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Thursday, September 20, 2018

An infield fly rule for fake fair catches?

Last weekend, North Texas pulled off an amazing trick play, scoring a touchdown on a punt return by having the entire team (and everyone had to be involved) pretend the returner had called for a fair catch, then racing upfield when opposing players ran to the sideline believing the play was over. On Tuesday, there were conflicting reports as to whether the NCAA was considering outlawing the play. This New York Magazine piece by Will Leitch suggests a rule change may be necessary, with arguments sounding in the infield fly rule.

The infield fly rule (and similar rules) is necessary to address situations defined by four elements: Team A acts contrary to ordinary athletic expectations or fails to do what is ordinarily expected; that move produces an extraordinary cost-benefit advantage; Team B is powerless to counter the move in light of the game's rules, practices, and structure; and that imbalance creates a perverse incentive for Team A to try this often. Leitch's piece suggests that this is a situation requiring a limiting rule.

The key is the third element of Team B's powerlessness to counter the play in light of the game's structure. The punting team's counter is obvious--play to the whistle and hit the ball carrier unless you see the fair-catch signal and/or hear the whistle. But Leitch argues that the renewed focus on head injuries and player safety has changed that calculus. Tacklers no longer want to light-up a defenseless ball carrier and likely will draw a penalty for doing so, even if the hit was legal, because it "looks bad" and results in an injury. And it already can be hard for the punt coverage team to see and determine the fair catch signal.  North Texas' coaches essentially exploited that reluctance and that limitation on the tackler.

So while there is a counter, it is one that the tackling team will be unable to utilize without risking penalties on anything that looks close, making not a meaningful counter. Alternatively, if such hits are not going to be called, Team B gets its counter, but it is one the game's rulemakers will not want to encourage. This become a situation that gives one side a cost-benefit advantage (and thus a perverse incentive) and leaves the other powerless to respond, at least without creating other problems in the game's structure.

My first thought after this play was that it was a one-time, not-replicable event, because punt-coverage players now will be instructed to hit the returner unless they hear the whistle on the fair catch. Leitch's piece convinced me otherwise, that the cultural shift away from hitting defenseless players creates a limit on the tackling team and thus a control disparity that requires a limiting rule.

Posted by Howard Wasserman on September 20, 2018 at 11:50 AM in Howard Wasserman, Sports | Permalink | Comments (2)

More than a Home for the Holidays

I’ve been thinking a lot about the tax reform since it passed late last year.  There are a couple of things I want to say, one of which is to highlight homeownership as a savings mechanism—homeownership begins with a down payment and then continues with monthly payments for decades.  This point has not been made much, although I think it’s an important reason to have tax support for homeownership, such as the mortgage interest deduction and the SALT deduction.

Homeownership might as well be a 401(k), except that people do not ignore it—its best feature and the very reason tax policy undercutting it poses a problem.  In fact, more people own homes than save significantly for retirement, probably because they cannot afford to do both.  And, just as we incentivize retirement saving in the tax code, so should we incentivize homeownership if that is people’s preferred savings method.

I make this point in my forthcoming U. of Miami Law Review article, along with the full argument for not curtailing tax homeownership benefits too severely.  You can read it here if interested.

Posted by Margaret Ryznar on September 20, 2018 at 04:54 AM | Permalink | Comments (3)

Tuesday, September 18, 2018

Executives, Golden Parachutes & #MeToo - great op ed by Professor Rachel Arnow-Richman

 My terrific friend and collaborator Rachel Arnow-Richman (Denver Law) has an op-ed today in the San Francisco Chronicle about CBS's ousted CEO Moonves and the contractual obligations of corporation toward their highest executives in the case of firing for cause, in the midst of severe sexual harassment allegations:

If #MeToo is to have lasting impact, companies must consistently take a hard line against high-level harassment, not just when it aligns with their other interests. This means abandoning contracts that insulate executives from accountability in favor of those that preserve employers’ ability to respond swiftly and nimbly to alleged violations of law. 

Posted by Orly Lobel on September 18, 2018 at 09:07 PM | Permalink | Comments (3)

When in France, Do As the French Do…and When Not in France, Still Do As the French?

France has had two big innovations in family law, and I look forward to see if they spread across the world as quickly as a hot new Chanel bag.    

First, in France, movements to grant rights for same-sex couples culminated in 1999 in a form of civil partnership called PACS (civil pact of solidarity), which aimed to protect unmarried cohabitants.  To gain political support for the bill, opposite-sex cohabitants were also included as its beneficiaries.  When the French Parliament adopted PACS, approximately 42% of couples who entered into PACS agreements were opposite-sex.  Today, over 90% of PACS agreements are between opposite-sex couples.   The number of registered opposite-sex couples under PACS has been continuously increasing, and there are now two PACS for every three marriages.  After the introduction of same-sex marriage and skyrocketing opposite-sex cohabitation rate, PACS is replacing marriage.  In the United States, cohabitation is also increasing and marriage is decreasing, but there is no middle-ground like PACS.

Also in France in 2016, non-judicial divorce was introduced.  In other words, spouses in France can now divorce by contract after hiring their own attorneys, which is then registered and official—no courts involved.  It has to be consensual, and children of a certain age can halt the non-judicial process, which then reverts to the court for judicial protection and oversight.  Non-judicial divorce is now not only an option in France, but is common.  In the U.S., American courts have been involved in every divorce case since the earliest cases of divorce.  While mediation and summary dissolution have been on the rise, American courts still have to at least rubber stamp agreements.  Recently, Minnesota legislators introduced legislation in 2015 and 2017 proposing an administrative divorce option, but it never became law.  If another state decides to further liberalize its divorce law, France certainly provides a compelling model to simplify the process while protecting the parties. 

I describe the French process more in my forthcoming Seattle article here, and I described PACS in my recent article here.  I think both are huge developments in recent family law, and I wonder if they will be transplanted to other countries, including the U.S.

Posted by Margaret Ryznar on September 18, 2018 at 05:14 PM | Permalink | Comments (5)

Monday, September 17, 2018

We are Not Alone

We in law schools are not alone  in our efforts to more effectively bridge the gap between professional school and the actual practice of the profession.  It is the vocabulary of our time—perhaps spurred by the general pace of life in an age of instant and constant communication.  Business, Pharmacy, Veterinary, Architecture, Speech Pathology & Audiology , Osteopathy, and Medical Schools are all proclaiming their progress in helping their students be “practice ready” so that they can “hit the ground running.” In the health sciences, the commitment to readiness for practice has resulted in a deep commitment to interprofessional training that reflects the realities today’s workplace.

Yet whether or not we should be doing this (let alone how) is still a matter of considerable debate that, unfortunately, has become wrapped in a false and unnecessary dichotomy between the scholarly  and the practical.  I hope that looking at how other professional schools prepare their students for post-graduation work life can help us get beyond a framing of this discussion that creates unnecessary stress and discord.  Study of the theoretical framework or historical development of a field is essential for all professionals so they can develop a deep understanding of the “why” as well as the “how.” Equally, there can be no effective skills training without substance.  The data on learning is in—everyone learns more in context than in a vacuum. (lots of great resources posted by Yale).

Perhaps some of the tension comes because one of the early justifications for increased emphasis on practice was to make students more attractive to the big law firms after the financial crash.  That never seemed likely and quickly revealed itself to be a myth. As Dr. Lauren A. Rivera explains in this article and in her book Pedigree: How Elite Students Get Elite Jobs the realities of large firm (law included) hiring are rooted in class and culture. And speaking of class and culture, another good reason for doing this is to level the playing field and send all our students with the tools they need to succeed in an environment that still very much skews in the direction of country clubs and old school ties.   

Nor did it seem plausible that with the right combination of courses newly minted lawyers without access to start-up funds, financial support, or a pre-existing client base could become self-sufficient solo practitioners   

But for the next two posts, I will talk about accessible resources for helping our students succeed in a job market that starts almost as soon as they arrive   Outside the big law firms, there is an increasing emphasis on expecting that students will have substantial exposure to work settings in clerkships, clinics, and externships before they go on the market for their full-time job. (This is true in undergraduate job searches as well).  Some of these placements can result in direct hires, thus turning  into an extended interview, but even placements that cannot offer permanent employment still have considerable value by their ability to offer informed, positive references. 

So, what can we do to prepare students to be successful in externships, summer jobs, and later on the job market?   The laws of physics prevent us from instilling judgement or experience in ways that would make our students appreciably different from graduates of the past.  [This is why law students who have had prior work experience tend to advance more quickly once they hit the market—they don’t know any more law than their classmates, but the maturity they bring with them in the world of work makes a big difference]. But  there are two major categories of things we can do to help.   

The first, which I discuss today,  includes the kind of training that  business schools have been offering for years: how to make a successful transition from student to employee/professional.   Many universities have entire career service departments that devote considerable type to developing very helpful information about things like dress and basic expectations of the workplace, that our students may have missed because they weren’t directly entering the workforce from college. The second is more specific to law and many schools are already far ahead in doing the kinds of things that students need to make the connection between what they learn in class and what lawyers do in practice.  More on that later.

Category 1--making the transition

In addition to the general information available at most universities, there are already terrific law-specific resources.

Nancy Rapport and Jeffrey D. Van Neil have a book called “Law Firm Job Survival Manual: From First Interview to Partnership” that should be required reading before a student so much as shadows a practicing lawyer.  Last year I highlighted Randolph Kiser’s Soft Skills for the Effective Lawyer. Calvin Gladney calls these Wrap-Around Skills.  Our friends in the profession of Law Librarians have been way ahead on gathering information helpful to the new lawyer—see Harvard and American for examples, but look at your own library's website too. Also the ABA Young Lawyers Division, the National Association of Bar Executives, and indeed local bar associations are really shining in their efforts to be of assistance to new lawyers.  See DC, and Ohio as examples.  Finally, it is at best unfair to our students not to prepare them for the diverse world they are about to enter.  A good place to start is an ABA publicationWhat if I Say the Wrong Thing? 25 Habits for Culturally Effective People (ebook) by Verna A. Myers which has practical and helpful ideas specific to lawyers.

This kind of readiness training is also something our alumni and employers would be delighted to help us with—for example I once organized a boot-camp for first years before their first externships experiences that was primarily staffed by the local bar(both recent graduates and seasoned supervisors) as well as  by the heroic career services folks who got the calls when things went wrong.  

Next post:  Category 2- Integrating the practice of law into the existing curriculum (not just adding skills courses) so as to encourage the application of legal knowledge to legal practice.  Hint--we can find ideas in 1) the work medical schools have done in integrating their curriculums without reducing rigor or the amount of material each class covers as well as 2) in the creative programs developed by some of our most forward thinking colleagues.

Posted by Jennifer Bard on September 17, 2018 at 03:21 PM | Permalink | Comments (0)

FIU COL leads Florida Bar passage . . . again

A bit of shameless school self-promotion. I am happy to say that FIU College of Law again led Florida law schools in bar passage, at 88.1 %. By my count, this is the sixth time in the past seventh Bar administrations that we have led the state (on the seventh, we finished second, missing by one). We remain a well-kept secret in legal ed.

Posted by Howard Wasserman on September 17, 2018 at 02:51 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Reconstructed Ranking for Law Journals Using Adjusted Impact Factor

I would like to thank everyone for their comments and especially USForeignProf who added an important perspective. The main  motivation of our study was to expose the risks of blindly relying on rankings as a method for evaluating research. While we do not have data about the impact of metrics on the evaluation of research in law, we suspect that law schools will not be insulated from what has become a significant global trend. Our study highlights two unique features of the law review universe, which suggest that global rankings such as the Web of Science JCR may produce an inaccurate image of the law journals web: (1) the fact that the average number of references in SE articles is much higher than in articles published in PR journals; and (2) the fact that citations are not equally distributed across categories. In our study we tried to quantitatively capture the effect of these two features (what USForeignProf has characterized as the dilution of foreign journals metrics) on the ranking structure.

To demonstrate the dilution effect on the Web of Science ranking, we examined what happens to the impact factor of the journals in our sample, if we reduce the “value” of a citation received from SE articles from 1 to 0.4. We used the value of 0.4 because the mean number of references in SE journals is about 2.5 times greater than the mean number of references in PR journals (in our sample). For the sake of the experiment, we defined an adjusted impact factor, in which a citation from the SE journals in our sample counts as 0.4, and a citation from all other journals as 1. I want to emphasize that we do not argue that this adjusted ranking constitutes in itself a satisfactory solution to the ranking dilemma. We think that a better solution would also need to take into account other dimensions such as journal prestige (measured by some variant of the page-rank algorithm) and possibly also a revision of the composition of the journals sample on which the WOS ranking is based (which is currently determined - for all disciplines - by WOS stuff). However, this exercise is useful in demonstrating numerically the dilution effect. The change in the ranking is striking: PR journals are now positioned consistently higher. The mean reduction in impact factor for PR journals is 8.3%, compared with 46.1% for SE journals.  The table below reports the results of our analysis for the top 50 journals in our 90 journals sample (data for 2015) (the complete adjusted ranking can be found here). The order reflects the adjusted impact factor (the number in parenthesis reflects the un-adjusted ranking). In my next post I will offer some reflections on potential policy responses.

