Tuesday, March 31, 2020

Today is Equal Pay Day 2020 - and a new national alliance

Today is Equal Pay Day 2020. It happens every year on the day that women begin earning like men - such that if the gap is about 80 cents the dollar, women on average de facto work for three month for free until they catch up in April. 

I am honored to be a founding member of the Fair Pay Workplace Alliance. We launched the 1st meeting today with an amazing group of founders - academics Chai Feldblum, Florencia Marotta Wurgler, Zev Eigen, and industry leaders including Nordstrom, Sales Force, Adobe, NerdWallet, Vimeo and the National Women’s Law Center. The Zoom meeting and the initiative gave me hope that we are moving toward eliminating the gender and race pay gaps - though so much work ahead!

I have a forthcoming article about important reforms underway - Knowledge Pays: Reversing Information Flows and the Future of Pay Equity, Columbia Law Review 2020. One of the most significant initiatives I discuss in the paper, collecting nationwide data annually on pay equity was halted by the OMB but recently a federal judge ruled to reinstate the data collection. Chai Feldblum, while she was at the EEOC was involved in passing this reform which holds promise.

Posted by Orly Lobel on March 31, 2020 at 05:42 PM | Permalink | Comments (1)

Today's Profile in Marketing Savvy: Martindale-Avvo...

...which sent me one of its regular emails offering law firm marketing services and such, and whose email today was titled:

"Don't just survive Covid-19. Thrive!" 

Posted by Paul Horwitz on March 31, 2020 at 04:45 PM in Paul Horwitz | Permalink | Comments (0)

More on Emergency Licenses to Practice Law: Identify and Address The Emergent Problem--and Only That Problem

I have further thoughts on Howard's post below on emergency licensing of new law school graduates and on the paper he cites to. A lot of further thoughts. The issue is important and deserving of plenty of thought and discussion, and I lack the time to edit them into fewer or shorter thoughts. So read on at your leisure or your peril.

The summary is this: We should separate the question of the emergency need for legal services in this crisis from our understanding that the same crisis may cause suffering and economic uncertainty for new law school graduates. One involves a distinctive need centering on the object and concern of the legal profession: the clientThat is what we should be thinking of, and every emergency measure proposed or tried should be directed toward the end of best serving clients--specifically, clients in regions and subject areas and under circumstances where there is an actual emergency. It's far from clear that a blanket, nationwide system of admission to the bar, however much it might ease graduating law students' very understandable concerns, actually serves that paramount interest. We should start by identifying the right problem with specificity and tailoring the best solutions to that end. Helping law students is a valuable goal, at least for law schools, but it's a separate one. Where it can be undertaken in a way that helps clients, great; where it can't, we must find some other way. But clients always come first, and if there are better ways of serving those clients who are in specific need of emergency help, we should start there. I think some of the suggestions made by the author in their short but useful paper are worth thinking about and perhaps trying. But it's not clear that they are the first thing worth trying; and whatever we do try should be hedged round with client protections, even if they result in fewer new graduates getting more opportunities for employment. I may say that with personal regret, as a law teacher, but the paramount crisis here has to do with the needs of clients, not students. 

There are also excellent reasons to rethink the bar exam--and legal education--more generally. The current emergency that the authors argue exists may help us see some current flaws more clearly. But if the argument right now is that we urgently need to do something specifically for clients, that should be our focus, not general reform. I start with a question below and move to the longer argument after the jump. 

Under what circumstances would we give someone a license to practice medicine after two years of medical school classwork, perhaps (but not necessarily) with one or two rotations of working with patients? It is not impossible to imagine arguments that some emergencies would qualify--circumstances under which the need for patient care was desperate and it was impossible to retask currently practicing doctors to meet that need. We could also imagine strong arguments against it, or against doing so unless it was quite impossible to manage otherwise. I am no expert in medical education and I imagine, with some basis, that the classwork-then-rotation model has been greatly altered over time. But I also imagine that many doctors would say that classwork alone, or even classwork with significant practice simulations, or perhaps even classwork with significant practice simulations and one or two rotations of actual patient care under close supervision, is not a sufficient qualification to render medical care without harm. If one were inclined to make exceptions due to exigent circumstances, one imagines that the exception would have to fit the circumstances and be carefully circumscribed. For example, one might insist that any emergency license be limited to work in the area most urgently requiring medical care; a crisis in emergency care would be no basis for granting an emergency medical license to practice dermatology. And one might insist that such a license involve only institutional practice, in a fully resourced hospital or large medical practice in the relevant area and involving work with and under the close supervision of experienced physicians, and not hanging out one's own shingle. 

