Monday, December 15, 2014

(Mis)trusting States To Run Elections

The Supreme Court is probably going to hear another voter ID case within the next year or so -- from Wisconsin or Texas -- or different case involving a state's administration of an election, such as one about North Carolina's very restrictive voting law.  I bet the Court will largely defer to a state in its election-related processes and will probably uphold whatever law it reviews.  But that is unfortunate, because it is both doctrinally wrong and practically dangerous. 

As I recount in a new article, forthcoming next month in the Washington University Law Review, the Court too readily defers to a generic state interest in "election integrity" when reviewing the constitutionality of a state's election practice.  Previously, a state had to provide a specific rationale for the law, especially under a higher level of scrutiny.  Now, however, so long as a state says "election integrity," the Court does not question that justification, taking it at face value as an important governmental interest.  But often the state is not really trying to achieve election integrity, at least not principally.  There are often partisan motivations behind an election regulation.  How else can one explain a law, such as North Carolina's, that is passed on a party-line vote and will effect only the minority party's supporters?  Contrary to the approach to state election rules, the Court has closely scrutinized Congress's rationale for an election regulation, refusing to defer to legislative judgment.

Moreover, the Court has said that election litigation should proceed only through as-applied challenges, which requires piecemeal adjudication, yet it has invalidated several federal election laws on their face.  Requiring only as-applied litigation provides a procedural mechanism to defer to a state's election processes.

After the jump I explain the problems with this approach. 

Defering to states substantitively on their interests in an election law and procedurally through as-applied challenges is constitutionally suspect, especially because the Court does not analyze federal election rules in the same manner.  This mode of analysis ignores the fact that the U.S. Constitution, through the Elections Clause (Art. I, Sec. 4), gives Congress an explicit oversight role in state election rules.  In addition, the various amendments relating to voting provide that Congress may "enforce" those constitutional mandates.

The deference is also dangerous.  States know that their laws will not receive meaningful scrutiny and that they need only tie a new rule to "election integrity" in the abstract to pass the first prong of the constitutional test (the state interest prong).  This emboldens state legislatures to enact laws with partisan gains in mind because they can gloss over that point by raising the "election integrity" mantra.  But partisan motiviations should play no role in how we structure our elections.

The Court should not defer so readily to a state's election process.  Instead, the Court should apply a meaningful form of strict scrutiny review to laws that infringe upon the constitutional right to vote and require both Congress and legislatures to justify their laws with a stronger rationale than just election integrity, especially if there is an inference that the legislature really had partisanship in mind.

Here is the abstract of the article, for those who want more on this argument:

Current Supreme Court doctrine defers too readily to states’ voting systems. In the process, the Court has removed Congress from the elections business. The Court has done so not explicitly but through two judicial maneuvers, one substantive and the other procedural, that place tremendous trust in states: lowering the bar for the state interest prong of the constitutional analysis, and forbidding facial challenges to state rules on election administration. The Court has credited any state assertion of “election integrity,” even if that is not the actual impetus for the law under review. It also will reject a facial challenge to a state voting rule, thereby leaving the law in place until a plaintiff has gathered actual evidence of the law’s impact on particular voters. The Court has not treated Congress the same, demonstrating its willingness to invalidate a federal voting rule on its face even when Congress has asserted a more detailed rationale for the law. This Article uncovers this approach to constitutional challenges to voting regulations. It also explains why this current jurisprudence is both wrong and dangerous. It is wrong because the U.S. Constitution gives the federal government significant scope to promulgate election regulations, and states are subordinate to Congress under our constitutional structure. It is dangerous because the current deferential approach emboldens states to pass partisan-based laws with an eye toward affecting elections, and all a state needs to say to justify a new law is that it is seeking to ensure “election integrity.” The Court should reverse this current jurisprudence by requiring states to provide a more detailed justification for an election law and by allowing broader use of facial challenges to invalidate state voting laws, when necessary, before they are implemented. Voting, as a fundamental right, deserves robust protection from the courts. Scrutinizing state election laws more closely will help to achieve this worthy goal.

Comments are welcome! 

Posted by Josh Douglas on December 15, 2014 at 02:10 PM in Article Spotlight, Constitutional thoughts, Law and Politics | Permalink | Comments (1)

Thursday, December 11, 2014

JOTWELL: Mulligan on Preis on causes of action

The new Courts Law essay comes from Lou Mulligan (Kansas), reviewing Jack Preis, How Federal Causes of Action Relate to Rights, Remedies, and Jurisdiction (Fla. L. Rev.) (forthcoming). Jack's article is terrific (it will be an essential piece if/when I return to writing about jurisdictionality) and so is Lou's review.

Posted by Howard Wasserman on December 11, 2014 at 05:04 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, December 09, 2014

The New Cognitive Property & Human Capital Law

Intellectual property is all about the bargain, no absolutes. But below the radar, a patchwork of law and contract is operating to expand the types of knowledge and information that become propertized. My new article, The New Cognitive Property: Human Capital Law and the Reach of Intellectual Property, forthcoming Texas Law Review 2015 is now up on ssrn. Here is the abstract and as always, I would love to get your thoughts and comments:

Contemporary law has become grounded in the conviction that not only the outputs of innovation – artistic expressions, scientific methods, and technological advances – but also the inputs of innovation – skills, experience, know-how, professional relationships, creativity and entrepreneurial energies – are subject to control and propertization. In other words, we now face a reality of not only the expansion of intellectual property but also cognitive property. The new cognitive property has emerged under the radar, commodifying intellectual intangibles which have traditionally been kept outside of the scope of intellectual property law. Regulatory and contractual controls on human capital – post-employment restrictions including non-competition contracts, non-solicitation, non-poaching, and anti-dealing agreements; collusive do-not-hire talent cartels; pre-invention assignment agreements of patents, copyright, as well as non-patentable and non-copyrightable ideas; and non-disclosure agreements, expansion of trade secret laws, and economic espionage prosecution against former insiders – are among the fastest growing frontiers of market battles. This article introduces the growing field of human capital law, at the intersections of IP, contract and employment law, and antitrust law, and cautions against the devastating effects of the growing enclosure of cognitive capacities in contemporary markets.

Posted by Orly Lobel on December 9, 2014 at 10:45 AM in Article Spotlight, Employment and Labor Law, Information and Technology, Intellectual Property, Orly Lobel, Property, Workplace Law | Permalink | Comments (0)

Monday, December 08, 2014

Body cameras and and predictive analysis

Andrew Ferguson (UDC) argues at HuffPost that police body cameras can be used to track smaller, more routine police-citizen interactions that might be predictive of future, more severe wrongdoing by some officers. Worth a read.

Posted by Howard Wasserman on December 8, 2014 at 06:43 PM in Article Spotlight, Criminal Law, Howard Wasserman, Law and Politics | Permalink | Comments (0)

State Judges and the Right to Vote

If you follow elections, you probably heard about the Supreme Court's last-minute decisions in the Wisconsin and Texas voter ID cases, stopping Wisconsin from implementing its ID law but allowing Texas to move forward with its law for the 2014 election.  But unless you study election law, I bet you didn't notice the Arkansas Supreme Court decision invalidating that state's voter ID law, or the myriad other election cases state courts decide that affect the voting process.

But state courts are intimately involved in regulating elections, especially given that, unlike the U.S. Constitution, all state constitutions explicitly confer the right to vote.  Indeed, to understand the meaning and scope of the right to vote, we need to study how state judicial decisions impact the way in which we run our elections.  Below the fold I provide some details of my study of state judges and the right to vote.

This inquiry reveals some interesting trends.  

First, state courts decide lots of cases on issues of importance, such as voter ID, felon disenfranchisement, the legality of voting machines, whether to keep polls open late, whether to count absentee ballots, and others.  State court activity on voting rights is much more robust than federal court decision making in this area.  Yet as legal scholars and as a society at large we tend to pay much less attention to state cases than to federal court decisions.  Second, not surprisingly, "liberal" judges tend to construe the constititutional right to vote more broadly than "conservative" judges.  Third, appointed judges are better than elected judges at ruling more broadly toward voting rights, especially for political minorities.

These gems--and others--fill up the pages of my new draft, State Judges and the Right to Vote.  I'd be delighted for comments and thoughts on the piece.  Here is the abstract:

State courts are paramount in defining the constitutional right to vote. This is in part because the right to vote is, in many ways, a state-based right protected under state constitutions. Yet our focus on state courts and on how state judges interpret the right to vote is sorely lacking. This article remedies that deficiency. It examines numerous state court cases involving voter ID, felon disenfranchisement, and the voting process, demonstrating that state courts vary in whether they rule broadly or narrowly toward voting rights. When state courts issue rulings broadly defining the constitutional right to vote, they best protect the most fundamental right in our democracy. On the other hand, state decisions that constrain voting to a narrower scope do harm to that ideal. Further, a preliminary analysis shows that liberal judges, as well as those who earn their seats through merit selection, are more likely to define the right to vote robustly as compared to their conservative and elected counterparts. Given that state judges impact our election system in significant ways through broad or narrow rulings on voting rights, we should advocate in favor of state courts and state judges who will broadly construe and protect the state-based constitutional right to vote.

