Friday, February 23, 2018

JOTWELL: Wasserman on Schwartz on Qualified Immunity

I have the new Courts Law essay, reviewing Joanna C. Schwartz, How Qualified Immunity Fails (Yale L.J.), an empirical study on the actual frequency and success of qualified immunity in five federal districts.

Posted by Howard Wasserman on February 23, 2018 at 12:36 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Thursday, February 22, 2018

Chinese Spies! Russian Trolls!! Self-Defeating Tribal Paranoia in America

Last Tuesday, FBI Director Christopher Wray warned the Senate Intelligence Committee that Chinese students studying STEM subjects could be spies trying to steal technology from American campuses. According to Wray, we should “view the China threat as not just a whole-of-government threat but a whole-of-society threat on their end, and I think it’s going to take a whole-of-society response by us.” Wray relied on Spy Schools, 2017 book by Daniel Golden describing how Chinese grad students acquire expertise from U.S. universities that they use to start technology companies in China. While Wray did not go into details about what a “whole-of-society” response would entail, one does not need much imagination to foresee proposals to ban Chinese grad students’ studying high-tech subjects at U.S. schools.

I am inclined to view Wray’s comments as symptomatic of a broader strain of self-defeating tribal paranoia (“SDTP” for convenience’s sake). The hallmarks of SDTP are (1) fear of cultural outsiders’ taking our stuff or infecting our minds and (2) panicked efforts to exclude those insidious aliens to safeguard our minds and property.

Consider, first, why Golden’s and Wray’s worries might be paranoid. Yes, of course, Chinese students might be spies. But so what? Spying is not the cause of our decline: We are falling behind the Chinese not because their students study in the United States but because we are too cheap to fund primary scientific research with tax dollars. Tsinghua University is gaining on MIT, because the Chinese government cares about building a first-rate STEM system with public resources, and our government does not. Consider, second, why excluding Chinese grad students is self-defeating: Those grad students are themselves a high-tech resource, as Google, Facebook, and Amazon have been pleading for years. Our folly is not our admission of Chinese students but our exclusion of them: We do not give them H1B visas so that they can put their knowledge and skills to work on behalf of our economy and security. In the name of nationalism, we cut off our nose to spite China’s face.

You might be willing, Gentle Reader, to entertain my argument that Wray’s fears of Chinese grad students constitute an instance of SDTP, at least as a plausible hypothesis. In order to excite a bit more controversy, let me suggest a more contentious hypothesis: The obsession with Russian-financed election meddling is also symptoms of SDTP, in much the same way as our fear of Chinese students.

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Posted by Rick Hills on February 22, 2018 at 05:19 PM | Permalink | Comments (8)

Meta-Ranking of Flagship US Law Reviews

Two years ago, PrawfsGuest Bryce Newell (now at University of Kentucky) created a meta-ranking of the top US law reviews. On his personal blog, Bryce has updated the ranking (in sortable format) for 2018. Worth a look in contemplating where to submit and publish in the new submission cycle.

Posted by Howard Wasserman on February 22, 2018 at 11:44 AM in Teaching Law | Permalink | Comments (19)

Tinker wept

upon reading this missive from the superintendent of the Needville (TX) School District. Some of the quotations reflect an unfortunate picture of the connection between education and the creation of an engaged People in a democracy. "A school is a place to learn and grow educationally, emotionally and morally," which somehow does not include caring or becoming involved in matters of public concern. Students must "[r]espect yourself, your fellow students and the Needville Independent School District and please understand that we are here for an education and not a political protest." So speaking on matters of public concern is not educational and is a sign of disrespect for oneself and other (perhaps respect is the new unity that I argue is anathema to free expression).

Rhodes can do this and get away with it. A student walk-out would constitute "disruption" by in-school speech that schools are free under modern student-speech doctrine to halt or punish. He couched it in an unfortunately over-officious tone and a genuine disrespect for students as individuals with First Amendment rights. It appears he believes students do shed their First Amendment rights at his schoolhouse gates.

