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Monday, April 11, 2016

LAWn Signs: Can the Fourth Amendment be Funny?

How do you point out the absurdity of a doctrine that has serious overtones involving fundamental liberty interests and law enforcement needs?  How do you engage a citizenry that doesn’t read Supreme Court cases or the brilliant law review articles that analyze those opinions?  I don’t really know, but Stephen Henderson (Oklahoma) and I have tried an experiment that combines analytical rigor and lighthearted humor, constitutional analysis and actual lawn signs.  Howard kindly posted about the launch, but I wanted to explain the reasoning.   

It all begins with a simple question:  What is the constitutional significance of the proverbial “keep off the grass” sign?  The question asked by curmudgeonly neighbors everywhere centers a new article and public education campaign focused on the Fourth Amendment. 

First, the legal issue:  In Florida v. Jardines, the Supreme Court addressed whether police could walk a drug-sniffing dog to a homeowner’s front door.  The Court decided in the negative, but based its holding on what it called the “implicit license” to approach homes, which required analyzing the social customs of peddlers, pamphleteers, aluminum-siding salesmen, and girl scouts.  Essentially, Justice Scalia reasoned that homeowners do not give implied license to drug sniffing dogs to sniff our doorways, so the resulting action was a Fourth Amendment search. 

The open question resulting from this decision, of course, is “what on earth is an implied license?” The obvious law professor answer to such an admittedly odd decision is to change the implicit license by explicit signs (Fourth Amendment LAWn signs). 

So in a serious, but not to be taken too seriously way, we wrote a short article appropriately titled LAWn Signs:  A Fourth Amendment for Constitutional Curmudgeons, to be published in the Ohio State Journal of Criminal Law.

We then decided to actually go ahead and create these lawn signs (LAWn signs) and develop an entire website devoted to Fourth Amendment public education.  The FouthAmendmentSecurity.com website tries to use a bit of humor to engage people about their Fourth Amendment rights.  Our hope is to cover the lawns of America with reminders of Fourth Amendment principles.

And the serious side of the project was highlighted last month when the Tenth Circuit Court of Appeals decided United States v. Carloss, in which the federal appellate judges debated the constitutional significance not only of the defendant’s “No Trespassing” signs, but also of hypothetical signs just like those available for purchase on the LAWn Signs website. 

So check it out.  Post a sign outside your home and send us a photo.  Share the website with social media.  Join the FourthAmendmentSecurity movement. 

Posted by Andrew Guthrie Ferguson on April 11, 2016 at 10:21 AM | Permalink | Comments (3)

How Do I Increase the Chance My Scholarship Will Be Read? (Jr. Law Prawfs FAQ)

Last week we covered various FAQs concerning the type of legal publication (responses to articles, book reviews, and online law reviews). This week the questions will focus on interacting within one's field. The first question, which dovetails nicely with the questions from last week, is how to increase the chances that one's scholarship, especially pretenure (though not limited to that), will actually be read in the field. I'm very interested in leveraging the PrawfsBlawg community on this. To get us started, here are a few best practices that come to mind:

1. Post Papers Online: Make sure your paper is available on the various online repositories. SSRN is probably the most used in our field, but also consider Selected Works (bepress), Academia.edu, law school depositories, and others. I tend to post draft papers to SSRN once they've been accepted for publication, but practices seem to vary among legal scholars. Some post drafts before they submit to law reviews, whereas others wait until the final paper is published. There are advantages, I think, to getting the draft circulated once it's in decent shape so that you can actually incorporate comments you may receive. But definitely get a sense of the norms in your legal subfield as well as follow the cardinal Ask Your Colleagues rule. I don't post to the other online repositories until the paper is published, though there probably isn't a good reason for that.

2. Utilize Social Media: Once you have the paper posted somewhere, it makes sense to circulate to your social networks, via Facebook, LinkedIn, Twitter, etc. (I'll return to Twitter/social media in more depth later this month.) 

3. Circulate to Readers: I send the final version to anyone who has provided comments on prior drafts, as well as any organizers of conferences or faculty workshops where I presented earlier drafts. I've also created an email list of junior scholars/regular readers in my field that I send it to, as well as a list of current and former research assistants (I do that more as an excuse to stay in touch with them).

4. Hard Copy and Electronic Offprints: When I transitioned from private practice to the law faculty here, I pledged to never send out paper offprints as it just seemed like a waste of trees (and money!). I've since changed my mind and send out offprints to a number of folks in the field. I'd be curious to hear what others think about hard-copy offprints. In all events, if not hard copies, at least a personalized email to those in your field who may find it interesting (construing that category broadly). 

5. Guest-Blogging about Article: I plan on discussing blogging in greater detail later this month, but it's not a bad idea to blog about your new paper -- either once you have a draft online or once the final version is posted. If you don't blog regularly, you can always approach a blog in your subfield and ask if you can do a couple posts about your article. If your work is related to administrative law/regulation, we always welcome guest blog posts at the Yale Journal on Regulation blog (the student editors have the final say, but they love to get guest posts on current scholarship). RegBlog also encourages adlaw scholars to write up opinion pieces on their current scholarship, as does Osservatorio AIR (with a great readership in Europe).

Those are the best practices that come immediately to mind. I'd love to hear what others do to increase the chance their scholarship actually gets read. Definitely feel free to shoot down any of the ideas I've suggested above.

 

@chris_j_walker

Posted by Chris Walker on April 11, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (10)

Saturday, April 09, 2016

Infield fly double plays and knowing the game and the rules

On Friday, the New York Mets turned a double play against the Philadelphia Phillies on an infield fly call--the Mets infielder did not catch the ball (the wind* pushed it away from him), the runner on first's instincts took over upon seeing the ball hit the ground, and he took off for second, getting tagged out in a 5-3-4 rundown.

[*] Given the wind, a case could be made the IFR should not have been called. The umpire considers "weather conditions" in deciding whether the ball was playable with "ordinary effort" as required for the rule to apply.

Having watched every IFR call in Major League Baseball from 2010-15, I can recall at least 4-5 times (perhaps more) that the defense turned a similar double play in the identical situation. That may not sound like much, until we consider that the infielder failed to catch the ball on an IFR call at most 15-20 times in those six seasons--and several of those were intentional non-catches to deke the runner into trying to advance. That means the defense turns a double play roughly 20 % of the time the infielder fails to catch the ball.

What is interesting is the media reaction to the play. The themes that emerge--from game announcers (video from Mets broadcast in link) and blogs--are that this is another sign of how bad a team the Phllies are (and they are bad, 0-4 on the young season), that this is a Little League mistake, and that the players do not know the infield fly or how it works (this is how the Mets announcers talked about it yesterday); the announcers and writers, in turn, have a chance to (somewhat condescendingly) explain the Infield Fly Rule. For one thing, the criticism is not accurate. As the Cincinnati Reds manager said defending a player who made a similar mistake and ran into a double play in 2015, it was not that the player did not know (or understand) the rule, but that the player had the wrong reaction to the ball hitting the ground (i.e., instinct took over). For another, many announcers routinely show that they do not really understand  the rule, as by openly questioning its application to balls in the outfield with quips such as "boy, the infield is awfully expansive if that ball qualifies under the rule."** So scolding the players this way rings false. Finally, the "wrong reaction" may cut both ways--in 2014, a runner scored from third base on an uncaught infield fly when the catcher failed to tag the runner coming from third base.

[**] Commentary on the rule explains that the question is whether an infielder could have caught the ball with ordinary effort, without respect to artificial boundaries such as the outfield grass.

Posted by Howard Wasserman on April 9, 2016 at 12:56 AM | Permalink | Comments (1)

Friday, April 08, 2016

Benign Socratic

A group of admitted/prospective students and their parents visited my class this morning (for a dose of Daimler v. Bauman and Shaffer v. Heitner). One parent, herself a lawyer in town, came to me after class and said that was the best "benign Socratic" class she had ever seen. I like that phrase better than "modified Socratic," which was the buzzword at the Meat market three years ago as code for "I'm rigorous, but not obnoxious."

Posted by Howard Wasserman on April 8, 2016 at 03:50 PM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

FBI/Apple: Copy of the Feinstein-Burr Discussion Draft Released

As many of you know, the FBI obtained an ex parte court order from the Federal Court in the Central District of California regarding the iPhone that was apparently used by Syed Rizwan Farook, one of the two killers in the San Bernardino mass shooting last December.  In essence, the order required Apple to provide "technical assistance" in the form of drafting software to allow the government access to the data on the iPhone.

Rather than immediately comply, Apple filed a motion to vacate the order raising various arguments. Among them, Apple argued that such software would compromise security and that "the unprecedented order requested by the government finds no support in the law and would violate the Constitution." Apple's Motion to Vacate, at 5. Additionally, Apple argued that end-to-end encryption was the safer and more secure course for all iPhones, and the existence a government "backdoor" created vulnerabilities that could affect all users. See Apple's Reply, at 19-20. More generally, Apple objected to creating a government-specific operating system. Of course, ultimately a third party proffered a solution to the FBI and this matter has been dismissed.

In the meantime, a discussion draft of the Feinstein-Burr "Compliance with Court Orders Act of 2016" has been released (accessible here). This draft appears to mandate that any covered entity (presumably, device makers and software companies) that receives a court order for information or data must provide the information in an intelligible format or provide technical assistance to do so. Such delivery must be made concurrently with the data's transmission, or expeditiously if stored on a device. The bill provides that covered entities will receive compensation.

As others have recognized, the draft is not entirely clear in many respects. For example, it is unclear whether the statute contemplates that a covered entity will have the opportunity to challenge the legality of such an order in court prior to compliance. This is especially important if orders are issued ex parte. Further, the bill provides that it shall not be construed to compel "any specific design or operating system to be adopted by any covered entity" which was, of course, one of Apple's objections to the California order. 

It has been reported that the White House has not issued support for the bill at present (see also, here).

 

Postscript: Although the California action has been dismissed in light of the undisclosed 3rd party's assistance, an action in New York raising parallel issues continues (source).

Posted by Amy Landers on April 8, 2016 at 10:12 AM | Permalink | Comments (0)

How Do I Make Sense of Online Law Reviews? (Jr. Law Prawfs FAQ)

As I mentioned on Monday with respect to whether to publish online responses to law review articles (or to allow law review editors to seek response(s) to one's own article), I planned on returning to the more basic question of how to make sense of the rise of the online companions to many general law reviews. To get us started, consider the following question Nancy Leong recently crowdsourced on Facebook from a friend who is interested in legal academia (reposted with permission):

For purposes of getting a job, which of the following article placements is best: (1) a print law review at a school ranked 50-100; (2) a print specialty journal at a top 15ish school; or (3) an online law review at a top 15ish school?

This isn't the first time I've seen such a question on Facebook, and a number of aspiring academics (and junior law professors) have asked me similar questions. Based on the responses to Nancy's FB post, my guess is that there are at least as many answers--many conflicting--as there are online law reviews.

My questions are a bit more basic (though I hope still important) than whether to place an article in the print or online journal: What's the purpose of online law reviews? And how should we view and use them as scholars (junior or otherwise)?

Outside of writing responses to law review articles (the purpose of which seems quite obvious), I've only waded into the online law review waters once. My colleague Paul Rose and I had authored a white paper for the Chamber of Commerce on cost-benefit analysis in financial regulation. (I plan on returning to white papers/reports/advocacy projects later this month.)  In doing that research we had what we thought was one pretty cool, but pretty narrow, argument that didn't fit in the report. We didn't want to write a full article because of other research obligations, but we also wanted to get it out there as the D.C. Circuit was considering similar cases and it was part of a hot academic debate. So we wrote up a few thousand words, and published the essay in an online law review. It attracted a fair amount of attention, got the idea out there in a timely manner (submission took less than a week and editing another couple weeks), and drew more attention to our white paper in the process.

