BLS Library Blog

Having visited Turkey this past December to see firsthand a country at the crossroads of Europe and Asia, I read with great interest in today’s NY Times an article about the Turkish government’s recent decision to lift the ban on women wearing head scarves in universities. The article describes the standoff between traditional Islam and modern secularism, a tension that was strikingly evident in cities like Istanbul and Izmir—and to an even greater degree in smaller cities like Konya and Bursa where I traveled last month.

Since its founding as a republic in 1923, Turkey has developed a strong tradition of secularism which has moderated the influence of Islam in the political sector. With Turkey seeking full membership in the European Union, heated controversy has flared about key human rights principles that Turkey’s government treats differently from most other liberal democracies. Turkish laws restricting Islamic women from wearing head scarves in state-run universities pose a challenge to traditional Islam by mandating secular practices. The issue presents to Westerners an alternate view of what individual freedom means and many Westerners are often unable to reconcile their own notions of tolerance of religious expression in the context of Islam.

Another human rights issue involving Turkey is discussed in a report in Tuesday’s Chronicle of Higher Education. It involves a Turkish professor who was recently given a suspended prison sentence after being found guilty of insulting the memory of Mustafa Kemal Ataturk, the founder of the Turkish secular republic. Prosecutors had sought a five-year prison sentence. The professor was charged under a measure that makes it a crime to insult in public the memory of Atatürk. The Chronicle reported that a court in Izmir found that the professor had insulted Ataturk’s memory in comments he made last year while serving on a panel on the subject of Turkey’s bid to join the European Union. The professor had questioned his country’s political progressiveness and remarked that many Europeans would ask why there were so many statues and photographs of Ataturk in Turkey. The professor denied the charges that he had insulted Ataturk and argued that academics must have freedom of speech.

It is fascinating—and ironic—to notice how restrictions on freedom of speech can originate from both religious and secular fundamentalists. The principles being tested in Turkey may seem distant to American observers; but given the increased role of religious thought in our own political process, we might benefit from careful attention to this debate.

Sources: New York Times, For Many Turks, Head Scarf’s Return Aids Religion and Democracy, dated January 30, 2008
Chronicle of Higher Education, Turkish Professor Gets Suspended Sentence for Insulting Nation’s Founder by Aisha Labi, dated January 29, 2008

Question: I am a first-year law student at a fourth-tier regional law school and I got my grades about a week ago. They were below average for my class, and I have been very depressed lately. … How do I evaluate whether I should drop out of law school and do something entirely different? I really want to be a lawyer, but I don’t want to do it if I’m not going to be any good at it. Any ideas?

Answer: Some people are better suited to being lawyers than law students. You may be one of them. [Ouch.]

The first year of law school presents a difficult challenge for many students. You are learning new concepts and a new way of thinking. Some students “get it” sooner than others. Sometimes it takes a semester or two, or possibly more, to figure out how to approach legal issues. In a few cases, law is not the right career choice.

Consider whether you like the law, without letting your grades taint your assessment. … Similarly, separate your grades from your comprehension of the course material. …Ask yourself whether you possess the skills and characteristics that lead to success in the practice of law. …
Do not make a hasty decision to drop out of law school. Take time for self-assessment. Explore your options. Benefit from the help that is available to you.

Source: New York Lawyer

In an interesting 5-4 ruling yesterday on statutory interpretation, the US Supreme Court held that an exception to the Federal Torts Claim Act that grants immunity to “any officer of customs or excise or any other law enforcement officer” applies to “all law enforcement officers.” Justice Thomas’ majority opinion in Ali v. Federal Bureau of Prisons, ruled that law enforcement officers who steal prisoners’ personal property while engaged in their official duties are immune from lawsuits brought by prison inmates. The Court split 5-4, with Justice Thomas authoring the majority opinion joined by Scalia, Roberts, Alito and Ginsburg. Justice Kennedy wrote the main dissent, joined by Stevens, Souter and Breyer.

The New York Times in an article by Linda Greenhouse noted the unusual line-up of Justices as well the Court’s internal disagreement regarding how to engage in statutory interpretation. The article highlighted Justice Kennedy’s dissenting opinion, in which he wrote “the Court’s analysis cannot be squared with the longstanding recognition that a single word must not be read in isolation but instead defined by reference to its statutory context.”

