably heard about the subsequent investigation into the story which showed that the attack probably didn't happen, at least not remotely close to the way the purported victim described. Rolling Stone writer Sabrina Erdely was rightly criticized for publishing the story with insufficient fact checking and a healthy dose of deception (such as attributing quotes that were gathered second hand, without noting that the speaker hadn't ever been interviewed).

After the fall out from the article, Rolling Stone asked the Columbia School of Journalism to do a full investigation to see just what exactly went wrong. Though Columbia points to several problems in the initial fact gathering and fact checking, the main problem can really just be explained with the opening paragraph of the report:

Last July 8, Sabrina Rubin Erdely, a writer for Rolling Stone, telephoned Emily Renda, a rape survivor working on sexual assault issues as a staff member at the University of Virginia. Erdely said she was searching for a single, emblematic college rape case that would show "what it's like to be on campus now … where not only is rape so prevalent but also that there's this pervasive culture of sexual harassment/rape culture," according to Erdely's notes of the conversation. [Rolling Stone]

Every college freshman will recognize this style of writing. Conclusion first, then find whatever quotations are needed to support your case. The result is generally a bunch of crap.

But, that's not what we're going to focus on today. While Columbia generally gets its criticism of Rolling Stone right, they also get a bit sloppy with the facts and fail to do their own checking:

Erdely and her editors had hoped their investigation would sound an alarm about campus sexual assault and would challenge Virginia and other universities to do better. Instead, the magazine's failure may have spread the idea that many women invent rape allegations. (Social scientists analyzing crime records report that the rate of false rape allegations is 2 to 8 percent.) At the University of Virginia, "It's going to be more difficult now to engage some people … because they have a preconceived notion that women lie about sexual assault," said Alex Pinkleton, a UVA student and rape survivor who was one of Erdely's sources.

Social scientists analyzing crime records did not report that the rate of false rape allegations is 2 to 8 percent. What they did report is that 2 to 8 percent of cases are classified as false rape allegations. Might not sound like much of a difference, but it turns out to be a very substantial one. According to the article published in the journal Violence Against Women: "To classify a case as a false allegation, a thorough investigation must yield evidence that a crime did not occur."

The 2-8% figure is not the rate of false rape allegations, but instead the rate of allegations where there is substantial evidence indicating that it's probably a false allegation. Something close to the Clear and Convincing standard.

To see just what makes Columbia's claim so absurd, just imagine running the numbers in the other direction. How many investigations produce significant evidence that the allegations are true? According to RAINN, for every 32 reports to the police, 7 will lead to an arrest, 3 will be referred to a prosecutor, and 2 will result in a felony conviction. Assuming only cases with substantial evidence are referred to prosecutors, the rate of true allegations would only be about 10-22%.

But how could 2-8% of cases be false while only 10-22% are true?

Because in the vast majority of cases, we don't know either way. That's not at all how the Columbia School of Journalism presented it though. And you'd think in a story about bad fact checking and shady reporting practices, they wouldn't have played so fast and loose with the facts. Again, we see the same tricks employed by your typical college freshman: Find a source that comes close, misrepresent what it says by just a little bit, and hope the professor doesn't bother to do a careful check.

University of Oklahoma Declares War on the Constitution

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As anyone with an active social media life is probably already aware, a group of fraternity brothers at the University of Oklahoma performed a racist chant on a bus, some very smart person decided to record it, and some even smarter person decided to leak the video. Of course, frats engaging in offensive behavior is nothing new. What makes this case special is the university's response:

To those who have misused their free speech in such a reprehensible way, I have a message for you. You are disgraceful. You have violated all that we stand for. You should not have the privilege of calling yourselves "Sooners." Real Sooners are not racist. Real Sooners are not bigots. Real Sooners believe in equal opportunity. Real Sooners treat all people with respect. Real Sooners love each other and take care of each other like family members.

Effective immediately, all ties and affiliations between this University and the local SAE chapter are hereby severed. I direct that the house be closed and that members will remove their personal belongings from the house by midnight tomorrow. Those needing to make special arrangements for positions shall contact the Dean of Students.