If the purpose of the online law review is to get timely, short (2K-6K words) essays out there faster than the traditional law review, I think I understand the place of online law reviews in current legal scholarship. But that doesn't seem to be the case with at least some online law reviews, as Nancy's FB post indicates. Scholars now seem to be publishing much longer pieces in online law reviews. It seems, perhaps, that at least some law reviews are treating their online companions like the GAP to their print volume Banana Republic (or maybe the better analogy is the Banana Republic Outlet line to the more expensive BR line).

This is perhaps reinforced by the latest Washington & Lee Law Review Rankings, which were released earlier this week. In skimming the top-100 general law review rankings (based on the "combined" citation score), I was surprised to see a few online companions in the list. In drafting this post I took a closer look:  Among the general law reviews -- print and online combined -- the Stanford Law Review Online comes in at No. 52, the Yale Law Journal Forum at No. 70, Northwestern at No. 86, Columbia at No. 92, Penn at No. 123, Harvard at No. 125, Vanderbilt at No. 147, and Michigan at No. 148. So apparently scholars are reading them and citing them, more so than many other fine print law reviews. Further digging is needed to understand whether the online companions are becoming substitutes for other journals in those tiers with respect to medium-length articles/essays. Anecdotal evidence suggest that may be happening.

When working as a law student on the law review over a decade ago, the trend at the time was for law reviews to commit to publishing shorter articles, meaning fewer than 25K or even 20K words. While longer articles have their place in legal scholarship, I was hoping this trend would stick to encourage shorter, more accessible articles (especially to scholars outside of law who would consider our articles books) in addition to the more treatise-length articles we publish. That doesn't seem to have happened. I fear the online law review might be filling that void, and if so, I'm not sure what that means for legal scholarship.

Perhaps I'm mistaken, and online law reviews end up being what many of us hoped they would be: an opportunity to publish quickly an important idea on a timely law or policy topic in the form of a short essay (5-15 pages); an opportunity to respond to an article published in the law review; or an opportunity to have a fun dialogue or debate (minisymposium) on a timely topic in law or policy.  I have seen this done very effectively. Mehrsa Baradaran's postal banking essay comes immediately to mind,  in which she further developed an idea floated in one of her law review articles in response to the USPS releasing a white paper on the topic. She then wrote a full-length book on the subject, and Bernie Sanders has taken that idea further. That's just one of many examples that come to mind.

I hope this post sparks a productive discussion on how to make sense of online law reviews. I'd love to hear about others' experiences--both good and bad--with the online law review publishing process. Do online law reviews serve other useful purposes that I haven't flagged in this post? Am I even asking the right questions here with respect to the purpose and value of online law reviews?

 

@chris_j_walker

Posted by Chris Walker on April 8, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (10)

Thursday, April 07, 2016

A Taxonomy of Legal Mentorship

Professor Andy Taslitz was a great law professor and an even better person.  After he passed away in 2014, Howard Law School held a wonderful tribute and Symposium to his work and memory.  I gave a short presentation that discussed what I called the “Taxonomy of Legal Mentorship.”  I spoke in the context of honoring Andy as teaching me the value of legal mentorship.  Below I share the broader taxonomy for your thoughts. 

The first question for any taxonomy of mentorship is to define our terms.  Borrowing from the work of Professor Emily Sherwin in her article “Legal Taxonomy,” we could choose to use: (1) a formal taxonomy (a study of rules and logical connections), or (2) a functional taxonomy (a study of social roles), or (3) or a reason-based taxonomy (a study of justifications).  A function-based taxonomy fits best as it classifies things according to their social function or the role they play in society.  Here our society is law professors.  And the function of mentor is to support the professional and scholarly endeavors of other faculty.

So, my quick and dirty taxonomy of types of mentors in the legal academy goes like this:

  1. Friend Mentor – The friend mentor is your former law school classmate (or equivalent) and now a slightly more experienced law professor – who you send that first draft of any article to in order to make sure you are not a complete idiot before sending the article out to others you actually need to impress. They also can help guide you through the daily stress of that first class prep, that angsting first submissions cycle, or that first dramatic student issue. 
  1. Colleague Mentor – The colleague mentor is a professor in your law school with the responsibility to act as a mentor. The mentor can be formally assigned or simply someone you trust.  But, they are the person to whom you go inquire about how the promotion and tenure committee would view your explosive new research into “low productivity rates of senior faculty.” 
  1. Conference Mentor – The conference mentor is the person you buttonhole every AALS Meeting for profound career advice at the bar or coffee station (when you are both skipping the substantive meetings). Conference mentors provide valuable, if episodic feedback on your career and scholarship from someone who probably cares only at the superficial level about your ultimate success. 
  1. Scholarly Mentor – Scholarly mentors are people who write in your area of interest who you send every article to in the hopes that your article will be improved. They are probably the most important type of mentor.  They can be within a school (if you are lucky) or in another school.  If they say the article passes muster (or say something to the effect of “I don't think this idea is any worse than anything the rest of us have come up with….”), it goes out.
  1. Email Mentor – The email mentor is a new phenomenon. Many of us have realized that one can simply email people out of the blue with an article, or question, and that law professors have the time and inclination to occasionally respond.  You can even do this with the biggest name in law (at least those who have email).  Email mentors are helpful for substance, career advice, and many times more honest than your colleagues. 
  1. Life Mentor – Life mentors are people who you go to not about teaching, scholarship, or service, but about the all-consuming effect of teaching, scholarship, or service on your life. They provide balance and reassurance, if not the answers.  They are the ones who can explain why you feel stressed even though you only teach two classes a week, and have to write at most two articles a year (with summers off).  
  1. Identity Mentor – Identity mentors are life mentors and scholarly mentors who because of a shared self-identity make the advice that much more convincing.
  1. Teaching Mentor – Teaching mentors are those who because of the charisma, intelligence, or intense preparation thrill a class like you only wish you could. They provide assistance by modeling good teaching, engagement with students, and passion for the subject.    
  1. Hero Mentor – The hero mentor is a professor whose combines scholarship, teaching, and advocacy in a way that you admire. If you are lucky you can latch on to one and learn as much as you can before life tragically takes them from you.  Andy Taslitz was that hero mentor to me (and others).

So, what other types of law professor mentors would you add to this taxonomy?  What kind of mentor are you?  Do you hope to be?

Posted by Andrew Guthrie Ferguson on April 7, 2016 at 10:27 PM | Permalink | Comments (3)

Better Call Saul and "stealing" clients

A story line on Better Call Saul this season involves Jimmy and his girlfriend leaving their respective large firms to go solo, setting up separate practices with shared space (the separation is so she can keep doing things the right way, while he continues down his path to becoming Saul Goodman). This week, Kim resigns from the firm and recruits (successfully, she believes) the one client that she brought into the firm to follow her. But Jimmy's brother, Chuck, a name partner in the firm, pitches to get the bank to stay with the firm. The gist of the pitch is "yes, Kim is great, but I have long expertise in the complexities of banking law and the work you need done requires the staffing and resources that only can come from a large firm with a lot of associates." And it works, leaving Kim without any clients as she opens her practice.

The TV blogs, especially the comments sections, seem of a mind that Chuck screwed Jimmy and that he did so out of spite. Now, Chuck has screwed Jimmy in the past, so the audience is somewhat primed to dislike him. But did Chuck (and Howard) do anything wrong here? Kim brought the business to the firm, so it was "her" client." And we do not know the business terms between Kim and the firm, which I assume spell out the relationship among the firm, the client, and the rainmaker. But what happens when a lawyer with business leaves a firm? Can the firm try to convince the lawyer's clients to stay with the firm rather than following the individual? And Chuck's pitch in no way disparaged Kim or questioned her abilities, even implicitly; he simply argued that his firm could provide better service, which seems to be what you have to do to get business.

Of course, Jimmy sees it as strictly personal. And his response is to forge a bunch of documents to make Chuck and the firm look bad, which is where we pick up next week.

Posted by Howard Wasserman on April 7, 2016 at 07:44 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (2)

How does one measure the gravity of crimes?

I'm back.  And while my first post was deliberately one that could appeal to a general audience, (see here for a discussion of faculty works in progress presentations), I want to turn my attention to the issues I write about.  My current paper compares the gravity of the crimes investigated at the International Criminal Court (ICC) to crimes committed in domestic systems.

Gravity is a term of art at the ICC, and it is used several times in the Rome Statute.  In particular, gravity serves as a threshold for the court to take action.  For example, the gravity of the crimes is a factor the Prosecutor must consider before beginning an investigation.  See Rome Statute, Art. 53.  And the Court cannot hear a case if the crimes are "not of sufficient gravity."  Id., Art. 17.  (The gravity of the crimes are also a factor the court must consider at sentencing, id., Arts. 77-78, but that is less relevant for what I am discussing.)  Thus, the concept of gravity serves an important regulatory function at the ICC - it keeps the court focused on the "most serious crimes of concern to the international community as a whole."  Id., Preamble.  

However, gravity is ultimately a relatively simple idea.  It refers to the seriousness of the crime.  Part of the thesis of my article is that the concept of gravity can be used to draw meaningful comparisons between the seriousness of domestic and international crimes.

I must admit up front that I know a lot less about domestic criminal law than I do about international criminal law, but my sense is that prosecutors rarely formally evaluate the gravity of the crimes in domestic systems before initiating an investigation.  Indeed, in some civil law systems, I believe that prosecutors have a legal obligation to investigate all crimes (although I wonder if there are ways in practice to circumvent such rules).  In such systems, the gravity of the crime is legally irrelevant to the prosecutor's decision whether to investigate.  

In common law systems like the US, prosecutors probably have more discretion about whether to initiate investigations and it may be true that they will sometimes not investigate potential crimes if they do not seem serious enough to warrant the expenditure of investigative resources.   Nevertheless, I am unaware of any rules that would require them to formally evaluate the gravity of a crime before deciding whether to investigate.  (If you have any experience as a prosecutor at either the federal or state level, feel free to chime on this point as I could well be wrong.) 

Despite the fact that gravity does not appear to be a commonly used concept in domestic criminal systems (if you search for "gravity" and "crime" together most of the things you will find relate to the ICC), it is one that I believe can be used to analyse crimes in domestic systems.  In my article, I use the definition the ICC Prosecutor has adopted.  It is a multi-factor test (yay for lawyers and their multi-factor tests!), which combines both quantitative and qualitative components to try and evaluate the seriousness of crimes.  The factors the Prosecutor uses internally to assess the gravity of crimes when deciding whether to initiate an investigation are:

1. The geographic scope of the crimes, particularly the number of crime sites under consideration;

2. The temporal scope of the crimes;

3. The structure and organization of the perpetrators or perpetrator groups;

4. The identity of the victims;

5. The number and type of victims;

6. The manner in which the crimes were carried out, particularly focusing on brutal or inhumane means of committing the crimes); and

7. The legal qualification of the crimes.

These are obviously not all objective variables.  Factors 1, 2, 5, and 6 can (with sufficient work) be described in relatively objective terms.  The other factors, particularly factor 6, are more qualitative in nature.  The result is that gravity is not a purely objective variable.  The goal, however, is to be able to compare the relative gravity of different crimes, and I believe the gravity factors are sufficient for this purpose.

Well, I managed to spend nearly 700 words just talking about gravity.  That seems like enough for now.  My main question for you the readers is whether you think the gravity factors described above can be used to evaluate domestic crimes and compare them to the gravity of crimes investigated by the ICC?

Posted by Stuart Ford on April 7, 2016 at 03:08 PM | Permalink | Comments (4)

Going Meta on the Jr. Law Prawfs FAQ Series

I'll be back on Friday with my next FAQ (on the mysterious rise and perplexing value of online law reviews), but I thought I'd share the provocative response my colleague Deborah Merritt posted about this Jr. Law Prawfs FAQ Series over at the Law School Cafe. The full post is here, but here are seven points that she thinks are essential to reshape our scholarly sphere:

(1)  Give back some of the time we now devote to scholarship. We could use that resource to reduce tuition, expand experiential education, offer more feedback to students, or equalize faculty status (see point #7 below). I strongly support excellent scholarship, but know that we can preserve quality (if not quantity) with fewer resources. The scholars of the 1950’s, 60’s, 70’s, and 80’s did it; so can we.

