Monday, April 20, 2015
Johnson Argument on Vagueness—and Plea Bargaining?
Today the Supreme Court held argument on whether the residual clause of the Armed Career Criminal Act is vague, not vague, or subject to a saving construction. Early on, Justice Alito asked a question that I think is at the heart of the case--namely, “whether the statute is unconstitutionally vague or whether this Court’s interpretations of the statute create the basis for a vagueness argument?” Or, as I’ve put it before, Who made a vague law vague? (For his part, Justice Alito seemed skeptical that "a statute [can] be vague simply because this Court messes it up.")
In this post, I will set aside the main vagueness debate to highlight a surprising aspect of the argument: the Chief Justice’s concern about prosecutorial overreaching during plea bargaining. This issue is becoming a theme for the Chief—and could have important implications.
Chanel and Mrs. Jones
Last fall, fashion house Chanel filed a trademark action against hairstylist Chanel Jones (discussed here at The Fashion Law), to prevent Jones from using her first name in connection with her business. The case was notable given the relative size of the parties and the distance between their markets--Jones' hair salon is in Merrillville, Indiana, which seems more than a stone's throw from the Rue Cambon in Paris which Chanel calls home. Why bother?
Moreover, the press' attention was undoubtedly caught by the fact that the company filed suit against an owner using her first name for her business, which is a common practice for personal service concerns. As Gene Quinn remarked in a different context, "How crazy would it be if you couldn’t even use your own name on your store front?" Well, as this survey of the case law by Christopher Bussert points out, in the past courts have enjoined companies from using their founder's name on their products and/or services when a senior (read: prior) user has established rights to the same name.
As background, since the 1960's, Chanel (or alternatively Shanelle) has become an increasingly popular first name.
A Few Thoughts on Johnson v. United States and the Void for Vagueness Doctrine
While most Court watchers are gearing up for the same sex marriage cases, I’ve been eagerly awaiting this morning’s argument in Johnson v. United States. Johnson is an odd case. The Supreme Court originally granted cert on the narrow issue whether possessing a short-barreled shotgun qualifies as a violent felony under the Armed Career Criminal Act. The parties briefed that issue and argued it before the Court. But then, rather than deciding the case, the Justices set the case for re-argument and asked the parties to brief whether a portion of the ACCA is unconstitutionally vague.
Over at SCOTUSBlog, Rory Little has a very good overview of the case. He also summarizes the Solicitor General’s brief on the vagueness issue, calling it a “tour de force.” I agree with Little that the government’s brief is quite good. But I wanted to take a quick minute to articulate what I see as a relatively significant oversight in the Solicitor General’s analysis.
ADA at 25, Chicago style
On Friday, I had the good fortune of attending the kick off event for ADA25Chicago. There are a lot of celebratory events and academic conferences planned this year commemorating the 25th anniversary of the ADA, but this was different. It brought together politicians (including Dick Durbin and Tammy Duckworth), corporate figures (including the President/COO of Motorola, where the event was held), and civic leaders (including representatives of the Chicago Community Trust), as well as state and local government. These individuals did not just give speeches, but expressly set the stage for actual commitments.
The organizers had already gathered pledges from Chicago civic organizations and employers to establish programs to advance opportunities for people with disabilities, to create programs within six months throughout the region to increase civic engagement around disability issues, and to develop lasting “legacy projects” around the key themes of employment, education, and community living for people with disabilities. ADA25Chicago has already planned a visible presence sponsoring events at Chicago’s many summertime festivals and cultural events (disability awareness, good food, and craft beer? Count me in!). And there are specific plans in place to hold these groups publicly accountable for their commitments.
I posted earlier about the disconnect between how those inside and outside the disability rights community view disability issues. ADA25Chicago is one of the most sophisticated efforts I have ever seen to address that gap. By gathering elites, and creating a plan to mobilize and hold their feet to the fire on accountability, this was a really exciting beginning. I really look forward to watching how this all unfolds.