Such a view, one would hope, would be grounded in the view that the question is what is needed for patients. Certainly someone outside the profession would be almost certain to care about patients and not about the professional welfare of medical students as such. They might not be callous or indifferent to the students; they just would take that as a question that must take a distant second place to the question of help or harm to patients. If the emergency called for X number of new (as opposed to existing) doctors in a specific field, then that would be the way to address it. The fact that other medical students might have to wait to be licensed, and would suffer personally as a result, would be sad but not relevant. 

It is quite possible that this emergency would lead medical schools and doctors to rethink what medical education should look like. Again, I pretend to no expertise and, indeed, not much knowledge. But the emergency might lead them to conclude that the qualifications for entry should differ, or that the course of medical education should involve supervised clinical care almost from the outset, or that the whole process (if undertaken differently) could be speeded up. They might shift to year-round teaching. Conversely, they might conclude that some things are right about the current model and that, no matter the emergency, you simply can't make a doctor overnight, or at least not one who is ready to offer care to patients--supervised or unsupervised. But it's doubtful that the specific emergency would be a time to address all these issues in medical education--just the specific emergency.

Continue reading "More on Emergency Licenses to Practice Law: Identify and Address The Emergent Problem--and Only That Problem"

Posted by Paul Horwitz on March 31, 2020 at 01:36 PM in Paul Horwitz | Permalink | Comments (0)

Monday, March 30, 2020

Emergency Florida Diploma Privilege

An online petition is calling on the Florida Board of Bar Examiners to extend a "one time, sui generis" diploma privilege to all graduates of ABA-accredited law schools registered for the July 2020 Bar Exam. Such an expanded privilege is one of several suggestions in this multi-author paper about what to do about the Bar Exam in the current circumstances.

Posted by Howard Wasserman on March 30, 2020 at 12:01 PM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

Creative Projects

I have written before about the creative projects I do in Civ Pro (I stole the idea for Josh Douglas of Kentucky). For voluntary extra credit, students put together something fun related to the class and the subject: skits, videos, song parodies, poems (lots of haikus), paintings, storybooks, comic strips, etc. At the Q&A session the day before the final, we display and perform them. Many of them are quite good--law students have talent.

The question is whether to do this this year and how. Many of the larger projects are collaborative, which obviously is impossible this year. We will not be in the same space to display the visual projects or to perform. I suppose people can read or show their projects through the Zoom connection and I can run any videos through it. Keeping the project might provide some sense of normalcy (as well as extra points).


Posted by Howard Wasserman on March 30, 2020 at 09:31 AM in Civil Procedure, Howard Wasserman, Teaching Law | Permalink | Comments (4)

Sunday, March 29, 2020

L'état, C'est Trump

"When they disrespect me, they're disrespecting our government."

Put aside that the First Amendment exists so people can disrespect the government. The President--or any government official--is not the government and the two should never be conflated.

Posted by Howard Wasserman on March 29, 2020 at 07:45 PM in First Amendment, Howard Wasserman | Permalink | Comments (9)

Altering courses mid-stream

The move to remote instruction affects course coverage because class moves more slowly. There is a time lag, however slight, between when I call on a student and when she unmutes her microphone and gets ready to answer. In-person, I relied on volunteers, which limited the possibility of calling on someone who had no clue or was unprepared to talk. This meant fewer long silences, fewer times repeating a question or backing up to prior principles, and less time spent deciding when to try to work the student through something and when to move on or to bring in "co-counsel." Having to cold-call introduces those delays. (This should not be read as a knock on my students this semester, who have been prepared and engaged through a lot of technological and personal problems). But things move slowly.

