Saturday, March 19, 2016
Video and getting a call "right"
I have always been against instant replay, being one of those who enjoys the "human element" and the "flow" of the games. I recognize the countervailing argument for getting it "right" by available means. But this play, from St. Joseph's NCAA Round One victory over Cincinnati last night, calls into question what we mean by getting it "right." Cincy's game-tying dunk at the buzzer, initially called good, was waved off following video review. Beginning at the 2:00 mark, you can see the extreme slow-motion/frozen video that showed he still had his hand on the ball (pushing it down through the rim) when the red light went on.*
[*] Leave to one side the oddity that dunking the ball worked to the player's disadvantage in this instance, by requiring him to keep his hand on the ball longer than if he had shot a lay-up or dropped the ball through the hoop from above the rim (as players did during the NCAA's absurd no-dunking days from 1967-76).
But we only could see the "right" call via video slowed to a speed so far beyond the ability of the human eye and brain. Do we really need college basketball games to be decided by such super-sensory means that establish correctness at a meta-physical level? Is it fair to say the refs got the call "wrong" initially, when the wrongness could be established only by this extreme use of video? And should we understand the "truth" of what happened by what we can perceive with our senses or by what video reveals at that heightened meta-physical level?**
[**] Recall that the lawyers who successfully defended the LAPD officers in the Rodney King beating in state court did just this with that video: Slowing it down to the frame level so as to reveal movements by King that might have shown continued resistance, even if there was no way anyone could have perceived them. This strategy has only become easier with the advances in video technology.
Sunday, October 04, 2015
Today is the 10th anniversary of my first post on Prawfs. I started the day after the Harriet Miers nomination -- the nomination that launched the blawgosphere. I was only a guest blogger, but then this happened, and Dan invited me to stay on permanently. It has been a wonderful experience. I cannot imagine where I would be right now in my career without Dan and Prawfs. Blogging here enabled me to be a part of the national conversation with other scholars (and future FTC commissioners) on the controversies of the day. It got me to meet (and cyber-meet) a lot of really interesting law profs through book clubs, the Research Canons Project, open-source casebook conversations, everyday blogging, and the Prawfs (& cosponsors) Happy Hours that Dan masterminded. I never made a PrawfsFest!, which I really regret, but as part of the Prawfs community I met a lot more folks than I ever would have met otherwise in the academy.
The last few years have been tough for law students, law schools, and law profs. And the last year has been particularly hard as we continue to mourn Dan's absence. The Prawfs community has stayed strong in Dan's memory, and I know the site will continue to offer a place for "raw profs" young and old to meet, greet, tell us a little about themselves and their work, and make connections with the national community.
It is with sadness, then, that I tell you that I am leaving PrawfsBlawg. I will be joining the Conglomerate to do more blogging on corporate and employment law issues. I haven't done much blogging in the past year, and I haven't done much subject-area blogging in much longer than that. And I've probably done too much blogging about law schools and the issues they face. If you're interested in some of my bigger picture perspectives, you can check out "Funding Legal Scholarship" and "Law Students and Legal Scholarship," both of which started as blog posts here. (And I continue to think that AALS should be a bigger player here, even in the face of Dean Rodriguez's naysaying.)
So this is a goodbye -- at least in my capacity as "perma-prawf." I look forward to Prawfs sticking around for at least a few more decades, serving as a place for folks in the law school universe to share ideas, concerns, and sentiments. And I look forward to participating in that community. Thanks to everyone here for their hard work and generosity of spirit. And one more "thanks" to you, Dan -- you are the root for all that has followed.
Thursday, June 04, 2015
Armstrong and Implied Public Rights of Action
Thank you to PrawfsBlawg and Howard for the opportunity to join the conversation as a guest blogger this month. I'd like to begin by raising a question about the enforcement of federal law: May federal courts imply public rights of action when Congress has not expressly authorized it?
I have written about this question before here and, to a lesser extent, here. The problem of implied public rights of action in favor of the United States and the states has some differences (and some similarities) with the problem of implied private rights of action in favor of private litigants. Recently I've been mulling over the problem in light of Armstrong v. Exceptional Child Center, Inc. (For Steve's and Howard's commentaries on Armstrong, which raise intriguing but different questions than mine, go here and here.) The reason I've been mulling over Armstrong is Justice Breyer's concurrence, which suggests that the United States might have an implied public right of action to enforce the "equal access" mandate of the Medicaid Act even though private litigants do not.Prior to Armstrong, implied rights of action under the Supremacy Clause had become an important way for beneficiaries to enforce federal regulatory programs. For some time, however, this right of action had been on a collision course with the Court's retrenchment from implied private rights of action under federal statutes and private enforcement via Section 1983. And in Armstrong they collided.
Writing for the Court, Justice Scalia explained the Supremacy Clause states only a "rule of decision" and does not support implied rights of action. How, then, have federal courts granted injunctions against state officials without express congressional authorization? Judge-made remedies, Justice Scalia responded, are appropriate "in some circumstances," such as in Ex parte Young. Congress may, however, preclude judge-made equitable remedies and, the Court held, had done so by authorizing the Secretary of Health and Human Services to withhold Medicaid funding for violations of the statute.
It remains to be seen how much private enforcement of federal law has been swept aside by the Armstrong Court. One possibility is "not much." As others have noted, the Court honed in on specific features of the Medicaid Act that it held precluded private enforcement.