Anniversary Topic # 3: How law teaching and law schools have changed
Topics might include:
• Changes in the profession.• Trends in scholarship or teaching• The law school "crisis"• More specifically, how were things different between the period before 2008, the economic period of crisis (including law school crisis) around 2008-2012, and the post-2012 era, in which there is still crisis but many or most students entering law school are well aware of it. I find a great difference between students who entered or graduated between 2009 and 2012 or so, who came to law school with one set of expectations and left them with very different expectations and often no job, and were embittered by it, and the newest students, who have a more pragmatic and much more chastened set of expectations and goals around law school.• How different these changes are from changes in the rest of the academy, or whether the law school exceptionalism about this is not actually so great. In this I'd be especially interested to hear from guests or permanent bloggers with PH.D.'s or connections to other disciplines and faculties, who can talk about their experience in both law and some other faculty or sector of the academy.• Changes in civility and in your dealings with students, commenters, and others.• The rise of the VAP and other fellows.
Sunday, April 19, 2015
Legal Academic Blogging and Influence vs. Credit
Back in 2005, I predicted the following future for academic law blogging:
A continued increase in the overall amount of law blogging until we reach a natural equilibirum, and then a roughly constant amount of blogging with frequent turnover among active law bloggers. Here's my thinking. Right now law blogs are pretty new, and the number of law bloggers is increasing. But it's much easier to start a blog than to keep it up. A typical post might take an hour or so to research, write, and edit. And the better and more thoughtful the post, the more time it takes. Only so many people are willing to put in those hours on a regular basis, and members of that
twistedelite group presumably will change over time, too.
Among law professor blogs, the big variable would seem to be whether blogs eventually will be taken more seriously in the scholarly community than they are now. Right now most lawprof bloggers do it for fun, but don't consider blogging "real work." If this changes, I think it will transform the nature of law blogs considerably. Whether that would be a good thing or a bad thing is an open question.
I think the prediction in my first paragraph mostly came true, and pretty quickly, although there has been somewhat less turnover than I expected.
As for the "big variable" of the second paragraph, I think the answer depends on what it means for blogs to be "taken more seriously." Over time, we have learned that lawprof blogs are great for influence but not for credit. By "influence," I mean influence on debates both within legal academia and in the broader legal and judicial community. A lot of people read blogs. Legal blogs can help shape how those communities think about particular legal problems. We saw that possibility in 2005, and I think that potential has been often realized in the decade since. In that sense, blogs are now taken seriously.
On the other hand, it turned out that lawprof blogging doesn't generate much internal credit within the legal academic world.
Deferred Prosecution Agreements: Right Problem, Wrong Fix
Yglesias has a good write-up of the problems with regulating big financial firms, but he (and Elizabeth Warren) get to the wrong solutions.
Lateral hires and PrawfsBlawg
Brian Leiter's updated list of tenured lateral moves features several from the Prawfs community. Steve is going to University of Texas in 2016 (where he and former GuestPrawf Bobby Chesney will have the national security market cornered). Current guest Brian Galle is moving from BC to Georgetown. And another former GuestPrawf, Aaron Bruhl, is headed from Houston to William & Mary.
Congratulations and good luck to all.
When blogging (and bloggers) get old
I explained in my first symposium entry how I have used blogging in my time here. Although I have not gone back to review seven years of posts, I do not believe my writing here has changed all that much either in quantity or in content (law v. life, serious legal issues v. pop-culture asides).* This may be because I have not taken on as many administrative responsibilities as Rick and Paul have (I have never served as an associate dean, for example), so I have not lost the time to devote to writing here. And since I wrote less about legal education and law schools than Paul did, I probably became less disillusioned than he by the tenor of the discussion.
* Although to be frank, I have written so many posts here that I do not remember a lot of what I have written. I have on occasion reviewed old posts and thought, "Did I write this? And did I really mean that at the time?"
Saturday, April 18, 2015
Eleventh Circuit flunks Civ Pro
We just started Erie last week and one of my students found this Eleventh Circuit decision from March. The Erie analysis (at pp. 25-31) is so utterly ridiculous and facile as to make me wonder if any of the judges (or their clerks) ever took Civ Pro. (Note: The conclusion is right; it's the analysis that would warrant an F on an essay exam).
An Appreciation of Legal Blogging (and Twitter!)
Last month, I had the pleasure of being a guest blogger here. This month, I have read with interest and surprise the recent lamentations of legal blogging posted by some of the founders and earliest adopters of the medium. I was particularly affected by Paul Horowitz’s post on PrawfsBlawg. His comments on anonymous commenters seem particularly thoughtful and apt. On the other hand, I felt myself defending (in my own head) blogging and Twitter culture while reading his criticisms.
