Wednesday, August 31, 2016

Goodbye and Some Things to Watch

A month passes surprisingly quickly!  I'm grateful to have had the opportunity to join Prawfs as a guest blogger and for the people that have reached out because of the posts.  I'm also leaving with tremendous respect for folks like Howard that keep blogging year round.  

After the jump, I flag two interesting business law areas that I plan to watch in the year ahead for interesting classroom material and potential scholarship ideas.  In one area, changing technology and business practices may stress existing legal systems.  In the other, new enforcement programs may change business culture.

Continue reading "Goodbye and Some Things to Watch"

Posted by Benjamin P. Edwards on August 31, 2016 at 10:52 AM | Permalink | Comments (0)

Tuesday, August 30, 2016

Now we know where John Roberts got the umpire analogy

Go to the 2:15 mark (start of the second chorus)


Posted by Howard Wasserman on August 30, 2016 at 11:35 PM in Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Guerilla Guides to Law Teaching

Guerilla Guides to Law Teaching is a new web-based course resource for incorporating social movements into law-school classes. It is produced by Amna Akbar (Ohio State), Sameer Ashar (UC-Irvine), Bill Quigley (Loyola-NO), and Jocelyn Simonson (Brooklyn). Here are the Four Principles for using this material in teaching.

Posted by Howard Wasserman on August 30, 2016 at 04:02 PM in Teaching Law | Permalink | Comments (0)

Blinding and Bias in Law Hiring

As some of you may know, I inadvertently started a heated debate over what students should call professors, see here, and here, (Eugene Volokh’s take here) and here (Orin Kerr’s take).

This debate has turned into a larger one about trying to improve respect and even reduce bias in the classroom and has led to some really interesting conversations.  Without fail, my male colleagues are shocked when I tell them that I routinely introduce myself as Professor Baughman and am in turn called “Shima.” They could never imagine a student not thinking their first name was professor even when they first started teaching. Even Volokh’s post acknowledges that though he asks students to call him Eugene, they don’t take him up on this offer. Could this possibly be because he's a white male (and also really famous)?

I actually remember wishing early on in teaching that I was white, much older, and a man.  I still wish this sometimes when I speak at certain events.  Obviously, I can’t do anything about that in teaching and presenting and luckily it has not presented a big obstacle in my career.  But part of that is because at least some of what helps us achieve our success is done in a blind manner. 

We receive our grades in law school blindly.  The bar is graded blindly. And even now as a professor, my articles are submitted and judged (at least to some law reviews) presumably blindly (I say presumably because there is always a lot of doubt that the schools that claim blind judging of law review articles are truly doing this (fully) in a blind manner. I’m not entering that fray today).

But still a lot of what we do as lawyers and law professors is not done in a blind manner. I’ve written about this blinding issue with Sunita Sah and Chris Robertson in the context of prosecutors. We believe prosecutors should be blinded to the race of victims and defendants at the initial charging decision (before they actually meet defendant). Blinding has caught on in other fields.  Just a few examples in our article: doctors blind the race of patients because that has biased their treatment in clinical experiments. Musicians often audition behind a screen so they are solely judged by their music and not their appearance—or gender or race. And so on. In our article we discuss the fact that in some tech job searches, companies have blinded the resumes from the reviewer to try to avoid any implicit bias in hiring.  Why go through this trouble? Well, studies have demonstrated that we all have bias and even being aware of, or trained against this bias, does not help (and can in some contexts actually make it worse).  I would argue, that whenever possible, we should at least consider blinding in decisionmaking.

Recently I spoke at a diversity panel hosted by a large law firm in Salt Lake City.  The discussion centered around how we could create more diversity and reduce bias in hiring at big firms.  But it is a live issue in legal academia, which is something more present on my mind since I am on the Appointments Committee at Utah. Obviously there is a lot that can be done on this front. One suggestion I brought up that I haven’t heard discussed is—what about blinding the initial screening committee at a firm or among an appointments committee to the names of the individuals applying (or other information that indicates their race or gender)? Could that possibly reduce bias?  Could it avoid the famous resume bias documented in studies or even bias documented in hiring research assistants (where women and minorities with similar resumes received less offers? Or could it backfire because at least at some law schools (like ours) or firms, they are hoping for gender and racial diversity and look for these cues on resumes (Black Student Union, Women’s Law Forum, or simple race indicators on FAR forms.)?  Is there any way to use blinding in legal hiring that would help decrease bias and increase diversity?

Posted by Shima Baradaran Baughman on August 30, 2016 at 01:29 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (7)

Colin Kaepernick

I do not have much to say about NFL (non-starting) quarterback Colin Kaepernick's decision to not stand for the national anthem, since those who read this space know that I support his right to do this, without equivocation. I am heartened to see the NFL and the 49ers are, thus far, allowing his protests--although see the parenthetical in the first sentence. We have come some distance from 1968 and even 1996, when the NBA suspended Mahmoud Abdul-Rauf for one game for refusing to stand.

As for the criticisms, it is more of the same--"you're rich and successful athlete, so you have nothing to complain about." (so one can engage in political expression only when it furthers one's own self-interest?); "the flag is special and you disrespect those who served in the military" (considered and rejected twice by SCOTUS, including by the sainted Justice Scalia); "find another way to do it" (why should someone be forced to sacrifice their best forum?)

Finally, it is beyond laughable that Donald Trump is running for President on an explicit platform that the country is circling the drain, especially for African-Americans, but that an African-American who protests because of the same belief should leave the country. So does that mean that if America does suck, your choices are 1) run for President, 2) leave, or 3) shut up and vote for Donald Trump? That is an odd vision of free speech. But not a surprising one, given the source.

Posted by Howard Wasserman on August 30, 2016 at 10:01 AM in First Amendment, Howard Wasserman | Permalink | Comments (11)

The Night of Conclusion

I was a guest on New York Magazine's Vulture TV Podcast (begins at 30:00 mark) discussing the finale of The Night Of. Some additional comments (with spoilers) after the jump.

Continue reading "The Night of Conclusion"

Posted by Howard Wasserman on August 30, 2016 at 09:12 AM in Culture, Howard Wasserman, Television | Permalink | Comments (3)

Monday, August 29, 2016

The Missing Million Dollar Man

Financial self-regulatory organizations play an important role in investor protection.  Like other institutions, they also have governance scandals.  When Richard Grasso served as the head of the New York Stock Exchange from 1995 to 2003, he somehow managed to secure a eye-popping $140 million in special retirement compensation even though the NYSE was, at that time, a non-profit.  Observers speculated that Grasso may have secured such a large payday for himself in part because of his influence over selecting his own compensation committee:  

Many of the directors of the NYSE (including members of the Compensation Committee) were subject to regulation by Mr. Grasso himself, as chairman and CEO of the NYSE. During the periods relevant to the litigation, Mr. Grasso was authorized to appoint the members of the Compensation Committee (subject to board approval) and to select one of the members as the chairperson of the committee (the selection of the committee chairperson did not require board approval). 

Given this history of governance problems at financial self-regulatory organizations, the SEC should vigilantly monitor this area.  Unfortunately, that isn't what has happened.  In 2012, the Government Accountability Office released a report finding that the SEC had “conducted limited or no oversight of . . . FINRA’s . . . governance and executive compensation.”  FINRA itself does not disclose much information about the backgrounds of its public governors.  In many instances it simply lists them as "retired."  

In my last post, I shared how Robert W. Scully, one of FINRA's public governors, recently disappeared from FINRA's website and annual report.  This former public governor now serves as a director on UBS's board (a large financial institution with brokerage businesses regulated by FINRA).  Because the case of FINRA's mysterious disappearing public governor piqued my interest, I reached out to Sarah Haan, my favorite corporate election expert and figured a few more things out.

Continue reading "The Missing Million Dollar Man"

Posted by Benjamin P. Edwards on August 29, 2016 at 11:01 AM | Permalink | Comments (1)

Saturday, August 27, 2016

Defining terms and the U of C letter

Some of the problem surrounding the U of C letter is that we do not or cannot agree on terms. A commenter on my prior post on this argues that we are conflating content warnings with trigger warnings, because much of what we warn about is not actually "triggering" for trauma victims. An interesting point. Although i wonder if, at some level, we are quibbling semantics--the point comes to whether we must warn about something and whether that warning comes with some form of opt-out.

At Balkinization, Mark Graber posts a letter from a music professor at the University of Georgia (who happens to share his last name) arguing that intellectual safe spaces are essential to allow students to "speak, write, listen, challenge, and learn." But the letter defines safe spaces as ones in which students can present their ideas--even wrong or half-baked ones--without fear of reprisal from colleagues or professors. I agree with this conception. Of course, that is not what "safe space" has come to mean on campus and, at least I do not believe, it was not the conception the U of C letter was challenging or the conception that has been at the heart of most campus speech disputes.

