Wednesday, October 16, 2019

JOTWELL: Bookman on new approaches to dispute resolution

The new Courts Law essay comes from Pamela Bookman (Fordham), reviewing Matthew Erie, The Emergent Landscape of International Commercial Dispute Resolution, ( Va. J. Int'l. L., forthcoming 2020) and Will Moon, Delaware's New Competition (Nw. U. L. Rev., forthcoming 2020), exploring new procedural mechanisms for handling business disputes in other countries.

Posted by Howard Wasserman on October 16, 2019 at 11:45 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, September 23, 2019

JOTWELL: Campos on Bartholomew on e-notice in class actions

The new Courts Law essay comes from Sergio Campos (Miami), reviewing Christine P. Bartholomew, E-Notice, 68 Duke L.J. 217 (2018), exploring the use (or non-use) of new technologies for providing notice in class actions.

Posted by Howard Wasserman on September 23, 2019 at 10:50 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, September 04, 2019

JOTWELL: Levy on Fisher and Larsen on virtual briefing

The new Courts Law essay comes from Marin Levy (Duke), reviewing Jeffrey L Fisher & Alli Orr Larsen, Virtual Briefing at the Supreme Court (Cornell L. Rev., forthcoming), exploring how online speech and writing affects SCOTUS decisionmaking.

Posted by Howard Wasserman on September 4, 2019 at 11:36 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Friday, August 09, 2019

Lawyering Somewhere Between Computation and the Will to Act: The Last Outtake

I've now posted my summer project on SSRN (it's my contribution to the "Lawyering in the Digital Age" conference I mentioned earlier). The title has changed since I first posted a week or so ago - and that turns out to be one of last outtakes.  It's now Lawyering Somewhere Between Computation and the Will to Act: A Digital Age Reflection, with the following abstract:

This is a reflection on machine and human contributions to lawyering in the digital age. Increasingly capable machines can already unleash massive processing power on vast stores of discovery and research data to assess relevancies and, at times, to predict legal outcomes. At the same time, there is wide acceptance, at least among legal academics, of the conclusions from behavioral psychology that slow, deliberative “System 2” thinking (perhaps replicated computationally) needs to control the heuristics and biases to which fast, intuitive “System 1” thinking is prone. Together, those trends portend computational deliberation – artificial intelligence or machine learning – substituting for human thinking in more and more of a lawyer’s professional functions.

Yet, unlike machines, human lawyers are self-reproducing automata. They can perceive purposes and have a will to act that cannot be reduced to mere third-party scientific explanation. For all its power, computational intelligence is unlikely to evolve intuition, insight, creativity, and the will to change the objective world, characteristics as human as System 1 thinking’s heuristics and biases. We therefore need to be circumspect about the extent to which we privilege System 2-like deliberation (particularly that which can be replicated computationally) over uniquely human contributions to lawyering: those mixed blessings like persistence, passion, and the occasional compulsiveness.

The deleted title (before the colon) was Unsure at Any Speed, a bit of just-a-tad-too-clever wordplay on my part.

As you can see, the piece is an exploration of the upsides and downsides of, in Daniel Kahneman's coinage and book title, Thinking Fast and Slow.  My little joke was/is:
Over a forty-year professional career, in Kahneman’s lexicon, my thinking has been both fast and slow. What that really means is that often I was unsure at any speed. At the same time, I made binary “go/nogo” decisions in the face of complexity and uncertainty.

What I thought was really clever was the play on Ralph Nader's Unsafe at Any Speed, his classic 1965 takedown of the Chevy Corvair. One of my reader/editor/commenter/friends, clearly far too young to catch the allusion, tagged it with a big question mark.  A good reason to have a reader/editor/commenter/friend, because her suggestion that I perform a pre-colon-oscopy on the title was well-taken.

The ultimate outtake.

Posted by Jeff Lipshaw on August 9, 2019 at 10:33 AM in Article Spotlight, Legal Theory, Lipshaw, Web/Tech | Permalink | Comments (0)

Monday, August 05, 2019

DeStefano on "the Adjacent Possible"

Michele-DeStefano_cropLast week, one of the SSRN journal emails included a new piece by an old friend, Michele DeStefano (Miami, left) - Innovation: A New Key Discipline for Lawyers and Legal Education. From the abstract:

It begins by demonstrating that clients' call for innovation is really a call for transformation in service from their lawyers. It then explores why answering this call can be problematic for lawyers. It seeks to show that lawyers' professional identity, training, and temperament (along with extrinsic and intrinsic motivation) make it difficult for lawyers to adopt the collaborative, creative mindset and skillset of innovators. This chapter recommends that innovation be incorporated as a new key discipline at both the law school and executive education (continuing education) level because in the process of learning how to innovate, lawyers hone the mindset, skillset, and behaviors that clients desire. In support of this contention, it reveals that, as an added benefit, by honing the innovator's DNA, lawyers also grow into inclusive leaders our society needs us to be. The chapter concludes with some suggestions for lawyers to help them better collaborate towards innovation along with a pie-in-the-sky call to the legal universe to make innovation the new key discipline for practicing and aspiring lawyers.