As a junior scholar, I have found the opportunity to read PrawfsBlawg immensely gratifying and educational. I write and think about criminal justice. I am willing (if not happy) to admit that the volume of dense and rigorous scholarship I want to and must consume in order to write my own articles essentially prevents me from reading important, rigorous, and dense scholarship in other areas – first amendment law, education law, and international law, just to name a few.
But, while I can’t find the time to read 25,000 words about, say, the right to privacy versus the first amendment right to expression, I can certainly read and digest Amy Landers’ recent post about a New York Appellate court’s dismissal of a complaint against a photographer for invading the privacy of children when he shoots “from the shadows of [his] home into theirs.” I might even click on the hyperlink she provided and read the decision.
"Get off my lawn!" -- or, how (my) law-blogging has changed
I like the title of Paul's 10th anniversary, "How has blogging changed?" post better than the one I chose. (Maybe I should have gone with this, from Grandpa Simpson.) And, I think Paul captured well a lot of what I wanted to say, at least with respect to the question "how has my blogging changed."
I started blogging, at Mirror of Justice, in 2004 (and came a bit late to the Prawfsblawg crew). I used to post more often, and about more things. I'm not sure why, but tenure, promotion, and a stint in administration seem to have coincided with (even if not caused) a kind of narrowing. As Paul discussed, I think I'm more reluctant than I was before 2008 to blog about our law-teaching vocation, at least in part out of nervousness about being flamed in comments or elsewhere for being self-indulgent or omphaloskeptical. And, I think I'm more hesitant than I was when I started about addressing politically charged, "hot button," or "culture war" issues of the day, including the law-and-religion area in which I write. This trend puts me in a bit of a bind: I'm getting uneasy and hesitant about blogging about (a) what I do and (b) what I write about. I'm not sure what's left . . . Duke basketball (or Notre Dame football)? Adverbs (and here)? Skyscrapers?
But that's just me. How has blogging, or law-blogging more specifically, changed? Dave's right, I think: It's become, in various ways, more "serious." There's maybe a chicken-and-the-egg dynamic here: Once the Supreme Court cited law blogs, helping to validate them as more than just vehicles for doodles and musings, it became possible -- and then, perhaps, expected -- that blog-content would shift toward being the kind of stuff that could be cited by the Supreme Court. Thankfully, over the last ten years, other outlets have proliferated for the doodles, musings, clever quips, and ironic bon mots -- Twitter, Instagram, and (for the oldsters among us) Facebook. I suppose, before long, these will be transformed by respectability, too, and we'll have to work harder on crafting Robert Jackson-esque (or KimKierkegaardashianian) tweets.
Friday, April 17, 2015
Reflections on Prawfs at 10: taking seriousness seriously
Inspired by Paul’s typically thoughtful and comprehensive response to the question Howard posed for this week—How has law blogging changed in the past ten years?—I’ll offer some much briefer reflections on this issue. One impression I have about how blogging has changed in the legal academy at least is that is has become more serious, both in the sense that people take it seriously and that the medium itself is more serious. The first trend is probably good but I’m less sanguine about the latter, as I explain below the jump.
No Country for Old Men: Blogging After a Decade
On this tenth anniversary of Prawfsblawg, I'd also like to think and talk a little about how blogging has changed in that period, at least from the perspective on one blogger. My answer is " it has changed for the worse," but I admit up front that much of this has to do with my own experience, and the simple fact of doing it for ten years.
Thursday, April 16, 2015
Measuring the Impact of Faculty Scholarship
Given the intensity of the reactions folks had about how to measure productivity, I’ve been a little hesitant to post my thoughts on impact.
So, in addition to the qualifications I previously mentioned, let me add that I think it may be impossible to quantify the impact of legal scholarship. Indeed, I am uncertain how one goes about quantifying the impact of most things. We could, for example, obviously state that the Mona Lisa has exerted a greater influence on art than the shabby art projects that I completed and my mother hung on our refrigerator. But can we assess the impact of the Mona Lisa as compared to the ceiling of the Sistine Chapel?
