Ponderings of a Law Professor: Where Are Women’s Voices?

I hated the silence.  In law school classes where the professor relied solely on volunteers, I hated the silence and ended up raising my hand more often than not.  I found I was most interested and engaged in class not when there was lecture but when there was some sort of dialogue, and there needs to be more than one voice to dialogue.  I didn’t really want to hear my own voice all the time (and I’m certain my classmates didn’t want to hear it all the time, either), but I would offer it if no one else spoke up.

Maybe I’m remembering myself speaking more than I actually did.  Or maybe I was an anomaly.  A female law student quoted in a recent National Jurist postsaid that “it feels like men do most of the talking during class discussions.” And indeed they might.  Data from the 2010 Law School Survey of Student Engagement (LSSSE) suggest that women do not speak up as much as men in law school classes.  The National Jurist reports that according to the LSSSE, which for 2010 surveyed 25,000 law students at 77 law schools, 47% of women students frequently ask questions in class, while 56% of male students do.  This, LSSSE notes, is an area “that needs attention.”

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The Unitary Governor

“The executive power shall be vested in a governor” proclaims Article V, Section 1 of the Wisconsin Constitution. Over the course of the past two decades, there has been a tremendous amount of legal scholarship about the “unitary executive theory,” based on the executive vesting clause of Article 3, Section 1 of the U.S. Constitution: “The executive Power shall be vested in a President of the United States of America.” Thus far, this scholarship and its accompanying cases (see especially Justice Scalia’s dissent in Morrison v. Olson) has focused entirely on the presidency, but the legal principles are virtually identical.

All of this bears on two recent news stories: first, regarding Governor Walker’s bill requiring executive review of administrative rulemaking, and second, the budget repair bill’s adjustment of several positions in the executive branch from civil service to gubernatorial appointment.  The February bill on administrative rules requires that all regulations from state agencies be reviewed by the governor’s office before entering into force. Democrats opposed this bill on the grounds that it violates the “separation of powers,” the proper relationship between the executive, legislative, and judicial branches. State Senator Lena Taylor objected that the bill “breaks down the wall of independence around independent agencies.”  More recently, this week Democrats slammed the budget repair bill’s reclassification of several positions from civil service to gubernatorial appointment.

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Doubts About Deference to Police Hunches

Over the course of the past decade or so, legal scholars have been paying increasing attention to psychological research on cognition and decisionmaking.  In general, this has meant that scholars have become more sensitive to the common sorts of cognitive bias that have the potential to warp legal decisionmaking.  But, inspired in many cases by Malcolm Gladwell’s 2005 best-seller Blink: The Power of Thinking Without Thinking, another line of psychology-influenced legal scholarship seeks to harness the insights available through subconscious mental processes.  As Gladwell demonstrated, hunches can be amazingly accurate in many contexts, particularly hunches by experts.  This has led to arguments that courts ought to be quite deferential to police officers seeking warrants or testifying at suppression hearings — demanding rigorous justifications for officers’ suspicions, the argument goes, might cause officers not to rely on their hunches as much, which might be detrimental to effective policing.

Andrew Taslitz responds critically to this line of thinking in a helpful new article, Police Are People Too: Cognitive Obstacles to, and Opportunities for, Police Getting the Individualized Suspicion Judgment Right, 8 Ohio St. J. Crim. L. 7 (2010).  Taslitz first outlines the many sources of cognitive bias that seem likely to infect police suspicions in many common circumstances, particularly white police officers interacting with minorities in high-crime neighborhoods.  As even Gladwell recognized, hunches are not foolproof and can be led astray by superficial appearances and other irrelevant cues. 

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