Saturday, February 17, 2018

Commercial Book Proposals & Agents

There are thousands of web pages and books out there about writing commercial book proposals. In my opinion, the best web source for writing commercial non-fiction like most law professors might is this one. And the best book I read on the subject was Publish Your Nonfiction Book by agent Sharlene Martin and Anthony Flacco. More importantly, you'll need to get your hands on a few excellent book proposals. 

I did not get to see a recent book proposal that successfully landed a top commercial publisher until I hired a publishing consultant. Jill Swenson came highly recommended by a number of authors who have published non-fiction that related to the Holocaust. Swenson has helped many authors write book proposals and find suitable agents. The authors who recommended her wound up represented by agent Sharlene Martin. I did not pitch Martin. I pitched only one agent, and it was by invitation. That was Robbie Hare with Goldfarb & Associates. She was nothing less than amazing. 

Continue reading "Commercial Book Proposals & Agents"

Posted by Jen Kreder on February 17, 2018 at 06:35 PM | Permalink | Comments (1)

Wednesday, February 14, 2018

Anti-Competitive Job Markets and Wage Fixing in Academia and the Au Pair Industries

In the past few years, more attention is being devoted to anti-competitive practices in the labor market. A few years ago I wrote a book called Talent Wants to be Free: Why We Should Learn to Love Leaks, Raids, and Free-Riding (Yale Press). The thesis was that through contractual clauses primarily between employees and employers as well as employer-employer we are creating controls over human capital that suppress job mobility and in turn harm innovation and economic development. I was thrilled when in the summer of 2016 I was invited to present this research (I also published several related law review articles on the subject for example here and here and here) at the White House. I became part of a White House working group on non-compete policy which eventually resulted in a President's Call for Action to the States. A parallel and very much connected development has been to apply the antitrust lens on human capital practices, for example, the antitrust investigation and subsequent class actions against Silicon Valley giants which agreed to not hire each other's employees. In 2016 the FTC and DOJ issued a guidance on how antitrust applies to hiring and wage fixing and DOJ has warned that moving forward it will criminally prosecute such anti-competitive practices as no-hire agreements and wage fixing between competitors.  

Two new cases continue the development of this new area of law. First, interesting for us professors and the lateral hiring market, last week a North Carolina federal judge certified a class of faculty from the University of North Carolina medical school and Duke University in a lawsuit over allegedly anti-competitive no-hire agreements. Second, on the compensation and wage fixing front, and a very different job market, a federal judge certified last week a class of 90,000 Au Pair nannies. I am quoted yesterday in this BusinessWeek article about the case. The case is particularly interesting to me because it brings me back full circle to the first law review article I ever published -- when I was a student at Harvard Law I wrote a seminar paper which I then published called Class and Care: The Roles of Private Intermediaries in the In-Home Care Industries in Israel and the U.S., Harvard Journal of Law and Gender. You might even say I was long awaiting this class action that would expose some of the exploitative practices in this vulnerable industry. 



Posted by Orly Lobel on February 14, 2018 at 04:48 PM | Permalink | Comments (6)

Tuesday, February 13, 2018

Are You Ready to Pitch a Book?

Junior TT prof asks, “I always hear to wait till after tenure if you're not in a discipline (like legal history) for which books are the coin of the realm. But if you've gotten clearance internally or have simply already satisfied your tenure requirement in terms of writing, is there any reason to wait?”

Let’s assume that tenure is a lock. There still might be a reason to wait. That reason is whether you have sufficient platform to demonstrate to publishers that you will sell your book. And make no mistake about it, you will be the one who has to sell your book. For mere mortal law professors, publishers will have very limited budgets to promote the book. Sure, they will put it on their website and in their catalogue and do some limited promotion, but it will be up to you to show them up front that you have what it takes to do your own marketing.

Here's a little "do as I say, not as I do" advice. I spent far too much time learning and obsessing about building platform. I read far too many web sites and books. Many of them told me that to sell a non-fiction book I needed to obsessively build my following on social media of people who truly might buy the book. Many companies will offer to do this for you for a fee. Don’t fall for that. Paying for random followers, many of whom will be bots, will get you nowhere (and publishers will see through it). I put in the hours to make connections with over 10,000 people on Facebook, Twitter, LinkedIn and my website ( I did pay to try out Facebook’s tool to promote a few posts on my Facebook author page. It was unnecessary, but it was interesting to see how it worked by allowing you to target people with certain interests, particular demographics (gender and age range) in particular cities. Many of my future readers are active in Facebook groups focused on Holocaust history and genealogy. Now that I’ve been through the process of getting an agent and getting read by the big publishers, I really don’t think law professors need to do all this (although I have no regrets other than using social media for procrastination purposes). The reason is that these things are not the key to determine whether we as law prawfs have sufficient “platform,” which can roughly be translated as “visibility.”

