Wednesday, April 09, 2008

Two Sides To Most Stories: NYT School-Bullying Story Under Fire

This story courtesy of A NYT school-bullying story comes under scrutiny. It concerns a story that recently ran in the New York Times featuring the plight of an Arkansas boy who claimed to have been bullied at school repeatedly, despite the pleas of his family to school officials, over a long period of time. The eventually resorted to legal action. The story, and the boy's subsequent appearance on the Today Show, evoked a great deal of sympathetic reaction.

According to Overlawyered:

The article generated a big reaction, especially after young Wolfe himself appeared on the Today show to discuss his plight. Most observers seemed to agree that the harrowing tale lent credence to the whole idea of using lawsuits as a way of responding to bullying in schoolyards, Facebook, etc. -- an idea that, coincidentally or otherwise, is the subject of an increasingly visible campaign these days. Even as level-headed an educational observer as Joanne Jacobs wrote on her blog, "Normally, I'm anti-lawsuit, but this may be the only way to bully the bullies and the principal to crack down." Huffington Post writer Jonathan Fast cited the article as evidence that schools should adopt "zero tolerance" policies on bullying. Some of the many other blog reactions are assembled here (e.g.: Marcotte, Greenfield, DadTalk, The Common Room).

Unfortunately, it turns out now that the picture painted by the NYT and Today only told one side of the story. Apparently the "poster child" for victims of school-bullying has a history of bullying himself. According to a story in the Northwest Arkansas Times, school and police records document Wolfe's history of bullying other students. One incident was severe enough that police investigated a report that Wolfe had plans to bring a gun to school; no charges were filed. The story also documents this example of Wolfe's alleged past actions:

Dylan Gray smiles as he sits on the couch on a cool spring night and tells a story of a boy at school who likes to call him names, like stupid or retarded. The couch is a nice change from the wheelchair to which his muscular dystrophy normally confines him.

This same boy sneaks up behind Gray and screams in his ear, which is sensitive to noise because of his medical condition. As Gray relates the experience, this next-door neighbor once pounded him in the back of the head several times with a medium-sized rubber ball despite Gray's protest.

The story sounds familiar, perhaps as familiar as the one the national media brought out last week about Billy Wolfe, the Fayetteville High School sophomore who recently filed a lawsuit against a number of students he claims has bullied him. The only difference is that in Gray's story, Wolfe is the bully and Gray is the victim.

Certainly this does not mean that Wolfe himself was not bullied. This does not mean that his allegations and lawsuit are baseless. This does not mean that the school and other defendants in the lawsuit failed to take proper measures to respond to complaints. What it does mean is that the initial story, as reported by the NYT and Today, painted a picture of a victim with no idea why he was singled out by "bullies" and failed to present the other side of the story. It's a sad and unfortunate story all the way around.

Hat-Tip: (April 9, 2008)

Monday, April 07, 2008

"Pole Tax" Struck Down in Texas.

The LA Times is reporting that a Texas court has struck down legislation that imposed a $5-per-patron fee on strip clubs. The "pole tax" was purportedly instituted in an effort to raise more than $40 million annually for anti-sexual-assault programs and healthcare for the uninsured.

According to the Times:

The fee, which took effect Jan. 1, infuriated the owners of Texas' 162 strip clubs, who said politicians were cynically taxing a population they knew would not fight back. After all, critics reasoned, men who make a habit of drinking and stuffing currency in the attire of scantily clad women are usually not eager to tell the world about it at legislative hearings.

"It's not like Al Sharpton is going to show up and protest that we're being discriminated against," said a man who identified himself only as Dave, as he exited the Penthouse Club in Houston.

In striking down the tax, the court held that the pole tax was unconstitutional, finding that it infringed on 1st Amendment rights to free expression. The court held that the pole tax did not pass constitutional muster because, among other things, indigent healthcare had no connection to strip joints. Legislation which infringes on 1st Amendment liberties must pass a heigh scrutiny review. "There is no evidence that combining alcohol with nude erotic dancing causes dancers to be uninsured," the court wrote.

On one side of the issue, state Rep. Ellen Cohen of Houston, the former head of a women's shelter, who authored the law and garnered bipartisan support for it, commented that "We need more funding for sexual assault victims, to get the word out and to educate people. That's what this is all about, and there is general agreement that it is a good thing."

On the other side of the issue, Stewart Whitehead, an attorney for the Texas Entertainment Association, commented that adult businesses in Texas support rape crisis centers and other similar programs, but opposes strip clubs being singled out for taxation. "We hope this sends a message nationally that these establishments are protected by the 1st Amendment and you can't impose an unfair tax on them just because they are an easy political target," Whitehead said.

According to the Times, "Texas lawmakers tried to pass a fee on strip clubs in 2004 to finance education, but the levy, derogatorily dubbed 'tassels for tots,' failed."