All of us will redouble our efforts to create the strongest sense of family and community. We vow that we will be an example to the entire country of how to deal with this issue. There must be zero tolerance for racism everywhere in our nation.

David L. Boren President University of Oklahoma

Most people have cheered on President Boren. Most people aren't (very) racist, most people deplore racism, and more people like it when racists get their comeuppence. Most people haven't bothered to consider what "public" in "public university" means.

Here in the good ol' USA, we have freedom of speech, protected by the First Amendment. And with the passage of the Fourteenth Amendment a few years ago, the First Amendment applies to the states and other local government agencies. And specifically, it applies to public universities. The First Amendment regulates public universities. The First Amendment regulates public universities. Really can't say this enough, the First Amendment regulates public universities.

[T]he precedents of this Court leave no room for the view that, because of the acknowledged need for order, First Amendment protections should apply with less force on college campuses than in the community at large. Quite to the contrary, the vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools." Healy v. James (1972) (internal citations omitted)

The First Amendment regulates public universities. And you know what the First Amendment doesn't allow? View point discrimination. You know what evicting someone because of their expressed views is? View point discrimination. You know who can't do that? A public university.

But wait! You might say that the school isn't saying they can't hold those views. It's just saying they can't use university space for their private racist social club. And there's no right to use space for your private club, now is there? That might be a good argument, if only Healy v. James was specifically about the ability for a university to deny recognition of a student group based solely on that group's objectionable views. The First Amendment doesn't just prevent the government from directly prohibiting speech, it also prevents it from punishing people in other ways based on their views.

The law really couldn't be more clear on this. OU's anti-discrimination policy couldn't be more clear on this: "Members of the University community enjoy significant free speech protections guaranteed by the First Amendment of the United States Constitution. This policy is intended to protect members of the University community from discrimination not to regulate protected speech." And even President Boren's message couldn't be more clear. He acknowledges that the students have the right to free speech, but is punishing them for what he sees as a "misuse" of that right.

If your right to free speech is limited to only those words which President Boren deems acceptable, then it isn't free speech. "There must be zero tolerance for racism everywhere in our nation." President Boren really needs to go back to a high school civics class. Individuals can choose not to tolerate racists or racism. But government actors? The Constitution requires tolerance, no matter how abhorrent the view.

The Changing Definition of Legal Scholarship

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The Touro Law Review has published an issue focusing on "Engaged Scholarship and the Changing Definition of Scholarly Work", which has been a rather hot topic lately in the legal blogosphere. The debate tends to focus on the question of legal scholarship's value. On the one side are the entrenched academics who argue that scholarship influences not just other scholars, but judges and practitioners, and also makes them better professors. On the other side are the reformers who assert that the vast majority of scholarship not only doesn't influence anyone, but is hardly read by anyone, and with such little impact it's probably not worth spending over half a billion dollars a year on. (That price would be roughly half of professor salaries, assuming they spend about half their time on scholarship. If you add in interest paid, since it's debt financed, you're looking at maybe three quarters of a billion.)

But today we're going to look at the debate in a different way. What if legal scholarship is just objectively bad?

In announcing the new Touro Law Review issue, Patricia Salkin write on The Faculty Lounge:

Arcila of Touro Law Center offers an introductory piece, The Future of Scholarship in Law Schools, beginning with a discussion of the scholarly obligation to engage in research and scholarship noting that despite the waves of anti-intellectualism, scholarship “…influences public and academic discourse, legislation, and judicial decisions, all of which guide our conduct.” He asserts that even with the increased emphasis on experiential legal education, scholarship deserves prominence not only because it is “central to the role of institutions of higher education as creators of knowledge and fonts of ideas about law’s role in society, government, and business,” but also because such efforts also help to inform our teaching role by deepening knowledge and thinking on the subject matters we teach.