(2) Reduce the number of scholarly presentations that require travel.Workshops and conferences are terrific ways to promote scholarly exchange, but we have more than is prudent. These sessions are expensive for schools to host, and frequent faculty travel disrupts class schedules. And let’s not forget the major effect that air travel has on global warming. We could cut scholarly travel modestly, replacing some of it with online interactions. We could prune, moreover, in a way that preserves junior and diverse voices.

(3) Encourage both shorter and online forms of scholarship. A short published response to a theoretical piece can promote significant intellectual advancement. Put that essay online and it may stimulate even more discussion. Create an online conference and it will foster both synchronous and asynchronous commentary. These scholarly modes have already emerged but, as Chris’s discussion suggests, junior scholars are unsure of their value. Faculty leaders should make clear that these new scholarly venues make significant contributions.

(4) Balance our scholarly modes. Although I like new forms of scholarship, the traditional law review article and academic book still serve key roles. There are times when a scholar needs to develop an idea fully in an article or book. As faculty leaders, we should promote newer types of scholarship in combination with more traditional outlets. Most scholars will do some of each over an academic career; others will gravitate to a particular mode. We can find balance both individually and as a faculty.

(5) Promote scholarship that helps practitioners and clients. These groups draw value from many types of scholarship. I have discussed my federalism theories with legislators, government lawyers, and judges. Community members have responded enthusiastically to essays critiquing the legal system. We shouldn’t assume that practicing lawyers and their clients are too plebian to appreciate theory. But at the same time, we should not denounce other types of scholarship as too “descriptive” or “doctrinal.” It’s hard to describe legal principles clearly, and legal doctrines are complex. As a result, practitioners and clients benefit from ongoing insights about legal developments. Faculty already recognize the complexity of legal doctrine in their teaching; that same complexity justifies thoughtful, well organized scholarship that guides practitioners and clients through legal thickets.

(6) Value teaching materials as scholarship. Like my plug for professionally relevant scholarship, this point is both old and new. Hart and Wechsler’s revolutionary casebook on The Federal Courts and the Federal System profoundly affected both scholarship and teaching when it first appeared; it undoubtedly continues to do so under its contemporary authors. Creating thoughtful materials for students has always provoked scholarly reflection. Today, as brain science deepens our understanding of pedagogy, there is even more scope for teaching materials that incorporate and further scholarship.

(7) Abolish our faculty caste system. Today’s legal scholarship rests on an uneasy–and deeply unfair–caste system. Tenured professors at many law schools enjoy job security, high pay, light course loads, and extensive research support (summer grants, travel funds, research assistants, computers). These professors rarely teach the time-intensive courses that students, employers, and regulators recognize are essential to professional education. Instead, we rely upon a cadre of professors who are much lower paid, lack full job security, and enjoy little research support to teach those courses. Many of those professors want to do research; indeed, many have produced scholarship without the summer grants or lightened teaching loads that tenured faculty claim are indispensable.

  

@chris_j_walker

Posted by Chris Walker on April 7, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (6)

Wednesday, April 06, 2016

The new median Justice

Geoffrey Stone appeared on Dahlia Lithwick's Amicus podcast to criticize the Republican refusal to move on the Garland nomination. I agree with Stone's basic point that this is politics dressed up as neutral principles that do not hold water.

But Stone made another point, which may be more compelling: Yes, appointing Garland would move the Court to the left of where it is currently, but only to put the Court roughly back to where it was before Justice Alito replaced Justice O'Connor in 2005. His underlying argument goes like this:

   • When Alito replaced O'Connor, Justice Kennedy became the median justice and he is much more conservative than O'Connor, particularly on issues such as affirmative action and reproductive freedom (see, e.g., the Court reversing course on both issues almost immediately after Alito joined the Court).

   • Replacing Souter with Sotomayor and Stevens with Kagan moved the liberal side of the Court further left, creating a broader gap between the two sides, but leaving the median--Kennedy--in the same place.

   • If Garland joins the Court, Breyer or he becomes the new median justice, depending on who is further to the right. That moves the Court to the left because the median moves to the left, from Kennedy.

But to conclude that this only brings us back to 2004 (as opposed to, say, 1967), Breyer or Garland (whoever is the new median) would have to be in roughly the same place ideologically as O'Connor. Instinctively, this seems wrong--both are to the left of O'Connor, even substantially so. But on closer review, it is not so clear. After 80 cases together (about one term), Breyer agreed with O'Connor as to at least a judgment 83 % of the time, more than he did with anyone other than Ginsburg. And the chart in this piece places Breyer as more liberal than O'Connor (who is at the midpoint of the Martin-Quinn Score), although only slightly so. And if Garland is more conservative than Breyer, he must be similarly close to O'Connor on these scales. So maybe Stone is right that it will move the Court left, but not back to the days of a bloc of six reliably liberal Justices.

None of which is going to move the Senate majority, which finds anything to the left of the current Court unacceptable. But is interesting evidence for a counter-intuitive point.

Posted by Howard Wasserman on April 6, 2016 at 06:37 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (7)

#BlackJuriesMatter

Professor Paul Butler has an interesting opinion piece in yesterday’s Washington Post revisiting his 1995 Yale Essay Racially Based Jury Nullification: Black Power in the Criminal Justice System.  In the Post article, he writes:

“[S]ome 20 years later, the whole world knows what African Americans have been saying all along. There are two justice systems in the United States: one for privileged white people, and another, inferior one for everyone else. Last year, 90 percent of the people sentenced in D.C. criminal court were African American, even though blacks make up less than half the city’s population.

Nationally, most of the people locked up for drug crimes are African American, in spite of studies that demonstrate blacks don’t use or sell drugs more than any other group. We make up 13 percent of the country’s population but nearly 60 percent of the people doing time for drug offenses.

And an endless series of videos have shown how black people get policed: the mailman arrested in Brooklyn for yelling at the cops who almost ran him down; the teenage girl tackled by the cop at a pool party in McKinney, Tex.; Eric Garner, arrested for selling a cigarette in Staten Island and then put in a chokehold that killed him.

Like a lot of African Americans, I am sick and tired of being sick and tired. I encourage any juror who thinks the police or prosecutors have crossed the line in a particular case to refuse to convict.”

I have taught about juries since I started teaching law, working them into criminal procedure, advanced criminal procedure, and a seminar class I teach.  I have taught Professor Butler’s theory in my seminar class (along with the response essay).  But, I have not reworked my curriculum to address how the #BlackLivesMatters movement impacts these discussions about juries.  It is a topic I am thinking more about this week as our law school is hosting a symposium entitled “From Protest Movements of the 60s to #BlackLivesMatter: Legal Strategies for an Emerging Civil Rights Movement.” 

Have others of you added #BlackLivesMatters, the “Ferguson Effect,” and/or its impact on race and criminal justice to your classroom teaching?  How?  Plainly, the subject might come up in class discussions, but have you changed your curriculum/readings as a result of changes in society?  Has it changed your strategy of teaching law?

Posted by Andrew Guthrie Ferguson on April 6, 2016 at 03:09 PM | Permalink | Comments (0)

Yes (With Caveats), Publishing a Book Review is Still a Worthwhile Endeavor for Untenured Law Professors

Following up on Chris's follow-up post, and with due appreciation for some of the points made in the comments there, my answer is yes, it is still worthwhile for untenured tenure-track law professors (an unwieldy phrase, but I don't like the increasingly common "pretenured": it may be accurate, given tenure rates, but there's a whiff behind it of unnecessary language massage and an unwillingness to hurt anybody's feelings by suggesting that anyone might not deserve and get tenure) to publish book reviews. Sure, there are cautions to be registered and prudential concerns to consider. But, as a general matter, it is still worthwhile.

The primary reason I think it's worthwhile for untenured law professors to publish book reviews--and, given time limits, the only one I want to focus on--is that I think it's worthwhile for tenured law professors to publish book reviews. Good books in one's field are, well, good, and in my view better and more rewarding than good but long articles. Engaging seriously with a good book can be an intellectually rewarding experience, and part of the way we engage is to write. It is also rewarding, especially in a field in which the currently dominant conventional law review article form is so imperfect, to experiment with different genres and forms of writing. All of these things are as true for untenured law profs as they are for law profs. It makes sense, up to a point, for untenured professors to be given sound professional advice that includes practical and pragmatic advice. But it also makes sense not to put the cart before the horse, and to be wary of the prospect that prudential advice of this sort, offered initially in a regretful, don't-like-it-but-that's-how-it-is way, will become reified and perpetuated, and that people will slowly build normative justifications around it. There ought to be room for serious book reviews in any genre of scholarship in which books are relevant. That should be true for tenured professors. And, in principle, just about any scholarly activity that might be valuable or rewarding for tenured professors, and certainly this one, should be valuable or rewarding for untenured professors.

I agree that given limited time and attention, there are reasons for untenured professors--or some of them; others write and publish a ton--to focus on what needs to get done, not just what they want to do. I don't find that terribly compelling as a general piece of advice, and it's becoming ever less compelling. The tenure clock is relatively long and has, I think, gotten longer rather than shorter. More people are coming out of doctoral studies or fellowships and, depending on what they've negotiated, already have at least one piece towards tenure. Even those whose prior publications don't count toward tenure at least have gotten some practice writing in their field and won't have the same start-up needs that someone coming in cold would. And, frankly, the number of significant pieces demanded for tenure is not huge, and doing a book review shouldn't be a make-or-break factor.

I also agree that untenured professors might want to build up some experience, skill, wisdom, and so on before writing a book review. But here too I think the conditions of the industry have changed. Whatever sense this makes in general, we can at least say that many entry-level law professors have put in some time on their subject, and published in the area, even before entering the tenure track. There's thus less reason to think it's presumptuous of them to assay a book review. Of course they should write the review as modestly as is appropriate given their relevant skills and limits. But that's true of articles as well, despite the not-infrequent immodesty of articles by entry-level profs (immodesty that is indeed noted, if forgiven, by more elderly readers in the field). Finally, one can understand that an untenured professor might want to select projects for impact and to build a voice and reputation. I think good book reviews can do that too, but I agree that articles (and, um, books) are the best way to achieve that goal. On the other hand, building a reputation should be secondary to the scholar's primary interest, which is to do scholarship. An untenured writer who thinks a book review is the right project to pursue, that it is the lesson he or she must learn or the contribution he or she must make, should worry about that first, and let reputational concerns take care of themselves. I think it is at least possible that there are people who internalize lessons about how to build a famous reputation very well, and do everything right, but little that's truly worthwhile. Better, I think, professionally speaking, to ask what your scholarly mission demands of you; if the muse tells you that the answer is "write a book review," write it. 

Perhaps all this is obvious and just goes without saying. I think it is and does. I also think the prudential advice on which people usually focus when asking these questions is mostly pretty obvious too, for that matter. I wouldn't have bothered writing about this. But, whatever the intention of the post or individual comments, I worry about the framing being such that untenured professors convince themselves that "scholar" is not a category with its own imperatives, but rather that there are two distinct categories of scholar: "untenured scholar" and "tenured scholar." I think it's important to reject that view, and that conditions are easy enough for most untenured law professors (if they get the job, which is really the hard part) that there's room enough to focus on the normative "oughts" of scholarship and not just the practical "ises." Indeed, I worry that in the legal academy many entering (and senior) academics hear, know, talk, and think more about the "ises" of scholarship than they do the "oughts."       

        

Posted by Paul Horwitz on April 6, 2016 at 02:23 PM in Paul Horwitz | Permalink | Comments (5)

Serial 2:Epilogue

Last one!  First, thank you to Howard and the crew for letting me comment on Serial.  In my closing note, I’ll situate this case into a standard critique of military justice systems and I’ll give some thoughts on how a military panel might view the mental health evidence in this case.  No spoilers in this post.

