Friday, April 22, 2016

What About Podcasts? What About Media Consultations? (Jr. Law Prawfs FAQ)

We already covered Twitter and blogging this week, so I thought I'd finish the week with two somewhat related questions: First, what should we make of this emerging trend among law reviews to do podcasts concerning scholarship they publish and other legal issues? And, second, how do media consultations fit into the scholarly agenda, especially pretenure?

Continue reading "What About Podcasts? What About Media Consultations? (Jr. Law Prawfs FAQ)"

Posted by Chris Walker on April 22, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (7)

Thursday, April 21, 2016

Rump Courts: An Anniversary

Tomorrow, April 22, marks the 70th anniversary of the death of Chief Justice Harlan Fiske Stone. Stone's death left an already-rump Court even more short-handed. Justice Robert Jackson missed the entire October Term 1945 serving as lead Nuremberg prosecutor, so the Court already had only eight members; Stone's death left it with seven. Because it was so late in the Term, Stone's death affected only five cases decided after April 22 (Stone became ill and died immediately after reading his dissent in Girouard v. United States).

It is appropriate (or ironic) that we hit a landmark anniversary now. Due to Republican intransigence, we are in the midst of what I predict will be the longest rump Court since at least the turn of the Twentieth Century, likely lasting for 75% of this Term (as far as cases decided) and covering all of next. It also reminds that anything can happen, so that the possibility always looms (especially with three other Justices at or nearing 80) that we could face another seven-person Court, this time for more than five cases.

I imagine Stone's death played at least some role in Jackson's later belief that it was a mistake not to resign from the Court before accepting the Nuremberg appointment.

Posted by Howard Wasserman on April 21, 2016 at 11:30 AM in Howard Wasserman, Law and Politics | Permalink | Comments (7)

Alta is (still) for skiers

A few years ago, I noted here on Prawfs an equal-protection / "animus" challenge that had been filed against Alta Ski Area's (a/k/a "Heaven on Earth") skiers-only policy.  The Tenth Circuit has ruled against "Wasatch Equality" on state-action grounds. Here is the opinion.  


Posted by Rick Garnett on April 21, 2016 at 11:27 AM in Rick Garnett | Permalink | Comments (3)

The (still) irrepressible myth of Klein

SCOTUS on Wednesday decided Bank Markazi v. Peterson, rejecting, 6-2, a challenge to a federal statute under the separation of powers principles of U.S. v. Klein. My broadest takeaway from the case is that it makes clearer what probably was true before--short of the proverbial statute explicitly providing "In Smith v. Jones, Smith wins," nothing Congress would realistically enact (and the President sign) can ever violate Klein's prohibition on Congress deciding a case.

Continue reading "The (still) irrepressible myth of Klein"

Posted by Howard Wasserman on April 21, 2016 at 12:43 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (1)

Wednesday, April 20, 2016

The Trial of Teaching Law

A significant number of law professors are former trial lawyers.  Trial lawyering skills if made an intentional part of the teaching method in large, first-year doctrinal classes can improve and enrich the learning experience for students. 

This post explores the parallels between the two disciplines/skillsets.

So, Ladies and Gentlemen, here are ten insights on the trial method of teaching law. 

Continue reading "The Trial of Teaching Law"

Posted by Andrew Guthrie Ferguson on April 20, 2016 at 01:27 PM | Permalink | Comments (4)

Is There Any Reason Not To Be on Twitter? (Jr. Law Prawfs FAQ)

As the framing of the FAQ from Monday and today suggests, I'm somewhat agnostic when it comes to whether law professors should blog. But not when it comes to law professors on Twitter.

First, though, a few follow-up thoughts on blogging: As Will Baude noted in the comments, "the advisability blogging, even more than most of aspects of this series, is going to turn heavily on personal tastes and abilities. Blogging is certainly not *so* important as to be worth a person's spending time on it even if they find it unpleasant and time-consuming." I think that's right, though my attempt at categorizing the types of blogging to include field-specific blogging, practitioner-oriented blogging, and beyond blogging was aimed at suggesting that the pain of law blogging may be even more worth it if your goal is for your scholarship and ideas to reach policymakers, practitioners, and the public more generally. In those circumstances, Orin Kerr's observation may no longer be the case that "blogging is still an extracurricular activity instead of something that is part of the core mission of legal academics." For example, I'm guessing that's not the case for Doug Berman, Paul Caron, Noah Feldman, Rick Hasen, or Steven Davidoff Solomon, or perhaps even for Stephen Bainbridge or Josh Blackman.

With respect to Twitter, however, I'd reframe the FAQ I often get as whether there is any reason for a law professor not to be on Twitter. 

Continue reading "Is There Any Reason Not To Be on Twitter? (Jr. Law Prawfs FAQ)"

Posted by Chris Walker on April 20, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (13)

Tuesday, April 19, 2016

The obligation of law schools towards law students

A question I have thought about a lot recently is what obligation law schools have to refuse to accept certain applicants on the grounds that they are unlikely to pass the bar exam. 

Continue reading "The obligation of law schools towards law students"

Posted by Stuart Ford on April 19, 2016 at 06:18 PM | Permalink | Comments (15)

Can An Algorithm Pick a Jury?

Right now millions of dollars are being spent to map the American electorate for political purposes.  Both political parties have invested heavily in identifying, targeting, and analyzing individual voters by name, address, party affiliation, interests, causes, and even hobbies.  The data game of political get-out-the-vote strategies is as sophisticated as it is creepy (if you care about privacy).  If you live in a swing state, your demographics, income, past voting record, not to mention race, gender, and marriage status have been crunched by data companies in what is called micro-targeting.  If you are a consumer, private data brokers know your habits, preferences, and tastes.  The FTC recently released a Report on Data Brokers that is eye-opening in the extent of personal information available. 

This data is obviously valuable to politicians, but what if the data – or any of the information from big data companies – were used for the other political right – jury service.  What if courts could pick an algorithmically pure jury pool that actually represented a fair cross section of the jurisdiction? 

Such a prospect is technically possible, but is it a good thing?  Jury selection is notoriously unrepresentative with regular lawsuits challenging the jury venire as being not an accurate reflection of the community.  Jury summons yields have reach embarrassingly low levels.  For example, jury summons no show rates have reach 85% in some jurisdictions.  The result is unrepresentative jury venires, which do not match the actual demographics of an area.  And, for all those who complain about the ineffectiveness of Batson challenges, or the lack of fulsome voir dire in federal court (and some state courts), wouldn’t a big data inspired personal dossier save a lot of time and effort in selecting juries.  This is what fancy jury consultants do in big cases with lots of money, why not adopt it as a regular practice.  Trial lawyers would know a lot more than what they can observe (race, gender), and have a far better picture of the whole individual before them.  Race and gender as rough proxies would be replaced by more sophisticated data inspired insights of big data consumerism.    

So, why not let a big data algorithm pick a jury venire and provide targeted personal information about prospective jurors?  I attempt to answer these questions in a forthcoming article “The Big Data Jury.”  I would love to hear comments. 

Posted by Andrew Guthrie Ferguson on April 19, 2016 at 09:40 AM | Permalink | Comments (4)

Bad presidents and fictional schools

I have been listening to WaPo's Presidential podcast, which offers 44 sequential weekly bios of the Presidents, running from the beginning of the year until the election. This week is Buchanan, next week is Lincoln.

But hearing about the forgettable presidents of the nineteenth century, especially in the period between Jackson and Lincoln, got me thinking about TV shows (especially sitcoms) naming fictional schools after presidents who are largely regarded as unsuccessful. Off the top of my head: Welcome Back, Kotter took place at Buchanan HS; Glee took place at McKinley HS; the Brady kids attended Fillmore Junior High; and Girl Meets World takes place at John Quincy Adams Middle School (this is an homage to the original  taking place at John Adams HS).

What other examples am I missing?