Posted by Josh Douglas on December 8, 2014 at 09:51 AM in Article Spotlight, Constitutional thoughts, Current Affairs, Law and Politics | Permalink | Comments (0)

Friday, November 28, 2014

JOTWELL: Steinman on Larson on factual precedent

The latest JOTWELL Courts Law essay comes from co-Section Editor Adam Steinman (now at Alabama), reviewing Allison Orr Larson Factual Precedents (U. Pa. L. Rev. 2013), which explores the extent to which factual conclusions in SCOTUS decisions should be binding on lower courts.

Posted by Howard Wasserman on November 28, 2014 at 03:09 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, November 24, 2014

Final Repost: Petrie-Flom Center Annual Conference Call for Abstracts: "Law, Religion, and American Health Care"

Final Repost: The deadline is next Monday, December 1.

The Petrie-Flom Center invites abstracts for its 2015 Annual Conference: “Law, Religion, and American Health Care.” The conference will be held at Harvard Law School on May 8 and 9, 2015. 

The conference seeks to address the following topics:
  • Analysis of the First Amendment, the Religious Freedom Restoration Act, and other federal, state, and local legal provisions that come into play at the intersection between religion and health care
  • The Affordable Care Act and employer-based health care coverage, including the contraceptives mandate and related court decisions
  • Legal obligations and accommodations of religious health care organizations
  • Protection (or not) of health professional conscience
  • Health care decision-making for minors with religious parents
  • Religious objection v. discriminatory behavior
  • Informed consent and information flow, e.g., religious objection to providing certain information, inclusion of religious information in consent disclosures, etc.
  • “Medicalization” of religious beliefs, e.g., regulation of homosexual conversion therapy
  • Abortion policy, including clinic protests and protections, and its relationship to religion
  • Embryonic stem cell policy and its relationship to religion
  • End-of-life care, including assisted suicide, and its relationship to religion
  • Complicity as both a legal and religious concept
  • Comparative analysis, e.g., between professions, health care practices, countries, etc.

Please note that this list is not meant to be exhaustive; we hope to receive papers related to the conference’s general theme but not specifically listed here. Abstracts are due by December 1, 2014.

For a full conference description, including the call for abstracts and registration information, please visit our website.

Posted by Howard Wasserman on November 24, 2014 at 09:31 AM in Article Spotlight, Howard Wasserman, Sponsored Announcements | Permalink | Comments (0)

Tuesday, November 18, 2014

Moral Panics and Body Cameras

That is the title of my new essay in Wash. U. L. Rev. Commentaries (and forthcoming in Wash. U. L. Rev.). The abstract is after the jump.

Obviously, I have been thinking about Ferguson quite a bit of late.

This Commentary uses the lens of "moral panics" to evaluate public support for equipping law enforcement with body cameras as a response and solution to events in Ferguson, Missouri in August 2014. Body cameras are a generally good policy idea. But the rhetoric surrounding them erroneously treats them as the single guaranteed solution to the problem of excessive force and police-citizen conflicts, particularly by ignoring the limitations of video evidence and the difficult questions of implementing any body camera program. In overstating the case, the rhetoric of body cameras becomes indistinguishable from rhetoric surrounding responses to past moral panics. 

Posted by Howard Wasserman on November 18, 2014 at 09:31 AM in Article Spotlight, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Saturday, November 15, 2014

JOTWELL: Pfander on Bruhl on lower-court precedent

The latest Courts Law essay comes from Jim Pfander (Northwestern), reviewing Aaron-Andrew Bruhl's Following Lower-Court Precedent (U. Chi. L. Rev. 2014), which considers how and when SCOTUS cites to lower-court authority.

Posted by Howard Wasserman on November 15, 2014 at 10:31 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, November 03, 2014

Repost: Petrie-Flom Center Annual Conference Call for Abstracts: "Law, Religion, and American Health Care"

The Petrie-Flom Center invites abstracts for its 2015 Annual Conference: “Law, Religion, and American Health Care.” The conference will be held at Harvard Law School on May 8 and 9, 2015.  

The conference seeks to address the following topics:

  • Analysis of the First Amendment, the Religious Freedom Restoration Act, and other federal, state, and local legal provisions that come into play at the intersection between religion and health care
  • The Affordable Care Act and employer-based health care coverage, including the contraceptives mandate and related court decisions
  • Legal obligations and accommodations of religious health care organizations
  • Protection (or not) of health professional conscience
  • Health care decision-making for minors with religious parents
  • Religious objection v. discriminatory behavior
  • Informed consent and information flow, e.g., religious objection to providing certain information, inclusion of religious information in consent disclosures, etc.
  • “Medicalization” of religious beliefs, e.g., regulation of homosexual conversion therapy
  • Abortion policy, including clinic protests and protections, and its relationship to religion
  • Embryonic stem cell policy and its relationship to religion
  • End-of-life care, including assisted suicide, and its relationship to religion
  • Complicity as both a legal and religious concept
  • Comparative analysis, e.g., between professions, health care practices, countries, etc.

Please note that this list is not meant to be exhaustive; we hope to receive papers related to the conference’s general theme but not specifically listed here. Abstracts are due by December 1, 2014.

For a full conference description, including the call for abstracts and registration information, please visit our website.

Posted by Howard Wasserman on November 3, 2014 at 03:41 PM in Article Spotlight, Howard Wasserman, Sponsored Announcements | Permalink | Comments (0)

Wednesday, October 29, 2014

Kentucky Law Journal: Exclusive Submission Window

The following was forwarded by Josh Douglas at Kentucky. If you have an August piece that did not place or you want to get a head start on February:
 
The Kentucky Law Journal is opening an exclusive submission window for articles until November 14, 2014, at 5:00 PM EDT. All papers submitted during this window will be reviewed for publication in Volume 103, Issue 4, set for publication in Spring 2015. By submitting your article during this window, you agree to accept a publication offer, should one be extended. This window is available for articles on all topics, including articles previously submitted to the Kentucky Law Journal, though resubmission will be required. Submissions should be between 15,000 and 25,000 words with citations meeting the requirements of The Bluebook.
 
Submissions should be sent via email to chrisheld.klj@gmail.com. Please include your article, a copy of your C.V. and a short abstract or cover letter.

Posted by Howard Wasserman on October 29, 2014 at 01:03 PM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Photo ID Laws and Voter Suppression

My colleague, Mike Pitts, has posted his latest analysis in a series on the impact of Indiana’s photo ID law, the law that was upheld by the U.S. Supreme Court in 2008. (The earlier papers also are posted on SSRN.) Pitts draws three major conclusions:

First, Indiana’s photo identification law has a relatively small (in relation to the total number of ballots cast) overall actual disfranchising impact on the electorate. Second, Indiana’s photo identification law’s actual disfranchising impact seems to be headed in a downward direction when one compares data from the 2012 general election to the 2008 general election. Third, Indiana’s photo identification law appears to have a disparate impact on women.

Of course, photo ID laws in some states have more stringent provisions, so may have a greater disenfranchising impact.

Posted by David Orentlicher on October 29, 2014 at 11:35 AM in Article Spotlight, Law and Politics | Permalink | Comments (0)

Tuesday, October 28, 2014

JOTWELL: Vladeck on Richman & Reynolds on the appellate court crisis

The new JOTWELL Courts Law essay comes from our own Steven Vladeck, reviewing William M. Richman & Willliam L. Reynolds, Injustice on Appeal: The United States Courts of Appeals in Crisis (Oxford 2013).

Posted by Howard Wasserman on October 28, 2014 at 09:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, October 20, 2014

Parents and the Privacy of Their Children

In a fascinating article about her son’s relationship with Siri in yesterday’s New York Times, Judith Newman does a terrific job illustrating some key benefits of artificial intelligence. Newman observes how Siri has infinite patience for lengthy and detailed discussions of her autistic son’s obsessions, how it forces him to enunciate clearly if he wants to elicit an answer, and how their interactions improve his communication and social skills. Very exciting stuff.

While I enjoyed learning about Siri's impact on Newman's son, the article also reminded me that when writers take us into the privacy of their families’ lives, we may learn more than we should. Millions of other readers and I now know very intimate details about Newman’s son. We know what he likes to discuss.  We know which social skills he lacks.  We learn about his speech skills.