At issue was the meaning of the phrase “any other law enforcement officer.” Did Congress mean to confer blanket immunity for property-related offenses on the part of any federal law enforcement officer? Or was the immunity limited to officers engaged in tax or customs work? The answer was sufficiently ambiguous that of the 11 federal circuits of appeals to address the issue, six had interpreted the exception as applying broadly to all officers, and five had read it narrowly to apply only to property seizures connected to revenue or customs enforcement.

In New York State Board of Elections v. Torres, the US Supreme Court today reinstated New York’s method for selecting Democratic and Republican judicial candidates, saying the decades-old approach doesn’t violate the constitutional rights of voters or would-be candidates. The justices voted unanimously to uphold the system, under which voters choose delegates to attend conventions where the trial-court nominees are selected. A federal appeals court said the system gives too much power to party leaders at the expense of so-called insurgent candidates.

“None of our cases establishes an individual’s constitutional right to have a ‘fair shot’ at winning the party’s nomination,” Justice Antonin Scalia wrote for the court. Scalia’s opinion was joined by six members of the Court. Justices John Paul Stevens joined the opinion but also wrote separately, joined by Justice David H. Souter, to stress that the Court was not ruling on the wisdom of New York’s approach. “The Constitution does not prohibit legislatures from enacting stupid laws,” Stevens wrote. Kennedy wrote separately, joined by Justice Stephen G. Breyer, to raise questions about the wisdom of picking judges by popular election. “The persisting question,” Kennedy wrote, “is whether that process is consistent with the preception and the reality of judicial independence and judicial excellence.”

The New York system, unique in the nation, has been in place since 1921. It was challenged by a group of Democratic and Republican voters and judicial candidates. The Democratic and Republican parties supported the New York system. A federal trial judge said the rules were unconstitutional and ordered the state to shift to a primary system until it could overhaul its convention procedures. The 2nd U.S. Circuit Court of Appeals in New York then upheld that ruling.

Source: Bloomberg, U.S. Supreme Court Reinstates New York Election Rules by Greg Stohr, January 16, 2008

See also SCOTUSBLOG, by Lyle Denniston, January 16, 2008

In Stoneridge Investment Partners v. Scientific-Atlanta Inc. and Motorola, the US Supreme Court handed a win to third-party defendants — including law firms, accountants and bankers — in securities fraud litigation.

The 5-3 ruling written by Justice Kennedy held that the private right of action by investors against companies allowed by Section 10(b) of the Securities Exchange Act of 1934 does not extend to third-party vendors and others if investors did not rely on their statements or representations. The ruling demonstrated the Court’s distaste for class-actions, with Kennedy stating that expanding causes of action in securities litigation would damage the economy and “would allow plaintiffs with weak claims to extort settlements from innocent companies.” Kennedy warned, however, that third parties with unclean hands are subject to enforcement actions by the Securities and Exchange Commission and other kinds of civil litigation. The decision will likely have a direct impact on the litigation surrounding the Enron collapse.

Justice John Paul Stevens, joined by Justices David Souter and Ruth Bader Ginsburg, dissented. Stevens criticized the majority’s “mistaken hostility towards the 10(b) private cause of action.” He invoked the old common law rule that “every wrong shall have a remedy.” and even cited a 1980 Second Circuit decision, Leist v. Simplot (638 F.2d 283), written by Judge Henry Friendly during the year that Roberts, now chief justice, clerked for Friendly. In that decision Friendly reviewed the history of implied causes of action in securities and other laws.

Source: New York Law Journal, Third Parties Shielded From Securities Suits, By Tony Mauro
January 16, 2008

Today’s Chronicle of Higher Education reports that professors are using YouTube in the classroom and making teaching a more public art. Web video opens a new form of public intellectualism to scholars looking to participate in an increasingly visual culture. One Web site that opened this week, Big Think, hopes to be “a YouTube for ideas.” The site offers interviews with academics, authors, politicians and other thinkers. Most of the subjects are filmed in front of a plain white background and the interviews are chopped into bite-sized pieces of just a few minutes each. The short clips could have been served up as text quotes but Victoria R. M. Brown, co-founder of Big Think, says video is more engaging. “People like to learn and be informed of things by looking and watching and learning,” she says.