Posted by Howard Wasserman on April 19, 2016 at 12:17 AM in Culture, Howard Wasserman | Permalink | Comments (7)

Monday, April 18, 2016

The Subtle But Serious Flaw in the Supreme Court's Welch Ruling

This morning, to just about no one's surprise, the Supreme Court held in Welch v. United States that its June 2015 decision in Johnson v. United States--invalidating on vagueness grounds the "residual clause" of the Armed Career Criminal Act--is "substantive," and may therefore be retroactively enforced by federal prisoners even through collateral post-conviction review. In English, even for those prisoners whose direct appeals were already over, Welch allows them to pursue relief based upon Johnson, which could mean reduced sentences (and, potentially, immediate release) for hundreds--if not thousands--of federal prisoners. And to its credit, the Court really hustled--handing down the decision just 19 days after argument, presumably with an eye toward the one-year statute of limitations for Johnson-based claims (which runs on June 26). So far, so good.

But as I've blogged about at some length previously (and explained in a short piece in the latest issue of the Federal Sentencing Reporter), the problem Johnson raised in the lower courts had two distinct layers to it: The obvious one (is Johnson retroactive), and the far more subtle one (how can lower courts tell when new Supreme Court rulings like Johnson are retroactive). Whether because of the compressed schedule, the short-handed Court, or a more general disinclination to reach that issue, Welch says absolutely nothing about this second layer--and, in the process, does nothing to avoid the same mess that Johnson produced in the lower courts from recurring in the future.

Continue reading "The Subtle But Serious Flaw in the Supreme Court's Welch Ruling"

Posted by Steve Vladeck on April 18, 2016 at 11:49 AM in Steve Vladeck | Permalink | Comments (10)

Fitbits and the Fourth Amendment

I wanted to spend a few posts examining questions arising from my scholarship.  Prawfsblawg presents an attractive audience of educated, curious readers to try out ideas.  So here is a question that has shaped some of my recent thinking.  What is the “smart” data coming from your Fitbit, smart car, smart refrigerator, or smart bandage to the Fourth Amendment?  Should it be protected under the Fourth Amendment?  Is direct interception of this information a search of “persons, homes, papers, or effects”?  Is direct interception a violation of an “expectation of privacy?”

The question matters because if the smart data falls outside of these Fourth Amendment definitions, it can be intercepted by law enforcement without a warrant.

Continue reading "Fitbits and the Fourth Amendment"

Posted by Andrew Guthrie Ferguson on April 18, 2016 at 10:06 AM | Permalink | Comments (6)

Is Blogging Worth It? (Jr. Law Prawfs FAQ)

The Junior Law Prawfs FAQ series enters its third week. The first week focused on publishing legal scholarship (responses, book reviews, and online law review essays). The second week turned to interacting with peers in one's field, including promoting new scholarship, commenting on others' draft scholarship, and increasing in-person scholarly interactions. This week's line of questions builds on last week's, but concerns interacting within one's field more generally (not just limited to other scholars in the field).

Today's FAQ asks a very common question: Especially as a junior scholar, is blogging worth it?

Continue reading "Is Blogging Worth It? (Jr. Law Prawfs FAQ)"

Posted by Chris Walker on April 18, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (5)

Sunday, April 17, 2016

Not an infield fly

On Sunday, Tigers second baseman Ian Kinsler* intentionally failed to catch an infield pop-up with a runner on first and none out, in order to get a force out at second base on a speedy runner at first, replacing him with the batter, a slower runner. (Video in the link). After some initial confusion, the runner at first was called out and the batter was on first base.

[*] Apropos of nothing, Kinsler is Jewish, so this ties back to the ongoing fascination with the presence/increase of Jewish athletes.

Some comments after the jump.**

[**] (Yes, this is a post about baseball rules--the laws of baseball, if you will--a subject I have been writing about at Prawfs since I started here in 2007. If you do not like baseball or do not want to read about baseball on a law blog, feel free to skip the post.

Continue reading "Not an infield fly"

Posted by Howard Wasserman on April 17, 2016 at 08:15 PM in Howard Wasserman, Sports | Permalink | Comments (1)

Laptops in class (again)

For those of you who are keeping (as I am) a file or folder for the increasing number of pieces covering the "laptops in the classroom" issue, here's another item, from Weekend Edition.

Posted by Rick Garnett on April 17, 2016 at 10:36 AM in Rick Garnett | Permalink | Comments (0)

Friday, April 15, 2016

Attorneys' Fees and Departmentalism

The model of departmentalism, judgments, and precedent that I have been urging carries an obvious risk of recalcitrant officials enacting all sorts of blatantly unconstitutional laws (based on their independent constitutional judgment) or refusing to alter their conduct unless and until compelled to do so by new litigation producing a new injunction. The answer is a number of doctrines that incentivize voluntary compliance. Chief among these is attorneys' fees--in theory, if the state compels enough litigation rather than voluntary compliance, it will get expensive for the state and, perhaps, politically unpopular.

Another case in point: North Dakota enacted a "fetal heartbeat" law (no abortions after a heartbeat can be detected), which effectively banned abortions from the middle of the first trimester. The Eighth Circuit declared the law invalid, obviously, in light of SCOTUS precedent. And the state just agreed to pay $ 245k in fees for that litigation.

Will that sufficiently deter the legislature from enacting the next piece of "we think this is constitutional, no matter what the activist Court says" legislation? Hard to say.

Posted by Howard Wasserman on April 15, 2016 at 06:14 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

At Least Two More Cheers for Counter-Clerks

The up-side of Facebook is that it allows me to quick-post links and ideas I don't have the time or energy to work up for public discussion. The down-side is that lots of fun potential blog posts go missing, or that, while I'm having that conversation in the limited forum of FB, which I did in this case, someone beats me to the punch in the blogosphere. Eric Segall's post on Monday, talking about Justice Scalia, raised the interesting subject of "counter-clerks": those clerks that Justice Scalia hired to provide an in-chambers "liberal" view as a lens for examination and criticism of his views or opinion drafts. Counter-clerks weren't a huge part of his post, which was mostly about Scalia's position on affirmative action and his originalism. But it did evoke interesting questions about counter-clerks. Now his co-blogger, Mike Dorf, has this post talking directly about counter-clerks and raising "two cheers" for them, concluding this way: "The bottom line is that a willingness to hire counterclerks is a modest indication that a judge takes his professional responsibilities seriously and enjoys the company of people who disagree with him, which indicate positive character traits. But that's about all."

There are a couple of things I would say about counter-clerks, but the most important is simply that the idea of having counter-clerks, especially but probably not exclusively at the Supreme Court, is worthy of much more study than it has received. Although I disagree with various aspects of it, I think Richard Posner's book Divergent Paths is right to argue that we need more study of structural, managerial, and other aspects of the (federal) judiciary. It is a valuable subject in itself, the more so as the judiciary has long since become a large, complex institution rather than a disparate collection of, to use Philip Hamburger's term, individual judicial "offices." If one also believes, pejoratively or otherwise, that the Supreme Court is a "political court," it's also useful to think about potential structural responses to this.

None of this requires one to conclude that counter-clerks are a good idea, or an effective one. But it deserves study and attention. As with thinking about judicial term limits, how to sequence discussions or votes in conference, or other such questions, it's useful in asking about the Court as an institution and what institutional features might benefit from tinkering or change. Maybe more so: lifetime tenure is a formal structural rule and thus highly visible, but in most areas legal scholars would observe that all kinds of sub-constitutional rules and practices (like the use of clerks) are at least as important as the formal ones in reflecting and channeling the work of an institution, and need to be studied.

A look for discussions of counter-clerks doesn't turn up very much. There should be more. Maybe every justice should hire a counter-clerk. Maybe it is a failing of the current Court, and the current justices, or revealing of their understanding of their job or of the current moment on the Court, that they do not all have such a practice more or less formalized. Maybe the counter-clerk idea is a good one but there are better ways to do it. It doesn't have to be organized around political ideology, for instance, although the current justices are political and perhaps it's important to have that internal check; but it could be organized around methodology, or as a matter of having a formal "Devil's advocate" clerk, period. And although I think there are fairly good reasons to hire at least one clerk who definitely does not share the justice's politics or methods, it may be that the formal role of "counter-clerk" should rotate among the clerks. In other areas, legal scholars and social scientists (beginning with Irving Janis) have argued that decision-making groups, or advisors to a decision-maker, need a formal Devil's advocate, to guard against groupthink, polarization, epistemic closure, cascades, and so on, and that the role should be rotated to make sure the advocate is not powerless or routinely dismissed. We may want to think more about whether the Court and its use of clerks needs to take the same approach. 