This is music to my ears - because it's about the self-imposed limitations, for better or worse, that can be the result of the frames or presuppositions from which many lawyers (and law professors) see and make sense of the world (e.g., deliberately, logically, algorithmically, dispassionately, syllogistically). Michele's point here (and in her book Legal Upheaval: A Guide to Creativity, Collaboration, and Innovation in Law) is that kind of square-cornered thinking is just the beginning; clients will demand as well a collaborative and creative mindset in order to craft solutions to problems.

What was particularly delightful was finding Michele's incorporation of a coinage from Stuart Kauffman, M.D., theoretical biologist, and complexity researcher (University of Chicago, University of Pennsylvania, Santa Fe Institute, among other affiliations), about the "adjacent possible." I also recently came across Kauffman's work, and I've used it in the piece (title has changed but that's another blog post to come) from which I've been out-taking this month. The "adjacents possible" are the possible next states from the one in which we are in or which we are observing. Kauffman's point was to distinguish the adjacent possible in physics (or cybernetics) from that in a complex biological or economic system.  In a physics or computational system, all of the adjacents possible in either direction, all state changes, are predictable. But not so in biology (and I would add, in human thought). There, the move to the adjacent possible (the set of all possible next states), while not random, is not predictable. (I like this particular observation: the universe has constructed every possible stable atom, but not every possible protein.)

The connection to human creativity and innovation should be obvious.

More to come later.

Posted by Jeff Lipshaw on August 5, 2019 at 09:37 AM in Article Spotlight, Lipshaw, Teaching Law | Permalink | Comments (0)

Saturday, August 03, 2019

Administrator bias and legal frameworks

I have posted a draft of an article entitled Bias in Regulatory Administration.  Comments welcome.

The larger questions of which this article is a part are not at all new:  How ought we to think about the sacred principle that We the People are entitled to an open-minded, neutral decisionmaking in administrative agency decisionmaking -- especially in the context of administrative adjudication, but even on occasion in rulemaking?  Should the principle be different in the regulatory context than in the traditional courtroom, given unique features of the administrative state?  Lon Fuller famously opined on this question in "Forms and Limits" and Judge Friendly's famous unpacking of the requirement of "some kind of a hearing" furthered helpfully the discussion in an earlier era.

Although my paper doesn't address, except in passing, this issue, there are some important reasons to reconsider the entire matter of administrator bias, both at the level of principle and of administration, given the rise and impact of machine-learning mechanisms in the regulatory administration context.  Discussions of algorithmic bias is all the rage, and rightfully so.  My hope is that we can tie together more ambitiously the deep questions underlying discussions of AI, its promise and pitfalls, to ubiquitous issues of bias, interest, and influence as they have arisen in the doctrinal context for a long while in administrative law.  That, in any event, is the more global question of which this paper is a small part.

Posted by Dan Rodriguez on August 3, 2019 at 01:40 PM in Article Spotlight, Daniel Rodriguez | Permalink | Comments (3)

Friday, August 02, 2019

Confusion of the Inverse??

At JOTWELL, Omri Ben-Shahar has a review of a forthcoming article in the Stanford Law Review claiming to have shown in a study that consumers are cowed by a consumer contract's fine print even if they believe they have been defrauded by the seller - i.e., have been expressed guaranteed A and learn later that (i) they aren't getting A, and (ii) the fine print says they have no legal right to A. (The reviewed piece is Meirav Furth-Matzin & Roseanna Sommers, Consumer Psychology and the Problem of Fine Print Fraud, 72 Stan. L. Rev ___ (2020)).

I've been blogging with outtakes from the not-quite-ready-for-prime time Unsure at Any Speed . Here the outtake intersects with another subject on which I have gotten involved recently: how to deal with the spread of detailed and unread consumer contract fine print, particularly given the ease by which it can appear to be made binding via internet click-throughs.

The question is not whether the conclusions Furth-Matzin and Sommers draw from their laboratory experiments are correct.  First, I don't know enough about qualitative research methods to assess their hypotheticals and questions to test subjects. Second, from what I can tell, they have given enough detail about the methodology to allow the tests to be repeated and therefore falsified. So I accept them for what they seem to say: people seem to take the fine print seriously even when they know they have gotten screwed.

My question is rather about empirical statements that underlie the study to begin with. Is it the case that widespread non-readership of fine print leaves consumers open to exploitation by unscrupulous firms? Is it true that sellers can outright lie about their products and services and then contradict the lie in the fine print?  The Stanford article takes the answer "yes" to those questions as a given, and then proceeds to assess the impact of fine print, given that there was fraud.  I cannot find, however, at least in the footnotes on the first six pages of the article anything other than a couple of anecdotes in support of the proposition that unscrupulous firms are a widespread problem.  I'm not saying they aren't; I just don't see any evidence one way or the other.