If one were to reach Arcila's article, they would expect to find evidence that scholarship influences discourse, legislation, and judicial decisions. Looking at the article we can easily find the exact language Salkin quoted:

Waves of anti-intellectualism come and go.4 We are in the midst of one now, a wave whose crest may even have reached the highest levels of our judiciary.5 But it is undeniable that legal scholarship has had, and continues to have, an impact on the most important legal issues that confront us.6 It influences public and academic discourse, legislation, and judicial decisions, all of which guide our conduct.

In a debate over the impact of legal scholarship, in which one side is clearly denying the impact, it's pretty odd to call such impact undeniable. Of course it can be denied. One only need to spend a few minutes on The Faculty Lounge or PrawfsBlawg to see it being denied. The denial happens all the time. What's more interesting of course is if the deniers are in the right, or if they're ignoring what should be convincing evidence. So to that end, let's check out ol' footnote 6 there:

Professor Robert Condlin has usefully collected citations exemplifying “numerous contributions of legal scholarship to the development of law over the years,” in areas as important and diverse as privacy, tax, commodities trading, antitrust, property, environmental protection, copyright, consumer financial protection, product safety, “and dozens of others,” and also pointed to “the systemic contributions of [numerous other] scholars.” Robert J. Condlin, “Practice Ready Graduates”: A Millennialist Fantasy, 31 TOURO L. REV. 71, 80-81 n.28 (2014). The law and economics movement, including Coase’s Theorem and more, has had terrific influence.

Alrighty, off to Issue 31 to find Condlin's article. The language Arcila is quoting is actually from a footnote, and a whopper of a footnote at that! In fact, the majority of Condlin's article is footnote text, with several pages offering only a few lines of the essay itself. Here's the relevant excerpt from FN28:

In this same spirit, it depicts legal scholarship as a drag on education, adding to its cost without producing any corresponding benefit, ignoring the numerous contributions of legal scholarship to the development of law over the years. See, e.g., Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890) (privacy); Boris I. Bittker, Tax Shelters, Nonrecourse Debt, and the Crane Case, 33 TAX L. REV. 277 (1978) (tax); Saule T. Omarova, The Merchants of Wall Street: Banking, Commerce, and Commodities, 98 MINN. L. REV. 265 (2013) (commodities trading); ROBERT H. BORK, THE ANTITRUST PARADOX (2d ed. 1993) (antitrust); Charles A. Reich, The New Property, 73 YALE L. J. 733 (1964) (property); Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471 (1970) (environmental protection); Robert C. Denicola, Applied Art and Industrial Design: A Suggested Approach to Copyright in Useful Articles, 67 MINN. L. REV. 707 (1983) (copyright); Elizabeth Warren, Unsafe at Any Rate, DEMOCRACY, Summer 2007, available at (consumer financial protection); GUIDO CALABRESI, THE COST OF ACCIDENTS: A LEGAL AND ECONOMIC ANALYSIS (1970) (product safety); and dozens of others. See THE CANON OF AMERICAN LEGAL THOUGHT (David Kennedy & William Fisher III eds., 2006) (describing twenty law review articles that have had a profound effect on the shape of American law and legal institutions); Michelle M. Harner & Jason A. Cantone, Is Legal Scholarship Out of Touch? An Empirical Analysis of the Use of Scholarship in Business Law Cases, 19 U. MIAMI BUS. L. REV. 1 (2011) (describing the influence of legal business law scholarship on the decisions of the Delaware Supreme Court). It also ignores the systemic contributions of scholars like Henry Hart and Albert Sachs, Mitchell Polinsky, Richard Posner, and numerous others, who changed the ways in which generations of judges and lawyers go about their business and think about law and legal institutions. Scholarship is the legal system’s seed corn, and destroying seed corn eventually makes an ecosystem uninhabitable.

So much text here, it's useful to remember how Arcila described this. It's a collection of citations exemplifying the numerous contributions of legal scholarship, and this collection is used to back up the claim that legal scholarship's past and continuing impact is undeniable. You know what's missing from the list though? The impact! Most of the list just references the articles themselves, and does nothing to demonstrate their impact. Consider the difference between these two statements:

Many people find hamburgers to be delicious and a great value. See, for example, Five Guys.

