Salinas v. Texas

There has been a lot written about the NSA surveillance program because it offends contemporary notions of privacy. My previous blog post addressed how the right to privacy has racial, class, and gender connotations.

I want to follow that up with the relative silence about the United States Supreme Court's recent decision in Salinas v. Texas. The case is about how prosecutors used the defendant's silence before he was in custody and given the Miranda warnings as evidence of his guilt. The facts are that the police asked the Salinas about questions about a murder. He answered some but refused to answer others. The state then argued at trial that his silence suggests guilt.

 Slate has a pretty good piece on the case and why this is both bad reasoning and bad for police.  The majority argued that Salinas did not invoke his rights properly. Scalia and Thomas, siding with the majority, argued that the Fifth Amendment should be merely limited to requiring the defendant to testify and not be applicable if a prosecutor mentions this silence.

It is stunning to see the conservative wing, so-called originalists and textualists, transfer so much power to the state in criminal prosecutions and reduce the scope of the Bill of Rights, given their hostility to government in so many other aspects of our lives (e.g. the NSA surveillance program). However, this decision like so many of the past twenty years have continually sought to roll back the criminal justice revolution of the 1960s and 1970s and give prosecutors, the police, and the state more power and defendants (i.e. ordinary people) fewer rights. The result has been to make the United States the world's leader in incarcerating its own citizens. The Patriot Act and the NSA surveillance program would have been impossible without the erosion of fourth and fifth amendment during the War on Drugs. I find it ironic that most Americans or at least most pundits are horrified when they see how the criminal justice system treats them, like it has been treating criminal defendants. It is just another reminder that we need to defend the rights of even the worst offender if we are to have a robust and meaningful Bill of Rights.

Race, Privacy, and the NSA Prism Scandal

Recent revelations about the NSA's PRISM program has generated alarm about the state of privacy law in the United States. While some writers have begun to question the initial shock, I want to just take a moment to remind everyone that the history of privacy rhetoric has always had class, gender, and racial undertones. In our edited collection, Lovalerie King and I were able to publish Karla Holloway's great essay, "W.E.B. Du Bois and the Right to Privacy." There, she shows how it was two elite white men (Samuel Warren and Louis Brandeis) who developed the legal concept, after journalists sought to report about one of their children's birthday parties. What makes Holloway's essay so good is that she shows how Warren and Brandeis basically urged a new constitutional right based on the expectations to which  white wealthy men believed they were entitled. The majority of Americans, then or now, have rarely been able to shut their mansion's gate and keep the world at bay. The rhetoric of privacy has benefitted some groups but more often it has been denied to women, racial minorities, or the poor in service of other supposed national interests. This "scandal" should remind us that there is much work still be to done in achieving the civil rights revolution and making sure the privacy of all peoples are respected and honored.

The Rhetorical Crisis Related to the Humanities

Yesterday's Wall Street Journal published a piece "Humanities Fall From Favor" that looks at the decline in incoming freshmen at Harvard who express interest in majoring in the Humanities. The piece is not all that well-written, nor does the Harvard Humanities Center come off as that well attuned to the world our students face.

The national debate about the humanities seems unusually stuck on the cost of higher education and the "return on investment," rather than the actual content or purpose of the humanities. While there is a strain of criticism that the humanities is too leftist in its orientation, it seems like it is more of a remnant of the culture wars.

A more common set of themes is that college has gotten too costly and humanities majors cannot get jobs. On their own, both are valid concerns. Tuition has grown, while per student aid is down. Students are pushed into loans increasingly. This is a cause of concern. Also, it is true that many humanities students struggle to find their first job and many humanities departments don't do a good job preparing students for the job market. (My department needs to do better on this front and has been making some changes to address this).

Where I think it is worth taking some time to think and reflect is on a few of the potentially false conclusions that tend to follow from these concerns or are implied by the way the objections to humanities education are posed:

(1) the increase in college tuition is the result of an overfunding of the humanities.
(2) the tuition crisis would disappear if humanities majors somehow disappeared.
(3) colleges and universities would not have the humanities if they did not offer humanities majors.
(4) if humanities students majored in other fields, there are ample entry-level jobs out there for them.
(5) other fields and disciplines can teach writing, critical thinking, communication, analytical thinking, etc. as well as the humanities.

What is interesting is that each of these are essentially provable claims with data. My hunch (and unfortunately it is only a hunch at this point) is that all of the statements are probably false.

(1) The increase in college tuition has not gone disproportionately or even overwhelmingly to humanities departments. All the major humanities associations have noted a trend toward more adjuncts and fewer tenure-track jobs.

(2) Even if universities eliminated humanities majors, tuition will not go down.  Now, eliminating tenure-track and full-time faculty would have that effect. However, because humanities faculty members tend to be among the lowest paid faculty on campuses and because they have some of the fewest needs for laboratory and equipment, there is some savings. I am suspicious if it would fundamentally change the curve of tuition.

