Thursday, November 29, 2001

Law School Discriminates, part II

According to David Delaney, the author of the article I referred to below,

The wording of that piece is very close (may be identical) to the BCLS statement. The similarity stems from the lead that BC took in opposing Solomon and the guidance that the AALS issued at law schools.

So there appears to be a nationwide plan to force on-campus interviewers to agree to meet ideological litmus tests before allowing them to recruit. I wonder, though, whether bringing about the social changes these deans and professors find desirable requires compromising the neutrality of the institutions they guide. If they want to take a stand on controversial issues, by all means, they should. But taking a stand implies some sort of risk.

What we have here, instead, is the imposition of a controversial ideological policy at the expense of the students whose heavy debt load pays their salaries. That's no stand at all.

Law School Discriminates Against Military

About a week after the terrorist attacks, I received the following email. As far as I can tell from this article students all over the country have been getting them. I've bracketed a few thoughts:

It is the policy of the University of Miami School of Law not to discriminate on the basis of race, color, national origin, religion, sex, age, disability, or sexual orientation in its education programs, admissions policies, employment policies and other school administered programs and to refuse access to employers who refuse to sign nondiscrimination statements and/or who otherwise discriminate in violation of the nondiscrimination policy [now this is really interesting: the law school forces its views on private employers. why?].

By statute, the United States Armed Services discriminate by gender by refusing to employ women for certain positions [on submarines, for example. They also refuse to emply people who are crippled to fight in the front lines]. In addition, by statute, the United States Armed Services will not employ for any position those whom it deems to be lesbian, gay or bisexual ["don't ask, don't tell" was president clinton's first triangulation, no?].

Because of the conflict between these policies [a little disingenuous in comparing an act of congress with a policy adopted by a private institution] in the past the University of Miami School of Law has refused access to recruiters from the U.S. Armed Services. Recently [in 1997, i think], the U.S. government has decided [congress passed a bill, signed into law by president clinton] to cut off federal work-study funds and certain loans to educational institutions which deny access to the Armed Services.

Because of the government's threat to this important source of student financial aid [did the students ever vote on this policy? or was this important source of funds threatened by the actions of the faculty and administration?], the University of Miami School of Law has reluctantly decided to allow access to military recruiters.

This step is being taken solely to ensure our students access to federal financial aid and in no way represents approval of the Armed Services policy or a withdrawal from our firm commitment to our non-discrimination policy. Anyone with information that any other employer discriminates should contact the office of the Dean of the Law School [presumably, as long as they are not an important source of student funds, they will be banned].

There's obviously a lot more to be said about this, but I'm studying for finals.

Monday, November 26, 2001

what result?

Had I read this story six months ago, I would have thought about the pernicious effects of junk science, or about the general reluctance of mainstream media to discuss its implications, or the rise of alternative means of communication. But, being in law school, that's not what I thought about at all.

The Trade Tower steel columns were designed to resist fire for at least 4 hours before losing the strength required to support the buildings. Emergency plans called for this four hours to be used to evacuate the buildings. . . . Yet, Tower One collapsed after one hour and forty minutes, while Tower Two collapsed after 56 minutes of fire. Had the towers stood for four hours, an estimated 5,000 people would still be alive and the buildings would probably still be proudly standing - with large gashes in their upper floors. Why did they fall?

The buildings fell because the thermal insulation of their supporting columns did not work properly. The Trade Tower design – the one referred to as able to resist the crash of a Boeing 707 – specified the use of asbestos insulation on the supporting columns. This was used on all columns up to the 64th floors. Then, however, in 1971 when the Trade Center Towers were still under construction, New York City banned this use of asbestos.

Instead, the first thought that came into my mind was, if anyone were sued over this, what result? Assuming that a fire had broken out under different circumstances, would the builder be liable for a defective product? Would the city be liable for banning the use of asbestos, when no equivalent product was available? The designer for not changing the specs? The maker of the alternative insulation that perhaps did not perform as well as asbestos might have?

I am not sure that I like thinking this way. And I'm not sure that lawsuits are the best way to discipline the political process where scientific issues are concerned. Then again, I suppose this is what I signed up for.

Saturday, November 24, 2001

emasculating the texts, or, pining for the fjords of perfect equality

One of the ways in which law school differs from real life, is in the near-complete disapperance of the male pronoun. In book after book, he, him, his literally do not exist, except as referents to a specific person.