What I'm most intrigued by is what Armstrong portends for public, rather than private, enforcement. Here's where Justice Breyer's concurring opinion interests me. He suggested that "[i]f withholding funds does not work, the federal agency may be able to sue a State to compel compliance with federal rules." Breyer cited Arizona v. United States, in which the Obama Administration sued to enjoin Arizona's "hand me your papers, please" immigration policy. As I've explained elsewhere, the Administration relied upon an implied public right of action to enforce federal supremacy over immigration matters. Justice Breyer's citation to Arizona presents a puzzle: Why would Congress's selection of a public remedy to enforce the Medicaid Act implicitly preclude private enforcement but not additional public enforcement? If anything, the argument might run, the specification of a public remedy implicitly precludes other public remedies but not private ones.
To press the argument further, we might say that Armstrong's interpretation of the Supremacy Clause sweeps away implied public rights of action in cases like Arizona v. United States. Now that we know the Supremacy Clause doesn't support rights of action, the most obvious places to turn for judicial authority to imply public rights of action are Article II (when the federal executive sues), the specific constitutional or statutory provision at issue, or federal equity. I've never been comfortable with the view that Article II alone implies and even requires public rights of action. In some cases other constitutional provisions or statutory provisions will support implied public rights of action. That leaves equity, which Armstrong reaffirms "in some circumstances." Perhaps implied public rights of action for injunctive relief fit within those circumstances, but in some cases, including Arizona, that's far from clear.
Comparing Justice Scalia's and Justice Breyer's opinions muddies the waters. Justice Scalia offers some examples where federal courts may fashion equitable remedies. Regulated parties are in, it seems, but beneficiaries of federal regulation (and the federal government in many cases) may be out. Scalia also suggests the history of English equity matters, which recalls his restrictive approach to private remedies in Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc. and Great-West Life & Annuity Insurance Co. v. Knudson. (For a fascinating discussion of these cases' restriction of remedies, see Judith Resnik's 2003 article.) If the federal government cannot analogize itself to a regulated party claiming an immunity from state regulation, Scalia's vision of equity might preclude an implied public right of action. By contrast, Justice Breyer's view leaves implied public rights of action against state officials largely, if not entirely, intact. His concern was that private remedies may interfere with agency expertise. And, not surprisingly, he was comfortable with an implied public right of action to give HHS another tool to enforce federal rules.
Moving forward from Armstrong, it will be necessary to take greater care to tease out not only the distinction I'm raising here between implied private and public rights of action but also the distinction Mike Dorf draws here between statutory and constitutional enforcement. Where the federal government claims that the Constitution itself (rather than a statute plus the Supremacy Clause) preempts a state's action, including in an immigration case like Arizona v. United States, both distinctions matter. Thus, Armstrong raises interesting and practically important questions not just for private, but also for public, enforcement.
Friday, May 01, 2015
Anniversary symposium: What's next?
During the time I was dithering and wool-gathering in response to the call from Howard for the third round of anniversary posts -- topic: what has changed in law teaching and for law schools -- the subject for the next round was announced: What about the future?
Will a lot of law schools close? (Will a bunch of new online or other alternative legal-education institutions open?) Will tuition and debt loads continue to increase? Will the yearly number of law graduates come (roughly) into line with the yearly number of legal and "J.D.-advantage" jobs? Will law schools' programs of legal education change dramatically (e.g., move to two years, or incorporate significant new experiential-learning requirements, or . . .)? Will the expectations and practices of legal academics regarding teaching loads and scholarship evolve significantly? Will law schools -- as a result of the answer to the last question -- be nudged out from the heart of research universities' academic missions? Will we see more law-school deans and high-level administrators coming from law practice or the business sector (instead of from law faculties)? Each of these seems like an important question and, with respect to each, I have to confess that I just don't know.
My hopes are that "the law" will (continue to?) be regarded as, respected as, and in fact a "learned profession" that is meaningfully connected to public service and social goods; that engaged and committed students will pursue legal education because they are attracted to a vocation in such a profession; that access to this profession will be available (which means, among other things, "realistically affordable") to a wide range of students from diverse backgrounds and with diverse interests; that law schools' programs and law professors' activities (teaching, scholarship, and service) will be consistent with and supportive of this way of thinking about what "the law" is; and that at least some excellent law schools will remain fully integrated with excellent research universities. I have a strong sense that, in order for these hopes to be realized in the coming years, more than a few non-trivial changes are needed, and needed pretty soon. (And, of course, whether these hopes can be realized is not entirely within the control of law schools.) But, again, I wish I had more confidence that I knew exactly what those changes are.
Thursday, April 30, 2015
The Perceived Value of a Law Degree
One of the topics for the mini-symposia is what the future holds for law schools. This led me to think about how law schools communicate to the public that a law degree is still useful.
There has been a lot of discussion about the changing nature of legal education. Responding to studies, like the Carnegie Report on legal education in the United States and Canada, law schools have been under pressure to make law school more “practical.” Coupled with the economic crisis that affected the legal industry and the media’s critique of legal education, we have all read that law school applications are down and that some schools are shrinking class sizes.
One can predict doom and gloom for law schools. However, it seems to me that higher education is under attack in general. One doesn’t have to look far to find articles and books advising students to skip college to start a business instead, or documentaries critiquing the business model for higher education in the United States.
Law degrees may not offer the security of the days of old, but what non-STEM (Science, Technology, Engineering, Math) field does? Perhaps the general response from law schools has been too narrow. Maybe it is partly driven by the US News & World Report Rankings methodology, to the extent that the post-graduation employment statistics are affected by whether the position requires a law degree.
