Tuesday, October 23, 2018
JOTWELL: Lahav on Frost on nationwide injunctions
The new Courts Law essay comes from Alexandra Lahav (UConn), reviewing Amanda Frost, In Defense of Nationwide Injunctions (N.Y.U. L. Rev., forthcoming). My views on this subject are well-known here. Amanda visited FIU last week to present her paper and to debate injunctions for several student organizations.
Tuesday, October 09, 2018
JOTWELL: Walsh on Hickman on severability
The new Courts Law essay comes from Kevin Walsh Richmond), reviewing Kristen E. Hickman, Symbolism and Separation of Powers in Agency Design, 93 Notre Dame L. Rev. 1475 (2015), considering the use of severability to remedy separation of powers defects in the design of federal agencies.
Sunday, September 30, 2018
Data Science and Law (and Farewell)
In my last post I want to briefly discuss the experience of Bar-Ilan Law Faculty (where I serve as Dean) in a new joint research initiative with the Bar-Ilan Data Science Institute. This joint project builds on Bar-Ilan strength in data science (DS), especially in the fields of natural language processing (NLP) and network analysis. The project is motivated by idea that the law rich textual and web structure makes it a great medium for analysis using the methods of NLP and network science (see, e.g., my recent paper, Transnational Networked Constitutionalism, co-authored with Ofir Stegmann). We currently have more than 20 on-going research projects using DS methods in various stages.
Our experience in these joint studies has raised several challenges and questions and I will be happy to hear from others who have been involved in similar projects about their experience. We will also be very happy to cooperate with other institutions.
Probably the most critical issue for the success of such projects concerns the need to move into a team based work. Almost all our projects are based on joint teams that include, DS and law profs, graduate students and supporting stuff. This mode of work brings legal research closer to empirical social sciences and research in the natural sciences. It requires willingness and openness from both the DS and law side.
Another challenge we had to cope with from the start is how to think about the roles of the DS and law profs in such joint project. A naïve way to think about such cooperation is that the law side should be responsible for collecting the data and the DS side should be responsible for analyzing it. We think that this is a mistaken paradigm. A good interdisciplinary DS-law joint-project must involve the two sides across the whole life-cycle of the project. It is important that the DS people will be involved at the data collection phase (which involves critical questions about what data to collect and how to structure it) and in the hypothesis framing phase. It is also necessary for the law side to be involved in the analysis phase (even if the technical analysis will be led by the DS people). This requires ‘each side’ to develop some understanding of the ‘other’ knowledge domain.
Another question concerns the publication and evaluation of the results of such interdisciplinary projects. In most cases the main contribution of the project would be in the legal domain and not in computer science or in mathematics. It will commonly use existing methods to study law-related questions (although law could also trigger innovation in the DS domain). However, a significant work may need to be done in order to adapt and apply such methods to specific research questions and environments. This means that the venues in which such work could be published would probably be in legal journals that accept empirical work. This could create a motivation problem for the DS people. Solving this problem requires university authorities to explicitly support interdisciplinary work and to recognize the contribution of DS people even when the work is published in journals outside the DS domain. Equally law profs should be ready to venture beyond traditional legal publications toward DS journals (where the focus could be on the more technical aspects of a project). Such extension of the publication spectrum is important for the feasibility of such joint-projects.
Let me close by thanking Howard Wasserman and the forum again for having me as a guest this month. Thanks also to all those who responded and commented on my posts.
Thursday, September 27, 2018
Revising the Web of Science JCR ranking of law reviews
I want to conclude my discussion of the Web of Science JCR ranking of law reviews by offering several proposals for revising this ranking, 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 want to emphasize that our proposals are tentative because I don’t think there is a single right answer as to how to devise such a ranking. They also do not cover the whole range of problems associated with such rankings. One of the main lessons of our analysis is that the choices underlying any ranking should be made explicit and that anyone using them should make sure that these methodological choices fit his needs. A further important note concerns the purpose of our project. We do not call for the use of metrics in evaluating research. As I noted in my first post, our project is based on the observation that there is currently an increasing global pressure to use metrics in order to evaluate research (both at the individual and the institutional levels). This trend makes it worthwhile to critically examine the methodology and structure of such metrics.
Our proposal draws on our finding that that PR and SE journals form two separated communities (see the citation graph here); however, this inward tendency 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 finding reflects, we argued, a tacit cartelistic behavior, which is a product of deeply entrenched institutional practices (for a defense of this argument see my previous post). Because the mean number of references in SE journals is about 2.5 times greater than the mean number of references in PR journals lumping the two categories can generate a distorted image of the ranking of law reviews (see my post for a demonstration of this effect).
We believe that there are two main paths for revising the WOS ranking. The first path is to create two separate rankings, one for student-edited (SE) (non-peer-reviewed) journals, and another for peer-reviewed (PR) journals. This approach reflects the different writing and citation styles of the two categories and their strikingly different article selection practices. Creating two different rankings would also cancel out the advantage that U.S. SE journals have in a combined ranking structure. While this approach does have some logic, it is also problematic because the two journal categories, despite their differences, still belong to the same scientific domain, explore similar questions and have over-lapping audiences. It is also inconsistent with the current practice of all the existing global law reviews rankings. A second strategy would continue the current practice of lumping the two journal categories in a single ranking, but would offer a way to counter some of the distortive effects of the current structure of the WOS ranking. A basic component of this strategy would be to adjust the value of citations received from SE journals. As I demonstrated in a previous post, adjusting the citations of SE journals by a factor of 0.4 significantly changes the relative ranking of PR journals. Using an adjusted impact factor would not amount to a satisfactory solution by itself. We think that a better strategy would be to combine an adjusted impact factor with an algorithm that takes into account the prestige of the citing journal drawing on some variant of the page-rank algorithm. The idea is to calculate the prestige of a journal through an iterative process that computes the “prestige” gained by the journal through the transfer of prestige from all the other journals included in the network through citations. JCR already offer a ranking based on such algorithm although it is not widely used.
Another problem concerns the composition of the ranking sample. The WOS includes a relatively small sample of law reviews (147 out of more than 1600 law reviews based on our recent counting of the Scopus, WOS and Washington and Lee datasets). This reflects the WOS philosophy that only well established and high quality journals should be included in the list. While this approach has some merit the current list leaves out many good journals which should have been included (both SE and PR). Another problem concerns the inclusion of interdisciplinary journals (especially PR) such as the Journal of Law & Economics, Law and Human Behaviour and International Environmental Agreements-Politics Law and Economics. These are high-quality publications, which publish articles that are very related to law, but are dominated by economists, psychologists and political scientists that study law-related questions (although law profs do publish in these venues occasionally). Should these publications be included in the same list as more classical law journals? I believe that they should because they provide a high-quality venue for interdisciplinary work that discusses legal problems, but I can see good arguments for both sides.
Tuesday, September 25, 2018
JOTWELL: Effron on Manta on Tinder lies
The new Courts Law essay is from Robin Effron (Brookyln), reviewing Irina Manta, Tinder Lies (Wake Forest L. Rev., forthcoming), which proposes a small-claims court vehicle for remedying lies and fraud on dating apps.
Monday, September 17, 2018
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.