One reason why I was excited that Koenig picked up Bergdahl’s story is that this would focus some public attention on the military justice system.  I believe that the American military justice system is probably the fairest justice system in the country: every accused gets a fully-funded public defender who will thoroughly work the issues in his case, and I think that is where the due process rubber meets the road.    

The system is under serious scrutiny right now, primarily over the role that commanders play in it.  Commanders, not lawyers, make the ultimate decisions to convene a court-martial. 

There are two basic criticisms of military justice systems.  One is that commanders do too much.  They have too much power and use it to railroad service members through a rough, harsh, summary process.  Through World War II, American courts-martial looked pretty much like the one depicted in the movie Breaker Morant (great movie, available for rent in Amazon video).  Commanders had extraordinary control over the system: they could set a trial date just a few hours after charging the accused; they controlled the accused’s access to evidence; they could reprimand the panel members for acquittals and light sentences; and there was no real appellate system. 

After World War II, the public lost faith in that system and Congress scrapped it, replacing it with the Uniform Code of Military Justice.  The pendulum swung in the direction of providing significant protections to the accused, many of which greatly exceed those found in civilian systems.

For those of you that are uncomfortable with the FORSCOM commander’s decision to send Bergdahl to court-martial, you may be feeling the pull of this criticism.  The defense team is aware of this pull and has been focusing on the government’s failure to disclose to the public the report from the administrative investigation.  The basic argument is that in modern, fair systems, we provide that information; in archaic, rigged systems, we don’t.  The case is actually on hold right now as some of these issues are being litigated in the military appellate courts.

The other main criticism is just the opposite: commanders don’t do enough, particularly in sexual assault cases, and to a lesser degree, war crimes.  The idea is that in these cases, commanders are running a good ol’ boy network and taking care of their own.  In the past few years, board after board after board after board has explored this issue.  After a flurry of legislative reforms, we are currently in a lull.  Some of this is because we are waiting to see if the reforms will be effective, but the main reason is that the reformers are Democrats and they lost control of the train just as it was really picking up speed.  Interestingly, the pendulum is now swinging back toward providing fewer protections to the accused.

This case may never make it to a fully-contested trial, and even if it does, I expect we won’t get there for at least a year.  But if it does, I expect that many in the public will follow it closely, more so than the recent Manning case and probably more so than any court-martial since Calley (excluding, of course, United States v. Lance Corporal Harold Dawson and Private First Class Louden Downey).   How the public perceives this particular process may well drive future reform efforts.

One last thought.  In my previous post, I said that the real issue in the case will be the appropriate sentence.  The potential sentence could range from nothing to life in prison without parole, but for any sentence greater than 10 years, three-fourths of the panel members have to agree.  There are three big sentencing factors in this case: the harm Bergdahl caused; the Army’s shared culpability for enlisting him; and Bergdahl’s mental health problems. 

Toward that last factor, it may be that the military population is overrepresented by people who will discount the mental health evidence.  When I was a military defense counsel, I found that the people in the system were not very persuaded when you provided evidence of PTSD (which tends to manifest in conduct that is illegal in the military) or other mental health evidence.  Particularly with PTSD, there was a belief that, “I went over there and came out just fine; therefore, this guy must be making this up to use as an excuse for his drug use, or for showing up late, or [insert misconduct here].” 

According to this thought process, people are always 100% in control of their free will.  Maybe this soldier has been through some bad stuff, but it was still his choice to use drugs.  Maybe this soldier suffered from depression, but he still chose to go AWOL.

For a lot of other people, though, mental health evidence is mitigating.  It tends to show that this person’s capacity to exercise free will was reduced.  If two people commit the same crime, and one has a perfect capacity to exercise free will but the other has a reduced capacity, we should punish the person with the perfect capacity more than the one with a reduced capacity.

This should not come as a surprise, but research suggests that conservatives tend to endorse the idea of unconstrained free will while liberals tend to endorse the idea that environmental conditions can limit the exercise of free will.  This translates into the receptiveness toward mental health evidence: conservatives tend to be less receptive, liberals more receptive.

When you just look at the population that runs the military justice system, that population is much more conservative than the general population.  Using Jason Dempsey’s data set (he made a couple of appearances in Serial), I was able to narrow his sample down to just the people in the Army that would run the military justice system, to include potential panel members.  Below is a comparison of that sample to a sample from the general population:

Chart

If I were Bergdahl’s attorneys, that chart would make me nervous, and this is as good as the distribution gets.  The more senior the members on the panel, the more conservative that cohort is likely to be.  The members of Bergdahl’s panel may be predisposed to discount a key part of his case. 

Add to that, this is a panel that has been personally selected by the same commander who sent Bergdahl’s case to a court-martial.  In contrast, the defense counsel unfettered control of the panel composition is, drum roll please, one peremptory challenge.  This aspect of the military justice system seems really unfair to many, and because of that, military appellate courts have created “the liberal grant mandate,” which means that if the defense can put together a plausible causal challenge against a member during voir dire, the military judge should grant the challenge.

I expect a large part the defense’s pretrial strategy will be litigating issues where the real remedy they seek is expansive voir dire.  We may have seen some of this already.  Recently, the defense team sent a letter asking to interview Donald Trump based on Trump’s statements that deserters should be shot, among other gems.  An interview doesn’t really help the defense.  No one cares if Trump really thinks those things.  What matters is whether panel members heard them, and what matters even more is if they agree.  I don’t expect a military judge will order a deposition of Trump, but a military judge will likely give the defense a lot of space in voir dire to go over this, and then liberally grant challenges.

If the defense can identify and challenge the Trump supporters, the panel will become more favorable for the defense.  If they can identify people who will discount their mental health evidence and challenge them, same thing.  Over the next few months, I would expect to see more of this strategy.

Okay, that’s it.  Let’s see what happens at trial, if we get there.

Posted by Eric Carpenter on April 6, 2016 at 09:56 AM | Permalink | Comments (1)

Is Publishing a Book Review in a Law Review Still a Worthwhile Pretenure Endeavor? (Jr. Law Prawfs FAQ)

Following up on my post from Monday on whether it's worth writing a response to a law review article as a junior scholar, I thought I'd turn to the somewhat related question of whether as a junior scholar it's worth doing a full-length book review in a law review. To provide a little background, I still remember some advice a professor gave during my aspiring-professor legal studies workshop in law school over a decade ago (paraphrasing as my memory isn't that good):

Publishing a book review in a law review is an excellent way to introduce yourself to the field because you can interact with a respected senior scholar's work and then let your own voice and ideas come through as well.  There's the additional value that it's easier for a junior scholar to place a book review (especially of a book by a respected scholar in one's field) in a top-tier law review than a traditional law review article. So you build your CV with a top-tier book review placement, which helps you place your first full-length article. And, moreover, scholars in your field are more likely to read a book review from a junior scholar than a traditional article from that same previously unknown junior scholar.

Assuming this advice was good a decade ago, is it still good advice today? Do many law reviews still publish these long-form book reviews? Is it really easier to place a book review than a traditional article in a law review? Is it more likely that scholars will read the book review than a full-length article from an unknown junior scholar in the field?

To be sure, the Michigan Law Review still does its Annual Survey of Books. As Paul Horwitz noted on this blog last year, the Tulsa Law Review also has had a long tradition of publishing a book review issue, though I didn't see a submissions option on their website for this year. And I see the Harvard Law Review and others still publish book reviews on occasion. In fact, Kathryne Young  and Joan Petersilia just published a fun books review in the Harvard Law Review that's definitely worth a read, especially because it reviews, among other books, Alice Goffman's On the Run that has been the subject of some controversy -- though Young and Petersilia conclude (at 1330 n.36) that "[t]he allegations that [Goffman] fabricated data or exaggerated claims have received a fair amount of media attention, but at this point strike us as so poorly founded that they are not worth debating here." [HT Orin Kerr]

I have little insight to offer on this question, as I've never written a long-form book review for law review submission. Sure, I've blogged about books over at the Yale Journal on Regulation, including a contribution yesterday to our symposium on Peter Conti-Brown's terrific new book The Power and Independence of the Federal Reserve. And it's definitely on my bucket list to publish a book review over at The New Rambler (one of my favorite academic websites out there). But blog and website short-form book reviews strike me as a different beast than the long-form law-review book review. The cost-benefit analysis for these online book reviews seems similar to writing responses to law review articles (which we discussed in Monday's post).

With that disclaimer of ignorance, I'm a bit skeptical about the pretenure value of long-form book reviews. Again, it comes back to opportunity costs. It takes a long time to read and digest a book and then come up with something smart to say about it, and an even longer time to then build on the book in a way that furthers one's own research agenda. To be sure, there may be times when the stars align and the book ends where your brilliant research agenda begins. There may also be opportunities to coauthor a book review with a senior scholar in your field, which produces additional benefits (and costs). In other words, there may be exceptions to the general rule. Conversely, I'm not convinced that a junior scholar has a better chance of placing a book review than a traditional law review article, perhaps because I'm not sure law reviews are publishing book reviews as often as they may have been in the past. Nor am I persuaded that scholars in the field are more likely to read a new scholar's book review than her first full-length article.

Do folks agree that the general pretenure rule is probably to focus on other forms of scholarship? I'm quite curious to crowdsource this question and hear the experiences of others (both pre- and post-tenure).

 

@chris_j_walker

Posted by Chris Walker on April 6, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (13)

Tuesday, April 05, 2016

The duty of sources

A federal judge has ruled that "Jackie," the pseudonymous source in the discredited Rolling Stone story about sexual assault at UVa must sit for a deposition in a defamation action brought by a former university administrator. Judge Glen Conrad (W.D. Va.). refused to quash a subpoena for the woman, who claims to have been the victim of sexual assault in a fraternity house, to be deposed by the plaintiff. But Judge Conrad did limit the deposition to five hours over two days (different than the presumption 1 day/7 hours) in the rule. And he ordered the deposition be sealed.

On that last point: The Slate piece ends with the following:

Steve Coll, the dean of the Columbia Journalism School, told The Washington Post this January that he thinks that’s for the best: “It’s an unusual situation, and I understand the argument on the other side, but I would not name her … She never solicited Rolling Stone to be written about. She’s not responsible for the journalism mistakes. To name her now just feels gratuitous, lacking sufficient public purpose. That could change depending on how the legal cases unfold, but that’s my sense now.”

Coll is right, of course, that the attention should stay on Rolling Stone and Erdely, who, unlike Jackie, had a clear responsibility to their readers . . .

I am not necessarily questioning the decision to seal the deposition, at least for now. But I am not sure about the rationale stated in the article--she was not responsible for the journalism mistakes and she did not breach a journalistic obligation to the public. Rolling Stone's "journalism mistake" was relying on her story, making it the centerpiece of the article and not sufficiently checking it out. Which is not to say the source should be a party to the action or should be liable, but it is to say that it is too simplistic to paint her as a total innocent in all of this.

So I am curious, as a matter of journalism law and ethics--How should we understand the obligation of a source in a story that goes bad?

Posted by Howard Wasserman on April 5, 2016 at 09:50 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (5)

A Brief Hello

Hi.  Thanks to Howard for the opportunity to guest bl(o/aw)g here this month.  For those who don't me, I teach criminal law, evidence, and criminal procedure at the Elon University School of Law in Greensboro, North Carolina, and I write about technologies of crime prevention and criminal informants.  I hope to cover a broad range of topics while I'm here: a bit on my research interests, as well as some thoughts on teaching, law school curricula, and some of the challenges I've encountered in my still-relatively-brief career in legal academia.  See you soon.

Posted by Michael Rich on April 5, 2016 at 04:49 PM in Blogging, Criminal Law | Permalink | Comments (1)

The Culture of Faculty Works in Progress Presentations

Hi everyone!