In this case, Newman may have drawn the right balance. From her description of her son, it sounds like his autism is obvious to people who meet him, so it’s not as if she disclosed a medical condition, such as HIV infection or diabetes, that otherwise would not be detected by others. And her son may be very proud of his role in teaching so many people how technology can influence the lives of people with autism.

But other revelations about children are more problematic. In many cases, it seems difficult to justify the intrusions into the privacy of their children’s lives by author-parents. Often, the writings may serve many purposes but not the interests of the children they depict. At a time when government, corporations, and other outsiders are too quick to invade the privacy of children, one would expect parents to be more careful about doing so themselves.

Posted by David Orentlicher on October 20, 2014 at 12:58 PM in Article Spotlight, Information and Technology | Permalink | Comments (0)

Wednesday, October 15, 2014

Justice Clarence Thomas and Korematsu

Recently, there was a discussion on the lawcourt listserv about the worst U.S. Supreme Court decisions ever.  On a related note, this past summer, my short article titled "Justice Clarence Thomas's Korematsu Problem" was published in the Harvard Journal of Racial & Ethnic Justice, and posted on SSRN.  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2456868   Ironically, the issue of whether the Court should formally repudiate Korematsu was also raised in a separate cert. petition during the period I worked on the piece.  Further, Ilya Somin had a post or two on the issue of repudiation, if I recall correctly.  Looking back on the article, I confess that I'm still stunned that Justice Thomas's view of war related executive power, as taken from his judicial opinions, would seem to support Korematsu.  The abstract is below.  Contrary thoughts or arguments are welcome.  Or perhaps I should not be stunned.

ABSTRACT

The U.S. Supreme Court's infamous decision in Korematsu v. United States, 323 U.S. 214 (1944) has been in the news recently as some scholars and advocates, such as Peter Irons, have asked the Court to formally repudiate the decision.  This essay breaks new ground by demonstrating that Justice Clarence Thomas’s jurisprudence on executive power is consistent with that case.  Two cases provide the major evidence.  First, Justice Thomas was the lone dissenter in Hamdi v. Rumsfeld, 542 U.S. 507 (2004) where he reasoned that enemy combatants who were U.S. citizens have virtually no due process rights. 

Moreover, in Johnson v. California, 543 U.S. 499 (2005), he dissented and supported the California prison system’s practice of racially segregating inmates during the intake process.  California argued this minimized racial violence.  Thomas therefore abandoned his well-known position of racial color-blindness in the case.  The juxtaposition of these opinions shows that he would have placed weak national security concerns ahead of strong evidence of racial bias as in Korematsu.  The essay also addresses several counter-arguments.  While Justice Thomas is a well-known supporter of very strong Presidential power, this essay demonstrates that his position is more extreme than might have been thought.

Posted by Mark kende on October 15, 2014 at 04:39 PM in Article Spotlight, Constitutional thoughts | Permalink | Comments (7)

Tuesday, October 14, 2014

JOTWELL: Epstein on Black & Spriggs on precedent

The new JOTWELL Courts Law essay comes from Lee Epstein (Wash. U.), reviewing Ryan C. Black & James F. Spriggs II, The Citation and Depreciation of U.S. Supreme Court Precedent (J. Empirical Legal Stud.), which examines how the use of precedent changes and depreciates over time.

Posted by Howard Wasserman on October 14, 2014 at 10:11 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Wednesday, October 08, 2014

More fan crowd-funding

Fans of Ole Miss stormed the field following the team's win over Alabama (sorry, Paul) last weekend; the acts cost the school about $ 75,000--a $50,000 fine by the conference and about $ 25,000 to replace the goalposts and other damage to the field. Fans crowd-funded the total amount and more in a matter of hours. In our Catalyzing Fans paper, we considered fans raising money to pay an athlete's fine. 

This is an interesting move, although with two important distinctions. First, the fines/costs were the result of the fans' own conduct, so it makes sense for them to pay it. It does not raise the moral hazard problem of fans essentially indemnifying player misconduct; here, they were paying for their own misconduct. Second, the school was involved--fans contacted the athletic department about contributing and the school set-up a special site. But since Ole Miss (as opposed to the Cleveland Cavaliers) is a not-for-profit entity, the direct giving makes sense.

Posted by Howard Wasserman on October 8, 2014 at 03:04 PM in Article Spotlight, Howard Wasserman, Sports | Permalink | Comments (0)

Wednesday, October 01, 2014

Tips on Placing Law Review Articles

I've come back to guest-blog this month at Prawfs in memory of my friend Dan Markel.  Dan started Prawfs as a forum for junior law professors.  (The strange blog name, for those who don't know, is a Markelism for "raw law professor blog.")  I thought it would be fitting to focus my guest-blogging on the topic that originally formed the core of Dan's vision.   In particular, I'm going to blog about topics of special interest to junior law professors and those currently on the teaching market. I'll start with a topic that a lot of junior profs worry a lot about: How to place a law review article in a good journal.  Here are five tips to consider.

1) Submit in the spring.   The best time to submit an article is in the spring submission window, after the new Articles Editors take over and are looking to fill their volume.   Other times can work, certainly, but they tend to be more hit or miss than the spring.  So unless you have a very time-sensitive article, or you need a placement on your CV (such as for a FAR form you plan to submit), it's best to wait for the spring.  The spring season varies journal to journal, but a good ballpark is somewhere in the mid-February to mid-March window.

2)  Make your abstract and introduction clear and easy to read.  For placement purposes, the abstract and introduction are the most important part of the article.  Articles editors will skim them to see if the rest of the article is worth reading, so you need to make the best possible impression.   Think of this as your elevator pitch. The abstract is the 1-minute version of your pitch, and the introduction is the 5-10 minute version. Your abstract and introduction should be as clear and straightforward as you can possibly make them.  Assume your reader is a generalist, and speak plainly and without jargon about what you are saying and why it matters.  For example, if you're making a normative argument, don't just say that your article "explores" a topic or "contemplates" an issue.  Instead, tell them your  precise claim at the outset.  Have a prominent paragraph in both the abstract and introduction that begins, "This Article argues that . . . ." 

3) Proof-read and Blue Book properly.  This recommendation may sound obvious, but it's still really important.  Articles editors will make judgements about your submission based on whether it is bluebooked properly and has any typos or grammar problems.  I once had an article rejected by a single vote in a full board read at a Top-10 journal because the "swing vote" on the committee found some typos in my submission.  According to the articles editor who later filled me in, the "swing vote" editor rejected the piece on the thinking that shoddiness in proofreading might correlate with shoddiness in argument.  Don't let that happen to you.  

4)  If you have relevant experience, consider saying so in an "About the Author" blurb.  If you're a relative unknown or not-yet-established scholar, the articles editors may wonder whether you are enough of a subject matter expert to speak authoritatively about your subject.  Including a CV along with your submission is one way to show them that you are.  Another way is to add a title page that has your contact information and an "about the author" paragraph that summarizes your background.  The "about the author" paragraph is basically your opportunity to tell the articles editors that you know what you're talking about.  For example, if you've submitted an article on patent law, the paragraph might say something like this:  "Jane Smith is a Visiting Assistant Professor at Another Law School, where she teaches and writes in the area of patent law.  She worked for three years as an associate in the patent practice of A, B, and C.  Professor Smith graduated magna cum laude from Snooty Law School, where she published an article on Patent Act reform. She is also registered to practice before the United States Patent and Trademark Office."  

5) Shorter titles are usually better than longer titles.  Titles are much less important than the abstract and introduction, of course, but they're also the first thing articles editors will see.  A lot of law review authors go with really long titles.  They often use the "Cute Phrase That Hints at the Argument You're Making: What the Article is Really About" format that is popular among student notes.   When it comes to titles, though, shorter is usually better.  It's more professional.   That means avoid the colon-bifurcated title if you can.  If you have use it, make it short.  

I'll try to answer any follow-up questions in the comment thread.   Otherwise, best of luck with your submissions.

Posted by Orin Kerr on October 1, 2014 at 12:24 AM in Article Spotlight | Permalink | Comments (15)

Monday, September 29, 2014

JOTWELL: Wasserman on Redish & Aronoff on judicial retention

I have the new Courts Law essay, reviewing Martin Redish (Northwestern) and Jennifer Aronoff's The Real Constitutional Problem with State Judicial Selection: Due Process, Judicial Retention, and the Dangers of Popular Constitutionalism. They argue that judicial life tenure is required as a matter of Due Process, where any other form of retention risks judges being influenced in their decisionmaking by concerns of how to keep their seats on the bench. I have taught for years that retention is the bigger deal than selection in terms of judicial independence (something my daughter also decided to ask about at dinner last night); they finally made the argument.

