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Tuesday, July 31, 2007

It's not Berlin, but . . .

Thanks to my Prawfs-colleagues for the updates and photos from Berlin.  My own recent blogging-hiatus is due -- in any event, this is the excuse I'm sticking with -- to a just completed trip to the Pacific Northwest.  At 7:30 a.m., this past Sunday, I was here (on the summit):

Now, back to my course-pack . . .

Posted by Rick Garnett on July 31, 2007 at 03:24 PM in Rick Garnett | Permalink | Comments (6) | TrackBack

Cleavage, Culture, Politics (and the Sopranos)

Over my occasional other blog, Dorf on Law, Sherry Colb has a valuable post on the controversy over an article discussing Hilary Clinton's recent display of "cleavage" on the Senate floor.  I'm moved to write in response.  Some of my thoughts are more inspired by her post than directed at it.  More directly, I want to agree in part and disagree in part with the drift of her post.  Like Sherry, I think this debate is more important than the underlying subject, and unfortunately, the length of this post will reflect that.

Sherry's bottom line, although she and I have much more to say about it, is that when the media highlight experimentation in the clothing of women politicians, "it forces women to dedicate precious resources to what is ultimately a trivial distraction from substance."  She may well not mean it this way, but one way to read this conclusion is that the story was ultimately a bad idea -- that the editors should have paused before running it.

Speaking as a former journalist, I want to say a little more about newspaper coverage, at least in an ideal world.  Newspapers perform mutiple functions.  They certainly cover issues of substance, or should.  But as mirrors held up to reality, they reflect our diversity of interests: our substantive interests, our interest in the broader culture, and even our more unsavory interests (LiLo, Paris Hilton, and so on).  And so they should.  A newspaper run by "public service journalists" or deliberative republicans that attempted to feed its readers only the most substantive material would offer a wholesome but not a satisfying diet.  However high-minded it might be, it would not be much of a mirror.  As long as more "trivial" interests are part of our own bundle of preferences, there is room for such stories in a newspaper.  We should read (and publish) our newspapers accordingly, not allowing the trivial stories to overwhelm the more substantive ones, but not assuming either that every story is and must be published for a larger purpose.  Surely there is room for both.

If we read the "cleavage" story this way -- as one piece of one cultural aspect of our lives -- it is perhaps less objectionable.  But Sherry rightly says that the story is more loaded than that, in a couple of ways.  Let me address them in turn after the jump.

First, there is the view that this story involves assumptions about women, women's role in politics, and women's sexuality, in a way that stories about men would not.  Moreover, I think Sherry is suggesting, we see similar stories about men rarely, if at all.  I think Sherry valuably "raise[s] consciousness about [the] hidden assumptions" underlying Givhan's story, and so I am in agreement with her on an important, perhaps the central, aspect of her post.

I do want to say, however, that raising consciousness about the loaded nature of such stories is valuable to uncover or defuse such hidden assumptions, and to make sure they are written more carefully and self-consciously.  But it does not preclude such stories.  Sherry is right that we view a story about a woman's cleavage differently than we view a story about a man with a beard.  But one certainly can imagine reading a story about a candidate for the presidency who chooses to wear a beard.  If such a candidate appeared in this day and age, in which appearance is so carefully guarded in politics and the convention is that male presidential candidates must be clean-shaven, it would surely draw attention.  Or imagine a still less likely example in current politics: a male candidate with a moustache.  His departure from conventional expectations about male candidates' appearance would inspire, I'm sure, a flurry of stories.  I don't doubt that some of them would even explore the sexual aspects of moustaches, and certainly the fact that moustaches are more or less common among males depending on geographical, racial, and socio-economic factors would feature in the discussion.

None of this denies Sherry's quite reasonable point that such stories are unlikely to be as sexually loaded, or filled with unspoken assumptions, as the "cleavage" story.  So "consciousness" is still needed here.  But, as long as human nature contains within its multitudinous interests a fascination with culture as well as "substance," there will be room for such stories.  I can even imagine, and have seen here and there, a story about a male candidate that more directly raises the kinds of loaded issues Sherry is talking about.  Imagine a story about Barack Obama's athletic pursuits; his playing of basketball and so on.  It would be difficult to read such a story without being aware of the undercurrents of race and racial assumptions that pervade our culture.  We would want to guard against writing such a story in a way that was unaware of those issues.  But that doesn't make such a story illegitimate per se.  We learned something about Bill Clinton, I think, from learning about his (mis)behavior on the golf course -- not everything, but something.  The same might be true of a Barack-on-the-court story.  We should be on guard against our hidden assumptions and write (and read) such stories accordingly, but that does not mean such stories are always improper.

That raises the second question, which is whether such stories are improper in general because they are "trivial."  Sherry ends by lamenting stories that forces political candidates into "a trivial distraction from substance."  I certainly agree that, in the mixed diet provided by the news media, trivia should not overwhelm substance, and substance ought to predominate in the mix.  But there is and, I think, should be room for "trivia."  We might defuse this loaded term a bit by pointing out that some of what is called "trivia" can more accurately be described as a widely shared interest in our culture, in all its manifestations -- including culture in politics and the culture of politics.  It is fair to worry about such stories overwhelming the "substantive" ones, but I think it is perfectly illegitimate for readers to be interested, among other things, in thinking about politics (and everything else) on a cultural level, and about the semiotics of the political world.  Our varied interests are what they are, and while we can adjust the ratio between them, there is no point wishing our interests were always utterly substantive in nature.  Nor would I wish for such a world; politics needs its semioticians, cultural interpreters, and anthropologists just as it needs policy wonks.

I suppose I have written at such length because of personal experience.  A while back I wrote a post here about Al Gore's use of his personal relationships as a member of the global elite to snag a copy of the final episode of the Sopranos from a not especially savory entertainment executive friend, lest he miss it while traveling.  For this, I was roundly flayed in the comments section.  Some of the criticisms were superb and well taken, some thoughtful, and some basically nasty.  I certainly vowed after that onslaught to write more about law and less about personalities on this blog. 

I humbly and fully acknowledge some of the excellent criticisms.  But I would still want to defend the legitimacy of an interest in such matters.  Frank Pasquale, as usual, wrote an especially perceptive comment, and linked to a relevant post on the subject.  It is, though, one thing to say we should care more about John Edwards' policies than his haircut, and another to deny the very natural human interest in both.  We may well need more discussions about the substance of policy than on the "politics of personality."  But there is room in the vast marketplace of speech for writers who are interested in one or the other, or both, in different measures. 

My earlier post did not say everything about Gore that there is to say.  It should have been obvious that it wasn't intended to.  But as long as we are also interested in questions of character, of ethics, of culture, of class, and so on, of course there is room to discuss such matters.  While we should not fall into the trap of assuming that character is all, or that it yields to simplistic analysis or anecdotes, that is different from suggesting that we must ignore it.  I would say more positively that it is OK to be interested in the character of public figures -- if not because we think it tells us something about these figures, then because they are epic examples of our fascination with the role of human nature and character in both public life and our own lives.  This is one reason that, along with policy papers and economic histories, we also still read and respond to Herodotus, Plutarch, and Suetonius. 

We should not oversell such an interest, and it should not overwhelm the substantive discussion, but we needn't be embarrassed about such interests either.  I might think that Al Gore or Hillary Clinton (or George Bush) would make an excellent President, and approve of their policy views, and still be fascinated with, and want to write about, what their lives reveal about the nature of class and elitism in a society in which the meritocracy manages to replicate the features of aristocracy.  It might not advance the political debate; but so what?  It might advance our cultural discussion, and there's a place for that too.

If I can draw this lengthy digression back to the Hillary Clinton story, of course all of Sherry's consciousness-raising points still apply: even if we are interested in Clinton as a cultural figure, and in the semiotics of her dress, and so on, there are more or less sexist or unconscious ways to write about her, and the Givhan story is as good an occasion as any to address them.  But we should be less eager to say that any story that is not about substance is "a trivial distraction."  Our lived experience involves policy and culture, realities and symbols, and different writers will be drawn to different points along that spectrum.  It is right to care that we get the balance, and our priorities, in order.  But that does not mean excluding altogether our natural human interest in, if I may be tautological, matters of human interest.

One last point is raised both by Sherry's post and by the comments to the Gore post.  Another way to read some of both of these writings (although I think it is much less present in Sherry's post) is that we should not write about such matters, even if we can write about them in a careful and non-sexist/etc. way, because the stakes are just too high.  (I am assuming a Democratic perspective here, without disclosing whether I share it or not.)  Gore, or Clinton, or Obama or Edwards, are good candidates who bring some hope of electoral victory in the face of a terrible administration and against terrible candidates on the other side, and we should refrain from writing things that not only distract from the substance of the debate, but that might positively injure those good candidates and harm our chances of having a better-governed country.  Such a view is rarely openly stated; it's implicit at best, and it may well be absent from both Sherry's post and the comments to my own post on Gore.  But it may be there, and certainly has been voiced more explicitly here and there. 