How Appealing (April 7, 2008)

Google Sued for Displaying "Boring" House on Google Maps Street View

The Smoking Gun is reporting that Aaron and Christine Boring of Pittsburgh are suing Google for “intentional and/or grossly reckless invasion” of privacy because their luxurious Pittsburgh home is viewable on the internet through Google Maps' Street View feature.

In the suit, the Borings allege that they bought their house -- which has two garages and a swimming pool -- in 2006 “for a considerable sum of money” and that a significant factor in their purchase decision was "a desire for privacy.” Unfortunately for the Borings, when Pittsburgh was added to the cities covered by Google Maps’ Street View feature, the Borings' home became viewable to the whole world. The Borings allege that this has caused them mental suffering and has diminished the value of their home, and they have requested $25,000 in damages.

According to WSJ Law Blog:

A Google spokeswoman issued the following statement:

There is no merit to this action. It is unfortunate litigation was chosen to address the concern because we have visible tools, such as a YouTube video, to help people learn about imagery removal and an easy-to-use process to facilitate image removal.

As a matter of policy, imagery for Street View is taken in public streets and what any person can readily capture or see in the public domain. Street View is a popular, engaging feature that allows people to easily find, discover, and plan activities relevant to a location.

According to, "While Google is believed to be reviewing the suit, the pictures now stand removed from their Web site."

WSJ Law Blog (April 4, 2008) (April 7, 2008) (April 7, 2008)

Friday, April 04, 2008

Kansas Governor Signs Anti-Funeral-Protesting Law

JURIST reported yesterday:

Kansas Gov. Kathleen Sebelius [official website] Thursday signed legislation [press release] that bans protests within 150 feet of a funeral one hour before, during and two hours after the end of a service. The Kansas Funeral Privacy Act [PDF text; supplemental note, PDF] also prohibits impeding a procession by obstructing a public street or sidewalk. A similar law was struck down [JURIST report] by the Kansas Supreme Court in March. The court ruled that the previous law's judicial trigger provision [JURIST report], which said the law could not be enforced until it was declared constitutional by a state or federal court, invalidated the entire law as it would make the courts an "advisory panel" to the legislature. The new law does not contain the provision.

The law was passed in response to picketing at military funerals by members of the Westboro Baptist Church [. . . JURIST news archive], who claim that US soldiers have been killed because America tolerates homosexuals. At least 37 other states have passed similar laws in response to the group, and a federal law [JURIST report] restricting protests at Arlington National Cemetery and other federal cemeteries has also been passed. AP has more.

Prior Kierkegaard Lives Posts on Related Subjects:
"Update: Legislation on Military Funeral Protests, Fred Phelps, and the Patriot Guard Riders" (June 2, 2006)
"Update: Military Funeral Protests, Fred Phelps, and the Patriot Guard Riders" (May 10, 2006)
"Patriot Guard Riders Vs. Fred Phelps" (February 22, 2006)

Bryan Garner's Interviews with SCOTUS on Advocacy and Writing

Over at Bryan Garner's LawProse website, you can access videos of Garner's 2006-2007 interviews with eight of the nine SCOTUS Justices concerning their thoughts about legal writing and advocacy.

According to the site:

In 2006-2007, Bryan Garner interviewed eight of the nine Justices about legal writing and advocacy. These are the complete interviews. . . .

LawProse is making these interviews available as a public service. Anyone may freely use these videos for educational purposes, with appropriate attribution to Bryan Garner or LawProse.

The Legal Reader (March 11, 2008)
How Appealing (March 11, 2008)
How Appealing (March 10, 2008)

Wednesday, April 02, 2008


So, it's been slightly less than 1 year since I've had time and access to post and update. But I'm really hoping that's going to change. If you happen to check out any of the links listed at the right and find any of them to be broken, "on hiatus," or otherwise invalid, please post a comment. I'm working on trying to get through them and do some "cleaning," but I'd appreciate any help.

... and hopefully I'm back.

Friday, June 08, 2007

Summertime Advice for Law Students

This post concerns a couple of topics I've meant to post about for some time now, but have just not previously gotten around to. Today's as good a day as any to do it, I suppose.

It's summertime, and many law students may be thinking about enjoying their summer clerking positions, taking a break from thinking about how to be more successful in the classroom, etc. Nonetheless, there have recently (in a very relative sense) been a couple of topics floating around about how law students can be more successful. Because I have many friends involved in legal education, I thought I'd pull these couple of ideas and the related posts together here, so they can be shared with those students who might have some time this summer (or later -- this post won't be going anywhere) to work on being more successful students next year.

1. More Effective Reading:

Raymond Ward, over at the (new) legal writer blog, had a POST back in March on the subject of the correlation between "how" law students (and other legal readers) read and how "successful" they are, whether in terms of better grades or efficiency in legal practice. The post was referring to work done by Professor Leah Christensen of St. Thomas Law School in Minneapolis/St. Paul.

