Eugene Volokh's Blog, page 2685
October 25, 2011
Making Fake Maple Syrup a Felony
It is currently a misdemeanor punishable by up to a year in federal prison to falsely identify cane sugar or corn-based syrups as"maple syrup." Apparently this is not enough for Vermont's congressional delegation. As the Los Angeles Times reports, Vermont's senators have proposed legislation to represent a product as "maple syrup" when it's not.
CEI "Durbin Dollars"
The wits at CEI have come up with another good one–you can print your own $5 "Durbin Dollars" and mail it to Senator Durbin to thank him for his price controls on debit card interchange fees and resulting knew bank fees. I like the motto too–"In Big Government We Trust."
Maybe Home Depot will eventually come up with their "Durbin pennies" to symbolize the two cents you might possibly eventually save on a piece of plywood in a couple of years (no guarantees, of course).
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EPA To Regulate Fracking
October 24, 2011
Reforming Higher Education: How About Technical Minors?
As a professor but also parent of a college freshman (go Rice, &tc), I tend to see the debate over higher education from both ends. I have a good idea of the inputs but I also have a good idea of the machinery. And, as a law professor, I also have some idea of the outputs from undergraduate education. I want to focus here on one suggestion for the curricula of selective universities — indeed, only for the most selective undergraduate institutions: technical minors aimed at liberal arts, social sciences and humanities majors.
The complaint goes out constantly that America doesn't train enough science, technology, engineering, and math graduates. Fair enough. But here's one of the strange problems of our top-tier universities' incentive systems. Each department measures its prestige on the basis of its own students, especially those at the top. Less by the general average, than by the top students at the margin. This is especially true of the STEM areas, but is true of any generally technical area, such as economics — and even, in a much less rigorous way, of the humanities. Resources are focused on winnowing out students to get to the top students who make the reputation of the department.
Here's one of the effects. I used to volunteer to teach a class at my daughter's top-ranked DC private girls' school, and my students went off to the top Ivy League schools; they sported top SATs in all subject areas. I had given some of the girls advice — often interested in law school — as they went off to Harvard, Princeton, and Yale, that my world of law had shifted decisively away from the humanities as the master-discipline, the one that provided the background concepts and vocabulary, and toward economics, and therefore they should try to spend some time doing more than just the basic class.
Wonderful. A year later, however, an amazingly bright and ambitious former student who had gone off to Yale emailed to tell me that my advice wasn't working out. Why? Because at a world class institution, she could do great work in history and philosophy, but despite 800 math SATs, she couldn't keep up past the first econ class in the major. And since law school would look only at her GPA overall, no one would care that she had struggled in a tough area because she thought she needed to know it.
From a department whose incentives looked to departmental prestige — the venture capital model of student selection, so to speak — this made perfect sense. The class she dropped was aimed at weeding her out through the math requirements. From her standpoint, however — and one would wish, though it would not be true — the university's, too, it would be better if there were some way that she could acquire the knowledge of the course without so overwhelming a technical apparatus that was explicitly designed to be more mathematical than it needed to be, to get rid of people like her.
Much as I admire Greg Mankiw, in other words, a famous blog post of his on "Why take mathematics as an economist" gets to the heart of the problem. He candidly admits that it is a form of signaling even when not necessarily related to the actual conceptual material at hand. I don't mean that it is not hugely important for professional economists, of course it is — but that's the point, there's no curriculum suited for the non–professionals-in-training. Mankiw says, with charming frankness, that basically the math is one long IQ test so you can show your fellows how smart you are. (As a theory of the reproduction of class elites, by the way, this is wanting in a lot of ways — our intellectual elites are, greatly on account of these incentives, trained through the school selectivity process to risk-aversion in spades, as well as to confusing signaling behaviors of the Red Queen variety with actual value, but that's a different discussion.)
Now, the university will point to the "general" education courses, breadth requirements, etc., as the solution. But we all know it's not. The university puts out a cafeteria selection of general interest courses that the departments offer because they have to. Sometimes they are taught well — brilliantly, even — and often indifferently. Either way, the 'gee-whiz'-look-at-the-universe courses are not what I'm aiming at here. But ask, in passing, why these courses descend to the lowest common denominator — "rocks for jocks," etc. The answer for many liberal arts students at the top schools, who are aiming at graduate professional school, is simply that in the end, only the GPA and the LSAT or GMAT matter. It is irrational to take a class that might lower one's GPA even marginally — that is, in light of the grade inflation that crowd GPAs toward the top end and therefore leave you mostly with room to fall, it makes no sense to ever put education ahead of credential. Students don't and a race to the bottom ensues for the classes that departments only offer to satisfy university-wide enrollment concerns.