The future of law schools probably depends, in part, on the perceived value of legal training. I do not mean to suggest that law schools should not be responsive to the changing times. Yet, I wonder whether the defense of legal education could not be more robust. A law degree is essential if you want practice law. However, as we all know, legal education can be valuable even if you do not plan to practice law. The flexibility of the law degree is, arguably, one of its advantages. Unlike surgical training, for instance, legal training gives you skills that are transferable to other fields. Maybe (like some of the students I have encountered) one intends to run a business, to go into politics, or to have a career in diplomacy. If so, having a law degree may be highly useful, even if it isn’t essential. Isn’t that a good enough reason to go to law school?
I’ve seen the future, and…
The following contribution to the Mini Symposium# 4 is by Margaret Ryznar (IU McKinney).
I’ve enjoyed reading the anniversary posts and planned to contribute. However, by the time I completed article submission season, end-of-semester tasks, and my tax filing, I noticed that we were up to a difficult question—what does the future hold?
It’s a question with many aspects to it, but in a way, we have already seen the future, and it’s increasingly heavy on technology. Technology assists us in every way, from the way that legal services are delivered, the way law teaching is done (powerpoints in the classroom, entirely online course programming, etc.), and the way legal research is disseminated (Westlaw, SSRN, online journals).
I’ll skip the normative discussion of these technologies because so much has already been said on it. I’ll just say that most of the technological tools I’ve used, I liked. And, it’s tough to go back. On the other hand, I did recently purchase a typewriter, and I like that too. The best use of technology, we’re often told in tech talks, is as a supplement—and that aligns with my experience.
Will technology make things cheaper? Sometimes. But, as an example, Scholastica is slightly more expensive than the older ExpressO (although Scholastica does offer more services to editors). So, maybe technology does not always make things cheaper, just better—and we’ll take that too.
The exact future of our use of technology depends on the evolution of technology, which has a frenetic pace. The initial IBM PC’s had only a 640KB usable RAM limit (Bill Gates allegedly had said that “640K ought to be enough for anybody,” but later convincingly denied it). Ten years ago, this blog was highly innovative, and now—only ten years later—the question is pondered—is blogging passé?
My answer is no, and it’s not sentimentalism talking. Just as I got great information from the blog when I was on the meat market, so it is true now. Just as I got ideas for my research and teaching from the blog, so is true now. Ultimately, this blog is just an additional technological tool to connect and learn, but it continues to be a highly useful one—which is a huge testament to its founder, Dan.
Wednesday, April 29, 2015
Anniversary Topic #4: What does the future hold? Prawfs and Other Blogs
I suppose that if I didn't believe that there was a future for Prawfs, I wouldn't be blogging here. I'd be off somewhere not reading this. I think that Twitter, Facebook, and blogs have their strengths. None of them is a replacement for the other.
In the broadest sense, I wonder if our vocabulary needs different words for "blogs,"the way that different Northern languages have hundreds of words for "snow." As a few examples, there are very high profile super-blogs, commercialized blogs, highly personal blogs, and blogs that are adjunct to major newspapers. After all, a blog is a platform. Any blog's authors, commenters and readers define its purpose, and re-define it continually. Perhaps prawfs will always need blogs as a centralized place to present and consider different ideas on their own pace, a place to try to make sense of things as they unfold. Where law schools are geographically distant, blogs are one way to find out what others are thinking about issues that many of us have in common. Mediums that limit discussion to the 140 character format, or in a format that folds in ads and odd timeline re-shifts, are less conducive to those types of discussions.
If blogs are quieter now (are they?), I suspect that being in law schools in a time of crisis is one plausible explanation. People are busier/in meetings/building programs/speaking to press/doing scholarship/at a recruitment event/etc. in ways that have taken precedence perhaps. Regardless, I think it's healthy to re-assess direction from time to time. That's part of building a future.
Monday, April 27, 2015
Anniversary Topic # 4: What does the future hold?
Thursday, April 23, 2015
Law School Sustainability 2015
In late 2012, I put up a post entitled "Law School Sustainability." I argued that law schools had to think seriously about making legal education sustainable by making it a worthwhile endeavor for graduates. Two and a half years later, sustainability has become even more of an imperative than a choice. It is not an exaggeration to say that some schools are struggling to stay in existence, and that most schools have had serious challenges to their operations. This December 2014 NYT article provided not only an overview of this situation -- it also provided a source for law school deans in convincing university administrations (or, for stand-alones, their boards) that the problems at their particular law school were not unique. "See? Even Northwestern is having these issues!"
There are two blunt forces that are channeling the deluge of changes on law schools today: money and the U.S. News rankings. Money is pretty straightforward: a school needs enough students to pay enough in tuition to cover the costs of operating the school. Schools will have various abilities to cover shortfalls. But a school at least needs to pay for itself to be sustainable. So money is pushing schools to take more students at higher tuition rates -- or, to cut costs to make up the shortfall. U.S. News, however, pushes in almost the opposite direction. It puts pressure on schools to take fewer students, to pay more money per student in educational expenses, and to cut tuition to get better credentialed students. (Ted Seto made this point yesterday, in discussing tuition sustainability.) So schools have played the game of ping-ponging back and forth between these two forces, depending on their finances.Many schools have gotten to the point where the U.S. News goals has become a luxury they cannot afford. But as much as we want to disparage the crude and whimsical nature of the rankings, they do include measurements of important information: incoming credentials, bar passage rates, and employment statistics. Schools that allow these benchmarks to degrade are hurting themselves in the long run. Just as with finances, schools will have differing abilities to suffer through worse LSAT scores or lower bar passage rates in the short term. However, a school whose graduates cannot pass the bar in significant percentages and do not find jobs that can cover their loans is not a sustainable endeavor.