Professor Christensen's papers would be good summer reads for law students to gain an appreciation of this correlation and to consider ways in which their own reading might be more effective. In the short term this could translate to improved grades. In the long term this could translate to more success in practice. Both papers are available for free on The Social Science Research Network:

Legal Reading and Success in Law School (August 2006).
The Paradox of Legal Expertise: A Study of Experts and Novices Reading the Law (2007).

2. Secrets of Successful Legal Writing Students:

Also back in March, Ward POSTED about a research paper authored by Anne Enquist of Seattle U. School of Law studying the secrets of successful legal writing students. In the paper, Professor Enquist discusses a study done at Seattle U. comparing several legal writing students, their individual habits and practices, and their respective levels of succcess in the legal writing class. As Ward noted:

The study suggests (not surprisingly) that a systematic, organized approach is the key:

[T]he study reveals not only the results of working harder but the specifics of working smarter. The secrets to working smarter included note-taking and note-reviewing strategies; how to divide one’s time between researching, drafting, revising, editing, and proofreading; how to research and read cases efficiently; strategies for efficient time management; techniques for organizing one’s research and staying organized while writing; and accessing the professor as a primary resource. Pitfalls to avoid included procrastination, poor management of distractions, and scapegoating.

Professor Enquist's paper is also available on

Unlocking the Secrets of Highly Successful Legal Writing Students (March 2007).

Tuesday, June 05, 2007

Update: Fordham Symposium on Judicial Selection Articles Published

This references a past post on here, about a symposium on judicial selection that occurred in April 2006 at Fordham Law School in New York.

The articles concerning that symposium have now been published in the Fordham Urban Law Journal, Volume 34, dated January 2007. Thanks to Norman Greene for leaving a comment to let us know.

See: ENotes listing of contents for 34 Fordham Urban Law Journal.

Brian Leiter's New "Rankings" of Law School Faculty Citations.

Professor Brian Leiter, of University of Texas-Austin School of Law, is in the midst of conducting a study to determine the top law schools based on citations to their law school faculty. He has done this sort of ranking before (see 2005 Rankings for example). In the 2005 results, Leiter indicated:

This is a ranking of the top 30 law faculties based on a standard “objective” measure of scholarly impact: per capita citations to faculty scholarship. We looked only at the top quarter of each faculty, largely for logistical reasons--it made the study more manageable--but partly because the scholarly standing of a school depends more on its best faculty, than its average.

On June 3, Leiter posted the following (bolding in the original) on his Law School Reports Blog:

Over the summer, I plan to carry out a new citation study, and in the fall, we may (finally) undertake a new on-line reputational survey. To that end, we've compiled draft lists of faculty for 49 law schools that appear likely to rank in the top 35-40 by these different measures. We may add a few more faculties to the mix, especially for purposes of a reputational survey. The faculty lists include only academic faculty (an effort has been made to exclude clinical, adjunct, and legal writing faculty, since these studies will focus on scholarly output). The ranking study will be per capita across the whole faculty, since many have worried that by looking only at the top quarter of the faculty in the past produced distorted results because of one or two very highly cited faculty at certain schools (e.g., Chemerinsky at Duke, or Delgado at Pittsburgh). . . .

Leiter's call has generated some criticism, which he has not handled particularly well. Specifically, the decision to exclude ALL clinical and legal writing faculty from the study would seem to leave a gaping hole in the credibility of a study about which law school faculty is most oft-cited. When Richard Neumann of Hofstra Law, for example, pointed out the flawed methodology of completely ignoring all clinical and legal writing faculty, Leiter responded and referred to Professor Neumann as "someone named Richard Neumann," suggested that Professor Neumann has a "chip on the shoulder," and referred to Professor Neumann's comments as "irrational and self-serving." Never mind that Professor Neumann is nationally known, has authored significant text books, teaches both clinical and non-clinical courses, and is likely more recognizable in the community of law school faculty than Leiter.

It's worth noting that Leiter is also, per his own request for input, starting with a list of schools he "expects" to be the top schools. So not only is he ignoring a potentially very large portion of highly cited legal scholarship by clinical and legal writing faculty at law schools, he is further beginning with a list of schools he expects to be ranked at the top -- based in part on past studies that have also ignored significant legal scholarship. And then he seems shocked when others point out the flaws in his basic premises. It's worth noting that Leiter *does* include part-time and adjunct faculty in his evaluations (such as Judges Posner and Easterbrook at The University of Chicago) -- while, again, leaving out full-time, tenured or tenure-tracked faculty in clincial and legal writing.