The second option that universities also offer is the pass-fail course. Most limit the number of courses quite sharply — so much so that it is not really possible to do a genuine minor, even if the subjects were offered. And in any case, pass-fail does not satisfy the need for students who are smart and well-prepared, but not able to compete against the world's best SMET students, in a class filled with those students. Good for the world-class students who make up the top end of those departments. In my view, however, the university fails in an important mission by providing a genuinely technical alternative to those who are not planning to major in those fields and would be winnowed out in any case.
My proposal would be that the selective universities need to offer a set of technical minors, aimed at liberal arts, humanities, and social science majors — and looking to the foregoing, with the following characteristics, designed to address the fundamental problem of educational needs of students misaligned with their credentialing needs:
Technical, but at a level that looks to the math and science skills of the high school graduate that majors in English at that university;available in the fields of SMET, economics, and accounting, perhaps a couple of other areas;pass-fail, so as to deal with the rationality of avoiding anything a student doesn't already know he or she is good at;quite possibly taught by people who do not teach in the actual prestige-driven departments, since this will be at best an annoyance and distraction to those departments' quite different incentives.Why is the proposition underlying this — the need for liberal arts and humanities students to have available a technical education available to them — socially useful? This is not about the needs and skills of the lower tier schools; it is obviously silly, whatever one thinks of the "fewer kids to college" thesis, to suggest that students with 2100 SATs not go to college. The first thing this helps socially is the need for more people who have some technical exposure in SMET fields, even if they are not going to be the world-class technical people and even if they do not intend to "do" those areas as their full job. They can do the basic math, they can communicate with the genius-level technical people, they can understand the language and the issues at a decent level — these are not innumerate people. But they won't be the students that the SMET departments want at the highest level universities.
There's something weird about inducing a nearly complete disconnect between the technical students and the humanities students, when they are all pretty smart. But what the humanities and liberal arts students need is a Yale history education — and a state polytechnic education in one or another technical field. It is not the case that there is no value in a mid-tier technical education; we have whole ranges of schools that teach at those ranges — the problem is, those departments are not accessible to students at Vanderbilt, Northwestern, Duke, Rice, etc. We are absolutely not socially well-served by brilliant students who have carefully, rationally, and prudently not studied anything other than history, English, politics and government, international relations, etc., for fear of getting less than an A-. They are brilliant and will probably do well in law or business school — and we would be better off if they had some undergraduate training that told them in a real way about petroleum geology or computer programming languages.
The complete disconnect that the incentives of university, department, and student create — leaving college knowing nothing whatsoever about a technical field — that's a profound waste of resources when that student goes out into society and tries to get a job. Sad and frankly crazy: the freshman I knew who wanted ultimately to go to law school, but thought she might also be okay, okay but not great, at basic programming — but simply could not even catch up to where the students were in the basic class at her top university. She was perfectly bright and would have done well in this at a lesser ranked school; but she would never get this technical exposure. This is crazy because we need people like her to go into management, etc., but with a technical exposure to go with their top-tier liberal arts background.
This presumes that there is value in the skills of analytic reading and writing, communication, logic, interpretation, and so on conveyed by the humanities and liberal arts. It is quite true that these fields have more or less self-immolated in the course of the last few decades, and there is good reason to ask how much in the way of traditional skills in logic, rhetoric, or analysis they actually convey. I agree it is a major problem, and I'll leave that for another post on higher education. But philosophy and intellectual history still retain their rigor, and whatever the road back to rigor for the others, we are not better off by abandoning the humanities and liberal arts. People in the technical fields impute far too much magic to their disciplines; and they should remember that in a complex, specialized commercial economy, it is entirely possible to train too many engineers. In any case, we are creatures of society and culture, even in a technological society, and those social disciplines, however debased, are important for their own sake, as well as serving, at their best, for transmitting forms of analysis that can't be got any other way.
(Comments are open on this post; please be civil and stay on topic.)
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Law School Practice Exams
John Goldberg & Barry Friedman, guest-blogging
Everyone knows the old joke. A guy walking in New York City asks a woman: "How do I get to Carnegie Hall?" She responds, "Practice, Practice, Practice." Practice make perfect. But how are law students supposed to practice for exams?