Such a position can seem grandiose, given how little influence most writing actually has -- blog posts, newspaper articles, law review pieces, etc.  I don't want my own view to come across as grandiose either.  The best safeguard I have against harming the good fight is that my writing is so ephemeral!  But I should nevertheless state that my own view, which is certainly subject to criticism and revision, is that I accept no such obligation.  If anything, I am positively barred, as a writer and scholar, from caring whether what I write helps or hurts some candidate, movement, or issue.*  Nor am I obliged to write only about "substance" rather than "trivia," or, to put it more accurately, I am not precluded from writing about questions of culture and character.  I am obliged to do my best to write well about what interests me, and the comments to my posts often humble me and remind me of my shortcomings on that score.  But, to take a rather extreme hypothetical, I consider myself honor-bound not to care whether something I write, provided it is honest and sincere and careful, helps or hurts some cause or candidate.  If my blog post on the Sopranos, silly and imperfect as it was, were magically guaranteed to clinch the next election for the Republicans, extend the war in Iraq, and doom all new environmental legislation, or vice versa, I'm not sure I would see that as a legitimate basis for deciding to publish it or not.  Don't most scholars and writers share that position?

* Caring on a professional level, that is.  I might well care personally.           

Posted by Paul Horwitz on July 31, 2007 at 01:10 PM in Current Affairs | Permalink | Comments (0) | TrackBack

Constructing a Syllabus: Other Courses

Please feel free to use this post to share or make a request for a syllabus in a course not covered in our preparation project.  It may be particularly useful to provide syllabi for less prominent courses or seminars.  If you'd like to share a syllabus, please feel free to email me and I'll post it here.

Posted by Matt Bodie on July 31, 2007 at 09:45 AM in Teaching Law | Permalink | Comments (2) | TrackBack

Constructing a Syllabus: Real Estate Transactions

Please post your specific comments about the syllabus for Real Estate Transactions here.  Please email me if you wish to share a syllabus as an example.  Here is the initial post on constructing a syllabus.

Posted by Matt Bodie on July 31, 2007 at 09:40 AM in Teaching Law | Permalink | Comments (0) | TrackBack

Constructing a Syllabus: Taxation

Please post your specific comments about the syllabus for Taxation (Basic or Individual) here.  Please email me if you wish to share a syllabus as an example.  Here is the initial post on constructing a syllabus.

Posted by Matt Bodie on July 31, 2007 at 09:39 AM in Teaching Law | Permalink | Comments (0) | TrackBack

Constructing a Syllabus: Intellectual Property

Please post your specific comments about the syllabus for Intellectual Property (including Copyright, Trademark, and Patent) here.  Please email me if you wish to share a syllabus as an example.  Here is the initial post on constructing a syllabus.

Posted by Matt Bodie on July 31, 2007 at 09:38 AM in Teaching Law | Permalink | Comments (2) | TrackBack

Constructing a Syllabus: Professional Responsibility

Please post your specific comments about the syllabus for Professional Responsibility here.  Please email me if you wish to share a syllabus as an example.  Here is the initial post on constructing a syllabus.

Posted by Matt Bodie on July 31, 2007 at 09:37 AM in Teaching Law | Permalink | Comments (0) | TrackBack

Constructing a Syllabus: Evidence

Please post your specific comments about the syllabus for Evidence here.  Please email me if you wish to share a syllabus as an example.  Here is the initial post on constructing a syllabus.

Here is an example syllabus:

Posted by Matt Bodie on July 31, 2007 at 09:35 AM in Teaching Law | Permalink | Comments (0) | TrackBack

Constructing a Syllabus: Business Associations

Please post your specific comments about the syllabus for Business Associations here.  Please email me if you wish to share a syllabus as an example.  Here is the initial post on constructing a syllabus.

Here is an example syllabus:

Posted by Matt Bodie on July 31, 2007 at 09:34 AM in Teaching Law | Permalink | Comments (1) | TrackBack

Constructing a Syllabus: Torts

Please post your specific comments about the syllabus for Torts here.  Please email me if you wish to share a syllabus as an example.  Here is the initial post on constructing a syllabus.

Posted by Matt Bodie on July 31, 2007 at 09:32 AM in Teaching Law, Torts | Permalink | Comments (0) | TrackBack

Constructing a Syllabus: Property

Please post your specific comments about the syllabus for Property here.  Please email me if you wish to share a syllabus as an example.  Here is the initial post on constructing a syllabus.

Posted by Matt Bodie on July 31, 2007 at 09:30 AM in Teaching Law | Permalink | Comments (0) | TrackBack

Constructing a Syllabus: Criminal Procedure

Please post your specific comments about the syllabus for Criminal Procedure here.  Please email me if you wish to share a syllabus as an example.  Here is the initial post on constructing a syllabus.

Posted by Matt Bodie on July 31, 2007 at 09:29 AM in Teaching Law | Permalink | Comments (0) | TrackBack

Constructing a Syllabus: Criminal Law

Please post your specific comments about the syllabus for Criminal Law here.  Please email me if you wish to share a syllabus as an example.  Here is the initial post on constructing a syllabus.

Posted by Matt Bodie on July 31, 2007 at 09:28 AM in Teaching Law | Permalink | Comments (1) | TrackBack

Constructing a Syllabus: Contracts

Please post your specific comments about the syllabus for Civil Procedure here.  Please email me if you wish to share a syllabus as an example.  Here is the initial post on constructing a syllabus.

Here is a post by Dave Hoffman on Carving Up Contracts.

Here are some example syllabi:

Posted by Matt Bodie on July 31, 2007 at 09:26 AM in Teaching Law | Permalink | Comments (0) | TrackBack

Constructing a Syllabus: Constitutional Law

Please post your specific comments about the syllabus for Constitutional Law here.  Please email me if you wish to share a syllabus as an example.  Here is the initial post on constructing a syllabus.

Posted by Matt Bodie on July 31, 2007 at 09:23 AM in Teaching Law | Permalink | Comments (0) | TrackBack

Constructing a Syllabus: Civil Procedure

Please post your specific comments about the syllabus for Civil Procedure here.  Please email me if you wish to share a syllabus as an example.  Here is the initial post on constructing a syllabus.

Posted by Matt Bodie on July 31, 2007 at 09:22 AM in Teaching Law | Permalink | Comments (1) | TrackBack

Course Preparation Project: Part 4: Constructing a Syllabus

This week we'll be getting back to the nuts and bolts.  Having chosen the materials for the course, the next step is to create a road map for the semester.  The syllabus generally lists the assignments for the course as well as some other foundational issues: how grades will be computed, what the professor expects in terms of class participation or attendance, office hours, etc.

Carving out the assignments is generally the biggest challenge in creating the syllabus.  You can discuss what to put in and what to leave out at the subject-specific posts that will follow this post.  Specific examples would be extremely useful.  If you'd like to share your syllabus for one of these courses, please email me and I'll post your syllabus at the subject-specific post.  (I'll be posting my own syllabi at the Contracts and Business Associations posts as examples.)

You should also feel free to discuss larger issues when it comes to constructing a syllabus, such as:

  • Do you put the "course rules" in the syllabus?
  • What rules do you have?  Class attendance?  Participation?  Preparedness?
  • Should the assignments be broken down by day or by week?  Or should they simply be listed?
  • In the alternative, should the initial syllabus only cover the first few weeks of assignments?

Feel free to post general comments about syllabi to this post.

Here are previous installments to the Course Preparation Project.

Posted by Matt Bodie on July 31, 2007 at 09:17 AM in Teaching Law | Permalink | Comments (0) | TrackBack

Monday, July 30, 2007

Auf Wiedersehen!

Img_0021 Another month of blogging has come and gone, and it's now time to pay attention to wrapping up the summer, and getting myself physically from Michigan to Massachusetts.  So here's a heartfelt thanks to Dan Markel and the gang.  But I was delighted to find an e-mail this morning from Susan Franck (Nebraska) with eight more Deponie #3 pictures from the L&S meeting in Berlin attached.  (Note to Scott Moss:  please direct art reviews directly to Susan.)Img_0023

Susan, however, was no better than I in identifying everybody.  Img_0025There's LarryImg_0026 Solum, looking Continental.  And there's David Zaring and Charles Yablon and Mike Guttentag and Randy Barnett and Brian Tamanaha.  But I'm stumped on some of the others.  So help me out by supplying comments that identify all of the people in the pictures.

Now at this point, I am doing the blogging equivalent of vamping with the text, so Img_0027 that I have enough length around which to post four more pictures.   Susan described these as "iPhotos" taken from her cell phone, which I presume therefore to be a new iPhone.  And it seems like that has a picture quality far in excess of my Motorola Q.  But I don't really care, because I never take a serious picture from my cell phone, and besides,Img_0028_2 this sentence is now long enough to plug in another picture.

By the way, Orly was correct in noting a year ago that one should not spend all one's time simply going to the formal sessions.  Some of the most fun (and Img_0029interesting learning) comes about, particularly in Berlin, talking to colleagues in the cafe, or the platz, or the biergarten.  And whenImg_0030_2 one does take a chance on a completely unknown session just for the satisfaction of intellectual curiosity, remember that a 105 minute session is really, really long, and think about grabbing a seat by the door.

So, auf wiedersehen, and you can catch my colleagues Alan Childress and Mike Frisch with me over at Legal Profession Blog.

Posted by Jeff Lipshaw on July 30, 2007 at 12:21 PM in Blogging | Permalink | Comments (1) | TrackBack

The Horwitz Animals Update

Inspired by Paul H's discussion of the cat who could sense impending death in hospital patients, I am proud to continue the new Prawfs tradition of posting provocative animal news.  But unlike Horwitz, I'll stick to stories with very serious legal implications:

Thanks so much to Paul H for opening up this new line of bloggership for Prawfs.