After the jump, some additional points informed by excellent comments about this from my FB discussion. As usual, it's tl;dr, so feel free to skip it, although the last paragraph is somewhat interesting. 

Continue reading "At Least Two More Cheers for Counter-Clerks"

Posted by Paul Horwitz on April 15, 2016 at 03:33 PM in Paul Horwitz | Permalink | Comments (1)

How Can I Increase In-Person Scholarly Interaction with Limited Resources? (Jr. Law Prawfs FAQ)

In her meta response to this Junior Law Prawfs FAQ series, my colleague Deborah Merritt suggested, among other things, that we should "[r]educe the number of scholarly presentations that require travel."  She further explained:

Workshops and conferences are terrific ways to promote scholarly exchange, but we have more than is prudent. These sessions are expensive for schools to host, and frequent faculty travel disrupts class schedules. And let’s not forget the major effect that air travel has on global warming. We could cut scholarly travel modestly, replacing some of it with online interactions. We could prune, moreover, in a way that preserves junior and diverse voices.

Like Howard, I agree with some of Debby's proposals, including encouraging both shorter and online forms of scholarship and balancing our scholarly modes. But I'm just not convinced that the benefits of this less-travel-for-conference proposal justify their costs. In fact, I see in-person scholarly interaction (especially with the senior scholars) as a vital part of developing a voice in one's field. 

But, as Debby notes, we live in a world of (perhaps increasingly) limited resources, so such in-person interactions may be becoming less common and more precious. In response to this post I'd love to hear more about how others have leveraged existing resources to create meaningful, in-person scholarly dialogue.

To get us started, here are ten best practices I've seen in my first few years here:

Continue reading "How Can I Increase In-Person Scholarly Interaction with Limited Resources? (Jr. Law Prawfs FAQ)"

Posted by Chris Walker on April 15, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (5)

Thursday, April 14, 2016

Remembering Dan at Harvard (Updated for Change of Venue)

Please note the Change of Venue: The entire event, including the Minow/Feldman conversation, will take place at Harvard Hillel, 52 Mt. Auburn Street. 



To sign up for Shabbat dinner in memory of Dan Markel, please sign up at

To make a donation in Dan’s memory, please do so at

Posted by Ethan Leib on April 14, 2016 at 04:36 PM | Permalink | Comments (0)

"Drunk Outlines": Marbury v. Madison

Some students of mine had some fun with what could be -- who knows? -- the sequel to the Hamilton! craze:  The "drunk outlined" version of the Election of 1800 and Marbury. Above the Law, take note!

Posted by Rick Garnett on April 14, 2016 at 03:48 PM in Rick Garnett | Permalink | Comments (3)

Evolving Scholarly Benchmarks?

Reposting this because for some reason the comments button was off.

I have found the Jr. Law Prawfs FAQ series quite interesting and thought I would add my own question.  What is the new normal for pre-tenure scholarly output?  How many articles (or equivalent) are required for tenure? 

I have co-chaired our Appointments Committee for two years now, and have been able to see the incredible array of talented applicants.  The rise of VAPs, Fellowships, and apparently very self-directed law students (who knew they wanted to teach before law school) has meant that many aspiring law professors have written two or more law review articles before going on the teaching market. 

So, my question is:  Does this early output impact later scholarly output once candidates become full time professors?  I would imagine most law schools have not upped their formal tenure requirements in the last ten years, so has there been an informal change/expectation?  If the formal tenure and retention standards require three published articles, does that really mean four or five now?  Has there been any noticeable change?  What should be the new normal?  And, before you respond, “it depends on quality, not quantity” and “it depends on the school,” (both are true, no doubt), let’s put some concrete numbers behind it.  How many articles did you write before tenure?  How many are average pre-tenure at your school?  And, we can assume that the quality is up to snuff.    

Posted by Andrew Guthrie Ferguson on April 14, 2016 at 03:05 PM | Permalink | Comments (3)

JOTWELL: Lahav on Prescott & Spier on Settlement

The new Courts Law essay comes from Alexandra Lahav (UConn) reviewing J.J. Prescott and Kathryn Spier's A Comprehensive Theory of Settlement (forthcoming N.Y.U. L. Rev.), which offers a broad understanding of settlement within civil litigation.

Posted by Howard Wasserman on April 14, 2016 at 12:01 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Strategic Immunity

Aaron Nielson and I just posted to SSRN a draft of our new article, Strategic Immunity, which is forthcoming in the Emory Law Journal. This is the second based on a data set of circuit court decisions dealing with qualified immunity. Aaron did a nice post about the article over at the Yale Journal on Regulation blog earlier this week. The draft is available here, and the first paper is here. Comments are welcome!

And here is the abstract:

Continue reading "Strategic Immunity"

Posted by Chris Walker on April 14, 2016 at 09:03 AM | Permalink | Comments (0)

Wednesday, April 13, 2016

Jews, politics, and the next generation

I take no position on this opinion about the policy and politics of Bernie Sanders' appointment of Simone Zimmerman, a sharp critic of Israel's West Bank policies and supporter of the BDS movement, as director of Jewish outreach. Instead, let me offer the following:

Update: On Thursday, the campaign suspended Zimmerman, so it could investigate a year-old tweet in which she lambasted Netanyahu, then closed with "Fuck you, Bibi . . ."

1) It strikes me as surprising that the first serious Jewish presidential candidate (let's stipulate that Barry Goldwater no longer self-identified as Jewish) needs a director of Jewish outreach. Did Obama have a director of African-American outreach or Bush a director of Christian outreach? But Sanders' identity has not alone rallied the Jewish vote the way Obama's identity rallied the African-American vote. (Full disclosure: I am supporting Clinton because my desire to win the general election trumps both my religio-ethnic identity and my purest policy preferences).

2) It strikes me as even more odd (if not ironic) that there is a belief that a Sanders presidency would be bad for the Jews. Moreover, it seems entirely because of Sanders' apparent policy preferences with respect to Israel. This reflects what I believe is an unfortunate conflation of Judaism, Israel, and the policies of the Israeli government.

3) Michelle Goldberg's Slate piece argues that hiring Zimmerman reflects a division of policy and politics. It jibes with the preferences of the younger voters, including Jewish voters, who support Sanders and who are likely to oppose the Netanyahu government and its policies. It does not jibe with the preferences of older (and more numerous) Jewish voters, who tend to support Israel's policies, aligning more closely with AIPAC's positions on Israel (even while largely voting Democratic).

The dynamic feels roughly analogous to a similar evolution with respect to Cuba here in Miami. An increasing portion of the younger generations of Cuban-Americans (many of them first- and second-generation) are less hawkish as to Cuba and the Castro regime, and more open to normalizing relations, than their parents and grandparents, many of whom lived and suffered under that regime.

Posted by Howard Wasserman on April 13, 2016 at 07:29 PM in Howard Wasserman, Law and Politics | Permalink | Comments (6)

Ferguson's Fault Lines

Ferguson's Fault Lines: The Race Quake That Rocked a Nation, edited by Kimberly Jade Norwood (Wash. U.), has been published by the ABA. I contributed a chapter on body cameras; there also are contributions from a host of legal and non-legal academics. Recommended, as they say.

Posted by Howard Wasserman on April 13, 2016 at 01:50 PM in Books, Howard Wasserman | Permalink | Comments (0)

AALS Recruitment - An International Perspective

I received the following correspondence from Professor Dennis J. Baker, head of the School of Law at the University of Surrey. This may be of interest to some on the job market.

I thought I would bring the international perspective to your attention. This year, I attended AALS and made 10 offers....Seven of ten candidates accepted my offers and will start at the University of Surrey Law School from June to September 2016. I also recruited several people from the UK, but found the oversupply of incredible talent at AALS very useful for building up our Law School. We will attend again this year looking again to make several appointments.

Out of the 3 candidates who declined our offers, two decided to chance VAPs in the USA....However, one young star who declined our offer instead took a post in the Economics Department at at the University of Warwick in the UK.

Some of those we hired are listed on our Philosophy and Public Affairs Institute page.