Posted by Howard Wasserman on August 27, 2016 at 02:55 PM in Howard Wasserman, Teaching Law | Permalink | Comments (20)

Friday, August 26, 2016

Selecting the Public's Representatives in the Financial Regulatory Process

Financial regulations issued and enforced by the Financial Industry Regulatory Authority (FINRA) affect the public by setting the level of investor protection available.  If things go awry, FINRA regulation also governs the rights the public has in industry-controlled arbitration. 

Structurally, FINRA is a quasi-governmental organization that allows the industry to regulate itself under supervision from the SEC.  While the industry elects a substantial number of FINRA's board members, its bylaws also call for the majority of the board to be "public" governors. The board's nominating committee, which includes industry-elected members, selects the "public" representatives.  

This picking process has resulted in some surprising choices for public representatives.  I took a close look at the current board and discovered some interesting things.  According to one version of FINRA's annual report, Robert W. Scully served as one of the "public" board members as of June 15, 2016.  In May 2016 he was elected to serve on the board of UBS--a major financial services firm.  It struck me as odd that a public representative would concurrently serve on a financial service's firm's board.  Interestingly, the contents of FINRA's previously issued annual report recently changed to omit Mr. Scully's name.  His name was also scrubbed from FINRA's website.  I am not aware of any information about when Mr. Scully actually stopped serving as a public representative on FINRA's board or when any discussions about joining the UBS board began.  It may be that he promptly resigned as soon as he began to discuss joining UBS's board.

 Susan Antilla at The Street reached out to FINRA for comment about the industry connections of FINRA's public board members.  In her evaluation, the reality is that a majority of FINRA's board appears to have very close industry connections:

But by my count, only eight represent the public -- the result, in part, of the wide berth Finra allows for recent retirees from the finance industry to fill pubic seats. So if you're wondering why things don't always turn out so well for Mom and Pop when they entrust money to a broker, you might ponder the balance of power on Finra's board.

Is there a better way to pick public representatives?  I give my idea after the jump.

Continue reading "Selecting the Public's Representatives in the Financial Regulatory Process"

Posted by Benjamin P. Edwards on August 26, 2016 at 02:12 PM | Permalink | Comments (3)

Thursday, August 25, 2016

More on the University Chicago letter

A few additional points to Rick's post, on the letter from the University of Chicago on trigger warnings and safe spaces.

First, as I said in a comment on Rick's post, I always have understood trigger warnings as featuring an opt-out on top of the warning: "This is what this material is like and if you need to absent yourself from this material, you may." Consider this example of a content warning, from Angus Johnston, a history prof CUNY who took to Twitter to criticize UC:

Continue reading "More on the University Chicago letter"

Posted by Howard Wasserman on August 25, 2016 at 09:46 PM in Howard Wasserman, Teaching Law | Permalink | Comments (11)

The University of Chicago letter regarding "free exchange of ideas"

You can see here (and all over the interwebs) a letter from the Dean of Students at the University of Chicago to that university's incoming first-year students.  I wonder, have any law schools sent similar letters (or, letters covering the same issues) to incoming first-year law students?  Should they?  If so, what should they say?

For my own part, I do talk to students in Criminal Law, at several points during the semester, about the fact that the cases and materials we'll be reading do sometimes involve very difficult facts and that the materials and the questions they raise could very well be, for a variety of reasons, painful to read.  I urge respectful conversation and argument, but also invite students to speak with me if they have any concerns about talking in class about particular materials or about attending class on a particular day.  This kind of thing doesn't strike me as a "trigger warning," but maybe I'm misunderstanding what is meant, in the Chicago letter or generally, by that term.

Posted by Rick Garnett on August 25, 2016 at 04:22 PM in Rick Garnett | Permalink | Comments (5)

A Clearinghouse for Questions, 2016-2017

In this comment thread to this post, you can ask questions about the law teaching market, and professors or others can weigh in.

Both questions and answers can be anonymous, but I will delete pure nastiness, irrelevance, and misinformation. If you see something that you know to be wrong, please feel free to let me know via email, sarah*dot*lawsky*at*law*dot*northwestern*dot*edu.

We have a different thread in which candidates or professors can report callbacks, offers, and acceptances. That thread should be used only for information relevant to hiring, not for questions or comments on the process. This is the thread for questions.

You may want to take a look at the many questions and answers in the threads from 2014-2015 and 2015-2016.

Here is a link to the last page of comments.

Originally posted August 25, 2016.

Posted by Sarah Lawsky on August 25, 2016 at 09:00 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (149)

Law School Hiring, 2016-2017, Thread One

Those on the market are invited to leave comments on this thread regarding whether they have received:

(a) a first round interview at a school (including the subject areas the school mentioned, if any, as being of particular interest, and whether the interview offer was accepted);

(b)  a callback from a law school and/or accepted it; or

(c) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.

Law professors may also choose to provide information that is relevant to the entry-level market.  

Four miscellaneous things:

1. If you don't want your contact information displayed, enter or something like that as an email address.

2. There is a  separate thread, "A Clearinghouse for Questions," for general questions or comments about the teaching market. Please do not use the thread below for general questions or comments. (Such comments will be deleted, not out of hostility or in a judgy way, just to keep this thread focused.)

3. There's quite a cache of materials relevant to the law job market under the archive categories Getting a Job on the Law Teaching Market and Entry Level Hiring Report.

4. Finally, in each of the previous years, someone who is on the market has volunteered to aggregate the information on a spreadsheet. If you would like to volunteer, please contact me directly at sarah *dot* lawsky *at* law *dot* northwestern *dot* edu, and I will get you set up.

Update: No aggregator this year; instead, anyone can edit the spreadsheet. It is available here:

 Here is a link to the last page of comments.

Update: You can also add your information via this Google form, which was created by someone on the market this year.

Originally posted August 25, 2016; updated September 1, 2016, to add spreadsheet, and September 16, 2016, to add the link to the Google form.

Posted by Sarah Lawsky on August 25, 2016 at 09:00 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (397)

Wednesday, August 24, 2016

Sound Symbolism, Trademarks, and Consumer Experience

A recent tweet from Ed Timberlake brought a new study to my attention. According to the authors of the study, beer tastes better when paired with the right music. (It also works with chocolate, among other foods). Possible applications include pairing a six-pack of beer with an mp3 for a curated listening experience.

This connection between hearing and taste reminded me of another line of research I recently mined for my article, Are Trademarks Ever Fanciful? (105 Georgetown L.J., forthcoming 2017). Trademark law presumes that when a word is coined for use as a trademark (like XEROX for photocopiers or SWIFFER for dust mops) the word can't carry any product signifying meaning, so it must be inherently source signifying. That presumption about coined words is not entirely true. In fact, there is a significant body of research into sound symbolism that indicates many sounds carry meaning independent of the words to which they belong. This is true for consonants and vowels, and true even if the word at issue is a nonsense word (like XEROX or SWIFFER).

Courts haven't realized that sounds convey meaning in this way. This is unsurprising because most consumers don't realize it either. But marketers know, and they spend a significant amount of time trying to craft marks that take advantage of sound symbols. In light of this research, the presumption that a fanciful (coined) mark is entitled to instant and broad protection may require some rethinking.

I'm excited to hear your observations about sound symbols and trademarks, or your favorite food/beverage and music pairings, in the comments below.

Posted by Jake Linford on August 24, 2016 at 11:35 AM in Food and Drink, Intellectual Property, Music, Science | Permalink | Comments (4)

Hear, hear--Blogging Edition

An argument for more blogs and blogging and the limits of Twitter.

Update: One more on where blogs have gone over their fifteen years of life.

Posted by Howard Wasserman on August 24, 2016 at 09:31 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Tuesday, August 23, 2016

Inside the agency class action

A quick flag for a new article from Michael Sant’Ambrogio (Michigan State) & past-guest Adam Zimmerman (Loyola-LA), Inside the Agency Class Action. This piece builds on some posts Adam wrote here, as well as some reports by the Administrative Conference of the US that Sergio Campos wrote about for JOTWELL.

