Thursday, July 29, 2010

Dropping out of the Electoral College, or, End Running the Constitution?

Massachusetts just became the latest state to drop out of the Electoral College. Oh, wow! The Boston Globe reported yesterday that our legislature had passed the bill, which will go to our governor, who has expressed support for it. All 12 of Massachusetts' electoral college votes will then be awarded to whichever presidential candidate garners the most popular votes nationwide. Other states which have passed similar laws so far are Illinois, New Jersey, Hawaii, Maryland, and Washington. You can track the efforts at A number of other states have pending bills. Once enough states have passed similar legislation that their electoral college votes add up to a majority (or 270 of the 538 electoral college votes), it won't matter what the other states do. Whichever presidential candidate wins the popular vote would win the national election through the electoral college vote.

The current situation, with the electoral college selecting the President, and the popular vote selecting the members of the electoral college on a variety of different schemes, varying by state, but mostly under the "winer take all" scheme where the majority winner of the popular vote in the state wins all the electoral votes of the state. The website gives a succinct explanation:

The National Popular Vote bill would guarantee a majority of the Electoral College to the presidential candidate who receives the most popular votes in all 50 states and the District of Columbia. The bill would reform the Electoral College so that the electoral vote in the Electoral College reflects the choice of the nation's voters for President of the United States. (snip)

The shortcomings of the current system stem from the winner-take-all rule (i.e., awarding all of a state’s electoral votes to the candidate who receives the most popular votes in each state).

Because of the winner-take-all rule, a candidate can win the Presidency without winning the most popular votes nationwide. This has occurred in 4 of the nation’s 56 presidential elections. Near-misses have been common. A shift of fewer than 60,000 votes in Ohio in 2004 would have defeated President Bush despite his nationwide lead of 3,500,000 votes.

Another shortcoming of the winner-take-all rule is that presidential candidates have no reason to poll, visit, advertise, or organize in states where they are comfortably ahead or hopelessly behind. In 2008, candidates concentrated over two-thirds of their campaign visits and ad money in just six closely divided "battleground" states. A total of 98% went to just 15 states. In other words, voters in two thirds of the states were essentially spectators to the presidential election.

The U.S. Constitution gives the states exclusive and plenary control over the manner of awarding their electoral votes. The winner-take-all rule is not in the Constitution. It was not the Founder’s choice and was used by only 3 states in the nation’s first presidential election in 1789. Maine and Nebraska currently award electoral votes by congressional district — a reminder that an amendment to the U.S. Constitution is not required to change the way the President is elected.
The website has several links to analyses of the constitutionality of these legislative efforts at the explanation pages.

Among other problems that supporters want addressed, are:

* Candidates ignore states that either seem strongly for them or against them to concentrate on swing states;

* They want to make sure that every voter, no matter where they live, is reached out to, and

* Every voter has an equal say in the electoral outcome. At this time, voters in low population states such as Montana have much more clout than voters in densely populated states such as New York, for instance, on a per capita basis, because of the rule that each state has at least one representative to the electoral college. The voters' say is further diluted by most states' adherence to the "winner take all" rule. States such as Illinois or New York that have high density urban areas that outweigh the large rural areas, for instance, often have strong liberal votes in the urban areas and conservative votes in the rural areas. But the urban areas often have a population density high enough to out-vote the large rural areas of the state. So, the vast swathes of upstate New York and downstate Illinois are outvoted by the urban behemoths of New York City and Chicago, respectively, and because of "winner take all" rules, the conservative rural and suburban voices are drowned out. Only a few states, such as Maine, use different rules, where, in Maine, for instance, each Congressional district elects its own electoral college member.

Tuesday, July 27, 2010

Federal Register Relaunches New & Nicer Site

The good folks at the Federal Register are relaunching their new website, a much nicer interface than the old GPO website. Take a look at, to see the new access. The Washington Post has an article covering the relaunch, noting it is part of the Obama administration efforts to make government information more available. The relaunch is scheduled for July 26. The article notes that the relaunch demystifies the arcane searching of the Register by reorganizing the thousands of rules and regulations issued each week into six categories:

science and technology,
business and industry,
and health and public welfare
Apparently, more categories may be added later, with public input. Notices will appear on the home page. Each request for comments will appear on a single web page. And the contents will be in plain language as much as possible. Editors will create headlines or highlights tied to the current debates and hot topics in the Capitol. The website will be modeled on punchy, successful newspapers such as USA Today. (Update from an e-mail: the upgrade marks the "75th anniversary of the Federal Register Act on July 26, 2010, the National Archives Office of the Federal Register and GPO have launched FR 2.0 on The FR 2.0 web site is a beta site at this time, but it may be approved as an official edition in 2011." Tip of the OOTJ hat to Janice Anderson at Georgetown Law and to my colleague, Susan Sweetgall at Suffolk U. Law Library in Boston, who alerted me to the story in the Washington Post).