Posted by Scott on July 30, 2007 at 11:22 AM | Permalink | Comments (2) | TrackBack

The New Formalism Panel

It was a treat merely to be on a roundtable panel with Larry Solum, Randy Barnett, Ekow Yankah, and our moderator, Dennis Patterson, as I've mentioned, to discuss the new formalism.

Larry kicked off with a short summary of what the new formalism was and was not.  Randy followed with a discussion why he began as a contextualist, and, like Jack Balkin, had come to view himself as adopting a "new formalism" (though he was careful to state that it was not how he defined himself - I paraphrase roughly "I don't think I've ever though of myself as 'a new formalist'").  I followed with a discussion of the neo-formalism that Schwartz and Scott adopted in the private law of business contract interpretation, and Ekow closed the panelists' short summaries with a critique of formalism as giving undue weight to the written text, particularly in view of segments of society who may have no ability to influence the drafting of the text.  We then proceed to about an hour of vigorous discussion in which the not-overwhelming-but-not-too-shabby-for-a-panel-in-the-second -to-last-time-slot-on-the-last-day audience participated, moderated pugnaciously by Dennis Patterson.

This was constitutional high theory at its finest, and nobody asked a question or made a comment about textualism or contextualism in contract law.  In fact, about five minutes into the questions, I passed Larry a note saying I would give him $100 if there were a question about my segment, and I never once even came close to worrying about taking out my wallet.

Hmm.  If somebody had, was my promise to Larry enforceable?

Anyway, I've decided to post a redacted form of my comments below the fold.

Here are the comments:

My jumping off point about new formalism is a comment Larry Solum made in the earlier session on Brian Tamanaha’s Law as Means to an End.

We grapple with an antinomy between a sense of permanence or immanence or determinacy in the legal rules by which our social relationships are regulated or constituted, on one hand, and our manipulation of those rules to achieve individual purposes on the other – in a word, instrumentalism. 

In its broadest jurisprudential articulation, this immanence shows up as “justice” or “the rule of law.” The intellectual history of formalism is well-known – the systematic, self-contained, scientific, axiomatic, purportedly deductive textualism of Langdell and Williston gives rise to realism, and its contrasting contextualism.   I think Willistonian formalism in contract law was intended to achieve an immanent norm – that being what my European sociology friends would call juridical justice, or the treatment of like cases alike.   And a student of Luhmann would note the systemic paradox.   Each opposing parties within the system argues to the adjudicator that its view, and its view alone, serves the interest of justice, here being consistency with prior case law.   It is like each side in a football game, or in war, invoking God on its side.

So we would begin by noting the strong explanatory power of realism or contextualism.   Private law does NOT pose the antinomy of an immanent normative order with instrumentalism toward our individual purposes, because in the ex post resolution of conflict between private parties, all is instrumental.   The issue is merely whether we will be textual or contextual in our instrumentalism.

But there is a new formalism proposed for contract law, and my claim is that it is really a sign of the persistence of teleology, of the imputation of purposiveness in nature and in the analysis of social systems. In their 2003 Yale Law Journal article "Contract Theory and the Limits of Contract Law,” Alan Schwartz and Robert Scott made the argument, at least for business contracts, that business parties would choose Willistonian formalism over UCC-style contextualism as the mode of contract interpretation.   The argument builds from the usual normative assumption that society is better off with legal rules that maximize efficiency in economic terms – all other things being equal (and they always are), more surplus is better than less surplus, regardless how the parties divide it up.   In the long run, interpretive mistakes even out, using plain meaning is cheaper, so parties would prefer plain meaning interpretation on the assumption that courts get it right most of the time. This move is not surprising, given its grounding in the social science of economics, and the aspiration of social science to uncover and explain causal relationships in social science with rigor analogous to that found in the physical sciences. 

But it seems to me we have the old antinomy now in a different expression, and once again it arises from the opposition of subjective interest and objective norms.   For in Schwartz and Scott, there are objective norms.   The key conflation of the subjective and the objective occurs quickly, implicitly, and effectively because it makes the fundamental assumption that “there is a correct answer” – this being the mutual intention of the parties and it is the court’s obligation to find it.   And I suggest “the mutual intention of the parties” is to contract law what “the rule of law” or “justice” is to law generally.    Say that to a contract lawyer, we nod our heads “uh huh,” and move on.    Schwartz and Scott assume that the parties' interest is in maximizing total surplus from the transaction which they will then divide by setting the price.   Setting the price is just "strategic behavior" and merits no discussion.  I have negotiated lots of deals, and I can't remember ever thinking about total surplus at all, much less first.   But if I had a choice between a smaller total surplus and grabbing more (in absolute terms) of a smaller surplus, I know where I would go.

It seems to me the world works from the first-person not the third-person perspective.    Only economists and lawyers think they can step out of themselves and see the world objectively, and folk wisdom ("the lawyer who represents herself has a fool for a client") suggests that it is a mistake even for lawyers.

I propose a different antinomy, not formalism versus instrumentalism, but in some borrowed terms, between aboutness and thingness.    I go back to my earlier characterization of “the rules by which our social relationships are regulated or constituted” and offer these comments and questions:

• Instead of focusing merely on rule-following (Fred Schauer’s work), we focus on the distinction between aboutness and thingness of regulative and constitutive rules.

• We ask, on one hand, whether the contract is a reflection or shadow of the transaction, a regulation of the transaction; in short, about the transaction.

• We ask, on the other hand, whether the contract is constitutive of the transaction.  Is the contract a thing in itself?

• And now we call upon a distinction in debates over the philosophy of social science – that being causal explanation versus understanding, or the exercise of hermeneutics.

• We can uncover and explain things.  This bespeaks:

      - Casual explanations
      - Algorithmic functions
      - Mathematical models
      - Laws (of nature, not the sovereign)

Whether you are a Langdellian scientist or a practitioner of the dismal science, it is hardly a leap to attribute thingness in your role as an objective third party observer of the object of study.

And things inhere in the order of nature.    It is the teleology that underlies science.   But it is not a given that the application of scientific method to ourselves works, any more than the ascription of surplus maximizing in individual cases, simply because overall it is a useful model in the aggregate. We are subjects within a system, considering ourselves.  And the alternative view of social science is not that we look for causal laws, but that we understand or make sense of our place in the world.   This is “hermeneutics.”  I contend this is what the parties are doing when they make the contract – they understand, they make sense – the contract is about their relationship.    The purposes are those of the parties, and may or may not align to form an immanent “mutual intention.”  The objectivity inherent in ex post litigation yields thingness, formalism, purposiveness in the contract itself.    We search for that immanent “correct answer” of mutual intention, even though, as I have written, mutual intention is most often an illusion.

I conclude by noting Tom Grey’s ultimate conclusion about “the new formalism”:    it is far more pragmatic than its most strident proponents would let on.    I contend that Judge Posner, a theorist who nevertheless must decide cases, foregoes contracts as things in favor of a common sense pragmatism (whether or not it is well-informed) that is ultimately hermeneutic and not scientific.  Why?    Perhaps because the nature of an antinomy is that it cannot be resolved.

Posted by Jeff Lipshaw on July 30, 2007 at 07:00 AM in Constitutional thoughts, Deliberation and voices, Lipshaw | Permalink | Comments (1) | TrackBack

Sunday, July 29, 2007

House(Cat), M.D.

You may have seen stories last week about Oscar the Cat, the feline angel of death who was profiled in the New England Journal of Medicine.  The full article is here.  According to the piece's author, Dr. David Dosa, Toonces Oscar, who was adopted as a kitten by the staff of the Steere House Nursing and Rehabilitation Center in Providence, R.I., has "an uncanny ability to predict when residents are about to die."  Dr. Doha writes, "His mere presence at the bedside is viewed by physicians and nursing home staff as an almost absolute indicator of impending death, allowing staff members to adequately notify families."  Thus, from the story:

Cat Making his way back up the hallway, Oscar arrives at Room 313.  The door is open, and he proceeds inside.  Mrs. K is resting peacefully in her bed, her breathing steady but shallow. . . . A nurse walks into the room to check on her patient.  She pauses to note Oscar's presence.  Concerned, she hurriedly leaves the room and returns to her desk.  She grabs Mrs. K's chart off the medical-records rack and begins to make phone calls.  Within a half hour the family starts to arrive. . . .

Of course, this is one of those cute, touching, tender, "animals are so sensitive" pieces.  I get that; I do.  But . . . . Not to be a spoilsport or anything, but I'm just a little disturbed by this one.  This is really Frank's area, not mine, but I have a few thoughts.  1) Is it not at all worrisome that a licensed health care facility apparently is making significant end-of-life decisions based on a decision-maker -- an adorable one, to be sure! -- that lacks a medical degree, professional accreditation, and, oh, opposable thumbs?  2) When choosing a licensed institution to take care of me in my final days, might I hesitate to choose the place that will call in my loved ones from whatever they're doing with the message, "You might want to come in quickly.  Our . . . uh, cat . . . tells us it won't be long now."  3) If, as the story suggests, Oscar is, as cats are wont to be, indifferent at best to the living (he hisses at one resident) and deeply attentive to the goners, is the cat really welcome company for the residents?  4)  Seriously -- are there HIPAA issues?

My own dearly departed cat -- actually, my wife's, but it was a package deal -- was actually a great comfort to me long ago when I was recovering from back surgery.  In this case, though, I'm pretty sure I'd keep the door to my room closed and get rid of all the catnip.         