  1. Regulation and Governance (10)
  2. Law and Human Behavior (13)
  3. Stanford Law Review (1)
  4. Harvard Law Review (2)
  5. Psychology, Public Policy, and Law (18)
  6. Yale Law Journal (3)
  7. Texas Law Review (4)
  8. Common Market Law Review (22)
  9. Columbia Law Review (5)
  10.  The Journal of Law, Medicine & Ethics (29)
  11. University of Pennsylvania Law Review (8)
  12. Journal of Legal Studies (15)
  13. Harvard Environmental Law Review (14)
  14. California Law Review (6)
  15. American Journal of International Law (19)
  16. Cornell Law Review (7)
  17. Michigan Law Review (9)
  18. UCLA Law Review (12)
  19. American Journal of Law & Medicine (36)
  20. Georgetown Law Journal (11)
  21. International Environmental Agreements-Politics Law and Economics (41)
  22. American Journal of Comparative Law (25)
  23. Journal of Law, Economics, & Organization (37)
  24. Journal of Law and Economics (35)
  25. International Journal of Transitional Justice (42)
  26. Law & Policy (44)
  27. Harvard International Law Journal (26)
  28. Chinese Journal of International Law (47)
  29. Journal of International Economic Law (48)
  30. Law and Society Review (46)
  31. Antitrust Law Journal (27)
  32. Indiana Law Journal (24)
  33. Behavioral Sciences & the Law (51)
  34. Virginia Law Review (16)
  35. New York University Law Review (17)
  36. Journal of Empirical Legal Studies (39)
  37. Leiden Journal of International Law (54)
  38. University of Chicago Law Review (20)
  39. Social & Legal Studies (58)
  40. World Trade Review (61)
  41. Vanderbilt Law Review (23)
  42. Harvard Civil Rights-Civil Liberties Law Review (32)
  43. Modern Law Review (63)
  44. Annual Review of Law and Social Science (49)
  45. European Constitutional Law Review (64)
  46. Oxford Journal of Legal Studies (59)
  47. Journal of Environmental Law (65)
  48. European Journal of International Law (57)
  49. Law & Social Inquiry (62)
  50. George Washington Law Review (31)

Posted by Oren Perez on September 17, 2018 at 02:53 AM in Article Spotlight, Howard Wasserman, Information and Technology, Law Review Review, Peer-Reviewed Journals | Permalink | Comments (13)

Sunday, September 16, 2018

Australian politicians as bad as U.S. politicians . . .

in their reaction to a nine-year-old girl refusing to stand and sing the Australian national anthem (as a show of support for Australia's indigenous people). (H/T: A student looking ahead to our Law Review Symposium on Barnette's 75th anniversary).

The CNN story says "the school had tried to be respectful of her wishes by providing alternatives, such as not singing along." There remains a nice question as to precisely what Barnette protects as a First Amendment matter (which obviously has nothing to do with the Australia story. Is it all participation in patriotic rituals or only having to recite the words while otherwise participating in the ritual. That is, could the proposed alternative (stand at attention, don't speak) be imposed on a student?

Posted by Howard Wasserman on September 16, 2018 at 08:28 PM in First Amendment, Howard Wasserman | Permalink | Comments (2)

Guest Post: Would Appointment of Judge Kavanaugh to the Supreme Court be Constitutional?

If the Senate votes Judge Brett Kavanaugh onto the Supreme Court, it seems pretty clear that he will solidify a staunchly conservative majority on the Court. This new majority will stake out firmly conservative positions on a range of critical issues, including voting rights, reproductive rights, and corporate rights. With a Justice Kavanaugh on board, the Supreme Court will bring a strong ideological bias to its decision making. While that is highly controversial, it’s one of the features of our judicial appointment process.

Or is it? We ought to consider the constitutional implications of ideological bias on the Supreme Court. In particular, principles of due process and the framers’ original intent provide good reason to think that neither a conservative nor liberal majority should be able to impose its views on the Court.  

The Due Process Clause promises litigants that they will receive an impartial hearing before a neutral court. And a neutral court decides cases without any personal, political, or other bias. Once Judge Kavanaugh joins the Supreme Court, it won’t be a neutral court. Any party promoting a liberal viewpoint before the Justices would not be able to count on a fair shot at prevailing.

Because it is unfair for litigants to have their cases decided by an ideologically-biased court, other countries and some U.S. states have designed their highest courts so decisions reflect a broad range of ideological views. Arguably, due process requires something similar for the Supreme Court.

A strong view of due process would demand ideological moderation for each Justice, an approach taken in some European countries. In Germany, for example, nominees to the Constitutional Court must receive a two-thirds vote of approval and therefore must appeal to legislators on both sides of the partisan aisle. Instead of getting judges who are either strongly conservative or liberal, German litigants get judges who are moderate. Like Germany, Portugal and Spain require supermajority votes for appointments to their constitutional courts. So we might say that due process requires restoration of a strong filibuster rule in the Senate or a strong supermajority on final voting for judicial nominations. That would force presidents to nominate Justices acceptable to both parties.

A less demanding view of due process would focus on overall balance on the Court rather than the ideologies of individual Justices. While there are different ways to achieve overall balance, the simplest path for the Supreme Court would be to follow the example of a couple of states and a number of countries. In many European countries, high court decisions are made by consensus or at least a supermajority vote, so justices on both sides of the ideological spectrum have to support the courts’ opinions. State constitutions in North Dakota and Nebraska also employ this path to ideological balance. The North Dakota Supreme Court can declare a legislative enactment unconstitutional only with the support of at least four out of the five justices.  In Nebraska, five out of seven justices are needed to hold a legislative act unconstitutional.

How large should a supermajority be? Since there may be times when six Justices are either conservative or liberal, it probably would be necessary to require more than a two-thirds supermajority to ensure that decisions always reflect the perspectives of both sides of the philosophical divide. Likely, it would make most sense to require decision making by consensus of the entire Court.

What would the framers think about this? On one hand, they didn’t include in the Constitution a requirement for ideological balance on the Supreme Court. On the other hand, they recognized the need to amend the Constitution with a Bill of Rights that includes the Due Process Clause’s guarantee of impartial courts.

With ideological balance, the Supreme Court would be more faithful to the framers’ intentions for our constitutional system. The founding fathers worried greatly about “factions” pursuing their self-interest to the detriment of the overall public good. Accordingly, the constitutional drafters designed a system that they thought would block factional control of the national government. But the framers did not anticipate the extent to which political parties would form dominant factions that could gain command of government power. For example, the framers did not anticipate how partisan ties between presidents and members of Congress would limit the legislative branch's checking and balancing of the executive branch. Similarly, the framers did not expect—nor did they want—a Supreme Court that would reflect the views of only one side of the political spectrum. Indeed, when Alexander Hamilton explained the Constitution’s appointment provisions in The Federalist Papers, he emphasized the need to avoid nominations that reflect partiality instead of the overall public interest.

Supermajority voting on the Supreme Court fits well with constitutional principle in other ways. As the Supreme Court regularly observes, legislation passed by Congress carries a strong presumption of constitutionality. Requiring a supermajority to override reinforces that presumption. The Court does not exercise the same level of deference to state government action, but in those cases, the Supreme Court is interpreting the Constitution and effectively amending our understanding of the Constitution. Accordingly, it makes sense for the Justices to do so by supermajority vote, just as amendments to the Constitution require supermajority support from Congress and the states.

To be sure, the Supreme Court has observed that constitutional concerns are not raised when a judge favors one or another ideological view. Anyone with the appropriate training and experience for the judiciary will have developed opinions on important legal issues. According to the Court, due process prohibits judicial bias against a party to a proceeding, not bias against a legal view that the party might advocate.

But the fact that we must accept individual judges with ideological leanings does not prevent us from seeking moderate rather than strongly ideological Justices or from ensuring an overall ideological balance on the Court. Under a fair reading of the Constitution, litigants ought to be able to ensure that their cases are decided in an ideologically-balanced way.

And ensuring balance might address the declining level of public approval of the Supreme Court. A majority of Americans once expressed strong confidence in the court. According to a July Gallup poll, only 37 percent do now.

Posted by David Orentlicher on September 16, 2018 at 02:41 PM in Constitutional thoughts, Law and Politics | Permalink | Comments (21)

Friday, September 14, 2018

The Deuce '77

I just watched the season two premiere of The Deuce, which time-jumps to 1977 and depicts the late-'70s New York City of Ed Koch that I remember as a I kid. After the jump, one thought and one question:

Question: Does anyone know if actor Luke Kirby is Jewish? I have seen him in three shows--Rectify, in which he played Jewish lawyer Jon Stern; Fabulous Mrs. Maisel, in which he plays Lenny Bruce; and now the new season of The Deuce, in which he plays a Koch aide named Gene Goodman. Just curious.

Thought: One character on the show is a porn producer named Harvey Wasserman. Early in the episode, during a disagreement between Harvey and Maggie Gyllenhall's Eileen about a movie clip, Eileen says "Fuck you, Wasserman." While perhaps many a student thinks it, I don't hear that said on TV very often.

Posted by Howard Wasserman on September 14, 2018 at 03:27 PM in Culture, Howard Wasserman, Television | Permalink | Comments (0)

Serena and the umpire

I am a week late to the conversation about the blowup between Serena Williams and the chair umpire during the US Open women's final. I do believe there is a race-and-gender piece to this, although it is not as simple or direct as some make it out to be. Kevin Drum has a good blow-by-blow of events and I agree with his descriptions and conclusions. I repeat some of his points with additional commentary below.

• The first called violation and warning, for coaching, was correct, as even her coach, Patrick Mouratoglou, admitted he was coaching. And however common coaching is,* it does get called, against men and women, black and white. And this chair umpire is known to call it more than others. This perhaps could have been an instance in which Mitch Berman's temporal variance was appropriate and it should not have been called midway through the second set of a Grand Slam final.  And race and sex might have had something (not everything, but something) to do with the umpire's willingness to call a ticky-tack violation at that key time.** On the other hand, Drum points out that the coaching was not subtle, so an easy target for this call.

[*] Or should be. I recognize the argument, that Mouratoglou made when interviewed after the match, that the rule should be eliminated. That has no role to play here. Civil disobedience is still a crime and still punishable until the unjust law is repealed.

[**] Berman's temporal variance argument begins with one of Williams' previous officiating meltdowns, in the 2009 Open semi-finals.Williams was called for a foot fault on a second serve when she was down 15-30 and serving to stay in the match. The call pushed her to 15-40 and match point. That prompted Williams to threaten the line judge, resulting in a code violation. And because Williams had received a violation for--wait for it--smashing her racket, the violation resulted in a point penalty and the end of the match. Pattern of behavior? Pattern of targeting the African-American woman with ticky-tack calls at key moments? Bit of both?

• The interesting thing about this call--and the thing that caused many of the subsequent problems--was that Williams took it as a personal affront to her, an accusation that she was cheating. She protested the call by talking about her daughter and how she would rather lose than cheat; her later demand for an apology was premised on this understanding, that the ump had accused her of cheating. But any "cheating" was by the coach, not Williams. Coaching is "communication, advice or instruction of any kind and by any means to a player," which Mouratoglou was blatantly and not subtly doing via hand signals; the rule does not require that the player see, hear, or respond to the coaching, only that the coach engage in communication. So her taking this as an affront to her honesty or sportsmanship misunderstands the nature of the rule. The player is punished for the coach's misconduct (presumably so the player will tell the coach to knock it off). But the player need not do anything wrong for the infraction to be called.

• Williams somewhat undermined her own cause here. She insisted that she had not seen any coaching, but that is beside the point. But Williams also said she had looked up and seen Mouratoglou, but he only was giving her the thumb's-up. This suggests that she saw something and there was some communuication. Unfortunately for Serena, the cameras were following Mouratoglou and it appeared he was doing much more than giving the thumb's-up.

• The second violation, for breaking the racket, which resulted in a point penalty as a second infraction, is a no-brainer--she did, in fact, destroy her equiment. And, again, the argument that the rule is stupid and made for a game that was played by delicate white men and not strong, athletic, competitive African-American women is beside the point. Again, if the rule is bad, change the rule; otherwise, follow it. A game before Osaka had slammed her racket after a mistake, but the racket did not break, so there was no violation.

• My point of departure from Drum is whether sex (and race) had anything to do with the third violation, for umpire abuse (which resulted in the game penalty). This was a judgment call and Williams was ranting. But we see men's players, especially the top men's players, given a lot more leeway in arguing with officials; it is difficult to imagine any of the top-three men's players getting called for saying the same things Williams did, especially at that point in a championship match. This infraction was not called solely because Williams is an African-American woman. But it is not an unreasonable inference that the umpire's fuse was shorter with her than it would have been with a white man, especially accounting for her position as the GOAT and the idea that the GOAT gets away with more.

• The one reason the call makes sense, apart from race and sex, is that Williams personalized it--she said, "You're  a thief." Baseball umpires, asked about the magic word that will prompt them to eject a player, say "You"--in other words, players can say a lot of words, as long as they do not personalize those words to the umpire. (To use the famous example in the movie Bull Durham, Crash does not get ejected when he screams cocksucker at the umpire, only when he says to the umpire "you're a cocksucker."). I am not sure if it is the same in tennis, but that could set her comments apart.

Posted by Howard Wasserman on September 14, 2018 at 10:52 AM in Howard Wasserman, Sports | Permalink | Comments (15)

Thursday, September 13, 2018

Go Fish

We are now teaching students with an attention span shorter than that of a goldfish.  We ourselves now have an attention span shorter than a goldfish.  Since 2000, the human attention span decreased 33%, from 12 seconds to 8 seconds.  It is no coincide that the first smartphones appeared in the 2000’s.  So, how do we motivate students to learn despite shortening attention spans?

