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Saturday, February 17, 2018

Commercial Book Proposals & Agents

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

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

There are useful books out there on finding agents, which will lead you to websites and other sources. But, without a doubt the best way to find an agent to take you on as a client is to use and expand your network to find a personal connection. You'll need to draft a snappy query e-mail that gets their attention. I recommend the originally titled Guide to Query Letters and 2018 Guide to Literary Agents to help you with this. 

Although I got lucky on my first shot landing a dream agent, I first compiled a long list of agents to query. In addition to using the Guide to Literary Agents, I reviewed the acknowledgements of the authors who write books I thought my future readers also enjoy. Authors commonly thank their agents in books' acknowledgements.

To write a top level book proposal and land a heavy-hitting agent, you really need to know your competing titles and understand where you fit in the market. That's the most important aspect of the book proposal, and probably the one aspect academics are weakest at drafting. You need to think like a marketer. If your book were in Barnes & Noble, what would be on the shelf or display table next to it? What books would be listed below yours on Amazon under the line "Customers Who Bought This Item Also Commonly Bought:"? For me, my market angle is that I am among a wave of women writing non-fiction about different aspects of Holocaust history. Book clubs who enjoy their books will enjoy mine. Jewish Community Centers who host them might enjoy a presentation from me, as well.

In sum, you need to figure out your niche to draft the book proposal and figure out which agents to pitch and how. Then, you need to spend weeks writing an excellent book proposal. You will need input from people who have done it before. In my case, I decided it was worthwhile to get some professional input from Swenson, and I am glad I did. I do not believe my agent would have taken me on had I not taken that step to improve my book proposal. 

Finally, you'll want to query agents one at a time and be prepared for frustration. The typical result to a query is silence. But if you are lucky enough to get feedback, use it to improve your query and proposal and keep going until you find the one for you! 


And to preempt some awkward e-mails, I cannot share my book proposal for various reasons.

And, for the cynics: No, I am getting no benefit for plugging the excellent professionals, books and web pages mentioned in this post.

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

Wednesday, February 14, 2018

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

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

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



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

Tuesday, February 13, 2018

Are You Ready to Pitch a Book?

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

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

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

So, how can you assess whether you have a sufficient “platform?” If you’ve been writing for only a few years on the tenure track, it might make sense to build a bit more platform before shooting for a mainstream publisher. But, don’t wait too long—and certainly not because you don’t have a large social media following. I waited unnecessarily and let my worry about numbers and burning bridges with agents get in the way. (You have to assume you’ll get just one shot to pitch any particular agent or publisher.)

It turns out for law professors that platform doesn’t turn much on the numbers of followers you have on social media. The numbers definitely won’t make or break you. Here are the types of things you need to start to think about:

  1. Are you known in a field that appeals to a wide audience?
  2. Who—EXACTLY—might be in that audience?
  3. How do you communicate with them?
  4. What books do they buy?
  5. Are there organizations that would be interested in sponsoring you to speak to large audiences of them?
  6. How much public speaking outside of the classroom have you done already?
  7. Have you written for outlets other than law reviews?
  8. Can you get on radio or TV?

Whether you have sufficient platform to warrant going for the book deal now or waiting is really a case-by-case call. If you decide it’s best to wait, focus on improving your answers to these questions, rather than obsessing over building a social media presence. You can get more active on social media now, but you will have time to do more of that later after the manuscript is in the hands of your publisher.

In my next post, let’s assume you’re ready to go for it! (Yes! I'm rooting for you!) I’ll write about how to get your book proposal in shape to submit to agents or publishers directly. As I’ll discuss in a later post, I hired a publication consultant to help prepare my book proposal. Although I know plenty of prawfs who have written books, I don’t think any had a literary agent, and I wanted one. So, I needed some expert help, because I could not tell from the many, many sources I read what they really wanted from someone like us.

Finally, as always, let me know in the comments if I can try to help you with specific questions. 

Posted by Jen Kreder on February 13, 2018 at 08:43 PM | Permalink | Comments (12)

Counting on the Low Information Voter

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

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

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

(Cross-posted at The Interdependent Third Branch.)

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

Sunday, February 11, 2018

Why has bris survived?