Posted by Howard Wasserman on September 29, 2014 at 10:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Friday, September 12, 2014

Kopald on health problems from WiFi

Deborah Kopald has a post at Public Citizen's Consumer Law and Policy Blog, discussing health problems associated with WiFi, namely showings of Microwave Sickness by people living/working/going to school too close to wireless hotspots. Worth a read, as she has been pushing this issue for some time.

Posted by Howard Wasserman on September 12, 2014 at 04:00 PM in Article Spotlight, Blogging, Howard Wasserman | Permalink | Comments (14)

Monday, August 25, 2014

Judging Similarity (Part 3)

This post is by guest Irina Manta

Now that I have discussed the background and methodology of the studies in “Judging Similarity”, it is time to turn to a fuller discussion of the implications of our results for the third and last part of this post.

We had three key findings:

1)   Knowledge of copying significantly raises the similarity rating.

2)   Knowledge that a high level of labor went into creating the original work significantly raises the similarity rating.

3)   Knowledge that market substitution occurred does not appear to significantly raise the similarity rating.

As discussed in Part 2, we have reason to believe that the first finding is the result of confirmation bias. This finding is troubling in that it suggests that, at the most basic level, decision-makers may be unable to separate the two prongs of the substantial similarity test and that the copying prong (to borrow rhetoric from Barton Beebe’s work on the trademark multi-factor test) is “stampeding” the similarity prong.

Unlike in a trial setting, where the facts in copyright cases greatly differ from one situation to another, our first study enabled us to isolate the copying element. Nothing changed between the two conditions aside from the statement that the creator of the junior work copied from the original. Given our research design and the fact that we purposefully picked work pairings that are the type likely to go to court, there is reason to believe that the powerful effect of the knowledge of copying may sway decisions on infringement at the margin.

The second finding raises its own problems. We believe that knowledge of a high versus low expenditure of labor played a role in two possible ways. First, it might have triggered the intuition that the greater expenditure of labor ought to correlate to a stronger property right or ownership interest. Generally associated with Lockean ideals, this intuition is thought to map onto people’s beliefs about owning the products and fruits of their labor-intensive activities. The association with “stronger protection” for the work may have translated into a looser standard for similarity. Second, the expenditure of labor may not have triggered subjects’ beliefs about the strength of the property right, but instead directly affected their intuitions about the wrongfulness of the copying. Copying is commonly perceived as a form of free riding and is often associated with plagiarism or cheating. It is therefore conceivable that the creator’s expenditure of labor led subjects to view the copying involved as entailing greater (and more morally outrageous) free riding, which they treated as wrongful.

If our interpretation of subjects’ reasoning is correct, it suggests that copyright law and policy have done a poor job of cabining labor-based considerations. In its now notorious decision in Feist Publications, Inc. v. Rural Telephone Services Co., 499 U.S. 340 (1991), the Supreme Court categorically concluded that “sweat of the brow” considerations—i.e., that copyright should be used as a reward for hard work—are largely irrelevant to copyright law, especially in determining whether and how much protection works obtain. While this may be true as a formal matter, our study shows that decision-makers have a tendency to re-introduce these labor-based considerations during their assessments of similarity as part of the copyright infringement analysis. Interestingly, while scholars usually try to adjust copyright law based on utilitarian considerations, subjects were swayed in their similarity ratings at a statistically significant level by labor considerations (finding 2) but not by market substitution ones (finding 3).

Our study suggests that instead of claiming to have labor-based considerations play no part whatsoever in its working, copyright law should do one of two things. First, it could make a more concerted effort to eliminate labor-based considerations from the different elements of the analysis. Alternatively, it could embrace the reality that moral intuitions relating to labor and free riding directly influence the assessment of similarity, which in turn serves as a simple proxy for wrongfulness. I have written previously about how we might work toward the first goal, but much research remains to be done in this area.

Posted by Howard Wasserman on August 25, 2014 at 10:00 AM in Article Spotlight, Intellectual Property | Permalink | Comments (0)

Tuesday, August 19, 2014

JOTWELL: Understanding Prophylactic Supreme Court Decisions

William Baude at JOTWELL has a review of my colleague John Stinneford's article, The Illusory Eight Amendment. Baude writes, "It is a rare achievement to write about a case in the constitutional law canon and tell us something we did not know. This is the achievement of John Stinneford's recent article . . . . " Professor Stinneford's article critiques Miranda v. Arizona, and contends, contrary to popular wisdom, that it did not truly create a prophylactic rule to prevent compelled confessions. Indeed, Professor Stinneford notes that "the Supreme Court in Miranda did not particularly care what the term 'compelled' means," and because of the Court's failure to address this issue directly, "many of the practices disliked by the Miranda court are still used today. As long as the police give the requisite warnings and obtain the requisite waiver, they can still keep the defendant alone in a room and question him for hours, using psychological pressure and trickery to induce a confession." Both Stinneford's perceptive article and Baude's review explore the implications of this analysis. 

Posted by Lyrissa Lidsky on August 19, 2014 at 11:53 AM in Article Spotlight, Constitutional thoughts, Criminal Law, Lyrissa Lidsky | Permalink | Comments (0)

Summary judgment and the infield fly rule

No, not together, sadly.

The final version of An Empirical Analysis of the Infield Fly Rule is now on-line at the Journal of Legal Metrics/Journal of Law (the book will be out in a month or so). The article presents the results of a four-year study of all infield fly calls in Major League Baseball. I am extending the study for the 2014 and 2015 seasons, as well as trying to apply some advanced baseball metrics to measure the effect of the rule (or, more precisely, what the effect might be if we did not have the rule and infielders were free to intentionally not catch the ball in search of cost-benefit advantages).

And, completely unrelatedly, Mixed Signals on Summary Judgment is now posted to SSRN, and hopefully coming to a law review near you. Here is the abstract:

This essay examines three cases from the Supreme Court’s October Term 2013 that addressed the standards for summary judgment. In one, the Court affirmed summary judgment against a civil rights plaintiff; in two others the Court rejected the grant of summary judgment against civil rights plaintiffs, arguably for the first time in quite awhile, but in procedurally confounding ways. The essay unpacks the substance and procedure of all three decisions, and considers their likely effect and what signals they send to lower courts and litigants about the proper approach to summary judgment.

Posted by Howard Wasserman on August 19, 2014 at 09:31 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, August 18, 2014

JOTWELL: Walker on the effect of teaching procedure

The new Courts Law essay comes from Janet Walker (York--Osgoode Hall) reviewing A Community of Procedure Scholars: Teaching Procedure in the Legal Academy, a piece by authors from four different systems (including Elizabeth Thornburg of SMU) comparing how civil procedure is taught in their law schools and the effect that has on procedure scholarship and procedural systems.

Posted by Howard Wasserman on August 18, 2014 at 02:18 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Wednesday, August 13, 2014

Reviving the Research Canons: What Every Law Prof Needs to Have Read

Mike Madison has a really nice piece out entitled "Lost Classics of Intellectual Property Law."  In it, he chides legal scholarship for failing to pay enough attention to older pieces that have come before and have laid the foundation for the discipline.  His essay seeks to address this problem by setting out those "classics" that need to read, understood, and cited to provide "better and more consistent acknowledgement of earlier work."  The article is actually a compilation of his earlier blog posts, including a 2007 self-described "rant" against the failure of IP scholars to understand the background literature in their field.  Talking about presentations at a working-papers conference, Madison said: "By far the biggest flaw in presentations and papers by junior IP scholars (and sometimes by more senior IP scholars) was and is their evident ignorance of earlier work.  And not just or even work published within the last year or last five years; I’m thinking of the fact that a lot of foundational work published ten years ago or earlier remains significant today."

The new essay called to mind a project we had at Prawfs eight (!) years ago called the "Research Canons" project.  The effort was similar to Madison's -- to compile lists of the foundational works in the legal sub-fields for use by scholars in the area, particularly junior ones.  At the completion of our two-month run, thanks to help from a lot of folks, we ended up with entries for 42 subject areas.  We had 220 comments and links from 18 fellow bloggers supporting the endeavor.  You can find a list of the subject areas, with links to the individual posts, here.

At the end of the Canons run, I expressed hope that the canons could serve as a continuing resource.  However, I also recognized that "[a] weakness of blogs posts is that they seem to have a short shelf-life: once a post is more than a day old, it can be forgotten."  I don't know whether folks continue to check out the Canons, but I suspect that they have been largely forgotten.  So it seems like a good time to revive the project, eight years down the road, and think again about those books, articles, and chapters that are canonical -- that everyone in the discipline should have read.

So this post is intended as an announcement for the project and a request for feedback.  What's the best way to proceed?  I'm planning on having individual posts for individual subjects, as before.  But this time, I'm thinking of asking for the following:

  • Classic Canons.  The pieces that form the foundation for the discipline.
  • Forgotten Canons. The pieces that have not gotten the attention they deserve.
  • New Canons.  The pieces from the last decade that deserve canonical status.