This is what I am working on right now for my next article, Motivating Law Students, with the help of the empirical data from student focus groups. 

Right now, I am knee-deep in the literature.  Daniel H. Pink is right in Drive to say that motivation is complicated.  There are two types of motivation: intrinsic motivation (curiosity, engagement, etc.) and extrinsic motivation (grades, bar passage, jobs, etc.).  It turns out that intrinsic motivation is far more effective.  But, intrinsic motivation is also more finicky—the conditions have to be just right for students to feel intrinsically motivated. 

There are ways to build courses to bring out the intrinsic motivation in students.  And, I am intent on finding as many of them as possible.  I have some early ideas that are in line with the literature, which include feedback on assessments and autonomy, but I welcome thoughts in the comments.  

Posted by Margaret Ryznar on September 13, 2018 at 06:55 PM | Permalink | Comments (8)

Mark up of Injunction Authority Clarification Act

The House Judiciary Committee marked-up the Injunction Authority Clarification Act, the bill that would eliminate universal injunctions. No word on what happened, although it did start a conversation on the CivProProf Listserv.

In addition, Jeff Sessions announced litigation guidelines for DOJ attorneys in litigating the scope of injunctions. Interestingly, Sessions' statement shows he still does not understood the issue fully, because he twice rails about "single (unelected) district judges" issuing these injunctions. But the problem of universal injunctions improperly protecting non-parties has nothing to do with the number of judges on the case or the level of court. SCOTUS cannot issue (or affirm) universal injunctions any more than a district court can enter universal injunctions. SCOTUS only can affirm a particularized injunction and thereby prohibit enforcement of the challenged law against the named plaintiff, on threat of contempt; the judgment and injunction go no further. SCOTUS's decision may halt future enforcement against non-parties, but purely as a matter of binding precedent, not as a matter of the injunction itself.

Posted by Howard Wasserman on September 13, 2018 at 04:56 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Imagine if There Were No Grades

 This is a mini post without the usual links because I am still in New York tapping on my phone  in coffee shops.   I will probably clean this up and re-post with more links when I get back.

 But an article about business schools and grades in today’s Inside Higher Education  https://www.insidehighered.com/news/2018/09/13/cornell-mba-students-vote-grade-nondisclosure-recruitment?utm_source=Inside+Higher+Ed&utm_campaign=92a239a926-DNU_COPY_01&utm_medium=email&utm_term=0_1fcbc04421-92a239a926-197442921&mc_cid=92a239a926&mc_eid=8efa9a3c62spurs me to move forward with something that I will be writing more about later in the month, the effects of grades on learning.

First, I don’t think that this practice by a few business schools is all that relevant to us  because their employment process is so different from ours (cites to come).

 But there is extensive research done by medical schools on removing grades from undergraduate medical education that  could be helpful to us.  Medical schools historically have relied just as much on end of class final exams based based grades as we have.  The difference is that access to the most competitive employment opportunities (highly desirable residencies) is increasingly  dependent on the scores in the Step One licensing exam (after their second year) and somewhat less on medical school grades   Good grades dont mitigate a bad score.

 So many medical schools have taken the opportunity to consider whether or not grades in medical school were hurting or helping learning and/or performance on those very important exams.  

 (One way to look at this is that for medical students the Step One exam is a combination of grades and the bar passage because it affects both whether or not you can be licensed to be a physician and how competitive a job you can get.)

 And at the risk of ruining suspense, many medical schools have found that  removing final grades (not removing assessment) enhances performance.  Students were under less pressure, and there is extensive literature supporting the I know counterintuitive fact that pressure is bad for long term learning. Good (although not great) for cramming, terrible for long-term retention of information.

 Thinking about removing grades in legal education, no matter how unrealistic that actually is, is a helpful thought experiment because it addresses something that I think is our greatest challenge in legal education: the degradation of academic motivation after receiving poor first year grades.   I believe very strongly that there is a high value to classroom instruction throughout the three years of law school. The legal system is complex and the more practice you have analyzing sources of law under the guidance of those who understand the system best, the better a lawyer you will be.

We have backed ourselves into a very odd situation where after the first semester we identify a fairly small group of students as being excellent and then,certainly in their eyes, relegate the vast majority of students as being “not very good at law.”

 We have data about the light going out of those law students’ eyes, and we also have the evidence of our our own eyes as we see students who  do well the first semester take on the identity of high performers and the other students finding other interests.   We are not intentionally discouraging them from achieving future academic excellence.    But they get that message.  We can tell them that they are not their GPAs, we can tell them that no one will care about their GPA after their first job but we have to appreciate that it is next to impossible for them to take the long view on their own.  This is especially true for our first generation college and law students but given how much the job market has changed over the past 10 years it is probably even more true for students getting outdated information from friends and famiky.

So what to do?Certainly we all have anecdotes about students who were motivated by poor first year performance and were able to completely turn around and graduate at the top of their class.   It would be worth studying these students ( and by studying I mean the very low-tech process of asking them) to find out what it is about them that pushes back against discouragement.   Perhaps a very strong pre-law school  identity that they are an excellent student and this is an aberration?  A kind word from a professor?

We also have the entire profession of academic support whose job is to reengage and inspire these students- and they are wonderful at it.  We should talk to them more. 

But removing final grades? Probably not.  Ours is a well-developed and complex system that so over-rewards first semester grades  that there is no obvious path to pulling on that the thread without causing widespread disruption (the bad kind)  and much unhappiness from every possible stakeholder.

 To recap, nowhere in this post have I suggested that Law Schools would be better off if we “eliminated“ or even deemphasized final grades. This is not a situation entirely in our control and unlike medical schools which can outsource professional sorting to standardized licensing exams, our students rely on us to present them in the best possible light to employers.    We also can’t do much to change the on-campus interview process where students receive a very direct and often brutal understanding of their marketability to large law firms( I do support making that process less visible whenever possible and moving these interviews out of the law school, but that’s not a global solution).

 What I am suggesting is that we get some help from our friends in academic support as well as in educational psychology and other areas of the University, including STEM education and sociology, to find out more about what motivates our students.  There is a vast literature on increasing performance in STEM subjects, which I have mentioned many times.    I will be talking more about that literature in future posts but the fifty-cent summary is that any steps we can take to prevent students from feeling that they are irrevocably bad at law makes it easier for them to persevere in learning something that is at first difficult.

I also suggest that we all work more closely  with our career services office and our local legal community(likely employers of students not in the top 5-10 percent) to give first semester students (before they get grades) a realistic and specific idea of both the employment opportunities at different GPA levels and the resources available to them to increase their employability regardless of their grades. We assume students know the future employment value of externships or clinics or judicial clerkships but many do not- again very especially our students who are first generation college or even first generation law students.

 For some students this will be reassuring, perhaps for others it will be a wake up call but we have that information and we can share with them.

We will all (students and faculty) be better off by engaging the whole student body for all three years.  It is also in the interests of our students’ future clients that they all graduate from law school with the belief that if they work hard they can achieve excellencent legal results for their clients.    So it’s worth looking at what we can do to make that happen- even if removing grades isn’t the answer .

Posted by Jennifer Bard on September 13, 2018 at 11:19 AM | Permalink | Comments (0)

Yet evading review

Mootness can be overcome* if the claim is capable of repetition yet evading review. One important limitation on this doctrine, that often gets confused or overlooked, is that the harm must be reasonably likely to recur as to this plaintiff, not generally and not as to someone else.

[*] I do not like to speak of it as an "exception" to mootness because I subscribe to Scalia's argument that a case that is C/R/E/R is simply not moot.

The Eighth Circuit held that a an action by a Democratic elector challenging Minnesota's faithless-elector law was not C/R/E/R. The court held that it did not evade review because the plaintiff waited too long to file suit, thereby shortening the time period. Rather than suing on November 8 (right after the election) or November 29 (when the results were certified), he waited until December 19, the day his vote (for Bernie Sanders) was discounted and he was removed as an elector. That left only 2 1/2 weeks to litigate, whereas a lawsuit on December 8 would have allowed almost two months for expedited litigation in both the trial court and court of appeals.

But that assumes the court would have found standing and ripeness on November 8, which is not certain. The plaintiff would have argued then that he intended to vote for Sanders and that the faithless-elector law would disqualify his vote. But courts are so inconsistent about standing that it is hard to know whether that would work. Moreover, the evading-review applies when the time is too short to litigate the issue fully, which must included SCOTUS review. So while the "district court plainly was prepared to resolve the matter with dispatch (it convened a hearing within three days and ruled on the fourth), and this court has demonstrated that it can expedite appeals in time-sensitive cases," that does not account for SCOTUS, which may have wanted a crack at a case declaring invalid a faithless-elector law. The notion that two months would have been enough time to fully litigate this issue, had the plaintiff only not sat on his rights, seems dubious.

It also is unnecessary, because the better argument is that this is not reasonably capable of repetition as to this person. The plaintiff could not show a "reasonable expectation" that he would be subject to this law again. It is doubtful the Minnesota Democratic Party will appoint him as an elector. And he cannot show that he plans to vote for someone other than the popular-vote winner so as to have the law enforced against him; that is too unknown to constitute a remediable injury at this point.

Posted by Howard Wasserman on September 13, 2018 at 07:22 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (2)

Wednesday, September 12, 2018

Tacit Citation Cartel Between U.S. Law Reviews: Considering the Evidence

In my previous posts, which draw on my co-authored paper ‘The Network of Law Reviews: Citation Cartels, Scientific Communities, and Journal Rankings’ (Modern Law Review) (with Judit Bar-Ilan, Reuven Cohen and Nir Schreiber)  I described how the metrics tide is penetrating the legal domain and also described the findings of our analysis of the Web of Science Journal Citation Reports of law reviews. We studied a sample of 90 journals, 45 U.S. student-edited (SE) and 45 peer-reviewed (PR) journals and found that SE generalist journals, direct and receive most of their citations to and from SE journals. We argued that this citation pattern is a product of tacit citation cartel between U.S. SE law reviews. Most of the comments focused on the following valid point: how can we distinguish between a tacit citation cartel and epistemically-driven scientific community (generated by common scientific interests). We argue, generally, that in tacit citation cartels, the clustering observed should extend beyond what can be explained by epistemic considerations, reflecting some deep-seated cultural and institutional biases.

In the paper we provide several arguments (both quantitative and qualitative) in support of our tacit cartel thesis. While none of them is conclusive in itself we think that jointly they provide a robust support for our thesis. First, we considered whether the clustering of U.S. SE journals could be explained by geographic proximity. Our sample included 57 U.S. journals consisting of all 45 SE journals and 12 PR ones. Statistical analysis reveals however that US PR journals do not receive more citations than non U.S. ones. Second, we also analyzed separately the sub-sample of generalist (PR & SE) journals but the citation pattern remained the same. Third, we considered the hypothesis that U.S. SE journals constitute a separate epistemic field – maybe due to their emphasis on U.S. law. We rejected this explanation on qualitative grounds, primarily because U.S. SE journals have become increasingly more theoretical and interdisciplinary over the past few years (Harry T. Edwards, ‘Another Look at Professor Rodell's "Goodbye to Law Reviews’; George L. Priest, ‘The Growth of Interdisciplinary Research and the Industrial Structure of the Production of Legal Ideas). This trend should make PR journals very relevant to U.S. legal scholarship. Fourth, one may try to explain the citation pattern by assuming a deep difference in the quality of the papers published in the two journal groups. We do not think this argument stands up to scrutiny.  First, the selection practices of SE journals were subject to strong critique (e.g., Richard A Posner, ‘The Future of the Student-Edited Law Review’ (1995)). This critique casts doubts on the thesis that there is a strong and systemic difference in quality of papers published in the two categories. We also examined this claim empirically by looking into the citations received by the 10 top-cited articles published in PR journals in our dataset. We found that even these highly cited papers received only a small percentage of their citations from SE journals.

Finally, we also considered the accessibility of PR journals in Lexis, Westlaw and Hein. We found indeed that these databases only offer access to approximately half of the PR journals (See Table F, technical appendix.) However, we do not think that this fact provides a convincing explanation to the phenomenon we observed. We believe that most U.S. law schools have access to digital depositories that allow access to the PR journals in our sample. A quick search in 3 US libraries demonstrates that (https://www.law.pitt.edu/research-scholarly-journals; https://library.columbia.edu/find/eresources.html ; http://moritzlaw.osu.libguides.com/legalresearchdatabases ). Rather than providing an explanation to the citation pattern we found, this claim constitutes a manifestation of the institutional culture that facilitates the citation bias we identify. The comment we received from an AnonymousLawLibrarian (suggesting that U.S. legal academics, unlike equivalent scholars in the social science disciplines, only use Westlaw/Lexis/Hein or in-discipline journal research) seems to support our interpretation.

We think that this citation pattern is epistemically problematic because it hinders the flow of ideas. Further (and independently of the question of whether or not we are right in describing it as a tacit cartel) it can also influence the journals’ ranking. I will discuss this latter question in my next post.  

Posted by Oren Perez on September 12, 2018 at 02:10 PM in Article Spotlight, Howard Wasserman, Law Review Review, Legal Theory | Permalink | Comments (7)

Insights on Online Teaching

Despite the trend towards increasing online offerings for law students, research reveals few articles that assess teaching and learning in asynchronous courses in the law school environment.   