- Regulation and Governance (10)
- Law and Human Behavior (13)
- Stanford Law Review (1)
- Harvard Law Review (2)
- Psychology, Public Policy, and Law (18)
- Yale Law Journal (3)
- Texas Law Review (4)
- Common Market Law Review (22)
- Columbia Law Review (5)
- The Journal of Law, Medicine & Ethics (29)
- University of Pennsylvania Law Review (8)
- Journal of Legal Studies (15)
- Harvard Environmental Law Review (14)
- California Law Review (6)
- American Journal of International Law (19)
- Cornell Law Review (7)
- Michigan Law Review (9)
- UCLA Law Review (12)
- American Journal of Law & Medicine (36)
- Georgetown Law Journal (11)
- International Environmental Agreements-Politics Law and Economics (41)
- American Journal of Comparative Law (25)
- Journal of Law, Economics, & Organization (37)
- Journal of Law and Economics (35)
- International Journal of Transitional Justice (42)
- Law & Policy (44)
- Harvard International Law Journal (26)
- Chinese Journal of International Law (47)
- Journal of International Economic Law (48)
- Law and Society Review (46)
- Antitrust Law Journal (27)
- Indiana Law Journal (24)
- Behavioral Sciences & the Law (51)
- Virginia Law Review (16)
- New York University Law Review (17)
- Journal of Empirical Legal Studies (39)
- Leiden Journal of International Law (54)
- University of Chicago Law Review (20)
- Social & Legal Studies (58)
- World Trade Review (61)
- Vanderbilt Law Review (23)
- Harvard Civil Rights-Civil Liberties Law Review (32)
- Modern Law Review (63)
- Annual Review of Law and Social Science (49)
- European Constitutional Law Review (64)
- Oxford Journal of Legal Studies (59)
- Journal of Environmental Law (65)
- European Journal of International Law (57)
- Law & Social Inquiry (62)
- George Washington Law Review (31)
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 ; https://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.
Friday, September 07, 2018
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.
Wednesday, September 05, 2018
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.
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.
Friday, August 31, 2018
Sponsored Post: The unauthorized practice of law for nonlawyers
The dramatic changes in the legal profession since the 2008 market crash, from the increase in virtual law practice to the rise of DIY services to clients’ increasing demand for efficiencies, have led to a recognition that nonlawyers have an increasingly critical role in the delivery of legal services. While most regulatory bars are not yet sure exactly: (a) what this role should be; or (b) how, if at all, it should be regulated, that a change is coming is certain.
Meanwhile, companies large and small -- saddled with increasing regulations but fewer resources – look more frequently to employees in risk management, compliance, and human resources, to name but a few, to exercise legal judgement, decreasing the reliance on traditional inside and outside counsel.
When the ABA created the Commission on the Future of Legal Services, with a goal of using technology and innovation to increase access to justice, the President acknowledged that some people see this shift as a “back doorway of disrupting a system that they’re comfortable with.” All a perfect precursor to the coming regulatory challenges for our current restrictions on the unauthorized practice of law.
In response, education directed at nonlawyer legal professionals is also increasing; the providers include law schools, other higher education entities, trade associations, and for-profit companies. However, little of this education is focused on the unauthorized practice of law. As the debate is getting hotter over what nonlawyers, people or computers, can do without running afoul of unauthorized practice of law restrictions, education must include coverage of the current state of the law, no matter how impossible it may be to define the “practice of law” with precision.
To bridge this gap, our new book and interactive course, The Unauthorized Practice of Law for Nonlawyers, explores the extent to which people with legal training, but no license to practice, can use the law, as a social and economic variable, to better manage risk without fear of prosecution or civil liability. Materials include a complete, 1-credit course syllabus, with over 4-hours of videos and 700-minutes of direct-faculty contact hours through discussion prompts and project prompts, perfect for an active-learning, flipped classroom. Alternatively, the materials can be used as a 1-hour self-directed module.
The book is intended for general education about the UPL and to provoke informed thinking and useful discussion about the UPL’s present and future boundaries. UPL regulation varies widely across the country, is always and everywhere highly fact-specific, is riddled with non-uniform, judicial and legislative exceptions, and always is decided on a case-by-case basis. But even with this uncertainty, educators must promote and provide for the exploration of these issues.
Tuesday, August 14, 2018
JOTWELL: Vladeck on Caruco on CAAF as court of last resort
The new Courts Law essay comes from Steve Vladeck (Texas), reviewing Rodrigo M. Caruco (Maj., USAF), In Order to Form a More Perfect Court: Quantitative Measure of the Military's Highest Court's Success as a Court of Last Resort (Vt. L. Rev.), which considers how the Court of Appeals for the Armed Forces operates as a court of last resort and what can be done to improve its functioning.
Friday, August 10, 2018
Failure, It Turns Out, is an Option, and a Pretty Good One Sometimes
In my last post, I promised to talk about fear not just in the horse but in the rider. The point, of course, has to do with the relationship of fear to learning. Kaci Bishop's (North Carolina) recently posted article, Framing Failure in the Legal Classroom, provides a nice segue. (H/T Paul Caron.) Failing, at least in the micro, is learning, and I agree with Professor Bishop's bottom line that academic and practicing lawyers tend not to be very good at connecting the subject and the predicate in those three words.
I have four very vivid memories of the subject of failure - in the abstract - coming up during my education and career. I'm paraphrasing most of it. The first was when I watched the moot court competition finals at Stanford. The esteemed federal Third Circuit judge A. Leon Higginbotham was a member of the panel. During the post-argument comments, he said something like "a well-prepared advocate can never lose; the client may not win, but the advocate never loses." The second was when I was interviewing for my first job out of law school (the Dykema firm in Detroit). One of the litigation partners said to me, "One of the things we have to do here is train people how to lose." The third was when I left the firm to join the law department at what was then AlliedSignal (now Honeywell). One of the recruiting documents I received was the 1991 annual report, which contained CEO Larry Bossidy's first letter to shareholders (he had just come over from General Electric where he was second in command to Jack Welch). The piece I remember most was about leadership and it went like this: "Of course there will always have to be leaders who make the final decision, but the tyrant in the corner office, the guy with all the answers, need not apply here." (This much appealed to me because, in 13+ years at the law firm, both as associate and partner, I rarely felt that I had any answers to much of anything.) The last was an interview with Steve Kerr, who had just been installed as GE's first Chief Learning Officer, on the tension between failure and Jack Welch's famous (or infamous) "stretch goals": namely, that if you set ambitious goals for people, you can't punish them if they fail to meet them.
At the risk of TMI, I'm sixty-four years old and still have the standard dreams about failure - for example, the one about missing the entire semester of a math class that met early on Tuesday mornings and now having to take the final. I started as a litigator, and it became clear that it was easier to give Judge Higginbotham's advice (particularly if you were the judge) than to take it. I took losing very personally. Looking back, and then considering what I internalized as failure even in the deal-making or business context, I see it as an illusion (or delusion) of one's own ability to control circumstances. You can't eliminate the fear; you have to learn to cabin it or manage it (and I think that is one of the points Professor Bishop is making).
I had a couple reactions that I'll talk about after the break.First, I do agree that failing, in the micro sense, is integral to learning. I also think that Professor Bishop is correct in incorporating Carol Dweck's distinction between the fixed and the growth mindset. As I interpret it, it's the difference in the affective orientation to learning that precedes any learning. If you want to learn, you learn. If you don't want to learn, you don't. The fixed mindset is one that has given up on learning; the growth mindset invites it.
Second, Professor Bishop mentions classroom "failures" (i.e. that "law students have as a primary goal not embarrassing themselves in the classroom") but doesn't center her arguments on what I think is a particular aspect of law school culture: the difference between private failure and public failure. The fear of public failure is what I recall most vividly from the very first class on the very first day of law school forty-two years ago. It wasn't so much that I read the first case in the Dawson & Harvey contracts casebook (Groves v. John Wunder & Co.) and was mystified; it was that from the opening bell others in my 25-student small section appeared to understand it so well (yes, Robert Weisberg and Douglas Baird, I'm talking to you).