Posted by Howard Wasserman on August 23, 2016 at 04:28 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

University of Alabama School of Law: Hiring Notices

We have several potential openings at the University of Alabama School of Law this year, in both the "doctrinal" and "clinical" areas, and my colleagues have asked me to post notices for them. Here goes:

1) THE UNIVERSITY OF ALABAMA SCHOOL OF LAW seeks to fill entry-level/junior-lateral tenure-track positions for the 2017-2018 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship; junior-lateral candidates should have an established record of excellent teaching and distinguished scholarship. Although positions are not necessarily limited by subject, applications from those who study and teach commercial law (including contracts and sales) or torts (including products liability) are especially welcome; business law, family law, and insurance law are also areas of interest. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods (including quantitative or qualitative empiricism, formal mode ling, or historical or philosophical analysis). The University of Alabama embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community. Salary, benefits, and research support will be nationally competitive. All applications are confidential to the extent permitted by state and federal law, and interested applicants should apply at; the positions remain open until filled. Questions should be directed to Professor Heather Elliott, Chair of the Faculty Appointments Committee ( The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, age, genetic information, disability, or protected veteran status, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under federal law from discrimination on several bases. Follow this link to find out more: “EEO is the Law”      

2) Assistant/Associate Professor--Director Elder Law Clinic:

The University of Alabama seeks applicants for the position of Director for its Elder Law Clinic. The Director oversees and/or conducts all phases of legal advocacy for clinic clients, teaches and supervises clinic students, and manages law clinic staff. The position is for an appointment as assistant or associate professor of clinical legal instruction, with opportunity for promotion and security of position. MINIMUM QUALIFICATIONS: a J.D. degree from an ABA accredited law school, a distinguished academic record, and experience as a clinical teacher or practicing lawyer. Candidates must be licensed to practice law in Alabama or become licensed no later that one year after accepting the position. We seek applications from entry-level and lateral candidates with demonstrated potential for outstanding law practice, clinical education and scholarly achievement.    SALARY and RANK: will be commensurate with experience. Apply  online at
The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, age, genetic information, disability, or protected veteran status, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under federal law from discrimination on several bases. Follow this link to find out more:
Requests for reasonable accommodation during the application/interview process should be made to Associate Dean Thomas Ksobiech at (205) 348-4509 or The position will remain open until filled. Please refer questions about the hiring process to Professor Jenny Carroll, Chair of the Clinical Appointments Committee for the 2016-2017 academic year, at
3) Assistant/Associate Professor--Director Domestic Violence Law Clinic:
The University of Alabama seeks applicants for the position of Director for its Domestic Violence Law Clinic. The Director oversees and/or conducts all phases of legal advocacy for clinic clients, teaches and supervises clinic students, and manages law clinic staff. The position is for an appointment as assistant or associate professor of clinical legal instruction, with opportunity for promotion and security of position. MINIMUM QUALIFICATIONS: a J.D. degree from an ABA accredited law school, a distinguished academic record, and experience as a clinical teacher or practicing lawyer. Candidates must be licensed to practice law in Alabama or become licensed no later that one year after accepting the position. We seek applications from entry-level and lateral candidates with demonstrated potential for outstanding law practice, clinical education and scholarly achievement.    SALARY and RANK: will be commensurate with experience. Apply  online at
The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, age, genetic information, disability, or protected veteran status, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under federal law from discrimination on several bases. Follow this link to find out more:
Requests for reasonable accommodation during the application/interview process should be made to Associate Dean Thomas Ksobiech at (205) 348-4509 or The position will remain open until filled. Please refer questions about the hiring process to Professor Jenny Carroll, Chair of the Clinical Appointments Committee for the 2016-2017 academic year, at
Comments are closed but contact info can be found in the notices above. 

Posted by Paul Horwitz on August 23, 2016 at 04:12 PM in Paul Horwitz | Permalink | Comments (0)

The Night Of (Updated)

I have been enjoying HBO's The Night Of, despite my general distaste for legal fiction. The acting and writing have been great and the show has presented a unique tone.

Some comments (with spoilers, for those of you who are not caught up) after the jump.

Continue reading "The Night Of (Updated)"

Posted by Howard Wasserman on August 23, 2016 at 12:03 PM in Culture, Howard Wasserman | Permalink | Comments (1)

Monday, August 22, 2016

Research Assistants and Comment Letters

In the best case scenario, both faculty and students benefit from research assistant positions.  From the faculty perspective, I want to take on a research assistant if it will allow me to accomplish more than I would alone.  If I could do the work by myself in less time, an assistant may be more of a burden than a benefit.  From the student's perspective, the relationship also needs to yield some benefit, perhaps a letter of recommendation or a more polished writing sample than they would have produced otherwise.  Finding the right assistant and mix of tasks to delegate makes the process work.

Putting a research assistant in charge of drafting a short comment letter under their own name on pending agency rule-making has worked well for me and allowed the assistant to get some genuine ownership over a project.  Because the comment letter will be publicly filed, the assistant has a strong interest in producing quality work and researching the area.  It also creates a unique writing sample that gives the student something to talk about when searching for a position.  On some occasions, students have reported that their interviews focused around their comment letter.  It may also help get students in the door by allowing them to demonstrate genuine interest in an area.  After talking about how we've used comment letters in the past at the Transactional Law Conference, Nicole Iannarone and I put together a small piece talking about our experiences working with students on comment letters.  Of course, it's not always roses.  If an assistant isn't up to the task, you've got to spike the project to prevent them from filing a bad letter.

Supporting a research assistant through comment letter process yields some benefits for faculty as well.  It helps to set the tone for what good work should look like.  The assistant may also work harder for you on other projects that don't advance their career in the same way because you've taken some time to invest in a project that helps them. Plus, it keeps your eye on the other comment letters being filed and may give you insights you wouldn't have had otherwise.  When you ask them to look at related issues to support your research, the project has built some foundation to allow them to do better work.  On the whole, I've had good experiences with it.  Are there other projects that work well to generate the same kind of engagement?



Posted by Benjamin P. Edwards on August 22, 2016 at 01:13 PM | Permalink | Comments (2)

Saturday, August 20, 2016

Baseline Hell and the Religion Clauses

Perhaps because religions have a special interest in the diabolical, the fires of baseline hell seem to burn particularly hot in the context the Religion clauses. As I noted years ago, "baseline hell" refers to the futility of arguing about whether some burden is the imposition of a "penalty" or the withholding of a special "benefit" in the absence of a theory of distributive justice. As a salient recent example of baseline hell, one need look no further than the recent debates over whether employers' immunities' from the so-called Contraception Mandate impose a "harm" on employees or protect employers from the constitutional "harm" of being dragooned into violating their conscience. The answer, of course, is "both or either, depending on how one defines the relevant baselines." The contestants nevertheless draw on ideas of "harm"" and "coercion" as if these bare words will settle their fight absent a consensus about how to measure baselines -- a consensus in short supply, especially in the weird twilight zone between the public and private that is the "private" workplace.

Consider, for instance, Mark Gedicks' and Rebecca van Tassell's argument that, because RFRA as construed by Hobby Lobby deprives female employees of a statutory benefit, it "harms" them and thereby constitutes an unconstitutional accommodation of regulation. Gedicks' and Van Tassell's argument turns on a particular choice of status quo baselines under which loss of a statutory right that existed before judicial enforcement of the religious accommodation constitutes a "harm" forbidden by the Establishment clause. One does not need to be an ultra-Crit to see that status quo baselines are not the only criterion available by which to assess whether a loss is a "harm." Why not instead use a predictive baseline that asks whether the entitlement conditioned by a religious accommodation would exist at all absent that accommodation? (Einer Elhauge has a nice recent formulation of predictive baselines that one could use to fine-tune the analysis). Such an inquiry would require one to ask whether the Mikulski Amendment that forms the statutory basis for ACA's Contraception Mandate would have been enacted had it carved out an exception to RFRA for contraception and other medical procedures that might offend employers' religious scruples. Given that the Mikulski Amendment was silent about contraception and RFRA, it is difficult to say for sure, but the firestorm of controversy over the Stupak-Pitt Amendment suggests that critical Blue Dog votes might have jumped ship had ACA expressly attempted to waive RFRA entitlements, dooming the entire legislation. (Indeed, the prospect of such ship-jumping might explain the Mikulski Amendment's coyness about mentioning contraception and focusing instead on "preventative tests" like mammograms).

There is a perfectly plausible argument, in short, that, far from depriving female employees of an employment benefit, the preservation of RFRA's protection for employers was the necessary price for the ACA's passage. If so, where's the "harm" from a limit on a statutory right that exist only because that limit was not repealed? I do not endorse either predictive baselines in general or their particular application to ACA and RFRA. I note only that trying to distinguish between permissible and forbidden accommodations by invoking notions like "harm" invites a Critical response for which I see no easy rejoinder. As I argue elsewhere, the same complaints can be registered against the Eisgruber-Sager "Equal Liberty" baseline (defining religious entitlements by what "relevantly similar" non-religious actors receive) or the Laycock "Substantive Neutrality" baseline (defining religious neutrality by whether a religious exemption increases the attractiveness of the religion to non-believers more than the absence of that exemption deters religious practice).

Welcome to Baseline Hell! I would suggest that route to the exit door is some form of decentralization that sends these baseline fights to subnational governments -- but that's a subject for a different post.