My colleague Yvonne Dutton and I have sought to fill in this void with a multi-year study that assesses the quality of asynchronous online teaching and learning in the law school context using student perception data in the form of 1) focus groups and 2) coded mid-semester surveys from several online courses.

We share the results in a forthcoming Denver Law Review article.  Our data gathered from students who have taken online courses at IU McKinney supports a conclusion that students not only want more online offerings, but that online classes can deliver the same quality learning experience as can quality live classes.

Specifically, our data reveal several key findings.  First, students appreciate an online course that is organized in the way it presents material and assignments.  Second, students equate a quality online course with one that engages students with course content—for example, through short, but interesting and focused lectures.  Third, students associate quality online courses with those that involve regular assessment (especially practice-ready assignments) and professor feedback.

Feel free to read the details and nuances of our findings here.

Posted by Margaret Ryznar on September 12, 2018 at 11:30 AM | Permalink | Comments (0)

Tuesday, September 11, 2018

Injunction Authority Clarification Act of 2018

Introduced by House Judiciary Chair Bob Goodlatte (who miraculously discovered the constitutional command for particularized injunctions on January 20, 2017), the bill prohibits "an order that purports to restrain the enforcement against a non-party of any statute, regulation, order, or similar authority, unless the non-party is represented by a party acting in a representative capacity pursuant to the Federal Rules of Civil Procedure."

Goodlatte's conversion of partisan convenience aside, it is a good bill. It addresses and eliminates the real problem of non-party protection, without conflating distinct and non-problematic issues of geographic scope (by controlling venue) or source (by pushing cases to three-judge district courts). It leaves broad relief available through 23(b)(2) injunctive class actions. And it does not purport to change the Court's standard for the scope of an injunction--commensurate with the violation and no more burdensome than necessary to provide complete relief; the bill thus should continue to allow broad systemic injunctions where remedies are indivisible (e.g., legislative redistricting or religious displays) or where relief to the non-party is necessary for the plaintiff to obtain complete relief.

And on one old scholarly note--I am glad the bill does not speak of jurisdiction but of remedy, which should be a non-jurisdictional merits-related issue.

Posted by Howard Wasserman on September 11, 2018 at 07:13 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Sunday, September 09, 2018

Since 1892

The University of Chicago pioneered distance education back in 1892, almost a century before the internet became publicly available, which involved mailing course materials and traveling lecturers.  The same reasons for UChicago’s distance learning, such as increasing access to education, have fueled modern-day distance education, which is also facilitated by technological advances. 

This summer, the ABA passed a proposal to expand the amount of online instruction permitted in law schools from 15 credits to 30 credits.  A review of law school websites as of July 2018 reveals that 30 of the top 100 US News law schools are offering online courses.  Some law schools even offer fully-online law degrees, while others offer hybrid programs where some coursework is completed online and some in the classroom. 

My law school, Indiana University Robert H. McKinney School of Law, is among those wading into online teaching and learning.  As we have introduced online classes at McKinney, we have been careful to follow the literature on best practices as well as to engage with each other and experts in the field.  We even had an IU symposium on online teaching last summer, which resulted in contributions published in the Indiana Law Review, available here.

My own contribution to this symposium is relevant not only to online teaching pedagogy, but also to assessing students, which both the ABA and Carnegie Report have emphasized.  Specifically, after receiving IRB approval, I conducted an empirical study of student attitudes in 3 semesters of my online Trusts & Estates course—spanning approximately 280 students—to formative assessments, with the results consistent with prior studies of online course design.  I did so through a mid-semester course evaluation asking about their favorite and least favorite ungraded assessments in the course, which consisted of discussion boards, quizzes (mostly multiple choice), polls, or sample essays & answers.  These mid-semester surveys were later coded and analyzed.  

The results were consistent.  Each semester, most students reported that their favorite assessment was quizzes, and their least favorite was discussion boards.  In their comments, students elaborated that they liked that quizzes provided immediate feedback on their progress on the material, while they didn’t like the redundancy of the discussion board and the lack of immediate feedback. 

As assessments increasingly take center stage in the law school classroom, both online and live, I hope these results are useful to fellow colleagues.

Posted by Margaret Ryznar on September 9, 2018 at 11:37 AM | Permalink | Comments (0)

Saturday, September 08, 2018

Bad TV presentation of law (a weekly series?)

This is my weekly post on how some TV show messed up something law-related.This week: Ozark.

A character is arrested after getting into a car accident while under the influence of drugs She is arrested and charged with DUI, possession, and reckless endangerment. An officer trying to get the character to become a CI tells her that she is subject the three-strikes law because she was charged with three crimes and will go to jail for life.

That is not how three-strikes laws works. If it were, every defendant would be subject to a life sentence, because a prosecutor can always find three criminal statutes violated in one conduct, transaction, or occurrence.

It was  throwaway, but it reflected uninformed, lazy writing. Of course, I thought the entire character arc was lazy, having out-of-character behavior to serve the needs of the plot. Getting a bit of law wrong in service of a stupid character development is the lesser-included offense.


Posted by Howard Wasserman on September 8, 2018 at 11:07 AM in Culture, Howard Wasserman | Permalink | Comments (2)

Elected Prosecutors and Non-Prosecution Policies

Rachel Rollins is likely to be the next district attorney in Suffolk County, Massachusetts.  She recently won the democratic primary, and she is not facing a Republican challenger in the general election.  Rollins is a reform-minded candidate, and so her win has caused a bit of a stir.  Rollins is also causing a stir because she recently released a list of crimes that she says she will decline to prosecute if elected.  The list includes larceny under $250, receiving stolen property, disorderly conduct, and other charges.

If you had asked me ten years ago what I thought about a prosecutor making a public announcement about all of the crimes she would not prosecute, I would have been extremely critical.  In particular, I would have said that prosecutors have a duty is to enforce the laws, and policies of non-enforcement conflict with that duty.  Just as decisions about what to criminalize belong to legislatures, I would have said, so too do decriminalization decisions belong to legislatures, not prosecutors.  But having spent time studying the relationship between criminal justice institutions, I am much less critical of Rollins’ announcement.  In particular, I no longer think that decriminalization decisions are reserved for the legislature.

To be clear, my point about decriminalization is a descriptive one, not necessarily a normative one.  Legislatures have—to a significant extent—delegated the scope of criminal law to prosecutors.  Legislatures have done so by writing overly broad criminal laws.  Legislatures write overly broad laws knowing that prosecutors will not prosecute all behavior that falls within the statutory text.  Prosecutors will make their own decisions about the circumstances under which to prosecute crimes.  In other words, prosecutors are free to decide what conduct to treat as legal and what to treat as permissible.  We got a glimpse of that decision-making when James Comey explained to Congress that, even if Hillary Clinton’s behavior fell within the text of a federal criminal statute, it did not meet the criteria that DOJ uses for actually bringing charges in such cases.

The sheer number of crimes also delegates questions about the scope of criminal law to prosecutors.  Resource constraints make it impossible for prosecutors to bring charges against everyone who commits a crime.  As a result, district attorneys have to make decisions about which crimes to prioritize and which crimes to deprioritize.

Some might respond that there is a difference between making enforcement decisions in the context of individual cases and making enforcement decisions ex ante about an entire category of cases.  But I don’t see the appeal of that argument.  The elected district attorney is the individual who has been empowered to make these important decisions.  So one hopes that she is making those decisions in the context of a general office-wide policy, rather than leaving the decision to line prosecutors in individual cases.  Line prosecutors may have different priorities, and case-by-case decisions would doubtlessly lead to inconsistent decisions.

Some might also object that, even if an elected prosecutor has formal policies about what charges not to bring, she should not announce those policies to the public.  If I know, for example, that my district attorney is not going to prosecute larceny of goods under $250, then (so the argument goes) I will feel free to steal items that cost less.  (Meir Dan-Cohen fans will recognize that argument as one of acoustic separation.)

Even assuming that such public announcements decrease deterrence—and I am uncertain whether they do—public announcements have a significant benefits  :  For example, public announcements can help ensure that law enforcement won’t enforce these laws in an arbitrary or discriminatory fashion.  One major problem with overly broad laws or rarely enforced laws is that they can be used as a pretext for racial discrimination or other animus.  In this respect, overly broad laws and rarely enforced laws are similar to vague laws

Most importantly, public announcements make prosecutors democratically accountable for their enforcement policies.  Unannounced policies do not allow the public to make informed voting decisions or to give feedback to elected prosecutors about how they have chosen to enforce the criminal laws.  But in announcing this list of crimes, Rollins has ensured some measure of legitimacy and accountability for her decisions. 

I am sure that at least some people will read this post and think that it has failed to fully justify or defend a practice of categorical non-enforcement.  There are very intelligent people who have argued against categorical non-enforcement.   In an ideal world, I would probably agree that legislatures should make all criminalization and decriminalization decisions.  In such a world, legislatures would write narrowly targeted criminal laws and would not criminalize more behavior than the system could reasonably prosecute and punish.  But that is not the world we live in.  Since legislatures have decided to delegate significant questions about the scope of criminal law to prosecutors, prosecutors should answer those questions in a transparent and accountable fashion.  That is what Rachel Rollins has done here.

Posted by Carissa Byrne Hessick on September 8, 2018 at 09:37 AM in Carissa Byrne Hessick, Criminal Law, Law and Politics | Permalink | Comments (14)

Friday, September 07, 2018

ICYMI: Ten (okay, Nineteen) Tips for New Law Professors

I wrote this a while ago and offer it again in case it may be of use.

1.  Begin a little more strictly than you mean to go on.  If you start out strict and stern, you have room to lighten up. If you start out lax, you will pay a real price if you need to impose order later on.

2.  If you put a policy in the syllabus, stick to it even if you think you might have been wrong.  I learned this the hard way.  The first time I taught Professional Responsibility, I stated in the syllabus and in class that the exam would be a two-hour exam.  After I wrote it, I decided it was a bit too hard and I would be "nice" and give them an extra hour to complete it.  I had a young woman in my office 30 minute before the exam so angry I thought she would spit on me. I told her she was welcome to finish in two hours instead of three, but that didn't placate her. I finally told her she'd have to take it up with the associate dean, and I'll be damned if she didn't march down there and do just that.  Thankfully, he backed me up, but I never again made a major policy shift midstream.  She wasn't the only disgruntled student that day, either.

 3. Put everything you can think of in the syllabus, even things that should go without saying.  For example, if you are teaching a seminar, you should consider a policy stating that plagiarism is a ground for failing the course, and you should have an extended explanation in the syllabus explaining what plagiarism is.  You might think that everyone accepted to law school already knows what plagiarism is, but you would be wrong.  More importantly, by explaining what plagiarism is in the syllabus, you deprive the student of the ARGUMENT that s/he didn't know s/he was committing plagiarism.  Another example of something you might want to put in the syllabus is a statement that it is rude and disruptive to come late to class, to come and go during class, or to leave class early without notifying the professor beforehand.  Frankly, I'm not sure I realized how distracting these habits are before I started teaching, and many of your students won't, either.

 4. "Don't be moody." 

This is a piece of advice I received early on from a relatively new law teacher, and it has always stuck in my head. The person who gave me the advice was male, and he evidently had gotten burned  by violating it.  What the advice boils down to, I think, is that students desparately need you to be predictable. It is comforting to them when they know roughly what to expect each day. 

5. Students decide very, very quickly whether you're on their side or not. If they decide you are, they will forgive a multitude of mistakes. If they decide you're not, nothing you do will be right.  I've been teaching for 19 years, and I only had one class that hated me.  They decided early on that I was mean, and everything I did provided confirmation.  They even hated how I started the class and what I wore. (I'd given birth the month before the class started, and my wardrobe was limited). Frankly, I grew to dislike most of them, too.  However, in telling this story, I'm violating the next tip in my list.

6. Be careful about generalizing how "the class" feels.  A communications researcher would probably insist that, in fact, there is no such thing as a "class." (See Ien Ang).  Instead, a "class" is a collection of individuals with disparate needs and interests and judgments about the classroom experience.  That said, it is easy to assume that outspoken students represent the feelings of the entire group.  It so happens that what I think of as "the class that hated me" (discussed above) included two especially delightful students, who took one of the most fun Media Law classes I ever taught. I still keep in touch with them even though they graduated more than a decade ago.

7. Watch out for group dynamics.  Let's say you have a student who is engaging in disruptive behavior. You may be tempted to call the student out for his or her behavior in front of the whole class, but this is usually a bad idea.  Even if other students started out being annoyed at the disruptive student, they may turn on you if you come down too harshly on the student or make him lose face. What should you do instead? I use what I call "class regulation by raised eyebrow."  For example, if a student is late, I may visibly lose my train of thought and stare at him with a completely blank expression on my face for a few seconds--just long enough to be socially awkward.  That does the trick 99 percent of the time.  If you try informal means of "discipline" and they don't work, however, the next step is to call the student into your office. The student won't lose face, and you won't run the risk of having the entire class turn against you for being "mean."

8. Try not to project insecurity. In other words, fake it until you make it.  Although you may be tempted to reveal to the class that you are brand new or are learning the material for the first time, you certainly don't have to and some would argue you shouldn't.  Remember that the students are lucky to have a teacher who is energetic and curious and enthusiastic and can reach them at their level.  Also remember that as little as you think you know, you still can read a case far better than even your brightest student.  So project confidence, but . . . [see next rule.]