Dealing with public failure if you run a moderately interactive law school classroom is a challenge. It is hard to be nurturing when a significant aspect of the job is the theatrics of it all. If you believe in the non-paternalistic classroom, then you ought also to believe that your job as professor is to make the experience more compelling than what is available by way of internet, text, or Angry Birds. Nor is it easy. Some things students say or ask in class are misplaced or wrong or distractions. For each student that you try to accommodate gently, there's another one thinking you should have been more brutal.
My quibble, if I have one, with Professor Bishop's piece is that her focus on mindset is confined solely to that of the student. Just as psychoanalysts need to experience their own analysis to be able to guide anybody else, I don't see how there's going to be much change in the classroom if the fixed mindset is in the mind that is behind the podium. Over the years, one of the ways I have tried to put myself in the position of a fearful student has been to make myself learn in environments that are not my natural habitat. The three things I've tried to pick up over the last ten years are playing the piano (I never learned to play any musical instrument) and two athletic endeavors.
All my piano failures are private and relatively trivial, ego-wise. Not so the athletics. To put it bluntly, I think I'm pretty agile mentally, but I really, really suck as an athlete. My joke over the years is that I engage in athletic endeavors (golf, for example) for the massive doses of humility I get. I think, more seriously, that the activities I've selected in the last couple years force me to confront not only fear of failure, but physical fear, and, more importantly, the delusion of control. When you ride a horse in an indoor ring with other riders present, you are dealing with a thousand pound sentient being with a point of view, and one that often is not aligned with your own. Several years ago I decided to start taking fencing lessons (epee). I'm really bad. And your opponent is waving a long thin sword around, trying to jab you with it. Even with all the equipment, it can hurt. Every one of my opponents' touches is a public failure, but also a learning experience. Particularly when the opponent is a thirteen year old young woman who wins 10-2. It's really hard to learn when you are afraid!
Even with all of this, the performance art of teaching law students causes me, unfortunately, to get in touch more often than I should with my inner smart ass and outer stand up comic. (One only need look at some of the things some students say about me in their evaluations to know that I am no paragon of virtue when it comes to making students comfortable with "failure" in class discussion.) Fear has to have its source in evolutionarily adaptive instincts that get housed deep, deep in the reptilian and pre-reptilian parts of our brains. And, of course, what we are doing in class is the polar opposite. As the Carnegie Report observed,“[a]t a deep, largely uncritical level, the students come to understand the law as a formal and rational system, however much its doctrines and rules may diverge from the common sense understandings of the lay person.” They are doing that because that is what we are teaching them to do!
I should conclude by observing that, contrary to some popular memes, the vast majority of law professors I've met in the last fourteen years care very deeply about the quality and effectiveness of their teaching. Wanting to be better, wanting to learn, comes from the inside. And there are external sources of fear. Before tenure, there are student evaluations and classroom visits from tenured faculty that bear significantly on your career. Even after tenure, getting lousy evaluations is like being criticized as a corporate board member from the shareholder activists. It may not make a lot of difference, but it doesn't feel very good.
Perhaps the lesson from Professor Bishop's piece, at least for me, is to think about the failures that occur from my side of the podium. One of those might be the failure to heed at least two tenets of Kant's Categorical Imperative: (a) to act in every instance in way that you would legislate the rule of your action as a universal rule (for you aspiring legal philosophers, the source of Rawls's "veil of ignorance" as the basis for justice), and (b) to see every other person as an end rather than a means. To return to a theme of an earlier post, think about what that says about cold-calling on one student as a means of teaching another student!
Thursday, July 12, 2018
JOTWELL: Wasserman on Mitchell on writs of erasure
I have the new Courts Law essay, reviewing Jonathan Mitchell (VAP at Stanford), The Writ-of-Erasure Fallacy, 104 Va. L. Rev. (forthcoming), which debunks the idea that courts "invalidate" constitutionally defective laws, since the laws do not disappear from the U.S. Code. Mitchell's article has lent a welcome new angle to my arguments against universal injunctions and in favor of judicial departmentalism.
Monday, July 09, 2018
Constitutional Politics, Court Packing, and Judicial Appointments Reform
The following post is by Matthew Seligman, a VAP at Cardozo. It is a short version of his new paper.
In the aftermath of Justice Kennedy’s retirement announcement, several legal scholars have suggested that Democrats should add seats to the Supreme Court when they retake the Presidency and Congress. Jed Shugerman, for example, advocated expanding the Court to 15 if Trump’s replacement nominee is confirmed, on the ground that no President under investigation for conduct that plausibly could lead to impeachment has appointed a Justice who might rule in his own case. In addition to that conflict-of-interest principle, Ian Samuel suggests packing the courts in response to prior rounds of Republican hardball—most notably the Republican Senate’s refusal to consider Judge Garland’s nomination to succeed Justice Scalia. Samuel is aware of the obvious implication of initiating a cycle of retaliatory court packing, as Richard Primus explained in the Harvard Law Review Blog in response to Steven Calabresi and Shams Hirji’s proposal last year that Republicans expand the courts of appeals by dozens or even hundreds of judgeships. An escalating cycle of packing and re-packing the courts would offer fleeting advantage to one side and then the other (assuming neither side is able to permanently entrench its political dominance). And the cost would be steep: undermining the legitimacy, public acceptance, and even basic functioning of the courts.
The irregular Supreme Court appointments process has been a problem for centuries. Allocating substantial power based on the vagaries of the timing of deaths and retirements is no way to run a constitutional democracy. And the best solution on offer has been around for decades or more: a term limit on Supreme Court Justices of 18 years, joined with fixing the number of Justices at 9 and a regularized schedule of appointments every 2 years. The primary problem with this solution, whether it is to be sought by statute or by constitutional amendment, is actually making it happen. Constitutional amendments are exceedingly challenging to achieve even on issues with lower ideological stakes and when the parties’ willingness to cooperate is much higher than it now is. A statutory compromise on the judicial appointments process would be extremely challenging in its own right, in part because such a statutory measure could be reversed by a single party in control of Congress and the Presidency. We live in an era, we are told, of constitutional hardball. With the continuing collapse of constitutional norms, it seems less likely than ever that the parties could cooperate to solve the problem. So, it may seem, we are likely to see the initiation and escalation of continuing cycles of court packing.
In a new essay, I argue that this understandable pessimism is a mistake. I offer the counterintuitive conclusion that in this moment of cratering cooperation, there may be a rare political and legal opportunity to restructure the judicial appointments process for the better and for good. The readily apparent prospect of imminent court packing changes the game. Precisely because the threat of endless escalation is now so salient, both parties are positioned to recognize the value of pursuing a long-term solution over securing short-term and ephemeral partisan advantage.
Escalation in constitutional hardball predated the present moment, but its inevitability now presents itself to us with perhaps greater clarity than anything that came before. There was, perhaps, some uncertainty about the opposing sides’ strategies and potential responses in this iterated game when it came to the abolition of the filibuster or with respect to how late in a President’s term the Senate will consider a Supreme Court nominee. Court packing is different. Once the cycle of court packing begins, that uncertainty will likely evaporate. Each party will be certain—or as certain as one can be when it comes to law and politics—that the other party will re-pack the courts with ever greater numbers. Moreover, unlike other hardball moves like the elimination of the filibuster, court packing admits of no clear limiting principle. The parties can eliminate the filibuster only once. But once the parties start packing the courts, there is no natural stopping point. And both parties know that.