Posted by Rick Hills on August 20, 2016 at 03:57 AM | Permalink | Comments (21)

Friday, August 19, 2016

More Retirement Plan Lawsuits

An increasing number of universities may soon be facing lawsuits alleging retirement plan mismanagement. Since my last post, the list of universities currently facing lawsuits has grown to include Columbia, Cornell, Northwestern University, Yale, M.I.T., NYU, Emory, Johns Hopkins, Vanderbilt, the University of Pennsylvania, Duke, and the University of Southern California.  The lawsuits often allege that plans contained overpriced options that consistently performed below benchmarks.  

Some faculty have even started reaching out to Jerry Schlicter, the attorney behind the suits, for assistance reviewing their retirement plans.  One interesting contention is that universities that provide faculty with the option to select between different retirement plan providers may breach their duties by not consolidating and using the larger asset pool to negotiate lower fees:   

Some suits also allege that universities cost employees by using multiple companies as retirement plan providers, or record keepers. An institution can negotiate lower fees by consolidating to one record keeper, increasing its bargaining power, the suits argue.

From a practical perspective, having multiple 403(b) plan providers or record keepers unlikely to yield any worthwhile benefit.  It also seems that giving more "choices" in this context may drive increased costs for all faculty.  

Posted by Benjamin P. Edwards on August 19, 2016 at 12:09 PM | Permalink | Comments (0)

On reaching "adulthood" in law teaching

Our new first-years are being "oriented" today, and it hit me that this is the 18th time that's happened since I started law teaching.  So, I guess that means I get to vote, or get drafted, or rent a car (but not drink) in law-teaching land.  (It also hit me that I've been teaching longer than some of the new undergraduates who are moving in this weekend have been alive, but that's too much to take in . . ..)  I'm not sure what this milestone means with respect to, for example, the conversation about what students should call professors (I'm pulling for "eminencia"!) -- but I'm pretty sure it means that all "Seinfeld" references (and, who are we kidding?, "Sopranos" references too) have to be shelved.

Have a great semester, everyone!

Posted by Rick Garnett on August 19, 2016 at 10:08 AM in Rick Garnett | Permalink | Comments (5)

Thursday, August 18, 2016

Number of FAR Forms in First Distribution Over Time - 2016

The first distribution of the FAR AALS forms came out this week. Here are the number of FAR forms in the first distribution for each year since 2009.

FAR Forms Over Time.20160818

(All information obtained from various blog posts, blog comments, and Facebook postings over the years and not independently verified. If you have more accurate information, please post it in the comments and I will update accordingly.)

Edited 8/18/16, 10:06p, to correct number to 382 forms.

Posted by Sarah Lawsky on August 18, 2016 at 01:09 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (22)

Advice (and Myths) for 1Ls

I was recently asked to give the faculty welcome to our new 1L students at the University of Utah. I used my time to give them some general advice and perspective about law school. I made them laugh a little, hopefully calmed their nerves, and none of them walked out. So I consider it a success.

If I had had more time, I would have shared some more specific advice that I don’t think is shared very often. I think often law students approach other law students for advice. That is great, but why not us, Prawfs? After all we have not only gone through law school (and done well there), but we have interacted with law students every semester and watched what works and what doesn’t.

So below I share some “myths” of 1L year that I think are commonly heard but misguided, intermixed with some advice.

Law School Myths:

  1. Brief every case for every class carefully for the entire first semester or year.

I disagree. I think briefing cases may be helpful for the first few weeks of law school in understanding how to read a case. But in law school—just like in undergrad—preparing well for class is about listening to the questions your professor asks and being prepared with those answers. Different professors focus on different things in class and it is best to read and try to understand the material and then try to learn what your professor is most interested in when he or she calls on you in class. Rather than spending a lot of time perfecting the reading each day, spend time at the end of each week trying to figure out what legal principles came out of the week and practice applying them.

  1. Join every student group and a journal and moot court and trial advocacy (the more the better) and stick with them throughout law school.

Both of these are really terrible pieces of advice. I think student leadership, journals, moot court, and trial advocacy can all be really great experiences in law school. In fact, some of the best. But I see way too many students becoming over-extended and trying to do ALL of the above. Somewhere they learned that for instance if you do one year of trial advocacy, and then focus on law review for the rest of law school, that that means you are a quitter. I disagree again. I think employers are not the least bit disappointed to see a law student who is focused. It is great to just excel at one thing in law school—whether it be law review, moot court or trial advocacy. The key with these extra activities is the commitment and excellence—so quality, not quantity, is most important.

  1. Study, study, study all day, e’ry day.

Really bad and unsustainable advice. The law semester is around 4 months long. If you are maintaining a “study all day until night ” attitude for this entire time, you will certainly burn out for the time it all really matters. One thing that law students forget is that you have a few grades in law school and usually they come with your final exam (though some professors will have a midterm or a couple papers). The majority of your grade though, will typically come with your final exam, so why not keep a regular study routine through the semester (which I think should include some weekend outline time—maybe a couple of hours) and then step it up during the last few weeks before finals? And yes, during the last three weeks before finals, I think it is stupid not to study, study, study, all day, e’ry day. This is the period where I am really confused when my law students plan weekend trips, take the day to ski or plan student parties. Nope. If you had saved some stamina you should have gotten that fun stuff over with early in the semester and freed your social calendar for studying the last 3-4 weeks of the semester.

  1. Take all of the classes you think sound interesting.

I got this advice and took it to the bank. Very bad idea. Instead of taking some really important bar classes (evidence, criminal procedure, securities, wills and trusts), I chose to take the classes that interested me during law school. I really enjoyed law school and had a great time but I had huge gaps in my knowledge when it came to taking the bar and even with my pro bono work after the bar. The “core” law school classes are core for a reason. Look at the list your law school provides you and try to take at least some of those classes. Honestly, if you barely squeaked into law school and have a low LSAT score (not that anyone else knows that now), I would take as many of the bar classes as you can. You will need every advantage you can get to pass the bar.

  1. Find the easiest professors and take all of their classes

I don’t think this is advice anyone actually tells law students (at least not publicly) but I think they often do it anyway. It is a bad idea. Take classes that challenge you. Take as many writing or drafting classes as you can. Learn corporate finance and intellectual property law and securities regulations. You are paying a lot of money to get a professional degree, which indicates that you have some important skills. Why sell yourself short? Be wise in your selection of non-core classes.

As usual, I would love to hear your thoughts. Do you agree that these are myths? Any other myths or advice for 1Ls?

Posted by Shima Baradaran Baughman on August 18, 2016 at 12:17 PM | Permalink | Comments (6)

Wednesday, August 17, 2016

JOTWELL: Steinberg on lawyers and strategic expertise

The new Courts Law essay comes from guest contributor Jessica Steinberg (George Washington), reviewing Colleen F. Shanahan, Anna E. Carpenter & Alyx Mark, Lawyers, Power, and Strategic Expertise (Denv. L. Rev.) (forthcoming), an empirical study of when and why having counsel matters in civil litigation.

Posted by Howard Wasserman on August 17, 2016 at 04:43 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

More sports rules and perverse incentives

Good stories in Slate and NY Mag about the zero-tolerance false-start rules in Olympic track, under which a racer is disqualified if he false-starts. This is the third version of the Olympic rule. Pre-2003, each runner was allowed one false start and was disqualified only on the second. In 2003, the rule was changed to give the entire field one false start, with a DQ imposed on whoever does the second false start. The current rule was enacted in 2010, making this the second Olympic games under that rule; we have seen two DQs this week, although not by any favorites. Usain Bolt wass DQ'd under the rule at the 2011 World Championships, the only Olympic or world championship final he has lost since 2008. French hurdler Wilhem Belocian was DQd earlier this week and was seen falling to the track in tears, but he had qualified seventh out of eight runners.

The 2010 rule change was designed, at least in part, to eliminate perverse incentives. Slower runners would intentionally false start, using up the "freebie" for the field. This forced faster starters and runners to be a bit more cautious, and thus to hesitate just a bit off the blocks, lest they pick up that second false start that would disqualify them. The new rule eliminates the intentional false start by eliminating the benefit, and thus the incentive, for the slower runner to do this.

Continue reading "More sports rules and perverse incentives"

Posted by Howard Wasserman on August 17, 2016 at 04:31 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, August 16, 2016

A call to action for civil justice reform

The following is by Linda Sandstrom Simard (Suffolk Law), who was a member of the Civil Justice Improvements Committee discussed in the post. These comments represent her own thoughts and opinions, not those of the Committee.

