PrawfsBlawg

More free speech and ideology

Apropos of this brief conversation and stuff I've written here before, comes this paper by political scientists Lee Epstine, Christopher Parker, and Jeffrey Segal that finds a correlation between the nature of the speaker and speech at issue and the likelihood of the Court and individual justices voting in favor or against the First Amendment claim. This result also is consistent with theories of in-group bias/favoritism--that people give preferential treatment to members of their own group.

I still believe the liberal/conservative labels are too crude generally and especially as applied to expression. Plus, is it really in-group bias that is going on in First Amendment cases? While I agree with the outcomes in the flag-burning cases and in Snyder v. Phelps, I'm not sure I am "part" of either group. We could tweak it as political agreement or sympathy, but I certainly would not say I agree with the ideas expressed by the speakers in either of those cases. And in something like campaign finance, we don't even know what the speech at issue will be; there is an assumption that the corporate speakers will make conservative speech, but do we know that is true in the abstract?

Anyway, the study is useful in showing that the simple notion of a complete alignment or complete reversal of left/right support for speech both are wrong. Beyond that, more grist for the discussion.

Signing Off -- And More on the Nirvana Fallacy

This will be my last post during this guest-blogging stint. Thanks to Dan and the others for having me. It has been fun.

Over at Truth on the Market, my colleague Adam Mossoff has a response to my post about his paper. I argued that he misconceives the Nirvana fallacy, because to me it pertained to a situation where one was comparing against a idealized and fictional alternative. Adam’s response is that nobody—at least nobody in economics or law—compares against a fictional alternative. He challenges me to name a single legal or economics scholar who does. A much longer post--where I think I answer his challenge--will follow after the break.

If the only question is an economist comparing against a fictional baseline, then every economist does that.  Every economics student learns on their first day to compare everything against the fictional alternative of a perfectly competitive market involving perfectly rational actors, which nobody thinks is descriptive of real life. The blog he is blogging at, “truth on the market,” is named after a theory that says that a perfectly competitive capital market will instantaneously incorporate all publicly available information.

To be sure, economists spend much of their time relaxing the assumptions of the models and also testing the models to see if they approximate reality. So we don’t think that the market is perfectly competitive, but we think it is highly competitive, and thus the truth on the market theory works well enough. But the analysis begins with a fictional and idealized conceptual baseline and works backwards. And Demsetz’s whole point with the Nirvana fallacy is that often economists don’t do enough work on the back end to ensure that their fictional and idealized conceptual baseline actually matches reality. To that extent, Adam is correct that “the question is whether such an idealized counterfactual is a valid empirical metric or not.”

But the emphasis is not on the words “empirical validity” but “idealized counterfactual.” And my point is that there is no “idealized counterfactual” in the scholarship that Adam criticizes if we correctly understand that term. Adam seems to define an idealized counterfactual as any time someone is wrong on a empirical question, with his example being someone who predicted that Nixon would lose the election in 1972. If that is the definition of an idealized counterfactual, then every public policy debate will degrade into mutual accusations of the Nirvana fallacy. Patent scholars have strongly differing intuitions about whether the patent system fosters of hampers innovation on net. Nobody currently has rigorous evidence about this. By Adam’s logic, at least one side must be living in Nirvana.

Rather, the idealized counterfactual is what economists do when they begin their analysis first with an assumption of perfectly rational actors in perfectly competitive markets and then work backwards. The analogue in the patents-to-real-property context would be to (a) first theorize a perfect real property system with zero transaction costs, (b) have an intuition that (a) is a valid baseline because the actual real property system has low transaction costs, and (c) therefore compare the actual patent system to (a). There would be two possible critiques of this practice: (1) the empirical intuition (b) is not correct, and (2) one shouldn’t be comparing real life systems to hypothetical fictional baselines in the first place. My point is that people in the patent debate are not doing this. Precisely because we take Demsetz’s critique to heart, we are avoiding positing a comparison to an idealized alternative of a real property system of zero transaction costs, and positing the actual real property system with non-zero and empirically-verifiable transaction costs as the baseline. We are comparing the patent system to the actual real property system, and arguing that the patent system has higher transaction costs than we understand the actual real property system to have. There is only one possible criticism, which is that our empirics are wrong. But we have taken Demsetz’s critique to heart precisely because we are engaging with the question at an empirical level: the question is framed conceptually as “what are the actual transaction costs of the actual real property system?”

Adam can of course say that our empirics are wrong, but there is no longer a conceptual problem with the conceptual baseline, which I understand the Nirvana fallacy--i.e. conceptual mistake--to be about. I just don’t see where Adam is pointing to a false conceptual premise, except by reference to the fact that he thinks the critics are empirically wrong (I am putting aside here his perfectly valid point about “land” rather than “estates”; that is a conceptual mistake, but that can be fixed by moving to a comparison between invention boundaries—i.e. claims—and land boundaries). If Adam wants to say that the actual real property system has high transaction costs, then he should just say that and either put forward empirical evidence or his own intuitions about it. Even saying that the critics’ empirical intuitions are unsupported and that is itself a problem is fine. But I don’t think he has made the case for saying there is a logical fallacy here. To paraphrase Adam’s post’s title, the Nirvana fallacy is not the “you are empirically wrong” fallacy.

Finally, in his blog post, Adam also says that “comparing an actual institutional system to a ‘loose intuition’ about another institutional system” is exactly what Harold Demsetz defined as the Nirvana fallacy. In one sense he is correct about this, so I must tease this out a little. In every comparison between two different systems, there is necessarily an embedded hypothetical fictionalized alternative. When I compare patents to real property, at some conceptual level it cannot be done. What I am really comparing is (a) the actual patent system, and (b) a hypothetical patent system that works like the actual real property system. So there is a fictional baseline there, and there is a valid conceptual critique. So I take back everything above if that is Adam's point.

But, if that is what Adam is saying, then the logical implication is to stop all comparisons between patents and real property, period, because the conceptual differences between patents and real property are unbridgeable. That is, to my understanding, not Adam’s argument, because he makes the conceptual comparison between patents and real property in his own work as well.

Scalia, judicial ideology, and flag burning

Dan flags Richard Posner's negative review of Justice Scalia's new book (with Brian Garner), a review which largely speaks for itself. I wanted to delve into a side issue regarding Justice Scalia's vote in the flag-burning cases and what it says about his judicial philosophy.

As Posner describes it, Scalia tries to mount a preemptive defense to the charge that their interpretive theory of "textual originalism" is not political or inherently conservative by pointing to "liberal" decisions he has joined. His choice--the flag-burning cases of Texas v. Johnson and United States v. Eichman. Indeed, Johnson and Eichman, and Scalia's votes in those cases, have for 20+ years been the go-to exhibit to demonstrate that the justices are not governed by political preferences. Posner argues that this is a "curious" example to use in defense of textual originalism, since the First Amendment doctrine that led (properly) to constitutional protection for flag burning is a modern product, not grounded in the Framers' understanding of the freedom of speech. Posner argues that Scalia and Garner repeatedly praise Blackstone, whose conception of free speech was limited to prohibiting prior restraints but not post-speech punishment.

More fundamentally, using a few free speech cases to demonstrate his ideological neutrality is strange because the First Amendment should be, in theory, deologically neutral. That Scalia does not personally approve of flag burning is beside the point; the goal is that he is committed to a principle of occasionally caustic criticism. Or, if Scalia wants to use his speech-protective votes to show his open-mindedness, why not focus on R.A.V. v. City of St. Paul, where he wrote a broad opinion invalidating an ordinance prohibiting cross burning.

Ironically, there is a different area in which Scalia's votes have been ideologically unexpected while also arguably adhering to some form of originalism--the Confrontation Clause cases of the last decade, beginning with Crawford v. Washington. Writing for the Court and adopting an explicitly historical approach to the Sixth Amendment (with prolonged discussion of Marianist ex parte affidavits and the treason trial of Sir Walter Raleigh), Scalia pushed the Court down an analytical path that had the potential to greatly constrain the ability of government to admit a range of hearsay statements against criminal defendants. And when the Court backed away from some broader applications of Crawford, Scalia remained in outraged dissent. He stuck to his historical guns, even as Justice Sotomayor took a shot at his approach by insisting that the murder investigation at issue in Bryant was "readily distinguishable from the "treasonous conspiracies of unknown scope, aimed at killing or overthrowing the king," post, at 1173, about which Justice SCALIA's dissent is quite concerned." In fact, Scalia closed his Bryant dissent with a downright Brennanesque flourish:

For all I know, Bryant has received his just deserts. But he surely has not received them pursuant to the procedures that our Constitution requires. And what has been taken away from him has been taken away from us all.

This is a true example both of originalism yielding liberal results; it would be nice to see Scalia and others focus on this example and not on free speech cases that reflect a very different analysis and a different set of expectations.

Reality checks

To finish up my month of Submissions-Editor blogging, I want to highlight a piece of scholarship that exemplifies several of the themes I've touched on.  For obvious reasons, I haven't singled out an article before, but this time I have the authors' permission (and I'm very glad to say it will appear in the Cleveland State Law Review in just a couple of months).  The article is here, and of course I can't improve on the way it introduces and justifies itself.  Nonetheless, let me try to explain why I think it's dynamite.

I've been writing about my layman's interest in the way legal academia develops and overcomes certain blind spots -- in particular, blind spots about how things transpire in actual decision-making.  I tried to blog about this by proposing that (the Constitution foresees that) a jury is in actuality perfectly suited for the decision to order a drone strike (i.e., what is commonly called extrajudicial killing should be called 'killing without a jury').  In general, I suggested that actual jury decision-making (unlike judges' decision-making) gets far too little ink.  I also proposed that there is an enormous amount of work to do to understand the nature of Justice Roberts' restraint in NFIB v. Sebelius:  I think it's a good example of how a real legal decision can expose the poverty, ill fit, or obsolescence of even the best academic theories about such decision-making. 

And I highlighted the work of Lynn Stout, which incorporates into law-and-economics some of the advances economists have made in recent years in addressing their own blind spots about actual human behavior.  For me, one of the most impressive things about Prof. Stout's work is its empirical rigor:  it requires mastery of the statistical outputs of reams of scientific literature from a 'hard' science (specifically, psychology).

The middleman is cut out by the authors of the linked article, The Ideological Divide: Conflict and the Supreme Court’s Certiorari Decision (Profs. Grant, Hendrickson, and Lynch).  They do the hard science themselves.  Rather than theory presenting itself against the blurry backdrop of real life, in this article, reality speaks against a backdrop of (well-conceived and clearly explained) theory.  

And in the end, reality improves the academic theory, rather than (as legal scholars often fantasize) the other way around.

Using data just available from within the Supreme Court (cert. pool memoranda from the papers of Justice Blackmun), and using ideology scores from the JCS methodology, Profs. Grant, Hendrickson, and Lynch analyzed the effect of judges' ideology on cert. decisions when there was a circuit split.  To me, a true scientific mindset is revealed by the size of the authors' data set and the refusal to simply identify cases 'by feel' as ideologically charged or not.  This is methodical, humble, and virtually airtight work.  It puts to shame all the general efforts to define the concept of 'judicial activism,' and in the end suggests that Supreme Court judges take their job seriously in a way that members of other professions don't necessarily know how to name.

As I say, the article speaks for itself.  It bridges ideology and fact.  I urge you to read it, since I can't do justice to it.  

As a final Cavellian note, let me expand on what I mean, or maybe on what I think law professors should always mean, by "doing justice."  My law school, Cleveland-Marshall, has the motto "Learn Law.  Live Justice."  It's like a little koan (learn in order to live? live in order to learn? justice flows from law? law flows from justice?).  It beautifully encapsulates the tensions and the energy in the relationship between legal theory and legal practice.  

(Those tensions are magnified recently by the important debate about whether law schools are serving their students well, professionally.  I'm very proud of how Cleveland-Marshall has handled itself over the last decade or so, and very impressed with what it is doing now along these lines.)  

To speak broadly:  the tensions between thinking and doing are never going to be relaxed.  {Ironically, I wrote an essay about that fact four years ago which I can't link to, because it is STILL not yet out in print; it's called "Perfect from the Pod" but has been germinating at Case Western Reserve and at Cambridge University Press.}  Theory and practice can never do perfect justice to each other.

But universities embody crucial Enlightenment values that have addressed those tensions better than anything else.  And American universities are particularly superb places to study law, because American philosophy, both speculative and applied, has deployed the values of the Enlightenment with unique flair for centuries.

The first such value is science -- knowing the truth.  It is both basic and incredibly complex.  It should be the role of law schools to do justice to the world of societal power -- and doing justice means, before anything else, the hard work of empirical analysis.  There are no shortcuts.  Profs. Grant, Hendrickson, and Lynch embody that principle for me this year.

I'm sure I haven't done them justice, but then I'm just a law student.

Global Warming Yuks

President Obama promised to begin to slow the rise of the oceans . . .  

Har har har! 

. . . and heal the planet.

Ho ho ho!

MY promise is to help you and your family.

(Glub, glub, glub.)

Neither Fish nor Fowl

With school starting up again, I’ve made less progress this month than I hoped in identifying for myself what is so remarkable about Justice Roberts’ forbearance in NFIB v. Sebelius.  (The experience of the month reminds me what a gift it once was to be an academic -- truly thinking things through properly, and finding the right metaphors for them, takes large swaths of time.  I hope law professors find such time, as English professors sometimes do.)