This affects course coverage. When we went inside, we had about half a day left on discovery. This was followed on the syllabus by Summary Judgment, Subject Matter Jurisdiction, Personal Jurisdiction, Venue, and Erie. With nine 70-minute classes remaining, I have to make some hard choices.

Erie is gone. This is too bad because I like teaching it and it is the most "gamey" part of the class. I assign two cases--Erie and Hanna--then we work through a series of current problems to illustrate the various moves on the flowchart. I will miss doing this.

• I skipped the capstone problem for Discovery (based on a long-ago lawsuit in which Coca-Cola bottlers attempted to obtain the formula in discovery), in which I split the class into parties and work through the discovery issues. I could not make it work online, with cold-calling.

• On SMJ, I am basically skipping Federal Question Jurisdiction. We examined the different types of statutes and I will lecture (or post a primer on the course blog) about the Well Pleaded Complaint Rule and about the Mims standard for arising under. I am less concerned about this because I focus on FQJ in Fed Courts, going beyond what I do in Civ Pro to include Grable and complete preemption. It may be that this cursory overview becomes the new normal.

• On Personal Jurisdiction, I expect to have, at best, 7 days to cover what I usually cover in about 9+ (including Venue). My plan is to skip Pennoyer and lecture/write a primer on the different types of actions (in personam, in rem, etc.) and the basic idea of the Power Theory.

I will swing back in three weeks and let you know how it goes.

Posted by Howard Wasserman on March 29, 2020 at 02:04 PM in Howard Wasserman, Teaching Law | Permalink | Comments (5)

Saturday, March 28, 2020

Rothgerber Conference: Women's Enfranchisement now online

The 28th Annual Ira C. Rothgerber Conference on Constitutional Law, sponsored by the University of Colorado's Byron R. White Center for the Study of American Constitutional Law, slated for next Friday, April 3, will be online as a Zoom webinar. Registration is free.


Register here for the 2020 Rothgerber Conference, to receive important email updates, including the link needed to join the webinar. Participants will be able to use this link to join at any point during the conference. 

For more information on the panels and speakers, visit the CU Law Rothgerber event page.

Posted by Howard Wasserman on March 28, 2020 at 10:47 AM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Disaster Humor - part 2

Still trying to consume jokes and funnies about our very not funny reality. In my first post about disaster humor I promised to put together some rigorous insights about various techniques, modules, classes of Covid-19. I don't have much of those yet, except to say that the jokes about quarantine life and social distancing are far more funny to me than those directly about the virus, its lethal consequences, or the politics of disfunction. I guess that even within this massive crisis, there are some aspects that are easier to make light of and others that are too scary to touch.

Meanwhile -- my wonderful, smart and funny colleague Lisa Ramsey, who is my everything guru when it comes to trademark law, sent me funny jokes which she has shown her students [via zoom] asking them if they are fair use. Here are many of these jokes for your enjoyment. My favorite is Finding Wally - during social distancing. As to fair use, we have the controversial decision which I have always disagreed with - Dr. Seuss v. Penguin, that I think would suggest that the Wally caricature is not fair use because it is satire about life itself and our current reality and not a parody specifically of Waldo. I discuss that case and Barbie fair use cases in You Don't Own Me

Another great thing I discovered - there is a journal called Comedy Studies. One recent study published in this serious journal finds that to talk about climate change, when the subject was approached using humor, 90 percent of the subjects felt more hopeful and felt that their commitment to climate change action was more sustainable. So I think this could be translatable to taking action, as much as we can, a small as we feel facing this huge overwhelming pandemic.




Posted by Orly Lobel on March 28, 2020 at 01:16 AM | Permalink | Comments (2)

Thursday, March 26, 2020

Bushrod Washington and Social Distancing

Here is a letter from Bushrod to Judge Richard Peters dated September 25, 1803:

The yellow fever in Alexandria prevented me from returning the favor [of your letter] as soon as I otherwise should have done.