To put this in terms of legal scholarship, I can confidently say that Holmes’ The Path of the Law has exerted a greater impact than any article that I have ever published (or will ever publish). But how can we compare The Path of the Law to, for example, Warren & Brandeis’ The Right to Privacy? We can count how many citations each article receives in Westlaw’s JLR database, we could count the court citations each has received, and we could even ask a bunch of respected law professors to vote which article they believe had a greater impact. But the fact that Holmes’ article has 3,322 cites in JLR, while Warren and Brandeis have only 2,451 doesn’t seem to settle the question---or at least it doesn’t settle the question for me.
In any event, assuming that we have to come up with some way to measure impact---and that is a major premise of academic analytics---I suggest that we quantify the following for each faculty member:
Ice cream Court of the United States
I missed this suggestion from a few weeks ago that Ben & Jerry's needed to name some flavors after women. Two proposals after the jump: Ruth Bader Ginger and Sonya [sic] Sotomayoreo Mint Cookie.
Multiple choice and formative assessment
The following is by Ben Spencer (Virginia) and is sponsored by West Academic.
The forthcoming ABA standards require law schools to pay better attention to how they assess student learning. Such assessment can not only measure student achievement after the conclusion of a unit or course (summative assessment), but can also be used as a tool to enhance the learning of the material throughout the course (formative assessment). Formative assessment permits students to determine their own level of understanding at a point when they can improve before the final exam and permits the instructor to discover areas of student weakness at a time when further training can still occur.
Wednesday, April 15, 2015
The Yale School of Law and Super-Parenting
In case you were feeling accomplished for having gotten the kids to school on time this morning, Heather Gerken has written nine YA vampire novels for her tween daughter. Gerken reports that her daughter "was never impressed that I was working full time, part of a two-career household and still outpacing J.K. Rowling by a considerable margin." My favorite line of the article: "The women [in the book] are ambitious and career-oriented, and some have the emotional I.Q. of a tree frog."
Gerken joins fellow Yalies Ian Ayres and Amy Chua in showing us the ways to channel our inner achievers into the more mundane joys of parenting. Ayres promised his children a puppy if they wrote and published an article in an academic peer-reviewed journal. Lo and behold, they did. And now they have Cheby, named for the mathematician that discovered Chebychev‘s inequality. In January we got an update from the Tiger Mother herself as her teenage daughters sleep past noon. I appreciate the introspection in constructing a pretty incisive self-parody, but since her shtick is how extreme she's willing to be, self-parody and honest reportage are a little difficult to differentiate.
Intellectual Property Conversations: International & Domestic
I think it is fair to say that international intellectual property is generally seen as distinct from general (i.e. domestic) intellectual property (IP), both in terms of scholarship and teaching. Thus, from what I gather, international intellectual property panels tend not to draw huge crowds during the annual IP scholars meetings. However, I see a fair amount of overlap between general IP scholarship and the international IP issues that some of us tend to explore. Among others, I see overlap when it comes to questions about the role of IP, the scope of IP rights, and whether the current international model and the mandated levels of intellectual property protection align with societal goals.
Writing international intellectual property scholarship requires an understanding of international law, and trade law in particular. This is due to the merger between trade law and intellectual property law that came about as a result of the World Trade Organization Agreement on Trade-Related Intellectual Property, commonly referred to as TRIPS. Post-TRIPS, there have been a number of other “trade-related” agreements that aim to protect intellectual property rights in the global arena. In addition to various bilateral trade agreements and investment treaties, there are multilateral agreements that have chapters or provisions on intellectual property. These include the Anti-counterfeiting Trade Agreement, the Trans-Pacific Partnership, and the Trans-Atlantic Trade and Investment Partnership. The two latter agreements are currently being negotiated.
There are complexities to the international discussion insofar as it involves some analysis of international legal obligations. However, the intellectual property aspects often address similar issues to those raised by some of the domestic scholarship. The articles discussed by Amy Landers and Dave Fagundes in their recent posts, for instance, are pertinent to some of the recurring themes in international intellectual property scholarship. Both international and domestic scholars might ask: what is the utilitarian calculus, and is society being well served? If not, is there some assumption (i.e. “faith”) that IP rights must be protected due to some natural entitlement? If so, is this beneficial to society or just to the IP producer?
Those of us who write primarily on international IP issues can, and do, draw on domestic IP scholarship for our analysis of international issues. In this globalized economy, maybe it’s time for international IP scholarship to become more integrated into the mainstream so that there can be a greater exchange of ideas between general IP and international IP scholars. Making connections between domestic and international IP, where possible, can only enrich the conversation.