Posted by Paul Horwitz on July 29, 2007 at 05:22 PM in Culture | Permalink | Comments (13) | TrackBack

Pictures from Berlin

The Berlin Law & Society meeting is over.  A couple of things, killing time waiting to board the flight toPrawfs Detroit here in Amsterdam. 

First, there WAS a gathering of bloggers at the Deponie No. 3 as advertised.  However, to my knowledge, the only evidence of this is the picture I took on my cell phone sitting at the end of the table.   This artfully taken shot reveals in the left foreground the back of Larry Solum's head, and across from him, foreground right, Randy ("Billy Bob") Barnett.  I believe that is Charles Yablon seated and facing the camera at left, and Ben Barros standing behind him.  You cannot see them in this picture, but the legal academy's cutest couple, Wendy and Dan Markel, are at the far end of the table.

Second, I can say as one of the older (not necessarily more mature) members of this particular group that I came into consciousness of the political world about the time Berlin was at its very Checkpoint center.   My grandparents (and my mother as a child) fled Germany in 1939, so we were very conscious of that part of the world in just the second decade after WorldLeaving War II.   I remember the Wall going up, and tunneling, and escaping.   So it was strange to walk from my hotel 350 meters to the coffee shop in the Potsdamer Platz, and cross the line of cobblestones left to mark the position of the Wall.  And my walk to Humboldt University each day took me through the spot of Checkpoint Charlie, the main crossover point between the American and Soviet Sectors of divided Berlin.

Finally, a bit of Berlin history trivia.  The reason the smaller airport, Tegel, is much closer to the city than Schoenefeld, the big airport, is that Tegel was constructed in less than 90 days as the third airport within old West Berlin to service the Luft Bruecke, the Air Lift, in 1948 and 1949.  Before that, the main airport was Tempelhof, which is now used just for private aircraft.

Posted by Jeff Lipshaw on July 29, 2007 at 08:57 AM in Blogging | Permalink | Comments (3) | TrackBack

Saturday, July 28, 2007

Best Case Caption Ever

This (link via Metafilter) is my favorite pro se lawsuit of all time. Jonathan Lee Riches, currently incarcerated, sued the proverbial laundry list of defendants; this particular laundry list runs for 57 pages of PACER output. It starts off innocently enough, with George W. Bush; Richard B. Cheney; Condoleeza Rice; Donald H. Rumsfeld; and John W. Snow, but then takes the first of many strange detours with “Uniform Commercial Code ‘UCC’, Unknown Authors of the.” It just gets better and better from there, until the glorious conclusion of Congolese Army; De Gaulle Paris Airport; Skittles Candy; and Arnold Schwarzenegger.

The complaint was apparently dismissed summarily for failure to pay filing fees, and it sounds as though it was probably just the usual jailhouse fun and games, but the imagination on display in the list of parties is stunning. There are so many different categories of defendants that I’m impressed one person thought of them all. The list of defendants includes:

  • www.accuweather.com
  • Queen of England
  • Gambino Crime Family
  • Vienna Convention
  • Jewish Workers at NBC/Universal
  • Plato
  • Various Buddhist Monks
  • Medieval Times
  • The Da Vinci Code
  • The Appalachian Trail
  • Planet of Pluto
  • Cleo, Miss
  • Ninja Samurai Fighters
  • Engine #9, Fire Department
  • Choicepoint
  • Psychology Socialism

Truly a work of art.

Posted by James Grimmelmann on July 28, 2007 at 09:41 PM in Criminal Law | Permalink | Comments (0) | TrackBack

Legal Academy Look-Alikes - Reprise

Barnett Billybob_2 Billy Bob Thornton (right) took time off from his movie-making duties to appear here in Berlin at the Law & Society meeting under his academic nom de guerre, Randy Barnett (Georgetown, right).

"Randy" denied any connection, claiming that his blood was too precious to be given to anyone, including Angelina Jolie.  He also insisted that I was really Owen Fiss.

Posted by Jeff Lipshaw on July 28, 2007 at 02:43 AM in Odd World | Permalink | Comments (0) | TrackBack

Friday, July 27, 2007

Labor/Employment Conference: Deadline Approaching!

The Second Annual Colloquium on Current Scholarship in Labor/Employment Law is on September 28-29 at U.Colorado and U.Denver law schools, but the deadline to register is in just a few days -- Monday, July 30th.  There's no fee, so registering entails only giving your contact info and, if you'd like to present a paper, listing the name of the paper.  The paper can be just a work in progress (for example, by the conference date all I'll have a one-page Abstract and my usual amateurish sort of PowerPoint); with dozens of labor/employment profs attending, this is probably the best possible audience to present a work in progress before you finalize it.  Also noteworthy is the Colorado Law Review plan to publish several of the papers from the conference; the registration page asks if you'd like to be considered for this.

So far the number of registrants is way above last year's colloquium (the "First Annual"), which was pretty big itself (about 50 presentations); the uptick may reflect (1) the success of last year's drawing lots of repeat presenters and new folks and (2) the change in location from Milwaukee to Colorado (which coincidentally was the move I made a few months ago, but whatever Colorado's attractions, I'm skeptical that the Coors Brewery Tour can match the Miller Brewery Tour!).

If you have any questions, feel free to email the organizers: Roberto Corrada (DU), Melissa Hart (CU), or Marty Katz (DU).  I'm merely an "emeritus" organizer, retired after last year's colloquium, with no authority over anything -- but since I'm also at CU now, feel free to email me any questions as well.

Please pass this information on to others, especially those who may be new to, or completely outside, legal academia.  Last year, it was nice that word of the event somehow reached a lot of aspiring profs, non-profs, and others who really needed the work-in-progress audience more than those of us who already have been prof'ing for a few years.  I hope we can draw a similar amount of new blood to this year's event.

Posted by Scott on July 27, 2007 at 12:52 PM | Permalink | Comments (3) | TrackBack


There is a multi-session program on Niklas Luhmann taking place here in Berlin during the Law & Society meeting.  Yesterday afternoon I attended a roundtable that was one of the later segments.   Glancing around the room, surreptitiously checking out name tags, and listening to accents during the Q&A, it was pretty clear I was one of the few Americans, if not the only one, in the room.

Here's some half-assed speculation on intellectual history.  Over the last hundred years, Dewey, Holmes, pragmatism, legal realism, critical legal studies, and law and economics sucked all the air out of the room, so to speak, when it came to reacting to a rationalist or quasi-rationalist foundationalism on our side of the Atlantic.  Luhmann is also a reaction to rationalism, but with a distinctly European acceptance of paradox.  Which raises the question:  if you are an American and somewhat obsessed by paradox in all its forms, are you homeless?

More below the fold.

First, a plug for the presenters, Hans-Georg Moeller, author of Luhmann Explained:  From Soul to Systems, and Michael King and Chris Thornhill, co-authors of Niklas Luhmann's Theory of Politics and Law.

Michael's contribution to the roundtable was subtitled "Why Academic Lawyers Shouldn't Read Luhmann," which was understandable after Hans-Georg's discussion of Luhmann's take on the fundamental paradox of justice.  Justice is a "contingency formula."  What that means is that within a system like law, justice serves as a foundational value, even though justice is incapable of directing a particular legal result in any particular case.  From outside the system, an observer would say that justice is in fact highly contingent, but the internal system would collapse if the actors came to believe that it was not.  This is in fact another way of looking at the antinomy of formalism and instrumentalism Larry Solum highlighted in an earlier session on Brian Tamanaha's Law as Means to an End.  Or, as I suggested in a comment at the end of the Luhmann session, the paradox in real world litigation is that each party invokes justice as argument in service of instrumental goals, as though God could really be on each side in a football game (or a war).  Within the autopoietic (or closed or self-referential) system of law, justice appears as consistency among like cases, not necessarily congruence with fundamental human, moral, or religious values.

So, says Michael, Luhmann is anathema to academic lawyers of all stripes.  To those focusing purely on doctrine, Luhmann would be saying:  "Your search for consistency within the system is ultimately futile.  You believe you can operate within the system to improve it, but that is merely an illusion required to allow your system to continue qua system.  All you are really doing is restating the foundational principle of justice (or whatever) in another way."  To the "morality police" concerned with assuring that legal justice equates with moral justice, the connection (in the traditional of legal positivism) does not exist.  What you see are fundamental is a contingency formula by which what you think is fixed is really contingent.  And to "law and..." scholars who believe they stand outside the system and assess it objectively, you may not recognize the paradoxical nature of your own position.

To return to Larry's articulation of the formalism-instrumentalism antinomy, were I a Luhmannite (and perhaps I am), I would interpret this last in the following way.  We encounter the paradox as an empirical matter.  As legal philosophers who have become conscious of the paradox, we have three choices.  One, we can engage the paradox even if it is incapable of resolution.  (This is what I think Luhmann does.  And that appeals to my Kantian proclivities).  Two, we can make the conscious decision to ignore the metaphysics of the paradox.  That means we are either pragmatists or virtue theorists.  Or three, we can try to resolve the paradox by adopting some form of normative or theoretical foundation with which law must accord (and here, ironically, we can place Charles Fried on contract as promise, law and economics generally, and Dworkin).  Or we can take some combination of the three (for example, Richard Posner, who combines choices two and three).

But, I wonder, is someone operating in the American intellectual tradition, but who opts for choice one, homeless?

Posted by Jeff Lipshaw on July 27, 2007 at 10:22 AM in Deliberation and voices, Legal Theory, Lipshaw | Permalink | Comments (2) | TrackBack

Happy Birthday!