That shift from uncertainty to near-certain knowledge of imminent escalation with no foreseeable stopping point is the unique circumstance that may change the game. The players now know that the other side’s strategy would be hardball, and that those strategies will inevitably lead to endless escalation—an outcome that is worse for everyone (I assume) than cooperating. That alters the payoff matrix in a critical respect. Neither party has any reasonable hope of achieving unilateral dominance through the hardball of court packing, because it knows that the other party will respond by playing the hardball of court packing as well. Thus, due to the newly shared perception of impossibility of achieving dominance through hardball about the courts, for the first time the parties’ self-interested incentives point to a strategy of binding cooperation. Accordingly, precisely because the threat of escalation has become so salient and so apparently inevitable, judicial appointments reform through a constitutional amendment may be more attainable than it ever has been before.
Monday, July 02, 2018
Self-Plagiarism (and the First and Second Laws of Textual Physics)
June is my intense writing month, by and large, and I just finished up a draft that, as I said elsewhere, may not be ready for Broadway, but is ready for out-of-town previews on SSRN. (If you are curious, it's titled The Persistence of "Dumb" Contracts. It ponders the extent to which artificial intelligence could take over the non-blockchain contract drafting lawyers have been doing for hundreds of years.)
If you are like me, and have been at this for a while, you probably have developed a theme that pervades your work. Mine has to do with how people, and lawyers especially, make tough judgments in the face of uncertainty. Not tough judgments (although they may be) in adjudication, but what to do when your nicely developed lawyerly rationality can give you five good reasons for doing A and five equally good reasons for not doing A. A perfect example was Meryl Streep as Katharine Graham deciding whether to publish the Pentagon Papers (I rented The Post last night); you either take the leap or you don't. Not to decide is to decide.
Sometimes a sentence or a paragraph or a long footnote from a previous piece seems like it fits in the new one. It's so easy to copy and paste and - voila! - you've written 200 words - a nice chunk of the day's quota. At least at some point in the drafting of Persistence, I did that. Is it okay? (Spoiler alert: as far as I know I made it okay under even the most stringent standards.) Thoughts on self-plagiarism follow the break.
First off, let's define plagiarism. I'll go with the definition we give our students: "taking the literary property of another, passing it off as one's own without appropriate attribution, and reaping from its use any benefit from an academic institution."
Second, self-plagiarism is indeed an issue, There's a nice piece on this at the RIPS Law Librarian Blog, specifically about this issue in the law review context. There are two sins that fall under "self-plagiarism" that are not what I'm talking about. The first is creating many publications from the same study. (Even that strikes me as overbroad - you can do a popular piece and an academic piece from the same material and not be committing a faux pas, as long as you disclose it.) The second is more serious, which is actually submitting the same work to different journals and permitting it to be accepted in multiple places.
The third issue is the one I'm most likely to encounter in my own work - what the RIPS bloggers call, in a less pejorative way, text recycling. That seems fair, because (apart from copyright issues if the journal holds it) you really aren't passing off someone else's intellectual output as your own. The RIPS bloggers are thoughtful about this. If you are building on a body of work, it does seem silly to have to reinvent the wheel or have part of your article oddly set off in block quotes because you used it before. On the other hand, they point out that editors and readers have a right to know if what they are reading is not original work, even if if originally it was yours. Not surprisingly, they advocate a sensible policy. If you are using it again, disclose it either in a footnote, a in-text reference, or a general disclosure like you regularly see in a book preface when some of the chapters had earlier iterations as law review articles.
The lesson I learned this month, however, was slightly different. I had inserted a footnote to the effect that much of the discussion on a couple pages had first appeared in my own piece, appropriately cited. The RIPS people would have been satisfied. The problem was one that, frankly, I didn't see, and it took another reader to point out. I'm going to call it "textual inertia," or even better, "Lipshaw's First Law of Text Recycling." It goes like this: "Every piece of text, once written, tends to remain in that state of drafting unless an external force is applied to it."
There is a Second Law as well: "The relationship between a text's mass (m), the ease by which it can be edited (a), and applied force (F) is F = ma, where a text's mass is directly proportionate to how pretty a word processor makes it look on the page." What this means is that if you were to handwrite the text in a scrawl on a legal pad, you don't need much force to edit it. But if you cut and paste the prior text into Eugene Volokh's wonderful law review article template, it becomes very hard to move.
That's why it's so hard to edit even a piece where you haven't recycled text. But when you recycle, chances are you really aren't making the same point that you made before. It's the idea underlying the text that has relevance in this newer piece. But it's so damn easy to cut and paste, and once you've done that, the First Law sets in. And, as my friend who read the draft pointed out, that particular passage sounds like a tangent not quite related to the point of the article.
* By the way, my usual blogging home, at least on issues relating to legal education, lawyering, legal thought, etc. is now Paul Caron's iconic Tax Prof Blog. This entry will be self-plagiarized, I mean cross-posted, over there.
Friday, June 15, 2018
JOTWELL: Singer on Rosen on Taft
Thursday, June 07, 2018
SCOTUS Term: Slightly Belated Reactions to Masterpiece Cakeshop
I was on the road when Masterpiece Cakeshop came down on Monday and had time for a Twitter reaction but not for a blog post. Suffice it to say, I wasn’t impressed. Even by the Court’s own standards in high profile, culture war cases, the result and reasoning seemed slapped together and unconvincing. There has been a ton of excellent commentary pointing out why—including Howard's insta-reaction and Rick's post at this site—but one of the advantages of waiting a few days is that you need not cover everything but simply get to fill in the gaps. So, here are three angles I don’t think are getting enough attention:
- The proper places for respectful consideration of religious scruples. There is no doubt that the recurrent fact pattern at the heart of the case involves a conflict of constitutional values and that our constitutional culture cannot resolve these disputes without weighing the cost to religious conscience of denying religious exemptions to civil rights laws (and other laws of general applicability) against the constitutional obligations to pursue civic equality and govern even-handedly. What strikes me as strange is the opinion’s assumption that such weighing should take place in individual civil rights enforcement actions. Maybe the Court’s opinion is, at Howard suggests, simply a “happy talk” requirement, but to the extent that it requires something more substantive, I think it is making a category mistake. Our existing jurisprudence envisions two places where that kind of weighing should take place. The first, as Howard points out, is at the level of constitutional doctrine. In cases both specific to civil rights (for example, the famed Piggie Park litigation) and more general (notably Employment Division v. Smith), the courts have already undertaken that balancing and determined that the Constitution does not require states provide such exemptions. However, nothing prevents states from according them either, which brings us to the second place in which respectful consideration of religious scruples ought to take place, the legislative chamber. The federal government and many states have disagreed with Justice Scalia’s balancing in Smith and provided statutory rights to religious exemptions that go beyond what the Constitution requires. While many on both sides object to the scope of particular state laws, few would argue that there has not been true democratic engagement on these questions. In the context of that debate and the institutional design decision made in Smith, Colorado’s decision to broadly protect civic equality without according an individualized assessment of the baker’s religious scruples should have resolved the case. To allow state regulators to deny an exemption but only if they provide a sympathetic hearing and words of apology is not only a silly rule but also one that misunderstands what respectful consideration of religious scruples would actually look like.