This summer the Conference of Chief Justices (“CCJ”), an association comprised of the chief justices of all of the state supreme courts, strongly endorsed the Call to Action and Recommendations of the Civil Justice Improvements Committee. Talk of civil justice reform is ubiquitous, but the CCJ endorsement of these Recommendations offers more than a glimmer of hope that key stakeholders in state courts around the country are ready to take serious action. The Report offers a comprehensive view of civil litigation in state courts and concludes that our legal system is too often not living up to the promise of a just, speedy, and inexpensive resolution of civil cases. The Report makes a series of evidence-based recommendations that seek to protect access to justice and restore faith in the civil justice system.  

Following is a brief description of the Report and my thoughts on the likelihood that the Report will engender reform.

Continue reading "A call to action for civil justice reform"

Posted by Howard Wasserman on August 16, 2016 at 06:30 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (1)

What Should Students Call Professors?

A decision that many of us make early on (or sometimes change later) in teaching is what to have students call us: “Professor X,” or our first name, or by some sort of nickname. Or this may organically evolve. I’ve gone from being called Professor Baradaran to most often, “Shima” in the last 6 years, but not by choice. I introduce myself every year in class as “Professor Baughman” pronounce it and sign all of my emails “Prof. B”, but still somehow, I am referred to as “Shima” by a large number of students. I understand that I went from one hard to pronounce last name (Baradaran) to another (Baughman) when I got married, but I don’t think that’s the problem here. I’ve spoken to several colleagues and they have experienced frustration with this nonconsensual first-name calling as well. I believe that students call me by my first name because there is a growing movement by professors to allow students to call them by their first name, both in undergrad and in law school.

I wonder what percentage of law professors encourage or allow students to call them by their first name and whether this is a good move. I tend to think that it is not a good development. Here are a couple reasons why:

  1. Call one professor “Frank”, call them all “Frank.” Some of us prawfs want to keep work life separate from casual life and having a title at work, helps us do that. Some of us feel like we have earned the title of Professor, and feel cool when our students call us that. Others are young (or look young), and the title of Professor may be the only separation they have to distinguish them from their students. Whatever it is, I think that this should be an individual choice that the professor makes. Maybe this can be avoided if professors who like to be called by their first names, warn students that they should not assume that other professors like this and to always ask in advance.
  1. The Classic Slippery Slope Argument. As far as I understand it, some law firms and definitely judicial chambers are places where judges or partners may not like to assume that interns or new associates or clerks treat them casually. I worry that calling professors by their first name in law school, may lead to false expectation that this is how it is in the legal profession. I actually think the legal profession is one of the few remaining professions where there is a sense of formality in our practice of law. We have to address judges by a certain title (or they will correct you at oral argument), we have to carefully include exact language, color, and formatting on briefs or they are rejected, addressing of opposing counsel and often clients often has to do this by their full name and title. And I believe an awkward situation may arise where a student may call his judge by her first name and it may be seen as a sign of disrespect (And unfortunately, serving on the Judicial Clerkship Committee I have heard these horror stories actually happening). Are we communicating these norms to our students? I worry about this given the growing casual nature of law teaching.
  1. Casual Nature of Law School. I have noticed in my time teaching that students are getting more casual at law school every year. Where in my first year of teaching, hardly anyone entered the classroom late, brought snacks to eat during class, or wore sweatpants or pajamas to class, these are now regular occurrences. Students have called me on my cell phone regularly (I’m not sure how they have obtained this number) and two students asked me if I could Skype their study group before one of my finals since they had a few extra questions and email responses just didn’t suffice. I regularly am asked if I can review a student’s 40+ page outline to see if there are any mistakes. These are requests I would never have made in law school even if I was paid a large amount of money. I worry that students have an extremely casual view of their professors and calling them by their first names may be exacerbating what I think is an already bigger issue of casual Millennials and respect.

But, trying to see this from the other side, the argument for having students call prawfs by their first name, I can understand. Prawfs want students to feel comfortable (especially possibly some nervous 1Ls) and feel that being on a first name basis provides that. This is also on trend with law schools having more mixers between students and professors and inviting students over to professors’ homes for social events to allow more natural interaction. For some it may be an equity thing—I call you by your first name to call on you, so you can call me by my first name. Finally, I totally understand the argument that these are professional students who have often worked in the business world and professors don’t need to artificially place themselves in a superior position to them.

Still, though, I believe the arguments against what I see as a new development among prawfs are stronger. What do you all think? Also, do you think this is a bigger problem for female professors? Minorities? Or younger professors? Or is it pretty universal?

Posted by Shima Baradaran Baughman on August 16, 2016 at 04:18 PM | Permalink | Comments (72)

Trinity Lutheran Church v. Pauley and the Case for Decentralizing Religious and Secular Accommodations

As I argue in a book chapter, I am a fan of decentralizing to subnational governments disputes over what I call “RADDs” – that is, “reasonable and deep disagreements.” A RADD is potent and divisive cocktail created by mixing two explosive ingredients – first, a reasonable dispute over a baseline of entitlement and, second, an intense conviction that the dispute touches on one’s identity as a member of an ethnocultural group. I believe that it is prudent to decentralize fights over RADDs because the absence of any common baselines – that is, the absence of a social and legal consensus defining who owns what -- make RADDs simultaneously irresolvable and viciously divisive. Because each side believes that it is playing defense against an invading enemy intent on cultural hegemony, battles over RADDs are treated by contestants as existential threats, inspiring an endless culture war in which the contestants generate acrimony that poisons ordinary politics. To defuse such battles, one can lower the stakes by delegating the resolution of RADDs to subnational governments in a way that allows each side’s reasonable view to prevail in some subnational jurisdictions. Federalism is the Westphalian solution to our Thirty Years (and counting) Culture Wars.

If you share my taste for defusing RADDs with a decentralizing fix, then there is no more important precedent than Locke v. Davey, the SCOTUS’s 2004 precedent that permitted but did not require Washington State to exclude a student seeking a devotional theology degree from receiving funding from the State’s otherwise-inclusive scholarship aid program. Locke is the federalism complement to Zelman v. Simmons-Harris, in which the Court permitted but did not require parents to use otherwise-available state-funded vouchers at religious schools. Both cases expand the scope of states’ power to define what one might call “secular accommodations” – that is, the accommodation of one’s desire not to be forced to contribute one’s tax dollars to the support of someone else’s religion. Zelman allows states to dispense with such accommodations; Locke allows states to provide such accommodations. The Court’s allowing both such approaches could be understood as a meta-accommodation that allows different jurisdictions’ rival views about secular accommodations to co-exist. I suggest that such a meta-accommodation through federalism best shows equal concern and respect for the RADD over whether or not a religious school should be prohibited from receiving, or entitled to receive, state aid. There are equally reasonable legal and political traditions in favor of both positions. Why not let each rule the roost somewhere?

Trinity Lutheran Church v. Pauley, a Free Exercise case to be argued before SCOTUS in the upcoming term, threatens to undo Locke. (With a 4-4 Court, the threat is admittedly weak). At issue in Trinity is Missouri’s state constitutional provision providing that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” Trinity Lutheran Church runs a school that wants assistance from an otherwise secular and neutral state funding program to re-surface its playground with ground-up tires. That state constitutional limit has been held to bar the aid, singling out a religious institution for a limit on state aid from which secular institutions are free.

Rick Garnett, my co-blogger and friend, would have the Court eat away at Locke by enforcing a nationally uniform rule of neutrality barring Missouri from discriminating against religious institutions in paving playgrounds with tires unless such discrimination is required by the Establishment clause. After the jump, I will argue why I think that this bid to resolve the RADDs with a nationally uniform rule cannot end well for either side.

Continue reading "Trinity Lutheran Church v. Pauley and the Case for Decentralizing Religious and Secular Accommodations"

Posted by Rick Hills on August 16, 2016 at 04:01 AM | Permalink | Comments (21)

Monday, August 15, 2016

Co-Authoring & Essays in the Legal Academy

Explaining to other professors why we law professors tend to write alone can be challenging.  When I told an accounting professor about my impression that it was "better" to write a single-author piece than a co-author piece, he responded that from his perspective it looked like I couldn't find anyone else that agreed with me.

Is my impression unfounded?  I'm curious about how other law professors view this issue.  My perception is that law professors tend to discount co-authored pieces and essays against articles.  If a well-placed, single-author law review article is the gold coin of the realm, essays and co-author pieces count for something less, maybe silver or bronze.  But how much less?  There doesn't seem to be any clear standard.  If an article is worth 10 points, is an essay worth 4 points?  Is a co-authored article also worth 4 points?  And then you have the co-authored essay.  Is that also worth 4 points?  They all seem to have the same value:  not as much as a single-author article.

Some are more pessimistic about the value of co-authored pieces.  Another view I've heard about co-authored work is that everyone assumes that the other author deserves all the credit for the piece, meaning that neither author gets any credit. Thus, a law review article with one name on it would be worth ten points.  Adding a second author to the article would entirely destroy its "value."  Some more thoughts on co-authoring after the jump.