Many people find hamburgers to be delicious and a great value. See, for example, Zagat's review of Five Guys.

The first just says a burger place exists. The second points to a source that will speak to whether or not the burgers are delicious and a great value.

We're also going to note that not all of the authors are relevant to Arcila's argument. Samuel Warren, Louis Brandeis, and Albert Sachs weren't professors. Henry Hart is a poet and hasn't even written any legal scholarship. Perhaps Condlin meant Herbert Hart (better known as H. L. A. Hart). But back to the non-prof legal scholars. Yes, their work was impactful. But, the debate is over the value of scholarship produced within the academy. If practitioners or others want to write articles, no one is going to criticize them for doing so. They do it on their own time and dime. The debate is over scholarship produced by legal academics which is paid for with debt-financed student tuition dollars. Arcila even acknowledges that it's a debate over the academy, not about legal scholarship from other sources, saying "Although there are many ways of approaching this issue, fundamentally, it revolves around the future role of research and scholarship within law schools" (emphasis added). A list which includes (and even leads off with) non-professor articles actually helps to undermine the argument. If the academy was the only place producing scholarship there's a stronger argument in favor of it, but it's clearly not.

The Condlin list contains two other interesting entries though, two sources which purport to speak to the impact of legal scholarship. So now we need to dig into those two. First up, the Canon of American Legal Thought (and fyi, to all the novice writers out there, you can remove all caps when you're citing a source). Four of the articles is discusses are written by non law professors (we're not counting Coase because he became a law prof after writing his most influential work -- you don't get to hire someone after the fact and then claim his work as the work of your institution).

Next, the Harner and Cantone article on business law cases. Long story short, courts are generally citing legal articles less, but are citing specialty journals more. But that's not the end of the story. When it comes to citing specialty journals, courts are slightly more likely to cite a piece written by a practitioner than one written by a professor.


Let us once again return to Arcila's claim: "[I]t is undeniable that legal scholarship has had, and continues to have, an impact on the most important legal issues that confront us. It influences public and academic discourse, legislation, and judicial decisions, all of which guide our conduct." Her evidence is a list put together by Condlin which consists of three parts. First, Condlin's own list which fails to demonstrate any impact. Second, the Canon, which does demonstrate impact, but also acknowledges quite a bit of non-lawprof impact. And finally, the business law study, which acknowledges less impact generally, but more among specialty articles, but puts professor impact on par with practitioner impact.

Arcila's claim, while poorly sourced, is in fact true. Legal scholarship does have influence and impact. Kinda. Some legal scholarship has influence. Based on her sources, business specialists and a few dozen philosophers have impact. What she's failed to demonstrate is that the rank and file law professor's scholarship published in a typical law review will have any sort of meaningful impact. And that's what the debate is over. Not the existence of superstars, but the mass of profs consuming half a billion dollars a year in research.

And this brings us back to the initial point. We're not looking at the monetary value of Arcila's article, or the chance that it will help him in his teaching later on. We wanted an objective look. Objectively speaker, Arcila has made a claim which (1) does not speak to the debate, and (2) is poorly supported. Objectively, that is bad scholarship. So much for that "Changing Definition."

Harvard Law Prof Shows How Schools Are Circling The Orwell/Kafka Drain

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A recent article by Harvard law professor Janet Halley on the Harvard Law Review's forum (aka: blog) contains a whopper of a story:

I recently assisted a young man who was subjected by administrators at his small liberal arts university in Oregon to a month-long investigation into all his campus relationships, seeking information about his possible sexual misconduct in them (an immense invasion of his and his friends’ privacy), and who was ordered to stay away from a fellow student (cutting him off from his housing, his campus job, and educational opportunity) — all because he reminded her of the man who had raped her months before and thousands of miles away. He was found to be completely innocent of any sexual misconduct and was informed of the basis of the complaint against him only by accident and off-hand. But the stay-away order remained in place, and was so broadly drawn up that he was at constant risk of violating it and coming under discipline for that.