Paul Caron, who, to many of the Pepsi generation of bloggers over here at Prawfs, is no doubt Coke, today qualified for membership in AARP.  More on this topic over at Legal Profession Blog.

Posted by Jeff Lipshaw on July 27, 2007 at 06:25 AM in Blogging | Permalink | Comments (5) | TrackBack

Thursday, July 26, 2007

Court-packing, redux?

In today's New York Times, there is an opinion piece by Jean Edward Smith about President Roosevelt's court-packing plan, the size of the Supreme Court's membership, and the possibility that "[i]f the current five-man majority persists in thumbing its nose at popular values, the election of a Democratic president and Congress could provide a corrective."  Indeed, it could.  Justices retire, new Justices -- with different views of the Constitution and the role of federal judges -- are nominated and confirmed . . .   (As for "thumbing its nose at popular values":  If the nine-justice Court survived, say, the flag-burning case, Furman, etc., I suspect it will survive this Term's controversial decisions.)

Posted by Rick Garnett on July 26, 2007 at 08:16 AM in Constitutional thoughts | Permalink | Comments (3) | TrackBack

The Ethics of Constituent-Representative Relations

My co-author David Ponet and I published a column on Findlaw today about a representative's responsibilities when constituents call for impeachment.  We try to argue for a Code of Professional Conduct for politicians.  Just as doctors and lawyers have professional ethical principles to guide their decision-making, so should politicians.

Posted by Ethan Leib on July 26, 2007 at 02:55 AM in Article Spotlight | Permalink | Comments (0) | TrackBack

Wednesday, July 25, 2007

The Pages We Make

Let’s talk about typography. A typical law review page is a rectangle, let us say 6.75" wide and 10" tall. With reasonable margins and a 12-point font, that gives us a block of text containing about 65 to 75 characters per line and about 40 to 45 lines per page. Both values are highly readable. (The number of characters per line is the really important value; if it’s more than about 90, the eye tends to get confused as it leaps from the end of one line to the start of the next. As long as the text block is noticeably taller than it is wide, the exact number of lines is less important.) All in all, it’s a good format: readable and reasonably compact.

Unfortunately, printer paper doesn’t come in that size. If you want to print out the contents of a law review article on a standard printer with standard paper, you have four bad options:

  • You could do what most law reviews do in their online PDFs and center that same text block in an 8.5" by 11" piece of paper. That adds another seven-eighths of an inch to each side and another half-inch to the top and bottom margins—so over a quarter of the area on each page is superfluous white space. (Then again, if you make a lot of marginal notes, it might not be wasted from your perspective.)
  • You could blow up the page by a factor of 15-25% (depending on whether you’re willing to chop off some of the header). That gets rid of a lot of the whitespace and preserves the sensible proportions. But it also blows your font up to 14 or 15 points, which is large-print book territory, and much larger than you need for readability. In a sense, you’re being just as profligate with your paper as before, just in a different way.
  • You could treat it like many people (myself included) treat SSRN/BEPress drafts and reformat the page to fit 8.5" by 11" conventions: the same-size font with 1" to 1.25" margins. This nets you about 25% more words on each page, which is a satisfying gain. Unfortunately, it messes up line lengths. You’re now looking at 90 to 100 characters per line, which is definitely longer than optimal and is getting up into the borderline unreadable range. That slows the reader down and makes for a less pleasant experience.
  • You could do what a lot of hand-prepared coursepacks do: shrink the page, rotate it 90 degrees, and print a second page next to it on your (landscape mode) sheet of 8.5" by 11" paper. This can work, but you have to have fairly precise control over the printing process. In particular, if you try to do it automatically, your software is likely to insist on adding its own margins to the margins on the two virtual pages, which just kicks you back up to the wasted space problem.

The reality is that the 8.5" by 11" page is not a good shape for conveying a lot of words if you format it in the same basic way you’d format a law review page. So we shoudln’t. There are better ways to work with the massive canvas that is the letter-sized sheet. Have a look, for example, at the this template from the computer science professional society. It uses two columns. Two glorious columns. Along with a 9-point font, that gives a highly readable 60 characters or so per line. But wait, you may be saying, isn’t 9 points microscopic? As compared with 12-point text, yes. But in the context of a well-designed page, your eye doesn’t even register 9-point text as being “small.” I read a lot of ACM conference papers in my prior life, and never had the sense that there was eyestrain involved.

You may disagree with me about the details. My point is just that there are other solutions to the problem of laying out law review- style papers on an 8.5" by 11" page than the ones we commonly use, and that some of these other solutions have significant advantages over the old standbys. Going for two columns rather than one (either two tall and narrow ones in portrait mode, or two stouter ones in landscape mode) is a particularly promising move. I’d love to see more legal scholarship distributed electronically in formats that work a little better when—as almost inevitably seems to happen—they make their way back onto dead trees.

Posted by James Grimmelmann on July 25, 2007 at 11:17 PM in Information and Technology | Permalink | Comments (2) | TrackBack

Prawfs Happy Hour in Berlin on Wed July 25th at 9pm at Deponie no.3

Along with our friends from Opinio Juris and the Glom, Prawfs invites you to join together for drinks and chow in Berlin during the LSA conference on Wednesday TONIGHT!! July 25th at 9pm.  We will be at Deponie No 3.  It is our first international happy hour and we're pretty excited about it.  The locale has food as well as drink, so do come by and say hello. We will be there for at least a couple hours so come by after dinner or the LSA reception.

Here are the details:

Deponie No. 3 is located directly behind Humboldt – in the "Passagen" of the S-Bahn tracks
(i.e., under the tracks). It is at Georgenstrasse 5 (Berlin, Mitte).  Here is the website link with a little map showing the location. All are welcome and please feel free to bring friends and sig others, but if you can, shoot me an email to let me know to look out for you and so that we can get a reasonable guesstimate to the people at Deponie No.3.
Here is the link:

Posted by Dan Markel on July 25, 2007 at 03:12 PM in Legal Theory | Permalink | Comments (0) | TrackBack

Judges, Clerks, Honor, and the Market

Today's WSJ Blog has a post discussing a new paper by Christopher Avery, Christine Jolls, Richard Posner, and Alvin Roth, The New Market for Federal Judicial Law Clerks.  This follow-up study concludes that, despite the strictures of the current regime for law clerk hiring, there has been "a level of interviewing and offering of positions prior to the specified start dates that we find surprisingly high."  It also finds that judges a frequent judicial use of exploding offers.  All this is familiar to our readers, I'm sure, but the study puts things in a stark light, and the quotes and anecdotes are also worth reading.  The WSJ quotes this survey respondent:

"I received the offer via voicemail while I was in flight to my second interview.  The judge actually left three messages.  First, to make the offer.  Second, to tell me that I should respond soon.  Third, to rescind the offer.  It was a 35 minute flight."

Of course, the whole issue has been debated to death.  There are certainly judges who view the clerk hiring process as a market and resist any effort at coordination.  I think the study rightly focuses, though, on the fact that many judges purport to support the current process, and yet violate it, or depart from its spirit while nominally obeying the letter.  And I think the authors of the study rightly say that although no judge is obliged to follow the guidelines, "the operation of the current law clerk market presents moral issues as well."  Some judges who depart from the current system do so openly and out of principle.  Others don't follow it, or exploit things like exploding offers, not out of principle, but simply because they can.  If we call "honor" that quality of acting within the spirit and letter of rules that don't officially bind us, then I think we can call some of these judges dishonorable.

I offer no solutions here, and welcome comments and anecdotes.  A couple of thoughts, though.  First, we should recognize that the web of complicity includes, on occasion, professors and schools who find ways of collaborating with judges to work around the system.  Second, we might ask whether a legislated solution to the problem (if it is a problem) is necessary, appropriate, or constitutional.  Third, we certainly should encourage web sites and other forums that quite publicly name judges who depart from the guidelines. 

Fourth, while it is unfair to put the burden on the students themselves -- although some of them doubtless are also complicit in working around the system -- we might conclude that, for those judges who seek to take advantage of their position to corner the market on clerks, or to put clerk candidates in untenable positions through exploding offers, there is nothing wrong with having the market bite back at them.  Judges aren't gods, and (in theory) are as subject to the Golden Rule as anyone else.  I find it difficult to say that a student who is pressured into an attempt by a judge to secure an interview at the earliest date by working outside the guidelines, or who is confronted by a tactical short-fuse offer, is acting badly if she accepts the first judge's offer and then rescinds her acceptance when given an offer by a later (and better?) judge.  Nature, red in tooth and claw, cuts both ways. 

Posted by Paul Horwitz on July 25, 2007 at 02:26 PM in Life of Law Schools | Permalink | Comments (5) | TrackBack

Did You Know the Burden of Proof is a Waivable Standard?

So I was reading an old Posner opinion (Burdett v. Miller, 957 F.2d 1375  (7th Cir. 1992))  and came across this passage:

Actually [the district court] did commit one clear error on the fiduciary count, and that was to apply the normal civil standard of preponderance of the evidence, rather than the higher standard of proof--proof by clear and convincing evidence--that Illinois requires to establish the existence of a fiduciary duty outside of the per se categories such as lawyer-client and guardian-ward.  But Miller waived the error in the district court by failing to ask the judge for the higher standard.  The normal standard of proof in a civil case is, of course, proof by a preponderance of the evidence, not proof by clear and convincing evidence. . . .  A federal district judge cannot be presumed to carry around in his head every esoteric rule of the law of the state in which he happens to sit.  If the parties do not mention the standard of proof in a civil case, the district judge is bound to apply the normal civil standard, just as he will apply the substantive law of the forum state if the case is a diversity case and neither party argues choice of law.  The preponderance standard, and the forum state's substantive law, are the default rules to be applied in such situations in the absence of objection.  And that is what happened here. The parties did not mention the burden of proof in any of their filings in the district court; the pretrial order didn't mention it; so naturally the judge applied the preponderance standard.