Continue reading "Co-Authoring & Essays in the Legal Academy"

Posted by Benjamin P. Edwards on August 15, 2016 at 03:04 PM | Permalink | Comments (20)

9th Junior Faculty Federal Courts Workshops

Emory University School of Law School will host the Ninth Annual Junior Faculty Federal Courts  Workshop on March 31-April 1, 2017.  The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress.  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 2017 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 Friday March 31; panels will take place on Saturday, April 1. 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.  Emory 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 to by November 1, 2016. Papers will be selected by a committee of past participants, and presenters will be notified by early January. Those planning to attend must register by February 20, 2017.

Posted by Howard Wasserman on August 15, 2016 at 09:31 AM in Teaching Law | Permalink | Comments (0)

Saturday, August 13, 2016

More on names

Shima sparked a conversation over how prawfs and students should address one another. I want to explore a different issue of student names.

At SEALS last week, a co-panelist told a story relayed of a female law professor who had twice been the subject of formal administrative complaints by students whose (first) names the prof had mispronounced in class.  In the discussion that followed, some panelists recognized the concern that mispronouncing the name can send a message of exclusion or otherness, while others suggested that this provided another good reason to use last names in class (hence the connection to Shima's post).

This story unnerved me, although I recognize that there may be more to it. I am troubled that students are so suspicious and so ready to assume the worst of what was presumptively an innocent mistake that the professor (hopefully) handled with some tact. I am troubled because, if mispronouncing a name does send a message of exclusion, there is not much I can do about it; any attempt to avoid mispronouncing would send that same message of "you have a funny name." Ask the student if I am not sure? "You did not ask Jim how to pronounce his name." Ask for phonetic spellings? "You didn't need Jim's phonetic spelling." Get phonetic spellings in advance? That does not help me during the first class. Use last names? I am not sure they are so much easier to pronounce (I began using first names in part because I thought it would minimize pronunciation problems).

As I said, I hope there is more to this story than the sparse details I heard.

Posted by Howard Wasserman on August 13, 2016 at 11:15 AM in Howard Wasserman, Teaching Law | Permalink | Comments (21)

Friday, August 12, 2016

Patent Doctrine (& Copyrightable) Subject Matter - IPSC 2016

Patent Doctrine (& Copyrightable) Subject Matter - IPSC 2016

Guest Post by Andres Sawicki, U. Miami

Are Engineered Genetic Sequences Copyrightable?: The U.S. Copyright Office Addresses a Matter of First Impression – Chris Holman, Claes Gustafsson& Andrew Torrance

Data-Generated Patents, Eligibility, & Information Flow –Brenda Simon

Inventive Application, Legal Transplants, Pre-Funk, and Judicial Policymaking –Josh Sarnoff

The Impact on Investment in Research and Development of the Supreme Court’s Eligibility Decisions – David Taylor

The Fallacy of Mayo’s Double Invention Requirement for Patenting of Scientific Discoveries – Peter Menell &Jeffrey Lefstin


Continue reading "Patent Doctrine (& Copyrightable) Subject Matter - IPSC 2016"

Posted by Jake Linford on August 12, 2016 at 11:20 PM in Blogging, Information and Technology, Intellectual Property, Science | Permalink | Comments (0)

Commons - IPSC 2016

Commons - Breakout Session IV - IPSC 2016


Licensing Open Government Data – Jyh-An Lee

The Romance of the Commons – Sean Pager

3d Bioprinting Patent Boundaries – Tabrez Ebrahim

Governing Medical Commons – Mike Madison, Brett Frischmann & Katherine Strandburg

The North American Mitochondrial Disease Consortium:  An Emerging Knowledge Commons – Brett Frischmann & Katherine Strandburg


Continue reading "Commons - IPSC 2016"

Posted by Jake Linford on August 12, 2016 at 01:46 PM in Blogging, Information and Technology, Intellectual Property, International Law | Permalink | Comments (0)

Thursday, August 11, 2016

IP, The Constitution, and the Courts - IPSC 2016

IPSC 2016 - Breakout Session III - IP, The Constitution, and the Courts

Lexmark and the Holding Dicta Distinction – Andrew Michaels

A Problem of Subject Matter: Patent Demand Letters and the Federal Circuit’s Jurisdiction – Charles Duan & Kerry Sheehan

Established Rights, the Takings Clause, and Patent Law – Jason Rantanen

A Free Speech Right to Trademark Protection? – Lisa Ramsey 

Continue reading "IP, The Constitution, and the Courts - IPSC 2016"

Posted by Jake Linford on August 11, 2016 at 08:45 PM in Blogging, Civil Procedure, Constitutional thoughts, First Amendment, Information and Technology, Intellectual Property, International Law, Judicial Process, Property, Science | Permalink | Comments (0)

Copyright Doctrine: IPSC2016

IPSC - Breakout Session II - Copyright Doctrine

Summaries and discussion below the break. If I didn't know the questioner, I didn't guess. If you asked a question and I missed you, feel free to identify yourself in the comments.

Copyright State of Mind – Edward Lee

Reforming Infringement – Abraham Bell & Gideon Parchomovsky

Authorship and Audience Appeal – Tim McFarlin

Free as the Heir?: Contextualizing the Role of Copyright Successors – Eva Subotnik

 Leveraging Death: IP Estates and Shared Mourning – Andrew Gilden

Continue reading "Copyright Doctrine: IPSC2016"

Posted by Jake Linford on August 11, 2016 at 06:37 PM in Blogging, Criminal Law, Information and Technology, Intellectual Property, Legal Theory, Property, Torts, Web/Tech | Permalink | Comments (0)

IP for Characters & Symbols: IPSC 2016

IPSC 2016 Breakout Session I: IP for Characters and Symbols

I summarize the following presentations, and the discussions about them, below the fold. If I didn't know an audience participant, I didn't include a name, but if you are an anonymous commenter,  tell us who you are in the comments.

Is Copyright an Author’s Right? An Authorship Perspective on Copyright Law – Mira Sundara Rajan

Works of Fiction: The Misconception of Literary Characters as Copyright Works – Jani McCutcheon

Zombie Cinderella and the Undead Public Domain – Rebecca Curtin

Trademarks, Core Values and Cultural Leadership – Deborah Gerhardt

Intellectual Property in Internet Folklore – Cathay Smith

Continue reading "IP for Characters & Symbols: IPSC 2016"

Posted by Jake Linford on August 11, 2016 at 03:50 PM in Blogging, Corporate, Culture, First Amendment, Intellectual Property, International Law | Permalink | Comments (0)

IPSC 2016 First Plenary Session

Thanks to Rachel Sachs for the following summary of the opening plenary session at IPSC! The following papers are summarized, and Q&A recounted, below the fold.

Scarcity of Attention in a World without IP
Jake Linford

What’s In vs. What’s Out: How IP’s Boundary Rules Shape Innovation
Mark McKenna & Christopher Sprigman

Patent Clutter
Janet Freilich

What We Buy When We “Buy Now”
Aaron Perzanowski & Chris Hoofnagle


Continue reading "IPSC 2016 First Plenary Session"

Posted by Jake Linford on August 11, 2016 at 02:46 PM in Blogging, Information and Technology, Intellectual Property, Web/Tech | Permalink | Comments (0)

Liveblogging the Intellectual Property Scholars Conference - 2016

Today and tomorrow (August 11 - 12), it's all IPSC, all the time. If you are at IPSC, send me your summary of the panel you attend, and I will post it here on Prawfsblawg. I will post links to posts about specific panels in the comments to this post.

Scholars are also tweeting using the #IPSC16 hashtag, so you can follow along there on Twitter.

Posted by Jake Linford on August 11, 2016 at 02:06 PM | Permalink | Comments (7)

Wednesday, August 10, 2016

Florida congresswoman is anti-Trump, does not know Florida law

Florida congresswoman Ileana Ros-Lehtinen said yesterday that she would not vote for Donald Trump for President, but instead would likely write-in Jeb Bush (since she also cannot support Hillary Clinton).

But it will not be that easy. Florida law does not automatically provide a write-in space for an office, but only if one or more people qualify as write-in candidates. And then a voter only can write-in the name of that qualified candidate, not some random person; writing in a random name results in an invalid vote. I do not know whether anyone has qualified as a write-in in Florida, but presumably Jeb! has not bothered. So Ros-Lehtinen's planned move would result in an invalid vote for President (which she may not mind, if he goal is just to make a point by not voting for either of the main named candidates).

How do I know all this? Because four years ago, I wanted to use a write-in so I could vote against Ileana Ros-Lehtinen for Congress. She ran unopposed, so there was no named candidate to vote for. But since no write-in candidate had qualified, I did not have that option, either. In fact, the office did not appear on the ballot at all, also depriving me of the option of a symbolic non-vote).

