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November|December 2005
Fundamental Imports By Mark Tushnet
Second Look at the Second City By William Henderson
Elsewhere
Born on the Fourth of July By Murray Dry

Elsewhere

Kids abandoned in cars, soldiers stationed in minarets, and lawyer jokes collected and sorted. These and other ideas from the nation's law reviews.

FORGIVING FORGETTING

Between 1998 and 2003, over 130 children died in the United States from overheating after they were abandoned or forgotten in a car on a hot day. One father forgot to drop his son off at day care. One mother had no day care and hoped her 11-month-old son would be O.K. waiting in the car while she was at work. A mother and a father each thought the other parent had taken their son to church when in fact they had left him in the church parking lot.

"Crime and Parenthood," a forthcoming article in the Northwestern University Law Review, examines more than 100 such cases to see how often the parents at fault faced legal sanction as a result of their neglect. Jennifer M. Collins finds that more than half such parents faced prosecution, but she also found that nonrelatives in similar circumstances were prosecuted more vigorously, with 89 percent facing charges. When the babysitter is at fault, Collins concluded, prosecutors are less ambivalent about whether to bring charges than when the grieving parent is at fault. Collins attributes this disinclination to charge parents to what she calls a "suffering discount," applied by prosecutors who think that a parent's feelings of guilt will be punishment enough.

Collins makes a forceful though "uneasy" case that parents should not qualify for such a discount. If anything, she argues, prosecutors should hold parents to a higher standard of responsibility than strangers. "Surely parents, and not some caregiver whose duty arises only out of contract, have the greater responsibility to care for their children," she writes. Collins does not believe that forgetful parents should always serve jail time. She argues that discretion should be exercised at the sentencing phase, not in the decision to bring charges.

Collins's research also uncovered another troubling trend in child neglect cases. White-collar parents were far more likely than blue-collar or unemployed parents to get the "suffering discount." In one of her examples, an unemployed father who forgot about his kid in the car because the father was playing video games was found guilty of involuntary manslaughter and child neglect. A University of California, Irvine, education professor who left his kid in the car while at work, on the other hand, was never charged with a crime. Bread-winning may be a more productive pursuit than loafing, but surely, neither pursuit justified forgetting the child. Northwestern University Law Review, Volume 100, Number 2

AN EMPIRICAL STUDY—OF EMPIRICAL STUDIES

Tracey E. George, a law professor at Vanderbilt University, believes that empirical legal studies—that is, legal theory that is backed up by quantitative research in the social sciences—is the wave of the future. Oliver Wendell Holmes thought so, too: "The man of the future," he wrote in 1897, "is the man of statistics." George uses that quotation as the epigraph of a forthcoming article in the Indiana Law Journal, which announces that empirical legal studies really is, at last, about to come to the fore.

In "An Empirical Study of Empirical Legal Scholarship: The Top Law Schools," George sets out to identify which schools are fostering the emerging ELS field. Her method is to determine where the leaders in the field teach. While the best-known law school rankings, published by U.S. News & World Report , include surveys of lawyers and judges to help determine a school's reputation, George chose to base her rankings on an evaluation of each school's faculty. She reasons that faculty "are the source of a school's intellectual life," and that hiring is a good proxy for a school's investment in ELS, because, unlike a working group, for example, which may come and go, hiring "reflects the amount of money committed to an intellectual activity." And given the tenure system, hiring an empiricist is a long-term investment.

George posits three measures of a school's dedication to the ELS field. The first is the number of law professors who also have social science doctorates. The second is the number of law professors with secondary appointments in social science departments. The third is the number of publications faculty members have in journals that publish ELS (George has created a list of 11 such publications, among them such Elsewhere favorites as The Journal of Legal Studies and The Journal of Law & Economics).