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

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

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

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

Ross Douthat on banning pornography

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

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

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

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

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

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

Friday, February 09, 2018

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

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

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

Thursday, February 08, 2018

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

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

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

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

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

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

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

Good Reasons:

  1. You have burning thoughts THAT WILL INFORM OR HELP OTHERS!
  2. What you bring to the subject is an important, non-trivial perspective that many non-lawyers will want to buy a book to learn more about.
  3. Other forms of writing, such as articles, op-eds and blogging, are insufficient for you to contribute what you know your field needs.
Misguided Reasons:
  1. You think you’ll become famous and make a lot of money. If John Grisham did it, why can’t you, right? Your chances of making significant royalties are about the same as winning the lottery. So, if being famous or making money are big goals for you, there are far easier ways than writing a book. In fact, I’ve spent money learning the trade.

  2.  Your ego. If your process is anything like mine has been, your ego will take a beating. You’ve got to have some thick skin to admit that our skills writing law reviews require change to succeed in mainstream publishing. Just because the writing in popular books is “less stuffy” does not mean that you’ll automatically be good at it.

  3. You want to take a sabbatical. That’s not enough motivation to see this process to the end. Ask most of the prawfs who started sabbaticals with the goal to write a book. Most wind up writing law review articles instead. That’s perfectly fine, respectable and understandable! Getting a publishing deal today from any mainstream or academic press is harder now than perhaps ever before, regardless of your writing ability. The game has changed completely, as I’ll relate in a later post about university presses.

Keep posting in the comments if you have questions you’d like me to try to address. Junior TT prof, I’ll respond to your other questions in later posts. Thanks for the input, and I hope this helps you! Unless something different comes up in the comments, I’ll start to talk in my next post about the process of landing a mainstream book publishing deal. Hint: It starts with thinking like a marketer, not an author.

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

Yale Center for Private Law: Fellowship in Private Law

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

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

Why Do You Want to Write a Book?

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

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

Wednesday, February 07, 2018

Florida bans counter-speech, too

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

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

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

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

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

Tuesday, February 06, 2018

Northwestern University Law Review empirical scholarship issue

The Northwestern University Law Review is pleased to announce its first annual issue dedicated to empirical legal scholarship, to be published in spring 2019. We welcome pieces making use of any and all empirical tools—including qualitative, quantitative, and mixed methods—to illuminate and engage questions of legal interest.

The exclusive submission window for this issue will run from March 15 - April 15, 2018. All pieces of interest will be anonymously reviewed by members of the Northwestern University Law Review’s Empirical Advisory Board, comprised of faculty from Northwestern and the American Bar Foundation, in advance of publication decisions to be issued by July 31, 2018.

In exchange for this prioritized consideration, participating authors agree to withhold the article submitted through our exclusive submission track from submission to any other publication until receiving a decision back from the Law Review. By submitting an article via the exclusive submission track, the author agrees to accept a binding publication offer, should one be extended. Please note that some pieces may be conditionally accepted upon the advice of advisory board reviewers.

Please contact Northwestern University Law Review Empirical Articles Editor Meredith McBride with questions at meredithmcbride2019@nlaw.northwestern.edu.

Posted by Administrators on February 6, 2018 at 05:06 PM in Teaching Law | Permalink | Comments (0)

Annual Women and the Law Conference, Feb 9 in San Diego

If you are in Southern California or simply miss San Diego post #AALS2018, this Friday is the terrific Annual Women and the Law Conference at Thomas Jefferson School of Law. Among the wonderful line-up of speakers, which includes academics, practitioners, judges and arbitrators, are Carnegie Melon economist Linda Babcock as well as my mother psychologist Thalma Lobel (the original Professor Lobel...).

The theme of the conference is Her Place at the Bargaining Table: Gender, Negotiation and “Risky” Decision-Making and the full program can be found here.

Posted by Orly Lobel on February 6, 2018 at 12:14 PM | Permalink | Comments (0)

Monday, February 05, 2018

Understanding Civil Rights Litigation (2d ed.)

I am happy to announce that the Second Edition of Understanding Civil Rights Litigation has been published by Carolina Academic Press (having taken over Lexis Nexis books) and is available at supermarket checkout counters near you.

This ended up a substantial rewrite from the first edition--the book I really wanted to write, the second time around. I included Puzzles (drawn from lower-court cases and lawsuits) for almost all sections and subjects in the book, for review and class discussion (I am using this as the sole text for my Civil Rights course this semester). I beefed up the discussion of substantial issues from recent litigation (such as the scope of injunctions and effects of stays of preliminary injunctions). Aping Jim Pfander's Principles of Federal Courts, I eschewed footnotes in favor in-text parenthetical references to case names, with detailed tables of cases and authorities, with citations, in the back of the book; I think it makes for an easier read.