I am very excited to be guest blogging (or maybe that should be blawgging?) this month.  I teach at The John Marshall Law School in Chicago and I specialize in the study of international criminal law and international criminal courts.  Back in the Fall when I volunteered to be a guest blogger I had grand plans for creating a detailed agenda for what I would blog about over the course of April.  Of course, that didn't happen, so instead I will start by talking about what I am doing today.

In a couple of hours, I will be making a faculty work in progress (FWIP) presentation to my own faculty.  Attendance at FWIPs has gone down since the free lunches were axed a couple of years ago for budgetary reasons, but at least you know the people who show up aren't just attending for the free food.

The culture of FWIPs at my school is that scholars present functionally complete papers.  It is rare to see anybody present a paper in an early form, presumably because of the risk of looking foolish if it is too easy to poke holes in the argument.  And, indeed, the paper I will present is functionally complete.  I am sure it is not finished and that there are ways to improve it, but it includes all of the parts that I intended the final paper to have and it has been through several rounds of editing.  For those who might be interested, the paper I am presenting is here.

So, I am presenting a more or less complete paper in part because of the concern about aggressive questioning of a potentially under-thought premise. But the reality is that such questioning is quite unlikely.  If past FWIPs are a prediction of what will happen today, the questioning will be extremely polite.  Moreover, nobody will be out to get me and, while there may be some attempts to pin me down on issues that the faculty believes were insufficiently articulate, attempts to demonstrate that one's arguments are "wrong" are almost never made.

So why do people only present essentially complete papers when the risk of things going wrong if you present an early stage paper are quite low?  I am honestly not sure.  I would guess that we over-estimate both the risk of something going wrong and the consequences that would flow from it.  Moreover, there is a potential pay-off to presenting earlier pieces as there is a greater possibility that critical questions early in the process can improve the direction of the final paper.  In short, I don't think we are necessarily acting rationally and we might be better off presenting something much earlier in development.

Anyway, what happens at your schools?  Are there schools (or types of schools) where there is a real risk of aggressive questioning or where other faculty members might really be out to show that your paper is "wrong"?  Do some of you present early pieces at FWIPs?  If so, why?  Finally, do you agree that the approach to FWIPs at my school is arguably irrational?

Next time, I might talk about the actual paper I am presenting today.  After all, I would guess that the anonymity permitted by the Internet makes it more likely that I will receive more searching/critical questions from my fellow prawfsblawggers than I will receive from my own faculty!

Posted by Stuart Ford on April 5, 2016 at 10:49 AM | Permalink | Comments (9)

How Does My Research Fit Within the Types of Legal Scholarship? (Jr. Law Prawfs FAQ)

A number of junior (and aspiring) law professors have reached out with a common question: How do I conceptualize where my research agenda and/or methodology fits into the larger legal literature? Fortunately, Harvard Law School Dean Martha Minow has already provided a terrific starting point, in an essay entitled Archetypal Legal Scholarship: A Field Guide, which was published in Journal of Legal Education in 2013. Here's the introduction:

It has been my pleasure to be a sounding board and advisor to many people who consider becoming law professors and yet it has not always been easy to introduce people considering their own research projects to reflect on how their ideas connect with the varieties of legal scholarship. One day I decided to write up a “field guide,” meant to be rather like the guides to birds that offer pictures and descriptions to assist the casual or serious birdwatcher. After sharing it and revising it, I have learned that this “guide” now travels underground and electronically, so I thought it time to give it an official publication, and the Journal’s editors kindly agreed. The explosion of interdisciplinary research in law contributes to the variety of legal scholarship. So does the contrast between “inside” and “outside” thinking in law schools where we try both to equip people for practice and effectiveness within existing institutions and for roles as critics, institutional reformers, and scholars who may explain and analyze in terms quite different from those in the minds of actors operating within existing legal systems. So here with an invitation for supplements, critiques, and revisions is my Archetypal Legal Scholarship: A Field Guide.

Definitely go give the full essay (all five pages!) a read here. Tomorrow I'll return with my next FAQ on whether book reviews in law reviews are still a worthwhile pretenure endeavor.

 

@chris_j_walker

Posted by Chris Walker on April 5, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (0)

Monday, April 04, 2016

Serial 2:11

The finale!  (In my best Jim Gaffigan voice, “But eleven isn’t a good number for a finale.  Why would she end a story on eleven?”)  Below the fold, I’ll comment on Koenig’s conclusion about whether anyone died searching for Bergdahl, and I’ll give my thoughts on whether Bergdahl should be prosecuted.  I’ll do one more post where I give some thoughts on how a military panel might view this case and show how this case fits into one of the standard critiques of military justice systems – provided Howard doesn’t lock me out of Prawfs before then. 

For what follows, let me focus us in on the big issue – Bergdahl’s sentence.  If Bergdahl continues to trial, I am certain that he will be found guilty of the two charges he faces (I have discussed this at various points during the season).  The sentencing case is wide open, though.  He can get anything from no punishment all the way to life in prison without parole. 

With a wrinkle.  The military has an unusual voting procedure, which introduces a potential sentencing cap: 10 years.  For any confinement greater than 10 years, at least three-fourths of the panel members must agree on the confinement; for any other punishment, at least two-thirds must agree.  His court-martial is only required to have five panel members, although it will likely have around ten, and let’s assume that number.  So, eight would have to vote for a sentence of more than 10 years, and the real fight for Bergdahl’s attorneys is to convince at least three panel members to block that sentence.  If that happens, then the sentencing range will be zero to ten, where at least seven members must agree.

Koenig doesn’t tell us where she thinks Bergdahl should fall on that scale, but I expect she would vote for zero.  On the leniency side of the scale, she tells us that the Army messed up by bringing Bergdahl onto active duty without first investigating what happened while he was in the Coast Guard.  In this episode, she offers new evidence that what happened was much more serious than a mild panic attack.  She also points to the price Bergdahl paid for his mistake (five years in Taliban custody).

The rest of the this episode is really about the factors that fall on the retribution side of the scale – the price paid by the military mission in Afghanistan at large and by Bergdahl’s fellow soldiers in particular because of his actions.  The focus for many is whether any soldiers paid the ultimate price while looking for Bergdahl.

Early on, the media had reported that six men had died looking for him.  Keonig does a pretty convincing job arguing that no one did, although some soldiers were seriously wounded while looking for him.  In addition to that very real cost, the search for Bergdahl may have had some second and third order effects that may have led to deaths – we could speculate that resources were diverted from unrelated missions that then increased the risks associated with those missions.

I think the very best evidence Koenig offers is the interview of Bergdahl’s battalion command sergeant major, retired CSM Ken Wolf.  Wolf’s explanation, starting at 24:28, is spot on. 

I also think that this interview has one the most touching scenes in the entire season.  Wolf has no love lost for Bergdahl: we have heard him elsewhere in the Series expressing what he thinks of his former soldier.  But Wolf only agreed to be interviewed if he could make this statement to the families of his fallen soldiers:  “Their sons did not die looking for Bergdahl.” 

He recognized that Bergdahl’s actions did not directly lead to anyone’s death, and that recklessly saying that Bergdahl’s actions did cause the deaths of those six soldiers causes serious harm to the families of these soldiers.  Their grief is bad enough without adding to it that their son may have died on a mission that many believe seems to have had no meaning. 

In addition to the evidence that Koenig presented, I think there is another good indication that no one died looking for Bergdahl: the Army did not charge him with causing anyone’s death.  If someone had died looking for him, the Army could have, and I think would have.

The military has a common-law involuntary manslaughter offense (Article 119) that is based on a degree of carelessness greater than that of simple negligence.  If you commit an act that is “accompanied by a culpable disregard for the foreseeable consequences to others of that act,” and a death results, you can be criminally liable.  The risk of death does not have to be that high.  The basis of the charge can be an act that, “when viewed in the light of human experience, might foreseeably result in the death of another, even though death would not necessarily be a natural and probable consequence of the act.” 

Bergdahl’s act (leaving his base) could foreseeably result in the death of someone (those who were directly sent to look for him).  He would still have to be the proximate cause of that death, but that inquiry is pretty much the same as the culpability inquiry (if he was culpable for creating the risk, he will be the proximate cause of the harms that actually materialize). 

Charging manslaughter could have been good strategy for the government.  For one, the government could talk about those deaths during the merits of the case without having to worry about FRE/MRE 404(b) or 403.  Further, the test for introducing that evidence during the sentencing case is about the same as the test for the manslaughter charge itself (only “aggravating circumstances which are directly related to or resulting from the offense” come in during sentencing).  When you bring it on the merits, even if there is an acquittal on the manslaughter charges, the bell has been rung.

I expect that this fully-resourced prosecution team looked into whether anyone died, and based on that, determined that they did not have any evidence to support manslaughter charges.  Instead, they used a charge that is similar but where death is not a required result.  The misconduct before the enemy charge only requires that the “intentional misconduct endangers the safety of [his] command.”  True, this charge carries a life sentence and is pretty simple to prove, but six counts of manslaughter would have brought 60 years, and if you want to push panel members toward the maximum, I think six deaths can get you the three-fourths vote that you need, while simply “endangering the safety of the command” will not.

Returning to the retribution side of the scale, I think Koenig is right in reporting that no one died while directly looking for Bergdahl.  But Bergdahl still caused serious harm.  He caused serious damage to the mission in Afghanistan, and Koenig reports that some soldiers were seriously wounded looking for him.

Koenig ends the series without directly telling us what she thinks should happen to Bergdahl.  For what it is worth, here is what I think: he should be convicted – but should receive no punishment, to include not receiving a punitive discharge.

For me, this case falls into the problem of how you punish unintentional harm.  Many criminal law professors pose this hypothetical to their students: who is more culpable; the drunk driver who runs red light but the intersection is empty; the drunk driver who does the same but barely misses a car; or the drunk driver who does the same and collides with a bus full of children?  Looking strictly at the culpability for the reckless act (drunk driving), they are all equally culpable.  But sometimes the risk materializes and our retributive impulses kick in – and we hammer that actor. 

Koenig reports that at least two other soldiers did the same thing as Bergdahl.  They had mental health problems and walked away from their bases into hostile territory.  But for those two soldiers, the risk that they would be caught by the enemy and start a DUSTWUN did not materialize.  And they were not prosecuted. 

I recognize the harm Bergdahl caused, but I think the Army shares culpability for what happened (they should have never accepted him into the service), and I think his culpability is seriously reduced by his mental health issues.  So if I were on this panel, I would vote for zero.  The bigger question is whether two-thirds of the other panel members on this imaginary panel would agree on sentence of confinement.  I think they will, and I’ll explain that in my next (last!) post.

Posted by Eric Carpenter on April 4, 2016 at 07:33 PM | Permalink | Comments (0)

2016 Texas Legal Scholars Workshop

Presented by

The Southern Methodist University (SMU) Dedman School of Law

and the University of Houston Law Center

Would you like early-stage feedback on a research idea? Or late-stage feedback on an article ready for submission? Or something in between? Your colleagues at SMU and Houston invite you to join us for the second annual Texas Legal Scholars Workshop, to be held on August 26-27, 2016, at the SMU Dedman School of Law in Dallas, Texas. The Texas Legal Scholars Workshop provides an intimate setting for early-career scholars (those with less than 10 years in a full-time faculty position) to receive feedback on an idea, work-in-progress, or a polished draft. We welcome legal scholars from all disciplines.

At the Workshop, each author will present a 5-10 minute synopsis of his or her paper, followed by 15-20 minutes of comments by a primary commenter, followed by an open discussion with other attendees.

The workshop will give participants the chance to meet other early-career scholars in Texas, share feedback on research, and enjoy a few social events. There is no registration fee. Attendees are responsible for their own hotel and travel expenses, but SMU will pay for meals, including a hosted dinner at a restaurant on Friday night.

Who: Scholars with less than 10 years in a full-time law faculty position (including tenure-track, non-tenure-track, clinical, and legal writing positions) at a Texas law school. 