The unpleasant intelligence respecting the prevailing disorder in Philadelphia is greatly authenticated by the account you give me of your own health. I had hoped that having escaped until this late period, the City would for this season at least have been spared. . . . But as things are I do not see that any good could result to suitors from our attempting to do business, and unless this could be effected there is no sufficient equivalent for the risk we should incur. The request of the gentlemen of the bar confirmed by your opinion is entirely satisfactory to me, and therefore I shall be much obliged to you to attend (if you safely can) and adjourn the [Circuit] Court to the next Term. 

Posted by Gerard Magliocca on March 26, 2020 at 09:37 PM | Permalink | Comments (2)

Wednesday, March 25, 2020

"What It Means To Be Human: The Case for the Body in Public Bioethics"

Congratulations to my friend and Notre Dame colleague, Carter Snead, on his forthcoming (timely, important) bookWhat It Means To Be Human.  Here's a blurb: 

The natural limits of the human body make us vulnerable and therefore dependent, throughout our lives, on others. Yet American law and policy disregard these stubborn facts, with statutes and judicial decisions that presume people to be autonomous, defined by their capacity to choose. As legal scholar O. Carter Snead points out, this individualistic ideology captures important truths about human freedom, but it also means that we have no obligations to each other unless we actively, voluntarily embrace them. Under such circumstances, the neediest must rely on charitable care. When it is not forthcoming, law and policy cannot adequately respond.

What It Means to Be Human makes the case for a new paradigm, one that better represents the gifts and challenges of being human. Inspired by the insights of Alasdair MacIntyre and Charles Taylor, Snead proposes a vision of human identity and flourishing that supports those who are profoundly vulnerable and dependent―children, the disabled, and the elderly. To show how such a vision would affect law and policy, he addresses three complex issues in bioethics: abortion, assisted reproductive technology, and end-of-life decisions. Avoiding typical dichotomies of conservative-versus-liberal and secular-versus-religious, Snead recasts debates over these issues and situates them within his framework of embodiment and dependence. He concludes that, if the law is built on premises that reflect the fully lived reality of life, it will provide support for the vulnerable, including the unborn, mothers, families, and those nearing the end of their lives. In this way, he argues, policy can ensure that people have the care they need in order to thrive.

In this provocative and consequential book, Snead rethinks how the law represents human experiences so that it might govern more wisely, justly, and humanely.

Posted by Rick Garnett on March 25, 2020 at 06:13 PM in Rick Garnett | Permalink | Comments (0)

A Technical Solution to a Real Problem

For those of you whose classes, like mine, are part substance and part standup, one of the more disconcerting aspects of synchronous Zoom teaching is not getting a live response to the jokes.  

Fortunately,SoundBoard there is a technical solution.  I have downloaded a free sound effect app to my iPhone and it sits next to my laptop during class.  (The iPad is already in use.  I invite myself in as a student on my personal Zoom account so that I can see the class from the student's viewpoint.  I also designate the other "me" as a co-host so that I won't lose the class if my computer glitches.)

You can find this in the App Store by searching "laugh track."  The one I'm using is "Sound Board - Comic Effects."  I've pictured the screen.  I'm all in on "Rimshot."

Posted by Jeff Lipshaw on March 25, 2020 at 12:31 PM | Permalink | Comments (2)

Think Yiddish, cast whoever

A controversy arose in the U.K. last year about casting non-Jewish actors in expressly Jewish roles in an expressly Jewish show called Falsettos (about a Jewish father who leaves his family for a man, just after the son's Bar Mitzvah).

The question has become relevant because of two television series about Jewish people dealing with Nazis in the U.S.: The Hunters, which I watched and hated, and The Plot Against America, David Simon's adaptation of Philip Roth's counter-factual novel about Charles Lindbergh being elected President in 1940 and unleashing a wave of anti-Semitism.

The Hunters cast Jewish actors (Josh Radnor, Saul Rubinek, Carol Kane, Jeannie Berlin, Rubinke's daughter) for most of the major Jewish roles. Al Pacino, playing the head Nazi hunter and Auschwitz survivor, was the exception (although, spoiler, it did not matter).