So this is a small cheer for U.S. News, in that it provides an additional incentive for schools to keep up their incoming credentials, get their students to pass the bar, and then find them employment. Word would get out eventually about schools that fail to mind these things. But U.S. News gets the info out nationally, more quickly, and more systematically (if more crudely, and in ways more open to gaming).
One more quick point, to echo what Ted Seto said: U.S. News may incentivize lower costs, but it does so only for higher-credentialed incoming students. Changes to the federal loan program may soon provide very strong incentives to keep tuition lower for everyone. If that happens, then the ping-pong game will turn into this, and the sustainability window for law schools will get significantly narrower.
Tuesday, April 21, 2015
All is Vanity.
I’ve enjoyed the set of recent reflections on Prawfs’ astonishing ten-year run. Orin's great insights about blogging’s lack of internal credit & Paul’s characteristically wise post about the aging medium both hit points I would’ve written if I were faster on the draw, and smarter. Or perhaps not. Like Paul, I’m increasingly averse to writing about the medium, or about legal education itself. So these recap posts scratch an itch that perhaps ought to be left alone. Indeed, it feels far too often that most law blogging by professors is a less rigorous version of the Journal of Legal Education, or worse (?) an unending and unedifying list of law professor dean searches.
Why, I wondered, has the energy left the building?
- Because there are fewer fans. This is most of it. Prawfs started in the seven years of hiring plenty, and we’re now deep in the middle of the seven years of drought. There are many fewer young law professors than there were in 2005, and those few that remain are well-advised to keep their heads down and do what’s necessary to survive increasingly difficult internal climbs to tenure. Prawfs' and like blogs' rise had many parents, but a hiring glut has to take place of pride.
- Because of status and everything that comes with it. When Prawfs began it looked possible that academics from elite institutions would join the fray. That’s – by and large – not what happened. True, there are some faculty blogs at Chicago and elsewhere, and some subject-matter-specific blogs where elite academics occasionally deign to write. But very few academics from top ten schools blog regularly. That means: (1) blogs are still largely written by those who’ve not yet “arrived”; (2) bloggers generally work at schools with worse employment numbers, which makes them embarrassed to noodle in public; (3) it’s harder to move the needle on public conversations (excepting, as always, the VC, which is sui generis); (4) institutional support for blogging is resource-constrained. (See #5.)
- Because the party is elsewhere. You may have noticed that Concurring Opinions, my home, has been relatively quiet of late. But have you read Frank Pasquale’s twitter feed (7000+ followers). Or, better yet, followed Dan Solove’s LinkedIn privacy forum (~900,000 followers!!)? LinkedIn, Facebook and Twitter, etc. are where the action is. People read law professor blogs, by-and-large, to learn who has died, who is moving to what schools, and to guesstimate if their article will be accepted. Also, there are recipes.
- Because of preemption. Everything has been written before, including this sentence. Law professors care more than most about preemption. The weight of past posts is starting to press on our heads, no?
- Because we didn’t innovate. Again, generalizing, blogs have remained stagnant in form. That wasn’t inevitable. But even blogs about cutting edge topics are conventionally organized. Economy plays a large role here – as do law schools’ IT support, which has other fish to fry. Just a for-instance: compare Stanford Law’s fantastic landing page to a blog they’ve nested inside. Get the sense that the money for the renovation started to run out at some point? Being stuck in a reverse-chron, wordpress, format has meant that symposia can “disorienting” and unwelcoming to outsiders. At Temple, I’ve been pushing hard against the trend, and we’ve started a business law newspaper using Hive, a nice wordpress-based platform that at least looks fresh. But if law professors wanted to be unconventional, technologically-savvy, innovators, they wouldn’t have become law professors.
All of this makes me feel wistful, because I remember when Prawfs (and Co-Op) started and the medium felt both transformative and exciting. Blogging has been amazing for me professionally. A post – and Dan Kahan’s generosity in response to it - got me involved with the cultural cognition project. Many other articles started as half-baked pieces of dreck at various blog homes. It’s also been great personally, as I met many of my better friends in the academy through Prawfs or CoOp or the Conglomerate, making conferences less overwhelming, and knocking down disciplinary and subject-matter barriers.
But all things change. I am optimistic about the future of law, the legal academy, and public conversations about both – I just don’t think the future will be blogged.
Dan Markel could be an exhausting friend, and I didn’t always have the energy to talk with him. In the weeks before his death, I’d put off a conversation long overdue. On July 17, 2014, I texted him to prompt that phone call, asking “what’s new with you.” Later that day, he texted back, writing, “Lots. Will call shortly.” I’m sorry we didn’t get to have that call. I’m sorry that he’s not around to celebrate this anniversary. He would’ve found my pessimism about professor blogging silly, and would have, I think, expressed enthusiasm and optimism I don’t currently feel about the future of Prawfs and law blogging more generally. Even if I'm right - and the glory of blogging is behind us - it's still worth recognizing that Prawfs has chugged along for a decade, adding tremendous value in the academy, largely because of his initiative and spirit.