When: The workshop will be on Friday August 26th & Saturday August 27th, 2016. The Friday session will run from approximately 1:00 pm – 6:00 pm, and the Saturday session will run from approximately 9:00 am – 5:00 pm. (These times may be adjusted slightly depending upon the number of attendees.) The deadline for registering is Monday, June 1st. Please register online. When registering, please provide a title for your paper and specify the topic from the pull-down menu. If you have a paper to upload, please do so (we understand that participants may not be able to upload a draft at the time of registration). Updated drafts may be posted at the same web address as your paper progresses.

Each attendee is also expected to serve as the primary commenter on at least one paper. We will assign attendees to papers once we have a final list of participants and topics.

Where: Southern Methodist University, Dedman School of Law (https://goo.gl/maps/dNyc9rAo19D2).

Format: The author will present a 5-10 minute synopsis of his or her paper, identifying specific areas for feedback. Then, a primary commenter will speak for another 15-20 minutes. After that, other attendees may take turns commenting. Each session will last no more than 60 minutes.

Hotel: There are several hotels nearby. We have reserved a block of rooms at the hotel closest to the Law School, the Hotel Lumen. It is a short walk to the Law School and is close to several shops and restaurants.

Questions: Nathan Cortez ([email protected]) or Douglas Moll ([email protected]).

Posted by Howard Wasserman on April 4, 2016 at 04:03 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

2016 Meta-Ranking of Flagship US Law Reviews

This post was written by Bryce Clayton Newell of Tilburg University.

I want to thank Howard for posting this to the blog for me. I have been an avid reader of the blog for a number of years now, and it is nice to have the chance to try something out with you all and get some feedback on an idea for a new way to rank law reviews.

(I realize I may have just scared some of you off :) If not, I appreciate your continued attention.)

I am a long-time Angsting Thread lurker and sometimes commenter/spreadsheet contributor (when I have something to add). This submission cycle, during my “free” time between repeatedly hitting “refresh” on the Spring 2016 Angsting Thread (to read updated comments) while waiting for two articles to get accepted, I put together a meta-ranking of general/flagship US law journals. Law journal rankings show up periodically on PrawfsBlawg (as well as on other popular law blogs), but the semi-annual Angsting Thread continuously includes comments and questions about how to compare offers, whether to use US News rankings (either the Overall Ranking or the Peer Reputation ranking), and how (or whether) to consider alternative, impact-based, metrics like the W&L Combined Ranking or Google Scholar Metrics.

As a junior academic and aspiring prof., I’ve also asked these questions of numerous mentors and former law professors of mine. The advice I’ve gotten generally mirrors the advice I’ve seen in the comments: generally use the US News Overall Ranking (or maybe the peer reputation ranking, although this is less frequently mentioned), and if you can find it, consider the average ranking of a school over the last X years rather than only the most recent annual ranking; the alternative rankings can be useful to e.g., compare a specialized journal with a flagship one or as a way to distinguish between offers from two closely ranked (by US News) general journals, but they should not replace the general consensus that (one of ) the US News rankings is the best gauge of journal prestige.

However, as an interdisciplinary scholar who publishes work in both peer-reviewed social science journals and law reviews, it strikes me as odd that we would discount measures of journal impact completely when choosing where to submit and which offers to prioritize. To be sure, the W&L ranking has some flaws (some described earlier on PrawfsBlawg here) and other citation-based impact factor rankings commonly used in other disciplines (like JCR/ISI) also have their limitations (including poor coverage of law journals). Google Scholar Metrics represents an interesting alternative way to measure impact (Google’s metrics description is here), but also doesn’t have full coverage of law journals and comes with a different set of concerns. Regardless, though, it appears important that some measures of citation or impact are taken into account, as direct correlations between US News rankings of law schools and law journal importance seem a bit weak as the primary (or only) measure to evaluate.

So, to get to the point, I decided to create a meta-ranking of the possible contenders for gauging the relative importance of journals and offers: US News Overall Ranking (averaged from 2010-2017), US News Peer Reputation Ranking (also averaged from 2010-2017), W&L Combined Ranking (at default weighting; 2007-2014), and Google Scholar Metrics law journal rankings (averaging the h-index and h-median of each journal, as proposed here by Robert Anderson). I've ranked each journal within each ranking system, averaged these four ranks using a 25% weighting for each, and computed and ranked the final scores. I think this approach benefits from incorporating a couple different forms of impact evaluation (W&L + Google) while not disregarding the general sentiment that law school “prestige” (USN combined rank + peer reputation rank, each averaged over an 8-year period) is an important factor in law review placement decisions.

I would love to get feedback about whether you think there is any usefulness to doing this in this way, whether you would suggest alternative weightings, different combinations of rankings, or if I have overlooked something (entirely possible, as I was paying more attention to your comments on the Angsting Thread than anything else when I put this together), etc. If it seems that folks are interested and that this might be useful, I can also post full ranking (I’ve ranked 194 journals). I am also working on an attempt to evaluate equivalencies between specialty journals and general ones, and I’m happy to take suggestions or share my initial thoughts on doing that if you’d like to get in touch.

The big movers here (in this ranking versus the average US News Overall Rank from 2010-2017) seem to be (but there are quite a few others who moved around):

  • New York Law School moved up a whopping 38 places (to #99);
  • Vermont moved up 31 places (to #91);
  • UC Irvine dropped 30 places (to #59);
  • Akron moved up 28 places (to #99);
  • Albany moved up 27 places (to #96).

Journals like Fordham (#26, up 10 places), Hastings (#36, up 12 places), Cardozo (#42, up 18 places), American (#46, up 11 places), and Lewis and Clark (#53, up 23 places) that have been frequently referred to in Angsting Thread comments as “hitting above their weight” all also improved at least 10 places (as did Missouri, Connecticut, Denver, Brooklyn, Chicago-Kent, Seattle, Oregon, Buffalo, Santa Clara, Indy, DePaul, South Carolina, St. Louis, Hofstra, Marquette, and Howard). Other journals dropping 10 or more places include: Arkansas-Fay., Kentucky, Georgia State, Temple, SMU, Arizona State, Georgia, and Alabama.

Other sizable moves in the top 20:

  • Chicago (#12) drops 7 places (Google’s ranking moderated the even more drastic difference between Chicago’s US News rank and W&L rank);
  • Iowa moved up 5 places (to #20);
  • Northwestern dropped 4 places (to #16);
  • Michigan (#6), Georgetown (#10), Texas (#11), and Notre Dame (#19) all moved up 4 places.

Finally, here are the top 100 ranking journals in the 2016 Meta-Ranking:

MetaRank

Journal

Change from USN Rank

MetaScore

Avg. USN Peer Rank

Avg. USN Overall Rank

W&L Rank

Google Rank

1

Harvard Law Review

1

1.5

1

2

2

1

2

The Yale Law Journal

-1

1.75

1

1

3

2

3

Stanford Law Review

0

2.75

3

3

1

4

4

Columbia Law Review

0

3.75

4

4

4

3

5

University of Pennsylvania Law Review

2

6.5

9

7

5

5

6

Michigan Law Review

4

8

8

10

8

6

7

California Law Review

1

9

7

8

12

9

8

New York University Law Review

-2

9.25

6

6

14

11

8

Virginia Law Review

1

9.25

9

9

9

10

10

The Georgetown Law Journal

4

9.75

13

14

6

6

11

Texas Law Review

4

12

15

15

10

8

12

University of Chicago L. Rev.

-7

12.75

5

5

25

16

12

Duke Law Journal

-1

12.75

11

11

16

13

14

Cornell Law Review

-1

13.25

12

13

15

13

15

UCLA Law Review

1

13.5

16

16

7

15

16

Northwestern University Law Review

-4

15.25

14

12

13

22

17

Minnesota Law Review

3

15.75

20

20

11

12

18

Vanderbilt Law Review

-1

17.5

17

17

20

16

19

Notre Dame Law Review

4

21.75

27

23

19

18

20

Iowa Law Review

5

22.5

27

25

18

20

21

Boston University Law Review

3

24.25

25

24

22

26

22

William and Mary Law Review

8

25.5

32

30

21

19

23

The George Washington L. Rev.

-2

26

23

21

29

31

23

North Carolina Law Review

11

26

21

34

28

21

25

Southern California Law Review

-7

26.5

19

18

32

37

26

Boston College Law Review

5

27.25

29

31

23

26

26

Fordham Law Review

10

27.25

35

36

16

22

26

Indiana Law Journal

0

27.25

30

26

27

26

26

Washington University Law Review

-7

27.25

18

19

37

35

30

Emory Law Journal

-8

27.5

22

22

36

30

31

Wisconsin Law Review

4

30.25

24

35

40

22

32

University of Illinois Law Rev.

6

31.25

34

38

24

29

33

U.C. Davis Law Review

-1

33

26

32

31

43

34

Florida Law Review

16

36

38

50

34

22

34

Washington Law Review

-6

36

37

28

30

49

36

Hastings Law Journal

12

37.25

36

48

33

32

37

Ohio State Law Journal

3

39

31

40

42

43

37

Washington and Lee Law Review

0

39

33

37

39

47

39

Arizona Law Review

4

39.25

41

43

38

35

40

Alabama Law Review

-13

40.75

42

27

45

49

41

Wake Forest Law Review

0

41.5

44

41

43

38

42

Cardozo Law Review

18

43

53

60

26

33

43

Georgia Law Review

-10

43.75

40

33

47

55

44

Connecticut Law Review

12

45.75

52

56

35

40

45

Colorado Law Review

0

46.25

43

45

50

47

46

American University Law Review

11

47

48

57

43

40

47

George Mason Law Review

-3

48.5

55

44

46

49

48

Brigham Young University Law Review

-6

49.5

50

42

54

52

49

Maryland Law Review

-2

50

47

47

61

45

50

Tulane Law Review

1

52.25

45

51

49

64

51

Utah Law Review

-5

56.5

51

46

57

72

52

Florida State University Law Review

0

56.75

49

52

58

68

53

Houston Law Review

1

57.25

66

54

51

58

53

Lewis & Clark Law Review

23

57.25

79

76

41

33

55

Pepperdine Law Review

-2

58.5

70

53

59

52

56

Arizona State L. Journal

-18

62.5

46

38

73

93

56

Loyola of Los Angeles Law Review

9

62.5

69

65

70

46

58

Missouri Law Review

22

65

65

80

60

55

59*

UC Irvine Law Review

-30

65.5

38

29

111

84

60

University of Cincinnati Law Review

7

66

74

67

55

68

60

University of Miami Law Review

6

66

54

66

67

77

62

Denver University Law Review

11

68

63

73

72

64

63

Brooklyn Law Review

16

69

67

79

53

77

64

Chicago-Kent Law Review

10

69.5

68

74

78

58

65

Seton Hall Law Review

2

70.25

84

67

78

52

66

SMU Law Review

-17

70.5

64

49

74

95

67

Tennessee Law Review

-4

70.75

62

63

65

93

68

The University of Kansas Law Review

7

71.25

61

75

81

68

68

Seattle University Law Review

24

71.25

89

92

66

38

70

Case Western Reserve Law Review

-9

71.5

59

61

85

81

70***

Penn State Law Review

0

71.5

91

70

67

58

72

Oregon Law Review

15

72.25

56

87

74

72

73

University of Richmond Law Review

-9

72.5

82

64

67

77

73

San Diego Law Review

-4

72.5

57

69

78

86

75

Buffalo Law Review

16

73.75

94

91

52

58

76

Temple Law Review

-18

74.25

60

58

84

95

77

Loyola University Chicago Law Journal

1

77.5

77

78

74

81

78

Santa Clara Law Review

22

78

74

100

74

64

79

Georgia State University Law Review

-21

80

76

58

114

72

80

Indiana Law Review

10

81

73

90

89

72

81

DePaul Law Review

23

83

99

104

48

81

82

South Carolina Law Review

19

83.5

94

101

71

68

83***

Rutgers University Law Review

3

83.75

72

86

91

86

84

Nevada Law Journal

-7

84.5

93

77

82

86

85

Kentucky Law Journal

-23

86

71

62

93

118

86

Louisiana Law Review

-3

86.5

101

83

98

64

87**

University of Pittsburgh Law Review

-6

87.75

58

81

106

 

88

Villanova Law Review

-3

88.25

86

85

96

86

89

Saint Louis University Law Journal

10

89.25

99

99

64

95

90

Nebraska Law Review

-8

90.25

78

82

88

113

91

Vermont Law Review

31

91

108

122

94

40

92

Hofstra Law Review

13

91.75

96

105

62

104

93

Marquette Law Review

10

92

87

103

83

95

94

Michigan State Law Review

2

92.75

102

96

55

118

95

Howard Law Journal

23

93

98

118

101

55

96

Albany Law Review

27

98

124

123

87

58

97

Catholic University Law Review

-2

98.75

90

95

97

113

98

Arkansas Law Review

-14

99.25

97

84

139

77

99

Akron Law Review

28

101.25

143

127

63

72

99

New York Law School Law Review

38

101.25

118

137

92

58

I have also calculated the Spearman's Rank Correlation Coefficient for the MetaRank versus each of the four underlying rankings (for schools ranked in the top 100 in the table above) and have charted the correlation (for all journals ranked 1-150 in the MetaRank).

