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Tuesday, October 03, 2006

Some non-sequitors of my own

Over at Abovethelaw.com, Dave Lat has been busy recruiting people to do his work for him...I can't blame him.  It's hard to do all this blogging stuff.  There are a few things I thought worth mentioning -- all mostly un-related.

A warm note of congratulations and blogospheric welcome to past guestprawf, Jeff Lipshaw, who, along with Michael Frisch and Alan Childress, have recently launched the Legal Profession Blog, which is part of the Caron Empire. I've perused their last two weeks worth of entries, and it's a really nice vehicle for Lipshavian wisdom (as well as Frischian and Childressian!).  Indeed, picking up on Ethan's Yom Kippur op-ed, you might be interested in Jeff's heterodox reflections too. (When else will you see the words "Liturgy, Heresy and Rawls" strung together in one concatenation?)

A hearty mazel tov on the birth of the Harvard Law and Policy Review, which will be the in-house ideas-based organ of the American Constitution Society for Law and Policy (disclosure: I'm a member.)  Here's how their online editor described HLPR's trajectory:

"The content online now – including discussions of progressive constitutionalism by Professors Larry Tribe, David Barron, Robert Post, and Reva Siegel – is introductory, but we plan to run monthly symposia and to publish a steady stream of pieces by academics, practitioners, policy makers, and students. Our primary aim is to foster progressive, pragmatic dialogue on current questions of law and policy. These short, online essays will encourage a high level of interactivity through responses and rejoinders, comment threads, and other opportunities for our readers to engage the ideas we present."

There's also some good-natured and not unsound tweaking of HLPR over at the Weekly Standard.

I recently found out that the guy I used to house-sit for in the summers while I was in college has started a new blog over at TNR. It's called The Spine, and Marty Peretz has got one.  Not everyone is a fan of Marty's writing or his ideas, but I am, usually, and I'm glad he's experimenting with blogging.

Penultimately, I'm happy to announce that Brian Tamanaha (law, St. John's) will be showing up in this space in the near future to discuss his much-praised new book from Cambridge University Press, Law as a Means to an End.  Brian was kind enough to give me an advance copy at the LSA meeting in Baltimore, and from what I've read in the book so far, we're in for a special treat.  I met Brian after having read his book last year, On the Rule of Law: History, Politics, Theory (Cambridge 2004).  I meant to blog about it beforehand, but the Rule of Law primer Brian has written should be required reading for every law student and professor in the country. It's an outstanding book: shrewd, learned, and clear. It's an I Love It!

Finally, Ian Best, of 3L Epiphany fame, writes with good tidings: namely, that the post I wrote this past summer about Doug Berman's article and the future of sentencing after Booker has been cited in Judge Young's decision in United States v. Kandirakis, 441 F.Supp.2d 282 (D.Mass. 2006).  Ian's full post appears after the jump, as it contains some interesting nuggets worth checking out over at his blog.  I mention this because I think that a citation to a blog post (for persuasive authority as opposed to mere information) in judicial opinions should give pause to those, like my beloved colleague JB Ruhl, who might otherwise categorically reject the possibility that blogging can be an outlet of scholarship.  Too often, in my mind, the discussion of whether blogging is scholarship neglects the possibility that some blogging is and some blogging isn't.  (To be clear, most of mine is emphatically not scholarship.) Reasonable people may disagree, and for that reason, it would be entirely unwise to present a tenure committee with a large batch of thoughtful blog posts that look, smell, and act like scholarship. (Besides which, I personally like reading and writing the really long law review articles!)  But perhaps that advice might well be different several years down the road, especially as, Dan Solove's new census shows, more and more law professors are blogging, and more of what appears in published law reviews blurs the line of what really is scholarship anyway.

rAddendum to Cases Citing Legal Blogs

A few weeks ago I updated my list of cases citing legal blogs here. I noted that there had been 6 additional court cases citing blogs since I first compiled the list here. One of the new cases was United States v. Kandirakis, 2006 U.S. Dist. LEXIS 53243, which cited Sentencing Law and Policy twice. However, I missed another blog being cited in the same case. Namely, PrawfsBlawg is cited in two consecutive footnotes. Here is the relevant quote from Kandirakis: 

“The notion that a defendant’s sentence is based upon his ‘real offense’ . . . begs the question: ‘real’ according to whom, and according to what standard.” Darmer, supra, at 544. In truth, “real conduct” sentencing as embodied in the Guidelines, is simply punishment for acts not constitutionally proven. n42 The system relies on “findings” that rest on “a mishmash of data[,] including blatantly self-serving hearsay largely served up by the Department [of Justice].” Green, 346 F. Supp. 2d at 280. n43

n42 Dan Markel, “The Indispensable Berman on Booker”, June 26, 2006, PrawfsBlawg, at  http://prawfsblawg.blogs.com/ prawfsblawg/2006/06/the_indispensab.html (“For what is real conduct in a regime in which the Founders sought the use of juries except conduct that has either been admitted to or been included in the indictment and proved to be ‘real’ beyond a reasonable doubt by a jury of one’s peers?”).