Nonetheless, here is a stab at what NFIB means:  We need new ways of thinking about judicial restraint as part of the constitutional scheme.  If such ways could be developed, we would end up reviving an old-fashioned idea of ‘judging’ as a function of individual temperament, and return to an understanding of judicial selections as a matter of character judgment rather than “qualifications” or political identity.

I think Roberts’s philosophy of judging, as manifested in his NFIB conduct, disrupts our usual way of thinking about supremacy of power.  --It might not even be a “philosophy,” in the sense that it might not have a governing logic.

We all know that constitutional law has power over statutory law (the legislature must conform itself to constitutional law).  We also know that, under the consensus, the judiciary has power over constitutional law.  It seems a simple matter of logic, and the transitive property, to conclude that the judiciary has power over the policy made in statutes.  Roberts disrupts this syllogism, and urges us to return to believing that there are, or should be, different types of power.

--This may not be legal realism, but it is, as of July, real.  A myth in action is no longer mythical.

The premise of my reading of NFIB is that Roberts himself really disliked Obamacare, and preferred as a matter of policy that it be struck down to the extent possible.  Not only does he strongly imply this to be true, but there is very strong evidence in the fact that he voted to invalidate the law at the initial conference, and acted to do so for over a month, as opinions were being written.  Then somehow, in the act of being a judge and writing the ruling, he reached the conclusion that he should refrain -- and found a parsimonious way to do it, minimizing the policy impact while maximizing the doctrinal impact of the case.  

He is, to me at least, now the poster child for judicial restraint with regard to policy outcomes.

The received ways of thinking about ‘restraint’ flow from ideas about the constitution of the political system.  Larry Kramer described them earlier this year:  “For Republicans [of the early 1800s], restraint was a device to preserve the primary and superior authority of ‘the People’ ” in matters of constitutional interpretation.  By contrast, for Federalists, “this restraint or deference was a matter of prudence and political expediency:  something necessary to secure and preserve judicial (rather than popular) authority by minimizing the risks of overstepping.”  Judicial Supremacy and the End of Judicial Restraint, 100 California Law Review, 621, 625-26 (2012) (emphasis in original).

If those are our only two choices for thinking about Justice Roberts, I think we miss something important.  Let’s have him try them on for size.

1) We can read Roberts as a Democratic-Republican in the Ely vein, returning the question of Obamacare’s constitutional propriety to the people for determination in the 2012 election:  but this flies in the face of his doctrinal purity on so many other matters, especially in Citizens United and in every other section of the NFIB opinion besides the one on the taxing power.

2) Alternatively, we can read Roberts as a Federalist who refrained from striking down Obamacare out of fear of the consequences for the Court itself.  Prof. Kramer places great emphasis on the crisis the Court faced in the 1930s, when it backed down in the face of political danger, and continues the story by showing that the Warren Court coopted liberals to the camp of judicial supremacy.  He predicted this spring that judicial restraint would become a thing of the past:  

Why should the Court defer, after all, if it is, by constitutional design, supposed to be the final, authoritative interpreter?  There is no reason beyond doing what is necessary to protect the Court’s ability to play its institutional role.  In a world of judicial supremacy, then, deference is simply a matter of expediency:  of how far the Court can, as a practical matter, go without sacrificing too much of its political capital.”  (633)

This is the way many thoughtful people are reading Justice Roberts’ forbearance:  as a strategic retreat to avoid excessive political exposure.  Liberals see it as a calculated ploy, Roberts conceding one battle in order to win a larger policy war for his side (the Republicans); conservatives see it as a failure of GOP nerve worthy of General McClellan.  

But I think the Federalist interpretation of Justice Roberts is wrong.  The premise of this view is that he feared political repercussions for the Court if it intervened in an intense political dispute between the parties.  No one really explains what those repercussions might actually be (besides an awkward moment here or there at a future State of the Union address).  Nor can they.

The Supreme Court has fully tested the possibility that it will lose institutional credibility, as a matter of “expediency” and “political capital,” if it intervenes in partisan political battles in real electoral time.  It is, in fact, impossible to conceive how it could have done so more overtly than in Bush v. Gore.  And in 2012, the results are in and they are very, very clear:  the Court risks, in the big picture, virtually nothing by such interventions.  

For Roberts, the poleaxing of Obamacare had been fully legitimated by law professors, by the media, and by popular opinion.  The rituals were performed, the tournament conducted, the great policy enemy was supine, and he held the sword for the coup de grace.  He knew that prestige lost by the Court would be re-won within a few years, as it had been after 2000.  He and his institution faced, in large political terms, no danger.  

And yet he forbore.  

We do not have doctrinal understandings of what Roberts did.  We need new doctrines.  I suggest the following:

In Justice Roberts’ understanding of his profession, a certain temperament is required.  Although neither the Constitution nor the constitution explains how, the power of a judge is different -- not in degree, but in kind -- from other kinds of political power.  

I know this is an unimpressively small claim.  In the terms of legal academia, it means little.  In its humility, I hope it emulates the humility of Justice Roberts, who did something that in the terms of power and jurisdiction meant very little, but (in my eyes) served higher values that exist, and are refreshed in every American generation, despite the failure of every American generation to name them adequately.  

Parenthood Redux

I want to end my guest-blogging stint where I started—by looking at the changing social and legal construction of parenthood.  The California “multiple parents” legislation I wrote about in my first post passed the state Assembly two days ago.  (It now returns to the state Senate for a full vote).  Opponents of the bill ignored the fact that this law only applies where people have acted as a child's parents and where it is in the child's best interests to grant them parental status.  They also expressed concern that this would lead to “parent by committee,”  raising the specter of communal parenting, even (gasp!) communism, which partially underlies the Supreme Court’s grant of strong individual parental rights in Meyer v. Nebraska.  In making the "too many chefs" argument against expanding parenthood, however, they overlook the fact that too often children lack any caring adult who is legally empowered to parent them.  In fact the legislation arose out of just such a  case where a child was placed in foster care because neither of her legally recognized parents could care for her. 

This week, the debate over multiple parents was matched in intensity by renewed discussion over parenting roles, and their gendered nature.  In case you missed it, a biology professor opined in the New York Times that advances in assisted reproductive technology had rendered men no longer essential to humankind's survival.  His provocative yet, to me, somewhat tongue-in-cheek post ignited a veritable firestorm of outrage and vitriol from online commenters.  (As online commenters do so well.  I exclude almost all of you from that  group, although someone did call me a "sexist pig" for my earlier post outlining the potential ethical issues raised by male-only divorce firms).  The critics do, however, reveal some interesting thoughts about parenting roles.  To take just one example: "dads work to provide for their kids, read to them, help with homework, play catch, go camping, teach responsibility, give them a sense of values, protect them from dangers in society, help them toughen up and face adulthood." 

This list is shorter (and more outdoorsy) than a list of the things my father did as a parent, and far shorter still than my husband's list.  Yet the division of parenting roles and tasks in my household is still somewhat gendered, I think not as a result of any capability differences or misogynist malevolence, but rather to habit and societal norms.  I suspect this is the case in many households.  For a thoughtful, and completely unvitriolic (if that's a word) scholarly discussion of these issues, see Darren Rosenblum's recent piece Unsex Mothering and some responses to it.  (To list a couple, here's one from Glenn Cohen and one from Kimberly Mutcherson). 

In closing, I hope I will be forgiven for indulging in that parental cliche of proudly quoting my own child.  I was recently talking with my eight-year-old son about the debates over same sex marriage and parenthood.  (Full disclosure--his favorite uncle is gay and married, and his best friend has two male parents, so he is perhaps a little biased).  While I was talking about California's Proposition 8 and bans on adoption in certain states, he interrrupted me.  With a confused look on his face, he said "I just don't get it.  Who cares if a kid has two dads or two moms?  It's not a big deal."  Out of the mouths of babes...

The Common Cause of Trolls and Orphans

One of the key functions of a property system is to bring owners and users together in a mutually beneficial exchange. Problems arise when a user cannot easily find the property owner ahead of time. In general, there are four potential solutions: (1) we can make the users look harder, by imposing stronger penalties on them for failing to find the property owner before using the property, (2) we can try lower the users’ search costs, by improving information infrastructure such as having a database of property owners, (3) we can convert to a liability rule regime, making search unnecessary, and (4) as I argued in this article, and I think has been generally overlooked in the literature, we can make the property owner look for the user rather than the other way round.

Also in general, each of these solutions has potential downsides. For (1), imposing really strong liability on users creates the potential for holdup by property owners. For (2), the improved infrastructure is costly, has all sorts of potential unanticipated side effects, and the upside reduction in user search costs is often limited (e.g. can we really make a better patent database in any significant way?) For (3) the downside is that liability rule regimes require courts to value the property, when often they cannot do so. For (4), it depends strongly on whether owners can do any better than users in a particular situation.

I really think option (4) is something people should think about more often (i.e. read the article, please!), but here I want to make a different point. The point is that the problem and the potential solutions happen in both patent and copyright law, but nobody seems to have noticed that they are the same problem. In patent law it is known as the “patent troll” problem. In copyright law it is known as the “orphan works” problem. The are the same problem, but I cannot find anybody in the existing literature who makes this link explicitly.

Both patent trolls and orphan works are manifestations of what economists would call a holdup problem. In the patent troll context, a user fails to find the patent holder ahead of time because of high search costs, and the patentee then uses the threat of an injunction against the (now) infringer. In the orphan works context, a user cannot find the copyright holder ahead of time because of high search costs, so the user refrains from a productive use of the copyrighted work. Although one falls into the trap and the other does not, the underlying economic problem is the same.

And the solutions proposed have been largely the same. In both patent and copyright law, the doctrine is currently (1), where we impose ever-more-draconian sanctions on infringers no matter how impossible it was for them to find the owner ahead of time. There are lots of proposals for (2), in getting better copyright and patent notice. There are also lots of proposals for (3), in the form of proposals to issue compulsory licenses. And, as I recently discovered at the IP Scholars conference, Arial Katz proposed the equivalent of (4) in copyright law just months after I proposed it in patent law.

My point here isn't to advocate for my solution as much as it is to note the commonality of the problem and the fact that people don't seem to have regarded them as the same problem. And that suggests to me that, for all the lumping of patent and copyright as "IP," we actually don't talk to each other as often as we should.

Snap!

Feel free to discuss in the comments.

Cf. Wow.

PEGs: Performance Enhancing Gloves

Researchers at Stanford, led by two biologists, are close to having a commercially viable cooling glove, a device designed to cool core body temperature by cooling blood in particular veins in the palm that are devoted to temperature regulation. (H/T: My colleague Tracy Hresko Pearl).

The research team also discovered that the glove carries athletic benefits. Cooling the body also cools muscles. Muscle fatigue, it has been found, is a product of the temperature in the muscle getting too high (something to do with a chemical enzyme); by cooling the muscles, the glove essentially resets the state of muscle fatigue, allowing an athlete to start over. In a six-week period, one member of the team went from doing 180 pull-ups in a session to over 620; they found similar improvements in bench press, running, and cycling. And several teams--including the Raiders, Niners, Man United, and the Stanford football and track teams--have begun using it.

Given this level of improvement, one of the researchers said that the glove was "[e]qual to or substantially better than steroids … and it's not illegal." But should it be? And if not, returning to a question I asked when I first started blogging, why is the glove different from steroids or HGH or EPO or blood doping or other performance enhances that we have outlawed and decried? All use modern technology and modern scientific knowledge (the science behind cooling was not fully understood until 2009) to improve athletic performance. Athletes training with any of these have a technological advantage not available 10, 20, or 50 years ago.

The only apparent difference is the negative health consequences associated with steroids. But is that all there is? And in our new Libertarian Era, should that be enough?

Sexist New Coke?

About a year ago, Bic unveiled Bic for Her, a pen designed for use by women in that it is smaller and, oh yeah, pink and crystal and other pretty colors. And it costs $0.15 more per pen. Commenters on Amazon have been having fun with this one for a couple of days. Not sure why this is bubbling up now, although one publication speculated that the wave of back-to-school shoppers have noticed them.

Cracking Open the Little Boxes in Which We Stash Away Our Unwanted

My colleagues in our Civil Rights Clinic recently won a partial victory in federal court on behalf of Troy Anderson, an inmate in the Colorado State Penitentiary, which is our state supermaximum-security prison (as distinguished from the federal supermax further down the valley).

No credit is due to me for this victory, but I did visit Troy a few times at the earliest stages of the clinic's representation of him, and came to like him immensely. So it is especially gratifying to see his Eighth Amendment rights vindicated in this context - the "context" being the indefinite confinement of far too many people like Troy in tiny boxes for no reason, little reason, or seemingly contradictory reasons.

I am hardly the first person to note that what occurs behind the high walls of our prison system is a vast ecosystem of suffering that goes almost entirely unnoticed by mainstream society, apart from the occasional suggestion that perhaps this is not the most effective way to make ourselves collectively safer.

 We may shudder and/or make inappropriate jokes, but the moral desert that accompanies criminal transgression - and the need to have some way of punishing such acts - allows us to believe that, however horrible prison is assumed to be, on some level maybe that's just how it has to be. Hence our fixation on the wrongfully-convicted, although they certainly deserve whatever efforts are made on their behalf.