 

USN

USNpr

Google

WLU

MetaRank

0.913

0.930

0.867

0.902

Notes about method: Google Scholar Metrics are currently based on the most recent Google index (updated to June 2015). Some journals that began after 2007 are effected by W&L’s ranking formula described here. Because the US News Ranking has changed how it reports 3rd and 4th Tier schools over the relevant period, I have done the following: for the 2010 and 2011 editions of the ranking, I gave all “Tier 3” schools a value of 115, and all “Tier 4” schools a 150; for 2012-2017, I assigned all unranked schools (those not ranked 1-149) to 150.

* As some journals were not included in the US News Rankings for all 8 years (e.g. UC Irvine was only in the 2016 and 2017 rankings), I have averaged the ranks over just the years they appear, rather than by 8.

** University of Pittsburgh Law Review is the only top 100 journal not included in Google Scholar, as such, I have used W&L’s rank twice to keep the impact portion of the ranking at 50%.

*** Rutgers recently consolidated two law journals into one and Penn State now also has two ranked law schools but only one flagship law review. For each of these schools, I have used the rank in each category (W&L/US News, etc.) that is the highest. Similarly (although not appearing in the top 100 reported here), Widener split and was ranked separately in 2017 by US News (each school taking a separate flagship journal). As such, I have used the separate 2017 ranks from US News but shared the single Widener school ranking reported in US News in its 2010-2016 editions of the rankings.

Last note: I cannot locate the 2015 US News Peer-Reputation rank for Loyola-New Orleans (it is missing from Paul Caron’s annual posting at TaxProf, and I don’t have access otherwise). If someone has that information (or even the underlying scores themselves) and could pass it along, I would appreciate it.

 

Posted by Howard Wasserman on April 4, 2016 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (12)

Should I Write a Response to a Law Review Article (or Allow the Law Review to Solicit Responses to Mine)? (Jr. Law Prawfs FAQ)

It seems a growing trend for law reviews to solicit responses to articles they have selected for publication, with the responses appearing in the print volume or the law review's online companion. (I'll have a separate, more general question about publishing in online law reviews later this month.) The editors of my institution's main journal have been doing this for at least a few years now. I think this innovation is a great addition to the legal academy, but the reasons for that would distract from the questions that prompt this post.

Instead, my questions are two-fold: (1) Should junior law professors agree to write such responses? (2) Should junior law professors agree to have the editors solicit responses to their own articles?

I ask in part because a couple years ago the student editors here mentioned that as part of their sales pitch to publish a junior scholar's article, they mentioned that they would love to solicit responses (either based on names the author suggested or faculty suggestions here). The author's response surprised them: The author didn't think it was a good idea pretenure to have a review of/response to the article in print.

Putting to one side extenuating circumstances (and the cardinal "Ask Your Colleagues" rule), I think this is the wrong instinct, especially pretenure. Responses draw more attention to your scholarship, get you more in-depth feedback during the editing process from an expert in your field, and often can lead to a mentor (or closer colleague) in your field. Pretenure I was fortunate to receive responses on two articles. (Thanks Emily and Leandra!) In both instances, I received critical feedback during the editing process that I would have preferred to receive while I could make changes, instead of in an external review letter for tenure (or in subsequent published interaction with my work). Both scholars have become close mentors, and at least three or four conference invitations have resulted from those relationships built. The observations in their responses featured prominently in the promotion and tenure committee's memo to the faculty and dean recommending tenure. 

Whether to respond to someone's article is a tougher question, especially pretenure, as there are of course greater opportunity costs involved (than just agreeing to allow a response to your own article). Since joining the law faculty here I've written four separate response essays, with a fifth coming out next month. I confess that I haven't agreed to do so with the strategic goal of strengthening my voice in the field or building my tenure file. Instead, I've done so because I thought it would be fun, by allowing me to build on my own work, helping me interact with scholars I wanted to get to know better, and/or just learning something new. My sense is that my faculty didn't know what do to with these shorter responses when considering my tenure file (though there's an argument to be made that central administration probably found the additional publications helpful, especially when they are accustomed to seeing many more publications in a tenure file in other disciplines).

In sum, allowing (indeed encouraging) editors to publish responses to your law review articles seems like a best practice for a junior scholar, but I'm not as sure about expending the time to publish responses to others' work. I've thoroughly enjoyed publishing responses and think responses generally add a lot of value to the legal academy (at least in my field), but one needs to consider the opportunity costs. I'm curious to hear what others think.

 

@chris_j_walker

Posted by Chris Walker on April 4, 2016 at 09:03 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (6)

Is the “Long Game” a “Fatal Conceit,” or Judicial Restraint?

Josh Blackman has written a post on “The Fatal Conceit of Chief Justice Roberts’s ‘Long Game.’” In short, Josh argues that "all of the slow incrementalism that has characterized the Roberts Court presupposes a stasis that is impossible.” As Josh observes, Justice Scalia’s recent death resulted in a 4-4 split in Friedrichs and may soon have similar effects in Fisher II and other cases, thereby illustrating that the Chief’s “plans may never go to fruition” and so have gone "awry." This reasoning assumes that the Chief’s ultimate inability to issue desired decisions is a defeat or failure.

But recent events don't necessarily cast doubt on the Court’s approach in the years leading up to Friedrichs and Fisher II. While it's possible that the recent pattern of postponing major decisions was simply a strategy for achieving desired outcomes with minimal criticism, it's also possible that the justices have aspired to certain norms of judicial responsibility. As a result, the Chief and other justices may have no regrets about delaying big decisions, even if it turns out that the big decisions never come to pass.

There are many good reasons for deferring big decisions, particularly when they would be unexpected. For instance, issuing a big decision can disrupt well-founded public expectations or undermine the Court’s legitimacy. And by providing notice of its intentions, the Court can nudge other branches toward action. The political branches might even choose new justices with an eye toward the Court's apparent plans. In those cases, postponing the decision—and thereby making it less surprising—can make all the difference. And if the decision never actually happens, perhaps due to a change in the Court’s composition, that turn of events wouldn’t undermine the rationale for postponement in the first place. 

A couple years ago, I argued that the Roberts Court was following what I called “the Doctrine of One Last Chance,” or the idea that “the Court must signal its readiness to impose major disruptions before actually doing so.” (Josh discussed this idea in a related post.) Examples involved campaign finance, the Voting Rights Act, the Affordable Care Act, Guantanamo cases, and Fisher itself. While criticizing aspects of this trend, I noted that “the doctrine of one last chance has advantages even when the Court doesn’t ultimately follow through on signaled changes,” including when there are “changes in the Court’s own composition.” Here’s the most relevant passage:

Like a supermajority rule, the doctrine of one last chance creates a procedural hurdle for legal change. … Under the doctrine, judicial majorities must be stable over a period of time before they can issue major decisions. So if a member of the original majority were to retire, that justice’s replacement would be given a chance to either confirm or repudiate the proposed change.

To date, however, no change in composition seems to have either thwarted or confirmed a threatened constitutional change. For example, the same tentative majority that decided Wisconsin also decided Citizens United, notwithstanding the arrival of Justice Sotomayor; and the same majority that decided Northwest Austin later decided Shelby County, notwithstanding the arrival of Justices Sotomayor and Kagan.

Obviously, that last paragraph is now being superseded by events.  A change in the Court’s composition is now affecting the likelihood that previously deferred decisions will ever come to pass. So we might soon look back on the present term as an important illustration of how the Doctrine of One Last Chance can distribute interpretive power across time and thereby limit the power of any temporary Court majority.

For the last ten years or so, the Court’s deferral habits may have seemed like a costless means of achieving desired ends, but that has never actually been true. Every time the Court has deferred a major decision, or intimated the possibility of one, it has known very well that Things May Change and that its precedential prophecies might not prove self-fulfilling after all. By nonetheless exhibiting jurisprudential patience, the Court allowed for the possibility that some eventuality might result in a change of course.  In that context, never following through is a feature of the Doctrine, not a bug.

Whether the Doctrine of One Last Chance is ultimately a defensible mode of judicial restraint is open to reasonable debate. But recent events don’t show it to be a failure, as judged by its own criteria for success.

Posted by Richard M. Re on April 4, 2016 at 08:30 AM | Permalink | Comments (0)

Saturday, April 02, 2016

Rethinking Criminal Procedure in the age of mass incarceration

Thank you to Howard and the PrawfsBlawg family for the opportunity to blog this month.  As a scholar, I write about criminal justice issues with a focus on predictive policing, big data policing, the “Internet of Things” and other issues of how technology distorts Fourth Amendment doctrine.  I also write about juries and other criminal law issues and hope some of those ideas will make their way into blog posts here.

I wanted to begin my blogging career with a question inspired by a wonderful Symposium I attended yesterday on mass incarceration.  The symposium organized by the Wake Forest Law Review and hosted by Professors Kami Simmons and Ron Wright was an important reminder of how mass incarceration impacts all aspects of our criminal justice system. 

In teaching criminal procedure I obviously detail the empirical reality of mass incarceration with a series of slides, statistics, and figures.  But, I realize I do not structure the class with an emphasis on the current practice.  I teach the law as it should be – with constitutional protections (4th, 5th, 6th Amendment rights), trials, effective assistance of counsel, and the like.  I do not put primacy on pleas, misdemeanors, fines and forfeitures, mandatory minimums, collateral consequences, and systemic ineffective defender systems. 

A criminal procedure class that reflected our mass incarceration system might begin with plea bargaining (the outcome of 94%-97% of our criminal cases), defender overloads, prosecutorial discretion, then focus on sentencing, and then spend much of the rest of the class on prison conditions, parole, probation, recidivism, and collateral consequences.  While I mention those issues as aspects with the system (and problems with the system), I do not teach them as the system.  In fact, I teach them after all of the procedural and constitutional protections that make up only a small fraction of the current criminal justice process.

So my question to the criminal justice professors reading, do you teach the criminal justice system “as it is,” or do you teach it “as it should be” (or perhaps was at one point)?  Do you teach the distorting impacts of mass incarceration, and how?

Posted by Andrew Guthrie Ferguson on April 2, 2016 at 04:36 PM | Permalink | Comments (4)

How Do I Become a Voice in My Field? (Jr. Law Prawfs FAQ)

Thanks Howard for the introduction, and thanks PrawfsBlawg for hosting me this month. By way of introduction, I’m a law professor at The Ohio State University where I teach civil procedure, constitutional litigation, legislation and regulation, and state and local government law as well as teach in our Washington DC summer program. My research focuses primarily on administrative law.