This is crazy stuff. Is it some sort of subliminal advertising plot? Does it serve any purpose other than signal the authors' ideological purity?

Tuesday, November 20, 2001

straight from a torts final exam

Ripped from today's headlines (I am not making this up):

DEERFIELD BEACH, Fla. (AP) - A man dashing across a lake on a customized personal watercraft at about 55 mph was killed in an apparent collision with a flying duck. Leon Resnick, an employee of Riva Yamaha, was testing the water jet-propelled craft Thursday on a lake about 20 miles north of Fort Lauderdale, investigators said Monday. A co-worker who was watching turned to pick up a radar gun to check Resnick's speed, and when he turned back Resnick was no longer aboard the craft.

Resnick, 31, of Hollywood, died of a blow to his head, the Broward County medical examiner's office said. "Our theory is that the bird was airborne and clocked him in the head," said David Bamdas, an owner of the dealership. At the speed Resnick was traveling, the 10- to 15-pound duck "might as well have been a cinder block," Bamdas said.The bird's carcass was found nearby and there were feathers on the water bike's handlebars, said Broward County sheriff's spokesman Hugh Graf.

Saturday, November 17, 2001

reality check

Every once in a while I need a reality check. Nothing is better at reminding me what most people think of lawyers, and the law, than the outstanding Overlawyered.com site. One of the subjects that pissed me off the most before coming to law school was the inscrutability of the principles underlying many torts decisions, which I studied for a while today. So I ran across this article explaining that the Utah Supreme Court recently found that parents cannot waive their children's rights to sue for negligence.

That is the kind of stuff that makes normal people want to kill the lawyers. It interferes with parental autonomy. It places children at the level of adults, but without their responsibilities. And amusement places will have to jack up prices or go out of business if they cannot pay the higher insurance premiums that are sure to follow.

Friday, November 16, 2001

the right to exclude

With less than a month to go before the semester ends, I am a little freaked out. Everything I think about are finals and grades. Everything that is not law-school related, ends up connecting with law school in some way. For example, there is a great column in today's WSJ about the disasters that are Latin American democracies ("In Latin America, Too Many Constitutional Promises Thwart Democracy," by Mary Anastasia O'Grady on A13). The author traces their dysfunction to their governments' constitutional obligation "to act as slayer of all inequalities in life," which allows --indeed, requires--them to meddle incessantly with property rights in the name of the public good, and invites corruption and crony capitalism. This reminds me of nothing so much as a string of decisions by the New Jersey Supreme Court we studied in property this semester.

Starting in 1971 with State v. Shack, and continuing with Uston v. Resorts International Hotel in 1982, Frank v. Ivy Club in 1990, and New Jersey Coalition Against War in the Middle East v. JMB Realty in 1994, the court fastened upon the "social function" of property rights to redefine and expand the state's role in dictating private property's allowable uses. It runs like this: a property right is hollow unless the government endorses it, that is, unless you can move some state organ to protect your right if it is threatened. If the government does not like what you are doing, or what you plan to do, with your property, it may withhold its endorsement of your "right," which, ipso facto, disappears. You are not compensated for your loss, however.

For example, ownership of land typically includes the right to exclude. What would be the point of buying a house if anyone could just walk in?

In Shack, the NJSC found that a farmer could not exclude federally-subsidized activists from coming onto his land to meet with migrant workers (technically, the court reversed their convictions for trespass). The public policy interests advanced by the activists trumped the farmer's right to exclude unwanted persons from his land. So what does this have to do with anything? The NJSC then built on that decision, using the same rationale, to hold that a casino in Atlantic City could not exclude a card-counting blackjack player, that an all-male private supper club in Princeton could not exclude women, and that certain malls could not exclude anti-war protestors from leafletting.

So what? Aren't card-counting, women, and war protestors Good Things(TM)? Sure. The more the better. But the danger to society is that by injecting clearly ideological motives into the endorsement, the NJSC holds property owners hostage to political ideology. This line of reasoning holds that bigots don't have property rights that the state will endorse.

So what? Screw the white male hegemons anyway. They destroy the earth, oppress women, and pillage the wretched here and abroad. Yep. They sure do. But the test used by the NJSC is content-free. It cuts both ways. Today's enlightened being may find himself tommorrow's bigot.