Now we do have take such stories with a grain of salt. Halley doesn't say that she's independently verified his story and students are prone to misinterpreting everything. There's also been plenty of stories involving rape that are devoid of credibility, like the UVA story run in Rolling Stone or Lena Dunham's attack by the "campus Republican." But, if Halley's assertions are correct, this creates a dangerous new precedent. On college campuses you might be punished (and losing your job, your home, and not being able to attend classes is a pretty serious punishment) just for reminding someone of a rapist. This is truly bizzarro territory.

But wait! It gets worse! Last year down the coast at Occidental College, sociology professor Danielle Dirks who helped found the school's Sexual Assault Coalition (that's an anti- group, not a pro- group, btw), created a profile for likely rapists when trying to convince a female student to accuse another of rape. According to Professor Dirks, "[John Doe] fits the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports] team, and was from a good family."

If you can be kicked off campus for reminding a student of a particular rapist (who isn't you), then it doesn't seem like much of a stretch to kick someone off campus for reminding them of rapists generally. After all if we believe that 1 in 4 college women will be raped, it's basically a guarantee that someone on campus will have been raped by someone who meets the profile. And what are we going to do, ask women to come forward and declare that they're being triggered? That runs the risk of re-traumatizing a victim.

Just look at the reactions to the sleepwalker statue at Wellesley. Students made complaints saying the statue of paunchy, pale, sleep walking man in ill-fitting white briefs was "a source of apprehension, fear, and triggering thoughts regarding sexual assault for some members of our campus community. Another student said "I know people who have had triggering responses to the statue. The statue was put in a public place without students’ consent.” No one there (at least no one who talked to the major press outlets) claimed that they themselves were actually triggered, or that the statue reminded them of a real rapist in their past. No, they wanted it removed just because it could potentially cause triggering thoughts in some hypothetical students' minds. That student wouldn't even need to have ever been a victim because even non-victims can have upsetting thoughts about sexual assault.


Now just imagine what would happen if we got this whole brain trust together. We're going to kick you off campus is seeing you causes someone to have some bad thoughts about sexual assault, and all that's required to trigger isn't even that you be smart, athletic, and come from a good family. Nope, the criteria would basically be what we're going to call the Miss Swan rule, "He look like a man."

Now that might sound like a bunch of conspiracy theory, slippery slope nonsense. But, universities have been letting Title IX administrators take over campus judicial proceedings (just imagine if someone from the OCR got to sit as a judge in a trial), and worse, many are switching to the Single-Investigator model, under which a lone inquisitor plays detective, prosecutor, judge and jury, free to keep the evidence and their reasoning to themselves. This is the model being pushed for by the White House's Campus Sexual Assault Task Force. Schools can be found in violation of Title IX if they are found to have a dangerous or hostile environment for women which interferes with their education, thus denying them equal access.

Crazy as it sounds, the rules are all basically in place to let universities spiral down the Orwell/Kafka drain. All it really requires is an absurd recommendation from the Department of Education about how to interpret the law. At least we can take comfort in known they'll never do exactly that.

Comcast Admits Its Fee Increase Is Basically Just Fraud

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If you've ever signed up for a cable package, then you know the standard procedure. You pick out the cheapest plan that has all the TV channels you want and will still allow you to play whatever your favorite video game is, and then you sign a contract locking you into that price for a year or more. Then, if you have Comcast, you put the fucking lotion in the basket.

It's no secret that Comcast has a horrible reputation for both its product and its customer service. This winter, it also drew criticism for surreptitiously increasing its prices in the form of increased modem rental fees and "broadcast fee." The "broadcast fee" is what you pay Comcast in order to get the broadcast networks that are provided free to anyone with an antenna. This fee actually does make a bit of sense. Even if the product is out there for free, the networks could still charge Comcast for the right to use it. We're going to give Comcast the benefit of the doubt on that one, not that they deserve it.