n43 Dan Markel, supra note 42 (“[W]hat makes the Booker remedy fundamentally untenable is that it continues to provide safe harbor for the imaginative fantasies of what really occurred under the rubric of real conduct.”); see also Booker, 543 U.S. at 304 (Scalia, J., dissenting in part) (relating that judges “determine ‘real conduct’ on the basis of bureaucratically prepared, hearsay-riddled presentence reports”); Blakely, 542 U.S. at 312 (addressing the unfairness of basing a defendant’s sentence “on facts extracted after trial from a report compiled by a probation officer who the judge thinks more likely got it right than got it wrong”). …


United States v. Kandirakis, 2006  U.S. Dist. LEXIS 53243 (D.  Mass. 2006) I am inclined to consider these footnotes as two separate citations. This means that there are now 34 citations of legal blogs from 27 different cases, with 9 legal blogs being cited. If readers learn of any other case citations of legal blogs that are missing from this collection, please add them in the comments.

Posted by Administrators on October 3, 2006 at 06:24 PM in Blogging | Permalink


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Alas, at least for the specialty journals, I don't really disagree with the perception -- hence my line about understanding what you're getting at -- although I'm only agreeing that I understand how this "perception" came about, and I'm not really sufficiently informed about these journals, then or now, to give a more definite statement. On the signaling point, although your response seems fair enough, it's possible that viewed from this perspective, the JLPP editors want to send a somewhat different, somewhat more nuanced, signal than the other journals send; for instance, not "I'm interested in issues of race and the law," but "I am, generally, a political progressive and a member of the ACS -- and a well-pedigreed one at that."

Posted by: Paul Horwitz | Oct 4, 2006 7:51:54 PM

Perhaps not "rigidly," but as I understand it, the founders of JLPP were motivated by the perception that conservative or originalist arguments didn't get a fair hearing in the other Harvard journals. Do you disagree with that perception? For example, "gender" isn't necessarily a liberal issue, but -- correct me if I'm wrong -- you aren't likely to find many articles in the Journal of Law and Gender that take a pro-life position.

About signaling: I agree that this is the primary purpose of serving on any law review. Still, JLPP is the only journal that signals conservatism or libertarianism; whereas some of the pre-existing journals signal liberalism very well (CR-CL, for example).

Posted by: Stuart Buck | Oct 4, 2006 3:56:03 PM

See Eric Alterman on Marty Peretz. He basically singlehandedly ruined what was once the best center-left, and arguably the best political magazine in the country. And that's by any metric (the writing went down, the politics turned shady, jason blair-esque scandals, AND he had to sell equity in the magazine to keep it going after squandering his wife's money futilely) and after inheriting arguably the best political editor in the country, Michael Kinsley.

Posted by: Bart Motes | Oct 4, 2006 3:27:56 PM

How so? Have conservatives and libertarians been rigidly excluded from the journals you mention? If not, did that make the JL & PP supererogatory?

Of course, I understand what you're getting at -- and, whether or not conservative students have been excluded from, say, the Latino Law Review, if conservative *views* on issues touching on law and Latinos have been excluded from that journal, then it's to the journal's detriment. (Conversely, if conservative students have assumed that gender, human rights, or race aren't "conservative issues," more fools they.) But these journals are all either general-interest (the Big Kahuna) or subject-specific. The JL & PP, like the new L & PR, is not supererogatory because it believes, rightly or wrongly, that a journal is needed to address general topics from (generally, although not always) within a particular community and in service of a general point of view.

More importantly, perhaps, both the JL&PP and the L&PR serve another central function: to burnish resumes and, especially, to send a particular signal to potential employers of a specific political stripe. Who would dare call that supererogatory?

Posted by: Paul Horwitz | Oct 4, 2006 12:26:57 PM

For so many years, liberals and progressives have been rigidly excluded from the Harvard Law Review, the Harvard Civil Rights-Civil Liberties Law Review, the Black Letter Law Journal, the Harvard Environmental Law Review, the Journal of Law and Gender, the Latino Law Review, the Journal on Legislation, the Human Rights Journal, and Unbound. At long last, they will have a place to give expression to their ideas.

Just kidding around, of course. But seriously, isn't the new journal a bit supererogatory?

Posted by: Stuart Buck | Oct 4, 2006 10:54:07 AM

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