Is this an example of "confusion of the inverse," the subject of my outtake?

What I mean by "confusion of the inverse"

I cut from Unsure a detailed explanation of the "confusion of the inverse." It is, along with things like availability heuristic, the law of small numbers, hindsight bias, and confirmation bias, an example of the predictable divergences from actual probabilities to which Kahneman, Tversky, and others demonstrated humans are prone. My particular heuristic/bias peeve has to do with academic assumptions about the morality and competence of corporate oversight (Caremark doctrine for you governance nerds), exacerbated perhaps when, my having recently been been a corporate executive, a colleague blithely characterized corporate executives as "turnips" at a workshop shortly after I joined the faculty.

Here is the confusion of the inverse applied to my peeve.  Conditional probability is the quantification of the following question: given the probability that A is true (P(A)), what is the probability of B given A (P(B/A))?  The formula for deriving the answer is:

P(B/A) = [P(A/B) x P(A)]/P(B)

What we are trying to derive is the probability that we have a corrupt/incompetent board given that we have observed material corporate wrongdoing.

The probability of MW among the set of all corporations is P(A).

The probability of MW given CIB is P(A/B).

The probability of CIB is P(B).  Note that you can have a CIB even if you don't have MW, and you can have MW even if you don't have CIB.

Our formula now looks like this: P(CIB/MW) = [P(MW/CIB) x P(MW)]/P(CIB)

So...

Let's assume the following.  It turns out MW among all corporations is very rare.  Say P(MW) = .01 (one in a hundred).

The probability of material wrongdoing, however, is very high, IF you have a corrupt/incompetent board.  Say P(MW/CIB) = .95

The formula gives us the following numerator:  .95 (the probability of MW given that we have a CIB) x .10 (the probability we have MW).

But remember you can have a CIB even if you don't have MW, and you can have MW even if you don't have CIB.  So the denominator P (CIB) has to take all possibilities into account.

Hence, P(CIB) = [the probability that there is MW given CIB times the probability of MW] plus [the probability that there is MW with no CIB times the probability of no CIB].

So... P(CIB/MW) = (.95 x .01) /[(.95 x .01) + (.05 x .99)]

P(CIB/MW) = .16

So given that you observe material wrongdoing, the probability of also encountering a corrupt or incompetent board P(CIB/MW) is .16.  The confusion of the inverse is to believe P(CIB/MW) is .95.  It is not to say that you can't have corrupt or incompetent boards. It is to say instead that it is wrong to assume board members are turnips just because you observed material wrongdoing.

There are even more malignant examples of the confusion of the inverse.  When a police officer pulls over a car, what is the probability that there are drugs in the car, given that the driver is African-American?  When TSA does a search, what is the probability that the individual is a terrorist, given that he/she appears to be Middle Eastern?  When you are tested for a rare disease, what is the probability you have it, given that the test is positive?

Confusion of the inverse and contract fine print issues

As I said, I express no view on the study in the Stanford Law Review article.  I just don't see any evidence about the prevalence of out-and-out fraud. My intuition is there is probably less of it than the article seems to suggest.

That isn't to say there aren't real fairness issues with fine print. I have engaged with Rob Kar on his Harvard Law Review article with Margaret Radin, the thesis of which is to ground an attack on over-reaching boilerplate on a demarcation of the "true" agreement between the contract drafter and the consumer by way of Grice's "conversational maxims" and an actual shared meaning.  (Theirs is Pseudo-Contract and Shared Meaning Analysis; my response, just published in the Australasian Journal of Legal Philosophy (Vol. 43, pp. 90-105) is Conversation, Cooperation, or Convention? A Response to Kar and Radin.)

What I take from the Stanford Law Review study is that consumers aren't completely led down the primrose path by the fact of "fine print" - they expect there to be terms and conditions even if they don't read them.  The study seems to bear that out, even in the extreme where the consumer really does believe he/she/they got screwed. The real question is to what extent should the fine print be binding.  I agree with Omri that disclosure is not likely to be helpful - oy, more fine print disclaiming the fine print. Nor do I think trying to find the actual agreement or shared meaning is going to be fruitful.  Rather, there is a convention about what is and is not fair, and that probably ought to be reflected in regulation.

Posted by Jeff Lipshaw on August 2, 2019 at 11:45 AM in Article Spotlight, Corporate, Culture, Law Review Review, Legal Theory, Lipshaw | Permalink | Comments (2)

Wednesday, July 31, 2019

JOTWELL: Smith on Litman on remedial collapse

The new Courts Law essay comes from Fred Smith (Emory), reviewing Leah Litman, Remedial Convergence and Collapse, 106 Cal. L. Rev. 1477 (2018), exploring how recent doctrine has caused the exclusionary rule, habeas limits, and qualified immunity to converge, resulting in denial of all remedy for constitutional violation. Both are worth a read.