Not my field -- so perhaps this is old hat.  But I was pretty surprised to learn that a basic legal issue like the standard of proof could be waived.  Notable, too, is that Posner treats this as a federal rule of procedure: presumably even if the substantive law of Illinois held that the burden of proof is non-waivable, federal courts could ignore that requirement because a "federal district judge cannot be presumed to carry around in his head every esoteric rule of the law of the state in which he happens to sit."  These are the days I wish I got to teach and study Erie.

UPDATE:  For more on this interesting subject, you might look at Henry Noyes's recent article on parties' ability to specify details about the litigation process by contract.  Could parties contract for the harsher "clear and convincing" standard for breaches?  What if it is your cell phone provider furnishing such a contract to a consumer? 

Posted by Ethan Leib on July 25, 2007 at 02:12 PM in Odd World | Permalink | Comments (6) | TrackBack

The Art of Question-Asking

So.  We are here in Berlin at the Law and Society Association Annual Meeting, and others, including Larry Solum, David Zaring, and Elizabeth Brown are blogging about it.

I sort of walked into somebody else's conversation about post-presentation questions and comments, so I can't take credit for thinking up the issue, but the theory is all mine.

There is a an art to the best questions after a presentations.

1.  It is not merely a comment in which the person states his or her own views in contradistinction to the panelist.

2. It is not merely an explanatory inquiry, like "I didn't understand your point about the economic nature of compulsory mopery.  Could you go over that again?"

3. It is a question that is intended to provoke and invites discussion about a point made by the panelist.

4. The question may contain a preamble statement that sets up the question, but the preamble may not exceed two sentences.

These point do not deal with the separate but related issue of question etiquette.  Even though the question may invite discussion, the follow-up should not come from the initial questioner.  If you hog the floor, how will you ever know if the question in fact provoked thought from other members of the audience?  Continue with follow up only if the queue of other questioners has been exhausted AND there is still time left in the session that would actually allow an answer.

I offer this, in all humility, as someone who has managed, on occasion, to suck all the air out of a room.  Acknowledgment of the disease is a first step to a cure.

Posted by Jeff Lipshaw on July 25, 2007 at 11:08 AM in Life of Law Schools | Permalink | Comments (1) | TrackBack

Tuesday, July 24, 2007

SSRN: A "Hero Sheet" Sacrificing Functionality for Rankings?

Let me begin by saying that I think SSRN, by facilitating easy access to scholarship, is a fantastic contribution to legal academia -- especially for those who don't otherwise have an easy means to upload their works to the internets (e.g., those who don't have a school with a good IT staff).

But I do have one criticism of SSRN:  On each author's SSRN page, articles are listed by number of downloads, not chronologically or in any other logical order.  This order helps you figure out who’s “winning” the downloads race, but it’s otherwise useless and inconvenient.  If I chose to visit an author’s SSRN page, it’s because I want to see his or her body of work (1) in chron order, to see how the line of scholarship developed (e.g., more or fewer con law publications over time? how prolific?), or (2) in any other sensible order the author chose, like article type (e.g., academic articles vs bar articles, WIP vs published, etc.).

To be clear:  I'm not one of those folks complaining "we shouldn't give a 'score' to scholarship with these download counts."  I don't have any conceptual problem with download counts; my complaint is just that by making it mandatory that authors' works are listed in order of download counts, SSRN is (1) making itself useless as a way to look at an author's budy of work and (2) communicating that download counts are what really matters about that body of work.

SSRN’s biggest boosters have pitched it as the future of legal scholarship.  Maybe it is, but right now, the extent of its focus on "ranking" of scholars, papers, and schools makes it look more like an old-fashioned Hero Sheet focusing on superficial metrics at the expense of more meaningful ways to evaluate folks' scholarship.

Posted by Scott on July 24, 2007 at 11:15 PM in Life of Law Schools | Permalink | Comments (6) | TrackBack

On to Berlin

I am sitting in the gate area in Schipol Airport in Amsterdam, waiting for my connection to Berlin for the Law & Society Association Annual Meeting.  If one can acquire intellectual gravitas by association with fellow panel members, I am going to have a big day on Saturday, when I sit on a roundtable on "The New Formalism" with Larry Solum, Randy Barnett, Dennis Patterson, and Ekow Yankah.

On the topic of formalism in my little corner of the world, I am re-reading "Contract Theory and the Limits of Contract Law" (113 Yale L.J. 541) by Alan Schwartz and Robert Scott, in which they make the argument, at least for business contracts, that business parties would choose Willistonian formalism over UCC-style contextualism as the mode of contract interpretation.  I have written before about the implications of trying to step out of the first person mode of entering into a contract to adjudge its meaning from a third party objective perspective.  I know I will have more to say about this, particularly as to law and economics, in terms of the move from explanation of causal relationships in physical science to the far muddier task of social science to the ascription of motives in individual cases. 

But for the time being I am pondering what seems to me an unwarranted (and key) assumption in the middle of the article that, it seems to me, falls victim to this first-person versus third-person problem.  As is often the case, Schwartz and Scott assume that the parties' interest is in maximizing total surplus from the transaction which they will then divide by setting the price.  Setting the price is just "strategic behavior" and, as far as I can tell merits no discussion in the article.  I have negotiated lots of deals, and I can't remember ever thinking about total surplus first.  If I have a choice between a smaller total surplus (assuming I ever thought about it in those terms) and grabbing more (in absolute terms) of a smaller surplus, I know where I would go.  Think of it this way.  I have an asset I would be willing to sell for at least $500.  Buyer A values it for as much as $900 (a $400 surplus) and Buyer B values it for as much as $1200 (a $700 surplus).  But because of other opportunities that are more valuable, B is only willing to offer me $800, and A is willing to offer me $900.    In an economists' world of perfect information, B ought to bid up and take the deal, and I ought to know that, but it seems to me the world works from the first-person not the third-person perspective.   Only economists and lawyers think they can step out of themselves and see the world objectively, and folk wisdom ("the lawyer who represents herself has a fool for a client") suggests that it is a mistake even for lawyers.

The irony here, and it is appropriate on the eve of Law and Society, is that I agree generally with the Schwartz and Scott outcome, but not for the reasons they articulate.   I think the contract is a shadow of the deal (nod to Austin Sarat and Thomas Kearns) with only a tenuous link to any mutual intention of the parties.  Given that the outcome is likely to be random and not necessarily rational, less is more.

Well, so much for that.  On to Berlin!

Posted by Jeff Lipshaw on July 24, 2007 at 01:39 AM in Legal Theory, Lipshaw | Permalink | Comments (1) | TrackBack

Sunday, July 22, 2007

The Arena

With some acknowledgment of the gender references that are part of its time, and on the eve of many people leaving to present their ideas at the LSA meeting in Berlin, I offer this famous quote from Theodore Roosevelt's April 23, 1910 speech at the Sorbonne:

It is not the critic who counts, nor the man who points how the strong man stumbled or where the doer of deeds could have done them better. The credit belongs to the man who is actually in the arena; whose face is marred by dust and sweat and blood; who strives valiantly...who knows the great enthusiasms, the great devotions, and spends himself in a worthy cause; who, at best, knows the triumph of high achievement; and who, at the worst, if he fails, at least fails while daring greatly, so that his place shall never be with those cold and timid souls who know neither victory nor defeat.

Apart from the message, what a wonderful way of aligning alliteration, of putting particular parallelisms precisely, with a creative cadence as the consequence.  Onward onomatopoeia!

Posted by Jeff Lipshaw on July 22, 2007 at 09:20 AM in Deliberation and voices | Permalink | Comments (0) | TrackBack

Saturday, July 21, 2007

The University's role in law schools' tenure-and-promotion decisions

I've blogged a few times in the past about law-school "governance" questions.  And, while I probably spend more time than it's worth wondering about them, I cannot pretend to have made much progress toward firm views.  (I suspect, for what it's worth, that emphasis upon, or demands for, "governance" by law-school faculty are often proxies for substantive policy disagreements with administrators.) 

In the same general vein, I wonder what others think about this question:  To what extent should a law school's decisions about promotion-and-tenure be subject to review, or approval, by university-wide bodies?  At Notre Dame, for example, there is a "Provost's Advisory Committee," consisting of representatives from all around the university, to which every academic unit's promotion-and-tenure cases are submitted.  On the one hand, processes and forms like this seem like important and useful ways to avoid self-dealing and to push weaker units to improve.  On the other, there's always the chance that law schools' and the legal academy's idiosyncrasies -- e.g., relatively few legal scholars publish scholarly monographs before tenure -- will go un-understood (or resented).

Any thoughts?