- The content of the Commissioners’ comments. On a related point, I think that the emergent consensus that the Commissioners’ comments about religion were, at a minimum, intemperate and disrespectful is a bit too convenient and fails to acknowledge the serious substantive point they were (inartfully) attempting to articulate. When participants in the debate about religious exemptions reference religious support for slavery or the Holocaust, they are not making ad hominem attacks on religious belief but are instead pointing out the historical and anthropological truth that religious belief is a species of culture that often adapts to, borrows from, and incorporates other prevailing social attitudes. Not all religions or religious believers supported those outrages, but some did, and those that did often incorporated their support into their theological world view. The likelihood that some religious groups will endorse any sufficiently popular set of cultural arrangements or social attitudes is one of the most potent arguments against allowing religious exemptions for all laws of general applicability, as legislators must remain free at minimum to identify certain nominally religious practices as sufficiently violative of human dignity to be outside the bounds of acceptable conduct. It is because outrages are sometimes perpetrated in the name of religion that we don’t let a sincere claim of religious conviction be a trump card but instead engage in complicated line-drawing to determine whether particular legal obligations ought be imposed even on those with religious objections. Given the substance of the argument, references to slavery and the Holocaust are especially pertinent examples, not cheap shots that evince hostility to religion.
- Justice Breyer’s legacy. Masterpiece Cakeshop now joins Bush v. Gore and the Affordable Care Act cases as the third major culture war case in which Justice Breyer voted with (and likely facilitated) a seven-Justice consensus reaching a politically conservative result on a hotly contested issue for which his prior record suggested little sympathy. Perhaps these are votes of true conviction, but in my heart of hearts I remain skeptical that he would have provided a fifth vote to find an equal protection violation in Bush v. Gore, a Spending Clause violation in the ACA cases, or a Free Exercise violation in this case. If my speculation is correct, I find it absolutely fascinating that Justice Breyer has willingly made these votes such a central part of his legacy. (And, let's be clear, we are talking about first paragraph of the obituary stuff here.) A lot of the commentary speculates about the strategic aspect of his (and Justice Kagan’s) decision to join the opinion and that is likely an aspect of his decision making. To that, I would add that Justice Breyer has always articulated a longterm perspective on the institutional authority of the courts and the need to maintain public trust in the process that pushes him to look for middle ground and to avoid creating the appearance of political schisms, particularly in hot button or high profile cases. Whether the reasons for his votes in these cases are strategic or institutional, and whether his reasoning is intentional or inchoate, his behavior in these cases raises fascinating questions about the role of the appellate judge and proper decision making procedures on a multi-member court that have now become a central part of his legacy.
Friday, June 01, 2018
JOTWELL: Kalajdzic on several authors on funding and compensating class actions
The new Courts Law essay comes from new contributor Jasminka Kalajdzic (Windsor), reviewing Eizabeth Chamblee Burch, Publicly Funded Objectors and Brian Fitzpatrick, Can and Should the New Third-Party Litigation Financing Come to Class Actions?, considering the "thorny question" of funding and compensating class actions. Both were published in a new volume of Theoretical Inquires in Law devoted to the 50th anniversary of class actions.
Thursday, May 31, 2018
SCOTUS Term: Collins v. Virginia And Remedial Shell Games
In Collins v. Virginia, the Court held that the automobile exception to the warrant requirement does not permit police officers to enter the curtilage of a home to search a parked vehicle. Although he joined the majority, Justice Thomas wrote a separate opinion in which he questioned the application of the exclusionary rule to the states.
Justice Thomas’s opinion is part of a long line of cases and individual Justice's writings that chip away at the foundations for the exclusionary rule. His opinion also illustrates a phenomenon I wrote about in a paper forthcoming in the California Law Review, Remedial Convergence and Collapse. In the paper, I argue that the Court’s opinions engage in something of a shell game with respect to remedies for violations related to policing: The Court will question and limit one remedy, while also suggesting that another remedy could substitute for it and incentivize the government to comply with the law. But when faced with a case in which a plaintiff seeks that other remedy, the Court will deny that one too.
Collins showcases how that might occur. In that case, Justice Thomas questioned the application of the exclusionary rule. Without the exclusionary rule, damages suits against officers would presumably serve as the remedy for Fourth Amendment violations. But as anyone following the Court’s docket over the last decade knows, the Court has ratcheted up the standard for qualified immunity, making it hard, if not impossible, to recover damages in most cases of Fourth Amendment violations. The Court summarily reversed a denial of qualified immunity just a few weeks ago, in Kisela v. Hughes, over a dissent by Justice Sotomayor, which was joined only by Justice Ginsburg, and not Justice Thomas.
Now, Justice Thomas has also questioned the Court’s qualified immunity jurisprudence. But until he gets five Justices to cut back on the Court’s qualified immunity jurisprudence and actually stick with that rule, doing away with the exclusionary rule will only further entrench the lack of any viable remedies for parties aggrieved by constitutional violations. And the difficulty of assembling and coordinating five Justices who can agree not only that there should be a remedy in cases involving constitutional violations, but also what the appropriate or default remedy should be, has created a real problem in the Court’s remedies jurisprudence.
Cross-posted at Take Care.
Wednesday, May 30, 2018
SCOTUS Term: The Cert Denial in Planned Parenthood v. Jegley
On the orders list from Tuesday was a denial of certiorari in Planned Parenthood v. Jegley, a case I wrote about previously here. The case involves a challenge to an Arkansas law that requires providers of medication abortion to have contracts with doctors who have admitting and surgical/gynecological privileges at hospitals. The district court had enjoined the law, but the Eighth Circuit vacated the injunction, reasoning that the district court had not made the necessary findings in order to enjoin its enforcement.
Planned Parenthood v. Jegley is part of a trend in cases post-dating Whole Woman’s Health v. Hellerstedt in which states are seeking to whittle down much of the ground that reproductive health advocates thought they had preserved in Hellerstedt. Hellerstedt invalidated two provisions, one that required abortion providers to have admitting privileges at hospitals, the other that required abortion providers to retrofit their facilities to comply with the requirements for ambulatory surgical centers. In invalidating the requirements, Hellerstedt emphasized that courts must assess whether a requirement actually furthers a valid purpose, and weigh its benefits against the burdens the law imposes. In the wake of Hellerstedt, and particularly in the wake of the election, states enacted a slew of restrictions on abortion, and in defending their constitutionality, they sought to limit Hellerstedt in a variety of unpersuasive ways. I wrote about some of them in this piece for the Michigan Law Review online.
After the certiorari denial in Planned Parenthood v. Jegley, commentators were quick to explain that the procedural posture of the case made it an unattractive candidate for certiorari. The Eighth Circuit, after all, had vacated the injunction and remanded the case to the district court to make additional findings. Thus, it is still possible that Planned Parenthood will prevail and have the law enjoined.
But that tree obscures the forest of the post-Hellerstedt landscape. The Eighth Circuit’s reasoning in Planned Parenthood v. Jegley, which stands in light of the Court’s denial of certiorari, was, to put it lightly, absurd, and also wildly inconsistent with Hellerstedt. Planned Parenthood v. Jegley, for example, didn’t assess the law’s benefits while demanding more evidence of the law’s burdens, which wouldn’t (and shouldn’t) have been required given that the law has no apparent benefits. It also faulted the district court for not defining the phrase “the Fayetteville area” and for not estimating the number of women who would forego and postpone their abortions. (The district court in Hellerstedt did not do any of those things.)
Planned Parenthood v. Jegley’s reasoning is already been seized upon by states in the Eighth Circuit in order to justify arguments that would have the circuit flouting Hellerstedt. Consider Hopkins v. Jegley, which involves a challenge to an Arkansas law banning the D&E (dilation and evacuation) procedure, a very commonly used method for second-trimester abortions, among other provisions. Here is how the state is using Planned Parenthood v. Jegley in its brief:
- “A law only imposes an undue burden where its benefits “are substantially outweighed by the burdens it imposes”
- “An undue burden exists where a law completely fails to advance a legitimate interest (or does so in such a trifling way that it lacks any rational connection with the governmental interest) and imposes exceptional and truly significant burdens.”