Disability Discrimination and Family Law
Tomorrow, the Second Circuit will hear arguments in Forziano v. Independent Group Home Living. Paul Forziano and Hava Samuels lived at different group homes in New York. Paul is 31 and in the mild-to-moderate range of intellectual disability; Hava is 37 and in the moderate range. After meeting, falling in love, and dating for six years, they decided to get married. Their parents were supportive of their decision.
They requested that they be allowed to live together as a married couple in one of their group homes. This request was refused. Over time, various explanations were offered, including that the group homes were not adequately staffed to support the married couple with the dynamics of their relationship, that home designs could not accommodate married couples, and that the request was unprecedented. These reasons were generally shown to be inaccurate. Other explanations more explicitly ran through the opinions of medical and rehabilitation personnel that people with intellectual disabilities generally, and Paul and Hava specifically, should not be getting married (despite the fact that their right to do so was protected by state law). Paul and Hava did get married, and were forced to live 3 miles apart from each other. Only after filing a lawsuit were they able to find a place in a group home together. The trial court denied all of plaintiffs' claims for relief, holding, amongst other things, that plaintiffs had been treated differently because they wanted to get married, not because they had disabilities.
In a series of recent papers, I have suggested that disability has lower political salience than some other movements and/or issues (like marriage equality, the civil rights movement, abortion, or even gun rights). By this I mean that people care about these issues, and vote based on them, in a way that they simply do not for disability. Disability has generally stayed out of the culture wars. Inside the movement, disability is thought about in civil rights terms. Outside, not so much.
The Fifth Circuit Jumps the Non-Article III Shark
A big thanks to Will Baude for alerting me to yesterday's fascinating decision by the Fifth Circuit in United States v. Hollingsworth, in which a divided panel upheld the constitutionality of a non-Article III magistrate judge trying without the defendant's consent a petty criminal offense committed on a "federal enclave." Hollingsworth is a great case for federal courts nerds, because it brings together two different threads of the Supreme Court's jurisprudence regarding non-Article III federal adjudication: (1) Congress's power to relegate certain matters to non-Article III magistrate judges; and (2) Congress's power to relegate certain matters to non-Article III "territorial" courts. Unfortunately, Hollingsworth combines these threads in a manner that utterly confuses them. Thus, although the panel reached what in my view is the right result, it did so for deeply flawed reasons, which I elaborate upon below the fold.
Diversifying Startup Funding Sources
As someone interested in the growth of new ideas and innovation, I'm very interested in the financial infrastructure required to undertake creative activity. Although there is a high level of disagreement about the appropriate legal incentives needed to create new medicines, new technologies, new films and works of art, at a certain point there can be little dispute that time, resources, and dollars are required to create and ultimately bring products to market. Indeed, some work in the economics field has considered that the U.S.'s venture capital funding system has been a major factor to this country's ability to develop groundbreaking solutions. All puns aside about Snoop Dogg's recent decision to provide seed funding for weed startups (sorry! someone had to say it), there appears to be no limit to the types of funding sources.
For example, there has been a spate of recent press about mutual funds who are quietly beginning to provide startup funding in exchange for private stock. According to The New York Times, the growth potential of startups has attracted funding from more conservative sectors who are attracted by success of companies with high valuations including Uber, Airbnb, and Pintrest. Of course, there are limitations on the level of risk that these funds will tolerate. Balance is everything--according to the piece, "Fidelity’s Uber stock, for example, represents less than 1 percent of each fund’s total holdings."
I cannot help but wonder at the role that these funds will play to the overall management and direction of startups. Innovation isn't all about the money. Some of the value that many venture capitalists provide includes making introductions, advising, pointing out potential pitfalls and professionalizing operations. It isn't clear from the press whether mutual funds are providing these same benefits, although it may exist. Moreover, it may be that the mutual funds' decision to invest in more mature startups will alleviate this issue.
Nonetheless, in my view it is a very positive development to see more dollars moving toward the creation of new businesses. I am hopeful that some of this work will result in more invention, research, innovation and all of the benefits that those things can provide.
An End to “One Size Fits All” Procedure?