My problem is that I remain entirely unconvinced that the way we deal with our rightfully-convicted is anything other than an awful, centuries-long experiment that has from its very inception failed on its own stated terms, and whose time must come. Yet victories like Troy's remain more the exception than the rule. All the more reason to celebrate the ones who make them happen, or labor each day for countless smaller wins.

I have, no doubt, now exposed the irredeemably soft-hearted liberalism hidden beneath my pragmatic exterior. But what better note on which to end my month on this blog? Thanks for your attention to my thoughts. If they have held any interest for you, feel free to follow me on Twitter.

A Reminder to Hiring Committees: Don't Google The Candidates?

Here's some advice to hiring committee members travelling to the AALS conference: While it may be natural to search the internet for additional information about candidates for faculty positions, how you use the information you find may subject your university to legal liability. Here are two cautionary tales involving university hiring to keep in mind.

Cautionary tale number one illustrates that the refusal to hire an employee based on information gleaned from social media can sometimes give rise to a discrimination claim under Title VII.  Two years ago, the University of Kentucky faced a Title VII lawsuit brought by a rejected job applicant who claimed that the University refused to hire him based on information about his religious views found by the hiring committee during an Internet search. Gaskell v. University of Ky., 2010 U.S. Dist. LEXIS 124572 (E.D. Ky. Nov. 23, 2010). Evidence in the case indicated that the chair of the department conducting the search asked the candidate about his religious beliefs, which the chairman had "personally" researched on the internet. In addition, an email from a staff member to hiring committee members during the process noted: "Clearly this man is complex and likely fascinating to talk with, but potentially evangelical."  The case settled for $125,000 after a judge denied cross-motions for summary judgment. 

Cautionary tale number two illustates that discrimination against hiring candidates on the basis of their political beliefs can subject state universities to liability for constitutional torts. This tale involves the University of Iowa's College of Law and the hiring of a legal writing instructor. In Wagner v. Jones, Teresa Wagner alleged that the College of Law refused to hire her because of her conservative political beliefs, and she sued under 42 U.S.C. § 1983. The trial court granted summary judgment to the college, but a panel of Eighth Circuit Court of Appeals reversed.

The Eighth Circuit determined that Wagner had made a sufficient claim of political discrimination to get to a jury. The court applied the following test (drawn from the Supreme Court's decision in Mt. Healthy City Sch. Dist. Bd. of Ed. v. Doyle):

A plaintiff alleging First Amendment retaliation must first make a prima facie showing that (1) she engaged in conduct protected by the First Amendment; (2) she suffered an adverse employment action; and (3) the protected activity was a substantial or motivating factor in theemployer’s decision to take the adverse employment action. If a plaintiff makes this prima facie showing, then “a presumption of retaliation arises and the burden shifts to the defendant to advance a legitimate reason for the employment action.                                 

The court found Wagner had presented evidence from which a jury could conclude that her polticial beliefs were a substantial or motivating factor not to hire her.  Specifically, a deposition in the case indicated that the candidate's conservative views may have been discussed at a faculty meeting on her candidacy; there was also evidence that she was advised to hide the fact she'd been offered a job at Ave Maria during the interview process at the College of Law, and a contemporaneous email from an associate dean expressed concern that Wagner's politics could have played a part in the faculty's decision not to hire her. In addition, the court noted (several times!) that only one of the fifty faculty members of the College was a registered Republican at the time Wagner interviewed. There's more to the decision, of course, including full discussion of why the court rejected the argument that the Dean was entitled to qualified immunity. Regardless, the decision should be a reminder to hiring committee members at state schools not to use information found on the internet or anywhere else to discriminate against potential hires in violation of their First Amendment rights.

 

Tamanaha vs. Chemerinsky

At Balkinization, Brian Tamanaha and Erwin Chemerinsky have a fascinating set of responses to each other regarding Tamanaha's criticisms of UC Irvine Law School. Tamanaha argues that for a school that purported to dedicate itself to public service and used this as a raison d'etre for creating a new school in an already crowded region, Irvine undercut its own mission by seeking to immediately become a "Top 20" school. That made it, he argues, highly expensive, largely because of the hiring of top-notch faculty at competitive prices. As a result, he says, "UCI grads (class of 2015) will be forced by their debt burden to seek corporate law jobs regardless of a desire they might have to work in public service." "Although Irvine professors are fully entitled to earn market value," he adds, "what results is in tension with their advocacy of public service."

Chemerinsky is understandably a little gobsmacked by all the attention focused on Irvine. His most important empirical argument is that faculty salary do not account for all the rise in tuition at Irvine and that hiring much cheaper faculty would not have resulted in a significant reduction in tuition -- and that even a partial reduction would require eliminating the school's elaborate in-house clinical program. His most significant argument in general is that "all of the goals that Professor Tamanaha identifies in his book – maximizing the opportunity for jobs for our students, especially jobs that will allow students to pay back any loans, best serving the profession and the community – are best achieved if we succeed in being a top 20 law school. . . . [H]ad we followed Professor Tamanaha’s advice we could have achieved none of this and would have created a not very good fourth tier law school."

There's already enough black-and-white in this back-and-forth for me not to want to add to it by saying someone is completely right and the other person completely wrong. That said, I am far from persuaded by Chemerinsky's arguments.

Chemerinsky's core argument, one that is all too common in our profession and within our social class, is that it is essential for law schools to do "well" by conventional measures in order to do "good." There is some justice to that: as he writes, in a credential-obsessed environment, "public interest places can be as elitist in their hiring as firms and being a top tier law school is crucial if we are going to get our students public interest jobs." But the question, to me, is 1) whether the cost of doing "well" outweighs its putative benefits toward the goal of having a successful public service-oriented law school; and 2) whether Chemerinsky, as Tamanaha argues, sets up a false dichotomy between either having "a 'top 20' law school or a 'fourth tier' law school." This leaves out the possibility of genuinely innovating: of having a school that attempts to defy those categories altogether and focuses instead rigidly on the single goal of designing a fully public service-oriented law school. The subject matter and prestige of the professors Chemerinsky hired seems to have relatively little to do with that goal. In the way that liberal elites or elites of any kind do, it seems to me to end up accepting as a given, and benefiting from, all the conventional values of success and prestige that are part of the current system and have served its prominent faculty so well, until in the end the goal that was supposed to drive the whole enterprise becomes something closer to the cherry on top.

Nor do the figures that Chemerinsky supplies convince me the school has succeed in its public service goal. Chemerinsky writes:

Professor Tamanaha says that our public service goal “was doomed” by our desire to be a top school. Here he is just wrong. Ninety-eight percent of the students who graduated in May did pro bono work in law school. They averaged well over 100 hours each. We have similar numbers for the current third year class and almost every first year student last year did some pro bono work. We have full scholarships for students interested in public service. Additionally, we have provided a summer grant for every student doing public service work after his or her first or second year of law school. We are providing bridge funding for students who are looking for public interest work after graduation, paying their salary at a public interest organization for several months after the bar exam. We are implementing a generous loan forgiveness program.

These are all short-term measures involving what students do in school, not afterwards. They are not wholly unique: many law schools have pro bono requirements, and my own, much less expensive school has plenty of students logging large numbers of pro bono hours and receiving public interest certificates upon graduation. And what happens after graduation? "Of our initial graduating class from May 2012, 28% secured judicial clerkships, 15 in federal courts around the country and one on a state supreme court. About 40% received offers from major law firms. Some are working at government and public interest jobs. As of this writing, 80% of the Class of 2012 has full time employment." The results are at best unclear here--where did the students go after their clerkships? How many that received offers from major firms took them? Why were 20 percent not fully employed? how many took those "some" government and public interest jobs--but it does not suggest a dramatic success rate at encouraging public service work. A school devoted wholly to that goal might indeed be counted by the tastemakers as a "fourth tier" school--but would it do a better job of sending its students into long-term public interest work?

All this, I must say, reminds me of a case that is about to resurface in public discussion: Grutter, the Michigan Law School case. That case, too, involved a debate over the merits of and relationship between doing "well" versus doing "good." In his dissent, Justice Thomas pointed out that Michigan could have ensured a more racially diverse class by changing or lowering its admission standards, and accused it of seeking "to improve marginally the education it offers without sacrificing too much of its exclusivity and elite status." But Justice O'Connor, for the majority, responded that "[n]arrow tailoring does not require . . . a university to choose between maintaining a reputation for excellence or fulfilling a commitment to provide educational opportunities to members of all racial groups."

The parallels are not exact, but they are there. Diversity, or public service, are treated as an important part of the educational mission, but not one that is so important that it requires sacrificing being viewed as an "elite" school in the eyes of others. Doing "good" is important, but so is doing "well." The result is a system that doesn't challenge the system--one in which Irvine is to be counted as a success as a "public service" school even if many of its graduates end up in large firms or underemployed, just as Michigan is to be counted as a success even if it could be even more racially diverse, in part because both schools still manage to do "well" as elite schools. Perhaps if we let go of some of our endless elitism, there would have been more room for both schools to either accept--or challenge altogether--what it means to be a "lower-tier" school, and for Irvine in particular to present us with a genuinely different model of what legal education means.  

Teaching Kids A Lesson

The recent news about gold medallist Gabby Douglas' bullying by fellow gymnasts at her former gym in Virginia reminded me of a story I read this spring.  A Texas kindergarten teacher decided to "teach a lesson" to a 6-year-old accused of bullying his classmates.  She had the entire class of 24 children line up and hit the kindergartner once or twice.  The teacher was fired, but her 'might makes right' lesson has a lot of supporters.  (For another recent example of inappropriate interventions with a kindergartener, see here for the story of Georgia police handcuffing and charging a 6 year old girl after she had a temper tantrum at her school).

No doubt bullying is a real problem, and needs to be addressed by parents and teachers alike.  But responding to it with further violence, particularly violence led by an authority figure, sends all of the wrong messages.  It ignores everything we know about child development and how various kinds of discipline and punishment impact behavior. 

The support for this teacher's actions also reflects on a micro level much of our approach to crimes committed by juveniles.  Our juvenile and criminal justice systems don't adequately take into account the  developmental realities of childhood and adolescence.  For a thoughtful account of how normal teenaged behavior is often criminalized, particularly among youth of color, see Kristin Henning's new article.  The recent trio of Supreme Court cases recognizing the differences between youth and adults in the 8th Amendment context is a positive step in the right direction, and states are reacting with decisions and legislation to limit punishments for youth.  (See here for a post on the juvenile justice blog about California's recent steps in this regard). 

Nonetheless, much juvenile misbehavior continues to be handled in a counterproductive or punitive way,  diminishing both the effectiveness and legitimacy of our legal system.

 

Summarizing the Entire Class During Week 1

Here's something I do when I teach Administrative Law.  The thing I like most about teaching Ad Law is that it's all interconnected.  I mean, I know that other subjects share this feature to some degree--the law is a seamless web and all that--but for me, Ad Law is more interconnected by far than any other course I teach.  To understand and evaluate the separation of powers stuff that I teach at the beginning of the course, it's kind of necessary to understand the procedural requirements for making policy that come later.  To understand the procedural requirements, it's kind of necessary to understand the judicial review stuff that comes toward the end.  And so on and vice versa.  This is also one of the reasons the class is hard to teach and the subject matter is hard to learn.  For many years I dealt with this by warning the students that this interconnectedness feature was going to be a problem and that they weren't going to fully understand everything until they could put it all together at the very end.  But about five years ago, I tried something different--I started devoting the second class of the semester to a 2 hour summary of the entire course, going through everything we will cover and explaining the main themes and how things are going to fit together.  Of course I don't cover the material in the same amount of detail that I do when we actually get to it in the course.  And I realize (and tell the students this) that they're still going to be confused to some degree despite the overview.  But I've found that this technique, which I now do every year, is very helpful in setting up the course.  Feedback from students on the full-class overview has always been very positive, and not because it spoon feeds them the course and makes everything crystal clear (this is not a danger in Ad Law).  I wonder if anyone has any thoughts on this kind of technique and whether others use something similar in their courses?

The Overruler

Caveat:  This is only a sketch, not even a parable.  The work of understanding the NFIB v. Sebelius moment is barely underway, and takes two forms:  tracing its roots in Roberts's intellectual development, and situating his choice within the n-dimensional space defined by axes drawn in the Thayer / Frankfurter / Bickel / Ely / Posner traditions.  This post does no particular work, except to indicate how uncanny the events of July were.  (Awkward ventriloquism of opinions I happen not to share is purposeful.)

The Overruler became Chief Justice young, with many long-term agendas to pursue.  So many excesses of the Warren era needed addressing, and in principle even a case like Griswold could someday be revisited in the interests of state power.  In the long term, he believed, in many ways state legislatures could readily customize a local legal culture outside the shadow of any penumbras.  They would be accountable to democratic responses.  The dynamism of federalist variation, in which states gradually arrive at consensus in a variety of different configurations, and policy and values square off on a smaller scale, could be unleashed in a number of different doctrinal areas.  Health would return to the democracy with the reinvigoration of federalism.