Continue reading "Are You Ready to Pitch a Book?"

Posted by Jen Kreder on February 13, 2018 at 08:43 PM | Permalink | Comments (13)

Counting on the Low Information Voter

The LSE Blog features some interesting new research by University of Texas Professor Brent Boyea on the intersection of partisan elections, campaign contributions, and professionalized courts. Looking at 12 years’ worth of data from state high court elections, Boyea found that campaign contributors are nearly twice as generous, on average, in states with partisan judicial elections than they are in states with nonpartisan judicial elections. He also found that “contributors support candidates more actively in states with professionalized courts where judges have higher salaries, advanced resources, and courts have freedom to decide their agenda.” And contributors are most generous when elections are partisan and courts are professionalized. This suggests, to me at least, that campaign contributors expect to get the most "bang for the buck" in states where a candidate's election is all but assured on partisan grounds, and the elected judge will later have some freedom to act in a manner consistent with the contributor's own agenda.

Somewhat related is this story out of Illinois, discussing how attorney Phillip Spiwack legally changed his name to Shannon O’Malley in advance of his campaign for a Cook County judgeship. Spiwack/O’Malley appears to be conceding to a stubborn reality of Chicago judicial elections: having an Irish woman’s name is an extraordinarily valuable commodity at the polls—more valuable, it seems, than professional experience, skill, or judicial temperament.

These items add to a growing body of evidence that in judicial election states, candidates and their financiers virtually expect citizens to come to the polls armed with no more information than a candidate’s party affiliation or surname.  How this advances the integrity, efficiency, or legitimacy of the judicial system is beyond me, but I welcome sincere and robust defenses of this system in the comments.

(Cross-posted at The Interdependent Third Branch.)

Posted by Jordan Singer on February 13, 2018 at 12:02 PM in Judicial Process, Law and Politics | Permalink | Comments (2)

Sunday, February 11, 2018

Why has bris survived?

I have been taking an adult Jewish learning class this year, examining the key events (milestones, holy days, etc.) of Jewish life. This week was about birth and brit milah. One question was why brit milah is observed by substantial numbers of Jews when other mitvot--keeping kosher, observing Shabbat, observing the festival days, wearing tzitzit--are not practiced in nearly as great numbers by Jewish people assimilated into modern U.S. society. Of all the mitzvot to survive modernity and assimilation, why that one?

My theory: Circumcision become so prevalent among the general population (especially in the U.S.) after World War II that it ceased to be a practice that made Jews different or apart from the broader society into which they were trying to assimilate. Keeping Kosher made a person different from broader society, because most people do not keep Kosher. Not driving or participating in activities on Shabbat made a person different from broader society (and made it impossible for his kids to play sports and participate in other widespread secular activities). Wearing a yarmulke or tzitzit made a person look different from those in the broader society. Missing school or work for Sukkot made a person stand out from his co-workers or fellow students.

But most males (Jewish and non-Jewish) were circumcised, so a circumcised Jewish male did not look different from those around him. It was easier for Jews to continue circumcision because it did not interfere with assimilation the way other mitzvot, which non-Jews did not also adopt as secular practices, did.

Posted by Howard Wasserman on February 11, 2018 at 05:39 PM in Howard Wasserman, Religion | Permalink | Comments (8)

Ross Douthat on banning pornography

In the New York Times, Ross Douthat has a column contending that we should "ban" hard-core pornography.  Although the Supreme Court's precedents allow, in theory, governments to ban "obscene" material, my sense (and what I tell my Freedom of Speech students) is that, practically speaking -- because of the ubiquity of and ease of accessing online pornography, because of prosecutors' resource-allocation decisions, etc. -- pornography is, in practice, both unregulated and unregulatable (by the government, anyway -- employers, universities, etc., might be a different story).

I suspect (but maybe I'm wrong!) most of us think Douthat is mistaken.  I admit, my own view of the First Amendment's free-speech guarantee tends to be the maximalist, old-school-ACLU-type, thrill-to-the-rhetoric-in-Barnette libertarian position -- i.e., the government may almost never regulate expression because of its content or because of the "viewpoint" it expresses and, in a free society, the remedy for bad speech is good speech.  I hold this view (which, it seems to me, the Court's precedents support) not so much because I think it is compelled, or even very strongly supported, by the First (or the Fourteenth) Amendment's original public meaning but because my intuition is that, all things considered, it is "worth it" to endure offensive, misguided, foolish, and even dangerous speech rather than to trust officials with the task of identifying and policing, in a consistent and unbiased way, a line between speech that will be permitted and speech that is not.