- “[O]nly rarely—where a legislature totally errs in assessing benefits and burdens—will a law constitute an undue burden.”
- “[A]s this Court recently held in vacating a preliminary injunction similarly based on a finding that a regulation would cause “some women” to delay or forgo an abortion, whether a regulation impacts some is not the relevant question on a facial challenge. Instead, to justify facial relief, [a plaintiff] must demonstrate—and the district court must determine—that the Act would be unconstitutional in a large fraction of relevant cases and not just potential situations that might develop.”
- A law is not unconstitutionaly in a large fraction of cases where “the district court merely alluded to amorphous groups of women.” “[S]peculation about some, unknown number of women hardly warrants facial relief.”
Some of those are direct quotes from Planned Parenthood v. Jegley; others of them are not. The point, however, is that states are milking Planned Parenthood v. Jegley for all that is worth, and given that their audience is the court that wrote Planned Parenthood v. Jegley, some of these arguments may succeed.
Another, related issue is what will happen to abortion providers so long as they labor under this unfavorable and incorrect regime. I’m not just talking about the clinics that are affected by the regulation at issue in Planned Parenthood v. Jegley, though those clinics may be among the casualties. Under usual circumstances, once an appellate court vacates an injunction and issues its mandate, the state could enforce its law (which would no longer be enjoined). In Planned Parenthood v. Jegley, however, the clinics asked the Eighth Circuit to stay the issuance of its mandate, thus preserving the injunction, until the Supreme Court resolved the petition for certiorari. The Eighth Circuit granted Planned Parenthood a stay, over the noted dissent of one judge, Judge Gruender.
But now that the Supreme Court has denied the cert petition, the mandate will issue and the providers will have to frantically seek interim relief (again) in the district court in order to avoid shutting their doors, even temporarily. (The plaintiffs in Planned Parenthoodargued that the regulations would close two of the state’s three clinics.) Interim relief from the provision is important because even temporary door shuttering can have lasting consequences; that’s part of what makes required do-overs and vacated injunctions so risky (in addition to delaying procedures for women). As Melissa Murray noted in this Jotwell review, many of the clinics that closed in the wake of the regulations challenged in Hellerstedt never reopened once the regulations were ultimately invalidated. The same thing may happen in the Eighth Circuit and elsewhere in the wake of Planned Parenthood v. Jegley, as litigants may not always succeed in preventing regulations from going into effect, even for short periods of time.
Two other notes on the certiorari denial in Planned Parenthood v. Jegley. In addition to the procedural posture of the case, the denial prompted questions about a certain Justice’s possible retirement. One way of looking at the votes of Justices Ginsburg, Breyer, Sotomayor, and Kagan was that they were unwilling to push for a grant (and vote for a grant, or at least note that they did so) if they were uncertain whether Justice Kennedy would still be on the Court when it heard the case the following term. Another way of looking at their votes, however, is that they were willing to wait for another case to make its way to the Court at some point in the future, suggesting they might not think Justice Kennedy is going anywhere just yet. I guess we’ll learn more by the end of June.
Disclosure: I signed an amicus brief in support of cert in Planned Parenthood v. Jegley.
Cross-posted at Take Care.
Monday, May 21, 2018
JOTWELL: Steinman on Davis and Whytock on human rights litigation in state court
The new Courts Law essay comes from section co-editor Adam Steinman (Alabama), reviewing Seth Davis & Christopher A. Whytock, State Remedies for Human Rights, 98 B.U. L. Rev. 397 (2018), which considers how human rights violations can be litigated and redressed in state court.
Tuesday, May 08, 2018
"Nationwide" Injunctions Are Really "Universal" Injunctions (Revised)
The updated/revised draft of my article on universal injunctions (complete with new, and more descriptive, title) is on SSRN (hoping the article will be published by June). The new version adds four new developments to the discussion: the Seventh Circuit affirmance of the universal injunction prohibiting enforcement of the sanctuary-city regulations in Chicago; a third district court decision enjoining DACA rescission (this one from D.D.C.); the brief discussion from Justice Gorsuch of cosmic injunctions during Trump v. Hawaii arguments; and an excellent new article by Jonathan Mitchell (VAP at Stanford) exposing what he labels the "writ-of-erasure fallacy," the incorrect belief that declaring a law unconstitutional erases the law, when what it actually does is prohibit enforcement of the law. (I would add prohibit enforcement of the law against the parties to that case, although Mitchell takes no express position on that).
Monday, May 07, 2018
JOTWELL: Coleman on Wexler, Robbennolt, and Murphy on #MeToo Justice
The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Lesley Wexler, Jennifer Robbennolt, and Colleen Murphy, #MeToo, Time’s Up, and Theories of Justice exploring restorative and transitional justice in the #MeToo Movement.
Thursday, April 19, 2018
Last week I flagged Suja Thoma' JOTWELL review of the study by Miguel de Figeueirdo, Alexandra Lahav, and Peter Siegelman of the effect of the six-month list on judicial decisionmaking. Those authors criticize new regulations requiring immigration judges to clear a minimum number of cases to be evaluated as satisfactory. Based on their findings on the minimal-or-negative effects of the six-month list on the quality of judicial deisionmaking, they conclude that imposing such obligations on judges who lack life tenure will "cause their decisions to suffer even more."
I continue to wonder whether there are due process concerns with these regulations, by giving judges a personal or pecuniary interest in the case--if not in the outcome, then in the way in which it is litigated (which affects the outcome).
Wednesday, April 11, 2018
Sole authors of casebooks and amicus briefs
One common comment about the legal academy is how odd the scholarly enterprise looks. To offer nothing particularly new... the journals usually aren't subject to blind peer review. Simultaneous submissions to multiple journals with expedite decisions is wholly foreign to most other academics. And, of course, most lengthy articles are drafted by a sole author. I think it's fair to say that there's been an uptick in co-authored pieces, whether because of an increase in interdisciplinary scholarship or the need for additional contributors in empirical work. But sole authors remain the norm.
The same cannot be said for much of the other work that legal academics do. Casebooks often have a few co-authors. Perhaps that's because the casebook is a large enterprise, or because it may include a variety of sub-topics that call for different expertise, or because one academic is on the way out and invites another academic on the way in to help transition.
And amicus briefs are sometimes signed by dozens, if not hundreds, of academics. Sometimes this might be a larger collaborative affair in short-fuse litigation, or sometimes it may (ed.: don't say it!) serve as virtue signalling to fellow academics who signed the brief (even if one believes everything within the brief!). (Let's face it: we've all been on listservs with a plea for signatures on an already-completed brief.)
While there is increased recognition of the value of co-authored law review articles, I'm not sure enough recognition has been given to the opposite in casebooks or amicus briefs--specifically, those with a sole author.
Two casebooks I regularly use are Professor George Fisher's Evidence and Professor Gary Lawson's Federal Administrative Law. The students, I think, can sense that there is an authentic personality in the text, because, perhaps, the author is able to speak with a single narrative voice, without piecemeal chapters or compromises among co-authors in communicating a point. Of course, I often use co-authored casebooks in other courses, but these two strike me as particularly rich. (A third I'd include in this category is the late Professor Richard Nagareda's first edition of The Law of Class Actions and Other Aggregate Litigation.) And, of course, I can only speak of the fields where I've spent time perusing casebooks.
I've also noticed a few recent sole author amicus briefs in the United States Supreme Court from law professors, which have struck me as unusually thoughtful (sometimes even persuasive!).
Professor Orin Kerr in Carpenter v. United States;
Professor Aditya Bamzai in Ortiz v. United States (in support of neither party, and yielding an opportunity to participate in oral argument);
Professor Jenn Mascott in Lucia v. SEC.
