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Friday, May 06, 2011

"The New Phone Book's Here! The New Phone Book's Here!"

I just got a nice big box of reprints in my office today.  Every time that happens, I run through the halls yelling the title of this post.  And every time, I have to explain to my colleagues that I am not a lunatic, just a big Steve Martin fan (see here).  But which of us hasn't met a box of reprints with the kind of naive enthusiam displayed so wonderfully by Martin's character?  "I'm somebody now!  Millions of people look at this book everyday!  This is the kind of spontaneous publicity -- your name in print -- that makes people.  I'm in print!  Things are going to start happening to me now."  These words were written to be said by a law professor.

I know this topic has been covered before, on this blog and others, but do reprints serve any purpose anymore, other than (1) allowing us the transient joy of seeing our names in print and (2) demonstrating to our parents that the money they spent on law school tuition was not utterly wasted, even though we are making about a fifth of what we could be earning at that fancy law firm where we summered?  And more specifically, what is your experience in sending reprints to judges?  I have done so on occasion, and even received nice letters in return from Justices O'Connor and Souter, and thought there was nothing improper about it.  But the last time I did so, I received a letter back from the judge -- okay, it was one of the Nine Exalted Ones, but I won't say who -- telling me that s/he would not consider any unsolicited matter outside the record of the case.  The tone of the letter was rather brusque.  I thought this was a little odd, since the judge could have found my article on his or her own and I was just making it easier for him or her.  Am I wrong?  Has anyone had a similar experience?

Posted by Michael J.Z. Mannheimer on May 6, 2011 at 09:58 PM | Permalink

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Comments

Technically speaking, how does one submit an article as an amicus brief? I doubt a law review reprint would comport with a court's font/space requirements. Is it appropriate to submit an amicus brief that merely has a cover page with an appendix containing the article? Or should you reformat the article to look like a brief?

I'm working on a short (5-7 page) article that I'd like to make the court aware of.

Posted by: andy | May 11, 2011 7:03:52 PM

I am just impressed that Jake's parents read his articles.

Posted by: Jessica Owley | May 11, 2011 2:52:34 PM

Loved your Steve Martin reference! I remember being surprised to learn that law profs send their articles to the Supreme Court, based on the "untimely amicus" concern. So, when I did have an article about a pending case, I surveyed my S.Ct. clerk friends, getting a mix of responses, but feeling most comfortable with the one who said it was ok to send an earlier article on the same general topic, but going too far to send the article (already accepted and on ssrn) on the case itself. That strikes me as a good balance - and I did receive some nice thank you notes and, possibly, agreement (w/o cite to article(s)).
Which leads me to another question - who does that? Are those Justices more polite? Or are they the ones who read and/or cared about your article??
mj

Posted by: MJ Dolan | May 10, 2011 10:04:58 PM

And remember that the pace of legal change is often glacial. Just as one example, Wechsler's "Political Safeguards of Federalism" article wasn't cited by the Supreme Court until 1976, 22 years after it was published -- and that was in a dissent. It was not until the Garcia v. SAMTA case was decided, a full 31 years after Wechsler's article, that its central premise was adopted by the Court.

I would posit Heller and McDonald collectively as another example where it took some time but ultimately the academic commentary made a big difference in getting the Court to take a particular path.

Posted by: Michael J.Z. Mannheimer | May 9, 2011 9:53:14 AM

Jay,

That's true, although the article has been cited and/or discussed in 10 different opinions available in the Westlaw allcases database. That's not too shabby.

Posted by: Orin Kerr | May 9, 2011 1:28:01 AM

I always send one to my parents, who gamely plow through every article as if they really enjoyed it. I've also seen faculty who, when folks drop by the office and to discuss a topic that your article touches on, send the visitor out the door with the reprint.

Posted by: Jake Linford | May 8, 2011 9:04:32 PM

When I was in law school, I had some peripheral involvement in the publication of an essay titled something like "Why Summary Judgment is Unconstitutional." The author was famous around the office for requesting sufficient reprints to send to every federal judge in the country. AFAIK, none of them have yet declared SJ unconstitutional.....

Posted by: Jay | May 8, 2011 7:46:55 PM

I wish we could move the conversation back to the original question - what do people use reprints for? I know some people who send them to everyone they cite in the article. I've tried sending them out, but no benefit seems to come from it, so now I don't bother. Sometimes I don't even open the box, I just stick it in the corner behind my door.

Moving beyond the question about sending them to judges and our parents, what else do people do with their reprints?

Posted by: Mediocre.law.prof | May 8, 2011 3:13:04 PM

Orin, I used the term ethical not in the strict sense that a lawyer/law professor could be disciplined for the conduct, but in the sense of propriety or professionalism. If that is what you mean by "social norms," then fine, and we can talk about what professionalism in this context entails. Again, I think the propriety of sending the reprint turns upon the content of the reprint (at what level of abstraction the article discusses a given legal issue) and the existence of a pending case in which that issue plays an important role.