I admit, though, that I'm not and have never been entirely comfortable with this view (and not only because, again, it seems hard to square with what I understand to be the original meaning of "the freedom of speech").  Sometimes, those who hold this view justify it on the asserted ground that "sticks and stones may break my bones but words can never hurt me."  I don't believe this, though.  Speech causes "harms" to others, to the community, to the self, and to the moral ecosystem.  The freedom of speech, as we understand it, has costs.  What's more, there is no reason to think that these harms and costs are distributed in an equitable way or that they are borne by those who benefit the most from, or are best able to protect themselves in, a libertarian speech regime.  Still, my well-grounded confidence that the power to regulate speech would be abused (e.g., it would be employed overconfidently in the service of the arc of "history") makes me reluctant to depart from the near-absolutist position.

And yet:  I agree that pornography is both immoral and harmful, including in the ways Douthat discusses.  (It seems to me that the scathing piece Douthat wrote after Hugh Hefner's death was spot on.  Hefner was "a pornographer and chauvinist who got rich on masturbation, consumerism and the exploitation of women, aged into a leering grotesque in a captain’s hat, and died a pack rat in a decaying manse where porn blared during his pathetic orgies.")  It's increasingly difficult for me to resist the suggestion that it should, at least, be regulated more than it is -- or, at least, it should be marginalized and disapproved more than it currently is -- and that meaningful lines between Pornhub and, say, The Rosy Crucifixion might not actually be as elusive as my fellow near-absolutists warn.  

Or . . . maybe not.  Still, I can't disagree with Douthat that there's something worrisome, and sad, when the New York Times Magazine is suggesting ways to teach kids "critical thinking" and self-esteem-preserving techniques with respect to the massive amounts of online pornography they are viewing, by themselves.

Posted by Rick Garnett on February 11, 2018 at 02:04 PM in First Amendment, Rick Garnett | Permalink | Comments (0)

Friday, February 09, 2018

JOTWELL: Levy on Epps and Ortman on a SCOTUS docket lottery

The new Courts Law essay comes from Marin Levy (Duke), reviewing Daniel Epps & William Ortman, The Lottery Docket (Mich. L. Rev., forthcoming), which proposes that SCOTUS increase its docket through randomly selected cases from the courts of appeals. A fascinating idea.

Posted by Administrators on February 9, 2018 at 12:39 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)

Thursday, February 08, 2018

Answering the Question, "Why Do You Want to Write a Book?"

My last post posed the question, “Why do you want to write a book?” In the comments was a great response from junior TT prof to kick off this attempt to provide helpful information about publishing non-fiction books not oriented towards law students and prawfs. Here’s part of the comment from junior TT prof:

Why a book? I'm interested in writing a book to reach two types of audiences that don't read law review articles: experts in fields related to the subject of the book who are not lawyers, and laypeople. Structuring my thoughts as a book seems like it offers more flexibility in several respects. First, of course, the writing can be longer and more detailed. But also, it needn't hew slavishly to the law or the law review format. Its primary relevance needn't be to law or legal academics. And it can include pictures, charts, and a less formal writing style - all technically possible in a law review format, but less likely to succeed in the placement game or replicate well in Westlaw.

Let's be real, it would be fun to publish a book and go around giving talks to non-legal and even non-academic audiences about the book. At least this is how I envision publishing a first book. This isn't a major motivation, of course. I view it the same way some aspiring artist out there is thinking about showing their work in a cool gallery one day.

Junior TT prof captured exactly what I find so appealing about writing a non-fiction book for an educated audience outside of law schools. Most of our fields are inter-disciplinary. You can appeal to the lawyers and non-lawyers in your field by writing a less formal book that abandons the rigid formats we follow in writing law review articles. And, yes, it is fun to go out and meet these people who find your subject interesting enough to come to an event to hear you! You’ll find them as interesting as they find you! You’ll expand your network of people interested in the same things you are, which has been a delightful side benefit of the book publishing process so far. In fact, to publish a mainstream book read by more than your usual suspects, you’ll need to identify your audience (and how you will reach them) before you even start writing. More on that later.