Monday, April 20, 2015
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.
For the most part, blogging is still an extracurricular activity instead of something that is part of the core mission of legal academics. To put it in crass terms, I doubt a law school Dean ever gave a professor an endowed chair, or a raise, or a research leave -- or whatever else Deans can sometimes give professors for top job performance -- in recognition of the professor's outstanding contributions to the blogosphere. Maybe it has happened. But I doubt it.
The result is that lawprof blogging today is taken seriously in some ways but not in other ways. And I suspect that combination has something to do with the dynamic several Prawfs bloggers have noted recently about the blogosphere now seeming less fresh and perhaps a little stale. Internal credit isn't everything, of course. People blog for lots of different reasons. And in some cases, influence can lead to attention that can help bring opportunities for credit.
Still, the relatively low internal rewards for blogging, combined with the sense that posts should be serious, have limited its dynamic possibilities. Fewer profs have a career incentive to join in, at least beyond short-lived guest-blogging. Those who have blogged a lot before face no pushback internally if they slow down or stop. And given how time-consuming serious blogging is, the number of folks who will do it regularly is not large.
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?"
I am happy that blogging has developed into a "serious" forum and form of writing, both in terms of content and perception. That seriousness can be traced to the early waves of bloggers who started ten years ago as junior faculty. By doing a lot of good writing on a range of subjects on a lot of blogs that people were reading, it seems inevitable that some of it would come to be seen as somewhat serious and worth paying attention to. It also makes sense that law students and rising future and junior prawfs, raised on these fora, would view them as serious and also (hopefully) want to join in (exemplified by Richard's initial solo blogging and then his work here, as well as some of the junior and about-to-enter guests we have welcomed the past few years). And finally, in something of a feedback loop, as we have moved to the more senior ranks on our respective faculties, we are in position to both encourage and reward junior colleagues who take on blogging.
Perhaps Dave is right that what I just described also made it inevitable that posts on Tallahassee, pop culture, and Notre Dame football might fall by the wayside. After all, if I want a hiring or P&T committee to look on this as at least a somewhat worthwhile endeavor, I may not want to dilute the perception with too many frivolous posts about non-legal/non-serious subjects.
I am not on Facebook, although I probably should be. I think Rick gets the connection between blogs and Facebook about right--they are serving different roles, with Facebook somewhat taking over the light-short-and-fun posts as blog posts have gotten longer and more serious. Facebook is not necessarily the space for long posts or for working through scholarly ideas. Although perhaps the divide is not that sharp--when Dan was incubating the idea for what became Catalyzing Fans and this Atlantic essay, he initially went to Facebook rather than Prawfs.**
** When Dan called to pitch me on joining the project, he explained his idea and told me to read his initial musings. Since I was not on Facebook, my wife friended Dan, which then allowed me to read his initial discussions. Yeah, I probably should join already.
I will close with one question for consideration ten years in: Why haven't faculty blogs caught on or lasted? Dave mentioned the Chicago faculty blog, which I previously read regularly, but there has not been a post there for almost a year. Marquette and Loyola-LA both are thriving and Illinois just finished its first year. But that's basically it. Why hasn't that form of blogging worked as well as sites such as this one?
Saturday, April 18, 2015
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.
And, I can read Rick Hills’ post about whether it is “legitimate for an academic institution or individual to compromise academic freedom in order to gain access to a population otherwise controlled by an authoritarian regime.” He is writing from China! Where he is teaching as we speak. His reflections may not have the rigour of his law review scholarship, but they have the contemporary feel of a scholar struggling with immediate and increasingly germane legal and pedagogical issues. His blogging also helps me understand not only what it means to be an academic in a country that does not prize freedom of expression, but also what it might mean to be a Chinese student at an American law school. It reminds me to be more tolerant and understanding of my own students’ cultural backgrounds: how what I say may impact them or how the way I interpret their work or classroom behavior may be a result of my own cultural myopia.
Twitter has proven to be even more powerful for me as a reader. I follow dozens of law professors throughout the country. These scholars are constantly thinking about and working on critical and complicated issues, some of which I am also trying to work through in my own head/scholarship. Of course, 140 characters is not enough to begin to understand a complex legal issue, but these tweets are often short bursts of carefully thought out opinions by people whose work in longer-form I respect immensely. And I can ingest hundreds of these thoughts a day. I do maintain a healthy skepticism that these opinions are as clear or pat as they appear on Twitter, but I am confident in my own, and in any legal academic's, ability to read tweets and click on links with a grain (or maybe a shaker) of salt.
Moreover, Twitter is a powerful research tool. I am writing and thinking about policing and prosecuting the police. I would have found my way to Harvard Law Review Forum’s issue on police reform regardless of Twitter. But, thanks to Walter Katz (@walterwkatz), Elizabeth Joh (@Elizabeth_Joh), and Seth Stoughton (@PoliceLawProf), I got there faster, really fast.
I have no idea whether my own blogging is helpful, hurtful, or completely irrelevant to my desired career as legal academic. It’s hard to figure out what received wisdom about writing, self promotion, networking, etc... to follow because it is not (to say the least) uniform. This post is about being a consumer, not a creator of social media content. And, ironically, I wouldn’t have thought to write an appreciation of blogging were it not for the thoughtful critiques of the medium that have appeared on this site in the last few weeks.