Opportunities bloomed in every direction:

 curbs on state commandeering; reinstatement of the democratic voice in family decision-making and, potentially, the rights of the voiceless; communities of expression churned by competition and the efficiency of unharnessed speech sponsorship; freedom of contract; color-blind meritocracy.  The ideologies of the Federalist Society could operate above politics to reassert a wide array of lost or faded constitutional values.  Lopez, Morrison, and Printz were ready to be picked up and turned loose.  Citizens United and Parents Involved were good first overrulings.

The Overruler [in this sketchy rendering] actually thought in terms like these, a little stilted to those steeped in politics.  He was not exactly above policy, but believed himself to work at right angles to it.  He was motivated by ideas of constitutional jurisprudence.  

Strange to say:  and no one would have guessed it, since he talked like all his peers:  the Overruler was a true believer in these ideas for their own sake.  Federalism had value of its own, and to him the phrases of states' rights were not stalking horses for Republican politics; quite the reverse.  Electoral politics was, at most, a means for getting down to constitutional business with an eye on the long-term future.  Most of those who had elevated him and those who had worked alongside him would be bewildered by the firewall in his core -- between constitutional results and policy results.  

Brian Tamanaha singled him out as a judge who carried the charade of denying 'legal realism' a bit too far:  "[Judges] occasionally say things that ring false, like Justice Roberts' claim in his Senate confirmation hearing that judging on the Supreme Court is like calling balls and strikes."  The Realism of Judges Past and Present, 57 Clev. St. L. Rev. 77, 78 (2009).  No one, and surely not the justice himself, could take seriously this fundamental distinction between judge and policymaker:  it wasn't realistic.  And sure enough, the ideology of the Roberts Court tracked the Republican party line for many years. 

This sheep wore wolf's clothing, and had a taste for red meat.  No one has figured him out.

No analyst anticipated how deeply the Chief Justice held his beliefs about federalism.  And no one has yet understood how firmly they were rooted in his identity as a jurist:  a judge, not a policymaker.  The umpire, wearing no team's colors.

For the Overruler as for everyone else, the Obamacare case was a golden opportunity.  Overrule Wickard.  Overrule South Dakota v. Dole.  Overrule aspects of Reno v. Condon, and different aspects of Heart of Atlanta Motel.  Overrule Hodel v. Indiana.  Overrule Kahriger.  Make inroads against the depredations of Jones & Laughlin.  None of these overrulings needed to be made explicit, of course.  And none of this would be about turning back the clock on the national economy, nor would it be about reactivating racism and sexism.  (State legislatures would have to be responsive to a modern electorate.)  

In sum, to the Overruler and his entire circle of like-minded peers, NFIB v. Sebelius was a target-rich environment for cases that needed overruling.  And the Federalist Society agenda that drives him is about overruling wrongly decided cases.

And more:  To everyone except the Overruler, of course -- because we are all legal realists now -- to everyone but him, NFIB v. Sebelius also meant overruling the Obamacare Congress.  Everyone, except the Chief Justice, considered this the bottom-line issue.

For everyone except the Chief Justice, severability was a pointless exercise, a temptation of false modesty.  National health-care policy was at stake.  The Overruler was the poster child of the Federalist Society culture, and this was the biggest prize it would claim in many decades.  Once Justice Kennedy came on board, there was a once-in-a-lifetime opportunity to overrule a misguided vision of the heavy-handed government's role, that is, I mean, of the Constitution.  Or the constitution.  In any case, a chance to correct a huge mistake alongside all those other mistakes.  A chance in an election year to move the balance back toward solutions that don't emanate from inside the Beltway.  Overrule the Patient Protection and Affordable Care Act.  Over-rule it:  the ultimate opportunity.  Don't go wobbly.  Over-rule.

And the Chief Justice went along with the culture that had brought him into place to do this job.  He pursued the overruling agenda in all its aspects, including the legislative, -- until, several weeks into the process of writing the opinion overruling the Obama administration's signature legislative accomplishment, he hung fire.

The story wraps up quickly.  In the decision, most of the overrulings the Overruler and his fellow-travelers cared about got done.  But there was something else to it, an act of enormous counter-cultural courage that, to the Overruler, came first.  He saw that if he omitted it, his entire project would take on Faustian undertones.

The Chief Justice saw that he had thirty years on the bench to erode the deciding principles of many decades of erroneous Supreme Court rulings, going back to the thirties.     

And he saw that the first case that needed overruling, in order to advance this agenda properly, did not appear in any of the briefs, or any of the opinions.  The principles that had decided it were hidden very deeply, out of sight, at the heart of the case (and in what would become the dissent).  

Overruling it meant sparing Kahriger; but the deciding principles of this more recent case needed overruling more urgently.  So Justice Roberts overruled it:  Bush v. Gore.

Discrimination Against Breastfeeding Men?

An intriguing story on Yahoo concerns Trevor MacDonald, a Canadian transgender dad who received the assistance of international breastfeeding support organization La Leche League to breastfeed his son but then found out that he could not "pay it forward" by serving as a coach for one of LLL's local support groups because such positions were only open to women (see here and here).  MacDonald received LLL's help when he was learning to feed his newborn son through an SNS (Supplemental Nursing System) feeder using his own milk supplemented with lactation donations, which was challenging because he had little breast tissue. He received assistance although LLL's stated purpose is to "help all mothers" with breastfeeding; LLL, however, is sticking firmly by its policies that only women be "leaders" who support others in local chapters of the organization.

There are good arguments on both sides. In the Canadian media, where this has been a hot topic, some women opine that LLL's guidelines are discriminatory because breastfeeding is no longer a woman's or mother's domain, while others support LLL's guidelines to protect women who might feel self-conscious about exposing themselves before a male. (See here for some fascinating commentary).  This story offers another wonderful example of how traditional categories are exploding before our eyes.

Apparently 38% of the transgender community are parents, and so increasing numbers of fathers will find themselves in MacDonald's shoes in the future. The clearest solution seems to be to form support groups for fathers like MacDonald who want to breastfeed. It seems very likely that this group would have very unique concerns, and that members could form important connections in other ways as well. What is wonderfully refreshing is that this has not been a nasty dispute; both MacDonald and LLL have traded compliments and been very civil to each other.

Issues like this always strike me as being very complicated and minefields for traditionalists.  The mainstream assumption most definitely is still that women give birth and breastfeed and men don't. But the transgender community is challenging and expanding these boundaries, with the constructions of family and parenthood, mother and father changing dramatically as a result. Far from being rigid, these formerly inflexible rules and roles are increasingly fluid. What I think is counterproductive is actually trying to continue to argue over alleged discrimination in binary terms of "male" and "female"--such as debating whether MacDonald is actually a "female" who has retained and utilized female reproductive organs to give birth to a son or a "male" who is seeking to do something that men don't do. Gender is no longer an either/or category, and this story illustrates that beautifully.

Why do we have patentee-written claims?

One of the oddest features of the patent system is that it allows patentees to define their own monopoly rights by writing the “claim” of the patent. To be sure, the PTO will scrutinize the claim to see if it covers a patentable invention, but the PTO is overworked and there is no possible way it can pick up every tiny drafting trick, so allowing patentees drafting control gives them the ability to claim more than they should. If the goal of the patent system was to get the most unbiased assessment of the proper reward, then we should give this drafting control to a less biased party like the PTO or a court. And the intuition that patentee-written claims will fail to describe the real invention ties in with a lot of criticism in the academy that claim construction is a meaningless exercise that focuses on lawyer-created self-serving words over the patentee’s real invention.

My summer project has been to explain why patentee-written claims are actually a pretty efficient mechanism. Two predicate points are these: (1) the correct scope of a patent (a.k.a. the real invention) is not the patentee's embodiment (e.g. the Wright brothers’ crummy wooden airplane that flew for 59 seconds at Kitty Hawk), but a broader range of coverage (e.g. all airplanes); (2) the central premise of having a patent system at all is that the government (including a court) has no clue what that “range of coverage” should be, in terms of balancing the incentive benefits of broader coverage against the monopoly costs. The alternative to relying on patentee-written claims to define patent scope is not some Nirvana where courts magically got the right answer, but utter chaos where they took blind stabs in the dark on that question. Patentee-written claims solve this information problem by getting patentees to state an initial position, which courts and the PTO can then scrutinize, and it is easier to scrutinize someone else’s position than to state your own in the first instance. The result is that patentees will still be able to over-claim somewhat (the scrutiny isn’t perfect), but it is better than the stab-in-the-dark alternative.

Law School Hiring, 2012-2013, Thread One

NB: Bounced to the front every ten days or so.

We invite those on the market 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 or the lateral market.  

Four miscellaneous things:

1. If you don't want your contact information displayed, enter [email protected] 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 last four 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 slawsky *at* law *dot* uci *dot* edu, and I will get you set up.

We now have an aggregator, and we will thus continue our spreadsheet approach: All information should come in through the comments. Our aggregator will use a spreadsheet to aggregate the information.  Only the aggregator will be able to edit the spreadsheet, but when the aggregator edits the spreadsheet, those changes will be reflected in the embedded, downloadable version below.

Here is the spreadsheet, which is downloadable.

 

Please be patient with the aggregator, who will try to update this spreadsheet once a day, but may have a job, and perhaps may even be on the market.

Good luck!

Update: Here is a link to the last page of comments.

Hiring Committees 2012-2013

Note: Bumped to the top, 8/25/12; we will continue to bump this post periodically.

Aaaand, we're off! Please share in the comments the following information related to the 2012-2013 law school faculty hiring season:

(a) your school;

(b) the chair of your hiring committee (please note if you have different chairs for entry level and lateral candidates--we hope that this information will be useful for both entry level and lateral candidates);

(c) other members of your hiring committee (again, please note if there is a distinction between entry level and lateral committees); and

(d) any particular subject areas in which your school is looking to hire. 

I will gather this information in a downloadable, sortable spreadsheet. (Click on that link to access the spreadsheet and download it; you can also scroll through the embedded version below.)

You can't make changes to the spreadsheet directly, so please post the information in the comments, or email me directly, slawsky *at* law *dot* uci *dot* edu.

Additionally, last year someone very kindly submitted a spreadsheet of addresses of a subset of law schools, if folks want to create their own mail-merge. You can download it here. (If anyone wants to update or expand it and send me a new version, that would be awesome.)

Update, 7/15/12: At the suggestion of a candidate, I will also collect the number of available faculty positions at each school, if people have this information and want to share it. I will add the information in the "Other" column for the time being, but if I get the information from enough schools I'll start a separate column.

More on mandatory tobacco warnings

A divided panel of the D.C. Circuit on Friday struck down FDA regulations requiring graphic warnings on cigarette packages, affirming, through different legal analysis, the district court and parting company with the Sixth Circuit, which upheld the graphic requirements. This case almost certainly will be in SCOTUS in March or April--we have a circuit split, one (divided) decision striking down a provision of federal law, and fundamental disputes about standard of scrutiny and the government's power to inform and influence the public through compelled commercial speech. In addition, reading the opinions shows how these compelled-speech concerns tie back to both mandatory ultra-sound laws and regulations of crisis pregnancy centers, so this case has much broader effect.

A pronunciation guide to the Supreme Court's caselaw

Here, thanks to Gene Fidell and several others (and The Green Bag), is a great resource:  A "Pronouncing Dictionary of the Supreme Court of the United States."  (I've been pronouncing "Kiryas Joel" wrong for years, it appears.  Dang.)  No more stumbling in class over Compañía General de Tabacos de Filipinas v. Collector of Internal Revenue or Compagnie Internationale de Produits Alimentaires v. Miller!

A Systems Theory of Religion

Courtesy of my friends at St. John's Center for Law and Religion comes news of the publication in English of Niklas Luhmann's posthumous book, A Systems Theory of Religion. It looks very interesting. Here's a description:

A Systems Theory of Religion, still unfinished at Niklas Luhmann's death in 1998, was first published in German two years later thanks to the editorial work of André Kieserling. One of Luhmann's most important projects, it exemplifies his later work while redefining the subject matter of the sociology of religion. Religion, for Luhmann, is one of the many functionally differentiated social systems that make up modern society. All such subsystems consist entirely of communications and all are "autopoietic," which is to say, self-organizing and self-generating. Here, Luhmann explains how religion provides a code for coping with the complexity, opacity, and uncontrollability of our world. Religion functions to make definite the indefinite, to reconcile the immanent and the transcendent.

Synthesizing approaches as disparate as the philosophy of language, historical linguistics, deconstruction, and formal systems theory/cybernetics, A Systems Theory of Religiontakes on important topics that range from religion's meaning and evolution to secularization, turning decades of sociological assumptions on their head. It provides us with a fresh vocabulary and a fresh philosophical and sociological approach to one of society's most fundamental phenomena.

The book's scheduled publication date is in October. Aside from making a splendid Columbus Day gift, it may also provide a nice prelude or companion piece for readers--and I trust there will be many--of the book First Amendment Institutions, which should be published the following month.  