Posted by Sarah Lawsky on April 13, 2016 at 01:16 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Why bother measuring the gravity of crimes?

In my previous post I argued that the factors used to measure the gravity of the crimes investigated by the International Criminal Court (ICC) could also be used to measure the gravity of crimes investigated and prosecuted in domestic systems and compare them to the crimes investigated by the ICC.  The main response I got was something like "ok, but why would we want to do that?"  Today, I will try to answer that question.

Continue reading "Why bother measuring the gravity of crimes?"

Posted by Stuart Ford on April 13, 2016 at 11:30 AM | Permalink | Comments (4)

How Should I Respond to Requests to Read Draft Articles in My Field? (Jr. Law Prawfs FAQ)

A significant part of my first few years on the faculty has consisted of reading articles from scholars in my field. Perhaps in part because I transitioned straight from private practice, I felt way behind when I arrived and took the advice of mentors to spend much of my first year just reading articles in my field -- time that, looking back, was very well spent. 

As I started in interact more in my field, however, the requests to read and comment others' drafts started trickling in and now I spend a lot of time reading and commenting drafts. I am guessing I'm not alone here. Although I've gotten faster at reviewing drafts, it still requires a decent chunk of time, and even more to do so well.

That leads to my Jr. Law Prawfs FAQ for today: Especially for junior scholars, how should one respond to requests to read drafts of articles in one's field?

Continue reading "How Should I Respond to Requests to Read Draft Articles in My Field? (Jr. Law Prawfs FAQ)"

Posted by Chris Walker on April 13, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (5)

Tuesday, April 12, 2016

Entry Level Hiring: The 2016 Report - Second Call for Information.

This a reminder of the Entry Level Hiring Report.

If you have information about entry-level hires for this year, please either email me directly (slawsky *at* law *dot* uci *dot* edu), or add a comment to the original information-gathering post.

Please encourage anyone you know who has accepted a job but isn't reflected on the spreadsheet to contact me.

As a reminder, I am looking to collect the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

(Comments are closed on this post in order to drive comments to the original post.)

Posted by Sarah Lawsky on April 12, 2016 at 05:25 PM in Entry Level Hiring Report | Permalink | Comments (0)

Rejection Time

April is a happy time.  Not simply because the first rays of Spring sunshine are reflecting off my window, but because the gloomy clouds of rejection have floated by with the passing of the February/March submissions season.  Every year, I tell myself I am not going to let the rejections get to me.  Every year, it seems to turn out pretty well.  But, the process of daily rejection, of hourly email obsession, and general grumpiness are as regular as the seasons.

And maybe, just maybe, it is for the best.  Being a law professor is easily one of the best law jobs in existence.  The work is creative, meaningful, and exciting.  The job is respected and respectable.  Professors maintain a privileged autonomy and control that cannot be found in many professions.  With such an honored place in the world, one might imagine the temptations of egotism, arrogance, and elitism would corrupt us to become full of ourselves (I know…).

Which is why those first dings from 2Ls who have skimmed the abstract of a year and a half of exhaustive legal research are so important.  Those rejections remind us of the arbitrariness of life (and success).  They are humbling, random, and completely opaque.  Yet, those automatic pleasantries referencing the fact that “our article was not selected out of the 3000 articles they receive every year” teach a fundamental lesson:  life is unfair, unlucky, and life will continue if you persevere.

It is a lesson I think a lot about when I talk to students.  Why does one student get a clerkship and another does not?  Why does one get that Fellowship or dream job?  Life is not a meritocracy.  Sometimes the best student is recognized.  But, sometimes something else wins out.  Sometimes it is hustle, a well-placed phone call, or a quirky connection.  Sometimes it is just a bit of good luck.  But, through it all comes a good dose of regular rejection, and then carrying on.

So, I think there is a bit of justice in law professors spending a month facing daily rejection every year.   I think it is a good lesson in humility and resilience.  Sometimes all the work in the world results in a 7:00 am rejection (thank you Scholastica for providing the option of a fixed time for daily rejection… it helps me brace for the experience), and sometimes you meet your stated goal.  The lesson to be learned and later taught is how to face rejection and overcome.  How to look into the face of 29 of the top 30 journals rejection emails and say, “I only need one.”   

So, next time you check your email (four minutes after the last check) to see if anyone has emailed with an offer of publication and find nothing, or worse the dreaded “the journal has made a decision” email, remember that the world is filled with rejection, but the lesson we should be embracing and teaching is resilience.       

Posted by Andrew Guthrie Ferguson on April 12, 2016 at 01:56 PM | Permalink | Comments (0)

Monday, April 11, 2016

Reality Checks

Over the last few years, I've taken to writing about emerging tech and criminal law.  As a childhood fan of science fiction, it's fun to get to think about technologies that are similar to those I read about as a kid.  In particular, I have a blast thinking about how the law will or should handle what I predict will be very-near-future technologies.  So, for instance, I've written about algorithms taught through machine learning techniques to identify individuals who are likely to be presently or very recently engaged in criminal activity (e.g., an algorithm that says that that guy on that street corner is probably dealing drugs, or that this on-line sex ad (and whoever posted it) is probably related to human trafficking).

At the time I wrote the piece, there were no algorithms that exactly fit what I describe.  There were computer systems that identified individuals in real-time as they engaged in activities that human operators had already decided correlated to criminal activity, and there was research ongoing using machine learning to identify activities that correlate to criminal activity, but no one had put the two together.  As I saw it (and perhaps it is the sci-fi fan in me), it was just a matter of time before the two came together to create the kinds of algorithms I discuss.

A source of frustration for me when I presented on the topic, then, was that inevitably one of the first questions I'd get would be whether the technologies I discussed really exist.  I'd explain what I just said in the prior paragraph, but nonetheless I'd feel defeated in some sense, like my legitimacy had been undermined.  And I can see many reasons for the questions: curiosity, to understand the technology better through an example, and skepticism about the validity of discussing something that doesn't exist, to name a few. 

But the questions still bothered me.  And they got me thinking:  To what extent should we talk about the legal implications of things that we believe are about to happen, but which haven't happened yet and therefore may never happen?  What is our obligation as scholars to prove that our predictions are correct before engaging in legal analysis?  Is this obligation higher in some areas of law, like criminal procedure, that traditionally have not been consistently forced to adapt to technological developments, and lower in areas of law, like intellectual property, that have?

Posted by Michael Rich on April 11, 2016 at 12:16 PM in Criminal Law, Science | Permalink | Comments (8)

A Jot on Gedicks, Helfand, and the Value and Limits of "Free Exercise" Doctrinalism

Howard is much better about putting up links to "jots" from his corner of Jotwell. Here's a jot from the constitutional law section, by me. In keeping with my urge to mess with the basic format, it's on two articles: Frederick Mark Gedicks's forthcoming article 'Substantial' Burdens: How Courts May (and Why They Must) Judge Burdens on Religion Under RFRA, and Michael Helfand's Identifying Substantial Burdens. Both are excellent pieces and both contain what may, depending on your definition of the word, be substantial discussions of what was thought likely, before oral argument, to be (and may still turn out to be) the principal issue in Zubik v. Burwell. The jot treats both articles as evidence, and exemplars, of a recent and valuable increase in doctrinal scholarship around the Free Exercise Clause and RFRA interpretation, as opposed to Free Exercise theory. I argue that the articles also demonstrate the limits of doctrinalism in this area (and perhaps more broadly). Here's a snippet:

Inevitably, however, both articles also show the limits of doctrinalism—perhaps in general, and certainly in this field. Not all doctrinal scholarship, to be sure, will be subject to the same severe limitations. In particular, one can imagine, and there has been a recent increase in, scholarship about doctrinalism. Scholarship recommending reforms in current doctrine, though, inevitably requires some sense of the metric against which those reforms will be measured and the values they are meant to serve. In a stable field or one with a highly specific statute, there may be substantial consensus about the relevant norms and values. But law and religion is not a stable field. The constitutional text is old and general; RFRA itself contains broad terms like “substantial burden,” and incorporates the highly contested caselaw of the Free Exercise Clause. And disputes in the field today suggest division over basic values and over the allocation of power between church and state, questions that may have been answered by prior cases but cannot settle them. Doctrinalism can channel such questions but it can hardly escape them. Questions of theory, and of policy, which also involves theory, are unavoidable here. . . .