Posted by Howard Wasserman on July 31, 2019 at 10:36 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, June 04, 2019

JOTWELL: Wasserman on multiple authors on the problems with SCOTUS term limits

I have the new Courts Law essay, reviewing Christopher Sundby & Suzanna Sherry, Term Limits and Turmoil: Roe v. Wade's Whiplash (forthcoming in Tex. L. Rev.) and Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court (forthcoming in Yale L.J.). The first article shows the doctrinal instability that might arise from 18-year term limits, using an empirical study of Roe; the second offers two alternatives to term limits.

One of the Epps/Sitaraman proposals would have a fifteen-person SCOTUS comprised of ten permanent Justices (five from each major party) and five lower-court judges sitting for one term, chosen unanimously by the permanent members. Democratic presidential candidate Pete Buttigieg has endorsed that proposal, but Elie Mystal believes it is unconstitutional and naive, if exciting.

I somewhat like the other Epps Sitaraman proposal of the Supreme Court Lottery--the "Court" consists of every court of appeals judge and each sitting two-week sitting features a randomly selected panel of nine. This would have the interesting effect of making SCOTUS more like an ordinary federal court, which might not be a bad thing.

Posted by Howard Wasserman on June 4, 2019 at 11:26 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (2)

Thursday, May 23, 2019

JOTWELL: Erbsen on Frye on Tompkins

The new Courts Law essay comes from Allan Erbsen (Minnesota), reviewing Bryan L. Frye, The Ballad of Harry James Tompkins, 52 Akron L. Rev. 531 (2019), which argues that we may have the facts of Erie wrong, that Tompkins actually was trying to jump on the train when he was struck by that protrusion.

Posted by Howard Wasserman on May 23, 2019 at 11:57 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

FIU Micro-Symposium: Infield Fly Rule Is in Effect (Updated)

I am happy to announce that FIU Law Review has published a micro-symposium on my book, Infield Fly Rule Is in Effect. We found nine people, in and out of legal academia, to write short comments, followed by my overall response. This was fun to put together.

I want to flag two contributions containing ideas that I really wish I had seen or thought of myself while I was writing the book, if only to respond to them.

Rob Nelson, a former minor-league pitcher and the founder of Big League Chew, introduced what he called the "Enfield Fly Rule." There are two versions, both designed to keep the basic protections of the Rule in place but denying to the defense any windfall from an unintentional drop. Under one version, an infield fly is a foul ball, so the batter is out if it is caught and the ball is foul if it is not caught. Under a second version, the ball is fair and live if caught (so the runners could tag-up), but a do-over if not caught (so it does not even count as a strike).

Spencer Waller (Loyola) identifies another non-baseball situation requiring a limiting rule--flopping in soccer and in basketball. Both fit the criteria I described for when a limiting rule is needed to deter the conduct and avoid an extraordinary benefit. What is interesting is that the solution both soccer and basketball have come up with is post-game sanctions of fines and/or suspensions should officials, upon reviewing plays on video, identify a flop. But these rules do nothing to sanction or deter the flop in the moment, thereby allowing the flopping player to gain the benefit of the flop (a penalty kick or red card in soccer, free throws or a turnover in basketball). So fines or suspensions may not provide sufficient deterrence against the conduct--a player may deem the flop worth it in the moment to allow his team to win, willing to deal with a fine or even one-game suspension after the fact.

Posted by Howard Wasserman on May 23, 2019 at 11:48 AM in Article Spotlight, Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, May 07, 2019

JOTWELL: Mulligan on Spencer on personal jurisdiction in federal court

The new Courts Law essay comes from Lumen Mulligan (Kansas), reviewing A. Benjamin Spencer, The Territorial Reach of Federal Courts, Fla. L. Rev. (forthcoming), which argues for federal courts exercising jurisdiction based on national contacts through a self-executing Fifth Amendment Due Process.

Posted by Howard Wasserman on May 7, 2019 at 11:44 AM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Tuesday, April 23, 2019

JOTWELL: Coleman on public comments on the code of judicial conduct

The new Courts Law essay comes from Brooke Coleman (Seattle), commenting on the proposed changes to the federal judicial code of conduct and the advocacy work by the Law Clerks for Workplace Accountability.

Posted by Howard Wasserman on April 23, 2019 at 10:59 AM in Article Spotlight, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Wednesday, April 17, 2019

FIU Law Review: Barnette at 75

I am happy to announce that the new issue of FIU Law Review is available online, featuring last fall's symposium Barnette at 75: The Past, Present, and Future of the Fixed Star in Our Constitutional Constellation. The hard version (which includes Q&A transcripts and a contribution from keynote speaker John Q. Barrett) should be available soon. Ron Collins wrote something up at FIRE. My introduction includes a discussion of an issue I have been playing with--whether, if you could establish state action (which I do not believe you can), the NFL violates the First Amendment by prohibiting players from kneeling during the anthem.

The TOC and links are available after the jump.