The following is from former (and future) GuestPrawf Jordy Singer (New England)
That’s the upshot of a new report issued today by the American College of Trial Lawyers Task Force on Discovery and Civil Justice, and the Institute for the Advancement of the American Legal System. The ACTL and IAALS collectively call for a new civil procedure regime characterized by fact-based pleading (for both plaintiffs and defendants), sharp discovery limits, case-specific rules and protocols, and extensive judicial management.
Some details on the proposals, and a few thoughts on what it all means, after the jump.
Tuesday, April 14, 2015
The Moral Psychology of the Fair Play, Fair Pay Act
Yesterday, four members of Congress introduced the “Fair Pay, Fair Play Act,” a bill that would entitle owners of copyrights in sound recordings to recover royalties for radio airplay of those tracks on terrestrial radio stations. That performers don’t receive such royalties may seem surprising, but it’s just one of many strange outcomes generated by the statutory labyrinth that is the Copyright Act.
At first blush, the rationale for such a revision seems simple and appealing. Performers work hard to create sound recordings, so when radio stations broadcast those recordings, why shouldn’t they get paid? After all, the songwriters who wrote those tunes get a royalty each time they are played. But upon closer examination, this rationale is more puzzling. The purpose of copyright law, expressed in the Constitution, is to promote the progress of science and the useful arts (including creative innovation) by means of financial incentives secured by exclusive rights in authors’ works of authorship.
Copyright’s incentives story may explain the FPFPA going forward (performers may be more likely to create future sound recordings if they can expect more remuneration via performance rights), but this account cannot make sense of the retroactive application of the law to already-created songs. And much of the industry force behind the act comes from performers who recorded older, classic tracks who feel aggrieved that they have not gotten royalties from their hit recordings for decades.
So if incentives cannot explain this sense of entitlement to recover additional royalties for past creation, what does? One account may lie in Mark Lemley’s snappy new essay, Faith-Based IP, discussed by Amy Landers in her earlier post on this site. The musicians and Congresspeople behind FPFPA may simply be relying on the notion that copyright owners have pre-political rights that should be recognized regardless of whether the existence of those rights would drive innovation, or even regardless of whether those rights would generate social welfare. At the surface, this may be a plausible account, but I want to propound a different account, one that draws on a forthcoming paper I co-authored with Chris Buccafusco, The Moral Foundations of Copyright Infringement. I elaborate this alternative theory below the fold.
The Right to Privacy vs. Freedom of Expression
Most of us are in the phase of the semester where we are discussing defenses, exceptions, and limitations on the areas that are the subject of our courses. Certainly, my trademark class is grappling with cases considering First Amendment limitations on IP rights.
One recent case places the First Amendment as a limitation on the right of privacy. This New York court considered a photographer's images taken with a telephoto lens aimed inside people's homes. The plaintiff asserted violation of New York's statutory right of privacy. According to the opinion, the photographer, Arne Svenson, has exhibited the works and reproduced some images here.
According to an earlier court opinion, Mr. Svenson did not obtain consent but rather "I carefully shoot from the shadows of my home into theirs." Although some of the images do not show the occupant's faces, some did at least partially. One is a child's face that was alleged to be identifiable. According the plaintiff, the location of their apartment has been made known as well "which Plaintiffs allege compromises the security and safety of the children."
Nonetheless, the Appellate Division affirmed dismissal of the complaint, given that the art works were for expressive purposes protected under the First Amendment. As the court stated, "works of art fall outside the prohibitions of the privacy statute under the newsworthy and public concerns exemption." Further, the Court observed that "the depiction of children, by itself, does not create special circumstances which should make a privacy claim more readily available." Certainly, in an era of emerging drone use, such cases are likely to arise with more frequency. If you are interested, a full copy of the slip opinion is here.
JOTWELL: Campos on Davis on standing for states
The new Courts Law essay comes from Sergio Campos (Miami, visiting at Harvard), reviewing Standing Doctrine's State Action Problem (forthcoming, Notre Dame L. Rev.) by Seth Davis (UC-Irvine) on who and when people have standing to assert governmental interests.
Prawfs and gratitude
The following contribution to the Prawfs Tenth Anniversary is by Will Baude (Chicago).
I have felt Prawfsblawg's tenth anniversary with both fondness and despair. Fondness because of what this blog and Dan gave to both the blogosphere generally and to me; despair because like so many people who knew Dan, I now know that I'll never be able to give him the thanks I owe him.