Dan Markel ran a colloquium in New York for criminal law theory scholars (that continues thanks to his co-director Mike Cahill). He was immediately welcoming to me and to my colleagues, who were literally months out of practice when we first attended. While those meetings terrified me, they also taught me so much about what it means to be a scholar, to think critically, and to accept criticism gracefully and appreciatively, not to mention exposing me to work by other terrific scholars. His gracious acceptance of those just entering the academy is reflected in this blog, which provides access to the critical thoughts, musings, and serious work of both established legal scholars and those just starting their academic career. I am really grateful that this site and other legal blogs (and Twitter!) exist.
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.
The word “serious” has unusually positive vibes in law, and in particular the legal academy. Good old Taking Rights Seriously has spawned a cottage industry of knockoff titles and catch phrases, but as near as I can tell, it means something positive: To take rights or anything seriously is to treat it with a kind of reverent gravity, and while that may not be a virtue in a comedy or daily life, it seems like law is nothing if it is not serious (seriously: if people don’t think following the law qua law is a big deal, then goodbye legitimacy, hello anarchy).
So when I say that blogs seem to have become more serious in the past decade, that seems like it may be an unalloyed good. And in one sense, I think it is. Back in the early days, there was a sense that whatever blogs may have been, they were not authoritative and were certainly not authority. But then, that gradually changed. I couldn’t find it but I think Dan posted the first time when a court cited a Prawfs thread for some proposition. This must have happened at some point, and regardless of whether it was commemorated (it was mentioned here, for example, but can't find the Prawfs link) it was clearly a big deal because it signaled that blogs were beginning to be—ahem—taken seriously by not just other bloggers or even academics but judges themselves (and who is more serious than them?).
This trend strikes me as totally legit, and actually a very good reflection on the intellectual egalitarianism of the legal profession. For my money, good arguments are good arguments, whether they’re in the Harvard Law Review or scrawled on a cocktail napkin (and the same goes for bad arguments). The initial dismissal of blogs as categorically not-serious strikes me as condescending status-snobbery, with a fair dollop of Luddite digital skepticism thrown in. If some people are blogging about what kind of cereal they now like for breakfast, that does not mean that a convincing legal argument made on the same blog is not a convincing legal argument. It just means it is a convincing legal argument made in an unorthodox (or formerly unorthodox) place. For what it’s worth, I just checked and my Prawfs posts have been cited a literal handful of (i.e., five) times in secondary sources, per the Westlaw JLR database. That’s not an especially impressive figure, but it is exactly five citations more than I would have ever predicted at the early advent of my participation in this blog.
Blogging has become serious in a second sense, though, about which I feel more ambivalent. In January 2006, when I first dipped my toes into the PrawfWaters, there was (and may still be) a real sense that bloggers were considered frivolous (i.e., not serious) scholars, which could be the death knell of a career. (Anyone else recall L’affaire Drezner, much blogged about on this site back then?)
And this suspicion did not seem totally crazy. It was not entirely clear back then what a blog post was or should be, so the variance was very high. It was sort of like my current city of residence, Houston, where the lack of zoning means you see improbable concatenations of architecture on the same block (there’s one strip of Kirby that goes KFC, office high-rise, funeral-home-turned-nightclub). You’d see a post with real heft on something like religious freedom cheek-by-jowl with some random-ass musings about what Dan memorably called “Sweet Sassy Tallahassee” (or, as the case may be and often was, “Funky T-Town”). I noted from this post in 2005 that Dan referred to Prawfs as a place where professors would discuss “law and life,” and that binary reflects the more open-textured content I recall from back then.
Now, to echo Paul’s point, not so much. The content of Prawfs, and I think of most similarly situated blogs, is largely, if not entirely, serious. That is, most of what people take the time to write is legal analysis, law current events, opinions about these things, etc. There may still be some self-referential writing (like this very post), but even that is pretty serious, in content if not in tone. And a lot of major figures in legal academia devote substantial amounts of their professional energy to blogging—consider Solum’s blog, the U of Chicago faculty blog, and Balkinization, just to name three of the top of my head.
I’m less sure what to make of this trend. On one hand, a lot of stuff on the internet is irrelevant, off-topic garbage, and one could say that it makes perfect sense for legal blogs to focus on legal topics, because that is the content people visit them to read. There’s something to this point. But I also think something is lost when blogs become more narrowly focused. They are more serious, but this almost inevitably means they are also less fun. And while I’m not sure Prawfs or any other blog was ever a laff riot (the tag line since forever has referred to Leiter’s “kind of boring” dig from way way back), I sort of miss the more freewheeling, open-range blog style of a decade or so ago.
Then again, maybe difference in content from a decade ago is not so great, as Howard’s amusing post about SCOTUS Ben and Jerry’s flavors may indicate. Am I merely nostalgia-stricken? If so, I should seriously reconsider my capacity to objectively assess this blog’s degree of seriousness.
Tuesday, April 14, 2015
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
Anniversary Topic # 2: What are Prawfs and blogging like today?
Friday, April 10, 2015
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.First, Prawfs has provided me an invaluable forum in which to articulate ideas that didn’t fit elsewhere. This is a slightly different point than the one Howard made earlier this week about blogs as incubators for ideas for writing projects (though that is another function they serve well). When you start to hit mid-career as an academic, I think the challenge in writing ceases to be figuring out what it is you want to say, and instead becomes sorting out which of your various ideas warrants the time to turn into a full-length article or essay.