Posted by Howard Wasserman on August 10, 2016 at 12:45 PM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Fees & Your 403(b) Retirement Plan

After my last post on fees, you may be wondering about the feel levels in your defined-contribution retirement accounts.  Many faculty  no longer receive defined-benefit pension plans.  Instead, universities and faculty contribute to a retirement account under the partial control of the faculty member.  I say partial control because most 403(b) retirement plans only allow faculty to pick from a limited menu of options.  Many people struggle to make optimal choices in this context for a variety of reasons, including, poor plan options, lack of expertise, an inability to invest elsewhere, and other reasons.  

The New York Times has an article discussing a new lawsuit over fees in academic retirement plans.  The suit alleges that faculty at M.I.T., N.Y.U., and Yale paid excessive fees because their universities failed to monitor the fees  extracted from their defined-contribution retirement plans:

The complaints allege that the universities, as the plan sponsors, failed to monitor excessive fees paid to administer the plans and did not replace more expensive, poor-performing investments with cheaper ones. Had the plans eliminated their long lists of investment options and used their bargaining power to cut costs, the complaints argue, participants could have collectively saved tens of millions of dollars.

Some thoughts on what faculty might do to limit problems after the jump.

Continue reading "Fees & Your 403(b) Retirement Plan"

Posted by Benjamin P. Edwards on August 10, 2016 at 11:54 AM | Permalink | Comments (5)

Tuesday, August 09, 2016

The Stanford Live-Blogging Experiment

This weekend, August 11-12, Stanford Law School hosts the Intellectual Property Scholars Conference. My colleagues and I will present 146 papers in two days. That requires concurrent tracks, and I inevitably miss hearing some brilliant scholars present interesting projects. I'm going to use my platform on Prawfs to contribute to the solution: I'm live-blogging the panels I attend. You can follow along here this weekend.

I didn't invent live-blogging at academic conferences; I assume Rebecca Tushnet did. At a minimum, she's a prolific live-blogger, and I expect she'll provide excellent summaries of those panels she attends at IPSC. But Rebecca and I can't cover every panel. That's where you come in. If you are attending IPSC, you can send a summary of the panels you attend to jlinford(at), and I will post them here on Prawfsblawg. With your help, we can cover every session.

In addition, if you plan to live-tweet IPSC 2016, send me your twitter handle, and I'll post it as well. I'll do some IPSC-related tweeting @LinfordInfo, and I expect to see frequent updates from @scholzlauren and others.

Posted by Jake Linford on August 9, 2016 at 06:12 PM in Blogging, Information and Technology, Intellectual Property | Permalink | Comments (0)

Attorney advertising as jury tampering

While at Amelia Island for SEALS over the weekend, we caught a TV ad for a personal-injury lawyer. The entire ad focused on the legal rule prohibiting juries in personal injury cases (the ad focused on automobile accidents) from learning that the defendant has liability insurance. This is a common law rule in Florida, codified in the Federal Rules. The ad argues that juries are too sympathetic to, and thus unwilling to find against, defendants in these cases, erroneously believing, because they lack this one piece of information, that finding for the plaintiff will impose crippling liability on a powerless individual. The ad announces that almost all drivers have insurance and will not bear the cost of civil judgment, which instead will be borne by the big, bad insurance company. And it urges viewers to "spread the word" about the state of the law. Presumably, although only implicitly, these are cases in which the evidence otherwise shows that the defendant should be liable, and the plaintiff loses because of this misplaces sympathy. Of course, it ignores the flipside concern--a jury imposing liability against a defendant despite the evidence, believing an adverse verdict is "costless" to the insured defendant.

I am being tongue-in-cheek about calling the ad jury tampering. I believe it paints with too broad a brush, unconnected to any case, geographic, or potential juror (although I welcome the correction if jury tampering can be defined more broadly). Nevertheless, we can wonder about the ethics of an attorney "spreading the word" to the public about something they are not supposed to know as jurors and encouraging them (even if not explicitly) to use something they are not supposed to use as jurors.

This reminds me of a controversy that cropped up in the '90s, where people in parking lot or sidewalks outside courthouses gave potential and actual jurors information about the power of nullification.

Posted by Howard Wasserman on August 9, 2016 at 04:01 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Practice your talks--with dogs

One of the worst parts of attending conferences, workshops, etc., is sitting through the obviously unprepared presentation. Speakers meander, repeat themselves, run over time, race through the final points because they wasted too much time getting started, etc.* There is a tough balance to strike. You do not want to sound overly rehearsed or as if you are reading the paper (although that is the norm in many fields, such as English). But you want to be coherent and stay within the time limits. And that requires that you practice the talk with a timer and tweak as you must.**

[*] Not for nothing, I find these problems--especially the last two--exacerbated when the speaker uses PowerPoint.

[**] This is especially true for job talks, but it applies to any presentation.

So I liked this story about a program at American University's Kogod Center for Business Communications, which provides dogs as an audience for students (especially those anxious about public speaking) to practice presentations. The dogs have a calming influence; the students practice before a non-judgmental audience; and the students have to work a bit to keep the audience attention (the director of the study says a dog is no more distracted than the typical college student, which might not be untrue). The accompanying video is after the jump.

My dog better be ready to sit through some talks in the coming years.

Continue reading "Practice your talks--with dogs"

Posted by Howard Wasserman on August 9, 2016 at 12:20 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Monday, August 08, 2016

Fragmented Financial Advice & Fees

In an earlier post, I mentioned that the term financial adviser lacks any real meaning.  If you want to know the risks and likely biases of a particular financial adviser, you'll need to look behind the business card.  For the retail market, the person identifying as a financial adviser is likely a stockbroker, registered investment adviser, or insurance salesperson, or some combination of the foregoing.  A single financial adviser may even wear all three hats with one customer at the same time, depending on the accounts at issue.  This makes it difficult to track what duties a financial adviser actually owes in a particular context.  Making it more complex, the fragmented regulatory structure means that this single financial adviser may have three different primary regulators, FINRA, the SEC, and state insurance regulators.  

In some circumstances, a self-serving financial adviser may shuffle unwitting clients though these different roles in a series of transactions and arrangements that maximize the financial adviser's compensation.  For example, a financial adviser may begin working with a particular client while wearing a stockbroker hat and receiving compensation tied to inducing transactions.  First, adviser recommends a number of higher-fee mutual funds such as front-loaded A Class mutual fund shares that cost 4% up front and 1% in ongoing fees each year.  While these funds will assuredly underperform the market, they do put immediate cash in the financial adviser's pocket.  After this first conflicted recommendation, a financial adviser may not be able to justify more transactions without irritating the firm's compliance personnel.  After a year or two, the financial adviser may pitch a new account type and move to collecting a fee on the basis of assets under management, say 1.5%, by switching hats and "servicing" the client as a registered investment adviser.  Because it's awkward to badmouth the funds the adviser initially sold, they'll probably sit in the account, bringing the total fees paid to about 2.5% annually.  See what these fees can do to a portfolio after the jump.

Continue reading "Fragmented Financial Advice & Fees"

Posted by Benjamin P. Edwards on August 8, 2016 at 11:15 AM | Permalink | Comments (0)

Sunday, August 07, 2016

MarkelFest! at SEALS--Tonight

We will continue the SEALS tradition of holding a MarkelFest! happy hour at SEALS. Come drink, catch up, watch the Olympics, and remember Dan. It will be at 9 p.m. on Sunday (this evening), August 7, in the Seaglass Lounge at the Omni. 

Hope to see everyone there.

Posted by Howard Wasserman on August 7, 2016 at 10:31 AM in Blogging | Permalink | Comments (0)

Friday, August 05, 2016

Thanks to the prawfsblawg powers that be for allowing me to bloviate over the past month. It’s been an eventful month, in terms of news (and for me personally my computer crashed (so I was offline for part of the month) and then I started off on a road trip.) This is my last post until (if) I get invited back.

I’ve been driving across the country from California to St. Louis to start a year visiting at Washington University in St. Louis, and while I’ve been driving I’ve been listening to podcasts. Three in particular: Criminal; Invisibilia; and Revisionist History. The one that most disappointed me was Criminal, hosted by Phoebe Judge and produced by Lauren Soper. It’s got great production values, and it pick interesting, sometimes “torn from the headlines,” sometimes offbeat topics. So I really should like it. But I don’t, and here’s why: it stops right at the point you want the story to start.