Law students frequently, and often with justification, complain about lack of pre-exam feedback. In pre-publication reviews of Open Book, students stressed to us how much they wanted more examples, and . . . more feedback!
It is easy to see why students feel this way. They come to class day after day, mostly listening while someone else speaks. Then, suddenly, they are expected to take the exams that pretty much determine their course grades. Even after exams, they are often left wondering what happened.
Most profs try to provide some feedback. For example, it's common these days to post practice exams and model answers. We've done the same thing in our book by providing hypotheticals that readers can try their hand at, along with sample answers available on the website that accompanies the book.
But can we do better? Here's what we came up with. Coming soon to our website is a suite of practice exams that provide faculty feedback beyond model answers. Students who buy them get an actual exam and a model answer, but also a copy of the exam with annotations from the professor identifying where issues were hidden or key facts provided. They also get actual student answers (anonymous, of course), and these too are marked up by the professor to show strengths and weaknesses.
In a perfect world, law professors would provide extensive individualized feedback to each student before exams. And we know some heroic profs who do this. But many of us don't and can't. So we need to provide alternatives. We think Open Book's exam suite is promising, but there are surely other ways to go. We'd love to hear your ideas.
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Longest-Serving Federal Circuit Court Judges Still Hearing Cases
To my knowledge, the longest-serving federal circuit court judge who is still hearing cases is James Browning of the Ninth Circuit, appointed by President Kennedy in 1961. President Johnson's appointees who are still hearing cases include Wilfred Feinberg of the Second Circuit, Ruggero Aldisert of the Third Circuit, Myron Bright of the Eighth Circuit, and William Holloway of the Tenth Circuit. Am I missing any other Kennedy or Johnson appointees?
UPDATE: According to commenters, Judges Browning and Feinberg both recently retired. In both cases, their retirements are very well earned.
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"The Action Was Prescribed"
In most states' legalese, this means the same as in normal English: the action was (more or less) ordered by some authority, such as a statute or regulation. But in civil law lingo, for instance in Louisiana courts, it means that a legal claim is barred by the statute of limitations, because it was filed too late — a rare situation in which "prescribed" ends up meaning something like "proscribed."
I just learned this a few days ago, and thought I'd pass it along. Those of us who studied outside Louisiana might recall seeing a similar usage in first-year property, when we studied "easements by prescription."
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Re-Post: Bench Memos and the Ninth Circuit
Newt Gingrich has some recommendations for reforming the Ninth Circuit:
"Congress can say, 'All right, in the future, the Ninth Circuit can meet, but it will have no clerks,' " Mr. Gingrich told the Values Voter Summit. " 'By the way, we aren't going to pay the electric bill for two years. And since you seem to be rendering justice in the dark, you don't seem to need your law library, either.' "
I don't know if Gingrich is serious, but his first comment reminds me of a somewhat related post from 2004 that I thought might be worth reposting: Bench Memos and the Ninth Circuit. I have reprinted it below.
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[W]hy is it that an unusually high number of Ninth Circuit decisions can be characterized as outliers? I am interested less in the occasional high-profile opinions than in the run-of-the-mill cases. In my experience, at least, it is not uncommon to research a legal issue and find cases from several circuits all holding one way, and then a Ninth Circuit decision going the other way. Why is that? Proponents of dividing the Ninth Circuit often point to the court's size, but I have a pet theory: the problem with the Ninth Circuit isn't so much its size as its bench memos.
First, a bit of background. The usual practice on the Court of Appeals is for each of the three judges on an appellate panel to task one of his or her law clerks to author a bench memo for each case. (A bench memo is a memorandum from a clerk to a judge explaining the facts of the case, the lower court decision, and the relevant precedents, as well as recommending a rationale for resolving the appeal.) Some judges do not require formal bench memos, but most task their law clerks with taking an independent look at the record and the law of each case. Judges don't follow bench memos blindly, of course. But because many appellate cases are poorly briefed by the litigants, a law clerk's memo can have a significant influence on how a judge looks at the case. In most circuits, the practice of each judge assigning a clerk to write a bench memo means that by the time of oral argument, three different sets of judges and clerks have taken the case apart and put it back together.