FWIW, I don't send reprints to judges precisely because I assume that those judges who are interested in seeing the academic commentary on an issue can easily find the articles via WestLaw or SSRN (or have their clerks do so). Of course, there is also an interesting question as to the propriety of judges consulting materials of which the parties may be unaware. If the concern is that the judge's decision may be influenced by reading the law review article, that concern presumably exists even if the professor didn't mail the reprint to the judge. I assume, however, that the tradition of judges performing their own independent legal research encompasses that practice.

Posted by: Norman Williams | May 8, 2011 1:18:45 PM

"[M]ost judges don't really care what you think." Perhaps. And the law's crystal clarity in so many areas is the result. I mean, everyone who teaches the Fourth Amendment recognizes that it is a morass. Perhaps if the courts listened to Orin more often, it would be less so.

By the way, I should say that the best course of action is to send reprints to the litigants and try to have them cite the article in the briefs. I usually take this route. But in the case I mentioned, the article did not particularly help one side or the other.

Posted by: Michael J.Z. Mannheimer | May 8, 2011 10:06:58 AM

Here's how I view it:

1) If you're sending an article that does not purport to directly discuss a then-pending case (or does not center on an issue in a then-pending case) then it's fine to send the article. For instance, if you write an article discussing the judge's past opinion, then you should be fine.

2) If you're sending an article that directly discusses a then-pending case or centers on an issue in a then-pending case, then you should expect the judge to promptly throw it in the trash. (If your cover letter says "I thought you might especially enjoy this article, as it relates to the issue in X v. Y, which you are now deciding," then you are particularly crass...) The proper way of bringing such arguments to the judge's attention is by filing an amicus brief. A secondary way of putting the idea out there is to publish it generally, without taking extra steps to send it to the judge. (It is equally improper, incidentally, to attempt to get your arguments to the judge by sending them to law clerks, chambers secretaries, or the judge's personal friends.)

3) It makes no difference whether you know the judge or not. Litigation is a public process, where arguments should come to the judge publicly. The fact that your article was publicly published doesn't mean that you can privately send it to the judge. (Most litigants' arguments have already been made elsewhere -- that doesn't mean they can file ex parte submissions attaching the outside authorities.)

4) Get over yourselves, law professors -- most judges don't really care what you think...

Posted by: Mr-Propriety | May 8, 2011 7:49:59 AM

Norman,

I don't think the issue is even whether it is ethical: rather, I think the question is more one of social norms.

To make the issue a bit more complicated, let's imagine a law professor writes a law review article about a particular issue hoping that it will be read by the law clerks in a particular case that raises that issue and cited by the parties, with the end-goal, hopefully of both perhaps influencing the judges and being cited in the court's opinion. I don't think any of us would say that is in itself either unethical or violates any social norms. The question then becomes, if you can write the article, and you can post it on SSRN, is there any difference with sending a reprint to the judge or Justice?

Posted by: Orin Kerr | May 7, 2011 9:37:54 PM

There are two issues, which need to be kept distinct: whether sending the reprint violates the brief filing rule and, even if not, whether it is unethical in some form. As to the former, I don't think it's even close -- a reprint is not docketed, and there is no obligation for a judge or the clerks to read it (which presumably there is for docketed submissions). As to whether it's unethical, I think it depends on the content of the article -- does it expressly discuss the case at issue and urge a particular result? If so, I wouldn't send it until after the case is decided. But if it only discusses a general area of law at a high theoretical level (as most law review articles do), I see no problem with it.

Posted by: Norman Williams | May 7, 2011 12:20:45 PM

I have no dog in this hunt at all, since SCOTUS and I seem to operate in parallel universes, but I don't see any difference between an article and a brief if the case is pending. Here is a proposed generalized statement: "a document, itself publicly available, containing a series of arguments relevant to the matter at hand, citing otherwise publicly available materials." Is that a definition of a brief or a law review article? I don't think this is a matter in which the law of the excluded middle applies. In other words, it is BOTH an academic piece, and in this context, indistinguishable from the kind of advocacy the procedural rules were designed to control.

It seems to me it's inappropriate to send in connection with a pending matter, whether you are friends with the judge or not, have shared academic interests, don't think you are really advocating, etc.

Posted by: Jeff Lipshaw | May 7, 2011 9:22:15 AM

I think if you know the judge personally, then you may just be updating him or her on what's going on in your life and that's fine. If the judge has an academic career as well and your article is relevant to his work, then sending him the article is more or less the same as sending it to another professor. But if you don't know the judge personally, you are functioning in one form or another as an advocate, and there are appropriate channels for that as Orin points out. My vote is that it's improper.

Posted by: 123anon | May 7, 2011 8:04:49 AM

This is a somewhat tricky issue, I think. When you send a judge or Justice an article about a legal issue raised by a pending case, are you: (a) just letting the judge know about a public document that is available to them that they may or may not find of interest, or (b) submitting an amicus brief out of time that the litigants aren't necessarily aware of and therefore can't respond to? If it's a very recent article that expressly is about a pending case, the judge/Justice may be more inclined than otherwise to think the latter rather than the former, and they may feel the submission is a bit inappropriate. But these things are hard to assess. I don't think there's a clear norm here.

Posted by: Orin Kerr | May 6, 2011 11:42:52 PM

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