YouTube itself wants to be a venue for academe. Recently, several colleges have signed agreements with the site to set up official “channels.” The University of California at Berkeley was the first and others will soon follow. How large the audience for talking eggheads is an open question. In the early days of TV, many academics hoped to use the medium to beam courses to living rooms, with series like CBS’s Sunrise Semester which began in 1957. Those efforts are now a distant memory. Things may be different now, since the Internet offers a chance to connect people with the professors and topics that most interest them.

YouTube hasn’t exactly made it easy to find the academic offerings, though. Clicking on the education category shows a mix of videos, including ones with babes posing in lingerie and others on the lectures of Socrates. But that could change if the company begins to sign up more colleges and pay more attention to whether videos are appearing in the correct subject areas, says Dan Colman, director and associate dean of Stanford University’s continuing-studies program, who runs a blog tracking podcasts and videos made by colleges and professors.
YouTube isn’t the only game in town for educational videos, of course. Besides Big Think, which boasts as an investor Lawrence H. Summers, former president of Harvard University and former U.S. Secretary of the Treasury, there is also FORA.tv (“the thinking man’s YouTube”) which streams, lectures and debates featuring noted scholars (think a hipper, Web-based version of C-Span).

Michael L. Wesch, an assistant professor of cultural anthropology at Kansas State University, made a video about Web 2.0 that drew more than 400,000 views. He says Web video offers a new way for scholars to communicate, noting that he wrote a scholarly article about the same ideas he put in his video, but that the article might be read by only a small number of scholars. “It’s easier than people think,” Mr. Wesch says of making online videos. “The thought process is very different, which I actually think can be very valuable. I mean we think a lot about how to present our work in writing, and I think when you shift into thinking about how to present this work visually, it actually forces you to think through things in new ways.”

Source: Chronicle of Higher Education, Jeffrey R. Young, January 9, 2008

An overflow crowd of legal educators packed a hotel ballroom and balcony on Friday to listen to speakers voice both support and skepticism for a call to overhaul the way lawyers are educated. The annual meeting of the Association of American Law Schools here drew the first national audience for a movement that has been gathering momentum since last January, when the Carnegie Foundation for the Advancement of Teaching released a report calling on law schools to teach more practical skills and to focus more on ethics and professional responsibility (The Chronicle, Jan. 19, 2007). The goal, the report said, was “to bridge the gap between the theoretical and the practical.” Since then, members of the foundation have been meeting with groups of law schools to try to put some of the changes it recommended into practice (The Chronicle, Dec. 20, 2007). The law-schools’ association has also started a new Web site to highlight and encourage curricular innovations.

While many people at the annual meeting spoke with excitement about the chance to “revolutionize” legal education, others questioned whether some of the proposed changes, particularly the emphasis on practical skills, were feasible, or even desirable. Michael A. Fitts, dean of the University of Pennsylvania Law School, said 90 percent of Penn’s law students take courses in other disciplines, like business, communications, or health care, and will pursue diverse careers, some outside the practice of law. So he questioned whether the notion of teaching to a single profession makes sense for all schools. “I worry that a vision of professional education may be narrow when you look at what our graduates may be doing five or 10 years down the road,” he said.

Mary C. Daly, dean of St. John’s University School of Law, agreed. Being a lawyer at a small firm requires different skills from entering a corporate practice or doing pro-bono work, she suggested. “There isn’t a single profession—there are at least three, and I don’t have the resources to build three bridges,” she said. Many professors on her campus would rather see the school move toward a more academic, rather than practical, model, she said. Law faculty are typically rewarded more for publishing than for good teaching, and a law school’s prestige is often tied to its scholarly reputation. “There’s a tension between where Carnegie says we should be moving and where our faculty, especially the younger ones, says we should be moving,” Ms. Daly said. Tension isn’t necessarily bad, she added, suggesting that a hybrid strategy of closely integrating the theoretical and practical, approached incrementally might be best. “Maybe tension is part of the evolutionary process,” she said. Some questioned whether professors at research-oriented law schools are interested or even qualified to teach practical skills since many of them have not practiced in decades.