I welcome comments and feedback.

Posted by Howard Wasserman on February 5, 2018 at 08:51 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

#MeToo is about Work & Power

Rachel Arnow-Richman (Denver) has an important op-ed in the San Francisco Chronicle, #MeToo: Why we must separate sex from sexual harassment. Here is a taste:

... The #MeToo movement is no longer about work. What started as a watershed moment in public awareness of workplace sexual harassment has converged with the long-standing debate over the line between consensual and nonconsensual sex. Some would say this is a good thing. We should condemn all forms of unwelcome sexual behavior regardless of where they happen. The power dynamics that embolden a young celebrity to take advantage of his date share something with those that permit a Hollywood mogul to force himself on his employees. But we risk losing something in the mix — the opportunity to transform the workplace and achieve greater employment equality for women. It’s time to regroup. 

I agree with Rachel's argument that sexual harassment is not about sex but rather about work and power and maintaining economic and professional hierarchies. I wrote a related piece a while back. This makes the current debates about what is acceptable and not acceptable in the workplace difficult. Another favorite article, pre-#MeToo that speaks to this, which I quote regularly is Vicki Schultz's The Sanitized Workplace. This is a key moment for employment discrimination scholars to contribute to the more popular debate and offer, like Rachel does, a critical broader perspective about what we need to be doing to reform our work lives.


Posted by Orly Lobel on February 5, 2018 at 05:27 PM | Permalink | Comments (1)

The Limits of “Executive Principle” in the Judiciary

Today marks the resolution (perhaps only temporarily) of an extraordinary, weeks-long public dispute in the Supreme Court of India. On January 12, the second- through fifth-most senior justices of the Court held a press conference, at which they divulged the contents of a letter they had written to Chief Justice Dipak Misra. In the letter, the four senior justices accused Misra of abusing his assignment powers by allocating particularly sensitive cases to courts headed by relatively junior justices. A public uproar ensued, with some criticizing the four senior justices for airing the Court’s internal affairs in public, and others chastising Misra for lack of transparency or accountability. After three weeks of speculation, the Chief Justice responded last week, publicly announcing that as of February 5, cases would be allocated so that all cases of one type would be assigned to the roster of a particular justice. Misra kept for his own roster a number of high-profile case types, including public interest litigation, election matters, and matters concerning the appointment of constitutional officers.

At first, this saga (which I describe more fully below) might not seem to have much relevance for American courts. But the larger question it presents—how executive power is exercised within the judiciary—is deeply salient for those of us stateside.

For the past one hundred years, American courts have deliberately structured their administrative processes to promote centralized decision-making and internal control, and to permit transparency only when it is necessary to maintain legitimacy. At the federal level, the Judicial Conference of the United States and the Administrative Office of the U.S. Courts have been repeatedly expanded from their pre-WWII foundations. The Chief Justice in particular has enormous and virtually unchecked power in committee assignments, and further has a bully pulpit within the federal judiciary to promote or bury administrative agenda items. Chief judges at the circuit and district level have lesser authority, but still maintain considerable administrative power—especially through the Judicial Conference and their respective circuit conferences. Chief justices at the state level, too, can set administrative agendas both by their tone and by their appointments.

The values of vigorous executive control and limited transparency are the intellectual descendants of “executive principle,” William Howard Taft’s notion that the judiciary requires a strong internal administrative force to maintain efficiency and adjudicative quality. Traditionally, judges have embraced these values, because strong internal administration tends to increase the courts’ organizational autonomy. Centralized management, internal control, and low transparency also tend to reinforce public perceptions of the court system as a serious, dignified, and apolitical actor. Put differently, a robust exercise of executive principle usually bolsters the legitimacy of a court system both internally and externally.

But a commitment to a strong internal executive can also backfire. Sometimes judges grow frustrated with a chief’s agenda, and make their disputes public. (Judge Posner’s self-published assault on the Seventh Circuit’s staff attorney program readily pops to mind.)  Sometimes the public itself demands more transparency and participation in matters of court administration, and the courts must address that demand in order to contain a possible public backlash. (Consider here the opening of federal procedural rulemaking to greater public input and scrutiny in the 1970s and 1980s.) Finding the level of internal control sufficient to maintain internal and external legitimacy is an ongoing process for any chief judge.