It’s funny that junior TT prof mentions artists wanting to show their work. The subject of my book is Nazi-looted art litigation. I really relate to that analogy. And, my work really needs some photos! As junior TT prof mentions, the book can more easily include pictures and charts, but you have to be careful. Those things cost money, and the pictures require copyright permission from whoever took the photo (or now holds the copyright) and right of publicity permission from anyone recognizable in the photo. If you want to use photos, you’ll need to demonstrate to the publisher upfront that you understand what that requires and that the cost is justifiable given the marketability of your project.

So, to finish on the subject of answering the question of "why do you, Prawf, want to write a book?," I’ll list three good reasons, followed by three misguided ones.

Good Reasons:

  1. You have burning thoughts THAT WILL INFORM OR HELP OTHERS!
  2. What you bring to the subject is an important, non-trivial perspective that many non-lawyers will want to buy a book to learn more about.
  3. Other forms of writing, such as articles, op-eds and blogging, are insufficient for you to contribute what you know your field needs.

Continue reading "Answering the Question, "Why Do You Want to Write a Book?""

Posted by Jen Kreder on February 8, 2018 at 08:27 PM | Permalink | Comments (6)

Yale Center for Private Law: Fellowship in Private Law

The Yale Law School Center for Private Law is now accepting applications for the 2018-19 Fellow in Private Law. The Fellowship in Private Law is a full-time, one-year residential appointment, with the possibility of reappointment. The Fellowship is designed for graduates of law or related Ph.D. programs who are interested in pursuing an academic career and whose research is related to any of the Center for Private Law's research areas, which include contracts (including commercial law, corporate finance, bankruptcy, and dispute resolution), property (including intellectual property), and torts. More information is available here.

Posted by Administrators on February 8, 2018 at 08:14 PM in Teaching Law | Permalink | Comments (0)

Why Do You Want to Write a Book?

Law professors are known to write a lot. Plenty of us decide to write books. We mostly write casebooks, workbooks, supplements and non-fiction. I decided to write a non-fiction book, but I’m shooting for the educated, lay audience. I landed a contract with Goldfarb & Associates, the same agency that represents Bernie Sanders. All the big publishers read my work, but my area of expertise happens to have one crowded bookshelf. I didn’t land a big publisher. So, I decided to go with an academic press right in my back yard, University Press of Kentucky. I learned so much about the book publishing business and thought it might be helpful to prawfs to hear about it. But, the first thing you need to ask yourself is: “Why do you want to write a book?” Let me know in the comments so I can try to help this month!

Posted by Jen Kreder on February 8, 2018 at 11:14 AM | Permalink | Comments (4)

Wednesday, February 07, 2018

Florida bans counter-speech, too

Parallel bills in the Florida House and Senate would do two things: Prohibit schools from establishing free-speech zones (while permitting content-neutral time, place, and manner restrictions) and prohibit students from "materially disrupt[ing] previously scheduled or reserved activities on campus occurring at the same time." Both rights are enforceable with a private action for damages and attorney's fees against the university. The ACLU opposed the second piece of the bill, arguing that it gives universities a financial incentive to halt counter-speech "out of concern that someone might boo too loudly." This bill sounds in similar efforts by the University of Wisconsin Board of Regents.

Give what I have been writing about hecklers and counter-speech, I believe the second piece is a terrible idea. It has a vagueness problem, since the bill does not define materially disrupt. It limits the disruption to "previously scheduled or reserved activities," trying to create some speaker priority within certain spaces. But it still faces the problem that counter-speakers have some First Amendment right to heckle and counter-speak and boo, including being louder and more audible than the "original" speaker. This bill defines one speaker as a speaker and the other as a material disruptor--and gives the state a financial incentive to limit the disruptor. But it does not explain when counter-speech ends and disruption begins or how the balance applies in different forums (e.g., counter-speakers in a reserved auditorium and seeking to rush the stage as opposed to counter-speakers in an outside public space).

The sponsor of the Senate bill argued that the universities should be able to impose rules for civil discourse just as legislatures do. Civil discourse might be a worthy goal. But the First Amendment does not allow government to impose that as a necessary obligation. Public debate should be more "uninhibited, robust, and wide-open" than what occurs in a legislature or other governing body. There is a power balance within a legislature--every member of the body stands on roughly equal footing and all can work the levers of institutional power within the body to achieve some ends. People in the public arena ork against a power imbalance, speaking against those who wield real power (government officials, police, private individuals who wield greater power and influence), where speaking is the only action available to them. The powerless need greater leeway, even to the point of "vehement, caustic, and sometimes unpleasantly sharp attacks."

In the public forum, in other words, speakers must be able to persist, even after being warned and given an explanation.

Posted by Howard Wasserman on February 7, 2018 at 11:56 PM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (8)