My understanding is that the Ninth Circuit works a bit differently. When a Ninth Circuit panel is scheduled to hear a case, one chambers is assigned the task of writing a single bench memo that is shared with the other two judges and their clerks. It's a time-saving device; a single clerk does the work, freeing up the other chambers to work on other matters. While the other judges on the panel are free to ignore the shared memo, or to require their clerks to write separate memos, in many cases that one bench memo sets the tone for what the panel is likely to do with the case.
My pet theory is that the Ninth Circuit's bench memo practice explains some of its quirky opinions. When only one chambers takes a ground-up view of a particular case, the other two chambers are less likely to notice when the bench memo is missing something important. In a run-of-the-mill case, the common memo lets other chambers be a bit less careful about researching the case. Being a bit less careful, they are less well equipped to point out a flaw in the memo's reasoning or possible inconsistency with other cases. If nothing in the memo jumps out as clearly incorrect and the judges do not disagree sharply on the outcome of the case, no one on the panel will notice if the bench memo is a bit off. The judge whose chambers generated the memo is more likely than not to be assigned the opinion, and the resulting opinion is likely to reflect a good chunk of the initial bench memo.
I don't want to overstate the case. The Ninth Circuit's bench memo practice is probably only one factor among several in explaining its tendency to generate somewhat quirky rulings. Many Ninth Circuit opinions are excellent, and I am sure many Ninth Circuit judges do not defer to memos from other chambers. At the same time, my guess is that the Ninth Circuit's bench memo practice has at least some role to play in generating some of the Circuit's more idiosyncratic rulings.
Public University Professor Being Investigated for Condemning Homosexuality in Class
The Pittsburgh Tribune-Review reports:
An Indiana University of Pennsylvania graduate student has filed a complaint with the school's human resources department, alleging one of her business professors subjected her to humiliation and insults based on her sexuality....
Santiago said the class, instructed by faculty member Dr. Maali Ashamalla, was discussing ethics and legalities. She said a male student said he thought gender reassignment surgery was unethical and should be illegal.
Ashamalla agreed, and called homosexuality "a sin" and "unnatural," Santiago said.
"I asked her, 'So are you saying that students like me who identify as homosexual are unnatural, abnormal and disgusting?' She replied, 'Yes,'" Santiago said....
University spokeswoman Michelle Fryling confirmed that the school's human resources department had launched an investigation....
On Wednesday Santiago raised the subject to John Cavanaugh, chancellor of the Pennsylvania State System of Higher Education, during a campus forum at IUP. He did not directly address the issue.
Yesterday, Fryling forwarded a statement from Cavanaugh [which I assume is this statement –EV] denouncing harassment "of any kind — whether face to face or online." ...
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District Court Opinion on the First Amendment and Public University Professors
To what extent does the First Amendment protect public university professors — including untenured professors — from being disciplined or fired based on their scholarship or public commentary? The matter is not entirely clear, partly because of Garcetti v. Ceballos (2006), which held that the government has a largely free hand in making employment decisions based on an employee's speech that's part of his job duties. Does that extend to professors' speech, given that their duties include scholarship and public commentary, especially when the speech relates to their scholarship? Or are the rules different, because of special protections offered to academic freedom, or the special nature of professors' work? (My job is indeed to write articles, but, unlike with a typical public employee, such articles wouldn't be seen as representing the views of my employer, and wouldn't be directed by my employer.) Garcetti itself reserved judgment on the question, leaving the matter to lower courts, at least until the Supreme Court revisits the matter:
There is some argument that expression related to academic scholarship or classroom instruction implicates additional constitutional interests that are not fully accounted for by this Court's customary employee-speech jurisprudence. We need not, and for that reason do not, decide whether the analysis we conduct today would apply in the same manner to a case involving speech related to scholarship or teaching.
Last week's Van Heerden v. Board of Sup'rs of Louisiana State University (M.D. La. Oct. 20, 2011) discusses this question:
The following facts are undisputed.
In 1992, LSU hired van Heerden to work at the Louisiana Geological Survey, and later at the College of Engineering, as an Associate Professor of Research. (Doc. 54, Ex. A). In 2000, van Heerden co-founded the LSU Hurricane Center and was serving as its Deputy Director when Hurricane Katrina battered the Gulf Coast in 2005. Following the storm, van Heerden was selected by the Louisiana Department of Transportation to head Team Louisiana, a group of scientists tasked with researching what caused the extensive flooding in New Orleans. After the storm hit, van Heerden began making public statements suggesting that the Corps failed to properly engineer and maintain New Orleans levees and was to blame for the city's flooding.