(3) Most professional majors have accreditation requirements that demand that accountants, engineers, doctors, architects, and teachers must have quite a few humanities courses to graduate and be certified. Universities, as a result, cannot eliminate a humanities classes from their curricula.

(4) All college graduates are struggling to find jobs. While it is marginally easier for some business students to find their first job, many graduates from pre-professional programs struggle too. Because of the ebbs and flows of the economy, it is not uncommon that it is nearly impossible to predict four or five years out, which majors will be in demand when one is an incoming freshmen.

(5) Data from the College Boards is pretty clear that Philosophy, English, History and the humanities teach verbal reasoning and writing much better than other fields. I am sure there is other data as well that shows this. One fallacy is that humanities programs teach nothing, but this data suggests that it conclusion is probably false. If we, as a country, want college graduates who can write and use words and language to think clearly, humanities education is essential.

I think there is a crisis in the humanities and one that needs attention. We cannot, however, fall prey to false narratives that posit the humanities as the antidote for all that is wrong with college tuition or employment rates for college graduates. Until we clarify the nature of the crisis, we will be unable to face it.

Understanding the "Law School is a Scam" Meme

I meet a lot of pre-law students. They think they want to become lawyers. Increasingly my job is to dissuade them, or at least many of them, from attending law school. 

In these advising sessions, I introduce them to the "Law School is a Scam" meme that can be found at a host of websites. Steven Harper has a new book on the topic, Law School Bubble: A Profession in Crisis. Recently, salon.com excerpted portions of his book. While I am not sure if the article's title, "Law School is a Scam,"is Harper or the editors at salon.com, the phrase/sentiment is fairly common and I wanted to analyze the claim, especially for all those pre-law students out there.

First, most students are not aware of the costs associated with attending law school, or any graduate school for that matter, and are equally ignorant about the startling amount of debt many law school students accumulate. The average debt for law graduates is now over $100,000, with the graduates at some schools racking up over $165,000 in debt on average. (Remember that an average means that approximately half the people have more students loans, depending on the distribution!)  To make this real to students, I tell them that most students could purchase a fairly nice 3 bedroom house in Springfield, Missouri for that price and they would have a house after they have paid all that money! Tuition for law school can easily run close to $40,000 per year and that does not include the cost of living. (Remember that you cannot discharge student loans - of any kind - in bankruptcy).

Second, most students do not realize that most attorneys, especially from tier two, three, and four law schools earn less than $70,000 or $80,000 a year. This is especially true for students who want to go into things like criminal law, family law, or legal aid. Many lawyers start their careers with salaries of $30,000, $40,000, or $50,000. That is impossible to do if you have more than $150,000 in student loans.

Third, the unemployment rate has gotten very high for recent law school graduates and trends suggest that those numbers are here to stay because law schools produce more lawyers than jobs and have been doing that for a long time now, meaning that there are a lot of unemployed lawyers looking for work.

Fourth, for too many years, law schools have fostered the illusion that it is a great entry into the professional classes for students who either do not have a professionally-oriented college degree or want to switch fields. This is simply a bad argument and leaves too many people stranded.

Fifth, the bad economy has created even more pressure on college graduates to do something that looks like they are building a career. Attending law school sounds like a good idea, even if they are not that committed to the field.

So far, all the evidence points toward the conclusion that yes, law school is a scam. 

But, I am not willing to go quite that far for a few reasons.

First, I think some law schools are scams. I tell students that right now the question is not if they will get in law school but how much debt they will need to incur to finish. I am particularly leery of third and fourth-tier law schools. They tend to have the least amount of financial resources (e.g. students are forced to rely on loans, not scholarships) and the poorest reputation. Other law schools provide a better return on investment and offer some scholarships. The question here is whether a student is making good choices about taking on debt. Every student should have a plan about how much debt they can stomach, especially during the first year. If students have doubts, I want them to be in a position to leave law school and not be saddled with ridiculous debt for that experience. For many, this means working a few years before going to school or living at home. This also means coming to grips with getting into a law school is not the real goal of the law school admission process. Rather, getting into a good law school that will not cost you too much money.

Second, I think law schools are scams because they do not require students to know anything about law or legal careers before they enter. Traditionally, law schools would tell you that they did not want students to major in pre-law. While this may be great for law schools in their quest for a diverse class, it is a recipe for accepting students who know little, beyond television or film portraits, of what lawyers do. I tell my students to take as many law-related classes as they can. I also demand, yes demand that they complete a legal internship that gets them into contact with lawyers, clients, and courtrooms.  That experience alone persuades quite a few students that law is not the career for them. For others, it builds their resolve and gives them leg up on internships and clerkships. In talking with students, I can tell how much a student knows about law. That really shapes the advice I give them.