The tip end of the Post article comments that one day, the Register may appear only online. That, of course, has been the dream and pressure both, to reduce costs and make materials more widely available. Librarians and folks at the National Archives and GPO are aware of the problems involved. The requirements to authenticate the materials produced this way, and to archive it and maintain it in a machine-readable format, even as technology moves along, are not being funded. The Congressmen who think this is the way to cut the budget at the Congressional Printing Office need to be educated. How many of them can read documents stored on a five and a half inch floppy disk? Who now can read materials stored in WordStar, formerly one of the most popular word processing softwares? You have to plan to re-copy digital materials periodically, into new physical formats and new, readable software formats. You have to authenticate the copy that you put out, if it is primary law, that this is the true and final copy of the regulations, and that you have put it into a form that cannot be tampered with unless it leaves a signal. These efforts cost some money. I welcome the new developments, and really look forward to the launch. But I am glad the launch does not yet cut off the print version and the depository library program.

The other thing that I worry about as Congress or other governmental bodies imagine they can cut off paper printing and distribution to public libraries of legal materials, is the fact that not ALL citizens have free access to computers or the Internet. When I publish links to articles in the Boston Globe about debates over closing branches of our public libraries here, I have been disheartened by the number of clueless comments from people who say things like "Why do we need libraries? It's all on the web!" This is so wrong in so many ways! It's not all on the web. And the very people who lack access to the computers and web are the ones who are hurt the most by closing the public libraries, in so many other ways. In a democracy, I strongly believe that every citizen has a right to have free access to see the laws of the land. It is just WRONG for people to have to pay to get access to statutes, regulations, case law. I don't mind for companies to charge when they add extra value to these public legal documents --adding headnotes, extra nice indexes, tables, and other plus value aids. But the basic text is something that we already paid for as citizens by paying our taxes. We paid for our legislature to meet. We paid for our courts, and judges to sit. We paid for the Governor and President, and all the various agencies that write the regulations and rules and adjudicate under them. And by golly, those basic documents belong to all of us.

Monday, July 26, 2010

Justice Denied in Cambodia? is reporting on the sentencing of Kaing Guek Eav, also known as "Duch," who headed Tuol Sleng, a prison in Cambodia reserved for enemies of the Khmer Rouge regime. OOTJ has published several posts on this subject. Duch is the first of the Khmer Rouge to stand trial for war crimes and crimes against humanity at a tribunal organized by the United Nations. After a seventy-seven-day trial, Duch was convicted of the crimes of which he was charged and sentenced to thirty-five years in prison. Many observers thought that a life sentence would have been appropriate given the gravity of his offenses. What has particularly distressed Cambodians is that Duch,who is sixty-seven years old, will probably serve only nineteen years because the tribunal took the following factors into consideration: the "regime was the product of the troubled Cold War times"; Duch was not a member of the Khmer Rouge's ruling elite; he cooperated with the court; and he admitted responsibility for his crimes. In addition, he was given credit for time already served and for illegal detention in a military prison. Weighing against him were his "'limited' expressions of remorse." Many feel that a nineteen-year sentence does not do justice to the 16,000 people whose deaths Duch oversaw. The tribunal was intended to help the Cambodian people move on from the trauma of the Khmer Rouge years, but this controversial sentence has instead opened up old wounds and further delayed the healing process. Has the sentence also undermined the credibiity of the tribunal? In addition to the article, the msnbc site has some features--a video and an interactive presentation about the Khmer Rouge era--that are very informative.

Friday, July 23, 2010

Update on Murdoch's Pay Wall

The Times of London went behind a paywall on June 15. In addition, the owner of The Times, Rupert Murdoch, blocked search engines from including Times stories in their search results. The authors must love this! This was covered at the Law Librarian Blog by Mark Giangrande, who also reported on the "steep decline in online viewers" since the changeover to the paywall. One source reports a decline of 65% in online readers, while another reports 90%--both large numbers, to be sure, and large enough that no one could claim that the paywall has been a success so far.