Let me know what you think of the project, whether the old one was helpful, and what we can do this time to make it better.

Posted by Matt Bodie on August 13, 2014 at 11:06 AM in Article Spotlight, Blogging, Research Canons | Permalink | Comments (1)

Tuesday, July 15, 2014

JOTWELL: Levy on Bray on declaratory judgments

The new essay for JOTWELL's Courts Law comes from Marin Levy (Duke), reviewing Samuel Bray's The Myth of the Mild Declaratory Judgment (Duke L.J.). Sam's article is terrific and both it and the review essay are worth a read.

Posted by Howard Wasserman on July 15, 2014 at 10:46 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Sunday, July 13, 2014

The risk to catalyzed fans

As everyone in the Free World now knows, LeBron James chose not to re-sign with the Miami Heat and is on his way back to Cleveland to play for the Cavs, the team he abandoned (to angry rants and burned jerseys) four years ago. So it appears the efforts of two Miami sports-radio hosts to use charitable fan contributions to help keep James did not work.

This demonstrates the risk in Dan, Mike McCann, and my idea about fan action committees--it might not work and if it might not work, fans might not want to participate (I have not been able to find out how much money was donated to Boys & Girls Club or how many fans contributed). One way around that is to utilize a trigger, as many kickstarter campaigns do--the contribution remains only a pledge until and unless the player signs; this one did not have a trigger, and I imagine most charities will not allow triggers when the program is set up directly through the organization (as this one was). Alternatively, organizers hope fans still contribute despite the risk. Perhaps fans continue to donate as a way of engaging in the purely expressive act of showing their support for team and player; fans spend money on many things to support their team--why not charity? Alternatively, fans may be willing to participate because contributing to the charity is a social good (note the non-political nature of the chosen charity) and worth the donation, even if not achieving the alternative goal of convincing James to stay.

Posted by Howard Wasserman on July 13, 2014 at 07:38 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Wednesday, July 02, 2014

Some good news

I'm delighted to point our readers to the direction of the NYT oped page today, where they can find Paul Horwitz's excellent essay on the Hobby-Lobby case and its implications.

I'm also thrilled to note that Rachel Harmon's recent contribution here -- about the Riley case and the fragility of policing knowledge demonstrated by the Court therein -- was selected to be included in a Green Bag/Journal of Law series called The Post (here and here); that series showcases exemplary legal writing from the blogosphere. 

Congrats Paul and Rachel!

Posted by Dan Markel on July 2, 2014 at 12:29 PM in Article Spotlight, Blogging | Permalink | Comments (0)

Monday, June 30, 2014

Catalyzing Miami Heat fans

Catalyzing Fans--the article by Dan, Mike McCann, and me--is forthcoming in Harvard Journal of Sports and Entertainment Law. But its basic idea may be taking root.

LeBron James has opted out of the final year of his contract with the Miami Heat and become a free agent (although he is generally expected to re-sign with the Heat for less money, allowing the team to sign better surrounding players). Just to be sure, the hosts of a show at a Miami sports radio station have announced LeBron-a-Thon, expressing support for James by raising money for Boys & Girls Clubs of Broward County. One of the hosts kicked things off with a $ 1000 donation.

This is an example of what we describe in the paper as a charitable FAC. James is a big supporter of Boys & Girls Club--"The Decision," the ESPN media circus in which James announced his intention to sign with the Heat in 2010, was designed to raise money for that organization. This also shows how easy it is to set something up, although we obviously will have to wait to see if it succeeds in 1) raising significant amounts of money or 2) helping keep James in Miami (causation will be impossible to show, of course). This is slightly different than what we discuss, as there is no trigger--money is donated to the charity regardless of what James does. But this highlights the purely expressive nature of such FAC contributions--fans are saying, in essence, "we appreciate you and so want you as part of our team that we will contribute to a worthy cause that is dear to you." Moreover, the monetary benefit to this reputable charity from fan donations likely represents a net public good, as charity presumptively does, regardless of what James chooses to do.

Now we wait to see what teams beside the Heat emerge as suitors for James and whether fans of those teams launch a similar campaign.

Posted by Howard Wasserman on June 30, 2014 at 09:01 AM in Article Spotlight, Howard Wasserman, Sports | Permalink | Comments (0)

Monday, June 23, 2014

JOTWELL: Thornburg on Hadfield and Ryan and information disclosure

The new Courts Law essay comes from Elizabeth Thornburg (SMU), reviewing Gillian K. Hadfield & Dan Ryan, Democracy, Courts, and the Information Order, 54 J. European Sociology 67 (2013), exploring the demoratizing role of civil litigation, particularly discovery and the public value of information disclosure.

Posted by Howard Wasserman on June 23, 2014 at 10:21 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Monday, June 02, 2014

Bad day for the Federal Circuit

Today was a pretty bad day for the Federal Circuit, as it was unanimously reversed twice in decisions from the April sitting (meaning it took less than two months for the Court to do the reversing). While we should not expect SCOTUS to simply rubber stamp the Federal Circuit because of that court's patent expertise, the Court has now unanimously reversed the Federal Circuit three times this term alone. Anyway, this seems a good excuse to highlight the work of Paul Gugliuzza of Boston University, who combines expertise in IP and Fed Courts and has written extensively on the Federal Circuit and its expansion (for good and ill) of its power.

Posted by Howard Wasserman on June 2, 2014 at 11:23 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Wednesday, May 21, 2014

Sunstein on Epstein

Cass Sunstein has a quasi-gossipy and (therefore/still?) interesting review of Richard Epstein's latest book up on TNR. My quick sense is that it seems unnecessary and probably anachronistic for Sunstein to have credited (or blamed) or even linked Epstein for Tea-Party Constitutional politics altogether. E.g., "Everyone knows who Rand Paul's father is, but in an intellectual sense it is Richard Epstein who is his daddy." Having done so, I also wonder why Randy Barnett's work in the area isn't equally (credited or blamed) or linked.

Thoughts?

Posted by Dan Markel on May 21, 2014 at 11:46 AM in Article Spotlight, Constitutional thoughts | Permalink | Comments (4)

JOTWELL: Malveaux on Marcus on Trans-Substantivity

The new Courts Law essay comes from Suzette Malveaux (Catholic), reviewing David Marcus Trans-Substantivity and the Processes of American Law (BYU Law Review).

Posted by Howard Wasserman on May 21, 2014 at 09:41 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Friday, May 09, 2014

Book Club on "Corporate Governance in the Common-Law World"

9781107013292Prawfs is excited to announce that we'll be hosting a book club for Christopher Bruner's "Corporate Governance in the Common-Law World: The Political Foundations of Shareholder Power."   The club will begin next Tuesday, May 13.  Joining Christopher and Matt Bodie for the club will be:

Hope you'll join us on Tuesday.

Posted by Howard Wasserman on May 9, 2014 at 09:44 AM in Article Spotlight, Matt Bodie | Permalink | Comments (0)

Wednesday, May 07, 2014

The end of roller derby names?

In the closing segment of this week's Slate Hang Up and Listen podcast (go to 57:55 mark), Slate's Josh Levin discusses efforts to make roller derby a more serious sport at the intercollegiate and international levels, also discussed in this Slate piece. Making the sport serious includes the demise of the roller derby nickname--Nun Meaner, Sigmund Droid, Haute Flash, Carmen Getsome, and my favorite, Stone Cold Jane Austen (that one belongs to Devoney Looser, an English professor at Arizona State). More players are going by their given names, at least in international competition, to make the sport seem less like professional wrestling. Occasional GuestPrawf Dave Fagundes, who wrote the definitive article on roller derby names, will no doubt be saddened to learn of this development.

And, since we all need a break from grading: What would you choose as your law- or law-professor-related derby name?

 

Posted by Howard Wasserman on May 7, 2014 at 09:31 AM in Article Spotlight, Howard Wasserman, Sports | Permalink | Comments (3)

Wednesday, April 23, 2014

CFP: Seventh Junior Faculty Federal Courts Workshop

The University of Georgia School of Law will host the Seventh Annual Junior Faculty Federal Courts Workshop on October 10-11, 2014.  The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress.  Confirmed senior scholars include, at this time, Janet Alexander (Stanford), A.J. Bellia (Notre Dame), Heather Elliott (Alabama), Evan Lee (UC-Hastings), Gillian Metzger (Columbia), Jim Pfander (Northwestern), Amanda Tyler (UC-Berkeley), and Steve Vladeck (American).

The workshop is open to untenured and recently tenured academics who teach and write in federal courts, civil rights litigation, civil procedure, and other associated topics. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2014 are welcome. The program is also open to scholars wanting to attend, read, and comment on papers but not present.  There is no registration fee.