Unfortunately for van Heerden, the LSU administration and many of its faculty did not approve of his statements for fear that they might cause the University to lose federal funding. On a number of occasions, LSU administrators ordered van Heerden not to make public statements or testify regarding the cause of New Orleans' levee failures. However, van Heerden persisted in making public statements and testified in front of the Louisiana Legislature and the United States Congress. Thereafter, LSU administrators removed van Heerden from the Louisiana Recovery Association, a group of scientists and professionals assembled by then-Governor Kathleen Blanco to identify the State's post-Katrina needs.
In May 2006, van Heerden published "The Storm," in which he again hypothesized at length about the Corps' role in the levee failures and exposed LSU's attempt to silence his opinion. LSU responded by further urging van Heerden not to make public statements and stripping him of his limited teaching duties.
Ultimately, on April 13, 2009, van Heerden, who had worked for LSU under a series of one-year contracts, was informed that his contract would not be renewed....
[T]he Court finds that, although it is a close question, van Heerden was not acting within his official job duties.... Viewing the facts in the light most favorable to van Heerden, the Court cannot say he was acting under his official job duties because genuine issues of material fact still exist. The actions of LSU administrators when dealing with van Heerden make clear that, whatever the formalities of his job description or the general parameters LSU sets for all its academics' relations with the media, LSU considered van Heerden to be acting outside his employment when he spoke on Katrina-related matters with the media. LSU administrators repeatedly warned van Heerden not to speak with the media. [Details omitted. –EV] ...
Viewed in this light, LSU's objective actions appear to have been calculated to disavow itself of van Heerden's statements regarding the cause of levee failure. The Court thus finds that van Heerden's job duties did not require him to make statements to the media, as it appears clear LSU attempted to limit his appearances, discredit his message, and distance itself from his conclusions. Of course, [a Fifth Circuit precedent's] interpretation of Garcetti makes clear that, although van Heerden's comments to the media were not required by his official job duties, they may nonetheless be unprotected if his speech was made in the course of performing his job duties.
Van Heerden's job description and specified duties consisted of, initially, working on the Team Louisiana report pursuant to LSU's contract with the State in addition to his faculty responsibilities. As van Heerden's job description changed and became more focused on research for scholarly publication, his outside speech became less connected with his LSU employment, and LSU correspondingly became less pleased with his performance....
Finally, the Court pauses a moment to make a final comment about Garcetti. The concerns about academic freedom raised, but not answered, in that decision are quite relevant here. "Academic freedom is not an easy concept to grasp, and its breadth is far from clear. It has generally been understood to protect and foster the independent and uninhibited exchange of ideas among teachers and students and the serious pursuit of scholarship among members of the academy." While van Heerden has not argued for an academic's exception to Garcetti, neither have defendants pointed the Court to a decision of the Fifth Circuit applying Garcetti to an academic. The Court here shares Justice Souter's concern that wholesale application of the Garcetti analysis to the type of facts presented here could lead to a whittling-away of academics' ability to delve into issues or express opinions that are unpopular, uncomfortable or unorthodox. Allowing an institution devoted to teaching and research to discipline the whole of the academy for their failure to adhere to the tenets established by university administrators will in time do much more harm than good....
However, based on the facts presented here, the Court finds that, even applying the Garcetti test to van Heerden, he was not acting within his official job duties for the speech at issue here, which precludes summary judgment for defendants....
The plaintiff's interest in his speech could also arguably outweigh the defendant's interest in efficiently providing services. [This is the "Pickering balance" part of the First Amendment test for restrictions imposed by the government as employer, see this post. Academics are, by the very nature of their employment, urged to make what is sometimes unpopular speech. Universities must be cognizant and tolerant of such speech in order to foster the requisite level of comfort so research can be undertaken free of detrimental political pressure. The only conceivable "efficiency" interest LSU or the other defendants may have had in suppressing van Heerden's speech, so far as the evidence at this point suggests, was to curry favor with the Corps and other federal bodies in the hopes of receiving federal funding in the wake of Katrina. Defendants do not even attempt to argue van Heerden did not meet this prong of the test. A genuine issue of fact certainly exists under the third element regarding whether plaintiff's interest in his speech outweighs whatever LSU's efficiency interest may be.
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