9. When you make mistakes, fix them.  When I first taught Torts, I slept with the Prosser & Keeton hornbook by my bedside.  I would wake up in the middle of the night thinking "what if they ask me X?" I would then flip through Prosser & Keeton, read it, perhaps even take notes, and then go back to sleep.  I realize now that every first-time teacher makes mistakes; it is just a question of how you handle them.  Sometimes you will just have to say, "I don't know. Let me research that and get back to you tomorrow." [But make sure you have the answer when you promised it.]   One classic dodge is to say:  "Hold that question. We'll get to that later in the class (or tomorrow or next week)." [Make sure you research the answer and come back to it when you said you would.]  If you realize you didn't explain something well or your explanation was misleading, one way to handle it is to say at the start of next class:  "I'd like to begin by clarifying X that we were discussing yesterday." [Then give your 5-10 minute summary/totally correct explanation.]  Occasionally, you will realize that you said something completely wrong and you will just have to apologize and fix it. As consolation, remember that you are modelling for them how to handle mistakes, and it may be one of the most valuable lessons you can teach future lawyers.  Law is a complicated business, and we all make mistakes from time to time no matter how hard we try or how smart we are.

10.  Trade-offs are inevitable.  More depth or more coverage? Encourage participation and intellectual curiosity, or hew to an organizational scheme?  Stick to your syllabus, or spend more time on the things the class seems interested in or doesn't understand readily? There are lots of other trade-offs of this sort that you'll have to make and then re-make when you realize you've tilted the balance too far toward one value at the expense of another.

11. Make ideas "sticky." Try to come up with ways to make the material you teach memorable.  Silly is sticky.  Graphics (pictures, drawings on the board) are sticky. Funny is sticky. Music is sticky. My Trusts and Estates professor even danced on the table to reinforce a principle, and I remember it (the dancing) twenty years later.  The principle had something to do with whether separate property acquired after the marriage becomes community property or not.  Okay, so the idea wasn't that sticky, but my point still holds.

12. Use the board more than you think you need to. It helps keep the class structured, and it helps the visual learners in the class.   Conversely, use Power Point less than you think you need to.   Power Point is good for pictures and videos, and it can be used to examine closely the text of a rule or to convey highly detailed and technical material through lecture.  Do NOT put giant blocks of text on Power Point and then simply read to the class from the slides. EVER.   

13. It's not about you; it's about the students. Try to keep their needs foremost, instead of your own desire for ego gratification or anything else.  

14. Keep a degree of formal distance between you and your students.  You can treat them like future colleagues, but you cannot be friends with students until they have left your class.  Your role requires you to sit in judgment of your students when you grade them, and that role can be compromised if you don't maintain formal distance.

15. Never use the same exam twice!!  Violate this rule at your extreme peril.

16. Ask colleagues for advice, but remember you don't have to take all the advice you receive.

17. You will teach a class best the third time you teach it.

18. If you are teaching a large class and don't feel that voice projection is one of your gifts, consider wearing a microphone. This tip was shared by my anonymous source. I've never had this problem, but I've heard plenty of complaints from students about being unable to hear some of my colleagues. It is impossible to be an effective teacher if the students cannot hear you.

19. Consider wearing a suit. Even if you don't plan to wear it forever, it may help as a crutch for faking it until you make it and can help you maintain some formal distance from the students. This tip also came from my anonymous source, but I fully concur. I don't wear a suit every single day now, but I believe in signalling I take the endeavor seriously by dressing professionally.

Posted by Lyrissa Lidsky on September 7, 2018 at 11:56 AM in Lyrissa Lidsky, Teaching Law | Permalink | Comments (12)

JOTWELL: Smith on Tang on the role of political power in judicial review

The new Courts Law essay comes from Fred Smith, Jr. (Emory), reviewing Aaron Tang, Rethinking Political Power in Judicial Review (Cal. L. Rev., forthcoming), arguing that courts should be less willing to invalidate laws that burden the politically powerful, a new corollary to the longstanding political-process idea that courts be more willing to invalidate laws that burden the powerless.

Posted by Howard Wasserman on September 7, 2018 at 11:47 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Save the Date for AALS Panel on January 5, 2019: Promises & Pitfalls of Technology in Dispute Resolution

On January 5th, 2019, a three-hour panel entitled “Promises and Pitfalls of Technology in Dispute Resolution” will feature the top minds in the field of Online Dispute Resolution. The speakers will examine the intersections of dispute resolution and technology on a broader scale. Panel members will discuss how technology, including AI, blockchain, smart contracts, and the like, are affecting dispute resolution. 

Speakers includes:

Professor Alyson Carrel (Northwestern)

Professor Noam Ebner (Creighton)

Professor Ethan Katsh (National Center for Technology and Dispute Resolution)

Professor Dave Larson (Mitchell Hamline)

Professor Jan Martinez (Stanford)

Peter Reilly (Texas A&M) (Moderator)

Mr. Colin Rule (Tyler Technologies)

Professor Amy Schmitz (Missouri)

Professor Jean Sternlight (UNLV)


As Dean of the University of Missouri School of Law, I'm proud to announce that the speakers' papers presented at this AALS panel will be published in a special symposium edition of our Journal of Dispute Resolution. Professor Amy Schmitz of the University of Missouri and Peter O'Reilly of Texas A&M worked together to lay the foundation for this innovative panel and symposium issue.  It is sponsored by the “Litigation” and the “Technology, Law and Legal Education” sections of the AALS.

Posted by Lyrissa Lidsky on September 7, 2018 at 11:29 AM in Lyrissa Lidsky, Symposium, Web/Tech | Permalink | Comments (0)

Robot Love

Meet Sophia—a Saudi Arabian citizen with a wicked sense of humor.  She has an expressive face and blue eyes.  Flaunting her charm, Sophia has made the TV media rounds and graced magazine covers, even going on a date with Will Smith.  Sophia just happens to be a social humanoid robot developed by Hong Kong-based company Hanson Robotics. 

Robots have rapidly developed in recent years to improve people’s quality of life and welfare.  They offer companionship and assistance around the house, such as vacuuming floors and weeding gardens.  Future robots will be able to cook.  There are sex robots and those that offer companionship.   If these traits are combined in one robot, it will embody the reason that many people marry in the United States.

The line between human and machine is still too bright for humans to marry robots.  However, computer scientists have been working around the clock to develop a sophisticated humanoid robot that would be marriageable, both in terms of physical and mental attributes.  These scientists want to create robots that learn by imitating humans, as opposed to the current artificial intelligence that simply recognizes patterns.  For example, the Massachusetts Institute of Technology (MIT) announced in February 2018 the launch of a new initiative aimed at producing better artificial intelligence.  One goal is to produce robots that learn like children and then develop into human adult thinking. 

When they do, robots may seem appealing as we continue to struggle with human relationships in the age of technology.  The Economist just ran an article on how lonely people have become, and how robots have started to fill the void. 

On the other hand, MIT Professor Sherry Turkle had an opinion piece in the New York Times last month titled “There Will Never Be an Age of Artificial Intimacy.”  She writes, “Now, science goes a step further and presents us with artificial intimacy, yet another form of A.I. Again, this is an intimacy that does not make room for human empathy or what human beings in their bodies experience as the fear of death, loneliness, illness, pain. We diminish as the seeming empathy of the machine increases. It is technology forcing us to forget what we know about life.”

Who’s right?  Either way, it’s interesting to think about the family law implications of marriage to robots.  In a forthcoming Seton Hall Law Review article, I point out all the nuances of it, and note the information that we need to know to make the family law work.  If you’re interested, read it here

Posted by Margaret Ryznar on September 7, 2018 at 05:00 AM | Permalink | Comments (6)

Thursday, September 06, 2018

Ministerial exemption as a mandatory merits defense

I have thought much about the jurisdictional status of the ministerial exemption since SCOTUS decided (correctly) in Hosanna-Tabor that the exemption was a merits-based affirmative defense and not a limit on the court's jurisdiction.

But that makes footnote 4 of this Third Circuit case a bit strange. The court held that the ministerial exemption barred a pastor's breach-of-contract claim, granting summary judgment for the Church on exemption grounds, even though the pastor was the one who moved for summary judgment and the Church never raised the defense. The court noted the following:

The ministerial exception is an affirmative defense. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171 , 195 n.4, 132 S. Ct. 694 , 181 L. Ed. 2d 650 (2012) (stating that the ministerial exception "operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar"). Although the District Court, not the Church, first raised the ministerial exception, the Church is not deemed to have waived it because the exception is rooted in constitutional limits on judicial authority. See EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 , 581-82 (6th Cir. 2018) (holding that a defendant "has not waived the ministerial-exception by failing to raise it . . . because '[t]his constitutional protection is . . . structural'" (citation omitted)); Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829 , 836 (6th Cir. 2015) (explaining that Hosanna-Tabor's rationale for recognizing the ministerial exception establishes that "the Constitution does not permit private parties to waive the First Amendment 's ministerial exception" because "[t]he constitutional protection is not only a personal one; it is a structural one that categorically prohibits federal and state governments from becoming involved in religious leadership disputes"). Moreover, Lee did not argue before the District Court that the Church waived the defense. Therefore, it was appropriate for the District Court to consider the ministerial exception.

Hosanna stated that the ministerial exemption is not a jurisdictional bar. But the second sentence contradicts that by describing it as "rooted in constitutional limits on judicial authority"--which is the definition of a jurisdictional bar. Rather, we should think of the exemption as a  mandatory merits defense--although a limit on substantive merits, it has a structural basis and thus cannot be waived. As Scott Dodson has argued, mandatoriness or non-waivability is a consequence, not a defining characteristic--some defenses can be so important as to be non-waivable, even if they go to merits and have nothing to do with adjudicative jurisdiction.

Posted by Howard Wasserman on September 6, 2018 at 11:55 AM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (7)

In search of Deep Throat

The greatest disappointment about the anonymous NYT op-ed? We have a corrupt and scandal-plagued administration and an anonymous source talking publicly, but no good porn movies after which to name that anonymous source. Perhaps something off Stormy Daniels' IMDB page.

Posted by Howard Wasserman on September 6, 2018 at 08:52 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, September 05, 2018

A Closer Look at Medical Education—the role early licensing exams play in constructing a curriculum

Before we really know what law schools could borrow from medical schools and what we can’t, it is critical to understand how very different our two enterprises are.   Medical schools have access to resources of which we can only dream (they are profitable).   Also, medical education is far from flawless—there are issues, especially in the second two years, of bullying and systemic racism that are very troubling.  Finally, the phenomena of medical students not attending class is old news—although some schools have responded with very impressive creative solutions like self-directed learning to making class time more valuable.  Moreover, a focus on U.S. Medical Schools  alone is misleading given how my physicians practicing in the U.S. attended allopathic or foreign medical schools.

 The purpose of these posts, though, continues to be introducing how other disciplines use research data to evaluate and develop curricular innovations—and if you’d like to know about that without further talk of medical education have a look here and here.

Let’s start an issue close to all of our hearts—licensing exams.   Medical students start taking licensing exams while they are in school.  The United States Medical Licensing Examination (USLME) has three parts (steps).

Passage at each step is mandatory for continuation of medical studies.  The first exam comes after two years.  At four years, when they graduate, they must pass a two part second exam after which they are licensed to practice only under supervision and, finally, they must pass a third test before they can be fully licensed. 

Who writes exams?  A company that is owned by the Federation of State Medical Board  (“FSMB).   Like lawyers physicians must be licensed by the state in which they practice but unlike lawyers, these licensing boards have come together in developing a uniform licensing exam.

And it’s not coincidental that the need to pass two licensing exams while in medical school focuses the curriculum towards the more practical aspects of practicing medicine.  Have a look at FSMB’s mission-- “70 Boards. One Mission. FSMB supports America’s state medical boards in licensing, disciplining and regulating physicians and other healthcare professionals. Our end goal: keep patients safe.”   

Because these exams have come during medical school as far back as the living memory of anyone practicing medicine, the idea that the medical school curriculum would ignore them has never had the hold on academic medicine the way it has in the legal academy.  It’s not that anyone believes that the contents of the exam are the most important or certainly most interesting part of practicing medicine (look  here, herehttps://www.ncbi.nlm.nih.gov/pmc/articles/PMC1681601/, and herehttps://www.stfm.org/fmhub/fm2008/September/John574.pdf)—it’s that there can be no practice of medicine without passing them.  And even more so, because failure rates are very low, the score students achieve on these exams (which they can only take once if they pass) are critical to their chances of getting a desirable residency slot.

So, like it or not, Medical Schools have to confront licensure exams while students are in school whereas we legal academics do not have this direct exposure.  The USMLE’s emphasis on patient safety orients the first four years of medical school’s curriculum towards issues that are most likely to come up in practice (with its fair share of “gotchas” to keep things interesting).  Neither the finer points of neurosurgery or heart transplantation are tested in Step https://www.boardvitals.com/blog/9-things-to-know-before-taking-usmle-step-1-exam/1 or Step 2https://www.usmlepro.com/single-post/How-to-Score-a-280-on-Step-2-CK.  Yet the first four years of medical school are hardly one long exam prep session.  Medical school professors also like to teach students about complex problems with no easy answers. (and students often complain there is not enough focus on the boards).

In contrast, law school curriculums, even in first year mandatory courses, often  privilege the most difficult problems that make their way to appellate courts.   We have also designed a curriculum where the most heavily tested subjects are taught years in advance of the exam-and likely never referred to again until the students begin bar preparation after graduation.