Because I blog regularly on administrative law over at the Yale Journal on Regulation, I want to use this opportunity to blog about something else. Having just gone through the tenure process (awaiting Board of Trustees approval), I’ve thought a lot this year about how to become a voice in my field—both pretenure and shortly after tenure. I’ve been fortunate to be surrounded here by a terrific cohort of junior scholars with diverse research interests. Many of our conversations inevitably turn to questions related to maximizing the impact of our precious research time. (Similar conversations, of course, take place with our more senior colleagues.)

I’m guessing we’re not atypical in that respect, as evident by the multiple posts here and elsewhere that address similar questions. That said, I’d love to leverage the collective wisdom of this community to crowdsource answers to a dozen or so questions that junior scholars think about pretenure and shortly after tenure. I'm going to focus on research-related questions (not teaching or service), and all hopefully relate to the larger question of this post about how to become a voice in one's field.

Some of these questions are captured in the outline below—an outline my junior colleagues and I brainstormed at one of our junior faculty workshops a couple years ago. Please don't hesitate to add to the outline in the comments. If you have additional questions you want me to raise as a post, just shoot me an email or include as a comment here. If blog posts (or other publications) already provide an answer, kindly include those links in the comments. Same goes for if you think I'm not asking the right question(s). At the end of the month I’ll assemble all of these in a one-post FAQ for ease of reference.

Below is the outline. I’ll circle back on Monday with my first question.

  • Traditional Approaches to Legal Scholarship
    1. Law Review Articles
    2. Book Reviews in Law Reviews
    3. Symposium Contributions / Organizer of Symposium
    4. Book Chapters / Editor of Book
    5. Academic Press Books
    6. Casebooks / Treatises / Supplements
  • Newer/ish Approaches to Legal Scholarship
    1. Peer-review Articles
    2. Coauthored Scholarship
    3. Interdisciplinary and Empirical Work
    4. Online Law Reviews
    5. Online Law Review Responses
    6. Trade Magazines/Journals/Websites
    7. Jotwell
    8. Online Scholarly Outlets
    9. Op-Eds & Media Consults
    10. White Papers & Other Practitioner or Policy-Oriented Publications
    11. Law Professor Briefs and Of Counsel Filings
    12. Blogging
  • Other Scholarly Activities To Magnify Scholarship, Voice, and Networks
    1. Comment on Works in Progress of Those in Field
    2. Invite Scholars in Field to Your Law School
    3. Conferences & Work-in-Progress Sessions: AALS, regional conferences, junior scholars workshops, and other field-specific gatherings
    4. Organizing Colloquia, Symposia, Conferences, and Other Scholarly Gatherings
    5. Practice-Oriented Groups: ABA, etc.
    6. Scholarship Circulation: Offprints, Emails, SSRN, BE Press, Academia.edu
    7. Ideas Circulation: Twitter, Facebook, LinkedIn
    8. Editorial Boards of Field-Specific Journals, eJournals, and other Publications
    9. Participation in Field-Specific Email List Services, eJournals
    10. Fellowship and Other Funding Opportunities
    11. International Opportunities for Research, Teaching, and Scholarly Interaction
    12. Consulting Opportunities within field, practice area, government, nonprofit, etc.

@chris_j_walker

Posted by Chris Walker on April 2, 2016 at 09:30 AM in Jr. Law Prawfs FAQ, Teaching Law | Permalink | Comments (7)

Friday, April 01, 2016

Litigant Autonomy After Scalia--and Thanks!

           In two previous posts, I reviewed new GMU Law namesake Justice Scalia’s approach to litigant autonomy—or at least, what I think his writings and cases suggest about that approach. Briefly, Scalia seemed to think litigant claim-control rights are substantive entitlements conferred by the law that creates in personam-style rights of action. I also criticized this view.

            One response is, “who cares” whether or not claim-control entitlements are conferred by the law that creates rights of action. Due process requires affording litigants protection for their claim-control interests. So, even if claim control entitlements don't vest through the law that creates a right of action, protection for claim-control flows from basic due process guarantees.

            My interest in how we derive autonomy rights stems from the fact I’m pretty much convinced by Sergio Campos’s thin account of the protection that ought to be afforded litigant autonomy as a matter of due process. If you buy Sergio’s due process argument, as I tend to do, and are a skeptic about the claim that autonomy is a positively conferred substantive right, it means that there's more space for work theorizing why we protect litigant autonomy to the degree that we do.

            There’s already interesting work out there pursuing that project. I highly recommend Ryan Williams' piece on litigant autonomy, Due Process, Class Action Opt Outs, and the Right Not to Sue, available here. He makes an important move by reframing opt out as a protection afforded claim-owners’ interests in controlling whether to assert a claim in the first place.

            In this paper, I rotate our view of litigant autonomy in a slightly different direction. The power to control a claim is not just the power to control whether to assert it—but where to assert it. It’s the power to put legal issues and remedial interests on a court’s dispute resolution agenda.  

            In the article, I make two claims about agenda-setting power conferred by claim-control—the first, which I will quickly summarize below the line for those who might be interested, is that the shift opens the door to appreciating that litigant autonomy actually does some important work in our system of judicial federalism.

            Although federal-state jurisdictional concurrency is characterized in a number of different ways, I take the conventional view: concurrency uses judicial competition to break down or check concentration of the business of dispute resolution in the federal system.

            Concurrency does this in part through what might be called agenda-setting rules—rules that specify who gets to pick between competing forums. Subject to some exceptions, our system generally employs a plaintiffs-pick-the-forum rule, reflected in, say, the well-pleaded complaint rule and voluntary/involuntary rule in diversity jurisdiction. Together, both empower plaintiffs to control which courts, state or federal, get to decide their case by exploiting aspects of claim-control--their control the theory of the case and the party structure.

            Scholars puzzle over the plaintiff-picks-the-forum rule. Considered in isolation, it plausibly furthers the anti-concentration goal of concurrency-- largely because plaintiffs have historically tended, for a variety of reasons, to prefer state over federal court.

            But, the plaintiff-picks rule really gains its force as a check on federal consolidation when it is layered on top of the principle that individual plaintiffs control their own claims—or in other words, when plaintiff-picks is hitched to a regime of litigant autonomy.   Litigant autonomy decentralizes the power to set the judicial agenda among a network of claim owners. Because litigants, in turn, naturally tend to have different forum preferences, that decentralization tends to fragment litigation across federal and state forums.

            Not perfectly, of course. And not evenly. But it does so nonetheless. That’s, indeed, exactly what we see when we take the class device away, as we have, for the most part, in mass torts. The federal class action consolidates remedial interests in federal court in part because it overrides class members’ autonomy and with it their exploit the theory of the case and party structure to control where their claims end up. Take the class action away, give class members control over their own claims, and some chunks of mass litigation inevitably radiate out of federal courts reach into state court as litigants exploit their claim-control to park there claims there. True before CAFA. True after.

            This fact, I argue, points out the plausibility of treating the traditional claim-control entitlement as traditional component of the system of concurrency—one that furthers that system’s anti-concentration goals.

            That’s my first claim—litigant autonomy does some work in our system of judicial federalism. My second claim is that appreciating litigant autonomy’s role in the system of concurrency has some interesting formal implications for federal class action doctrine—one that allows us to draw on intertwined separation of powers and federalism principles to make a case for narrow constructions of Rule 23. (The argument also reinforces the claim made by others that the Court ought to be deferential to the rulemaking bureaucracy—treating it, effectively, as a stand-in for Congress or, put another way, as a system of internal separation of powers--a point I’m exploring in a current working paper).

            My argument, incidentally, echoes older, and lost, approach to litigant autonomy that appears in mid-century cases (see the oft-neglected concluding part of State Farm Fire & Casualty v. Tashire, where the Court construes statutory interpleader's application to mass torts narrowly in order to protect litigants’ “substantial right” to choose a state forum, for example). Rather than summarize this second claim, I’ll let you read the article yourself, if you are interested.

            Thanks to Howard and Prawfs for the invite to blog over the last month!

Posted by Mark Moller on April 1, 2016 at 01:48 PM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

New SSRN Paper: Five-Second Rules vs. Five-Second Standards

New today on SSRN is my draft article, Five-Second Rules vs. Five-Second Standards. It follows indirectly on my work on biases and heuristics in and epistemological questions concerning the First Amendment, as well as my interest in non-legal authority, although the proximate inspiration for the paper was more personal. Of special note is that it is the first paper to address this question in the legal literature. Here's the abstract:

The study of non-legal social norms has opened up new vistas for legal academic engagement with a variety of phenomena that, although not expressed through positive law, nevertheless have powerful implications for the facilitation and regulation of social conduct. Many of the epistemological, behavioral, and normative questions raised by positive law are placed in close relief when examined in the context of other forms of “law.” An enduring question in law is the “rules vs. standards” debate, and an enduring element of the “rules vs. standards” debate is the question whether the two stand in stark opposition to one another or exist on a continuum of ruleness and standardness. I examine this question, and raise others, through an interrogation of a classic, well-accepted, rule-like social norm: the “five-second rule,” which posits that it is acceptable to eat food that has dropped on the ground, provided that it has not remained there longer than five seconds. This is the first examination of the five-second rule in the legal academic literature, although it has been discussed in other fields.

The heart of the Article is an empirical study—the first such study in the legal literature. At a law school faculty lunch, a close count was kept of subjects’ responses upon dropping food on the ground. A variety of scenarios were involved, including inadvertent food-dropping by the experimental subjects themselves and a series of planned incidents in which the tester arranged for a sub-optimal number of cookies to be offered for dessert, and then conspicuously dropped a particularly attractive chocolate chip cookie on the ground and signaled that anyone wishing to pick it up was welcome to it. Preliminary results revealed three things: 1) most subjects observed the five-second rule, but not closely, with subjects indicating a willingness to pick up and eat food as long as seven or eight seconds after it had dropped on the ground; 2) despite prevailing norms of cooperation and civility, subjects were willing to fight, to the point of wanton brutality, over the last cookie; and 3) the primary variable affecting willingness to pick up food past the five-second point was the subject’s number of years in teaching post-tenure. Indeed, in situations where food remained on the ground past five seconds, a statistically significant cohort of senior professors waited until the room had cleared following the event, and then returned when they thought no one was looking to pick up the food and take it back to their offices. This experiment, relying as it does on a limited and non-representative sample of experimental subjects, in a situation far removed from standard real-world environments, and despite multiple failures to replicate the result, offers highly significant results that are easily generalized to suggest—for the first time in the legal literature—dramatic descriptive and normative implications.

Following a lengthy recitation of the experiment and its results, this Article spins out a number of novel conclusions appearing in this Article for the first time in the legal literature. First, and somewhat counter-intuitively, it turns out that even the five-second “rule” is, in fact, a standard. This suggests that even carefully reticulated rule specifications do not and cannot eliminate room for careful situational judgment and discretion. That conclusion has important implications for a variety of laws and social norms, including speed limits, Chevron deference, and the categoricalism vs. balancing debate in constitutional law. Second, interrogating the five-second rule has important implications for the question whether compliance with legal rules and social norms rests on an adequate epistemological or policy basis. The five-second rule remains a powerful constraint on conduct despite the fact that the rule has little basis in scientific fact and relies heavily on behavioral heuristics untethered from sound policy. Moreover, and despite its disconnection from sound or rational behavior, the rule itself reifies wider disparities and inequalities in access to relevant information. Studies in other disciplines show that while only 56 percent of men surveyed were even aware of the five-second rule, fully 70 percent of women knew of it. These gendered disparities demand additional study. Finally, and in keeping with important recent work on “sticky norms,” “sticky slopes,” “sticky defaults,” “sticky knowledge,” “sticky expectations,” “sticky metaphors,” and “sticky compliance,” the Article is the first in the legal literature to argue that the five-second rule is itself an example of a “sticky rule.” Literally.

 

Posted by Paul Horwitz on April 1, 2016 at 08:13 AM in Paul Horwitz | Permalink | Comments (0)