 

Law Erotica Studied

Larry Cunningham of St. John's Law School has posted an interesting study of the effect on law school rankings of law school marketing materials, aka "law porn," although I prefer to call it "law erotica" given the harsh reactions to the prior term. He is careful to note the difficulties of showing any causation, especially because his results may just show that schools with tons of money, which all things being equal may do well in the rankings, also have tons of money to spend on marketing materials. It's still interesting to read. Here's the abstract:

In the last few years, law schools have inundated each other with glossy brochures, postcards, magazines, and other marketing materials in an attempt to influence their “peer assessment scores” in the annual U.S. News and World Report rankings. This article describes a study that attempted to determine whether law schools’ print marketing efforts to one another have an impact on their U.S. News rankings data. From June to December 2011, the author’s school collected and coded all of the materials it had received from schools, including materials that it itself had sent to others. In total, 427 unique pieces of marketing were received from 125 of the 191 schools that were the subjects of this study. They varied considerably in size, format, content, and audience. A number of statistical tests were conducted to compare a school’s marketing efforts with its overall rank, overall score, peer assessment score, and tier, along with any change in those variables from the 2011 rankings to the 2012 ones. The results showed that there was some correlation between a school’s marketing efforts and its U.S. News data. Schools that sent marketing materials had, on average, higher tier placement and peer assessment scores; however, there was not a significant change in year-to-year rankings variables. The number of pieces a school sent during the study period was, for the most part, not significant. On the other hand, the number of pages in its materials was correlated with a number of U.S. News variables. Schools that sent longer, magazine-type publications geared towards a specific audience had higher U.S. News scores and also showed a slight improvement in their overall score between the two years of rankings data in this study. However, it is possible that a co-variate, such as institutional financial resources, may be causing the results. Additional study is needed to determine whether marketing materials have a longer-term effect on U.S. News ranking variables that cannot be captured in a one year study.

And from the paper:

[T]he results suggest that law schools are not seeing much in the way of impact from their marketing efforts towards one another. Most of the observed correlations were in a school’s current rank, tier, overall score, or peer assessment score—very few aspects of a school’s marketing efforts impacted, to any significant degree, a change in U.S. News data from year to year. The one exception appears to be magazines. Schools that send them have higher U.S. News results than those that do not. However, they come at a significant expense and, from year-to-year, may yield only a small increase in a school’s overall score, if there is a cause-and-effect relationship at all.

As Cunningham notes in the paper, I have written before in (partial) defense of some marketing materials, specifically 1) those (like the annual booklet produced by UVa) that actually tell us something useful about individual professors and their scholarship and 2) a few of the more informative magazines, although I've also opined that it's silly for some schools (Marquette and SMU stand out) to send widely magazines that are really oriented toward alumni. My own idiosyncratic tastes, however, hardly show that the benefits of distributing these materials justify the cost. I should also say that although it's less expensive to send out emails rather than printed materials, I ignore those emails even more thoroughly than the print materials, so even the marginal cost of distributing those materials by email may not be worth it.  

The Trespass Fallacy in Patent Law

My colleague Adam Mossoff has a paper titled The Trespass Fallacy in Patent Law that is getting quite a bit of attention. Although I serve as one of the main foils for his argument, I actually quite like the paper’s main conceptual point. I do have my disagreements with it as well.

 Mossoff’s conceptual point is that people in patent law—both judges and scholars—tend to compare a patent’s boundaries to the land fences of real property. This is, however, a category mistake. “The patent” is a legal right that pertains to an invention. The land of real property is not itself the legal right, the legal right is the estate to land. Thus, a proper comparison is between the boundaries of inventions and the boundaries of land, and, separately, the boundaries of patents and the boundaries of real property estates. A pragmatist might quibble this is merely a debate about theory, but I think there is intrinsic value in careful language and conceptual clarity in framing the comparison. And Mossoff’s paper does an excellent job making the conceptual point clear.

That said, I think Mossoff makes a conceptual error of his own.

Mossoff makes a follow-on argument that people who criticize the existing patent system by analogy to real property are committing the Nirvana fallacy. The Nirvana fallacy, at least as I understand it, is to compare an imperfect existing arrangement (such as the existing patent system) to a hypothetical idealized system. But the people comparing the patent system to real property—and I count myself among them—are not comparing it to an idealized fictional system, whether conceptualized as land boundaries or as estate boundaries. We are saying that, based on our everyday experiences, the real property system seems to work reasonably well because we don’t feel too uncertain about our real property rights and don’t get into too many disputes with our neighbors. This is admittedly a loose intuition, but it is not an idealization in the sense of using a fictional baseline. It is the same as saying that the patent system seems to work reasonably well because we see a lot of new technology in our everyday experience.

And that latter loose intuition is crucial to even having a patent system at all. There is no rigorous study (at least none that I am aware of) that demonstrates to social science 95%-confidence standards the proposition that the patent system promotes innovation on net, such as to justify continuing to fund the PTO. If relying on loose empirical intuition based on everyday experience is idealizing a legal system and committing the Nirvana fallacy, then the entire existence of the current patent system depends on the Nirvana fallacy.

Conference Announcement: 2012 Mountain West Regional Clinical Conference

The dates of the conference are October 5 and 6, 2012, and it is being hosted by the University of New Mexico School of Law, in Albuquerque. The theme of the conference is "Connecting and Collaborating," and you can find more information, the conference program, and a link for registration here. Clinic administrators are also invited to attend.

The conference, which is Friday-Saturday, concludes in time for the kickoff of this year's Albuquerque International Balloon Fiesta, "The World's Premier Balloon Event." I have never attended this event myself, but I hear great things about it (US News ranks it the #2 best thing to do in Albuquerque!). 

We are excited to revive this regional clinical conference, and invite anyone interested to register and plan to stay for the large inflatable objects.

Playing the Prenatal Blame Game

A new study has come out linking paternal age to a child's risk of autism and schizophrenia.  It appears to have wide scientific support and is significant both because it explains at least part of the increase in autism diagnoses in recent years (and before people lambast me on this very controversial subject, I know there are other possible factors contributing to this increase) and because it is the first time major disorders have been linked to paternal, rather than maternal, age.

The fact that one of the disorders is autism is particularly interesting, because in the 1950's-1970's "refrigerator mothers" were blamed for causing autism with their emotional fridgidity.  (There is a great PBS documentary on this issue).  And of course, women continue to be vilified for a variety of prenatal behaviors which may impact a child's health, whether it is having children when they are older or eating sushi while pregnant.  This practice is carried to an extreme in the current criminal prosecutions of women for using drugs or attempting suicide while they are pregnant.  A recent article outlined some of these cases, and at least one state, Colorado, has a "personhood" amendment on the ballot this fall, which would define personhood as beginning at conception, thereby increasing and supporting such prosecutions.  (However, at least one court, in Oklahoma, has found a similar personhood amendment unconstitutional.)

The finding that paternal age impacts fetal development should not be so surprising--after all we've come a long way from Tudor times, when women were held wholly responsible for children's sex.  And the recent findings likely will, and should, impact the reproductive decisions of some men.  Unfortunately online comments reveal, however, that the blame game has already started.   It's understandable that some women feel relief that they're not alone being held accountable for every aspect of a child's development.  But it would be best if this finding led to more productive conversations between men and women about how best to reduce risk to our children without sacrificing the realities of our own professional and personal lives.

Presidential succession on TV

Presidential succession is a treasure trove for television plots. The West Wing featured six different storylines involving selection and succession of the president or vice president (some for drama, some necessitated by the untimely death of actor John Spencer).

This summer, we have been watching Political Animals, a cable mini-series depicting a thinly veiled Hillary Clinton (played wonderfully by Sigourney Weaver), divorced from a thinly veiled Bill Clinton, and working as Secretary of State for the man who beat her in the primary (who is not remotely reflective of Barack Obama). In Sunday's season finale, the Twenty-fifth Amendment returned as guest star.

Spoilers after the jump.

Air Force One crashes into the ocean off the coast of France and a rescue/recovery mission is under way; some bodies have been recovered, but not the President. The Vice President (who is a total sleaze and the political villain of the show) summons the Chief Justice to the Oval Office to administer the oath of office, which would make him the President. When told of this plan the Secretary of State races to find all the cabinet members and get them to sign a letter under § 4 of the Amendment, declaring the president unable to discharge his duties. The VP and the Secretary of State then have a showdown conversation in the Oval Office, in which she stresses the constitutional crisis that would arise if it turns out the president survived the plane crash and there were two presidents. The VP backs down and signs the letter (§ 4 requires the VP and a majority of the cabinet); the Secretary congratulates him on now being the acting president (but not the President) and the VP/AP shoots her an angry glare.

It was certainly done in a melodramatic fashion that was not poltically realistic. In reality, the Chief never would have even shown up at the White House or been prepared to administer the oath absent confirmation that the President was dead---he would not just have done it because the VP told him to. Or, if he were in the room, he certainly would have had something to say about whether the oath was constitutionally appropriate, rather than just standing there silently in the background (out of focus) as the two political leaders argue. Also, in reality, a VP would be highly circumspect before taking the oath (as Lyndon Johnson apparently was in 1963, albeit pre-Twenty-Fifth Amendment) and would want both certainty as to the president's condition and the public's mood; of course, the VP in this show is such a bad guy that his conduct is not surprising. Finally, since the possibility remained that the crash was  terror-related, every one of these public officals would have been sitting in the secret bunker, not in the White House or in Foggy Bottom.

Still, while the politics were not quite right (this is, after all, more of a soap than a political drama), they did get the Constitution right.

 

Textualism and Patent Law

Historically speaking, courts have interpreted the patent statute rather loosely. For example, although 35 USC 101 says "any new and useful process, machine, manufacture, or composition of matter" is patentable, courts created an exception for naturally occuring substances, deeming them to be categorically unpatentable. (To readers who object that naturally occuring substances are not new and therefore are not patentable for this seperate reason, this is not quite correct -- the traditional test for novelty looks only within the United States. A Martian rock is not patentable only by virtue of the naturally-occuring-substance doctrine).

Recently, the Supreme Court in Bilski v. Kappos seemed to say that the era of loose interpretation is over. Bilski dealt with whether methods of doing business were patentable. The Federal Circuit had held that a patentable method had to involve a machine or transform matter in some way. The Supreme Court rejected this test (ostensibly) because it had no textual support in the statute--the statute simply says that "any" process is patentable. The seeming message is that the category of judicially created exceptions to patentability is now closed. Previously created exceptions (such as the naturally occuring substance exception) are tolerated, if at all, only on the basis of stare decisis. From now on, we are going to take the statutory text seriously, and "any" means "any."

So lets imagine we take the patent statute seriously. Section 101 says that any process is patentable, provided the patent applicant meets the other conditions of the statute. Section 112 requires a patent applicant to describe his invention "in such full, clear, concise, and exact terms as to enable any person skilled in the art . . . to make and use the same." Since no one can describe how to "make" a process, it follows that all processes--including but not limited to business methods--are categorically uanble to meet section 112. If the Court is really serious about applying the patent statute according to its text, then it should have invalidated all method patents. Of course, we all know that it is not about to do so. Which just shows that they are not really serious about textualism in patent law but are simply invoking it as cover.

Let me clarify one thing. Academic devotees of textualism will undoubtedly say that I have described a cartoonist caricture of textualism that is stick-in-the-mud literalist. But I am not the one invoking this cartoonish caricture. The Court is. If we are not going to be stick-in-the-mud literalists, then there are perfectly plausible textual arguments for excluding business methods from patentability. For example, since the statute includes the word "process" next to the words "machine," "manufacture," and "composition of matter," the canon of ejusdem generis can reasonably support an argument that "process" does not literally refer to any process but only processes that involve manipulation of tangible objects like machines, manufactured goods, and compositions of matter. The Court did not address any of that; it simply relies on the literal text. My point is to then take this logic and apply it to other sections of the statute.

What's on our minds

Law-review editors' return to student status, with the beginning of the 3L year, means a period of refreshed appreciation.  We appreciate the time and space to think over ideas, both as they are expressed in the classroom and as they appear in our inboxes, in batches of articles.  We appreciate the concerns of corporations, who were for many of us on a few occasions over the summer simply called "the client."  And we appreciate the frameworks of legal thinking, which we understand anew can matter a good deal in the conduct of actual work with actual people and money involved.

Most of all, however, we are appreciating freshly the fact that all our conceptual learning in school is one side of a very large coin.  (I choose the metaphor purposely, because money is very much on our minds too -- especially since so many of our classmates, and many of us, do not know what the market for entry-level legal jobs will offer us.)

The other side of the coin of law?  FACTS.  And all around us this election season matters of fact are predominating.  From Niall Ferguson's flailing self-destruction and well-deserved humiliation, to the remarkable scientific ignorance of Todd Akin, to the many slippery campaign assertions about the future of Medicare, we are being reminded that integrity and commitment to facts are by no means universally shared values.

Our summers were often spent double-checking things, being scrupulous with facts, and perhaps even reviewing boxes of documents to identify the facts that would faithfully tell just the right story.  We know how much work is involved in getting things exactly right.  

At the start of this school year, my heightened attention to FACT as the medium of legal work heightens two appreciations in particular.

The first, again, is appreciation for the jury.  We are inclined, in textbook mode, to forget that the jury is there ready to weigh and decide among competing factual concerns.  But as 3L year begins, I find myself often again reminded that there is a finder of fact, and that the casebook only records determinations made without the benefit of that entity's efforts.  For example, in my exciting White Collar Crime class just underway, we began with the Hilton Hotels case, in which an employee violated explicit instructions and got his hotel involved in an antitrust violation.  Should the hotel be criminally liable?  For me, after my summer, the answer is clearly It Depends.  The jury should decide whether those instructions were given with a wink and a nudge, or whether he was truly going rogue despite the hotel's good-faith effort to follow the law.  But that's not how the law in this area works, as a matter of doctrine:  the jury instruction seemed to create strict liability, and in the federal courts that seems to be where the matter stands.  I reassure myself (if that's the right word) with the fact that if the company had done all it could, surely the jury would nullify the instruction.