As noted in the beginning, the differences between law and medical schools make drawing on the nose analogies or facile comparisons a waste of time and resources.   But by understanding the differences and seeing how medical schools have applied research findings to solving their curricular issues we can benefit from knowing more about what they and indeed what all our colleagues in higher education are doing to enhance the education of their students.

Going forward, I will look more closely at issues like how medical schools prepare students for these licensing exams, how the MCAT has changed with the change in medical school curriculums, and what efforts are being made to reduce the cost (and length) of medical school.



Posted by Jennifer Bard on September 5, 2018 at 03:09 PM | Permalink | Comments (0)

I wanna be a billionaire so freakin’ bad --Bruno Mars

But I never got into bitcoin, so I missed the whole bitcoin billionaire boat.  Since late 2017, however, you too can get into the bitcoin game through bitcoin futures without touching the underlying cryptocurrency, if you dare.

Futures generally contribute to systemic risk because they multiply losses and rewards, but distinctive features of bitcoin futures raise concerns.  For example, bitcoin as a currency is not regulated like stocks and futures.  Such lighter regulation may allow for price manipulation.  There are also concerns about a bitcoin bubble.  This all contributes to bitcoin's volatility.

Bitcoin futures are still limited in number, which keeps their risk to the economy limited.   Earlier this year, for example, volumes in bitcoin futures at CME only averaged about 1,000 contracts per day.  However, their number can only grow to cause severe risk to the financial markets.

After considering their risks in a forthcoming Houston article, I offer several regulatory solutions in this new context.  I’m not sure the CFTC needs to ban them, however, like South Korea did.  Instead, one risk management option is to put a limit on the number of positions that may be held by any person.  Another is to require bitcoin futures traders to post significant margin deposits, which is collateral posted to protect the clearinghouse (the middleman in the trade) in the case of default.  Third, separate guarantee funds can be introduced for these trades to minimize the risk of clearinghouse insolvency.  In other words, the party who brings the risk should pay for the risk.  Fourth, tress testing should continue to be used in the bitcoin context by stress testing the positions at the clearinghouses. Finally, cybersecurity regulation should be considered related to bitcoin given its digital nature. 

Anything I’m missing?   

Posted by Margaret Ryznar on September 5, 2018 at 11:05 AM | Permalink | Comments (4)

Joint reponse to comments on the cartel post

Many thanks for all who have responded to my earlier post

We are very familiar with citation practices of US scholars but the purpose of the article was to try and think about them - also going beyond intuitions. I will make 2 quick points in response.

First, it is a valid question to ask how to distinguish between citation cartels and epistemically-driven scientific communities. From a network-topological perspective, these two forms of clustering seem indistinguishable: both constitute a group of nodes (which may represent scholars, institutions, or journals) that are more highly connected to each other than to the rest of the scientific world. Our argument - and I will try to give the detailed argument (which appears in the paper) in a later post - is that the kind of closure we see in US law reviews (the quantitative analysis can be found in the paper) cannot be defended on epistemic grounds. For example, one could argue that the reason for that greater closure is that US law reviews focus on domestic law. However, U.S. law journals have been criticized over the past few years for being too theoretical and for not displaying the right balance between theory and doctrine (e.g. Harry T. Edwards, ‘Another Look at Professor Rodell's "Goodbye to Law Reviews’ (2014)). They have also become increasingly more interdisciplinary (e.g., George L. Priest, ‘The Growth of Interdisciplinary Research and the Industrial Structure of the Production of Legal Ideas: A Reply to Judge Edwards’). If this is the case, the work that is published in PR journals - in the 'law and genre' - should be relevant for the work published in US generalist journals. If U.S. scholars do not cite articles in PR journals they might be losing good ideas. I think this point was missing from the responses.  

My second point is that we are also trying to make a general argument about the risks of relying on rankings as a way to judge quality of research. Part of our objective is to expose some of the problems with the current practice of lumping the 2 categories together. I will further reflect on that in future posts.

Posted by Oren Perez on September 5, 2018 at 10:35 AM | Permalink | Comments (4)

Tacit Citation Cartel Between U.S. Law Reviews

In my previous post I discussed the various metrics that are being used to measure law schools and legal journals. One of the difficulties with these metrics is the perverse incentives they may create for both authors, research institutions, and journals to use various manipulating techniques in order to elevate their scores. Examples of manipulating strategies include the publication of editorials with many journal self-citations, coercive journal self-citation, and citation cartels (Phil Davis, ‘The Emergence of a Citation Cartel’ (2012)). There have been several conspicuous cases of citation cartels, which have been widely discussed in the literature. Particularly notorious was the case of several Brazilian journals that have published articles containing hundreds of references to papers in each other’s journals in order to raise their journals’ impact factors (Richard Van Noorden, ‘Brazilian Citation Scheme Outed’ (2013)). We distinguish in the paper between explicit citation cartels, in which the cross-citations are a product of explicit agreement between editors or scholars and tacit citation cartel. In the latter case the citation dynamics may be a product of tacit cultural and institutional habits. Both tacit and explicit citation cartels should be distinguished from epistemically-driven scientific communities. Although tacit citation cartels do not carry the same immoral connotations as explicit citation cartels, they have similar adverse effects, especially given the increasing influence of the impact factor in the evaluation of research quality. By (artificially) elevating the scores of some journals and disciplines over others, they may distort the publication choices of scientists, and consequently may impede the creation of ideas.

The challenge for the metrics industry then is to develop ways to detect and respond to both tacit and explicit citation cartels. In our paper ‘The Network of Law Reviews: Citation Cartels, Scientific Communities, and Journal Rankings’ (Modern Law Review) (with Judit Bar-Ilan, Reuven Cohen and Nir Schreiber) we examined the ranking of law journals in Journal Citation Reports focusing on the question of the existence of tacit citation cartels in law. We studied a sample of 90 journals included in the category of Law in the JCR: 45 U.S. student-edited (SE) and 45 peer-reviewed (PR) journals. The sample, which amounts to 60% of all legal journals in JCR, included the most prestigious PR and SE journals (e.g., Harvard Law Review, Yale Law Journal, Columbia Law Review, Journal of Legal Studies, Oxford Journal of Legal Studies, Modern Law Review). The number of papers published by both SE and PR journals in our sample is nearly identical (47.8% of the articles were published in PR vs. 52.2% in SE journals). There are huge differences, however, in the total number of references and in the number of references per article. The SE journals produced in 2015 overall 3 times more references than the PR journals. The mean number of references in SE articles is 2.5 times higher.

We found, using both statistical analysis and network analysis that PR and SE journals are more inclined to cite members of their own class, forming two separated communities. You can find the citation graph here. Close analysis revealed that this phenomenon is more pronounced in SE journals, especially generalist ones. We found that SE generalist journals, direct and receive most of their citations to and from SE journals. This tendency reflects, we argue, a tacit cartelistic behavior, which is a product of deeply entrenched institutional and cultural structures within the U.S. legal academia. Because the mean number of references in SE articles is 2.5 times higher than in articles published in PR journals, the fact that their citations are directed almost exclusively to SE journals elevates their ranking in the Journal Citation Reports in a way that distorts the structure of the ranking. In the next post I will demonstrate the implications of this finding on the journal ranking in JCR. In further posts I will also consider some potential explanations and counter-arguments associated with this result.

Posted by Oren Perez on September 5, 2018 at 01:35 AM in Article Spotlight, Information and Technology, Life of Law Schools | Permalink | Comments (15)

Tuesday, September 04, 2018

Careers over Jobs

There is a recent book I loved "An Intelligent Career: Taking Ownership of your Work and Your Life" by Michael Arthur, Svetlana Khapova and Julia Richardson. It's about how to make the most of the inevitable changes of technologies, globalization of professional networks, and new patterns of employment. Over the weekend, one of the book's coauthors Michael Arthur, a business school professor in Massachusetts, wrote this is insightful article in Forbes. It discusses the new law in Massachusetts that limits the reach of non-competes. Arthur describes this reform as a win for investors and innovation, not just workers. He draws on the works of Nobel Laureate Elinor Ostrom, Information Scholar Annalee Saxenian, and my work on non-competes. here is an excerpt from the Forbes article

Does your talent want to be free?

The heading above borrows from the title of University of San Diego Professor Orly Lobel’s book Talent Wants to be Free. Her subtitle goes on to assert “why we should love leaks, raids, and free riding.” Her fundamental point is that financial investment in innovation creates human capital investment, and increases the overall talent in an economic system. In turn, your choice of where to invest your own talent contributes to the effectiveness of that system. Any attempt to protect single organizations, with particular axes to grind, fades in comparison to the aggregate benefits to the system as a whole.

All three of Saxenian, Ostrom and Lobel point the way toward a more communicative and innovative world driven by your and other people's career ownership. Are you playing, or can you play, your part?

An Intelligent Career definitely enriched my thinking as an employment law scholar and I am glad to see changes happening on the ground in Massachusetts. 


Posted by Orly Lobel on September 4, 2018 at 06:15 PM | Permalink | Comments (0)

Judge Willett questions qualified immunity

Fifth Circuit Judge Don Willett, a conservative and Trump long-lister for SCOTUS, "concurred dubitante" to question qualified-immunity doctrine in this case. (H/T: Volokh Conspiracy, HTing Josh Blackman). The court found that the Texas Medical Board violated the rights of the plaintiff doctor and two patients in issuing and enforcing administrative subpoenas, but that the right was not clearly established.

Willett derides qualified immunity as a deus ex machina that smacks of "unqualified impunity" by letting officers behave badly so long as they are the first to behave badly. He emphasizes two problems with current doctrine--the inconsistency over how factually similar precedent must be to clearly establish a right and the continued tendency of courts to skip merits and decide the right is not clearly established, thereby depriving plaintiffs of precedent that can be used to clearly establish the right. Requiring a plaintiff to produce identical precedent as courts create less precedent is a catch-22, an Escherian Stairwell, and a heads-defendans-win-tails-plaintiffs-lose situation. Willett joins the growing cross-ideological chorus of judges (including Justices Thomas and Sotomayor, as well as Judge Jack Weinstein) and scholars (Will Baude and Joanna Schwartz) urging recalibration of the doctrine.

On that cross-ideological consensus, it is telling that Willett's statement comes in an ideologically unique case--a regulatory body allegedly overstepping its authority in investigating a licensed professional sounding in the the regulatory over-zealousness that libertarian judges dislike. It does not come in the more frequent (and ideologically different) qualified immunity case case arising from a police officer using excessive force against an unarmed person of color.

Posted by Howard Wasserman on September 4, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

What’s the Fuss about Medical Education-Some Preliminary Thoughts

As some of my readers know, my first job in academe was on the full time faculty of a medical school and since then I’ve always had joint appointments.   I’ve done some writing about the differences here and here.  Like law schools, medical schools face the challenge of turning lay people into professionals in a very short period of time.  Over the month, I will highlight some of the things they do that could work for us.  Notice throughout that medical education articles about teaching techniques are almost always accompanied by research about how they worked compared to alternatives.    In later posts, I will suggest how we could (and why we should) test our curricular innovations so that we can make better decisions about what works—and so that we can make it easier to share effective techniques within our own schools and beyond.   For now, though, it’s important to understand that medical school faculty start ahead of us on this because every medical school has its own office of medical education to support the faculty and , as a profession in itself, these educators produce vast amounts of easily available research studies on what works and what doesn’t.    Here are some examples from  Johns Hopkins, Stanford, Brown, and University of Illinois, but every medical school has one.  And if we could be more meta, here’s some research on their effectiveness. How big is this field of medical education- have a look at an overview of the conference schedule.

This focus on testing what works goes beyond medical schools into the other health professions as well.  So, for example, this article is by a professor of veterinary medicine looking at whether students learn neural anatomy better when they use expensive three-dimensional and digital teaching tools in addition to the traditional dissection and learning methods.  In recap, yes, although the students themselves don’t notice the difference.  The article cites about 50 other articles around the world looking at the same question—all very important when making the decision of where to invest limited resources.  Here’s an overview of the concept of evaluating educational effectiveness. 

Finally, for tonight, medical education has approached the challenge of teaching busy practitioners to be educators in ways that respect the time of volunteers yet maximize the learning experience for students. In particular, they’ve spent considerable time finding ways for students in the first year (or days) of medical school to learn in practice based settings.   This is years before they begin the process of clinical rotations or residencies.

 This article runs through four techniques that practitioners can use to turn what are essentially “shadowing” experiences into teaching.  And here’s the evaluation study. .

--to be continued…..

Posted by Jennifer Bard on September 4, 2018 at 12:07 AM in Teaching Law | Permalink | Comments (0)

Monday, September 03, 2018

Two free expression stories for Labor Day

First, Nike is celebrating the 30th anniversary of its Just Do It campaign. Here is the opening image, with the tag line "Believe in Something. Even if it means sacrificing everything." Good for Nike, which has always mixed its product advertising with political messages. I assume the company calculated the lost sales from the more than half the country that seems to oppose the player protests. Or it has more corporate courage than the NFL. DmMfV2QV4AAF11z


Second, a group called USA Latinx raised almost $ 10,000 in one day to rent this billboard for about $6000. The fundraising effort was helped by Parkland survivor David Hogg, who tweeted about the campaign. The billboard is a response to President Trump's announced plan to come to Texas to hold a rally in a big stadium in support of Ted Cruz's re-election campaign. Several contributors to the GoFundMe campaign urged the group to raise more money to put these ads all over the state.