Volume 13, Number 4 (2019) Barnette at 75: The Past, Present, and Future of the Fixed Star in Our Constitutional Constellation

Front Matter

Introduction

Introduction: Barnette at 75
Howard M. Wasserman

Articles

Posted by Howard Wasserman on April 17, 2019 at 01:38 PM in Article Spotlight, First Amendment | Permalink | Comments (1)

Tuesday, April 09, 2019

JOTWELL: Thomas on Fountain & Willard on plea bargaining with juveniles

The new Courts Law essay comes from Suja Thomas (Illinois), reviewing Erika N. Fountain & Jennifer L. Willard, How defense attorneys consult with juvenile clients about plea bargains, 24 Psych. Pub. Pol'y & L. 192 (2017).

Posted by Howard Wasserman on April 9, 2019 at 09:20 AM in Article Spotlight | Permalink | Comments (0)

Tuesday, March 26, 2019

JOTWELL: Steinman on Burbank & Wolfe on class action statutes of limitations

The new Courts Law essay comes from co-section-editor Adam Steinman (Alabama), reviewing Stephen B. Burbank & Tobias Barrington Wolfe, Class Actions, Statutes of Limitations and Repose, and Federal Common Law, 167 U. Pa. L. Rev. 1 (2018), considering the common law nature of the tolling rules for FRCP 23.

Posted by Howard Wasserman on March 26, 2019 at 10:35 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, March 19, 2019

Racial bias and diversity jurisdiction

Scott Dodson's new article (forthcoming in Duke L.J.) came at a good time, as I began diversity jurisdiction (and the rationales for it) Monday and continue on it tomorrow and have presented some of his ideas in class. Scott argues that outsider bias does not justify diversity jurisdiction, while considering other reasons for having (and perhaps expanding) that jurisdiction. This includes suggestions that diversity jurisdiction might alleviate racial bias in state courts.

Reorienting diversity jurisdiction around racial bias (regardless of in- or out-of-state) offers a strong new argument against the complete-diversity requirement, as illustrated by New York Times v. Sullivan. Sullivan sued four Alabama-based African-American civil rights leaders (Shuttlesworth, Lowery, Seay, and Abernathy) who had signed the Times ad; this prevented removal to federal court, by destroying complete diversity and adding non-removable forum defendants. The complete-diversity requirement made no sense in Sullivan even on the local-bias rationale: Having a local defendant did not cure the bias when: 1) the local was an African-American who was functionally an outsider in 1960 Alabama and 2) there was an obvious outsider (The Times) waiting to be hosed.

The racial turn adds to this position. There unquestionably was bias against the African-American defendants in state court because of their race (the trial court allowed Sullivan to enforce the judgment against the four men). Scott's argument suggests their presence in the case, rather than keeping the case in state court, should have been the basis to make it (and cases like it) more readily removable.

Posted by Howard Wasserman on March 19, 2019 at 06:38 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Thursday, March 07, 2019

JOTWELL: Michalski on Gluck, et al. on opioid litigation

The new Courts Law essay comes from Roger Michalski (Oklahoma), reviewing Abbe Gluck, Ashley Hall, & Gregory Curfman, Civil Litigation and the Opioid Epidemic: The Role of Courts in a National Health Crisis, 46(2) J. Law, Med. & Ethics 351 (2018), exploring how courts are litigation claims and issues arising from the opioid epidemic.

Posted by Howard Wasserman on March 7, 2019 at 10:27 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Thursday, February 28, 2019

JOTWELL: Kalajdzic on Erichson on class actions

The new Courts Law essay comes from Jasminka Kalajdzic (Windsor), reviewing Howard M. Erichson, Civil Litigation Reform in the Trump Era: Threats and Opportunities Searching for Salvageable Ideas in FICALA, 87 Fordham L. Rev. 19 (2018).

Posted by Howard Wasserman on February 28, 2019 at 09:43 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, February 12, 2019

JOTWELL: Tidmarsh on Hodges & Voet on collective redress

The new Courts Law essay comes form Jay Tidmarsh (Notre Dame), reviewing Christopher Hodges & Stefaan Vogt, Delivering Collective Redress: New Technologies (Hart 2018), which explores the European search for alternative approaches to collective litigation and redress.

Posted by Howard Wasserman on February 12, 2019 at 09:53 AM in Article Spotlight, Books, Civil Procedure | Permalink | Comments (1)

Wednesday, January 30, 2019

JOTWELL: Pfander on Sutton on state constitutionalism

The new Courts Law essay comes from James Pfander (Northwestern), reviewing Judge Jeffrey Sutton's new book on state constitutions and their role in constitutionalism.

Posted by Howard Wasserman on January 30, 2019 at 09:52 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (1)

Wednesday, January 16, 2019

JOTWELL: Bookman on Sinnar on procedural experimentation and national security

The new Courts Law essay comes from Pamela Bookman (Temple), reviewing Shirin Sinnar, Procedural Experimentation and National Security in Courts, 106 Cal. L. Rev. 991 (2018), which explores ways to handle national-security concerns while allowing for transparency and litigation on the merits.