An interesting twist on The Times's paywall experiment is provided by Michael Wolff at Newser. Wolff declares that

Will [Murdoch's] paywall work is the biggest story in the media business, and it would be quite a journalistic coup to document the progress, or lack thereof, that's being made in trying to convince a skeptical world to shell out 2 pounds ($3) a week for what's heretofore been free.

He is not reporting on himself because even less than most news outlets, Murdoch outlets have no objective sense when it comes to their own interests ... or willingness to ask questions which the boss might find uncomfortable, or penchant for anything but the party line. The news from News Corp. is always snarlingly good--even when it is very bad.

My sources say that not only is nobody subscribing to the website, but subscribers to the paper itself--who have free access to the site--are not going beyond the registration page. It's an empty world.

Why would writers want to write for The Times if their work is not going to be read? Some might feel that Murdoch is the "last best hope for getting us paid for our labors" but writers want to be read; as Wolff points out, readers are the "real currency" of writers. Will the paper become irrelevant in a world of free news? The Wall Street Journal is behind a partial paywall and seems to be profitable, but the Journal occupies a very special niche with few real competitors. Can The Times make that claim? What implications does Murdoch's experiment with The Times have for The New York Times, which plans to erect its paywall in 2011? Murdoch's goal seems to be to protect the market for the print newspaper, but hasn't that train already left the station?

Friday, July 16, 2010

Argentina Legalizes Same Sex Marriage

The Washington Post has a nice in-depth article and a link to video about Argentina's Senate voting Thursday morning to legalize same-sex marriage. The House had already passed the same bill, so this vote sent the bill to the President, Cristina Fernández de Kirchner, who strongly supports it. Argentina becomes the first Latin American country to legalize gay marriage, and only the second nation in the Americas, after Canada to do so. Mexico City has voted to legalize same sex marriage, the only other place in Latin America that supports the institution. In Colombia, the high court recently gave same sex couples most of the same rights as heterosexual couples. And in Uruguay, the Congress recently passed legislation recognizing same sex civil unions.

Argentina, which has a long history as a uniquely cosmopolitan place, may be the most logical place for such a revolution to begin. The nation incorporates immigrants from all over Europe and the world, and welcomes Jews, Muslims and anarchists. Unlike many other Latin American countries, the Roman Catholic church, though still powerful, has less of a hold over policy and public thought in Argentina. Now, in the United States, only the states of New Hampshire, Vermont and the district of Washington, D.C. have recognized same sex marriage by legislation. All other venues had to achieve it through litigation, and it certainly is not available nation-wide. Congratulations, Argentina!

Thursday, July 08, 2010

Federal District Court Judge Rules Federal DOMA Unconstitutional

The New York Times has an Associated Press story this afternoon, datelined 5 PM, that the federal district judge in Boston ruled the federal Defense of Marriage Act is unconstitutional for infringing the right of Massachusetts to define who may marry. GLAD has more details on their website, including a pdf of the full text of Judge Joseph Tauro's decision in the case, Gill and Letourneau v. Office of Personnel Management.

My Genes Made Me Do It

My daughter is starting graduate school in neuroscience this fall. She has always recoiled from the idea of attending law school, but seems fascinated by the intersection of neuroscience and the law. This often plays out in the area of legal responsibility for criminal behavior "as neuroscience makes inroads into the courtroom, and presents guilt and innocence--not in terms of black and white--but in shades of gray."

This quotation comes from the last installment of a three-part series of articles written by Barbara Bradley Hagerty and forwarded to me by my daughter. The first article, "A Neuroscientist Uncovers A Dark Secret," describes the process by which neuroscientist James Fallon attempts to discover "how a killer's brain differs from yours and mine." His research showed that the orbital cortex, the part of the brain "involved with ethical behavior, moral decision-making and impulse control", displays little activity in people who are "'free-wheeling types or sociopaths.'"

The second article, "Inside A Psychopath's Brain: The Sentencing Debate," discusses the research of Kent Kiehl, an expert on psychopathy, who has done MRI scans of the brains of over 1,100 prisoners, about 20% of whom are psychopaths. Kiehl has found that in psychopaths, the "'emotional circuit,' involving the orbital cortex above the eyes and the amygdala deep in the brain," does not work in the same way it does in normal individuals. A psychopath may know the different between right and wrong, but can he make good decisions? And if he is physically incapable of making good decisions because his brain is abnormal, should he be held responsible for his actions?