32614890_1535818206259214_rI presume USA Latinx believes that money is not speech, that corporations have no speech rights, and that Citizens United is the fourth-worst SCOTUS decision ever. Do its leaders realize that this is a campaign expenditure and that they are a corporation or other entity? Do they realize that if money were not speech, there would be no limit on government halting such expenditures? Do they realize that a $ 5000 expenditure limit or a bar on expenditures within 90 days of an election (all perfectly lawful if money is not speech) renders this unlawful?

Posted by Howard Wasserman on September 3, 2018 at 05:48 PM in Culture, First Amendment, Law and Politics, Sports | Permalink | Comments (5)

Lawyering up in the Kavanaugh hearings

I have no intention of watching the national travesty of the Kavanaugh hearings, because nothing he says or does this week will make any difference to his confirmation. (I have in the past employed the common description of this as Kabuki, but I was told by a Japanese scholar that Kabuki, while stylized, is not empty or devoid of meaning, which is what the term is used to describe with respect to hearing).

I am, however, intrigued by this idea of hiring counsel to handle questioning, getting a lawyer with the skill and expertise to ask meaningful questions of witnesses and force them to give answers, rather than the word salad that passes for dialogue between Senators who lack the knowledge, training, and skill to perform the task and witnesses with no desire (or practical obligation) to answer. The historical examples the article provides (Watergate, Iran-Contra, Army-McCarthy) were investigatory hearings rather than confirmation hearings, so the need for cross examination and adverseness was clear. But the point remains--hired counsel would be much better able to perform the task. How much better might the exchange be if the Democrats hired Marty Lederman or Seth Waxman or Republicans in the future were to hire David Bernstein or Paul Clement to have a genuine constitutional dialogue?

Update: The author of the article is David A. Kaplan, author of the new book The Most Dangerous Branch: Inside the Supreme Court's Assault on the Constitution and a guest on this week's First Mondays podcast. Kaplan argues that the Court should be less interventionist (he interviewed several Justices, who referred to him as "Felix"), including urging the argument that the public should understood SCOTUS decisions as resolving a case for past parties but not necessarily for future parties. I like the second part of that.

Posted by Howard Wasserman on September 3, 2018 at 02:54 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

A Personal Law Review Article Submission Narrative

0dc3c821-583e-4983-87ce-a89c1b7bef6b-originalBefore the end of the month, I mentioned to Howard the possibility I would have one more thing to say about what has become a theme this summer: the folkways of career advancement in legal academia and, in particular, the angst around law review submissions.  I recognize that my circumstances may not match anybody else's - I have a job, tenure, and I'm too old and sedentary to be thinking about lateral moves.  But, for what it's worth and with the consent of the editor of the journal in which I've just agreed to publish an article, I'm going to offer here a narrative about the submission process. 

My project this summer was a thought experiment that looked at the current embodiments of "smart contracts" - crypto-currencies as well as systems of legal documentation that can operate on blockchain technology - and considered what it would take for a traditionally negotiated complex and bespoke agreement to be "smart" in the same way.  (The title is a clue to the conclusion:  The Persistence of "Dumb" Contracts.).  I finished it to the point of public consumption and posted it on SSRN on June 25.  All things considered, it did pretty well there.  It's up to 222 downloads as of this morning, and made a bunch of the SSRN "Top Ten" lists.

In terms of hiring or tenure, it doesn't matter where I publish. I am pretty sophisticated about what is meaningful and what is not in a linear ranking like the US News list. But I'm as susceptible as the next person to the allure of glitzy branding, even if for no reason other than pure ego.  I am not on the faculty at a school whose letterhead sends student law review editors into spasms of fawning sycophancy.  Nor do I think my stuff is easy for student law review editors to assess.  (Dan Markel, of blessed memory, once told me I am "orthogonal" to most debates, something I took as a compliment even though I'm quite sure he didn't mean it that way. I think of it as "anything you can do, I can do meta.") Indeed, I've already noted that I've been asked to "peer review" articles for multiple super-elite flagship law reviews.  Each time I've done it, bitching all the while to my contact articles editors about the fact that my own submissions to their journals don't make it out of the submission inbox.

So, after the break, a short narrative about Persistence's submission odyssey.

As of June 25, I was suffering from the usual self-delusions, sitting on a completed 25,000 word article and thinking that it really did deserve to appear in a very "top" law review (see above).  I knew that submission season didn't begin until August 1 and that the peak for submissions would be roughly mid-August.

I had acted as a peer reviewer for an article in the flagship journal of a very highly ranked law school in the spring (the "XLR").  I contacted directly the XLR senior articles editor with whom I had dealt.  The editor encouraged me to submit when the journal opened on August 1, and said that if I gave a two week exclusive, the journal would guarantee a read of the piece.  That seemed to me a no-lose proposition because it would still allow me to submit in the Scholastica shotgun as of August 15 (by which date, I knew in those brief moments of being tethered to some fashion of cognitive lucidity, XLR would have rejected it).  

In early July, Northwestern announced an early submission period for those willing to give exclusives between July 15 and the end of the month.  Again, that struck me as a no-lose proposition, as upon its inevitable rejection at Northwestern, I could submit it to XLR as of August 1.  The inevitable Northwestern rejection came (a day early), and the piece duly went off to the XLR.  I related the story of its sojourn at the XLR here.  Suffice it to say that, as of the evening of August 14, I was ready to do the Scholastica thing.

Off it went in the wee hours of August 15 with a CV and a cover letter (including the classic sentences: "Let me put this bluntly.  Please put aside the usual heuristics based upon the letterhead of the submitting author.").  As I've noted, my peeve is submitting to journals and not being prepared to accept offers if they are the only ones you get.  On the first pass, I decided to do flagship journals of USNWR top 50 schools and two "specialties," the Columbia Business Law Review and the NYU Journal of Law & Business.  When I woke up in the morning, I had a few minutes of post-Nespresso clarity, after which I added submissions to the flagship journals of top 100 USNWR schools. I also decided, since I had submitted to specialty journals at Columbia and NYU, I'd submit to one "elite school" specialty journal that I had never seen before but which seemed appropriate for my topic: the Stanford Journal of Blockchain Law and Policy.  

That was it for the next couple weeks, except that I decided to submit directly to a couple flagships (you know who they are) that don't do the full Scholastica shotgun thing.  One of them (for whom I had done a peer review several years ago) rejected the piece within a couple days, but were thoughtful enough to look forward to my next submission.  Other than that, I lurked on the angsting post and contributed to the betterment of the world by recording my rejections on Sarah Lawsky's spreadsheet.  Based on what I was seeing in the comments, and knowing how little any of the tea leaves meant, I wrote something about my view of the realities of article placement.

I then experienced what I thought, at the time, was the corollary to my pet peeve about submissions, which I sometimes characterize as another one of Lipshaw's Laws.  It goes like this:  "If you submit only to law reviews you are prepared to accept, you can be sure that your only offer will come from the very last review you decided you were willing to put on the list."  As sure as the earth orbits the sun in an ellipse, I received a message last week through Scholastica from the very last review I had decided I was willing to put on the list, the Stanford Journal of Blockchain Law & Policy, that my article had received a favorable "peer review" and would be coming up for a vote of the board of editors.

What I am about to say may well be the epitome of rationalization or cognitive dissonance.  I did something I probably should have done at the outset, which is that I went to the SJBLP website.  There I discovered that the journal is not student-edited, that articles (i.e. pieces over 10,000 words) are sent out for peer review, and that the journal is affiliated with the MIT Media Lab and Stanford's Code-X (its Legal Informatics program).   Many people who are prominent in the "artificial intelligence and the law" community are affiliated with Code-X.

So we go back to the issue of substance, on one hand, versus heuristics and ego, on the other.  My piece got very granular about the nature of computer code and its relation to logic.  I said a lot of things about how computers work.  Even though I'm pretty good at math, I'm not a computer expert.  To have the piece accepted by a peer-reviewed journal in the academic "law and computation" community was, to me, a significant professional validation.  At that point, I realized that I would rather have it published there than in almost any other journal.  I say almost any other because the allure of publishing in a T14 or T17 journal, particularly when it is so rare on my faculty, was still strong.

Yesterday, the SJBLP accepted the piece with a short deadline.  Last night, I withdrew it from all but nine journals, and expedited the rest.  This morning, again with the benefit of Nespresso clarity, I decided (a) it was highly unlikely any of the nine would abide the short expedite deadline; (b) it was highly unlikely that any of the nine would make an offer, but (c) most importantly, I really did come to believe the best home for the piece was where it was likely to be read by people who care about and understand the issues.  Ego and heuristics be damned!  Shortly thereafter, I clicked the "accept" button on Scholastica and withdrew it from the remaining journals.

Were I "on the market" would I have thought this through in the same way?  I don't know.  Fortunately, I don't have to test my self-honesty against that counter-factual.  I am quite sure, however, that, as someone who is obliged to consider scholarship by hiring and tenure candidates, this narrative would make sense to me if offered up by one of them.  Here, I'm simply putting it out to the community as one datum, for whatever it's worth.

Posted by Jeff Lipshaw on September 3, 2018 at 02:07 PM in Getting a Job on the Law Teaching Market, Law Review Review, Life of Law Schools, Lipshaw | Permalink | Comments (6)

Note to PrawfsBlawg readers: Appearance of comments

A note to readers and commenters:

Comments to posts now appear newest to oldest. We did this to accommodate our annual faculty hiring post and our semi-annual submission post. Both posts generate hundreds of comments, requiring readers to scroll through multiple pages to read new comments. The old hack for this problem--a jump link--no longer works and Typepad recommended this as the solution. So this is the workable solution--new comments appear immediately below the post.

Unfortunately, we only could make the change globally, so comments must appear this way for all posts.

This format is necessary while the hiring and submission threads are alive and active, which should be another few months. After that, we will evaluate the appearance and decide whether to keep it or switch back. We already have heard from one reader who describes it as "crazy and moronic," so we will take that under advisement.

Posted by Howard Wasserman on September 3, 2018 at 09:27 AM in Blogging, Housekeeping, Howard Wasserman | Permalink | Comments (0)


I’m delighted to be back; thanks for having me.  This month, I’ll be blogging about tax reform changes, ABA changes on distance education, as well as the other changes impacting my fields of tax, trusts & estates, and family law.  In the meantime, happy Labor Day.


Posted by Margaret Ryznar on September 3, 2018 at 12:01 AM | Permalink | Comments (0)

Sunday, September 02, 2018

Bard Signing in for September


Hi everyone and thank you very much to Howard for inviting me.  This is, I think, my fifth (possibly sixth) guest stint at PrawfsBlawg and as always I want to thank Dan Markel (may his memory be for a blessing) who gave me my first opportunity to join this distinguished group.

Over the next month, my goal will be to share some of what I learned while getting a mid-career Ph.D. in Higher Education about both the existing body of research on teaching and about how we can use research tools to evaluate the many curricular innovations that are blooming throughout legal education.  Evaluation is important because it creates the information that we need to innovate in our own classrooms.  Evaluation (also called Assessment-although not of the students or of us--) also helps inform others who might want to adopt a new technique, exercise or even entire curriculum.    It has long been a concern of mine that we in legal education simply do not know about the vast body of existing research on promoting student learning nor are we aware of the tools that our colleagues in other parts of the university use every day. 

I will be arguing that the movement to make math, science, engineering, and technology subjects (STEM) more accessible to a larger group of students ( as opposed to the old fashioned and wasteful practice of setting up barriers to entry that few could surmount) has resulted in valuable information that we can use as we seek to make legal education more experiential and less dependent on classroom hours.  

It is also likely that I will be sharing some of the work in global public health law & human subject research I'm doing while a scholar this year at the O'Neill Institute for National and Global Health Law at Georgetown Law Center.

Posted by Jennifer Bard on September 2, 2018 at 08:43 PM | Permalink | Comments (0)

How enthusiastically should the Left support laws and doctrines protecting public employee unions?

It is generally assumed that conservatives should oppose, and liberals should support, laws and doctrines protecting public employee unions. In his pre-game commentary on Janus v. AFSCME, for instance, Garrett Epps noted that "these unions are an important pillar of the Democratic Party." Indeed, the SCOTUS split 5-4 along partisan lines, with the four Democratic appointees defending agency fees from the Republican appointees' First Amendment attack. President Trump's executive order limiting the scope of federal employees' collective bargaining rights, recently struck down by Judge Ketanji Brown Jackson likewise suggests a Republican agenda to curtail public sector unions.

On this Labor Day weekend, however, I would like to suggest that the the politics of public sector unions should be a bit more complicated. The Left really ought to be a little less complacent about the benefits of strong public sector unions, because those unions are major obstacles to some of the Left's more important political causes. It is not merely that some important public sector unions support fairly conservative Republicans (although they do: Consider, for instance, Wisconsin's state troopers' support for Wisconsin's Scott Walker and the Border Patrol and Ice unions' support for Donald Trump). More important than such partisan stances are the efforts by law enforcement unions to stymie reforms policing, prison, and immigration reforms favored by the Left.

After the jump, some suggestions that the Democratic Party, the Left in general, and the academic Left in particular might ask themselves "Which Side Are You On?" Does it make sense to resist so unequivocally decisions like Janus on the ground that they weaken collective bargaining and reduce union revenue without also looking at those whom these bargains and revenue most injure?