The second thing we appreciate freshly, as we read article submissions, is hard empirical work.  Careful methods of handling fact, guided by legal judgment, impress us more than anything else.  I wonder if professors are aware that we admire this as much as we do.  I am noticing that many of the articles with good factual stories to tell bury them in Sections IV and V, and fail to emphasize them in the cover letters.  

So here is the advice of the moment:  if you have done fresh empirical research, we are your prime audience.  Law-review editors are strongly appreciating, at this time of year, how hard it is to marshal and master raw facts into a coherent story.  We believe in the persuasiveness of organized and methodologically sound approaches to such data.  Tell us, up front, when you have done something arduous like this:  we know how important it is.  

Of course, it doesn't hurt if you are breaking radically new conceptual ground and shifting the paradigm of all legal thinking in a certain area.  But come on:  EVERYONE is doing that these days.  That's easy.  

Give us the good stuff:  clear mastery of a data set, lucid storytelling, and clean, suggestive facts from the outer world.  We know it's out there.  And we are eager for the fruits of your hard work harvesting it, empirically.

I am enjoying the start of twenty-seventh grade (my last one!) this week; I hope the beginning of classes is treating all of you well also.

Fundraising for an Execution

There is a very interesting video posted on CNN today (along with another story here) about Tina Curl, whose 9-year-old daughter was raped and murdered in 1990. Donald Moeller, convicted in 1997 of this atrocious crime, is due to be executed between Oct. 28 and Nov. 3rd. It means everything to her to be able to attend the execution in person. The only problem is getting there. Curl can't fly because of a heart condition, and so she has to drive, but she estimates that the cost of the trip from New York to South Dakota will be between $3,000 to $4,000, and her husband was recently laid off. She has attempted to fundraise, but has not had much success given the rather grim subject of the fundraising efforts. Curl says she wants to see Moeller die because he watched as her daughter took her final breaths, and that she knows it is not going to bring her daughter back. Media coverage terms the execution "the only hope she has for catharsis," and that she wishes that Moeller would be able to see her there in his final moments.  Yet, an execution witnessing fundraiser seems incongruous on several levels.  We usually see fundraisers as associated with trying to save lives, human or animal—not associated with efforts that will take a life. 

Curl’s remarks caught my attention, however, because she does not speak of of “closure” in the stereotypical sense of absolute finality—the kind that mass media commonly links to “closure” but that murder victims’ family members almost unanimously assert does not exist.  Executions after all do not resurrect loved ones.  But from her remarks, it seems that Curl is after something different here—a procedural justice, a tying-off of loose ends, a confrontational satisfaction.  She wants to see Moeller’s end.  This is different from expecting the execution to provide a “closure” that is more subtle—allowing her to shut a door to a chapter in her life.  Curl’s expectations for Moeller’s execution seem much more realistic—she wants to be there for the final proceeding, and doesn’t seem to expect that the execution will have a “sunshine and rainbows” effect. 

While I certainly regret the need for her fundraising efforts, I feel very sad that she is in the position in which she currently finds herself, since it is not of her own making.  While capital punishment, lethal injection, and executions are certainly controversial, I believe that, so long as they occur, victims’ family members should be permitted to witness.  Based on interviews with victim advocates, I know that there are some jurisdictions (either county or state) that do assist murder victims’ family members with travel expenses, and I would be surprised if certain pro-death penalty organizations do not step forward and help Curl achieve her objective.  (As an aside, the amount of $3,000-$4,000 seems a bit high for travel expenses, including gas and hotel accommodations, for a week-long trip from New York to South Dakota, but maybe there are other costs I don’t know about).    But while the fundraising subject matter doesn't have the appeal of, say, the fundraising efforts of our local animal shelter, it is true that this all started with a little girl’s rape and murder, and this is how the parents want to set the record straight.  The saddest thing of all, of course, is that this family has been tied to the murderer through criminal justice proceedings for 22 years, when legal proceedings could have been over long ago in a system that offered life without the possibility of parole.

Bene Qui Latuit, Bene Vixit

According to this story, a poll has been conducted which shows that nearly two thirds of the American public cannot name a single Supreme Court justice.  Apparently the Chief Justice was the most commonly known, getting a whopping 20% name recognition.  The identity of the least well-known Justice was, appropriately enough, kept anonymous.  That person, whomever he or she may be, is truly blessed.

UPDATE: Following a link to the poll brings one the news that Justice Breyer was known by only 3% of the respondents.  That must give him extra reason to oppose televising the Court's proceedings.  Sometimes inactive liberty really is for the best.

What's in a Name?

In developing this semester's syllabus for my course, I found myself debating the right name.  Here at BLS, we call the 3-credit course which I teach, "The Legal Profession" and the 2-credit course "Professional Responsibility."  And yet I find myself wanting to call the course ethics, as that is often what we are really talking about.  (And it is, incidentally, how I explain the course, and my related scholarship, to non-law school types when they ask me what I do). 

My course does have a subtitle: "The Law and Ethics of Lawyering."  Yet I wonder when the word ethics was relegated to a subtitle of professional responsibility or the legal profession, or erased from the course name all together (assuming it was ever there).  A completely non-statistically significant review of casebooks reveals some with no mention of ethics or morality in the title: "Cases and Materials on the Law Governing Lawyers," "Regulation of Lawyers," "Professional Responsibility," "Lawyers and the Legal Profession;" and a few with ethics or morality in the title: "Lawyers and Fundamental Moral Responsibility," "Legal Ethics in the Practice of Law," and, most directly, "Legal Ethics."  I use one of the former casebooks, and find that it still contains plenty of discussion of the moral/ethical issues which lawyers face. 

And yet I wonder if the naming sends a signal to students.  The definition of ethics allows for its use for either individuals or groups--Webster's definnition states in part: "rules of practice in respect to a single class of human actions; as, political or social ethics; medical ethics."   Nonetheless, lawyers are often uncomfortable incorporating morals into their work, and perhaps even their education.  Russ Pearce at Fordham has made a nice film about this issue, which sparked a good class discussion yesterday.

The Beginning of the School Year Makes the Abstract Concrete

Previously I had been musing about the value of government agencies and private attorneys intervening in contractual relationships in order to help marginalized populations realize their rights, as workers or otherwise. Now that our fall semester has started, my attention turns to so intervening - or at least guiding law students through doing so - on behalf of the (mostly indigent) clients of our Civil Litigation Clinic, one of six clinics in DU's Student Law Office.

The beginning of the school year brings forth many considerations, from the irrelevant, such as whether I should accept the friend requests of prior semesters' students, to the profound. It is when we hang out our metaphorical "open for business" sign to the relevant communities in the Denver metro area, and we are reminded once again that we are dwarfed by the need that exists.

Probably it was the imminence of this semi-annual experience that was driving my interest in the topic of workers at the frontiers of rights. Now I must go and see about guiding some of those workers across said frontier.

Postcards from the Front

I've been reading Paul Fussell's The Great War and Modern Memory.  (Fussell died earlier this year.  The Great War is the book that made his academic reputation.  Here's Slate on it and Fussell).

It's one of the most amazingly original academic books I've read--a terrific blend of literary criticism, cultural history, and military history that traces how World War I transformed the way we think, evidenced through the evolution of language and letters from 1914 to the 1920s.

It also has some darkly telling vignettes, like this one, from a section on the World War I-era growth of impersonal "form rhetoric":

If a man was too tired to transcribe the cliches of the conventional phlegmatic letter, he could always turn to the famous Field Service Post Card. 

The Card read:

NOTHING is to be written on this side except the date and signature of the sender.  Sentences not required may be erased.  If anything else is added the post card will be destroyed.

--------------------

I am quite well

I have been admitted into hospital

    {sick / wounded} and {am going on well / and hope to be discharged soon}

I am being sent down to the base

. . .

I have received no letter from you {lately / for a long time}

{Signature}

The Field Service Post Card was most commonly . . . sent--with everything crossed out except "I am quite well"--immediately after a battle which relatives might suspect their soldiers had been in.  . . . 

The implicit optimisim of the post card is worth noting--the way it offers no provision for transmitting news like "I have lost my leg" or "I have been admitted into hospital wounded and do not expect to recover" . . . .  One paid for the convenience of using the post card by adopting its cheerful view of things, by pretending to be in a world where belated mail and a rapidly healing wound are the worst that can happen, and where there is only one thinkable direction one can go--to the rear.

 

Procedural Siloing

So, in the wake of finishing my latest article, I’ve been thinking about doctrinal silos—areas where principles have evolved in ways that don’t conform to mainstream understandings developed elsewhere. 

Siloing is a particular problem in the constitutional law of civil procedure.  It’s one that is explored in this great article by Allan Erbsen, which focuses on personal jurisdiction, one of the most bizarre  doctrinal silos out there.  But there are plenty of other areas in the procedural field where siloing is a serious problem.   

Proceduralists, I think, will readily admit this is true.  But what causes it?    It is not an attractive phenomenon--no one likes cross-doctrinal inconsistency.  But it is depressingly persistent enough in the procedural field to make me think there are systemic reasons for it. 

Professor Erbsen, who focused on personal jurisdiction, suggested a curricular explanation.    As an accident of first-year curricular development, personal jurisdiction is a Civil Pro topic.   As a result, personal jurisdiction ends up in Civ Pro treatises and casebooks, not in Con Law treatises and casebooks.  The result… there is no cross-talk between the different fields.  Insights that refine our understanding of federalism or  separation of powers surge forward in the field of Con Law.  But sheltered in the Civ Pro cove, personal jurisdiction bobs along unaffected.

This is totally plausible.  But, it’s not the only possible explanation.  Below the break are some others I’ve been thinking about.

 Procedure as a Reformist Beachhead.    Because procedure is often perceived (sometimes unfairly!) by non-proceduralists as small-ball, it may be viewed as a low-resistance beachhead for factions of the Court seeking to shift the direction of doctrine in other, bigger stakes areas.  The result is that procedure ends up being a kind of conceptual Island of Misfit Toys:  It  gets saddled with lots of early, strained, experimental, half-baked opinions steathily attempting doctrinal revolutions that end up playing out in other different fields. 

The classic example is Pennoyer v. Neff.  As matter of first impression, it is not obvious why due process  became the hook for defining the constitutional scope of states’ jurisdiction.  It ended up as such because, in Pennoyer, Justice Field, smarting from his defeat in the Slaughter-House Cases, was using the driest of dry personal jurisdiction cases to smuggle in his controversial theory of substantive due process.  Once that beachhead was seized, the theory could be extended in other, far-afield cases down the road.    The result?  Personal jurisdiction doctrine gets saddled with Justice Field’s mystifying blend of due process language and territoriality concerns, rather than developing, as it should have, as an outgrowth of federalism and state sovereignty principles.

 Procedure as Bottom-Up Law.  Procedure also isn’t subject to effective Supreme Court control.   This is a function of limits on interlocutory appeals, plus the sheer mind-numbing volume of many types of interlocutory procedural rulings.  There are just too many of them and too few opportunities for appellate review.  As a result, SCOTUS can’t  effectively police the development of legal principles that intersect with those rulings.   

The upshot …. Procedural law is bottom-up law.  It tends to develop at the trial court level, not the Supreme Court level.    Twiqbal is an example.  The pleading principles announced in Twiqbal had already gelled over the 1990s and early aughts in federal trial courts.  As I note here (as have others elsewhere), SCOTUS didn’t create that shift.  It ratified it after the fact.    

One result of this kind of drift:  In the hothouse environment of trial management, free from much effective appellate oversight, familiar principles that play out across several fields can go on odd random walks.   

The way due process has developed as a check on class actions might be an example.  It is not obvious why due process guarantees class members a right to control their own claims, at least to the thoroughgoing extent that current law suggests. (This article by Sergio Campos makes this point  in thorough and convincing detail).  At a minimum, the development of due process as a restraint in the class field seems oddly disconnected from the procedural due process balancing framework the Court set out in cases like Connecticut v. Doehr.  And, understood as an application of  substantive due process, class members’  opt out rights have developed without the kind of searching historical inquiry typical of the Courts’ modern substantive due process opinions (e.g. Glucksberg).    

I suspect that what’s going on is that undertheorized appeals to due process proved to be a quick-and-dirty hook for counsel casting about for ways to advocate limits on mandatory class proceedings in the 1980s and 1990s.  And, in the era before Rule 23(f), minimalist due process decisions worked well enough for time pressured trial courts that weren’t in fear of searching appellate oversight. Two decades of repetition, first in briefs, then in lower court opinions, turned the idea that due process protects litigants' opt out rights into received wisdom. And all without any SCOTUS opinion that has ever explained how this conclusion fits the broader due process framework it had carefully developed in other areas.

 Procedure’s Transition Cost Problem.  The costs of switching to new doctrinal frameworks tend to be much higher in the procedural field.  This is again a function of volume.  Once, say, personal jurisdiction doctrine veered off in a bizarre due process direction, the cost of switching to some totally different framework is potentially huge—everyone would have to suss out how to apply the new framework  at the beginning of a lawsuit, and the number of lawsuits filed annually in which this must be done is astronomical.  Big doctrinal shifts can as a result generate huge amounts of research costs for litigants and satellite litigation for courts that can take years to work pure. 