The third article, "Can Your Genes Make You Murder?", describes a horrific murder committed by Bradley Waldroup in 2006. His defense attorney consulted William Bernet, a forensic psychiatrist, who evaluated Waldroup and analyzed his DNA. Bernet found that Waldroup has the "MAO-A gene--also known as the warrior gene because it has been associated with violence. ... Waldroup has the high-risk version of the gene." Bernet concluded that Waldroup's genetic composition coupled with the fact that he had suffered abuse as a child created a predisposition to violence; at Waldroup's trial, the judge permitted Bernet to testify "that these two factors help explain why Waldroup snapped that murderous night." The jury ultimately convicted Waldroup of voluntary manslaughter and second-degree murder, sparing him the death penalty; they believed that the murder was not a premeditated act.

The argument boils down to this. Some experts argue that a brain abnormality should not excuse a criminal act, but should go to mitigate the sentence; society should punish those who commit criminal acts, but not execute them. Other experts argue that it is irrelevant if someone's brain is abnormal, because, in the words of Jonathan Brodie, a psychiatrist, "'the brain does not dictate behavior.'" Steven Erickson, a forensic psychologist, goes even further and states that "' ... the law is not interested in brain abnormalities. The law is interested in whether or not someone at the time that the criminal act occurred understood the difference between right and wrong.'"

Tuesday, July 06, 2010

Now I Understand

In my Advanced Legal Research course, I have a reputation for being a hard grader (I prefer to think of myself as being fair rather than hard) and for assigning a lot of work. My students are asked to prepare a research guide on a discrete area of the law, and it does take a good bit of time to do this assignment well. I have noticed that students complain more now than they did in the past about the work required for the research guide even though the course now carries three credits; for years, it carried only two. My faculty colleagues have heard the same complaints about their courses. I have often wondered why students are more likely to complain about the workload now than they did in the past. Perhaps it is because they are graduating from college unaccustomed to working hard.

The Boston Globe has reported that a new study "shows that over the past five decades, the number of hours that the average college student studies each week has been steadily dropping." In 1961, "the average student at a four-year college ... studied about 24 hours a week. Today's average student hits the books for just 14 hours." This trend is seen at all colleges, no matter how selective. The study was conducted by Philip Babcock and Mindy Marks, two economics professors, and will soon be published in the Review of Economics and Statistics. It corroborates anecdotal evidence, noted in "survey after survey since 2000 ... [that] college and high school students ... are simply not studying very much at all." Some professors have been aware of this trend for some time.

Could their failure to study in college be the reason some students arrive at law school mentally unprepared for the amount of work they will have to do? I sometimes work with students who are experiencing academic difficulties. When I tell them they should be studying three to four hours for each hour they spend in the classroom, which I think is a good rule of thumb for law school, they are incredulous. None of them study this much. Nor do they think they should have to study this much.

Why don't students study as much as they used to? The study's authors bring up the "easy culprits--the allure of the Internet ... the advent of new technologies ... , and the changing demographics of college campuses ..." but conclude that they are not to blame. Rather, students' failure to work hard may well be caused by "the growing power of students and professors' unwillingness to challenge them." The study's authors offer a theory that

[S]uggests that the cause, or at least one of them, is a breakdown in the professor-student relationship. Instead of a dynamic where a professor sets standards and students try to meet them, the more common scenario these days ... is one in which both sides hope to do as little as possible.

"No one really has an incentive to make a demanding class ... To make a tough assignment, you have to write it, grade it. Kids come into office hours and want help on it. If you make it too hard, they complain. Other than the sheer love for knowledge and the desire to pass it on to the next generation, there is no incentive in the system to encourage effort."

Has the educational system been undermined by students' evaluations of their professors? "Course evaluations have created a sort of 'nonagression pact' ...where professors--especially ones seeking tenure--go easy on the homework and students, in turn, give glowing course evaluations." At some undergraduate schools, administrators are trying to combat the insidious effect of student evaluations by putting less emphasis on them during tenure decisions, and by directing professors "to give explicit tasks to students. Just telling them to read these days is often considered 'too generic, too general of a request ...' And many professors today are using Internet-based systems ... where students are required to log on and write about the assigned reading ... " However, at most schools, the issue isn't even being acknowledged by administrators.