None of this, of course, is meant as a fatal criticism. Law must be implemented as well as theorized. Too abstract a focus on theory will not provide us with adequate tools to implement that theory; and too frequent a recourse to first principles will deprive the law of stability and predictability, and steer judges’ and scholars’ time and talents away from the kinds of technical questions at which they have a comparative advantage. It makes sense that law—scholars’ law and judges’ law—will sometimes engage with higher-order questions, but that its primary development will often be smaller and more doctrinal. Questions of implementation are important, and a body of good legal scholarship can add considerably to the improvement of doctrine. Both Gedicks and Helfand contribute mightily to this task in the area of substantial burden doctrine. Their articles are both models of good work in this field. In deciding Zubik, I would not be surprised if different factions on the Court appealed to one or both articles. In the end, though, you cannot build a better mousetrap unless you have a sense of what the goal of trapping mice is, and what balances must be struck in doing so. Zubik itself, and both articles, turn on larger questions of theory, policy, and power that are unanswerable by appeals to doctrine itself. Both articles are well worth reading, and neither can tell us how to choose between them.

As I say in the jot, both articles are well worth reading. (So is another article written on essentially the same topic and at about the same time, Chad Flanders's Insubstantial Burdens. As they say in Shakespeare in Love, good title!)    

Posted by Paul Horwitz on April 11, 2016 at 11:12 AM in Paul Horwitz | Permalink | Comments (0)

LAWn Signs: Can the Fourth Amendment be Funny?

How do you point out the absurdity of a doctrine that has serious overtones involving fundamental liberty interests and law enforcement needs?  How do you engage a citizenry that doesn’t read Supreme Court cases or the brilliant law review articles that analyze those opinions?  I don’t really know, but Stephen Henderson (Oklahoma) and I have tried an experiment that combines analytical rigor and lighthearted humor, constitutional analysis and actual lawn signs.  Howard kindly posted about the launch, but I wanted to explain the reasoning.   

It all begins with a simple question:  What is the constitutional significance of the proverbial “keep off the grass” sign?  The question asked by curmudgeonly neighbors everywhere centers a new article and public education campaign focused on the Fourth Amendment. 

Continue reading "LAWn Signs: Can the Fourth Amendment be Funny?"

Posted by Andrew Guthrie Ferguson on April 11, 2016 at 10:21 AM | Permalink | Comments (3)

How Do I Increase the Chance My Scholarship Will Be Read? (Jr. Law Prawfs FAQ)

Last week we covered various FAQs concerning the type of legal publication (responses to articles, book reviews, and online law reviews). This week the questions will focus on interacting within one's field. The first question, which dovetails nicely with the questions from last week, is how to increase the chances that one's scholarship, especially pretenure (though not limited to that), will actually be read in the field. I'm very interested in leveraging the PrawfsBlawg community on this. To get us started, here are a few best practices that come to mind:

Continue reading "How Do I Increase the Chance My Scholarship Will Be Read? (Jr. Law Prawfs FAQ)"

Posted by Chris Walker on April 11, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (10)

Saturday, April 09, 2016

Infield fly double plays and knowing the game and the rules

On Friday, the New York Mets turned a double play against the Philadelphia Phillies on an infield fly call--the Mets infielder did not catch the ball (the wind* pushed it away from him), the runner on first's instincts took over upon seeing the ball hit the ground, and he took off for second, getting tagged out in a 5-3-4 rundown.

[*] Given the wind, a case could be made the IFR should not have been called. The umpire considers "weather conditions" in deciding whether the ball was playable with "ordinary effort" as required for the rule to apply.

Having watched every IFR call in Major League Baseball from 2010-15, I can recall at least 4-5 times (perhaps more) that the defense turned a similar double play in the identical situation. That may not sound like much, until we consider that the infielder failed to catch the ball on an IFR call at most 15-20 times in those six seasons--and several of those were intentional non-catches to deke the runner into trying to advance. That means the defense turns a double play roughly 20 % of the time the infielder fails to catch the ball.

What is interesting is the media reaction to the play. The themes that emerge--from game announcers (video from Mets broadcast in link) and blogs--are that this is another sign of how bad a team the Phllies are (and they are bad, 0-4 on the young season), that this is a Little League mistake, and that the players do not know the infield fly or how it works (this is how the Mets announcers talked about it yesterday); the announcers and writers, in turn, have a chance to (somewhat condescendingly) explain the Infield Fly Rule. For one thing, the criticism is not accurate. As the Cincinnati Reds manager said defending a player who made a similar mistake and ran into a double play in 2015, it was not that the player did not know (or understand) the rule, but that the player had the wrong reaction to the ball hitting the ground (i.e., instinct took over). For another, many announcers routinely show that they do not really understand  the rule, as by openly questioning its application to balls in the outfield with quips such as "boy, the infield is awfully expansive if that ball qualifies under the rule."** So scolding the players this way rings false. Finally, the "wrong reaction" may cut both ways--in 2014, a runner scored from third base on an uncaught infield fly when the catcher failed to tag the runner coming from third base.

[**] Commentary on the rule explains that the question is whether an infielder could have caught the ball with ordinary effort, without respect to artificial boundaries such as the outfield grass.

Posted by Howard Wasserman on April 9, 2016 at 12:56 AM | Permalink | Comments (1)

Friday, April 08, 2016

Benign Socratic

A group of admitted/prospective students and their parents visited my class this morning (for a dose of Daimler v. Bauman and Shaffer v. Heitner). One parent, herself a lawyer in town, came to me after class and said that was the best "benign Socratic" class she had ever seen. I like that phrase better than "modified Socratic," which was the buzzword at the Meat market three years ago as code for "I'm rigorous, but not obnoxious."

Posted by Howard Wasserman on April 8, 2016 at 03:50 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

FBI/Apple: Copy of the Feinstein-Burr Discussion Draft Released

As many of you know, the FBI obtained an ex parte court order from the Federal Court in the Central District of California regarding the iPhone that was apparently used by Syed Rizwan Farook, one of the two killers in the San Bernardino mass shooting last December.  In essence, the order required Apple to provide "technical assistance" in the form of drafting software to allow the government access to the data on the iPhone.

Rather than immediately comply, Apple filed a motion to vacate the order raising various arguments. Among them, Apple argued that such software would compromise security and that "the unprecedented order requested by the government finds no support in the law and would violate the Constitution." Apple's Motion to Vacate, at 5. Additionally, Apple argued that end-to-end encryption was the safer and more secure course for all iPhones, and the existence a government "backdoor" created vulnerabilities that could affect all users. See Apple's Reply, at 19-20. More generally, Apple objected to creating a government-specific operating system. Of course, ultimately a third party proffered a solution to the FBI and this matter has been dismissed.

In the meantime, a discussion draft of the Feinstein-Burr "Compliance with Court Orders Act of 2016" has been released (accessible here). This draft appears to mandate that any covered entity (presumably, device makers and software companies) that receives a court order for information or data must provide the information in an intelligible format or provide technical assistance to do so. Such delivery must be made concurrently with the data's transmission, or expeditiously if stored on a device. The bill provides that covered entities will receive compensation.

As others have recognized, the draft is not entirely clear in many respects. For example, it is unclear whether the statute contemplates that a covered entity will have the opportunity to challenge the legality of such an order in court prior to compliance. This is especially important if orders are issued ex parte. Further, the bill provides that it shall not be construed to compel "any specific design or operating system to be adopted by any covered entity" which was, of course, one of Apple's objections to the California order. 

It has been reported that the White House has not issued support for the bill at present (see also, here).


Postscript: Although the California action has been dismissed in light of the undisclosed 3rd party's assistance, an action in New York raising parallel issues continues (source).