(To name only a few!) This is not to say that only these amici have influenced the Court, of course (and on such matters I would heartily defer to sound analysis from the outstanding work of Adam Feldman!), but it is to say that sole authors have received some (and perhaps disproportionate) favorable attention lately. I wonder if we might not only underappreciate their contributions, but also see an increase in such work in the future. (It's also not to minimize the dual-authored amicus briefs, sometimes a pair of authors who've written on the subject before and file as amici--but I'll let someone else chronicle those efforts....)
Perhaps I have an overly romanticized notion of the sole-authored casebook and amicus brief. (Indeed, I imagine some of the named individuals might have much more reality-oriented views on the costs of such activities!) But, they strike me as interesting opportunities worth serious consideration.
So... any favorite sole-authored casebooks or amicus briefs? Or better explanations for these phenomena?
Tuesday, April 10, 2018
Essential law review symposium issues
Thanks to Howard for allowing me to return to Prawfs! I write on election law, and I blog at Excess of Democracy, but they'll (mostly) be background issues for my stint here at Prawfs (I hope!). I want to start with some more general items, some of which I hope to be of particular interest to more junior faculty. First up: law review symposium issues.
When researching a new topic or refreshing my recollection on something old, I've probably become the last prawf to realize how valuable law review symposium issues are (a slightly different inquiry than Professor Carissa Byrne Hessick's thoughtful post on law review articles generally). Time and again, I've found that some outstanding symposium issues are chock full of terrific pieces, a kind of one-stop-shop for research rather than plodding through Westlaw or SSRN. Because most law reviews are general (admittedly, I also rely a lot on the peer-reviewed Election Law Journal!), symposium issues serve as a convenient place to browse a number of articles on a topic, which can serve as an incredible launching point for research.
I'll name three such issues I regularly rely upon, and I'll link to their tables of contents (Hein subscription may be required). Each of these have a terrific collection of pieces.
The Law of Presidential Elections: Issues in the Wake of Florida 2000, Florida State University Law Review, Vol. 29, Issue 2 (2002)
Baker v. Carr: A Commemorative Symposium, North Carolina Law Review, Vol. 80, Issue 4 (2002)
Congress in the Twenty-First Century, Boston University Law Review, Vol. 89, Issue 2 (2009)
(As an added bonus, I snag print copies from the library and keep them in the middle of my office coffee table for handy reference.)
A couple of questions for the comments (or for Twitter):
First, what makes for an outstanding symposium issue (and not just an outstanding symposium--although perhaps the two have some relationship)? The issues above range from the extremely timely to the the half-century-old. The article lengths and types of contributors can vary widely, too.
Second, what are some of the symposium issues you find essential in your field? For those who have been writing for many years, it can be particularly helpful to direct newer colleagues toward such resources, as diverse as our areas of interest might be. (This, I hope, might supplement the classic 2006 post from Professor Matt Bodie, "Research Canons"--very much worth reading!)
Monday, April 09, 2018
JOTWELL: Thomas on De Figueiredo on the pending case list
The new Courts Law essay comes from Suja Thomas (Illinois), reviewing Miguel de Figueiredo, Alexandra D. Lahav & Peter Siegelman, Against Judicial Accountability: Evidence From the Six Month List (available on SSRN), an empirical study of the effects of the pending-case-and-motion list.
Tuesday, March 27, 2018
JOTWELL: Pfander on Nourse on statutory interpretation and democracy
The new Courts Law essay comes from James Pfander (Northwestern-Pritzker), reviewing Victoria Nourse, Misreading Law, Misreading Democracy (Harvard Univ. Press 2016), arguing for a "legislative decision" approach to statutory interpretation that recognizes how the legislative process functions.
Monday, March 12, 2018
JOTWELL: Tidmarsh on Avraham and Hubbard on procedural flexibility
The new Courts Law essay comes from Jay Tidmarsh (Notre Dame), reviewing Ronen Avraham and William Hubbard, Procedural Flexibility in Three Dimensions (unpublished draft, coming to SSRN soon), proposing markets in procedural entitlements (such as depositions or words in briefs). It is a fascinating idea and Avraham and Hubbard were gracious in allowing Jay to read and review an early draft. The piece should be on SSRN soon; we will add a link when it does.
Thursday, March 08, 2018
The Immigration Nexus: Law, Politics, and Constitutional Identity (Updated)
I am in Portland today for the 2018 Spring Symposium of Lewis & Clark Law Review, The Immigration Nexus: Law, Politics, and Constitutional Identity. I will be talking about universal injunctions (and the paper will undergo significant organizational changes in the next draft, as I incorporate helpful reader comments and a different focus that I discovered in preparing my talk) and Amanda Frost will present her paper in support of them (we actually are close on a lot of the underlying issues).
Spring 2018 Law Review Symposium: The Immigration Nexus: Law, Politics, and Constitutional Identity
Date: 1:00pm - 5:00pm PST March 9 Location: Erskine B. Wood Hall
1:00 p.m. PANEL ONE
(Moderator: Associate Dean John Parry)
OPPORTUNITIES & ANXIETIES: A STUDY OF INTERNATIONAL STUDENTS IN THE TRUMP ERA
THE CONSTITUTION AND THE TRUMP TRAVEL BAN
UNIVERSAL NOT NATIONWIDE AND NOT APPROPRIATE: ON THE SCOPE OF INJUNCTIONS IN CONSTITUTIONAL LITIGATION
IN DEFENSE OF UNIVERSAL INJUNCTIONS
3:15 p.m. PANEL TWO
(Moderator: Professor Juliet Stumpf)
WHO NEEDS DACA OR THE DREAM ACT?
THE IMMIGRATION-WELFARE NEXUS IN A NEW ERA?
THE 20-YEAR ATTACK ON ASYLUM SEEKERS
Friday, March 02, 2018
Summit on the Future of Legal Education and Entry to the Profession
Showing synthesis with this month's Prawfs Virtual Symposium on the Futures of Legal Education, on April 12-13, FIU College of Law and FIU Law Review will host a Summit on the Future of Legal Education and Entry to the Profession. The program is organized by my colleague Scott Norberg, who will be at Prawfs this month; several authors will participate in both programs, including Dan.
Friday, February 23, 2018
JOTWELL: Wasserman on Schwartz on Qualified Immunity
I have the new Courts Law essay, reviewing Joanna C. Schwartz, How Qualified Immunity Fails (Yale L.J.), an empirical study on the actual frequency and success of qualified immunity in five federal districts.
Friday, February 09, 2018
JOTWELL: Levy on Epps and Ortman on a SCOTUS docket lottery
The new Courts Law essay comes from Marin Levy (Duke), reviewing Daniel Epps & William Ortman, The Lottery Docket (Mich. L. Rev., forthcoming), which proposes that SCOTUS increase its docket through randomly selected cases from the courts of appeals. A fascinating idea.
Monday, February 05, 2018
Understanding Civil Rights Litigation (2d ed.)
I am happy to announce that the Second Edition of Understanding Civil Rights Litigation has been published by Carolina Academic Press (having taken over Lexis Nexis books) and is available at supermarket checkout counters near you.
This ended up a substantial rewrite from the first edition--the book I really wanted to write, the second time around. I included Puzzles (drawn from lower-court cases and lawsuits) for almost all sections and subjects in the book, for review and class discussion (I am using this as the sole text for my Civil Rights course this semester). I beefed up the discussion of substantial issues from recent litigation (such as the scope of injunctions and effects of stays of preliminary injunctions). Aping Jim Pfander's Principles of Federal Courts, I eschewed footnotes in favor in-text parenthetical references to case names, with detailed tables of cases and authorities, with citations, in the back of the book; I think it makes for an easier read.