Posted by Howard Wasserman on January 16, 2019 at 12:33 PM in Article Spotlight, Civil Procedure | Permalink | Comments (1)

Thursday, December 20, 2018

JOTWELL: Campos on the Bolch Institute on class actions

The new Courts Law essay comes from Sergio Campos (Miami), reviewing  the Bolch Institute at Duke University's guide to best practices in class actions.

Posted by Howard Wasserman on December 20, 2018 at 08:55 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, December 05, 2018

JOTWELL: Malveaux on Trammell on preclusion and nationwide injunctions

The new Courts Law essay comes from Suzette Malveaux (Colorado), reviewing Alan Trammell, Demystifying Nationwide Injunctions, which uses preclusion principles (including arguing that offensive non-mutual preclusion should be available against the government) to support the power to issue broader injunctions.

Alan's paper just came across SSRN yesterday, so I look forward to reading and citing it. My initial thought is that the preclusion analogy (even accepting that Mendoza is wrong) runs into the fact that allowing non-particularized injunctions allows the issue court to police the effect of its own judgment, whereas preclusion ordinarily is the bailiwick of the second court. This is sort of the issue in Nevada v. Dept of Labor and the private attorneys held in contempt for violating the injunction of one court (based on privity principles) by representing a plaintiff in a different lawsuit in a different court . To the extent the injunction binds these private attorneys, it would be through preclusion, which would be for the second court to determine, not the issuing court.

Posted by Howard Wasserman on December 5, 2018 at 09:30 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Friday, November 23, 2018

JOTWELL: Mullenix on Vitiello on a civ pro companion

The new Courts Law essay comes from Linda Mullenix (Texas), reviewing Michael Vitiello, Animating Civil Procedure (Carolina Academic Press 2017),  a companion to Civ Pro casebooks offering a procedural-justice gloss on the major cases and issues.

Posted by Howard Wasserman on November 23, 2018 at 11:17 AM in Article Spotlight, Books, Howard Wasserman | Permalink | Comments (0)

Monday, November 05, 2018

JOTWELL: Levy on Re on Marks

The new Courts Law essay comes from Marin Levy (Duke), reviewing Richard Re, Beyond the Marks Rule (Harv. L. Rev., forthcoming), which critiques the Marks Rule and its (ineffective) efforts to create binding precedent absent a majority opinion.

Posted by Howard Wasserman on November 5, 2018 at 10:34 AM in Article Spotlight, Civil Procedure | Permalink | Comments (0)

Tuesday, October 23, 2018

JOTWELL: Lahav on Frost on nationwide injunctions

The new Courts Law essay comes from Alexandra Lahav (UConn), reviewing Amanda Frost, In Defense of Nationwide Injunctions (N.Y.U. L. Rev., forthcoming). My views on this subject are well-known here. Amanda visited FIU last week to present her paper and to debate  injunctions for several student organizations.

Posted by Howard Wasserman on October 23, 2018 at 10:37 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Tuesday, October 09, 2018

JOTWELL: Walsh on Hickman on severability

The new Courts Law essay comes from Kevin Walsh Richmond), reviewing Kristen E. Hickman, Symbolism and Separation of Powers in Agency Design, 93 Notre Dame L. Rev. 1475 (2015), considering the use of severability to remedy separation of powers defects in the design of federal agencies.

Posted by Howard Wasserman on October 9, 2018 at 10:50 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Sunday, September 30, 2018

Data Science and Law (and Farewell)

In my last post I want to briefly discuss the experience of Bar-Ilan Law Faculty (where I serve as Dean) in a new joint research initiative with the Bar-Ilan Data Science Institute. This joint project builds on Bar-Ilan strength in data science (DS), especially in the fields of natural language processing (NLP) and network analysis. The project is motivated by idea that the law rich textual and web structure makes it a great medium for analysis using the methods of NLP and network science (see, e.g., my recent paper, Transnational Networked Constitutionalism, co-authored with Ofir Stegmann). We currently have more than 20 on-going research projects using DS methods in various stages.  

Our experience in these joint studies has raised several challenges and questions and I will be happy to hear from others who have been involved in similar projects about their experience. We will also be very happy to cooperate with other institutions.

Probably the most critical issue for the success of such projects concerns the need to move into a team based work. Almost all our projects are based on joint teams that include, DS and law profs, graduate students and supporting stuff. This mode of work brings legal research closer to empirical social sciences and research in the natural sciences. It requires willingness and openness from both the DS and law side.

Another challenge we had to cope with from the start is how to think about the roles of the DS and law profs in such joint project. A naïve way to think about such cooperation is that the law side should be responsible for collecting the data and the DS side should be responsible for analyzing it. We think that this is a mistaken paradigm. A good interdisciplinary DS-law joint-project must involve the two sides across the whole life-cycle of the project. It is important that the DS people will be involved at the data collection phase (which involves critical questions about what data to collect and how to structure it) and in the hypothesis framing phase. It is also necessary for the law side to be involved in the analysis phase (even if the technical analysis will be led by the DS people). This requires ‘each side’ to develop some understanding of the ‘other’ knowledge domain.