Progress Report on New UMass Law School

Things seem to be going well for the new public law school in Massachusetts, according to an article in the Boston Globe. The University of Massachusetts School of Law "formally assumed its new identity July 1." The new school came about when the University of Massachusetts Dartmouth took over the Southern New England School of Law, a very controversial move. Several of the private law schools in Massachusetts opposed the merger, arguing that "the state had enough law schools" and questioning "its financial feasibility." They, of course, were concerned about a lower-cost rival. At the same time, some Massachusetts legislators were worried about what the new law school would cost the state, despite the fact that Southern New England School of Law donated its campus and assets. At least some of these fears now seem to have been ill founded. Applications and enrollment are strong (the first-year class will include 155 students, a respectable number), and the students' credentials have risen, even though the school is not yet accredited.

Monday, July 05, 2010

Criminal Background Checks for Students?

The Chronicle of Higher Education in an article datelined June 30, 2010, reports on program at the annual conference of the National Association of College and University Attorneys. Speakers discussed the advisability of asking for criminal background checks on students, usually as part of the admissions process. In the absence of formal policies on how to handle the information, or how to interpret it if received, at least one speaker counseled against background checks.

Most colleges and universities that have policies requiring criminal background checks began doing so either after a murder or other crime on their campus or a nearby campus. But as more institutions begin to require this information, it may become adopted more widely without considering the ramifications. The speakers at this conference wanted to raise the consciousness of their listeners. A recent survey showed that about 18% of colleges and universities perform a background check on "some sub-set of general applicants."

"One horrific event sets in motion what in my judgment is a punitive reaction, in the name of safety," Mr.[Barmak] Nassirian [an associate executive director of American Association of Collegiate Registrars and Admissions Officers] said of what he sees as a pattern. Criminal records are often inaccurate or misleading, he said, and prior charges or convictions do not predict future behavior. The judicial system should decide whom to isolate, said Mr. Nassirian. "If a person doesn't belong on campus, what are they doing free in our society?"

Still, campuses are continually exploring new ways to meet public expectations and to try to keep students safe. Criminal background checks—and not just self-disclosures—may become the industry standard, particularly for residential students, said Darby Dickerson, dean of Stetson University's College of Law, and another presenter at the legal conference.
Dean Dickerson went on to note that while some may fear that requesting background checks could increase an institutions's liability, that it is not a simple equation. Admitting a student with a criminal record is not per se negligence, according to Dean Dickerson. It may then raise the question of whether failing to ask for background checks if there are warning signs in the record, might be some form of negligence. As more institutions begin to use this process, it may become the industry standard, and begin to look unreasonable if a college does not ask for a records check if there are warning signs in the record.

Here are Dean Dickerson's recommendations:

* Establish policies to consider students' records fairly and consistently, not simply focusing on a criminal record, but looking at the entire record;

* The policy needs to specify how to handle sealed juvenile records, news reports of arrests and convictions, and such things as reduced charges;

* The policy needs to specify how to communicate the decision to the applicant;

* The policy must cover privacy, controlling access to the criminal records in order to avoid liability for discrimination or defamation;

* The records need to be updated regularly, even after a student is admitted;

* Administrators who make admissions decisions must be trained and regularly re-trained by mental health and legal experts on how to use and interpret these records.

Saturday, July 03, 2010

Declaration of Independence - Technology brings new insights

The Library of Congress released news yesterday of a discovery that new technology made possible on a draft of the Declaration of Independence. Here is a link to the Associated Press article as it appeared in the Boston Globe this morning. Using a high resolution digital camera that can separate layers of images, a researcher at the archives discovered an erasure in the document. Thomas Jefferson originally wrote the word "subjects" and then wiped it out, apparently while the ink was still wet. He then substituted the word "citizens," which he continued to use throughout the document. The substitution is a window into the mind of Jefferson, as he began to move from the mindset of a royalist to a revolutionary, or to a democrat (in the sense, not of political parties, but of government alternatives).

Happy Independence Day! And kudos to the researchers who discovered this! The image is a close-up of the document showing the word "citizen" substituted into the draft. Other highlights of the draft are changes and notes in the handwriting of John Adams and Benjamin Franklin. A very exciting document for history buffs!