The conference will begin with a dinner on Thursday, October 9, then panels on Friday, October 10 and Saturday, October 11. Each panel will consist of approximately 4 junior scholars, with a senior scholar serving as moderator and commenter and leading a group discussion on the papers.  Georgia Law will provide all lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs.

Those wishing to present a paper must submit an abstract by June 20, 2014. Papers will be selected by a committee of past participants, and presenters will be notified by early July. Those planning to attend must register by August 29, 2014. 

Please send abstracts to federalcourtsworkshop@gmail.com. Please contact Matt Hall or Kent Barnett with questions.

Posted by Howard Wasserman on April 23, 2014 at 02:44 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

JOTWELL: Effron on Glover on happenstantial federalism

The latest essay for JOTWELL's Courts Law comes from Robin Effron (Brooklyn), reviewing J. Maria Glover's Mass Litigation Governance in the Post-Class Action Era: The Problems and Promise of Non-Removable State Class Actions in Multi-District Litigation (Journal of Tort Law).

Posted by Howard Wasserman on April 23, 2014 at 02:42 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Friday, April 04, 2014

JOTWELL: Yung on Steinman on stare decisis

The new essay for JOTWELL's Courts Law comes from Corey Yung (Kansas), reviewing Adam Steinman's To Say What the Law Is: Rules, Results, and the Dangers of Inferential Stare Decisis (Virginia Law Review). Adam's article, which is great, argues for an approach to stare decisis that looks to the core rule of a case, not to its result; Corey then discusses how this approach would control the use of Lawrence v. Texas on questions of sexual autonomy.

Posted by Howard Wasserman on April 4, 2014 at 12:40 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (1) | TrackBack

Thursday, April 03, 2014

Linguistic Versatility (or is it Hegemony?) and the Law

There's been much hub-bub the last few years in the US re: legal education and innovation. Assume for a moment that an American law school wanted to offer a degree program leading to an American JD that would be wholly instructed in Spanish or Chinese or Hebrew. Would anyone reasonably object on cultural grounds or is this purely the kind of program that should be allowed to unfold so long as it otherwise maintained a strong bar passage rate?

Israel's facing interesting issues along this front. A few academic institutions are trying to offer law degree programs in English only, and are seeing opposition. 

When I teach in Israel, which I do with some frequency and affection, I do so in English, as part of the increased expectation that Israeli lawyers should be fluent with English language as well as international/comparative approaches to law.  Yet, I fully accept the argument made by one of the stakeholders that fluency in Hebrew is essential to representing one's clients well in Israel. I certainly think my competence with English is critical to my being a tolerably decent scholar -- in English. But if Chinese-speaking professors were in the US to teach American law in Chinese, I don't think I'd have much basis for objection. Let the market sort it out seems roughly right.

The fear about this seems that if the Israeli law schools started teaching in English, there'd be a decline in Hebrew language competence and that could affect lawyer performance for clients. I don't really see that as a threat realistically, because if you're going to practice in Israel, you'll want to speak Hebrew; what's more,  if there's a bar passage requirement that occurs in Hebrew, then that would probably provide a check, along with malpractice claims.

To my mind, what I think of as the French linguistic protectionist approach seems here kind of ... pathetic. But maybe I'm missing something.

 

Posted by Dan Markel on April 3, 2014 at 01:54 PM in Article Spotlight, Dan Markel, Life of Law Schools | Permalink | Comments (1) | TrackBack

Tuesday, April 01, 2014

Orality in litigation

I previously have written about Daniel Meador's arguments (primarily in 1983 in Maryland Law Review) for greater orality in the appellate process. Now comes The Reappearing Judge (forthcoming in Kansas Law Review) by Steve Gensler (Oklahoma) and U.S. District Judge Lee Rosenthal (former chair of both the Committee on Practice and Procedure and the Civil Rules Advistory Committee). They argue for increased live contact between trial judges and attorneys, including many Rule 16 conferences (permitted but not required under the rules), premotion conferences for discovery and summary judgment motions (the district judge I clerked for would immediately get the parties on a telephone conference as soon as a discovery motion was filed), and increased oral argument on dispositive motions. The goal is at least some increase in the number of trials--the ultimate oral process.

The common theme is that more oral presentation of issues (an essential component of greater attorney/judge contact) makes for better, more efficient, and more functional process. Gensler and Rosenthal explicitly highlight premotion conferences as a way to avoid the multi-step "minuet" of motions briefing, saving lawyers the time and money of having to prepare all that briefing and supporting documentation and judges the time of having to review it all. They argue it is easier to get to the core of the issues and to separate the wheat from the chaff with oral presentation, controlled by questions from the court. By contrast, they argue, written motions alone become overly long and complex, with parties often talking past one another, thus they do not reflect the best way to present, understand, or resolve issues. Ironically, of course, their argument comes when written argumentation is becoming easier and faster (via computers, electronic filing, etc.).

Is it right that oral presentation is better than written presentation? Should the legal profession re-orient itself to more oral litigation, at least in the main run of cases that are not overly complex? And how might that affect what and how we teach in law school?

Posted by Howard Wasserman on April 1, 2014 at 09:31 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1) | TrackBack

Sunday, March 23, 2014

Students take on the New Yorker cartoon

I presented that New Yorker cartoon (the one Paul wrote about here) to my Civ Pro students; you can see some of their entries by paging through the course blog. Some of them are pretty good and even incorporate Civ Pro concepts, although they read the cartoon as depicting lawyers playing ping pong.

Posted by Howard Wasserman on March 23, 2014 at 11:27 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0) | TrackBack

Wednesday, March 19, 2014

JOTWELL: Coleman on Reinert on meritless litigation

The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Alex Reinert's Screening Out Innovation: The Merits of Meritless Litigation (forthcoming in Indiana L.J.), which critiques a host of doctrines for not distinguishing meritless claims from frivolous claims. On a separate note, Reinert's article is terrific and I have tried to get my students to grasp that basic distinction, at least rhetorically.

Posted by Howard Wasserman on March 19, 2014 at 09:20 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0) | TrackBack

Thursday, March 13, 2014

What Makes Lawyers Happy? A Study

My colleague and guru, Larry Krieger, has this very cool new paper up on SSRN (co-written with K. Sheldon), and in the space of a couple weeks, it's already received an avalanche of downloads. Here's the abstract. Smart law review editors should want to get their paws on this since it will be cited a zillion times.

"Attorney well-being and depression are topics of great concern, but there has been no theory-driven empirical research to guide lawyers and law students seeking well-being. This article reports a unique study establishing a hierarchy of five tiers of factors for lawyer well-being, including choices in law school, legal career, and personal life, and psychological needs and motivations established by Self-Determination Theory. Data from several thousand lawyers in four states show striking patterns, repeatedly indicating that common priorities on law school campuses and among lawyers are confused or misplaced. Factors typically afforded most attention and concern, those relating to prestige and money (income, law school debt, class rank, law review, and USNWR law school ranking) showed zero to small correlations with lawyer well-being. Conversely, factors marginalized in law school and seen in previous research to erode in law students (psychological needs and motivation) were the very strongest predictors of lawyer happiness and satisfaction. Lawyers were grouped by practice type and setting to further test these findings. The group with the lowest incomes and grades in law school, public service lawyers, had stronger autonomy and purpose and were happier than those in the most prestigious positions and with the highest grades and incomes. Additional measures raised concerns: subjects did not broadly agree that judge and lawyer behavior is professional, nor that the legal process reaches fair outcomes. Specific explanations and recommendations for lawyers, law teachers, and legal employers are drawn from the data, and direct implications for attorney productivity and professionalism are explained."

Posted by Dan Markel on March 13, 2014 at 11:15 AM in Article Spotlight, Funky FSU | Permalink | Comments (3) | TrackBack

Monday, March 03, 2014

An Empirical Analysis of the Infield Fly Rule

The third piece in my "Infield Fly Rule Trilogy," titled An Empirical Analysis of the Infield Fly Rule, is up on SSRN. As the title suggests, I (with the help of seven FIU students, who all seemed to enjoy themselves) conducted an empirical study of the past four MLB seasons to find out the frequency of Infield Fly calls and the effectiveness of the rule in avoiding dramatically inequitable cost-benefit exchanges.

The earlier pieces can be found here, here, and here. The abstract of the new paper follows the jump.