In other words, not every interesting idea warrants a separate law review article, either because it does not require 60+ pages of detailed, footnoted explication (if that is ever truly necessary) or because it does not relate to the kind of topic that would be appropriate for law reviews. But that does not mean those ideas aren’t interesting or worth sharing. And while there are now more options available for these intermediate-level ideas (online law review companions, for example), one good place for them is the blogosphere. This is what Prawfs has meant to me professionally: A space within which to express interstitial ideas that might otherwise have fallen by the wayside.
Sometimes, this resulted in essaylets that I thought turned out well and was proud of. One example is Puzzles and Prescriptions, a post I wrote after some good conversations with Dan and others at various PrawfsFest about the meta-question of what kind of thesis a paper has to deliver (i.e., normative claims about how the law should be versus explanatory claims about what theories best make sense of observed anomalies in the world—and yes, now I see that this dichotomy leaves out at least a third category, descriptive but non-explanatory claims such as the kind that typically emerge from quantitative empirical studies). Not everything was a winner, though. In looking back through my old posts, I ran across one from the same 2009 guest-blogging stint, System Externalities, and it just didn’t seem to work. I still think the idea has promise, but it’s not that well explained, and I can see why the commenters found it murky.
But that’s the point: By lowering the entry costs of getting your ideas out there, blogs have enabled a lot of heterogeneity, and the downside is that some of those ideas may not work out, it’s more effort to sort through everything that’s out there, and sometimes you’ll take a shot at something that just doesn’t work. But on balance I think it’s well worth the costs to make the marketplace of ideas richer, even if that means the marketplace is more like a teeming open-air bazaar than a genteel Whole Foods, and I’m grateful to Prawfs for doing that—and letting me play a role in it.
Second, and on a much less serious note, Prawfs has been a hell of a lot of fun. Dan included “Odd World” as a category in Prawfs, and I took the cue in one of my first posts to write about the early modern practice of subjecting animals to criminal punishment (often as co-defendants in bestiality cases), and in a later post to contemplate Walter Sobchak’s observation that “the Supreme Court has roundly rejected prior restraint” in The Big Lebowski. The legal-academic world did not cease to spin on its axis following these posts, of course, but it was cool to write them, and more generally I think the light tone of many Prawfs posts and discussions gave some needed leavening to the somber- and seriousness of mainstream academic discourse.
And PrawfsBlawg led to the spinoff workshop PrawfsFest! (I include the “!” not because I seek to end that sentence with emphasis but because, of course, that is how Dan always wrote it.) I attended my first ‘Fest in late 2007 and found myself in the regular rotation for the next several years. It’s a great regret of mine that I had to bail on the December 2013 iteration because as it turned out that would have been a last chance to visit with Dan in person. These workshops were always a great time, not only because Dan drove everyone to engage in serious discussion of ten papers over two days, but also because the conversations were as entertaining as they were productive, with equal parts good humor and rigorous debate.
I will cap this walk down the ten-year memory lane there. Thanks again to Howard et al. for letting me weigh in and to others for their contributions so far. I look forward to reading the rest of them throughout the month.
Thursday, April 09, 2015
Prawfsblawg and friendship
I remember pretty clearly -- at least, as clearly as I'm able to remember anything these days -- talking with Danny Markel on the phone in 2005 about his invitation to join the crew at Prawfsblawg. I was a little bit nervous -- and I told him so -- about joining an up-and-running group that already seemed to have an interesting "voice" of its own and about whether the views, intuitions, and "takes" I was sharing (or imposing) at my other blog-home, Mirror of Justice, might mess up the harmony of voices at Prawfs. Danny said -- again, I feel pretty sure I won't forget this and it meant and means a lot to me -- "we're friends, and disagreement among friends doesn't mean anything's wrong."
I think this statement says a lot about Danny and about what it was that made and makes him so special to so many. We corresponded fairly often about this or that draft article or blog-post and it felt like we were often disagreeing. But, it was fun. He had a habit of calling me, just to check in, when he was on the road. (I imagine he used a lot of his in-car-time to check in with friends. Why let that time go to waste, he probably thought, on sports-talk radio?) "Hey, pal -- it's Danny" was always the beginning of a welcome and warm conversation . . . or argument.
I've blogged less in recent years than I used to, both at MOJ and here at Prawfs. I'm not sure why; I'm inclined to blame it on my side-job, i.e., driving kids around. Whatever the reason, though, my participation in and at Prawfs -- in the past and now -- is not separable in my mind from the spirit and practice of friendship that I will always associate with Danny.
What Prawfs Has Meant for Me
I was a very early reader of Prawfs. As a law clerk who wanted to join the academy, I trolled the site in the Spring of 2005 between writing bench memos, trying to construct an image of what it meant to be a law professor.
A year into my teaching fellowship, I went to my first academic conference---the Law & Society Annual meeting (it was in Baltimore that year). While at the conference, I was star-struck when I realized that one of the people in the elevator with me was Dan Markel. Realizing that this was *the* Dan Markel from PrawfsBlawg, I mustered all of my courage to engage him in conversation.
I won’t bore you all with how Danny (as I now think of him) was quintessentially himself in that elevator. I’ve already told that story many times (with others) to big crowd (and small ones) in the weeks after he died.
But I will say that, in the months since we’ve lost him, I don’t read Prawfs nearly as often as I used to. It’s not that the content is worse --- it’s just as good, if not better. It’s just that I’ve found it difficult to visit the site without thinking of Danny and getting sad.