1. Public employees' power as an impediment to police, prison, and immigration reform

Unions representing law enforcement officers are major obstacles to the reform of prison and jail conditions and the reduction of police officers' use of excessive force. Consider, for instance, police officers' unions' knee-jerk resistance to holding their members accountable for the use of excessive force. As James Surowiecki put it, they use their lobbying clout and collective bargaining agreements "to block policing reforms of all kinds," from unsealing cops' disciplinary records to using body cams. Likewise, corrections officers' unions are pillars sustaining mass incarceration and the brutalization of inmates. Norman Seabrook, recently convicted of bribery, vociferously and successfully resisted efforts to safeguard mentally ill inmates from correction officers' brutality. In the 1990s, Don Novey, chief of the California corrections officers' union, formed an unholy alliance with private prison operators to prevent the repeal of "three strike, you're out" sentencing rules. The Border Patrol union has staunchly resisted as "pro-amnesty" any efforts to provide a path to citizen for unlawfully present aliens.

Why is it in the interests of of the Left's view of social justice unequivocally to promote the power of these organizations? Of course, the unions representing law enforcement do not represent the majority of all public employees. But the uniformed services' members have a disproportionate impact on the causes about which the Left cares most passionately, from BLM to DACA. Some circumspection, therefore, in endorsing broad protections for public sector collective bargaining and revenue might be in order. Yet there seems to be very little awareness that CBAs might be an impediment to social justice. Three years ago, Professor Marcia McCormick noted how both media and academia mostly overlooked the ways that law enforcement unions use their legal entitlements to prevent abusive police officers from being disciplined. Three years later, it strikes me that things have not changed all that much.

2. Why not be more suspicious of power that resists voice and exit?

The problem with public sector unions is not limited to law enforcement: As Winter and Wellington argued a half-century ago, public sector unions are less constrained by voice and exit than their private counterparts. Even taking into account the capacity of taxpayers to vote with their feet, consumers cannot comparison shop among public service providers as they can for private goods. Public sector unions also are also the sort of attentive and well-organized interest groups that have disproportionate influence on the political process: Ordinary voters do not focus on the arcana of, say, administrative hearings, but the Patrolmen's Benevolent Association most certainly does. If one is worried, as the Left presumably is, about the welfare of poorer consumers of governmental services, then one should worry about public sector unions. Low-income households, after all, tend to be less politically organized and have fewer exit options than middle-class ones: The former, therefore, are likely to suffer more from the disproportionate power of an organization that is especially resistant to rival constituencies' voice and exit. Such worries do not require or even suggest wholesale denunciations of the public sector: They just suggest caution in rallying around the public-sector union cause.

Maybe, for instance, it would be prudent not to regard protection of public sector unions' agency fees as a hill to die on or engage in breathless hyperbole about the ideological consequences of such decisions. Garrett Epps, for instance, described Janus as "a killing [of public sector bargaining] that will happen in plain sight, with the long-sharpened knives demurely hidden under the black robes of the law." That seems a little hyper-ventilated considering that, by the National Education Association's own estimate, the NEA stands to lose roughly 10.7% (370,000) out of more than 3 million members over two years as a result of the decision. (Other estimates suggest an 8% loss of members in major states like Pennsylvania). Given the success of the NEA in the more than two dozen states that ban agency fees, it seems doubtful that any public sector unions will "die" as a result of Janus. Moreover, it is not obvious that the loss of guaranteed revenue will not improve unions' effectiveness by giving them better incentives to market their services to non-members.

For my own part, I oppose Janus because it is an affront to the decentralized regime that ought to control controversial issues like public sector unions. Congress has sensibly omitted public sector unions from national labor laws, taking advantage of federalism that allows national leaders to duck controversial questions. SCOTUS IMHO would have been wise to follow suit.

The idea that Janus, however, represents an ideologically unambiguous blow to Left causes seems to me misguided. Public sector unions' power, like most power, is an ambiguous benefit for the constituencies that the Left champions, and Left awareness of this ambiguity might make them more effective advocates for the poorest consumers of governmental services that those unions can sometimes victimize.

Posted by Rick Hills on September 2, 2018 at 05:37 PM | Permalink | Comments (10)

Damnatio memoriae

This is an interesting case from the Sixth Circuit (H/T: Volokh Conspiracy). Plaintiff sued the recorders of deeds throughout Ohio, alleging that continued maintenance of deeds, plat maps, and other property documents containing (unenforceable) racially restrictive covenants violated equal protection and the FHA. The court held that the plaintiff lacked standing. He suffered no economic injury because he offered no evidence that he had been unable to purchase property. Any non-economic injury of a feeling of not belonging was not particularized to him, but undifferentiated and generalized.

The majority opinion, written by Judge Boggs, ends on the following:

In ancient Rome, the practice of damnatio memoriae, or the condemnation of memory, could be imposed on felons whose very existence, including destruction of their human remains, would literally be erased from history for the crimes they had committed. Land title documents with racially restrictive covenants that we now find offensive, morally reprehensible, and repugnant cannot be subject to damnatio memoriae, as those documents are part of our living history and witness to the evolution of our cultural norms. Mason’s feeling of being unwelcomed may be real. A feeling cannot be unfelt. But Mason’s discomfort at the expression of historical language does not create particularized injury. The language in question is purely historical and is unenforceable and irrelevant in present-day land transactions.

This prompted a two-paragraph concurrence from Judge Clay:

I concur in the judgment and, for the most part, in the opinion’s analysis, but I do not entirely agree with the majority’s suggestion that we cannot, under appropriate circumstances, modify or dispense with documents that are “part of our living history and witness to the evolution of our cultural norms.” Justice may require us to repudiate or revise elements of our “living history” if those elements—whether they be public records, flags, or statues—are shown to encourage or perpetuate discrimination or the badges and incidents of slavery; indeed, racial epithets that were once accepted as commonplace have not been preserved, and they have sometimes been stricken from our modern vernacular. We apply an even stricter standard where, as here, the government is the source of, or has ratified, language that has the purpose or effect of encouraging racial animus. We need not erase our history in order to disarm its harmful legacy, but victims of invidious discrimination who have suffered particularized injury as a result of the application of historical language should be able to seek redress, consistent with the context and the factual circumstances of their cases.

I also fear that the majority’s statement that “Mason’s discomfort at the expression of historical language does not create particularized injury” could be misunderstood or taken out of context to suggest that feelings of discomfort with racially discriminatory language could never create a cognizable injury. I do not, however, read the majority opinion as foreclosing a properly pleaded claim arising out of such racially discriminatory language, especially under circumstances that implicate governmental instrumentalities. Rather, I read the opinion to hold that the plaintiff in this action has simply failed to plead sufficient facts to demonstrate a legally cognizable injury. If and when a plaintiff shows such an injury, this Court will have to reconcile the importance of maintaining our recorded history with our vision of government speech that promotes—not hinders—a free and equal society. I do, however, respectfully concur.

 This dispute gets at an important piece of the model of my model of constitutional litigation. There is no judicially remediable constitutional harm coming from legal documents disconnected from actual or threatened executive or private enforcement. The dispute here is over real-estate documents. But the same arguments surround outmoded laws (e.g., anti-miscegination laws or prohibitions on same-sex marriage) that remain on the books but could not be successfully enforced in court. The legislature could repeal these statutes, while it would take much more to undo these sorts of legal documents. But the idea is the same--law (apart from enforcement) cannot and should not be erased by a court because of the "message" it sends from continuing to exist or having existed in the past. The court framed this as lack of standing; a good Fletcherian would call this the lack of remediable substantive constitutional rights.

Judicial departmentalism adds an extra wrinkle, because an executive could attempt to enforce such a law in the face of contrary precedent. That effort will fail once the dispute reaches a court, which is bound by precedent; it also will result in attorney's fees and potential Rule 11 sanctions. But it justifies recent efforts to get legislatures to repeal anti-miscegination laws. The arguments have focused on the symbolism of retaining these laws and the message they send. Departmentalism adds a substantive reason-- repeal avoids the spectacle of even unsuccessful efforts at enforcement. But this case confirms that the conversation must be a legislative one, not a judicial one.

There is a property question to which I do not know the answer. Could the legislature or recorder do anything about these documents or their problematic provisions? Can the government amend long-standing deeds to remove objectionable covenants? Can it issue a new, superseding deed, stripped of the objectionable covenants, controlling the property going forward?

Posted by Howard Wasserman on September 2, 2018 at 04:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Saturday, September 01, 2018

The Metrics Tide and the Law

Thanks Howard for having me (and for Michael Helfand for making the connection). Most of my posts this month will focus on the question of metrics and rankings and their increasing influence on the legal academia. I will draw in that context on a new article – ‘The Network of Law Reviews: Citation Cartels, Scientific Communities, and Journal Rankings’ which I have co-authored with Judit Bar-Ilan, Reuven Cohen and Nir Schreiber (all from Bar-Ilan University) and forthcoming in Modern Law Review.

Research evaluation is increasingly being influenced by quantitative data. Journal impact factor (JIF) (the mean citation counts of items published in journals in the preceding two years) has become particularly salient in this context, leading to “impact factor obsession”. There has been widespread opposition to this trend in the scientific community. The DORA declaration for example recommends that journal-based metrics, such as JIF, should not be used “as a surrogate measure of the quality of individual research articles, to assess an individual scientist’s contributions, or in hiring, promotion, or funding decisions”. However, despite the opposition these metrics continue to flourish.

The legal field has not escaped this ‘metrics’ wave. Law schools and legal journals are being ranked by multiple global rankings. The key rankings for law schools are the Times Higher Education and Shanghai University subject rankings for law and SSRN Ranking for U.S. and International law schools. These global rankings are accompanied by local ones such as the influential U.S. News Ranking in the U.S., the UK law schools ranking by the Guardian and the University Magazine ranking of Best Canadian law schools. Law Journals are measured by four different rankings: Clarivate Analytics Web of Science Journal Citation Reports (JCR), CiteScore from Elsevier, Scimago and Washington and Lee. Despite their quantitative appearance, the pretense of these metrics for objectivity is merely illusory. Because of the increasing influence of these metrics, and the bodies that produce them, on research evaluation, it is important to closely scrutinize their structure and methodology. In our paper we examine one particular metric - the influential ranking of law journals in Journal Citation Reports and critically assess its structure and methodology.   I will discuss our findings in the next post.

Posted by Oren Perez on September 1, 2018 at 11:12 AM in Article Spotlight, Current Affairs, Howard Wasserman, Information and Technology | Permalink | Comments (0)


Thank you to our summer-long visitors, who joined us for July and August.

With September upon us, welcome back to Jennifer Bard (visiting at Georgetown's O'Neill Institute and Harvard's Petrie Flom Institute), Oren Perez (Dean at Bar Ilan), and Margaret Ryznar (Indiana-Indianpolis).

Posted by Howard Wasserman on September 1, 2018 at 10:31 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Avoiding dueling universal injunctions

Judge Hanen of the Southern District of Texas* on Friday refused to preliminarily enjoin DACA, where such an injunction would have created a direct conflict with injunctions enjoining the Trump Administrations rescission of DACA. Although the court held that the states have standing and were likely to succeed on the merits (because DACA violates APA and the Take Care Clause), the balance of equities weighed against the injunction, as the injunction would undo the status quo by undoing rights and reliance interests that had attached to DACA recipients since 2012. So we again avoid the clash of injunctions and impossibly conflicting obligation only by a bit of restraint from one court.**

[*] Whose universal injunction in the DAPA litigation in 2015 was the starting point for the recent trend.

[**] Note the clash comes even if the injunction issued was particularized and non-universal. The existence of one universal injunction by definition collides with all future injunctions. A particularized injunction in this case would have forced the federal government to act inconsistent with the earlier universal injunctions prohibiting rescission.

In a separate order, Hanen certified the case for interlocutory review under § 1292(b), finding the validity of DACA is a novel and unique controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. This seems weird in two respects. First, while there is a controlling question of pure law within this order, the decision turned on the balancing of equities, an application issue that is not reviewable under § 1292(b). The court said that a Fifth Circuit declaration of DACA's validity would speed termination of the case, but it is not clear why, because that would not alter the purported balance of equities on which the district court denied relief, at least not at the preliminary injunction stage. I guess if the Fifth Circuit declares DACA invalid, the district court could summarily convert to a permanent injunction. But that assumes the Fifth Circuit takes on DACA directly and does not address the legal issue in context, saying only that DACA is likely invalid, but limiting the decision to the case's preliminary posture.

Second and in any event, certification was unnecessary to obtain review. A decision denying a preliminary injunction is immediately reviewable under § 1292(a)(1). Although the text of the statute only enumerates orders refusing to dissolve or modify an injunction as appealable, every circuit, including the Fifth, reads § (a)(1) to allow immediate review of the denial of the initial preliminary injunction. And § 1292(a)(1) appeals do not require leave of court and are not limited to controlling questions of law.

Update: Other conversations on the subject suggest that Hanen blew the procedure in another way. If he wanted to declare DACA invalid, tee-up the issue for appellate review, and avoid the chaos that would come with a preliminary injunction, he should have ordered the parties to file cross motions for summary judgment and issued a declaratory judgment. A D/J is a final judgment, appealable as such under § 1291. This stuff matters.

Posted by Howard Wasserman on September 1, 2018 at 08:18 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)