Posted by Amy Landers on April 8, 2016 at 10:12 AM | Permalink | Comments (0)

How Do I Make Sense of Online Law Reviews? (Jr. Law Prawfs FAQ)

As I mentioned on Monday with respect to whether to publish online responses to law review articles (or to allow law review editors to seek response(s) to one's own article), I planned on returning to the more basic question of how to make sense of the rise of the online companions to many general law reviews. To get us started, consider the following question Nancy Leong recently crowdsourced on Facebook from a friend who is interested in legal academia (reposted with permission):

For purposes of getting a job, which of the following article placements is best: (1) a print law review at a school ranked 50-100; (2) a print specialty journal at a top 15ish school; or (3) an online law review at a top 15ish school?

This isn't the first time I've seen such a question on Facebook, and a number of aspiring academics (and junior law professors) have asked me similar questions. Based on the responses to Nancy's FB post, my guess is that there are at least as many answers--many conflicting--as there are online law reviews.

My questions are a bit more basic (though I hope still important) than whether to place an article in the print or online journal: What's the purpose of online law reviews? And how should we view and use them as scholars (junior or otherwise)?

Continue reading "How Do I Make Sense of Online Law Reviews? (Jr. Law Prawfs FAQ)"

Posted by Chris Walker on April 8, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (10)

Thursday, April 07, 2016

A Taxonomy of Legal Mentorship

Professor Andy Taslitz was a great law professor and an even better person.  After he passed away in 2014, Howard Law School held a wonderful tribute and Symposium to his work and memory.  I gave a short presentation that discussed what I called the “Taxonomy of Legal Mentorship.”  I spoke in the context of honoring Andy as teaching me the value of legal mentorship.  Below I share the broader taxonomy for your thoughts. 

The first question for any taxonomy of mentorship is to define our terms.  Borrowing from the work of Professor Emily Sherwin in her article “Legal Taxonomy,” we could choose to use: (1) a formal taxonomy (a study of rules and logical connections), or (2) a functional taxonomy (a study of social roles), or (3) or a reason-based taxonomy (a study of justifications).  A function-based taxonomy fits best as it classifies things according to their social function or the role they play in society.  Here our society is law professors.  And the function of mentor is to support the professional and scholarly endeavors of other faculty.

So, my quick and dirty taxonomy of types of mentors in the legal academy goes like this:

  1. Friend Mentor – The friend mentor is your former law school classmate (or equivalent) and now a slightly more experienced law professor – who you send that first draft of any article to in order to make sure you are not a complete idiot before sending the article out to others you actually need to impress. They also can help guide you through the daily stress of that first class prep, that angsting first submissions cycle, or that first dramatic student issue. 
  1. Colleague Mentor – The colleague mentor is a professor in your law school with the responsibility to act as a mentor. The mentor can be formally assigned or simply someone you trust.  But, they are the person to whom you go inquire about how the promotion and tenure committee would view your explosive new research into “low productivity rates of senior faculty.” 
  1. Conference Mentor – The conference mentor is the person you buttonhole every AALS Meeting for profound career advice at the bar or coffee station (when you are both skipping the substantive meetings). Conference mentors provide valuable, if episodic feedback on your career and scholarship from someone who probably cares only at the superficial level about your ultimate success. 
  1. Scholarly Mentor – Scholarly mentors are people who write in your area of interest who you send every article to in the hopes that your article will be improved. They are probably the most important type of mentor.  They can be within a school (if you are lucky) or in another school.  If they say the article passes muster (or say something to the effect of “I don't think this idea is any worse than anything the rest of us have come up with….”), it goes out.
  1. Email Mentor – The email mentor is a new phenomenon. Many of us have realized that one can simply email people out of the blue with an article, or question, and that law professors have the time and inclination to occasionally respond.  You can even do this with the biggest name in law (at least those who have email).  Email mentors are helpful for substance, career advice, and many times more honest than your colleagues. 
  1. Life Mentor – Life mentors are people who you go to not about teaching, scholarship, or service, but about the all-consuming effect of teaching, scholarship, or service on your life. They provide balance and reassurance, if not the answers.  They are the ones who can explain why you feel stressed even though you only teach two classes a week, and have to write at most two articles a year (with summers off).  
  1. Identity Mentor – Identity mentors are life mentors and scholarly mentors who because of a shared self-identity make the advice that much more convincing.
  1. Teaching Mentor – Teaching mentors are those who because of the charisma, intelligence, or intense preparation thrill a class like you only wish you could. They provide assistance by modeling good teaching, engagement with students, and passion for the subject.    
  1. Hero Mentor – The hero mentor is a professor whose combines scholarship, teaching, and advocacy in a way that you admire. If you are lucky you can latch on to one and learn as much as you can before life tragically takes them from you.  Andy Taslitz was that hero mentor to me (and others).

So, what other types of law professor mentors would you add to this taxonomy?  What kind of mentor are you?  Do you hope to be?

Posted by Andrew Guthrie Ferguson on April 7, 2016 at 10:27 PM | Permalink | Comments (3)

Better Call Saul and "stealing" clients

A story line on Better Call Saul this season involves Jimmy and his girlfriend leaving their respective large firms to go solo, setting up separate practices with shared space (the separation is so she can keep doing things the right way, while he continues down his path to becoming Saul Goodman). This week, Kim resigns from the firm and recruits (successfully, she believes) the one client that she brought into the firm to follow her. But Jimmy's brother, Chuck, a name partner in the firm, pitches to get the bank to stay with the firm. The gist of the pitch is "yes, Kim is great, but I have long expertise in the complexities of banking law and the work you need done requires the staffing and resources that only can come from a large firm with a lot of associates." And it works, leaving Kim without any clients as she opens her practice.

The TV blogs, especially the comments sections, seem of a mind that Chuck screwed Jimmy and that he did so out of spite. Now, Chuck has screwed Jimmy in the past, so the audience is somewhat primed to dislike him. But did Chuck (and Howard) do anything wrong here? Kim brought the business to the firm, so it was "her" client." And we do not know the business terms between Kim and the firm, which I assume spell out the relationship among the firm, the client, and the rainmaker. But what happens when a lawyer with business leaves a firm? Can the firm try to convince the lawyer's clients to stay with the firm rather than following the individual? And Chuck's pitch in no way disparaged Kim or questioned her abilities, even implicitly; he simply argued that his firm could provide better service, which seems to be what you have to do to get business.

Of course, Jimmy sees it as strictly personal. And his response is to forge a bunch of documents to make Chuck and the firm look bad, which is where we pick up next week.

Posted by Howard Wasserman on April 7, 2016 at 07:44 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (2)

How does one measure the gravity of crimes?

I'm back.  And while my first post was deliberately one that could appeal to a general audience, (see here for a discussion of faculty works in progress presentations), I want to turn my attention to the issues I write about.  My current paper compares the gravity of the crimes investigated at the International Criminal Court (ICC) to crimes committed in domestic systems.

Gravity is a term of art at the ICC, and it is used several times in the Rome Statute.  In particular, gravity serves as a threshold for the court to take action.  For example, the gravity of the crimes is a factor the Prosecutor must consider before beginning an investigation.  See Rome Statute, Art. 53.  And the Court cannot hear a case if the crimes are "not of sufficient gravity."  Id., Art. 17.  (The gravity of the crimes are also a factor the court must consider at sentencing, id., Arts. 77-78, but that is less relevant for what I am discussing.)  Thus, the concept of gravity serves an important regulatory function at the ICC - it keeps the court focused on the "most serious crimes of concern to the international community as a whole."  Id., Preamble.  

However, gravity is ultimately a relatively simple idea.  It refers to the seriousness of the crime.  Part of the thesis of my article is that the concept of gravity can be used to draw meaningful comparisons between the seriousness of domestic and international crimes.

Continue reading "How does one measure the gravity of crimes?"

Posted by Stuart Ford on April 7, 2016 at 03:08 PM | Permalink | Comments (4)

Going Meta on the Jr. Law Prawfs FAQ Series

I'll be back on Friday with my next FAQ (on the mysterious rise and perplexing value of online law reviews), but I thought I'd share the provocative response my colleague Deborah Merritt posted about this Jr. Law Prawfs FAQ Series over at the Law School Cafe. The full post is here, but here are seven points that she thinks are essential to reshape our scholarly sphere:

Continue reading "Going Meta on the Jr. Law Prawfs FAQ Series"

Posted by Chris Walker on April 7, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (6)

Wednesday, April 06, 2016

The new median Justice

Geoffrey Stone appeared on Dahlia Lithwick's Amicus podcast to criticize the Republican refusal to move on the Garland nomination. I agree with Stone's basic point that this is politics dressed up as neutral principles that do not hold water.