Posted by Rick Garnett on July 21, 2007 at 02:36 PM in Life of Law Schools | Permalink | Comments (4) | TrackBack

Friday, July 20, 2007

Disclaiming Friendship

I'm in the process of making a new lawyer friend.  He asked for some of my recent work.  Accordingly, I sent him one of those nicely bound versions of my recent article, "Friendship & the Law," inscribing it with some mention of the new friendship.  He just sent me an e-mail back, with the subject "Disclaiming Friendship."  Here's the text:

Thanks for the article, and your inscription.  Not having read the article, to the extent you advocate a law providing a penalty for the breach of a friendship, I hereby disclaim your statement that I am your "new friend."  To the extent you do not advocate anything that could cause me any financial penalty or jail time, ignore the disclaimer.

He's kidding.  I think.  But I'm thinking a lot more about opting-out of friendship duties this summer as I'm writing "Friends as Fiduciaries."  More when a first draft is complete.  I'm hoping for the end of the summer but anticpating October.

Posted by Ethan Leib on July 20, 2007 at 05:28 PM in Article Spotlight | Permalink | Comments (4) | TrackBack


Who is your least favorite character on the Lexis homepage?  Here's my entry:


Posted by Ethan Leib on July 20, 2007 at 04:53 PM in Life of Law Schools | Permalink | Comments (5) | TrackBack

Law Reviews as Movie Studios

Here's a metaphor for the law review article selection and distribution process. 

Hollywood has a problem in that there are many risk-averse television or movie producers. They don't want to lose their jobs for greenlighting a flop, so having a star already attached gives them a little security, especially when something about the story is innovative or unusual.   In the absence of a star, they gravitate to the same old stories, ones that are “proven” successes, though of course, the science of identifying what those tried and true elements are is weak and often fails.  So it's not all identical, but a lot of very familiar stuff gets churned out year after year.  Sometimes a studio will take a big risk, even without a star or famous director, but it’s rare.

In the legal scholarship world, the “stars” are famous law professors, and stars get attached to projects by either writing them or strongly recommending them and appearing in the dagger cites.  The articles editors are like the producers.  Largely very risk averse, but with a few exceptions.  Of course, any law review can have an editor who is less fearful and manages to push an unusual project through. My sense, though, gathered from time on the Yale Law Journal as a student and numerous conversations with students on other law reviews, is that Yale Law Journal and Harvard Law Review are the two that consistently have multiple such editors. Many of the students at those publications seem seriously willing to take a gamble because they are so confident/arrogant, they have much less fear of greenlighting a flop.  They are like New Line, which agreed to finance all three Lord of the Rings movies, with no major stars and a director who had previously made an arty, lesbionic movie that barely anyone saw. Or perhaps they are like the Weinstein brothers, who financed Farenheit 9/11.  (Note that one of the persons who greenlit Lord of the Rings, Michael de Luca, got fired from New Line anyway, before the movies came out, apparently on the basis of poor box office.)

But like the risk-taking studios, even YLJ and HLR hedge their bets by overwhelmingly picking projects with stars attached or typical fare.  Thus, articles that tell an unusual story, or are very ambitious, but don’t have an attached star, have a big problem, and tend to land with law reviews that are pretty low down on the totem pole—below the “top 50.”  I suspect most of the time these law reviews are not excited to publish the unusual pieces; they are getting stuck with them.

Paul extended the metaphor for me by suggesting that sites like SSRN can be compared to YouTube and other challenges to the entertainment business model, and that the online adjuncts to the traditional law reviews may be seen as ways in which the old guard is trying to co-opt the new models.  And maybe the faculty edited journals are like getting your movie into Cannes? (Credibility is guaranteed, but good marketing is not.)  Are there other ways to extend the metaphor?  A version of this problem also exists in the faculty hiring process, with appointments committees standing in for the producers.

In any case, I don't think the answer to this problem, if there is one, is to get rid of most student edited law reviews.  As the entertainment industry and faculty appointments process show, the problem exists when you have people with supposed experience and expertise making the decisions, too.  Indeed, the problem could be worse, in theory, with peer-reviewed journals than student-edited ones, since the reputational harms don’t really stick with the students, who cycle through the editorial boards rapidly.  Producers have their jobs to lose, and faculty editors normally stick with a publication for at least a few years, so they run a realistic risk of reputation loss.

On that note, it’s a bit of a puzzle why the students behave this way at all.  Why do they think anyone is going to remember them for having greenlit a flop of an article?  But the fact is that I have seen many of them talk and behave as if that is the case. They largely do not act as if they don’t care. They just act afraid. I think one way to ameliorate the problem is to help our students feel more self-confident, and to remind them that they really can make judgments about merit, especially with the help and advice of their professors, who should discuss submissions with them as equals. Sure, we have faster and more reliable access to certain forms of information that is useful in judging merit than most students do, and that’s why they should use us as an important resource.  But when we exaggerate our own expertise, and their lack thereof, we can make them feel so inadequate they start focusing on entirely the wrong thing.

Posted by Gowri Ramachandran on July 20, 2007 at 03:44 PM | Permalink | Comments (7) | TrackBack

Funniest Sports Commercial Ever?

This post has nothing to do with anything, except a long-winded debate a friend of mine and I got into during the Mets' 13-9 win last night. [If you want to read something more serious, go read Bismullah.]

Here's the crux of the argument: Is the commercial below, "Chicks Dig the Long Ball," the funniest sports commercial of all time (or, at least, the funniest baseball commercial ever)?

Any better nominees?

Posted by Steve Vladeck on July 20, 2007 at 01:38 PM in Steve Vladeck | Permalink | Comments (9) | TrackBack

Koppelman on "Religion As Conversation-Starter"

May I commend a short but incisive post by Andrew Koppelman over at Balkinization.  Koppelman, who has published wonderful articles on law and religion among other topics, questions the widely shared norm of public reason that holds that "political discourse must rely on arguments that are not sectarian and can be assessed in terms of commitments that all citizens can share."  Noting the "bitter response" that religious individuals have had to this norm, he asks: "[W]hy did the liberals converge on and keep producing new articulations of a proposal, in the name of social unity and comity, that was so widely received as an insult?"  His answer, in short, is that the norm is related to wider norms of civility in American discourse, in which religion is treated as essentially private and disagreement on expressly religious terms is treated as impolite.  What's his solution?

[T]he norm of politeness needs to be revisited. As soon as A invokes religious reasons for his political position, then it has to be OK for B to challenge those reasons. It may be acrimonious, but at least we’ll be talking about what really divides us (and we’ll avoid the strange theoretical pathologies that have plagued modern liberal theory, though that seems to be a disease mainly confined to the academy). It’s more respectful to just tell each other what we think and talk about it.

I agree with him, and can't resist flacking this paper, in which I argued that religion ought to be a welcome part of public discourse, but that any genuine respect for religion and its role in public discourse compels the conclusion that religion ought to be equally subject to open criticism and attack, just as any other set of public reasons is.  Any rule in which religion is permitted in public discourse but also immunized from criticism fails to accord religion genuine respect.  Like Koppelman, I agree that the light will be worth the heat.

Anyway, read the whole thing.  Some of the comments are chaff, but others provide decent opposing views.  And if you like these sorts of discussions, note that Koppelman's article is a tip of the hat to a wonderful piece by the late Richard Rorty, "Religion as Conversation Stopper." 


Posted by Paul Horwitz on July 20, 2007 at 09:58 AM in Religion | Permalink | Comments (3) | TrackBack

Thursday, July 19, 2007

Faculty Appointments Chairs

By now, most new appointments committees have formed.  Here's the announcement from last year:

Faculty Appointments Chairs

I'm starting to get calls for advice about the meat market in the fall.  One of the traditional components of the onslaught from entry-level candidates is the targeting of Faculty Appointments Committees at schools of particular interest.  I'm not fully clear on how useful this information really is (most letters addressed to "Appointments Chair" will get where they are supposed to go), but it certainly helps your advisors make calls to important people at the relevant school.

In PB's long tradition of helping entry-level types on the market, I'm opening a thread for people to announce committee members and chairs.  At Hastings, Leo Martinez is the chair this year.  Let the information flow freely.

UPDATE: If your school is searching for any particular areas of expertise, you might note it here too.  Hey, it's free advertising.

Leo Martinez is chairing appointments at Hastings again this year.  Let us know what you know so that we can pass it along to those who don't know but very much want to know.

Posted by Ethan Leib on July 19, 2007 at 07:50 PM in Life of Law Schools | Permalink | Comments (59) | TrackBack

Algorithmically Generated Ads on Your Paper's SSRN Abstract Page

Brian Leiter posts about a bizarre juxtaposition of Google advertising on the abstract page of a SSRN-posted paper.  I confess to being so oblivious I didn't realize there were ads on the abstract pages.

But I was curious, so I looked quickly at my own "Retire and Teach" abstract, and sure enough there are a couple ads generated by Google's association algorithm that would obviate the need to read the article.  The first claims "You may be younger than you think.  Take the Real Age test and find out."  The other one helps you figure out "how much you'll need to comfortably retire [sic]."

I wonder how many thousands of people are checking this out right now.  Unfortunately, it probably gives the ads far more attention than they would have otherwise had.

Posted by Jeff Lipshaw on July 19, 2007 at 03:18 PM in Odd World | Permalink | Comments (0) | TrackBack

Al Qaeda's "Dread Pirate Roberts"

Dread_pirate_roberts_2I was going to strain to come up with some legal analogy/implication here to justify this post, but... nah.  Al Qaeda's playbook apparently includes the Dread Pirate Roberts gambit of faking a feared criminal leader, "Omar al-Baghdadi".   "Inconceivable!"