The one that made me somewhat angry was the third episode about Manhattan and Brooklynites faking $20 bills and passing them off in dark bars and nightclubs until one of the protagonists get caught. It is clear from the descriptions that the two counterfeiters are white and comfortably middle class, college educated types. There is an interesting description of them and their scheme, and one of them getting caught. At which point, the host asks “How did it feel to be a criminal.” And the criminal replies that she *doesn’t* feel like a criminal. And then, instead of exploring *this* fact—that she is wrong and that she is, objectively a criminal (morally, legally, and in every way except her own self perception); that she has impoverished the people to whom her notes (140 dollars worth per night of crime spree-ing) were passed; that there seems to be an issue of privilege here—class, race, and gender privilege (she was part of a male/female crime conspiracy, and the conspirators established that she was the one least likely to get caught); and so on. How could the interviewer…Just. Stop. There?! Ugh.

Am I wrong about Criminal? Are there any podcasts we criminal professors, or law folks in general, should be listening to? I’m planning on walking to work, and I listen to podcasts as I walk. I’ve also listened to Criminal (In)Justice with David Harris, Serial (how could one not); and The Center for Court Innovation podcasts. What other treats await?

Posted by Eric Miller on August 5, 2016 at 08:45 PM | Permalink | Comments (6)

Thursday, August 04, 2016

What type of voter fraud?

In setting up his pre-narrative of a stolen election, Donald Trump has decried recent lower-court decisions declaring invalid voting laws in North Carolina, Wisconsin, Kansas, Texas, and North Dakota, including voter ID requirements. These laws were designed to prevent impersonation fraud--someone voting as John Smith who is not, in fact, John Smith.

But note that Trump has not been complaining about impersonation fraud, but about repeat-voter fraud--"If you don’t have voter ID, you can just keep voting and voting and voting." (Chicago's old "Vote early, vote often"). But voter ID laws do nothing to eliminate repeat-voter fraud and do not seem designed to do so. The defense against that practice is the voter list; the poll worker  does not allow someone to vote  if she is not on the list (or allows only a provisional ballot) and she crosses the voter's name off the list once that person appears. Repeat voting is possible only if: 1) the poll worker fails to cross the name off or 2) the voter goes to other precincts, where she is not on the list, to vote. But requiring ID does not stop that practice. If the poll workers are not vigilant, I can repeat-vote to me heart's content with an ID, just as I could without an ID. That is, if I show an ID proving I am John Smith but the poll worker does not cross my name off the first time, I can come back again and again and vote as John Smith, showing my ID each time. Similarly, if I then drive to the wrong precinct with an ID proving I am John Smith but the poll worker allows me to vote despite my name not being on the list, I can cast that repeat vote as John Smith, showing my ID.

Unfortunately, most of the news reports of Trump's comments have repeated the (true) line that there is virtually no evidence of in-person voter fraud, without specifying that the fraud Trump is talking about is not even the type that ID laws are designed to redress. Which, also unfortunately, means the news reports are missing the fact that Trump is not aware enough to understand his own conspiracy theories.

Posted by Howard Wasserman on August 4, 2016 at 03:05 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Liberal Bias in Legal Academia?

I'm not sure I need to build my liberal cred being a minority, a first generation immigrant, a New Yorker, and a woman, but I will anyway. I campaigned, donated, and voted for Obama twice and have probably voted democratic in very national election I have been able to to vote in. I'll (unhappily) vote for Hillary, and so will my entire family (though my parents really did like Bernie during his run).  In fairness, I was President of the Young Republicans in high school, voted for many Republicans while I lived in New York City (to create some political balance), and am a registered Republican in the state of Utah where I live, since it is a heavily Republican state with a lot of strong Republican candidates and I want to be able to attend the primary elections and have a say in who my local leaders are. 

That said and my leanings somewhat clear to you, I am writing this post about what I see as potential liberal bias in the legal academy. This post poses several questions that are intended to be thought-provoking rather than damning to academics or prescriptive on some sort of solution.

According to a recent op-ed by Nicolas Kristof of the NY Times, there is ample evidence that the vast majority of academics are liberal. I am not sure the same data has been shown in the legal academy, but I would not be surprised if it is too far off. Kristof cites four studies that show that Republicans in the humanities are in the minority at between 6-11% and in the social sciences between 7-9%. A sociologist, George Yancey,  conducted a survey in which 30% of academics said they would be less likely to support a job seeker if they knew that person was a Republican. The bias is even worse for evangelical Christians, where in the same survey 59% of anthropologists and 53% of English professors would be less likely to hire someone if they knew he was evangelical.

Michael Bloomberg addressed the Harvard graduating class in 2014 and discussed liberal bias in his talk.  He pointed out the irony of the political shift over time, "In the 1950s, the right wing was attempting to repress left wing ideas. Today, on many college campuses, it is liberals trying to repress conservative ideas, even as conservative faculty members are at risk of becoming an endangered species. And perhaps nowhere is that more true than here in the Ivy League."  Indeed, this is probably worse in the Ivy League than in other places. In the 2012 presidential race, according to the Federal Election Commission, 96% of all campaign contributions from Ivy League faculty and employees went to Obama.

I've heard some of this in the past, and thought, so what?  Maybe academics are just smarter than the average citizen (this is certainly biased too) and so what if they are more politically aligned with the left?  Maybe the Republican party needs to change in order to capture more academic values (whatever they are)?  I definitely think there may be some validity to this argument, but I think there are problems with the current system.

For one, censorship of conservative speakers has been a prominent problem in the last few years. Conservative speakers have been uninvited to speak at Johns Hopkins, Brandeis, Haverford, Rutgers, Smith, Swarthmore and many other universities simply because some students did not agree with their message. This censorship may also demonstrate a certain homogeneity of thought among academics that could be dangerous. If we pride ourselves in being open to all ideas, examining principles carefully and trying to come to the "right answer," it would be more fitting if we were open to a broader range of ideas, rather than the ones that were approved as a majority view.

And more on a personal note, I've had colleagues who have been nervous about their job talks seeming too "conservative", being ashamed that having clerked for a conservative judge (who they may not have agreed with) has created a scarlet letter for them in academia, going through lengths to hide their religious affiliation, and most depressing of all, having not written about topics they have researched about for fear that they didn't fit with the liberal norms of their faculty.

Just two quick anecdotes from my own research that I hope many of my colleagues do not share experience with.  In one study I did with an economist early on in my career, we discovered (in looking at bail and violent crime) that when released on bail young black men commit more violent crime than any other age group, race, or gender, and preventatively detaining them before trial would cut down on a lot of violent crime. I would never advocate this due to constitutional prohibitions against race-selective detention, and other moral and philosophical problems with this concept. The thing I want to highlight though is how nervous I was about this finding. My coauthor and I didn't know what to do with this. We felt racist finding it, we were nervous to highlight it in our paper (and didn't), and I didn't want to let it even influence my opinion or future work. But why? Shouldn't knowing that a certain subset of the public commits a massive disproportion of violent crime be important to me as an empirical criminal law scholar? Do others in my field deserve to know this? Could this not necessarily help make America safer if we tried to understand the root of this statistic?

I had a similar experience when I looked at whether judges were "racist" in their bail determinations and determined (surprisingly) that they actually weren't detaining enough black people if their focus was on preventing violent crime. This finding as well I massaged and explained in a way that would not make me seem like a racist or conservative or someone speaking out of the norm. I never hid the finding or misrepresented anything, but I hated feeling that I couldn't just state the facts of what I found empirically without worrying about the perception of how I would be perceived by my colleagues. I don't know what to make of these experiences.  I worry that I may have an implicit liberal bias that may be getting in the way of helping me to be objective and find truth.  And I worry that it is not just me that may feel this from time to time.

Fellow academics, I would love your feedback and thoughts on this issue.

Posted by Shima Baradaran Baughman on August 4, 2016 at 11:41 AM | Permalink | Comments (25)

Evaluating Publication Agreements

As regular readers of these pages know, the need to pay close attention to publication agreement seems to be increasing.  Elsevier recently purchased SSRN and has removed SSRN uploads in instances where it wasn’t certain about whether the author held the right to post the material on SSRN.

Law reviews usually send over a publication agreement after you’ve selected each other and committed to publishing.   When I look at these, I generally lack any context to evaluate whether particular requests are industry standard or abnormally restrictive.  One potential resource to go to for help is the Authors Alliance.  The group aims to enable authors to share their work more broadly. 

There is also another interesting project afoot.  Berkeley’s Rachael Samberg has begun collecting publication agreements.  The goal is to look at what different publications request and put together a picture of standard and non-standard terms.  If you want to push back on a particular request, it may be helpful to be able to point out when a proposed copyright agreement strays from the norm.  If you’ve got publication agreements, send them to Rachael at: with the subject line Publication Agreement.*

*Provided that your agreements are not confidential and you’re able to share them. 

Posted by Benjamin P. Edwards on August 4, 2016 at 10:30 AM | Permalink | Comments (0)