George runs the 41 schools ranked by U.S. News through her model and comes up with some very different results. (Nine of the 41 law schools in the U.S. News sample had zero tenured social scientists.) In George's rankings, the University of California, Berkeley, George Mason, and Northwestern finish in a three-way tie for first, with Penn and USC tied right below them. Harvard finds itself in a distant tie for 14th (with Columbia). Rankings darling NYU falls even deeper, to an 18th-place tie with George's home, Vanderbilt. Too bad George didn't place her article in one of her leading ELS journals—her home school might have beaten NYU by a nose. Indiana Law Journal, Volume 81, Number 1

MANNING THE MINARETS

Early this year, U.S. Army snipers in the Iraqi city of Samara chose what seemed to be a good vantage point on the city: the minaret of a 1,200-year-old mosque. In "Snipers in the Minaret—What Is the Rule?" Geoffrey S. Corn, an international law adviser for the Office of the Judge Advocate General, argues that the soldiers' decision didn't violate international law, though he acknowledges there were some serious legal questions to consider before the soldiers clambered to the top of the mosque.

The crucial issue is one of "cultural property"—buildings, places, and things protected by generally observed international norms and by the Cultural Property Convention signed at the Hague in 1954. The convention lays out rules against damaging such property intentionally (say, bombing it) or by using it in a way that might cause it to be damaged (like turning it into a shield). But when it comes to describing what these protections apply to, the convention is decidedly vague. It names only one building that demands absolute protection: The Vatican.

What's more, though the Cultural Property Convention is 51 years old, and though Bill Clinton sent it up to the Senate in 1999, the U.S. has yet to ratify it. Between the vagueness of the treaty and its uncertain jurisdiction over U.S. soldiers, the question of whether or not to use the minaret does seem to be a tough call. The Army snipers probably didn't have the luxury of pausing to consult international law, but as it turns out, Corn believes their commander made the right decision. The crucial question before the commander, Corn reasons, is whether or not the use of the cultural property was "the only feasible means available for the commander to achieve a valid military objective." In this case, Corn believes the post aided in "the protection of friendly forces or the local population from threats posed by dissident or hostile elements." That does seem like a "valid military objective," but how exactly does the military define a valid objective? A topic, perhaps, for Corn's next paper. The Army Lawyer, July 2005

NO JOKE

A few years ago, the late Chief Justice William Rehnquist spoke at the unveiling of a new building at the University of Virginia Law School, where his audience was a mixture of lawyers and nonlawyers. He began his speech by taking account of his listeners:

"In the past, when I've talked to audiences like this, I've often started off with a lawyer joke, a complete caricature of a lawyer who's been nasty, greedy and unethical. But I've stopped that practice. I gradually realized that the lawyers in the audience didn't think the jokes were funny and the nonlawyers didn't know they were jokes."

Rehnquist's is one of a daunting, damning number of lawyer jokes collected by Marc Galanter in his new book Lowering the Bar: Lawyer Jokes & Legal Culture. Portions of the book first appeared in various law reviews, including articles entitled "The Conniving Claimant: Changing Images of Misuse of Legal Images" and "Changing Legal Consciousness in America: The View from the Joke Corpus."

Galanter, a professor emeritus at the University of Wisconsin, Madison, has assiduously collected specimens of the lawyer joke, culled from joke books, the Internet, and e-mail lists, as well as from friends, colleagues, and students. Like a taxonomist, Galanter has fit each into one of the thematic categories he's devised. Five categories focus on what lawyers do, characterizing them as "(1) corrupters of discourse, (2) economic predators, (3) fomenters of strife, (4) betrayers of trust, and (5) enemies of justice." Four take aim at what lawyers are, portraying them as "(6) allies of the devil, (7) morally deficient, (8) objects of scorn, and (9) candidates for elimination." Yet another category is reserved for jokes like Chief Justice Rehnquist's—a meta-joke about lawyer jokes.

Each chapter of Galanter's book is dedicated to one of these classifications and to showing the mutations and evolution of jokes in each. (As the recent film The Aristocrats showed, a single joke can have nearly infinite forms in the telling.) The ur-joke of the "corrupters of discourse" section, for instance, is the classic, "How can you tell if a lawyer is lying? His lips are moving." But Galanter offers a slew of variations on this barb, some quite a bit longer (including a very funny one about jury tampering and bestiality not fit for a family publication) and some a good deal older. Throughout the book, Galanter pays special attention to origins of jokes, which leads to the interesting revelation that many lawyer jokes didn't start out as such—rather, they began as jokes about Jews, the Communist Party, or that other oft-maligned profession, accountants. DePaul Law Review, Volume 50, Number 2; Cardozo Law Review, Volume 23, Number 6

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