Leiter seems to completely ignore the changing landscape of legal education. Clinical and legal writing faculty, unlike as recently as 10 years ago, are now increasingly tenured or tenure tracked, and engage in every bit as meaningful scholarship on a variety of legal topics as non-clinical faculty. Most clinical and legal writing faculty are now eligible for summer research grants, and studies by the Association of Legal Writing Directors (ALWD) indicates that there is a significant trend toward requiring legal scholarship of such faculty. It is not difficult to find information about the growing impact of clinical and legal writing faculty in the world of scholarship -- peruse the sources in this post at The Legal Writing Professors Blog for some examples.

As a final matter, it's worth noting some very basic reasons why Leiter's study is flawed, beyond the seemingly obvious fact that ignoring a significant number of law schools entirely, and then ignoring a significant portion of the faculty at the schools that are considered, casts doubt on the credibility of the survey results. In the comments on Leiter's blog, Dean Stephen Ellman of the New York Law School, commented:

In sum, it is probably true that a citation survey of only non-clinical faculty would measure the impact of the work of those who are, in general, the most likely to be the most active authors -- though not without some striking omissions and no doubt with the inclusion of a number of very unproductive classroom teachers. But such a survey would miss not only the work of a sizable number of people who are genuinely and productively committed to scholarship, by reason of professional obligation and personal inclination, but also the impact of the institutional decisions that have concentrated these people at some schools rather than others.

It seems fair to add that the task of separating clinical and nonclinical faculty is itself so difficult that undertaking it is bound to generate errors along the way. Many clinicians, of course, have titles that are identical to those of their nonclinical colleagues, and so they cannot be distinguished by title. Many also cannot be distinguished by contractual status, since they hold full, regular tenure. In addition, many clinicians do not teach only clinically. Suppose a clinical professor also teaches Civil Procedure, and so his or her teaching time is 1/4 clinical, 3/4 nonclinical. Would this professor count as a clinician? What if his or her teaching load was half clinical and half nonclinical? Or 3/4 nonclinical and 1/4 clinical? Or suppose that the professor in question is, initially, a nonclinical faculty member, but over time comes to spend a portion of his or her time teaching in a clinic? Which of these people (and I think there are a lot of people who fit one or another of these models) would count as clinicians, and why? I think that figuring out the right time-share definition of "clinician" won't be simple, but it’s important also to keep in mind that formulating the definition may well be easier than collecting the data with which to apply it.

One other anomaly bears mentioning: a failure to count citations to scholarship by clinicians will mean that citations to otherwise comparable works of scholarship, perhaps appearing in the pages of the same law review issue, will be counted, or omitted, depending solely on the identity of their author. An issue of the Journal of Legal Education, for example, might include articles on law school pedagogy by both clinical and nonclinical faculty – but only citations to those written by the latter group would be counted. Clinicians, it should be noted, write on a great many topics; a symposium on torts, for instance, might feature articles by clinicians and nonclinicians, but again only those written by nonclinicians would be accounted for. Or to take one more example, there may be instances where a clinician from one school and a nonclinician from another school co-author a piece (I’m not speaking hypothetically, since I know of a book that fits this description precisely); citations to the book, or article, would be credited to the nonclinician and his or her school, but not to the clinician and the school he or she taught at.

Like most random law school rankings, Leiter's must be taken with a grain of salt. Leiter's failure to recognize the significant contributions that clinical and legal writing faculty make to legal scholarship, at least with respect to a good number of schools -- I think you could look at Mary Beth Beazley at Ohio State as one example of a clinical/legal writing scholar who is both highly published and very highly cited -- is reason enough to look at his results with a highly skeptical eye, no matter how highly his own school might end up ranking in his study (top 10 in 2005, by the way).

Wednesday, April 18, 2007

Federal Partial Birth Abortion Ban Upheld

Although I don't have time to provide any thoughts or analysis on the ruling -- other than to say it's a shame that precedent means so little to this Supreme Court than a simple change of one member means throwing out a very recent decision on identical issues -- I don't want to fall into a habit of not posting again just because I'm busy.

SO. Instead, I'll point to the following other blogs which provide some insight, analysis, summaries, etc., of the recent SCOTUS decision upholding the Federal Partial Birth Abortion Ban:

ACS Blog: BREAKING: Supreme Court Upholds Abortion Ban.
SCOTUS Blog: Court upholds federal abortion ban.
TalkLeft: Alito: The Chickens Come Home to Roost.
Althouse: The federal "partial bith" abortion ban is upheld.

**4/19/07 UPDATE:**
Obviously there is a ton of information on the blawg-o-sphere about this decision. Here a couple of the more important followups:
ACS Blog: Wednesday Roundup: Reproductive Education.
ACS Blog: Justice Ginsburg's Summary of Dissent.

**4/19/07 UPDATE #2:**
A couple of more important and valuable links about the decision:
How Appealing (with many external links included).
SCOTUS Blog: Commentary: Some Consequences of Carhart II.