Another question concerns the publication and evaluation of the results of such interdisciplinary projects. In most cases the main contribution of the project would be in the legal domain and not in computer science or in mathematics. It will commonly use existing methods to study law-related questions (although law could also trigger innovation in the DS domain). However, a significant work may need to be done in order to adapt and apply such methods to specific research questions and environments. This means that the venues in which such work could be published would probably be in legal journals that accept empirical work. This could create a motivation problem for the DS people. Solving this problem requires university authorities to explicitly support interdisciplinary work and to recognize the contribution of DS people even when the work is published in journals outside the DS domain. Equally law profs should be ready to venture beyond traditional legal publications toward DS journals (where the focus could be on the more technical aspects of a project). Such extension of the publication spectrum is important for the feasibility of such joint-projects.

Let me close by thanking Howard Wasserman and the forum again for having me as a guest this month. Thanks also to all those who responded and commented on my posts.   

Posted by Oren Perez on September 30, 2018 at 09:39 AM in Article Spotlight, Howard Wasserman, Information and Technology | Permalink | Comments (0)

Thursday, September 27, 2018

Revising the Web of Science JCR ranking of law reviews

I want to conclude my discussion of the Web of Science JCR ranking of law reviews by offering several proposals for revising this ranking, which  draw on my co-authored paper ‘The Network of Law Reviews: Citation Cartels, Scientific Communities, and Journal Rankings’ (Modern Law Review) (with Judit Bar-Ilan, Reuven Cohen and Nir Schreiber). I want to emphasize that our proposals are tentative because I don’t think there is a single right answer as to how to devise such a ranking. They also do not cover the whole range of problems associated with such rankings. One of the main lessons of our analysis is that the choices underlying any ranking should be made explicit and that anyone using them should make sure that these methodological choices fit his needs. A further important note concerns the purpose of our project. We do not call for the use of metrics in evaluating research. As I noted in my first post, our project is based on the observation that there is currently an increasing global pressure to use metrics in order to evaluate research (both at the individual and the institutional levels). This trend makes it worthwhile to critically examine the methodology and structure of such metrics.

Our proposal draws on our finding that that PR and SE journals form two separated communities (see the citation graph here); however, this inward tendency is more pronounced in SE journals, especially generalist ones. We found that SE generalist journals, direct and receive most of their citations to and from SE journals. This finding reflects, we argued, a tacit cartelistic behavior, which is a product of deeply entrenched institutional practices (for a defense of this argument see my previous post). Because the mean number of references in SE journals is about 2.5 times greater than the mean number of references in PR journals lumping the two categories can generate a distorted image of the ranking of law reviews (see my post for a demonstration of this effect).   

We believe that there are two main paths for revising the WOS ranking. The first path is to create two separate rankings, one for student-edited (SE) (non-peer-reviewed) journals, and another for peer-reviewed (PR) journals. This approach reflects the different writing and citation styles of the two categories and their strikingly different article selection practices. Creating two different rankings would also cancel out the advantage that U.S. SE journals have in a combined ranking structure. While this approach does have some logic, it is also problematic because the two journal categories, despite their differences, still belong to the same scientific domain, explore similar questions and have over-lapping audiences. It is also inconsistent with the current practice of all the existing global law reviews rankings.  A second strategy would continue the current practice of lumping the two journal categories in a single ranking, but would offer a way to counter some of the distortive effects of the current structure of the WOS ranking. A basic component of this strategy would be to adjust the value of citations received from SE journals. As I demonstrated in a previous post, adjusting the citations of SE journals by a factor of 0.4 significantly changes the relative ranking of PR journals. Using an adjusted impact factor would not amount to a satisfactory solution by itself. We think that a better strategy would be to combine an adjusted impact factor with an algorithm that takes into account the prestige of the citing journal drawing on some variant of the page-rank algorithm. The idea is to calculate the prestige of a journal through an iterative process that computes the “prestige” gained by the journal through the transfer of prestige from all the other journals included in the network through citations. JCR already offer a ranking based on such algorithm although it is not widely used. 

Another problem concerns the composition of the ranking sample. The WOS includes a relatively small sample of law reviews (147 out of more than 1600 law reviews based on our recent counting of the Scopus, WOS and Washington and Lee datasets). This reflects the WOS philosophy that only well established and high quality journals should be included in the list. While this approach has some merit the current list leaves out many good journals which should have been included (both SE and PR). Another problem concerns the inclusion of interdisciplinary journals (especially PR) such as the Journal of Law & Economics, Law and Human Behaviour and International Environmental Agreements-Politics Law and Economics. These are high-quality publications, which publish articles that are very related to law, but are dominated by economists, psychologists and political scientists that study law-related questions (although law profs do publish in these venues occasionally). Should these publications be included in the same list as more classical law journals? I believe that they should because they provide a high-quality venue for interdisciplinary work that discusses legal problems, but I can see good arguments for both sides.    