Dan invited me to guest-blog at Prawfsblawg in its first year of operation, 2005. I was already a blogger at the time, but I was not a "Prawf." I was just a second year law student who had no idea how impertinent I was. On the level plane of the internet, it just seemed natural to engage with and criticize law professors as if we were all part of a shared intellectual enterprise.
Of course this was insane. And not everybody encouraged it. As Howard has noted, many folks advise against blogging even by tenure-track law professors, even today. At the time blogging was much less respectable and I had plenty of concerned friends tell me that it was dangerous and I should quit before I got in trouble.
But not Dan. Even better, Dan also never told me *not* to stop, as if it were even in question. He just argued with me on the merits and invited me aboard, as if it were the most natural thing in the world. By nonchalantly bringing me to Prawfs, Dan subtly encouraged me to stay impertinent, and to think of the legal academy as someplace I belonged.
Of course, now I know that that's how Dan was with so many other people. When he took you and your ideas seriously it made you a little more fearless. You were a little more willing to ask an impertinent question or toss out a new idea. Often, the idea wouldn't pan out, and that was fine. But occasionally that insane idea you had turned out to be so insane that it was brilliant and true.
Monday, April 13, 2015
As many others have mentioned while reminiscing about Danny, one of his great qualities was how he brought other people together. PrawfsBlawg was only one way he accomplished this. He also made lots of introductions and organized workshops. One of the workshops he organized is called CrimFest! (Yes, the exclamation point was Danny’s.) It began as a shadow conference at the Law & Society Association’s Annual Meeting, and then eventually became a stand-alone event.
This year’s CrimFest will be held at Cardozo Law School from July 19th-21st. Registration for the conference closes on Friday May 1st. More details about the conference and how to register follow after the break.
Vischer on Big Law and the Marriage Cases
My friend and colleague (and legal-ethics scholar) Rob Vischer has a thoughtful post, "Law Firms, Marriage, and Moral Accountability," over at Mirror of Justice, in which he addresses Adam Liptak's piece in Sunday's New York Times ("The Case Against Gay Marriage: Top Lawyers Won't Touch It"). Like Rob, I think it's unlikely that Evan Wolfson's explanations for the phenomenon Liptak describes -- i.e., that there are no arguments to be made in support of Judge Sutton's decision and/or that Big Law attorneys and firms shy away from paying cases if they think they are probably going to lose -- are the correct ones. I imagine that, instead, the economics-and-public-relations considerations that Liptak describes are doing most of the work. That said, Vischer also notes an interesting connection between the ongoing debates about religion-and-morality-in-business (see, e.g., Hobby Lobby) and the questions about the extent to which lawyers and law firms should exercise moral judgment, or act in accord with an animating vision, mission, or ethos, when accepting or declining representation. Check it out.
Law and Social Change
Law has an ill-defined relationship to culture. Certainly, some legal rules seek to standardize norms in the way that the reasonable person operates in tort law or custom sets interpretive principles for contractual relations. Law may push against culture, such as the way anti-discrimination laws attempt to eradicate bias.
Further, culture can seek to change law. One recent example that caught my eye is the transport of films, TV shows and other media into North Korea via weather balloons. Among other things, these balloons carry TV shows including Desperate Housewives and The Mentalist, so that those who find the USB drives on which this entertainment is stored can be exposed to cultural information about those outside North Korea's borders. This is one way that the Human Rights Foundation is seeking to reach out to North Korean citizens to open up the government's information block.
Where do such efforts come from? Recently, Peter Lee (UC Davis School of Law) has posted an interesting piece on social innovation that is insightful for those interested in innovation, the theory of the firm, distributive justice, and/or intellectual property. In it, he contrasts the formal incentive system of the intellectual property system to:
...the altruistic motivations and public funding that drive social innovations. . . Beyond efficiency considerations, however, social innovations often play a distributive role in shifting resources to underserved communities. Social innovations address underserved markets, such as when microfinance entities provide loans to populations who do not qualify for traditional financing. Going further, social innovations sometimes provide essential goods and services to entirely neglected populations on a charitable basis.
I found that Lee's piece opens a new door on the mechanisms that foster the creation of public goods. The piece is replete with insights about the interaction between government and private entities in both the IP and social innovation spheres. He argues that these systems have much to learn from each other. This is downloadable here and certainly worth a read.