Back then, briefly, to what happened in India. The January 12 letter and press conference from the four senior judges appears to have been sparked by Chief Justice Misra’s assignment of a particularly sensitive case to the roster of a junior justice. The case in question involved an investigation into the death of another judge, who at the time of his death was presiding over a murder case in which the party chief of India’s Bharatiya Janata Party (BJP) was a defendant. Foul play has been suspected. Misra's assignment of such an important case to the roster of a low-ranking justice was, for the four senior justices, an unacceptable assault on the internal legitimacy of the assignment process. In their letter, the four senior justices acknowledged that the Chief Justice had the right to allocate cases as he wished, but that the process could not be abused:

 “The convention of recognising the privilege of the CJI to form the roster and assign cases to different members/benches of the Court is a convention devised for a disciplined and efficient transition of business of the Court, but not a recognition of any superior authority, legal or factual of the Chief Justice over his colleagues.”

This internal challenge to the court’s legitimacy was followed by fresh external challenges, as the press and pundits decried the lack of transparency in the case assignment process. Within days, Misra found himself under attack for keeping a procedure of obvious public interest under wraps. To preserve some credibility for himself and the institution, the Chief Justice had to develop a new, transparent roster system. It seems that the new system he has announced has sufficiently assuaged both internal and external fears, at least for the moment.  But stay tuned: the Chief Justice’s assignment of public interest litigation cases (among others) to his own roster is already raising eyebrows.

American courts are unlikely to have to deal with a legitimacy crisis over the specific issue of case assignment, but the pressures that led to the Indian crisis are nonetheless illustrative. For one thing, India’s experience underscores the importance of having a chief judge who is as skilled at administration as he is at adjudication. For another, it warrants broader reflection as to how the benefits of strong central administration in the courts can be accomplished without eroding internal or external legitimacy. And it provides a cautionary lesson for those chief judges tasked with balancing their own vision of the courts with that of their colleagues and the public.

Posted by Jordan Singer on February 5, 2018 at 02:32 PM in Judicial Process | Permalink | Comments (4)

Hello! Thanks to Howard Wasserman for the invitation to return to PrawfsBlawg this month!

My specialty is Art & Cultural Property Law, and I’m known most for litigation seeking recovery of art stolen during World War II and the Russian Revolution. My writing and litigation work branched out into religious liberty for a while. I’ll write a bit about that this month but thought it might be useful for others to cover the process of getting a book deal these days.

I’m a Professor at Northern Kentucky University’s Chase College of Law, a wonderful place ten minutes outside of Cincinnati. I was an Associate Dean for six years but am now focused on finishing my book and getting on the speaking circuit.

I look forward to interacting with you this month and hope to be helpful to those mid-level prawfs seeking to inject a little spice mid-career.

Jennifer A. Kreder

Posted by Jen Kreder on February 5, 2018 at 12:17 PM | Permalink | Comments (2)

Submission Angsting Spring 2018

This is the post to share information or ask questions about submitting to law reviews.

The comments can be used to share information, complaints, praise, etc. about which journals you have heard from, which you have not, and so forth.

Additionally, a spreadsheet to gather information is here (and embedded below).

I won't update or watch the spreadsheet. You can go ahead and add your own information by going to the spreadsheet here. The spreadsheet is editable by anyone, except that a few columns and a row (the ones highlighted in yellow) are locked, either because they auto-calculate or because tampering with them has caused a problem in the past. (If something about them needs to be changed post a comment, and I will change them.) As more information is added, I will do some pointless data calculations on subsequent sheets.

Entering information in the column entitled "Username" is of course totally optional, but a way to make keeping track easier. For example, if you pick a username, you will easily be able to sort by your entries and update them, instead of trying to remember what day you submitted and sorting that way. This also adds information -- showing, for example, that all of the entries on the spreadsheet come from one person, or from lots of people, etc. At any rate, totally optional, and simply a way to add more information.

Rostron & Levit's extremely helpful guide to submitting to law reviews is available here (this is the January 2018 version). Rostron and Levit have also posted a list of links to law review websites.

I cannot link to the last page of comments, due to a Typepad change.

Posted by Sarah Lawsky on February 5, 2018 at 10:21 AM in Law Review Review | Permalink | Comments (186)

Friday, February 02, 2018

The Hayekian Fourth Amendment

Thanks to Howard and the other PrawfsBlawg folks for allowing me to blog here the last couple of months.  I wanted to leave with another blurb about my piece, “A Unified Approach to Fourth Amendment Search Doctrine.”  As I mentioned in a previous post, and as the title suggests, the upshot is that the “reasonable expectation of privacy” (REOP) approach and the “trespass” approach to determining when a Fourth Amendment search has occurred really devolve, at least in many cases, into the same inquiry.  This is because, at least at the margins, whether a trespass has occurred will often depend on the same kind of social norms and customs that form the backbone of the REOP test.