I am interested to see if and how students may respond to this if committed to engaging in protest. How might Rhodes respond to a silent protest with black armbands--is he going to ignore Tinker? And, whatever the trend in student-speech cases, is a court? Alternatively, if protests gain sufficient critical mass and Rhodes attempts to suspend hundreds of students, would his job survive the parental anger? Alternatively, what if students all stay home that day and then attend a protest at a dedicated time--would Rhodes challenge the decision of dozes or hundreds of parents to keep their children home and would his job survive the parental anger if he tried?

Posted by Howard Wasserman on February 22, 2018 at 11:40 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (11)

Wednesday, February 21, 2018

Judging Access to the Court System

A very curious lawsuit is currently playing out in Chicago, involving four different state and federal courts. It should be of interest to anyone who teaches or follows developments in First Amendment law, federal court abstention, or court administration. It’s also a fascinating example of judges being asked to decide what obligations the courts themselves owe to the public.

The case involves a First Amendment challenge to records access in the Cook County court system. Last November, the Courthouse News Service (CNS) filed a lawsuit in federal court against the Cook County clerk’s office and clerk Dorothy Brown, alleging that the clerk’s office was not immediately disclosing certain electronically filed complaints that were a matter of public record. The gist of the allegations is that lawsuits filed in hard copy are immediately accessible to journalists or any member of the public, but e-filed lawsuits must first be administratively processed, which can delay public access for days. CNS sought injunctive and declaratory relief.

The lawsuit came as Cook County was already struggling to bring its civil case filing system into alignment with the rest of the state. The Illinois Supreme Court set a date of January 1, 2018 for the county to make its system fully compatible, but granted a six-month extension at the end of December when it became apparent that the county and its vendor were nowhere close to meeting that deadline. (The county asked for a one-year extension, which was rejected.)  In granting the extension, the state supreme court announced that its own administrative staff would attend future implementation meetings to assure that the project was completed in a timely manner.

Meanwhile, Brown’s office responded to the CNS lawsuit by arguing that it has no First Amendment obligation to make any document public until it is “accepted for filing,” citing a standing order requiring the clerk’s office to remove certain categories of documents from the public domain. That argument was evidently unpersuasive. In early January, the federal district court granted a preliminary injunction to CNS, and gave Brown 30 days to create a system to allow the press to obtain immediate access to e-filed complaints. The district court held that “In the absence of an injunction, CNS will continue to be deprived of its First Amendment right of timely (immediate and contemporaneous) access to e-filed complaints."

From that point, it started to get really interesting.

Continue reading "Judging Access to the Court System"

Posted by Jordan Singer on February 21, 2018 at 04:10 PM in Civil Procedure, First Amendment, Information and Technology, Judicial Process | Permalink | Comments (1)

Tuesday, February 20, 2018

Sponsored Post: How to teach international law

The following post is by Jens David Ohlin, Vice Dean and Professor of Law at Cornell Law School. It is sponsored by West Academic.

There are multiple approaches to teaching international law. One option is to stick with the doctrine and get students to nail down the basics. While certainly pedagogically sound, this approach can be dull and uninspiring. A second option is to build the course (or its casebook) entirely around a series of problem cases: situations where international law either resolved, or failed to resolve, a particular international controversy. This second option often resolves the problem of being dull, though the success or failure of each problem case depends on the degree to which the problem case catches fire with the students.

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Posted by Howard Wasserman on February 20, 2018 at 07:31 PM in Sponsored Announcements | Permalink | Comments (1)

2018 Research Scholar Position, Columbia Law and Economics of Capital Markets Program

The Columbia Law School/Columbia Business School Program in the Law and Economics of Capital Markets is seeking a full time Capital Markets Research Fellow. The appointment will run from July 1, 2018 to June 30, 2020.

This position is intended for a person who expects to begin a law school teaching career at the start of the 2020-21 academic year and who desires an interim position that would help the person prepare for such a career by offering the time and facilities needed to do serious research and to develop further expertise.

More information is available here.

Posted by Sarah Lawsky on February 20, 2018 at 07:16 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

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. 

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Posted by Jen Kreder on February 17, 2018 at 06:35 PM | Permalink | Comments (4)

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)