I welcome comments and feedback.
Tuesday, January 23, 2018
JOTWELL: Bookman on Effron on privatized procedure
The new Courts Law essay comes from new JOTWELL contributor Pamela Bookman (Temple), reviewing Robin Effron, Ousted: The New Dynamics of Privatized Procedure and Judicial Discretion (B.U. L. Rev. forthcoming), which describes how private procedure and judicial control come together.
Wednesday, January 17, 2018
Universal, Not Nationwide, and Never Appropriate
The first draft of my article on universal injunctions is now on SSRN: Universal, Not Nationwide, and Never Appropriate: On the Scope of Injunctions in Constitutional Litigation. I wrote this for a symposium at Lewis & Clark, which gave me a chance to get my thoughts on the subject on paper. And while this is an early draft, I wanted to get it out there, as this has become a hot topic both in the scholarly literature and the press. Comments welcome.
Moving forward, I will combine this piece with a discussion of judicial departmentalism to create a larger model of incremental constitutional litigation.
Tuesday, January 09, 2018
JOTWELL: Campos on Shapira and Zingales on DuPont and discovery costs
The new Courts Law essay comes from Sergio Campos (Miami), reviewing Roy Shapira and Luigi Zingales, Is Pollution Value-Maximizing? The DuPont Case, which Campos uses to show the problem with focusing on discovery costs to the exclusion of the benefits discovery provides in revealing wrongdoing.
Monday, December 11, 2017
JOTWELL: Malveaux on Coleman on gender inequity in complex litigation
The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing Brooke Coleman, A Legal Fempire? Women in Complex Litigation, Ind. L.J. (forthcoming), discussing the paucity of women litigators and judges in MDL litigation.
Monday, November 27, 2017
JOTWELL: Michalski on Dodge & Dodson on personal jurisdiction
The new Courts Law essay comes from Roger Michalski (Oklahoma--one of several new contributors to the section), reviewing William S. Dodge & Scott Dodson, Personal Jurisdiction and Aliens, Mich L. Rev. (forthcoming), which argues for a national-contacts test for personal jurisdiction over non-US persons.
Monday, November 13, 2017
JOTWELL: Effron on Trammell on precedent and preclusion
The new Courts Law essay comes from Robin Effron (Brooklyn, visiting at Notre Dame), reviewing Alan M. Trammell, Precedent and Preclusion, ___ Notre Dame L. Rev. (forthcoming), which considers the due-process connections of precedent and preclusion.
I am anxious to read Alan's piece, as the distinction between precedent and preclusion is central to a theory of judicial departmentalism.
Monday, October 30, 2017
New ACS Brief on Local Voting Rights
The right to vote is a fundamental right inherent in the U.S. Constitution and all state constitutions. Most scholarship on this right focuses on only federal or state law and omits discussion about how local law may also confer this right. In his new Issue Brief, “Expanding Voting Rights Through Local Law,” Professor Joshua A. Douglas of the University of Kentucky explores how cities and towns across the country are expanding the right to vote in municipal elections to include sixteen- and seventeen-year-olds, noncitizens, nonresident property owners, and others. He argues that municipalities can serve as “test tubes of democracy” that may experiment with different voting rules, and these expansions can then spread to other municipalities and even up to states or Congress. Douglas concludes that when examining these local laws, courts should defer to those that expand the franchise, while training a more skeptical eye on laws that restrict voter access.
If for no other reason, you should read it because it starts with a reference to The West Wing! (Ah, if only Jed Barlet was our president...)
JOTWELL: Erbsen on Lahav on Procedural Design
Thursday, October 12, 2017
JOTWELL: Mullenix on Symeonides on forum-selection clauses
Thursday, September 28, 2017
JOTWELL: Walsh on Pfander and Birk on Article III adversity
The new Courts Law essay comes from Kevin Walsh (Richmond) reviewing the pieces of a three-article exchange between James Pfander and Dan Birk against Ann Woolhandler over the requirement of adversity under Article III and the idea of non-contentious adjudication.
Monday, September 18, 2017
JOTWELL: Smith on Baude on Qualified Immunity
The new Courts Law essay comes from new contributor Fred Smith (Emory), reviewing William Baude, Is Qualified Immunity Unlawful?, 106 Cal. L. Rev. (forthcoming 2018). This is a great article that Justice Thomas citing in his concurring opinion in Ziglar and that I cited to extensively in updating the immunity sections of Civil Rights book.
Wednesday, July 19, 2017
JOTWELL: Lahav on Kessler on the rise of legal adversarialism
The new Courts Law essay comes from Alexandra Lahav (U Conn), reviewing Amalia Kessler, Inventing American Exceptionalism: The Origins of American Adversarial Legal Culture (Yale University Press). Lahav focuses on the way in which equity practice relied on a non-adversarial, judge-centered system (something Kessler has written about before) and how adversarialism arose from that.
Tuesday, June 20, 2017
CFP: Idaho Law Review Symposium: Terry v. Ohio at 50
CALL FOR PAPERS OR PRESENTATIONS
The University of Idaho College of Law’s 2018 Idaho Law Review symposium issue will study the impact of Terry v. Ohio, a decision nearly 50 years old. The symposium will be held on April 6, 2018 at the Idaho Law & Justice Learning Center, the College of Law’s Boise location. We invite original paper submissions for presentation at the symposium, as well as panel proposals.
The symposium will explore the impact that Terry and its endorsement of stop-and-frisk has had on communities of color, policing, and even national politics. We welcome a variety of proposals, including those that provide a narrative account of Terry and its aftermath, as well as those related to civil rights litigation, how stop-and-frisk is understood or misunderstood, Terry’s doctrinal importance, and its use in practice. At least one panel featured at the symposium will highlight how Terry impacts policing in Idaho. Additional issues that may be addressed include:
· What was the result of the Court’s decision to downplay racial profiling in Terry?
· Does the public believe that stop-and-frisk is unconstitutional? If so, why?
· How do outstanding arrest warrants affect the use of stop-and-frisk?
· What was the impact of the Section 1983 litigation regarding the NYPD’s use of stop-and-frisk?
· Should Terry be overruled?
Symposium papers or presentations addressing the topics above—or others proposed—will be presented at the conference, with publications appearing in the Symposium volume in Spring, 2018. We will also consider proposals for presentations without written contributions.
Draft abstracts of no more than one page and queries may be addressed to Patxi Larrocea-Phillips, Chief Symposium Editor, at [email protected], as soon as possible and no later than July 31, 2017.
Travel expenses will be paid for presenters of accepted papers or presentations.
This is an exciting year for the University of Idaho College of Law. Our dual location model comes full circle this fall as we welcome our first Boise 1L section. Students now have the option of completing their legal education at either our Moscow or Boise locations. Learn more about the dual location model here.
Friday, June 16, 2017
JOTWELL: Leong on Mika on gender disparity before SCOTUS
The new Courts Law essay comes from Nancy Leong (Denver), reviewing Jennifer Mika, The Noteworthy Absence of Women Advocates at the United States Supreme Court (Am. U. J. of Gender, Soc. Pol'y & Law 2017), which measures the gender disparities among SCOTUS advocates.
Monday, June 05, 2017
JOTWELL: Levy on Grove on judicial independence
The new Courts Law essay comes from Marin Levy (Duke), reviewing Tara Leigh Grove, The Origins (and Fragility) of Judicial Independence (forthcoming Vand. L. Rev.).