In the first episode of the companion podcast to Plot (beginning around the 14:00 mark), Simon discusses setting out to make the show with an entirely Jewish cast and crew . He changed direction when he recognized the need to work with the best people and the universality of the story of oppressed "others."

Thus, the father is played by Morgan Spector (half-Jewish) and his sister-in-law is played by Winona Ryder (half Jewish, strongly self-identifies). But the mother is played by Zoe Kazan (Greek from Turkey, granddaughter of someone compelled to name names before HUAC) and the older cousin is played by Anthony Boyle (Irish-Catholic from Belfast); Simon talks about how he convinced them to take on the roles because their (or their families') experiences are comparable to the Jewish experience. And John Turturro plays a rabbi, although Simon and co-host Peter Sagal agreed Tuturro had played so many Jewish characters in his career (Barton Fink, Herbert Stempel, Joey Knish) that he is basically Jewish.

Posted by Howard Wasserman on March 25, 2020 at 11:47 AM in Culture, Howard Wasserman, Religion | Permalink | Comments (5)

Tuesday, March 24, 2020

Is “Stare Decisis … for Suckers”?

If you’re reading this, you’re probably trying to think about something ordinary during our extraordinarily trying times. In that spirit, I’d like to explore the question that’s the title of this post, using the Supreme Court’s recent ruling in Allen v. Cooper as my foil.

The trope that “stare decisis is for suckers” was popularized on the Strict Scrutiny podcast. (In fact, you can purchase Strict Scrutiny swag emblazoned with that slogan right now, thereby ensuring that at least someone will profit from the doctrine of stare decisis.) But the phrase is gaining wider attention. Earlier this month, for instance, it appeared in a dissenting opinion by Judge Smith. 

This week’s ruling in Allen v. Cooper offers a nice opportunity to think about whether stare decisis is really for suckers or, instead, is for everyone. In short, Allen extended precedent to hold that Congress had not validly abrogated state sovereign immunity by enacting the Copyright Remedy Clarification Act of 1990. As Professor and Strict Scrutiny co-host Leah Litman has already noted, “Justice Thomas writes separately in Allen v. Cooper to reject the idea that stare decisis demands a ‘special justification’ before overrruling precedent.” In other words, Thomas thinks that a precedent’s mere wrongness can suffice to break from the precedent—a position that seems a lot like “stare decisis is for suckers.”

The “suckers” phrase can be viewed as the latest expression of an old lament: stare decisis is mere rhetoric, not an actual constraint on the justices. So people who take it seriously—who fail to see the difference between the justices’ words and their actions—are dupes. True, Thomas’s dismissal of stare decisis’s binding force stood in contrast with Justice Kagan’s majority opinion, which professed allegiance to it. Yet Kagan herself has recently dissented (more than once) on the ground that the Court had overruled precedent without any “special justification.” So perhaps Kagan’s characteristic paean to stare decisis made it into a majority opinion only because a majority agreed with the outcome in any event. In other words, the contrast between Thomas’s and Kagan’s views on precedent may simply reflect the difference between candor and aspiration.

Continue reading "Is “Stare Decisis … for Suckers”?"

Posted by Richard M. Re on March 24, 2020 at 08:30 AM | Permalink | Comments (5)

Monday, March 23, 2020

States can pirate and plunder copyrighted material all they want

So said the Court in Allen v. Cooper, holding that states cannot be sued for copyright violations. Congress cannot abrogate under its Article I powers other than Bankruptcy Clause, which has "good-for-one-clause" support and the copyright act is not congruent-and-proportional because it reaches all infringements, not only intentional infringements for which states fail to provide adequate remedies. My SCOTUSBlog analysis is here. I got this one wrong after argument and need to stop making predictions based on questioning. I went lighter on the pirate puns because the Justices did it for me.