The title of this post refers to another aspect of the piece:  that these social norms and customs form, and have always formed, from the ground up.  Our law is better seen as “grown law,” as Hayek put it, rather than as being imposed from above.  True, fully formed law in the positive law sense consists of an edict backed up by state power.  But the origin of all laws is in the people’s lived experiences.  It is bottom-up, not top-down.  From this premise, the search for nationwide standards for what constitutes a Fourth Amendment search, either via the REOP approach or the “trespass” approach, is highly questionable.

Posted by Michael J.Z. Mannheimer on February 2, 2018 at 04:30 PM in Constitutional thoughts | Permalink | Comments (16)

Thursday, February 01, 2018

Universal injunctions at the state level (Updated)

Judge Crabtree of the District of Kansas preliminarily enjoined, as violative of the First Amendment, a Kansas law requiring those who enter into contracts with the state to certify that they are not engaged in boycotts of Israel. The court enjoined the Commissioner of Education from enforcing any statute, law, policy, or practice that requires independent contractors to certify that they are not participating in a boycott of Israel. And the court enjoined "defendant from requiring any independent contractor" to sign a certification that they are not participating in a boycott of Israel as a condition of contracting with the state.

In other words, the court entered a universal injunction. The decision shows that judges are issuing these orders unthinkingly and automatically. And it shows that the problematic phenomenon is not limited to challenges to federal law. It also shows why universal better describes these injunctions. The non-particularized scope of the injunction's "who" remains whether the challenged law is a federal law applying to people across the nation  or a state law applying to people in one state--the injunction purports to protect the universe of people who might be subject to the law's reach, whatever that law's reach. The court again saw itself not as resolving a challenge by one plaintiff to threatened enforcement of a constitutionally suspect law against him, but as resolving the status of the law itself.* Even if universal injunctions are sometimes warranted, this does not appear to be an appropriate case--it is difficult to see how this plaintiff is denied complete relief if the state can enforce the certification requirement against other independent contractors.

[*] This vision affected the mootness analysis. The state had given the plaintiff a waiver from the certification requirement. But the court held that the waiver did not moot the case because the state could deny the same waiver to others. If the court properly understood the issue as the validity of enforcement as to the plaintiff, enforcement against others should not matter.

Update: Josh Blackman emailed to remind me that Judge Crabtree issued a similarly worded universal injunction barring enforcement of the Kansas same-sex marriage ban as to any and all couples seeking licenses.

Posted by Howard Wasserman on February 1, 2018 at 11:10 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

State-created danger in the Nassar case?

Two stories from Deadspin describe the mistakes by the police department in Meridian, Michigan, who received a sexual-abuse complaint against Larry Nassar in 2004, but dropped it (without referring it to prosecutors). Apparently, detectives were convinced by a PowerPoint presentation from Nassar about how what he was doing was a legitimate medical procedure to deal with Scoliosis. No one in the police department conferred with a medical expert to confirm what Nassar told them.

So, could one of Nassar's post-2004 victims make out a due process claim against the Meridian PD and these detectives? Perhaps on a state-created danger, that the police increased the danger to other athletes by not doing a competent investigation and perhaps implicitly suggesting to Nassar that he can get away with this. Or perhaps on an equal protection theory, that they did an incompetent investigation because they did not take sexual-assault against teenage girls seriously.

Posted by Howard Wasserman on February 1, 2018 at 06:49 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)


Thanks to our January visitors for a good start to the new year.

Welcome to our returning visitors--Jen Kreder (Northern Kentucky), Corinna Lain (Richmond), and Jordy Singer (New England).

As always, if you will be in the Los Angeles area and would like to be a guest at a live taping of PrawfsBlawg (especially if you have never visited), email me.

Posted by Howard Wasserman on February 1, 2018 at 11:41 AM in Blogging | Permalink | Comments (0)

A competing voice on universal injunctions

Amanda Frost on SCOTUSBlog. Amanda has been Sam Bray's designated interlocutor, on the AALS panel and in the Judiciary Committee. She and I shared the stage on a recent NPR segment.

Posted by Howard Wasserman on February 1, 2018 at 10:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)