But the modem fees, oh boy. If you have Comcast, then sometimes in December or January you'll remember having a service technician come to your home and provide you with an upgraded modem. What, that didn't happen?

But the modem rental fees many people pay went from $8 to $10. Surely they got a next gen modem. What else could explain the fee increases? Surely Comcast can't just charge you more to rent the exact same equipment. What explanation could their possibly be? We asked. Here's a bit from an online support chat transcript (click for full size):

No, we do not understand.


If you'll recall, when you get your cable package you sign a contract, and that contract locks in the price for your service package. That service package is your set of television channels and your internet speed.

What Comcast has done is improved its TV programming offerings and increased its internet speeds (or so they say). That's an improvement to the service package, but the service package has a fixed price. Since Comcast can't change that, it just puts the $2 service package increase in its modem rental fee. If you had an $89 TV/internet package and an $8 modem, what you now have is a $91 TV/internet package and an $8 modem, but with Comcast lying to you about what the fees are for.

Now we may just be a bunch of simple drunk country lawyers, but we're pretty sure that what we've got here is a case of fraud. Or more specifically, false pretenses. If our bar review notes are correct. A defendant is guilty of false pretenses if he:

(1) knowingly

(2) makes a false represenation

(3) of a material fact

(4) that causes the victim to pass title

(5) to the defendant

(6) with the intent to defraud the victim

The fact that Comcast gave the script to their customer support shows they knew what they were doing. Calling it a modem fee increase seems to be a false representation. What you're being charged for looks to be material. The bill causes victims to pass title. To the defendant. And again, Comcast knows what it's doing, so there seems to be the intent to defraud.

While your local PD isn't likely to lock up the Comcast CEO, enough complaints to the FTC might do the trick. Here's the link to file an FTC complaint. Let them know that despite putting the lotion in the basket, Comcast still decided to hose you.

New York acquires machine guns to counter protests

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In response to the anti-police brutality protests that followed in the wake of Eric Garner's death, NYPD Commissioner Bill Bratton has decided to create a new Strategic Response Group. The SRG will consist of 350 officers, armed with assault rifles and machine guns. Yes. Machine guns. To control protesters. Here it is straight from the mouth of Bill "Blood-n-Guts" Bratton:

It will be equipped with all the extra heavy protective gear, with the long rifles and the machine guns that are unfortunately sometimes necessary in these ­instances. [New York Post]

Sometimes necessary! We here at Con Daily must have really slacked off in our high school US history classes, because we can't think of a single instance when police at a protest needed machine guns. Maybe Stormin' Bill Bratton has something like the Kent State anti-war protests in mind. Those national guardsmen only fired 67 rounds in 13 seconds. A single M2 Browning fifty cal machine gun can get off well more than 100 rounds in the same amount of time.

Bratton later clarified that he had misspoken when he said the new heavy weapons would be part of protest control. The weapons would go along with CRVs, critical response vehicles, and not the SRGs, which are for protest control. [Newsday] That's more reasonable, except for one tiny little gap in Bratton's reasoning...

When have machine guns ever been necessary in domestic counter-terrorism? If only there had been some more CRVs on the streets of New York, those planes wouldn't have hit the World Trade Center.

Fans of Battlestar Galactica will recall Commander Adama's response to President Roslin when she asks him to use the marines as a police force:

There's a reason you separate military and the police. One fights the enemies of the state, the other serves and protects the people. When the military becomes both, then the enemies of the state tend to become the people.

Nevermind that it would have been more clear to say "then the people tend to become the enemies of the state," most people still get the point. Huzzah context and all that. What we're seeing in New York and other cities is essentially the same thing being run in reverse. The police are increasingly taking on counter-terrorism effort -- that is, they are fighting the enemies of the state.

It's a very delicate situation, and while it is possible to strike the right balance, we don't have a ton of faith in a police commissioner who occassionally confuses his department's crowd control duties with its counter-terrorism efforts.

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