Some additional points to draw out:

Continue reading "States can pirate and plunder copyrighted material all they want"

Posted by Howard Wasserman on March 23, 2020 at 04:16 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (4)

Entry Level Hiring: The 2020 Report - Second Call for Information

In the larger scheme of things right now, this report is, of course, trivial compared to what is happening right now around the world. After much consideration, I will nonetheless continue to compile the data and create the report, as a way of saying, to myself and others, that what we are all experiencing right now will end, and this year's report will both follow and precede many other reports. That is, I continue with the report this year as an act of optimism, not of denial.

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 (sarah *dot* lawsky *at* law *dot* northwestern *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 March 23, 2020 at 11:57 AM in Entry Level Hiring Report | Permalink | Comments (0)

More News

This just came across my desk.  It will strike home for readers of a certain age.


By Amy Plotz, Special to the Chronicle of Higher Education

In the wake of news that Senator Rand Paul (R-Ky.) has tested positive for the new coronavirus, the Ayn Rand Society announced that John Galt has self-quarantined.

Mr. Galt shook hands with Senator Paul last week at the Antonin Scalia Law School of George Mason University. Ironically, the event was a conference entitled “Markets and Pandemics” co-sponsored by the American Law & Economics Association. Senator Paul was the keynote speaker. Mr. Galt was presenting his paper, “The Moral Bankruptcy of Pigouvian Taxes on Sneezing: A Coaseian Response.”

Conference organizers, concerned about the effect on demand for future conferences, mailed Lysol wipes to all attendees, along with instructions on how to sanitize the complimentary copies of “The Virtue of Selfishness” distributed at the conference.

When asked about it at his daily press briefing, President Trump responded, “Who is John Galt?”

Posted by Jeff Lipshaw on March 23, 2020 at 11:04 AM | Permalink | Comments (0)

JOTWELL: Mulligan on Rubenstein on federal common law

The new Courts Law essay comes from Lumen Mulligan (Kansas), reviewing David. S. Rubenstein, Supremacy, Inc. (UCLA L. Rev., forthcoming), exploring the interaction among federal-contractor immunity, preemption, and federal common law.

Posted by Howard Wasserman on March 23, 2020 at 09:39 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Sunday, March 22, 2020

A Guide to Current "Relevant" Writing: Start With Boring. Maybe Stop There. And Use Your Desk Drawer.

This New York Times piece by essayist Sloane Crosley asks: "What happens when every writer on the planet starts taking notes on the same subject?" She argues that "[f]rom an artistic standpoint, it’s best to let tragedy cool before gulping it down and spitting it back into everyone’s faces." She continues:

We all know how limited this kind of get-it-while-it’s-hot writing will seem in the future. That’s never stopped us from doing it. It’s not stopping me from indulging in a version of it right now. Look at the narratives that came out in the years immediately following 9/11. They have not aged well. Really, we’re only just now nailing World War I. But like everyone else, writers feel the need to distill life as a means of surviving it.

Our particular era strikes me as especially susceptible to this impulse. Part of the reason is that our response to disaster (terrorist attacks, hurricanes, school shootings) is to get out there and declare the death of irony....[I]n the moment, we feel the need to prove our solemnity on social media by setting a universal mood, and this is poison to actual book writing.

The other issue that separates our particular time from the 1600s (aside from the hygiene and the snacks) is the personal voice to which we’ve become accustomed — “I” being the vowel of the century.

Crosley's conclusion at the end of the piece is a little more mixed. But the tone is one of caution against trying to be the first with the most immediate "relevant" writing. I think that's a good piece of cautionary advice.

How does this affect scholarship, blogging, and so on in our own corner of the academy, in which dozens of blog posts and, perhaps, countless articles currently in draft are titled "In a Time of...?" I admit to a bias, since I am seeing a lot of predictive writing out there despite our significant lack of the kind of information on which one can base even poor predictions, and I already think of futurist writing as the second-lowest form of intellectual life, after the TED talk. But I would suggest the following:

1) Take it slow. Doubtless this is already true faute de mieux, as most of us are spending most of our time (apart from Netflixing, parenting or caring for loved ones, and other forms of service) learning how to teach online and either prepping for classes or already teaching them, and many of us have edits to make or deadlines to meet for existing prelapsarian pieces. But with or without those other commitments, there is not a pressing need for everyone to immediately get out there with broad academic musings about the new normal or what will follow after that. We lack the information and time to do it well and most such pieces, even those written by experts, don't age well, as Crosland notes. The very instincts and impulses that impel us to engage in such writing are the same instincts and impulses that mar accurate analysis and prediction. So, curb the urge to be among the first, or among the first thousand, to tell us all what it all means for the future, or even the near future. There is, indeed, nothing wrong with writing nothing about the "new" whatever. If you are still interested in the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, and that's where your expertise lies, write about that.   