But Stone made another point, which may be more compelling: Yes, appointing Garland would move the Court to the left of where it is currently, but only to put the Court roughly back to where it was before Justice Alito replaced Justice O'Connor in 2005. His underlying argument goes like this:

   • When Alito replaced O'Connor, Justice Kennedy became the median justice and he is much more conservative than O'Connor, particularly on issues such as affirmative action and reproductive freedom (see, e.g., the Court reversing course on both issues almost immediately after Alito joined the Court).

   • Replacing Souter with Sotomayor and Stevens with Kagan moved the liberal side of the Court further left, creating a broader gap between the two sides, but leaving the median--Kennedy--in the same place.

   • If Garland joins the Court, Breyer or he becomes the new median justice, depending on who is further to the right. That moves the Court to the left because the median moves to the left, from Kennedy.

But to conclude that this only brings us back to 2004 (as opposed to, say, 1967), Breyer or Garland (whoever is the new median) would have to be in roughly the same place ideologically as O'Connor. Instinctively, this seems wrong--both are to the left of O'Connor, even substantially so. But on closer review, it is not so clear. After 80 cases together (about one term), Breyer agreed with O'Connor as to at least a judgment 83 % of the time, more than he did with anyone other than Ginsburg. And the chart in this piece places Breyer as more liberal than O'Connor (who is at the midpoint of the Martin-Quinn Score), although only slightly so. And if Garland is more conservative than Breyer, he must be similarly close to O'Connor on these scales. So maybe Stone is right that it will move the Court left, but not back to the days of a bloc of six reliably liberal Justices.

None of which is going to move the Senate majority, which finds anything to the left of the current Court unacceptable. But is interesting evidence for a counter-intuitive point.

Posted by Howard Wasserman on April 6, 2016 at 06:37 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (7)


Professor Paul Butler has an interesting opinion piece in yesterday’s Washington Post revisiting his 1995 Yale Essay Racially Based Jury Nullification: Black Power in the Criminal Justice System.  In the Post article, he writes:

“[S]ome 20 years later, the whole world knows what African Americans have been saying all along. There are two justice systems in the United States: one for privileged white people, and another, inferior one for everyone else. Last year, 90 percent of the people sentenced in D.C. criminal court were African American, even though blacks make up less than half the city’s population.

Nationally, most of the people locked up for drug crimes are African American, in spite of studies that demonstrate blacks don’t use or sell drugs more than any other group. We make up 13 percent of the country’s population but nearly 60 percent of the people doing time for drug offenses.

And an endless series of videos have shown how black people get policed: the mailman arrested in Brooklyn for yelling at the cops who almost ran him down; the teenage girl tackled by the cop at a pool party in McKinney, Tex.; Eric Garner, arrested for selling a cigarette in Staten Island and then put in a chokehold that killed him.

Like a lot of African Americans, I am sick and tired of being sick and tired. I encourage any juror who thinks the police or prosecutors have crossed the line in a particular case to refuse to convict.”

I have taught about juries since I started teaching law, working them into criminal procedure, advanced criminal procedure, and a seminar class I teach.  I have taught Professor Butler’s theory in my seminar class (along with the response essay).  But, I have not reworked my curriculum to address how the #BlackLivesMatters movement impacts these discussions about juries.  It is a topic I am thinking more about this week as our law school is hosting a symposium entitled “From Protest Movements of the 60s to #BlackLivesMatter: Legal Strategies for an Emerging Civil Rights Movement.” 

Have others of you added #BlackLivesMatters, the “Ferguson Effect,” and/or its impact on race and criminal justice to your classroom teaching?  How?  Plainly, the subject might come up in class discussions, but have you changed your curriculum/readings as a result of changes in society?  Has it changed your strategy of teaching law?

Posted by Andrew Guthrie Ferguson on April 6, 2016 at 03:09 PM | Permalink | Comments (0)

Yes (With Caveats), Publishing a Book Review is Still a Worthwhile Endeavor for Untenured Law Professors

Following up on Chris's follow-up post, and with due appreciation for some of the points made in the comments there, my answer is yes, it is still worthwhile for untenured tenure-track law professors (an unwieldy phrase, but I don't like the increasingly common "pretenured": it may be accurate, given tenure rates, but there's a whiff behind it of unnecessary language massage and an unwillingness to hurt anybody's feelings by suggesting that anyone might not deserve and get tenure) to publish book reviews. Sure, there are cautions to be registered and prudential concerns to consider. But, as a general matter, it is still worthwhile.

The primary reason I think it's worthwhile for untenured law professors to publish book reviews--and, given time limits, the only one I want to focus on--is that I think it's worthwhile for tenured law professors to publish book reviews. Good books in one's field are, well, good, and in my view better and more rewarding than good but long articles. Engaging seriously with a good book can be an intellectually rewarding experience, and part of the way we engage is to write. It is also rewarding, especially in a field in which the currently dominant conventional law review article form is so imperfect, to experiment with different genres and forms of writing. All of these things are as true for untenured law profs as they are for law profs. It makes sense, up to a point, for untenured professors to be given sound professional advice that includes practical and pragmatic advice. But it also makes sense not to put the cart before the horse, and to be wary of the prospect that prudential advice of this sort, offered initially in a regretful, don't-like-it-but-that's-how-it-is way, will become reified and perpetuated, and that people will slowly build normative justifications around it. There ought to be room for serious book reviews in any genre of scholarship in which books are relevant. That should be true for tenured professors. And, in principle, just about any scholarly activity that might be valuable or rewarding for tenured professors, and certainly this one, should be valuable or rewarding for untenured professors.

I agree that given limited time and attention, there are reasons for untenured professors--or some of them; others write and publish a ton--to focus on what needs to get done, not just what they want to do. I don't find that terribly compelling as a general piece of advice, and it's becoming ever less compelling. The tenure clock is relatively long and has, I think, gotten longer rather than shorter. More people are coming out of doctoral studies or fellowships and, depending on what they've negotiated, already have at least one piece towards tenure. Even those whose prior publications don't count toward tenure at least have gotten some practice writing in their field and won't have the same start-up needs that someone coming in cold would. And, frankly, the number of significant pieces demanded for tenure is not huge, and doing a book review shouldn't be a make-or-break factor.

I also agree that untenured professors might want to build up some experience, skill, wisdom, and so on before writing a book review. But here too I think the conditions of the industry have changed. Whatever sense this makes in general, we can at least say that many entry-level law professors have put in some time on their subject, and published in the area, even before entering the tenure track. There's thus less reason to think it's presumptuous of them to assay a book review. Of course they should write the review as modestly as is appropriate given their relevant skills and limits. But that's true of articles as well, despite the not-infrequent immodesty of articles by entry-level profs (immodesty that is indeed noted, if forgiven, by more elderly readers in the field). Finally, one can understand that an untenured professor might want to select projects for impact and to build a voice and reputation. I think good book reviews can do that too, but I agree that articles (and, um, books) are the best way to achieve that goal. On the other hand, building a reputation should be secondary to the scholar's primary interest, which is to do scholarship. An untenured writer who thinks a book review is the right project to pursue, that it is the lesson he or she must learn or the contribution he or she must make, should worry about that first, and let reputational concerns take care of themselves. I think it is at least possible that there are people who internalize lessons about how to build a famous reputation very well, and do everything right, but little that's truly worthwhile. Better, I think, professionally speaking, to ask what your scholarly mission demands of you; if the muse tells you that the answer is "write a book review," write it. 

Perhaps all this is obvious and just goes without saying. I think it is and does. I also think the prudential advice on which people usually focus when asking these questions is mostly pretty obvious too, for that matter. I wouldn't have bothered writing about this. But, whatever the intention of the post or individual comments, I worry about the framing being such that untenured professors convince themselves that "scholar" is not a category with its own imperatives, but rather that there are two distinct categories of scholar: "untenured scholar" and "tenured scholar." I think it's important to reject that view, and that conditions are easy enough for most untenured law professors (if they get the job, which is really the hard part) that there's room enough to focus on the normative "oughts" of scholarship and not just the practical "ises." Indeed, I worry that in the legal academy many entering (and senior) academics hear, know, talk, and think more about the "ises" of scholarship than they do the "oughts."       