Legal scholars have written extensively about baseball’s Infield Fly Rule -- its history and logic, its use as legal metaphor, and its cost-benefit policy rationales. This paper now conducts the first empirical analysis of the rule, exploring whether the rule’s legal and policy justifications are statistically supported. Based on a review of every fly ball caught by an infielder in the relevant game situation in Major League Baseball from 2010-2013, this paper measures the frequency and location of Infield Fly calls and the effect the rule has on individual games, all to determine whether the feared cost-benefit disparities that motivate the rule would, in fact, result absent the rule. Ultimately, the merits of the Infield Fly Rule cannot be measured empirically, at least not without resort to some ex ante value judgments; the normative conclusion one draws about these data depends on where one starts -- a supporter of the rule and a skeptic both will find confirmation in the information gathered in this paper. Nevertheless, the numbers shed specific and interesting light on the realities of baseball’s most unique and famous (or infamous) play.

Posted by Howard Wasserman on March 3, 2014 at 09:31 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0) | TrackBack

Sunday, March 02, 2014

Legrand and Werro on the Doctrine Wars

The following guest post is a contribution to the conversation continued by Rob Howse here earlier.

Professor Pierre Legrand teaches at the Sorbonne and has been visiting at the University of San Diego Law School and at Northwestern University Law School. Professor Franz Werro teaches at the Université de Fribourg and at the Georgetown University Law Center.

When It Would Have Been Better Not To Talk About a Better Model

So, the German Wissenschaftsrat — a government body concerned with the promotion of academic research (broadly understood) — suggests that legal scholarship should become more interdisciplinary and international. And the American Bar Association — a non-government body devoted to the service of the legal profession — opines that legal education should become more practical and experiential. These pro domo pleas featuring their own interesting history and having generated much debate already, we want specifically to address Professor Ralf Michaels’s reaction.

In his post on “Verfassungsblog” dated 19 February 2014, Professor Michaels claims that “the contrast [between the two reports] points to two problems of the US law school model — and thereby highlights two attractive traits of German education”. According to Professor Michaels, the first difficulty faced by US law schools is that “they are largely financed privately”, which means that “it becomes harder and harder to justify spending significant resources on anything other than the recruitment of better students and on their ability to land well-paying jobs”. The second complication for US law schools that Professor Michaels identifies is related. For him, “[t]he consumer model of legal education requires, ultimately, that law students are taught nothing other than skills”. His reasoning is as follows: “[I]nterdisciplinary scholarship may decline, but doctrinal scholarship cannot take its place because academic understanding of doctrine has been thoroughly discarded”, ergo, “scholarship of any kind may be viewed as useless” and “[l]aw schools may, finally, turn into pure trade schools”. But, in Professor Michaels’s words, “in Germany, this is unlikely to happen”. Professor Michaels’s two-prong explanation is that, on the one hand, “[p]ublic financing of law schools guarantees that the public good aspect of legal education can be maintained” and, on the other, that “the continued acceptance of doctrine as a subject worthy of scholarly attention means not only that scholars will continue to be able to produce scholarship; it also means that the quality of this scholarship will remain at its high level”. To emphasize his claim on the subject of legal doctrine, Professor Michaels writes that “German doctrinal scholarship will always be superior to that of other countries”. He also refers to “the historic advantage [that German law schools] have in excelling at legal doctrine”.

After Professor Robert Howse had replied on “PrawfsBlawg”, Professor Michaels wrote a rejoinder, again on “Verfassungsblog”, with a view to clarifying his initial comments though in effect changing his argument. Professor Michaels’s revised version of his initial assertion is that “the basic claim that German legal scholarship excels more in doctrine while American legal scholarship excels more in interdisciplinarity […] has become almost a truism in comparative law”. Still in his second post, Professor Michaels notes that there are “real institutional differences that perpetuate cultural differences” and that these “cannot simply be wished away”. He adds that “[t]o recognize such cultural differences is our daily job as comparative lawyers”. With specific reference to the statement in his first post that “German doctrinal scholarship will always be superior to that of other countries”, Professor Michaels writes that his “intent” was “quite the opposite [of] claim[ing] superiority of one tradition over the other”. Rather, he says, “[he] tried to make a point about relative incommensurability”. Still in his second post, Professor Michaels insists that “[l]egal education and legal scholarship in different countries are not culturally determined. Nor are they immune to change. At the same time, they exist within the constraints of cultural and institutional traditions, and they respond to these constraints in idiosyncratic ways”. He adds as follows: “[T]he idea that excellence will look similar, at some point, in all systems of the world, appears to me not only unrealistic, but also undesirable”. In his own words, Professor Michaels seeks to “encourage German scholars to keep playing to their strength” while “the US should play to [its] strengths” also. The conversation spurred by Professor Michaels’s intervention has since continued both on “Verfassungsblog” and on “PrawfsBlawg” — and presumably elsewhere also.

In the way senders of hasty e-mails have been writing to take them back, Professor Michaels has wanted to reclaim his statement that “German doctrinal scholarship will always be superior to that of other countries”. Professor Michaels must, of course, be allowed his afterthoughts. But there is a clear sense in which once words have been released in writing, whether in a hasty e-mail or otherwise, any attempt at reconsideration can appear unconvincing. To suggest, as Professor Michaels did after Professor Howse’s initial reply, that he was only advocating that both German and US legal scholarship should be “playing to their strength[s]” strikes us as being indeed unconvincing. After all, elsewhere in his two posts Professor Michaels mentions how German legal scholarship is destined to “remain at its high level”, how it enjoys a “historic advantage”, and, in sum, how it “excel[s] at legal doctrine”. While we are not in a position to divine Professor Michaels’s intent, his many iterations seem difficult to reconcile with anything other than a genuine belief in the German scholarly advantage. Needless to say, Professor Michaels is welcome to his faith. But we think it behooves a seasoned comparativist carefully to distinguish between an expression of preference and an allegedly scholarly formulation whose language may fairly be taken to suggest that a model — one’s “home” model, of all models! — can act as some sort of universal referent (in line with a metric which remains unspecified).

The fundamental point here is that it cannot do to defend the idea that German legal scholarship would be excellent as such. Indeed, Professor Michaels’s assertion is as implausible as if he maintained that “French literary criticism will always be superior to that of other countries” or that “Japanese aesthetics will always be superior to that of other countries” or for that matter that “the Spanish language will always be superior to that of other countries”. The ascertainable fact is that German legal scholarship, French literary criticism, Japanese aesthetics, or the Spanish language — to the extent that such entities can be persuasively delineated — are cultural formations. They are made, fabricated, constructed by women and men interacting in a certain place and at a certain time. They are artefacts. It is not then that there would be something like “cultural excellence” an sich, for all to see. Rather, the quality of excellence is ascribed by an ascertainable constituency of individuals who appreciate “excellence” according to local criteria. For example, the matter of “excellence” in legal scholarship will be attributed by a group of jurists who have been trained to deem certain scholarly forms to be “excellent”, that is, who have been inducted into appreciating certain scholarly practices and socialized into favoring certain scholarly values. To be sure, German scholarly undertakings will often, perhaps typically, adopt a conceptual form and eschew the candid policy concerns that are familiar to US academics. And the reader of German legal scholarship can therefore expect more on systemics and less on patriarchy, more on categories and less on externalities, more on subsumption and less on critical race theory. But none of these German predilections is intrinsically “excellent” or “superior” to prevailing perspectives in other countries. In other words, scholarly excellence very much lies in the eye of the beholder. In the end, there is neither more nor less to be said for or against the “excellence” of German legal scholarship — which, if we are willing to assume such a configuration, illustrates but one way among others to approach the study of law, no matter how influential. Lest influence be confused with rightness or truthfulness, let us emphasize that it is not because German legal scholarship enjoys a substantial and longstanding following that it can claim any particular entitlement to being right or true. Nor is it the case that the tiresome repetition on the part of so many German jurists that their scholarly model is best can, in time, somehow elevate it to the exalted status of universal yardstick by which other forms of scholarship would be assessed. Needless to add, precisely the same reservations must be entered as regards United States legal scholarship, which must also confine any claim to excellence it may wish to hold to a specifiable horizon.

As regards scholarship “US style”, Professor Michaels, while asserting its successful approach to interdisciplinarity, claims to be in a position to identify various and serious deficits. In this respect, we are moved to make two points and two points only (there would be more to say, for instance as regards the distinction Professor Michaels appears to be drawing between what he calls “the public good aspect of legal education” and the teaching of “skills” or with respect to his assumption that doctrinal writing would have fallen into discredit in the United States after US academics had realized that it could not be “sufficiently exact” or indeed as concerns his basic postulate about the absence of doctrinal work on the US academic scene).