Posted by Scott on July 19, 2007 at 11:34 AM | Permalink | Comments (4) | TrackBack

Course Preparation Project: Choosing a Course Philosophy (Update)

It seems as if course philosophies are as difficult to talk about on the web as they are in person.  In my initial post, I noted that "the idea of a course philosophy is less discussed," and Orin Kerr said that this was "a tricky topic because a course 'philosophy' is so personal to the professor."  Nevertheless, choosing an overall approach -- the forest out of the trees, as it were -- is critical to your teaching.  Without it, you and your students may find yourselves swamped in a morass of doctrine.  It is easy to get caught up in preparing and teaching the materials day by day, especially your first year.  It's best to think about your overall approach ("philosophy" or perhaps "animating aims") ahead of time, so it can structure your day-to-day prep.  And talking it through can be very helpful in providing ideas about what you do and do not want to do.

Here are the links to the individual posts.

As I've said before, I hope these posts become places for continual discussion throughout the summer and semester.  Thanks for your comments.

Posted by Matt Bodie on July 19, 2007 at 11:10 AM in Teaching Law | Permalink | Comments (1) | TrackBack

Eliot Spitzer and "The Best and the Brightest"

New York Magazine has an interesting profile of Governor Eliot Spitzer (Harvard Law '84, so there's my legal hook.)  I found two excerpts, both dealing with the upbringing provided by Spitzer's self-made success of a father, Bernard, who encouraged vigorous dinner-table conversation on current events, interesting and evocative.  Here's the first quote:

Bernard saw his role as challenging whatever argument was advanced.  "I tried to elicit the principle," he says  . . . .  His motto was "Challenge the premise."

And here's the second:

For Spitzer the combat "bred rigor" and a belief in logic and reason.  As [a friend] puts it, "Eliot had a feeling that no problem was too complex or too big to be solved by human ingenuity."

The whole article is worth reading.  That first quote, by the way, strikes me as being among the most important values you can impart to your students, your children, and yourself.  The second quote strike me as a decidedly mixed virtue -- appealing to my own optimism about human progress and faith in expertise, but pregnant with the possibility for arrogance and hubris.  The book hat-tipped in the title to the post illustrates this better than I can.  This quote, I think, would serve rather nicely as a proper epitaph -- a mixture of tribute and critique -- for the generations of post-war America, unto the present.

Posted by Paul Horwitz on July 19, 2007 at 10:21 AM in Article Spotlight | Permalink | Comments (0) | TrackBack

Sweeping Up

What do you do with a guest that stays too long?  Hand him a broom, an old saying goes.  So let me clean up a few things left behind in earlier posts.  First, to those of you heading off to the AALS hiring process, good luck!  The advice I've read on the blog seems dead on.  This is not the moment to worry about whether you should have gotten an extra advanced degree or two, hiring expectations as to credentials are as unstable as ever.  Play your strong cards before the 22 actual minutes in a half hour disappear.

At the beginning of this extended visit I predicted that the coming decade will see many new JSP type programs (i.e., an academic PhD in law and...), in or very close to the law school.  Vanderbilt has already announced a Law & Economics PhD program.  Many schools are ramping up existing linkages with academic departments, for example Stanford will provide students in a new joint JD/PhD sociology program with free tuition on their JD (or so I've heard).

I hope a wide variety of competing models arise.  Some may be wholly inside the law school administratively (like JSP), others in joint programs with other departments.  Some may be limited to one flavor of law and..., while others may seek to represent the full spectrum.

I would hope some schools will follow Berkeley in bringing the program wholly inside and permitting a full range of disciplinary pathways to be involved.  Over time the presence of JSP inside the law school at Berkeley has helped create a unique pedagogic and research culture. 

Individual supervision and mentoring have always existed in law schools, and many existing law professors can trace their own academic career back to such a mentor.  But PhD programs have to create that as a culture and sustain and reward it if they are to thrive.  Producing those norms can create opportunities that extend to JD students and junior colleagues as well.  My biggest concern with the growth of fellowship programs as a new and more expeditious path into law teaching is whether they will generate the kind of individual supervision and mentoring that most people require to become self sustaining scholars.

As for interdisciplinary programs, they are often slammed for superficiality.  No doubt we all have the same time constraints and more time spent studying outside of your disciplinary specialty, is time that might have been spent deepening your disciplinary knowledge.  But dissemination and engagement is also crucial to successful scholarship.  Unless law schools are to move toward wholly separate research communities in the same building (more or less a business school model), they will need players that are not afraid to play outside their preferred play ground. 

Naturally I think we have the right balance at JSP.  We require students to more or less marry one discipline, but to have a substantial affair with another discipline or two (ok this metaphor stops here).  We also require them to define a topical specialty in which their expertise should extend to all credible discourses.

Ok thats it.  I'm off to Germany for a massive joint meeting of law and society scholars from around the world.  Please drop into our JSP website, visit my Berkeley Jurisprude blog (which will now resume more regular posting).  If you are interested in my Governing through Crime stuff, check out that blog, and a "conversation" about the book at the inkwell.vue (an open arts and books discussion of the Well).

Posted by Jonathan Simon on July 19, 2007 at 10:11 AM in Life of Law Schools | Permalink | Comments (0) | TrackBack

Wednesday, July 18, 2007

The Conference Itself

The blogosphere contains some very good posts about what to expect during these interviews and what the committees are looking for, but I do disagree with some it, so I thought I'd share my view on the Dos and Don'ts of the conference.


ENJOY YOURSELF.  Yes, I said enjoy yourself.  You have smart law profs as a captive audience.  You get to talk about your paper and find out what people think about it.  If talking about your ideas is not of interest to you...well, hmm, reconsider your career path.  (I know, I know, you can be shy...but you have to enjoy the intellectual play to enjoy the job!) 

USE THIS AS AN OPPORTUNITY TO PREPARE FOR YOUR JOB TALK:  The questions you get in DC will give you a strong sense of the questions you are likely to get during a job talk.  Pay attention.  And, if you don't have answers to some questions, think about them between the interviews and the job talk.

SHOW THAT YOU CAN TEACH.  You will get some moronic questions.  You will think, "this person is a moron" and maybe, the committee interviewing you is thinking that to.  But being respectful and answering the question well will help show that you can be a great teacher.

BLATANTLY ANNOUNCE A SPECIFIC INTEREST IN A SCHOOL.  You don't need to tell a top ten school that you would drop everything just to be there.  But other than that tier,  schools do a lot of guessing about you ("Will he love us, too?) and one thing they try to use as a predictor is geography.  A NE resume reduces the chances you will move to Cal if you get a NE offer, and vice versa.  So, if you want the school to know a connection -- tell 'em.  You grew up in that state.  Your folks live there.  Your in-laws live there.   When schools are choosing between  candidates to invite back, they will be assessing how likely it is that they will get you...so if something increases their odds, tell them!   (Don't stretch here.  see below)

DO (cont.)

KNOW THAT COMMITTEES TALK.  They know that your in-laws live in NJ, but your folks live in California, and that you grew up in New Mexico.  And then, they will fight amongst themselves as to which geographic factor will influence you the most.  Seriously, last year, I told a candidate where his in-laws lived.  The simple fact is that many of the committee members know each other and talk about how the interviews went and what the candidates said.  You don't need to be paranoid.  Just know that what you say is unlikely to stay in that one hotel room.


SWEAT THE SCHEDULE.  I disagree with Kaimi on this one.  No school knows where its interview room is when they schedule you, so you can't game this.  And every school understands that you will sometimes be running back to back to back, which means you will arrive late.  This isn't an issue.  I ran from Park to Wardman, and more importantly from Fourth Tier to First Tier.  I arrived at First Tier school so out of breath that they had to give me water.  I got the callback from First Tier.  (okay, so I didn't get the job...not the point.)

NIX SCHOOLS TOO QUICKLY.  Every school you interview with will give you insights on your paper and practice for your job talk.  Only turn down an interview if the school is completely out of the question.  I don't care if you run back to back all day with 30 minutes for lunch, take those interviews.   (Realistically, I think 30 interviews max.)

GO TO THE COCTAIL PARTY.  Okay, so here I disagree with Paul.  I'm sorry, but here is the bottom line -- the coctail party is not cool.  It's just not.  But more specifically, it is really really sad.  School A wants you, so they follow you around like a puppy dog, but you want school B so you are trying to politely drop School A and talk to School B, but School B doesn't want you, it wants Candidate Z, and so on and so on and so on.  (Now you may be that charming person Paul says will land a job from a school that didn't even interview him, but trust me, it is more likely to be a dating nightmare. And many schools know this and don't bother showing up.)


KNOW ABOUT THE SCHOOL.  If a school sends you specific materials, read them and don't ask obvious questions.  So, if the school has told you the teaching load in a letter, you should be on top of that if possible.  But don't be creepy.  So, unless the person is in your field or holds some famous views, you don't need to know all that much about your  interviewers.  At the superficial level, it is just a waste of time.  Interviewers change at last moment.  No one expects this of you.  And, hopefully, you will just be too busy to keep everyone straight.   At a deeper level, it can be downright creepy for a Torts scholar who should be discussing his own scholarship to start discussing a random 1982 article by the committee member who teaches corporations.  Really, focus on your own scholarship.  (I'd give different advice for interviews outside the FRC.  There it pays to know more about your interviewers.) 

Well, hopefully this will spark some good blogosphere controversy.  For me, it is back to work!

Posted by Kim Ferzan on July 18, 2007 at 02:57 PM in Teaching Law | Permalink | Comments (9) | TrackBack