Concerns about administrative costs and their equitable distribution  in turn may lead courts toward doctrinal conservatism—favoring changes that tend to preserve, rather than unsettle, familiar rules.  The upshot:  Doctrinal turns, however odd, tend to stick, even if it leads to a body of doctrine  that becomes conceptually orphaned from the way similar principles have worked out in other areas. 

Procedure as a Safe Harbor for Unprincipled Advocacy. Often, extending principles from one field to another yields a preference reversal.  Say, for example, that commonly accepted versions of originalism, applied to due process, undermines due process arguments against class litigation made by corporate defendants.   (And let’s just posit, for the sake of argument, that conservatives love corporate defendants!)  At the same time, let’s assume the same originalist due process arguments have implications outside the procedural field that favor conservatives.  If both conservatives and liberals are outcome oriented, you can again expect these originalist arguments won’t be made. Conservatives won’t make them because they don’t like the outcome.  Liberals won’t make them because they don’t the methodology and its broader implications elsewhere.    

The accusation of being unprincipled is usually a check against this sort of thing—to avoid that damning charge, people who strongly advocate a principle in one area feel compelled to bite the bullet and accept its extension in others, outcome be damned.   But the more procedural law is freighted with idiosyncrasies and doctrinal quirks as a result of the other sources of siloing, the more accustomed we become to thinking of procedure as a conceptual oddball.  The result…. the reputation costs for advocates of a particular principle or methodology may be much lower if they do not press for a consistent application of their preferred principles in the procedural field.

A couple reading suggestions and the schedule for the NYU Crim Theory Colloquium

N.B. This post is basically for crimprofs and those interested in crim theory.

Apropos Rick's recent mention that he assigned an old favorite of mine, the Speluncean Explorers, for his first crim law class, I thought I'd share some (self-serving) recommendations, since this week marks the onset for many law schools across the country, and that means  the first criminal law class is here or around the corner for some 1L's.  (After the jump, I also share the schedule for the crim law theory colloquium at NYU this coming year.)

As many crim law profs lament,  first-year criminal law casebooks generally have pretty crummy offerings with respect to the state of the field in punishment theory. (The new 9th edition of Kadish Schulhofer Steiker Barkow, however, is better than most in this respect.) Most casebooks give a little smattering of Kant and Bentham, maybe a gesture to Stephen and for a contemporary flourish, a nod to Jeff Murphy or Michael Moore or Herb Morris. Murphy, Morris, and Moore deserve huge kudos for revivifying the field in the 1970's and since.  Fortunately, the field of punishment theory is very fertile today, and not just with respect to retributive justice.  

For those of you looking to give your students something more meaty and nourishing than Kantian references to fiat iustitia, et pereat mundus, you might want to check out either Michael Cahill's Punishment Pluralism piece or a reasonably short piece of mine, What Might Retributive Justice Be?, a 20-pager or so that tries to give a concise statement of the animating principles and limits of communicative retributivism.  Both pieces, which come from the same book, are the sort that law students and non-specialists should be able to digest without too much complication.  Also, if you're teaching the significance of the presumption of innocence to your 1L's, you might find this oped I did with Eric Miller to be helpful as a fun supplement; it concerns the quiet scandal of punitive release conditions.

Speaking of Cahill (the object of my enduring bromance), Mike and I are continuing to run a crim law theory colloquium for faculty based in NYC at NYU. The goal for this coming year is to workshop papers on and by:

September 10: Re'em Segev (Hebrew U, visiting fellow at NYU); James Stewart (UBC, visiting fellow at NYU)

October 29: Amanda Pustilnik (U Maryland); Joshua Kleinfeld (Northwestern)

November 26: Dan Markel (FSU); Rick Bierschbach and Stephanos Bibas (Cardozo/Penn)

January 28: Rachel Barkow (NYU) and Eric Johnson (Illinois)

February 25: Miriam Baer (BLS) and Michael Cahill (BLS)

March 18: Josh Bowers (UVA) and Michelle Dempsey (Villanova)

April 29: Daryl Brown (UVA) and Larry Alexander (USanDiego)

As you can see, the schedule tries to imperfectly bring together crim theorists of different generations and perspectives. This is going to be the fourth and fifth semesters of these colloquia. Let me know if you'd like to be on our email list for the papers.

The Law's Changing View of the Prostitution of Children

The change in the legal treatment of minors in the commercial sex industry has been rapid and quite amazing.  For decades, centuries really, the victimization of children bought for sex was ignored, and the inconsistencies with statutory rape and other laws overlooked.  Yet in the last five years, the recognition that these children--for they are children, with the average age of entry into prostitution being 12 to 14--are victims rather than offenders has influenced both federal and state law, as well as police and prosecutor practices.  Last week's news alone details an Atlanta court's sentencing a pimp to life for abusing and coercing a 14 year old runaway into prostitution, and a California county's changed approach to treat, rather than arrest, these children.

This change demonstrates how a committed group of advocates can bring  a social problem to light and revolutionize how we approach it.  Although there are many advocates for commercially sexually exploited children (CSEC), a good amount of credit goes to some of my former colleagues at the Legal Aid Society in NYC, as well as to the inspirational founder and director of the advocacy group GEMS, Rachel Lloyd.  (Full disclosure: I am a board member of GEMS).  A survivor herself, Rachel is an eloquent and dogged spokesperson for the hundreds of thousands of CSEC in the U.S.  (Her autobiographical account, Girls Like Us, published last year is amazing--see Nicholas Kristof's review here).  Rachel and others challenged the prosecution of children for prostitution and successfully advocated for the country's first "Safe Harbor" law in New York state, decriminalizing juvenile prostitution (with some exceptions).  (I wrote an oped supporting the law, available here).  Close to 10 states have passed similar laws, and prosecutors are using state and federal trafficking laws to go after pimps who exploit children, whether they are American-born or brought from another country.  Scholars are paying more attention to this topic as well.  Tamar Birckhead wrote a great piece on this last year, The Youngest Profession: Consent, Autonomy, and Prostituted Children, and I am currently working on one, Punishment as Protection, to be out next spring.  Reflective of the sea change in the view of prostituted children as victims, not offenders, the Department of Justice now recommends the use of the term CSEC.

Nonetheless, there are not enough services, particularly safe housing, to enable children to escape even in states with Safe Harbor laws.  Police, courts and others continue to judge these children, as having chosen this life, despite the family violence and homelessness which often drive these children to the streets.  Unfortunately typical are the Washington police officer who called a teenaged girl arrested for prostitution a "felony-making machine" as he sought a one-year prison sentence for her, or the New York court which recently adjudicated a 15 year old runaway delinquent for prostitution, opining that she had "chosen to engage in the street life."  And far too many boys and girls are still routinely arrested, prosecuted, and jailed on prostitution and related charges. 

"In retrospect, I guess we might have resorted to cannibalism a bit early"

Once again, I used "The Case of the Speluncean Explorers" in the first week of Criminal Law, as a way of "putting on the table" some of the big and interesting questions the course presents (in addition to "who brings dice on a caving trip?") -- questions about statutory interpretation, state-of-mind, clemency, justification-and-excuse, and the sanctity of human life. 

And, doing this reminded me of one of my all-time favorite pieces from The Onion:

  . . . When the six of us got into the elevator on that fateful day, we had no idea what was going to happen. We thought we were just going to take a little ride from the 12th floor to the lobby, just like every other day. Do you think we knew that elevator was going to get stuck between floors? Do you think we got into the elevator saying, "Hey, you know, we should eat our good old pal Jerry Weinhoff from Accounts Payable"? Of course not. . . .

Why apologize?

I have argued before against political discourse demanding apologies from people who stay stupid things, as well as against people who say stupid things feeling the need to apologize for saying those stupid things. I would prefer that everyone own their words and we move on from there. Maybe I'm just too much a believer in the Kinsley Gaffe. Or maybe I'm too convinced that any apology, if subjected to scrutiny, will be utter, incomprehensible bullshit.

Exhibit 502 is GOP Senate Candidate Todd Akin. He has a new 30-second ad apologizing and asking for forgiveness (not sure from whom--voters? GOP funders? Mitt Romney?) over his recent comments about "legitimate rape" never leading to pregnancy because women's biology shuts down and prevents pregnancy if it really is rape. In the ad, Akin says he "used the wrong words in the wrong way" and "The fact is, rape can lead to pregnancy. The truth is, rape has many victims. ... The mistake I made was in the words I said, not in the heart I hold."

Let's break this out.

• "Wrong words in the wrong way"--Akin already clarified that by "legitimate rape" he meant "forcible rape," a common rhetorical move among anti-choice activists and representatives as a way to justify limiting rape exceptions for abortion restrictions. Not sure what that changes, other than returning to code that low-information voters won't recognize.

• "The fact is, rape can lead to pregnancy"--So why did he say otherwise? Can you really call what he said a misstatement? It's not like he was trying to explain some complex nuance of economics.  If you say "X" as a hard scientific fact, it is hard to believe you really meant to say (or really believe) "Not X."

• "The mistake I made was in the words I said"--Again, what words did he mean to say?

I will give Akin credit for not blaming the media and Democrats for playing "gotcha" or for taking his comments out of context. He is owning that he said something he regrets. I wish he would own meaning what he said, because it seems pretty clear that he does.

Fourth Circuit rehearing on crisis pregnancy centers

The Fourth Circuit last week granted rehearing en banc in a series of cases challenging municipal regulations requiring "crisis pregnancy centers" to post disclaimers identifying all the reproductive services (namely birth control and abortion or referrals for those services) that they do not provide. I wrote about the panel decision and Jennifer Keighly sharply criticized it. The core First Amendment issue is whether this is regulation of commercial speech or of a regulated profession in which disclosure obligations are generally permissible, although I believe these cases provide a nice compare-and-contrast with the litigation over mandatory ultrasound laws. There also are some underlying procedural problems involving converting 12(b)(6) to summary judgment and refusal to provide an opportunity for discovery.

No one wrote to concur or dissent from the grant of rehearing, not even from the panel members, so we do not know what anyone is thinking right now.

Working in Haircurlers and Bathrobes at 1 First St., NE

In a fit of dubious restraint, Jay Wexler has omitted to share with you this recent funny essay on Salon.com.

I now understand why he makes hair jokes for an outfit like Salon.

Chair Search at Tulane Law

Tulane University Law School is currently seeking candidates to fill its recently vacated chair in comparative law, the Eason-Weinmann Chair of Comparative Law, and one of two chairs without subject-matter restriction, the recently vacated Joseph Merrick Jones Chair of Law, and the new David Boies Distinguished Chair in Law. This position will entail an appointment to an endowed chair to be made at the level of tenured, full Professor of Law. The responsibilities of the Eason-Weinmann Chair of Comparative Law may include directorship of the Eason-Weinmann Center for International and Comparative Law. Any chair includes scholarly research and publication; classroom teaching; participation in faculty governance; active involvement in student mentoring and counseling; engagement with faculty both within the Law School and throughout the University; together with other chairs and senior faculty, providing leadership for integrative research activities; significant engagement with academic institutions and professional organizations in international law, including frequent participation in meetings and symposia.

The qualifications required for the chairs are:

• Juris Doctor (J.D.) and/or Ph.D. in Law

• Broad recognition for scholarly distinction

• Established publication record

• Clearly developed long term research agenda

• Extensive teaching experience

Interested candidates should submit an application in hard copy or electronic form to the Chair of the Search Committee: Claire Moore Dickerson, Senator John B. Breaux Chair of Business Law, Tulane University Law School, 6329 Freret Street New Orleans, Louisiana 70118 USA, or via email at: [email protected]

The application should include:

• A letter of interest highlighting experiences and accomplishments relevant to the position • A current curriculum vitae • Names of and contact information regarding three professional references.

Nominations of qualified candidates for one or more of the chair positions also are invited. Nominations should be submitted to Professor Dickerson at the address above. For further inquiries, please contact the search committee through Professor Dickerson at that same email address. Review of applications will begin in the fall and continue until completion. For further information about Tulane University Law School, consult:www.law.tulane.edu.

Tulane University is an Equal Opportunity/Affirmative Action employer with a strong commitment to diversifying its faculty.

Sgt. Pepper's Lonely Hearts Mad Men, Part II

Two months late with this one, but after focusing on it in late June, I dropped it as the summer progressed. In May, I wrote about a series of posts by Emily Viviani, arguing that the recent season of Mad Men lyrically, thematically, and structurally used Sgt. Pepper's as a template.

In June, Emily wrote the final piece on the last three episodes of the season. I think the lyrical connections are a stretch. But I was particularly intrigued at the way season's penultimate episode functions as a mirror-image of the premiere--like the version of the song "SPLHCB" that opens the album and the reprise that is the penultimate song.

It is thought-provoking, if nothing else.

JOTWELL: Wasserman on several takes on cameras in the courts

I wrote the newest essay in JOTWELL's Courts Law Section, reviewing two new discusssions of video cameras in the Supreme Court--one by Nancy Marder in Arizona State and one by Lisa McElroy in BYU. Both are good articles presenting different takes from distinct perspectives.