So I’m grateful that Howard, Paul, and the rest of the Prawfs gang are allowing me to blog again here this month. Not that blogging here is making me forget Danny. To the contrary, it’s reminding me that Danny would have had very strong views on many of the topics being posted here, and it’s pushing me to speak a little more and a little louder. Prawfs made a huge difference for me when I wanted to start teaching and when I finally did. And I want to do my (very small) part to make sure it continues to do that for others.
Wednesday, April 08, 2015
Ten Years After: How Blogging Has Changed
For an indication of how blogging has changed in the last ten years, I wanted to highlight two posts. The first one is from Dan Solove, entitled "Do You Need a PhD to Do Competent and Cutting Edge Legal Interdisciplinary Work?" It garnered 8 trackbacks(!) and 98 comments from mostly law professors who mostly used their real names in a heated and respectful debate on the issue. It was a real moment of connection for me, as an issue that I had talked about with folks individually was now the subject of real debate between many contributors who had strong opinions. It demonstrated that blogs could offer opportunities to engage and connect on a level that hadn't really happened before -- not with so many people, on such a particular issue, in real time.
Sadly, I think that model has not carried forward. There are perhaps a variety of reasons, but Kate Litvak provides a convincing set of explanations in her 2006 piece, "Blog as Bugged Water Cooler." The forum is too public for sensitive, controversial information, and anonymous exchanges don't have the same meaning. I also note Dan's comment to the Ph.D post: "this site won't be host to swipes at scholars and/or their work in the comments and without serious arguments attached." I appreciated Dan's zealous protection against negativity, particularly anonymous, unsupported negativity. But it did mean that perhaps folks were less likely to divulge critical information when it was critical of someone.
The other post is "Submission Angsting: Spring 2015." There are (at this moment) 1,447 comments on the post. The posts are mostly anonymous, but they share a real community of participants who are going through a stressful process and are sharing useful, finely-grained information. The topic is uber-particular and not very interesting to the average law student or even law profs who have not submitted anything this cycle. But journal editors and prospective journal authors can use the info to muddle their way through a somewhat dysfunctional process.
I think these two posts reflect a lot about what has changed in the last ten years of law prof blogging. But I don't really know what it says about the future.
PrawfsBlawg and a scholarly career
I came to Prawfs relatively late. I first met Dan at a PrawfsFest! in Miami in fall 2006 (having been a VAP at FSU a few years prior, I knew many of his new colleagues and that facilitated the introduction). I did an extended guest stint in fall 2007 (the blog was about 2 1/2 years old) that turned into a slot as permaprawf the following spring. And seven years later (ten for the blog), here we are.
In thinking about this topic, my recurring thought is that Dan and this blog enabled my scholarly career. Some significant portion of my academic reputation (draw your own conclusions on what that may be) has been established through this blog and what I have written here. Several past, present, and future scholarly projects have begun as single or multiple posts; I was able to work out ideas in the early stages by writing them here and to obtain feedback from readers. I have written more words about more topics and ideas than ever would have been possible had Dan not given me this opportunity. Some have been about legal education, some have been related to my core scholarly interests, some have been on topics in which I am interested and have thoughts (or questions), even if not the full interest to pursue as larger projects; many of these are ideas that I never would have written, much less presented, but for this medium. Prawfs has offered a scholarly and creative voice and outlet that I never would have exercised or had the opportunity to exercise otherwise.
I share the belief (often articulated by Orin Kerr and others) that junior faculty should look for the chance to blog and that senior faculty are fundamentally wrong to advise pre-tenure mentees against it. Writing is a muscle--the more you use it, the more you are able to use. Rather than distracting from "real" scholarship, being on this site has allow me to fulfill the need to do "other stuff" while working on larger projects. (That is, if I spend five hours working on my current article in a given day, I easily have an hour or so to devote to a short post on something else, especially something touching on current events or something that might not make for a full scholarly treatment or something that I like thinking and writing about, but not enough for a deep dive).
I cannot remember what I did with my writing and my writing time before Dan invited me to join Prawfs. And I cannot imagine where my career would be without it.
Monday, April 06, 2015
Collins on Prawfs' Anniversary
The following is by Jennifer Collins, Dean at SMU, formerly at Wake Forest, Dan's (and Ethan's) co-author, and among the first Prawfs contributors.
Happy anniversary, Prawfsblawg! It seems impossible that ten years have passed, and even more impossible that we are celebrating this anniversary in the absence of our dear friend and founder, Dan Markel. Somehow Dan managed to rope me into being one of the early guest bloggers on Prawfs, in large part because it was simply impossible to say no to him. I will confess I was not very enthusiastic about blogging at the time – I was pre-tenure, living in a new city, juggling three young kids, and frankly afraid to put any posts out into this new medium that were not carefully crafted and exhaustively reworked. But Dan made me brave, and for that I am profoundly grateful. He was forever bursting with ideas and so eager to engage them, and he helped me realize that it was more important to be part of the conversation than to hang back and wait until every post or article was perfectly polished before jumping in. Dan was a connector, a thought-provoker, an indefatigable source of energy and ideas. The privilege of working with Dan and Ethan Leib for so many years on our project on criminal justice and the family will forever be one of the great joys of my professional life. We certainly did not always agree during those many hours of working on our articles and on our book, but Dan always made the disagreements fun. Indeed, he approached every facet of his life with generosity, creativity and joy, from being a parent to being a blogger to being a professor. As so many of us do, I miss him terribly. As Dan would have said, happy bam-bizzle, Prawfs-swizzle!