Third, I don't think law school is a scam because I learned more during law school than either other time in my life. This is saying something because I also earned a Ph.D. If you read the law school is a scam meme, relatively few folks complain that they did not learn anything. Rather, they are justifiably angry that they cannot find a job putting those skills to work. This, however, is not the same as a saying that law is a scam, like a Ponzi scheme.

Fourth, there are a lot of unmet legal needs out there. One of the paradoxes of our time is that formal legal resolution is beyond the means of most poor, working class, and middle-class people even as we have "too many lawyers." This is not a reason to go into law, but highlights that law is not immune to the current job crisis we have, as a country. 

I don't think that law school is a scam, but way too many people have been attending law school. If you  feel compelled to look into law school, you absolutely be realistic about the costs, the job prospects, and most importantly your reasons for attending and your passion for the law. 

Legal Realism Redux

If you have been paying attention, you probably are aware that the United States Supreme Court is hearing two cases related to gay marriage this week. About ten days ago, we learned that Senator Rob Portman (Ohio - Republican) has made a change of heart on the issue after his son told him he was gay. Just yesterday, the internet was abuzz with the news that Chief Judge John Roberts' lesbian cousin will be attending these hearings. This is on top of the articles, discussing Justice Scalia's "fear" of gays and lesbians.

All these events together cause me to think that perhaps legal realism, the idea that the justices personal values, beliefs, and experiences shape their jurisprudence, maybe is more telling than some of the fancy legal theories that scholars use to explain the Court's decisions. I know that when I was researching legal responses to racial discrimination, it always seemed like Justices never quite knew what to make of race-based claims in part because they drew almost exclusively on their experiences when making decisions. I came to think that judges took "judicial notice" (i.e. took their own perceptions as fact) when faced with racial claims.

It seems like many court-watcher think that may be happening now in these gay marriage cases. Does this signal the return of legal realism? I am not sure, but I do hope that the Chief Justice's cousin is correct when she says she trusts him to make a fair and just decision.

Spring Cleaning

Because my Spring Break and the beginning of Passover coincided this year, I found myself doing a lot  of cleaning over the past few days. While never a fan of cleaning, I nonetheless found that I enjoyed, relatively speaking, this year's efforts. I probably liked it because I found a treasure trove of my old baseball cards. Now, I am able to give my 1970 Pete Rose, 1970 Reggie Jackson, and 1975 Hank Aaron to my boys. 

The ritual, however, also got me thinking about the importance of spring cleaning for maintaining our moral commitments and locating our values. There is something about cleaning out drawers and de-cluttering our houses that seems like a metaphor for the more important effort of re-calibrating our moral compasses each year. It is too easy for our us to loose track of our real values as we surrender to the rush of our ordinary responsibilities. 

In addition to a few days off and a cleaner bathroom, I think I have gained a little bit of needed perspective from my Spring Break.

Fresh Perspectives

This semester I am teaching three new preparations: ENGL 200 Literature Matters: The Evolution of Storytelling, ENGL 219 The Lawyer in Literature and Film, and ENGL 493 Senior Seminar: The Best Writing of 2012.

What I am not teaching is anything related to African American culture, Popular Music, or Ethics. Given those have been mainstays in my course rotation and where most of my research interests lie, it is  a strange semester. Probably more than most semesters, I can relate to students,who are overwhelmed and baffled by so many new ideas.

I am both working harder in the classroom than I have in awhile and less certain of where my classes are going. I feel like I am learning with my students every day. What a great feeling! It is also an absolute pleasure to watch my ENGL 200 students dig into literary analysis with such gusto. So far, they have thoroughly enjoyed 1984 and a unit on classic fairy tales.


On the other hand, I am realizing a few things about the courses and topics I usually teach. First, talking about race every semester is very draining and exhausting. I am constantly dancing on the fine line between pushing students to see how race structures our world and creating a positive environment to do that kind of reflection. It is weird not to be doing that kind of work. I must admit that these other courses seem much more selfish in that they do not push students as much to have a social conscience. This may seem strange but this break from teaching African American literature seems like another example of white privilege. I can get a "break" from the national dis-ease about race and racism, but most African Americans cannot!

Second, teaching about popular music is "easy" in the sense that students always have something to say even if they have not done the reading. They bring their own theories and ideas into the class and have a wide range of musical experiences to discuss. I miss that. I wish students had as much background in other topics and as much passion. The downside to this knowledge and passion, I am realizing, is that students are less willing to hear and think through the theories that scholars have developed to analyze popular music. For some reason, students are a bit more willing to give a literary theory or analysis a fair hearing before evaluating it.

Third, a semester without teaching ethics means that I am missing the opportunity to revisit some of the classic moral issues. I feel less "ethical" simply because I am not thinking about ethical dilemmas and grounding my own habits, actions, and decisions in an ethical theory. I will be excited to teach ethics again next spring.

This semester has been a blessing. It has given me a new perspective and gotten me out of my comfort zone. I am reading different books and thinking about new things. How very liberating!