The Paradox of Patents

A theme of my scholarship can be called the paradox of patents. As Louis Kaplow explained, a central premise—I would say the central premise—of the patent system is that judges cannot discern the social value of an invention on a case-by-case basis. If they could, there would be no need for patents: a taxpayer-funded prize system would be more efficient.

But, virtually every doctrine of patent law involves judges making surreptitious judgments about the social value of an invention on a case-by-case basis. Much of my early work was to establish this point. This is true of patentable subject matter (abstract ideas), patent validity (nonobviousness), patent scope (enablement and claim construction), and patent remedies (so manifest that I never got around to writing the article). Indeed, most of these doctrines are both positively incoherent and normatively unjustifiable unless we understand judges to be making intuitive economic judgments about the social value of the invention at issue.

I have no really good answer to resolving this paradox. I have suggested some mechanisms that overcome the problem to some extent, but a general solution eludes me. The more important point is that I think this is a dilemma that has often been ignored by other patent scholars as well. The patent literature is filled with calls for more transparent case-by-case analysis of the economic costs and benefits of a particular patent; and of course I prefer having a transparent economic analysis over a sub rosa economic analysis. But I have yet to see a really convincing analysis of why such case-by-case economic balancing doesn’t undermine the basic premise of having a patent system at all.

Here's a Really Bad Thing That's Really Easy Not to Do as a New Prawf (or, What I Learned From My Second Semester Spanish Class This Summer)

As none of you will remember, last summer, for various personal and professional reasons, I took an intensive first semester Spanish class at the Boston University summer school.  It was great fun, and very interesting to be on the other side of the lectern for a change.  This past summer I took second semester Spanish.  Among other things, I learned that doing a group presentation with several 19 year olds is surreal.  Also, did you know just how often these kids check their phones in class?  Anyway, in case you were wondering, none of the students asked me to buy them beer (I would have said no, but still, it would have been nice to be asked).  Unlike my first semester teacher, who was outstanding, my teacher this time around, while possessing many excellent qualities, did a few things wrong (in my view). One of those things was not dismissing the class on time.  This was a pet peeve of mine when I was a student in law school and other places, and when I started teaching, I made a point never to do it.  For a while there, I was almost militant about it, stopping in mid-sentence to announce that the class had just ended.  In recent years, however, it's been a little less in my consciousness (though I don't think I've ever kept the class more than maybe an extra minute).  The Spanish class reminded me, though, just how incredibly infuriating it is to be kept in the class when it's over.  It shows disrespect for the students' time--after all, students have a million other things to do, other classes, jobs, interviews, meetings.  And while you might think that if a student really needs to leave, he or she will just leave, that's usually not the case, given the typical teacher-student dynamic in the classroom.  Many a class this summer I sat there arguing with myself as the post-class time kept ticking away, "Should I just get up and go?  I'm 43 years old, after all.  No, she's the teacher, I should stay.  But I have work to do, I should just leave.  No, she'll be done in another minute anyway.  Maybe I should just get my books together and that will send a signal?  I don't know.  Why is she still talking?  Why am I still here?  Why can't I be more decisive?"  I bring this up here mostly because I know that about this time lots of new prawfs are starting up their prawfing career, and they'll be extremely excited about teaching the material and helping students and getting into interesting conversations with some of their students and one thing they might not be focused on is how when the class time has come to an end, the class time has come to an end, and they should therefore end the class.  There's always the next class session to finish up whatever the point was, and interesting conversations with students can always continue after the class in the hallway or the office.  Now this post is over.

McCulloch and Banking Preemption: A Case Study in the Tenacity of Bad Precedents

For the last year, a big fight has been brewing over whether the Office of the Comptroller of the Currency ("OCC") will be able to get away with its its attempt to preempt vast swathes of state banking laws. The OCC issued rules last summer to implement the Dodd-Frank Act's elaborate rules for preempting state "consumer financial law," but, to the irritation of the Department of the Treasury, the OCC's rules essentially re-stated their old 2004 rules essentially preempting all state laws directly focused on deposit-taking or lending. This is a bizarre result, because section 1044(a) of Dodd-Frank contains elaborate restrictions on preemption -- for instance, requiring "case by case" evaluation of a the "impact" on national banks of "particular state consumer financial law," supporting the evaluation with "substantial evidence on the record."

Is OCC just thumbing its nose at Congress? I think that the problem is less the OCC's intransigence than the tenacity of very bad, very old precedent -- the venerable McCulloch v. Maryland. McCulloch's second holding conferred blanket immunity from state laws on nationally chartered banks' banking operations, allowing only state taxation that did not single out such operations. The justification for this immunity, as every student in Intro to Constitutional Law knows, is federal supremacy: John Marshall treated the Second Bank of the United States as a federal agency ("instrumentality") that had to be utterly independent of state control. McCulloch's sweeping immunity for national banks was transmitted into our modern banking law via the National Bank Act of 1864, which was construed by the SCOTUS to incorporate McCulloch's sweeping view of national banks' immunity, and OCC has been harping on this immunity ever since.

As I argue in this ssrn draft, the problem with McCulloch is that, although it made a certain hotly controverted sense back in 1819, McCulloch's second holding makes zero sense today. Nicholas Biddle's Second BUS might (barely) qualify (to Old Hickory's outrage) as a federal agency, having an exclusive right to act as a depository for federal revenue. But Jamie Dimon and several thousand other officers of thousands of federally chartered banks? Give me a break: The idea is ludicrous that these guys are somehow the moral equivalent of U.S. Attorneys and federal postmasters, entitled to make policy for the federal government free from state oversight even when no bona fide federal agency is checking their work. Those banks are just private enterprises, acting out of banking self-interest, which, as Richard Posner notes, is frequently inconsistent with the public interest.

Don't get me wrong: I am all in favor of uniform national law to control national banking, for which there are plainly big scale economies in regulation. But neither the National Bank Act nor the OCC have supplied such rules in many cases. Where federal law is silent on some problem -- say, marketing of credit cards to college students -- then the states ought to be able to fill the gap, however imperfectly, until the real federal agencies (i.e., Federal Reserve, OCC, CFPB, FDIC, etc) get around to addressing the issue. Indeed, even an imperfect state law is a spur to getting Jamie Dimon and Co. to lobby the feds for a rule where they'd otherwise be inclined to sit on their hands, glorying in their status as a "federal instrumentality," entitled to make whatever policy they please.

Despite the illogic of making national banks to be a law unto themselves, lower courts (including, to my disappointment, one recent California supreme court decision authored by Goodwin Liu) continue to impose field preemption on state law without looking to see if federal law actually addresses the banking risk that the state are regulating.

Why? So far as I can tell, sheer legal atavism: McCulloch and its progeny are stuck in our legal code like a self-replicating computer virus: Once cited, the preemption language gets re-cited and re-re-cited until, like the Bellman's cry ("Just the Place for a Snark!"), it becomes true through sheer repetition. Congress, in its ham-handed way, tried to put the kibosh on this nonsense, but courts return to their precedents like a dog to its vomit, even when admonished not to do so by a statute.

Or so, at least, I argue in my paper. Maybe I am too blinded but my notorious desire to preserve a maximum amount of state law in the teeth of our centripetal jurisprudence to see the merits of preempting state law on issues that the feds have ignored. I'll be much obliged for your critical comments on my paper, off- or on-line, to help correct my pro-decentralization bias. Until you do, I will continue to think that no errors are so stubborn as judicial ones.

Intellectual Context

The bar was raised on Prawfsblawg this week! with substantive and thoughtfully framed posts by Profs. Chiang, Godsoe, Madeira, and Moller.  They put to shame my casual and verbose efforts from the perspective of a law-review Submissions Editor.  So I reenter the forum glad that it's a weekend, and that people may be looking for topics besides law itself.

Despite the meatiness of this week's posts, I return to the questions of presentation and audience:  Emily Post matters, rather than Julia Child matters; the garnish rather than the roast.  At the Cleveland State Law Review, we have been well nourished this month, and are grateful to the chefs.  Here (to exhaust the metaphor) are a couple of thoughts about plating, atmosphere, and service.

Chronologically, the first audience for your article is (as I keep insisting) the law student.  Hence the "intellectual context" for its scholarly impact is, at a minimum, fourfold:

1) your research:   the scholars you have read and are responding to, following the footsteps of masters you admire and chastise (cf. Inferno 23.148).

2) your colleagues:  the matrix of ninety professors out there who care about your work because it changes the scholarly conversation in certain particular ways.

3) your ultimate audience:  the judges, policy-makers, and future practitioners who may find your ideas useful in a context of cases, controversies, debates, or transactions.  

AND, as a threshold matter,

4) August and September of the 3L year of an eighty-fifth-percentile law student, 2012.

If #4 seems to you a sadly picayune and uninteresting consideration, you're missing out in two small but significant ways.  

In the first place, if you're not thinking about the immediate target audience who receives law-review e-mails, you're neglecting to deploy a valuable skill set you've been developing over the years.  

As a teacher, you know how to tailor your presentation to a particular audience.  You know how to start a third-year antitrust or advanced-crim-pro course, and how that differs from the opening of a second-semester contracts or crim law course.  You know how to introduce people to a topic in a way that flatters their previous knowledge and challenges it, with some fast learning rewards and the right kind of promise of some slow ones.  You have respect for the abilities of your students -- to a point, and not beyond.  You show a sense of humor.  

Why would you keep all that powder dry when presenting an article to law-review editors?

In the second place, if you're unaware of your initial readers' context, you're missing the fact that the beginning of the 3L year is (for many of your target students) a rich and exciting time to be alive.  The textures of identity, and of the world of affairs, have changed.  However small these students might have felt during 1L year, and however intimidated they were by the legal cultures they began to enter 2L year, they entered a new mode in July.  Do you remember what it was like?

The question of the day:  How much do you tailor your article introductions, initial footnotes, and cover letters for the reader who has just finished his or her first real hitch in the service -- as a summer associate, public-law intern, or similar?  And:  shouldn't it be more?

There are two points to make about the intellectual context created by August of the 3L year, for the type of students who read and evaluate your work.  

The first is that, after their summer jobs, they feel they are entering a highly practical and results-oriented world.  Discovery disputes, reams of business documents for review, the thorny caselaw that lies behind what seem the simplest research questions:  all of these things, they are becoming aware, are driven by the needs of a client.  That client may be a big business or the public interest, but the effect is the same.  Law has real-world effects, and is a tool for doing things besides itself.

The second amazing thing about the summer job before 3L year (the context for your article) is that, by and large, against all odds, law school actually prepared them for it.  

Even as we marvel at the way legalities interlock with the business context, we marvel just as much at the fact that the real world interlocks with the law you have taught us.  We see your abilities in a new way, against a larger civic background.

Overall, the summer before 3L year feels like the beginning of a kind of intellectual adulthood, the start of a lifelong task of linking an intellectual framework with real-world problems.  Such linkage gives traction on both.  The framework of law (and law-teaching) has new kinds of value as a result, and the journal editor has a new kind of respect for it.

None of this is meant to suggest that abstract or philosophical work is not appreciated in the journal office.  On the contrary, the summer has re-grounded our confidence in the worth of law-professors' efforts, especially when it comes to seemingly small or obscure doctrinal matters.  We know that cases can hinge on a single verbal twist to an idea, or a single side fact that triggers some kind of immunity.

What I do want to suggest, in a nutshell, is that the presentation of a law-review article -- whether in a cover letter or in the first few pages -- should include some example of how it impacts the world of laypeople.  This does not mean telling us that certain types of people will be affected by an idea:  it means showing us how this happens, in a particular case, whether real or hypothetical.

The rhetorical work you do to situate your article in the context of actual civic life impresses us enormously, because now -- having spent two months intensely immersed in a practice setting -- we have a strong sense that interlocking the abstract with the practical is the point of the legal profession.  We know such interface is challenging, and we have a heightened double respect:  on the one hand, for doctrinal development, and on the other, for imaginative engagement with potential constituencies, clients, and functional entities from the municipal to the international.

In a word:  as you present your idea and your argument, give us AN EXAMPLE up front.  Even in the most purely doctrinal article, an example is the key garnish.  I can count on one hand the number of cover letters this summer that have included an example of a doctrine in action.  

(The next best thing, incidentally, is to highlight in your cover letter, along with the rigor and coherence of your ideas, your five to thirty years' experience as a practitioner in a particular field.)

One other word about this parochial context of law-review editing, in anticipation of my next post.  

The summer before the 3L year, beginning with the end of exams in May, is a time when students begin to read and watch the news in a new way.  The things going on in Congress begin to look like the first draft of legislative history, and the stories about civil disputes and prosecutions seem less banal as we understand the work that goes into hashing them out.  This year in particular has been special, as the most abstract and apparently useless doctrines of con law (including that old-hat dead letter, the commerce clause) have mattered a very great deal in the political and economic life of the country.

This summer, in a word, legal academia hit the big time.  There has been no shortage of commentary, but it is worth considering the particular effect this had on law students.  I intend to argue, in an upcoming post, that in July Chief Justice John Roberts made a very significant intervention in the development of this law student cohort's civic self-understanding.  This too is part of the context of your article presentations, and it is the context for your first few classes as well.  

I welcome reminiscences about, or challenges to, the end of the 3L summer as I have described it.  As always, I hope it is bracing and not discouraging to realize that your work initially faces such an idiosyncratic audience as my colleagues and me.