Posted by Paul Horwitz on April 6, 2016 at 02:23 PM in Paul Horwitz | Permalink | Comments (5)

Serial 2:Epilogue

Last one!  First, thank you to Howard and the crew for letting me comment on Serial.  In my closing note, I’ll situate this case into a standard critique of military justice systems and I’ll give some thoughts on how a military panel might view the mental health evidence in this case.  No spoilers in this post.

One reason why I was excited that Koenig picked up Bergdahl’s story is that this would focus some public attention on the military justice system.  I believe that the American military justice system is probably the fairest justice system in the country: every accused gets a fully-funded public defender who will thoroughly work the issues in his case, and I think that is where the due process rubber meets the road.    

The system is under serious scrutiny right now, primarily over the role that commanders play in it.  Commanders, not lawyers, make the ultimate decisions to convene a court-martial. 

There are two basic criticisms of military justice systems.  One is that commanders do too much.  They have too much power and use it to railroad service members through a rough, harsh, summary process.  Through World War II, American courts-martial looked pretty much like the one depicted in the movie Breaker Morant (great movie, available for rent in Amazon video).  Commanders had extraordinary control over the system: they could set a trial date just a few hours after charging the accused; they controlled the accused’s access to evidence; they could reprimand the panel members for acquittals and light sentences; and there was no real appellate system. 

Continue reading "Serial 2:Epilogue"

Posted by Eric Carpenter on April 6, 2016 at 09:56 AM | Permalink | Comments (1)

Is Publishing a Book Review in a Law Review Still a Worthwhile Pretenure Endeavor? (Jr. Law Prawfs FAQ)

Following up on my post from Monday on whether it's worth writing a response to a law review article as a junior scholar, I thought I'd turn to the somewhat related question of whether as a junior scholar it's worth doing a full-length book review in a law review. To provide a little background, I still remember some advice a professor gave during my aspiring-professor legal studies workshop in law school over a decade ago (paraphrasing as my memory isn't that good):

Publishing a book review in a law review is an excellent way to introduce yourself to the field because you can interact with a respected senior scholar's work and then let your own voice and ideas come through as well.  There's the additional value that it's easier for a junior scholar to place a book review (especially of a book by a respected scholar in one's field) in a top-tier law review than a traditional law review article. So you build your CV with a top-tier book review placement, which helps you place your first full-length article. And, moreover, scholars in your field are more likely to read a book review from a junior scholar than a traditional article from that same previously unknown junior scholar.

Assuming this advice was good a decade ago, is it still good advice today? Do many law reviews still publish these long-form book reviews? Is it really easier to place a book review than a traditional article in a law review? Is it more likely that scholars will read the book review than a full-length article from an unknown junior scholar in the field?

Continue reading "Is Publishing a Book Review in a Law Review Still a Worthwhile Pretenure Endeavor? (Jr. Law Prawfs FAQ)"

Posted by Chris Walker on April 6, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (13)

Tuesday, April 05, 2016

The duty of sources

A federal judge has ruled that "Jackie," the pseudonymous source in the discredited Rolling Stone story about sexual assault at UVa must sit for a deposition in a defamation action brought by a former university administrator. Judge Glen Conrad (W.D. Va.). refused to quash a subpoena for the woman, who claims to have been the victim of sexual assault in a fraternity house, to be deposed by the plaintiff. But Judge Conrad did limit the deposition to five hours over two days (different than the presumption 1 day/7 hours) in the rule. And he ordered the deposition be sealed.

On that last point: The Slate piece ends with the following:

Steve Coll, the dean of the Columbia Journalism School, told The Washington Post this January that he thinks that’s for the best: “It’s an unusual situation, and I understand the argument on the other side, but I would not name her … She never solicited Rolling Stone to be written about. She’s not responsible for the journalism mistakes. To name her now just feels gratuitous, lacking sufficient public purpose. That could change depending on how the legal cases unfold, but that’s my sense now.”

Coll is right, of course, that the attention should stay on Rolling Stone and Erdely, who, unlike Jackie, had a clear responsibility to their readers . . .

Continue reading "The duty of sources"

Posted by Howard Wasserman on April 5, 2016 at 09:50 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (5)

A Brief Hello

Hi.  Thanks to Howard for the opportunity to guest bl(o/aw)g here this month.  For those who don't me, I teach criminal law, evidence, and criminal procedure at the Elon University School of Law in Greensboro, North Carolina, and I write about technologies of crime prevention and criminal informants.  I hope to cover a broad range of topics while I'm here: a bit on my research interests, as well as some thoughts on teaching, law school curricula, and some of the challenges I've encountered in my still-relatively-brief career in legal academia.  See you soon.

Posted by Michael Rich on April 5, 2016 at 04:49 PM in Blogging, Criminal Law | Permalink | Comments (1)

The Culture of Faculty Works in Progress Presentations

Hi everyone!

I am very excited to be guest blogging (or maybe that should be blawgging?) this month.  I teach at The John Marshall Law School in Chicago and I specialize in the study of international criminal law and international criminal courts.  Back in the Fall when I volunteered to be a guest blogger I had grand plans for creating a detailed agenda for what I would blog about over the course of April.  Of course, that didn't happen, so instead I will start by talking about what I am doing today.

In a couple of hours, I will be making a faculty work in progress (FWIP) presentation to my own faculty.  Attendance at FWIPs has gone down since the free lunches were axed a couple of years ago for budgetary reasons, but at least you know the people who show up aren't just attending for the free food.

The culture of FWIPs at my school is that scholars present functionally complete papers.  It is rare to see anybody present a paper in an early form, presumably because of the risk of looking foolish if it is too easy to poke holes in the argument.  And, indeed, the paper I will present is functionally complete.  I am sure it is not finished and that there are ways to improve it, but it includes all of the parts that I intended the final paper to have and it has been through several rounds of editing.  For those who might be interested, the paper I am presenting is here.

So, I am presenting a more or less complete paper in part because of the concern about aggressive questioning of a potentially under-thought premise. But the reality is that such questioning is quite unlikely.  If past FWIPs are a prediction of what will happen today, the questioning will be extremely polite.  Moreover, nobody will be out to get me and, while there may be some attempts to pin me down on issues that the faculty believes were insufficiently articulate, attempts to demonstrate that one's arguments are "wrong" are almost never made.

So why do people only present essentially complete papers when the risk of things going wrong if you present an early stage paper are quite low?  I am honestly not sure.  I would guess that we over-estimate both the risk of something going wrong and the consequences that would flow from it.  Moreover, there is a potential pay-off to presenting earlier pieces as there is a greater possibility that critical questions early in the process can improve the direction of the final paper.  In short, I don't think we are necessarily acting rationally and we might be better off presenting something much earlier in development.

Anyway, what happens at your schools?  Are there schools (or types of schools) where there is a real risk of aggressive questioning or where other faculty members might really be out to show that your paper is "wrong"?  Do some of you present early pieces at FWIPs?  If so, why?  Finally, do you agree that the approach to FWIPs at my school is arguably irrational?

Next time, I might talk about the actual paper I am presenting today.  After all, I would guess that the anonymity permitted by the Internet makes it more likely that I will receive more searching/critical questions from my fellow prawfsblawggers than I will receive from my own faculty!

Posted by Stuart Ford on April 5, 2016 at 10:49 AM | Permalink | Comments (7)

How Does My Research Fit Within the Types of Legal Scholarship? (Jr. Law Prawfs FAQ)

A number of junior (and aspiring) law professors have reached out with a common question: How do I conceptualize where my research agenda and/or methodology fits into the larger legal literature? Fortunately, Harvard Law School Dean Martha Minow has already provided a terrific starting point, in an essay entitled Archetypal Legal Scholarship: A Field Guide, which was published in Journal of Legal Education in 2013. Here's the introduction:

Continue reading "How Does My Research Fit Within the Types of Legal Scholarship? (Jr. Law Prawfs FAQ)"

Posted by Chris Walker on April 5, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (0)