Anniversary Topic # 2: What are Prawfs and blogging like today?
Sunday, April 12, 2015
Teaching citizens to video--and to exercise the First Amendment
This PBS story from Friday discusses the "Video as Evidence" program, begun by the international human-rights organization WITNESS, to teach people how to record video of police and other public government activities. The goal is to train people to document events not only for use on YouTube and in public discussions of police misconduct, but also for effective use in court, which is where any "accountability" must occur through criminal prosecution and civil litigation. Issues include training in how to properly frame and follow images and events, as well as how to ensure authenticity and a proper chain of custody. WITNESS's primary focus is outside the United States, but the idea could and probably should be recreated here.
Saturday, April 11, 2015
Editors: Take Our Law Review Survey
As I threatened last time, I'd like to collect some data on current law review practices on the timing of the fall and spring seasons. The survey should only take a few minutes to complete. I'll ask that respondents coordinate with other members of their journal to ensure that we have only one response per journal. If you're lazy about coordinating, consider identifying your journal in the free-response box at the end of the survey. I'll keep all responses confidential unless instructed otherwise by individual respondents.
Here's the link to take the survey: https://docs.google.com/a/bc.edu/forms/d/1ClmfGOs09rdg4AxhRzbyGX3k4VjH3BU7ghMrRe93_t4/viewform?usp=send_form
Friday, April 10, 2015
Texas A&M School of Law hires nine new faculty members
The announcement is here. It looks like an exciting lineup. The four additions in intellectual property--Irene Calboli, Glynn Lunney, Saurabh Vishnubhakat, and Peter Yu--are all strong in the field. Cheers!! (or should I say something more Texan?) Anyway, congratulations!
Reflections on Prawfs at 10: interstitial ideas & serious fun
PrawfsBlawg is ten years old? Whoa. Tempus, as the Latin-speaker says, fugit. As with many of the other OGs, I recall well my first involvement with Prawfs, back in January 2006 when I was still a pre-prawf Fellow at an undisclosed location in the American Midwest. And as with most or all the others, of course, the impetus for my participation in the blog came from Dan, who I’d known since law school. Back then, blogging was still not quite accepted as a mainstream form of discourse for legal scholars, so I wasn’t entirely sure how the medium worked or what it would do for me, but I took the leap and it turned out to be one of the best decisions I made at that early stage in my career. Prawfs has been a huge positive force in my professional life, and I am certainly indebted to Dan for inviting me to get on board all those years ago.
I’ve been a bit out of the blogging loop, but when I saw the Prawfsiversary stuff developing this week, I belatedly sought and received a dispensation from the current BlawgFathers to lob in a few guests posts this month (thanks, guys). So to pick up on the proposed question, what has Prawfs meant to me? A ton, but I’ll sort it into two basic categories—one serious and one not so serious—each of which I’ll elaborate below the fold.
Except for All the Others
Except for Fenway Park, there is no green grass in New England right now. Still, I'm sympathetic to those who skim the law review submissions angsting thread, close their browser window in embarassment when a colleague happens by, and then think to themselves, "There's got to be another way."
In that spirit, I thought it might useful to our reform conversation to report my experiences with peer-reviewed econ and l&e journals. I've had half a dozen or so, of which one was constructive, pretty fast, and what I expected of a process run by fellow professionals. The others...well, some are still ongoing. Suffice it to say that it's a lot like sitting in a busy dentist's office, only for 8 to 12 months and without any good magazines.
I don't think it's unreformable. Indeed, I think a good starting place for a conversation about where to go with legal scholarship would be to talk more about which system's flaws are easier to mitigate.
So, for example, it's possible that the peer-review market could function a lot better with better information. There's almost no reliable information about how long each journal takes, on average, to complete reviews. (In fact, it's a little bizarre that a profession whose central premise is the efficiency of well-informed markets would tolerate such an opaque system.) Mandatory compilation and disclosure of that information would probably create at least some competitive pressure to bring those times down, which might eliminate at least the worst instances of needless delay. There is a site for griping about long waits, but it is surely not a representative sample. A laudable exception is AER, which reports a cumulative distribution table (see p.623) of wait times.
At a minimum, journals published by professional associations, such as ALER and JELS, should lead by example on this front. Board members, are you reading?