Source: Chronicle of Higher Education, Katherine Mangan, January 7, 2008

Happy New Year!

2008 marks the anniversary of a number of important Supreme Court decisions. Jack Balkin at http://balkin.blogspot.com/ lists the important cases whose milestone anniversaries occur this year.

100th anniversary

Adair v. United States, 208 U.S. 161 (1908)(striking down ban on “yellow-dog” contracts that forbade workers from joining trade unions.)
Muller v. Oregon, 208 U.S. 412 (1908)(upholding woman protective labor legislation)
Ex parte Young, 209 U.S. 123 (1908)(creating legal fiction of suing state attorney general to permit suits against states and get around Hans v. Louisiana’s interpretation of the Eleventh Amendment)
Londoner v. City and County of Denver, 210 U.S. 373 (1908)(administrative agencies must provide due process for adjudicative but not legislative actions)
Berea College v. Kentucky, 211 U.S. 45 (1908)(upholding Kentucky law that banned racial integration by private universities chartered as corporations)
Twining v. New Jersey, 211 U.S. 78 (1908)(key case in debate over incorporation of the Bill of Rights, declining to incorporate Fifth Amendment’s ban on compelled self-incrimination)
Bailey v. Alabama, 211 U.S. 452 (1908)(striking down peonage laws under the Thirteenth Amendment)[UPDATE: Actually the decision striking down the peonage laws is the second Bailey case, 219 U.S. 219 (1911), see Raphael’s note below]

50th anniversary:

Trop v. Dulles, 356 U.S. 86 (1958)(cruel and unusual punishment to strip citizenship as punishment; origin of “evolving standards of decency” test in Eighth Amendment jurisprudence)
Kent v. Dulles, 357 U.S. 116 (1958)(recognizing right to travel under the Fifth Amendment)
NAACP v. Alabama, 357 U.S. 449 (1958)(protecting freedom of association of NAACP from compelled disclosure of membership lists)
Speiser v. Randall, 357 U.S. 513 (1958)(striking down requirement of loyalty oath in order to obtain tax benefits)
Cooper v. Aaron, 358 U.S. 1 (1958)(holding that state school boards resisting integration orders were bound by the Supreme Court’s interpretation of the Constitution)

35th anniversary

San Antonio Independent School Dist. v. Rodriguez, 411 U.S. 1 (1973)(holding that education is not a fundamental right and poverty is not a suspect classification)
Frontiero v. Richardson, 411 U.S. 677 (1973)(applying heightened scrutiny to classifications based on sex)
Miller v. California, 413 U.S. 15 (1973)(developing three part test for obscenity)
Roe v. Wade, 410 U.S. 113 (1973)(upholding right to abortion)
Doe v. Bolton, 410 U.S. 179 (1973)(upholding right to abortion)

25th anniversary

Bob Jones University v. United States, 461 U.S. 574 (1983)(upholding loss of tax exempt status to private religious school that discriminated on the basis of race)
City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983)(striking down various Ohio restrictions on abortion; in dissent, Justice O’Connor first offers “undue burden” test)
INS v. Chadha, 462 U.S. 919 (1983)(holding legislative veto unconstitutional)
Marsh v. Chambers, 463 U.S. 783 (1983)(permitting state legislatures to employ chaplains for prayers)

20th anniversary

Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988)(limiting student speech in school sponsored activities)
Hustler Magazine v. Falwell, 485 U.S. 46 (1988)(First Amendment prohibits public figures from using intentional infliction of emotional distress as an alternative to defamation claims)
Lying v. Northwest Indian CPA, 485 U.S. 439 (1988)(Free Exercise Clause did not prevent logging on Native Americans sacred land)
Morrison v. Olson, 487 U.S. 654 (1988)(upholding constitutionality of independent counsel statute)
Thompson v. Oklahoma, 487 U.S. 815 (1988)(holding execution of persons who committed crimes while under the age of 16 violated the Eight Amendment)