2) Start with boring. The most useful information people in a given field can offer at this time is narrow, quotidian analysis and advice. What do current rule changes mean in a given area of law? What deadlines and processes have changed? What practical questions do these raise for particular subjects at this moment? I'm not sure that most legal academics are in a better position to give such advice than practicing lawyers, and many would readily conclude, or concede, that they are not. (Clinical legal academics are surely in a better position.) Beyond that, it may vary by field and individual. Probably the role of a legal academic in this moment is to pay close attention to what lawyers on the ground are saying about the issues they face, and then offer what they do have: the luxury of time and distance, which they can use to collate, summarize, and analyze. If one is going to write about current events, the best bet is to be boring: write about small problems, technical problems, practical problems, and save the big-picture musing for when it is likelier to be accurate. To be first with the latter kind of writing only results in fame and glory, not accuracy or utility. A blog post or legal periodical publication titled "Using the Space Bar to Mute and Unmute in Zoom," or "How to Get an Emergency Hearing in Family Court in Paducah," or "What Section 7005(c) of the Families First Coronavirus Response Act Means" will be much more useful and accurate than one on "The New Separation of Powers in the Age of Coronavirus," or "How International Law Will be Utterly Transformed by the Plague Years." The only advantage of those posts is that no one will much mind or even notice when they are falsified by events.

3) Avoid the portentous titles. Maybe I'm alone in this, but I seriously doubt it, and my admittedly unrepresentative Facebook feed suggests otherwise. But even if most people agree that we should lay back on the ominous titles, there is a problem of temptation, of collective action problems, and of large numbers here. "Tips for Teaching Online" is a perfectly sound title. "Teaching Online in an Age of Coronavirus" is a little much. Given the risk of cliche, it's probably a worse title than "Tips for Teaching Online." We're already aware that it's an age of Coronavirus. Easy does it. (It's only fair to acknowledge that some blog posts here have used similar titles. Again, there's a collective action problem: With X number of people on a group blog, and each person figuring a couple of posts a week titled in that fashion are relevant and understandable, we quickly go from a couple of drops to a deluge. In any event, I'm writing not to criticize writers here or elsewhere for past writings, but to encourage conservatism in future writings. I do wish, I must admit, that the excellent Facebook groups for teachers, in law and elsewhere, who are going online would rename themselves with something less dramatic.) I can only pray, as I suggested earlier this week, that law review editors, symposium planners, and groups like the AALS impose a little top-down restraint, in title choices if not in subject matter. Both would be nice.

4) Use your desk drawer. It's there for a reason. Of course there is good reason for academics to write some bigger-picture stuff on major topics. Of course this (with "this" as a very large umbrella term) is the number one topic on everyone's minds and everyone's agenda. To the extent that one writes what one is impelled to write, rather than what would be of most use or what is most clearly within one's expertise, then write it, even if it's an "In an Age of" piece. (You don't have to choose that title, of course!) Then hit "save as draft" on your blog platform or, if it's an article or op-ed, print it out and stick it in your desk drawer for somewhere between 24 hours and a week. In a day or a week, it might be out of date. So be it. In a day or a week, you might be find the tone immoderate or be inclined to revise what you've written in light of new information or better judgment. In a day or a week, you might find it's still relevant and useful and that the tone is still appropriate. Then it may be time to go forward. (I only partially took my own advice. I did save this as a draft post and hang on to it for a bit, but not the full 24 hours. Mea culpa.) 

Posted by Paul Horwitz on March 22, 2020 at 12:07 PM in Paul Horwitz | Permalink | Comments (0)