First, even if Professor Michaels’s argumentum in terrorem were to be vindicated and even if at some point in future US “law students [were to be] taught nothing other than skills”, it would not follow that US law schools would “turn into pure trade schools”. There is at least one reason why Professor Michaels’s conclusion comes across as a non sequitur, and it is that for the most part scholars in US law schools do not pursue their scholarship to fit their teaching. It is not, of course, that scholarship does not inform teaching. It does, and it must. But scholarship is not beholden to teaching such that whatever happens to make teaching more practical or experiential will ipso facto disincentivize scholarship. (In fact, one can imagine that a number of law teachers being invited to teach more practically or experientially would take to scholarship with renewed vigour.) In other words, even if Professor Michaels is right and, concessio non dato, the class on anticipatory breach of contract were somehow to become strictly doctrinal or skills-oriented, there is nothing in this development that would inevitably discourage contract law professors from continuing to research Max Weber’s sociological understanding of contractual relationships or to pursue an investigation into the economics of early termination of contracts. To suggest, as Professor Michaels does, that “legal scholarship ends up as subordinate to legal teaching” is an overstatement. Rather, US legal scholarship can be expected to resist the commodification of teaching in significant ways — as, indeed, it demonstrably does at present. If anything, the key issue lies elsewhere — and it is one that Professor Michaels apparently misses although it is currently being fiercely debated in the United States. What if law teachers in US law schools were made to teach more than they is the case at present and found themselves having less time to research and write as a result? Arguably, scholarship would then be detrimentally affected, at least quantitatively (though one could claim that such a market correction is long overdue).

Secondly, Professor Michaels’s assumption that students are narrowly focused on obtaining gainful employment and that they will therefore enrol only in courses featuring strictly practical and measurable benefits strikes us as painting an unduly philistine picture of the student body (not to mention the law school’s curriculum committee). We both regularly teach comparative law in US law schools, and we both find that despite real financial pressures and legitimate concerns with life after law school, a significant group of law students — often some of the best ones — remains interested in “enrichment” courses ranging beyond the bar examination. Year after year, our offerings on comparative law continue to attract a critical mass of students, a number of those being sincerely committed to the issues and genuinely interested in the materials. We do not doubt that our experience is also that of many of our colleagues teaching, let us say, “non-mainstream” subjects — and we suspect our experience may well tally with that of Professor Michaels himself. In sum, we take the view that the US law school runs little risk of being visited by Professor Michaels’s dire predictions.

It remains for us to salute how in the two posts of his that we have addressed, though mostly in his second one, Professor Michaels emphasizes the cultural character of legal scholarship (and how he mentions that culture is neither immutable nor determined), how he insists that scholarly cultural response is singular (he calls it “idiosyncratic”), how he argues that the matter of cultural difference cannot be eliminated at will, and how he indicates that the idea that legal scholarship would be the same across legal traditions “appears […] not only unrealistic, but also undesirable”. As Professor Michaels insightfully articulates the matter, in the end variations in legal scholarship pertain to “incommensurability”. In our view, Professor Michaels does well to contend that given incommensurability, “[t]o recognize […] cultural differences is our daily job as comparative lawyers”. We can only hope that this heterodox claim will find a devoted following — not least in Germany where, as all comparativists know, comparative research, largely made inHamburg, has sought to implement an alternative set of assumptions focusing at once on the ascertainment of similarities across laws and on the identification of the better law.

Posted by Dan Markel on March 2, 2014 at 09:56 PM in Article Spotlight, Legal Theory | Permalink | Comments (0) | TrackBack

Saturday, March 01, 2014

Waldron v. Seidman, and the obligations of officials and the rest of us

"Never Mind the Constitution." That's the awesome title of this characteristically sharp and learned essay by Jeremy Waldron, reviewing in the HLR Mike Seidman's new book, On Constitutional Disobedience.  Seidman's got a cheeky and funny short reply to Waldron, entitled, appropriately enough, "Why Jeremy Waldron Really Agrees With Me."  I wonder if Seidman's Response will continue the apparent trend of the personal title for scholarship, e.g., Why Jack Balkin is Disgusting. If Susan Crawford's Response in the Harv. L. Rev. Forum to the review of her book by Chris Yoo is any indication, I suspect at most we can use these few data points only to identify a trend in favor of the  "meta" title and not make broader generalizations just yet.

Moving past the title to something like the merits, I'll confess I'm pretty skeptical toward the general thrust of Seidman's argument (as characterized by Waldron and as evidenced in his NYT oped from last year). He is, as Waldron notes, basically a philosophical anarchist and that's a position I find largely untenable under particular conditions of a reasonable well-working liberal democracy. (Importantly, some of Waldron's work on political obligation was what led me down that path but little of Waldron's work on that subject figures into his review of Seidman.) One last mildly interesting thing to note is that Seidman's embrace of philosophical anarchism and his export of it to constitutional theory basically coincides with the thrust of Abner Greene's recent book, Against Obligation.  There are differences between them, some of which are discussed here (review of Seidman by Greene) and here (review of Greene by Seidman). For those interested in these overlapping and important projects, the BU Law Review published a symposium on these two books last year, and you can find the contributions here, which I'm looking forward to exploring further, since, full disclosure, I am writing dreaming up something inspired by these various works on the moral and political obligations of prison or other corrections officials as a distinct class of officials).

 

Posted by Dan Markel on March 1, 2014 at 04:19 PM in Article Spotlight, Blogging, Books, Constitutional thoughts, Dan Markel, Legal Theory | Permalink | Comments (13) | TrackBack

Tuesday, February 25, 2014

A Post-Script on Samuel Sheinbein

I'm not sure how many of you remember this, but one of the more fascinating stories my co-authors (Jennifer Collins and Ethan Leib) and I relied upon in our 2009 book on criminal justice and family status had to do with Samuel Sheinbein.  After he gruesomely murdered someone in Maryland, Sheinbein, with his father's assistance, escaped to Israel and avoided extradition. The Sheinbein parents thought they were doing their parental duty by trying to squire their son to a more compassionate jurisdiction.  Sheinbein was charged and convicted in Israel and sentenced to 24 years in prison in Israel, with furloughs, which is probably a better outcome than he would have received in Maryland. (Though with the recent excuse of affluenza, who knows?)

For our purposes, we were primarily interested in Sheinbein's parents' involvement in assisting their son, since our Privilege or Punish: Criminal Justice and the Challenge of Family Ties focused on two questions: what role does and what role should family status play in the operation of the criminal justice system? Among other things, we discovered that about a dozen states around the country explicitly carve out exemptions for family members from laws that otherwise prohibit assisting fugitives and we argued that these exemptions were largely misguided and should be jettisoned.  Here's a short version of what we argued on the Freakanomics Blog.

The Sheinbein parents' good intentions, certainly understandable if not justifiable, have had deadly consequences. For the latest news is that Samuel Sheinbein the killer is now dead. He was shot by special forces in a prison raid once he barricaded himself in a room within the prison; somehow, Sheinbein secured the firearm of a guard and seriously wounded three prison officials along the way. There's no definite lesson to be learned here from one anecdote--one might well imagine the Sheinbein saga ending with a story of redemption and rehabilitation. Here, however, it was intransigence and bloodshed. And so, when legislators are considering whether to be sympathetic to parents or children placed in difficult positions by their criminal family members, they would also do well to remember the Sheinbein story, a case where we see the cruelty and cost of misplaced compassion.  

Posted by Dan Markel on February 25, 2014 at 11:36 AM in Article Spotlight, Criminal Law, Current Affairs, Dan Markel, Privilege or Punish | Permalink | Comments (7) | TrackBack

Tuesday, February 18, 2014

JOTWELL: Tidmarsh on English civil justice reform

The new essay on JOTWELL's Courts Law is by Jay Tidmarsh (Notre Dame) discussing civil justice reform efforts in England, under the leadership of Lord Justice Jackson. (These efforts are notable, given recent concerns about the proposed FRCP discovery amendments and the direction they are taking on reform).

Posted by Howard Wasserman on February 18, 2014 at 06:49 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0) | TrackBack

Thursday, February 06, 2014

FIU's First Decanal Lecture on Legal Education

I was happy to welcome Dean Daniel Rodriguez (Northwestern) to FIU this week, for our First (hopefully Annual) Decanal Lecture on Legal Education, titled Innovation in legal education. The video of his lecture is after the jump.

 

Posted by Howard Wasserman on February 6, 2014 at 03:42 PM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (0) | TrackBack

Tuesday, February 04, 2014

JOTWELL: Campos on Thomas on Erie and the Federal Rules

The new JOTWELL Courts Law essay comes from Sergio Campos (Miami), reviewing Margaret S. Thomas, Restraining the Federal Rules of Civil Procedure Through the Federalism Canons of Statutory Interpretation (NYU J. Legis. & Pub. Pol'y), which argues for using canons of construction to protect the "abridge, enlarge, or modify" limitation in the Rules Enabling Act in a cleaner way than under the "federal-rule-on-point controls" approach of Hanna.

Posted by Howard Wasserman on February 4, 2014 at 09:42 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0) | TrackBack