 

Posted by Oren Perez on September 27, 2018 at 09:13 AM in Article Spotlight, Law Review Review | Permalink | Comments (0)

Tuesday, September 25, 2018

JOTWELL: Effron on Manta on Tinder lies

The new Courts Law essay is from Robin Effron (Brookyln), reviewing Irina Manta, Tinder Lies (Wake Forest L. Rev., forthcoming), which proposes a small-claims court vehicle for remedying lies and fraud on dating apps.

Posted by Howard Wasserman on September 25, 2018 at 08:50 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, September 17, 2018

Reconstructed Ranking for Law Journals Using Adjusted Impact Factor

I would like to thank everyone for their comments and especially USForeignProf who added an important perspective. The main  motivation of our study was to expose the risks of blindly relying on rankings as a method for evaluating research. While we do not have data about the impact of metrics on the evaluation of research in law, we suspect that law schools will not be insulated from what has become a significant global trend. Our study highlights two unique features of the law review universe, which suggest that global rankings such as the Web of Science JCR may produce an inaccurate image of the law journals web: (1) the fact that the average number of references in SE articles is much higher than in articles published in PR journals; and (2) the fact that citations are not equally distributed across categories. In our study we tried to quantitatively capture the effect of these two features (what USForeignProf has characterized as the dilution of foreign journals metrics) on the ranking structure.

To demonstrate the dilution effect on the Web of Science ranking, we examined what happens to the impact factor of the journals in our sample, if we reduce the “value” of a citation received from SE articles from 1 to 0.4. We used the value of 0.4 because the mean number of references in SE journals is about 2.5 times greater than the mean number of references in PR journals (in our sample). For the sake of the experiment, we defined an adjusted impact factor, in which a citation from the SE journals in our sample counts as 0.4, and a citation from all other journals as 1. I want to emphasize that we do not argue that this adjusted ranking constitutes in itself a satisfactory solution to the ranking dilemma. We think that a better solution would also need to take into account other dimensions such as journal prestige (measured by some variant of the page-rank algorithm) and possibly also a revision of the composition of the journals sample on which the WOS ranking is based (which is currently determined - for all disciplines - by WOS stuff). However, this exercise is useful in demonstrating numerically the dilution effect. The change in the ranking is striking: PR journals are now positioned consistently higher. The mean reduction in impact factor for PR journals is 8.3%, compared with 46.1% for SE journals.  The table below reports the results of our analysis for the top 50 journals in our 90 journals sample (data for 2015) (the complete adjusted ranking can be found here). The order reflects the adjusted impact factor (the number in parenthesis reflects the un-adjusted ranking). In my next post I will offer some reflections on potential policy responses.

  1. Regulation and Governance (10)
  2. Law and Human Behavior (13)
  3. Stanford Law Review (1)
  4. Harvard Law Review (2)
  5. Psychology, Public Policy, and Law (18)
  6. Yale Law Journal (3)
  7. Texas Law Review (4)
  8. Common Market Law Review (22)
  9. Columbia Law Review (5)
  10.  The Journal of Law, Medicine & Ethics (29)
  11. University of Pennsylvania Law Review (8)
  12. Journal of Legal Studies (15)
  13. Harvard Environmental Law Review (14)
  14. California Law Review (6)
  15. American Journal of International Law (19)
  16. Cornell Law Review (7)
  17. Michigan Law Review (9)
  18. UCLA Law Review (12)
  19. American Journal of Law & Medicine (36)
  20. Georgetown Law Journal (11)
  21. International Environmental Agreements-Politics Law and Economics (41)
  22. American Journal of Comparative Law (25)
  23. Journal of Law, Economics, & Organization (37)
  24. Journal of Law and Economics (35)
  25. International Journal of Transitional Justice (42)
  26. Law & Policy (44)
  27. Harvard International Law Journal (26)
  28. Chinese Journal of International Law (47)
  29. Journal of International Economic Law (48)
  30. Law and Society Review (46)
  31. Antitrust Law Journal (27)
  32. Indiana Law Journal (24)
  33. Behavioral Sciences & the Law (51)
  34. Virginia Law Review (16)
  35. New York University Law Review (17)
  36. Journal of Empirical Legal Studies (39)
  37. Leiden Journal of International Law (54)
  38. University of Chicago Law Review (20)
  39. Social & Legal Studies (58)
  40. World Trade Review (61)
  41. Vanderbilt Law Review (23)
  42. Harvard Civil Rights-Civil Liberties Law Review (32)
  43. Modern Law Review (63)
  44. Annual Review of Law and Social Science (49)
  45. European Constitutional Law Review (64)
  46. Oxford Journal of Legal Studies (59)
  47. Journal of Environmental Law (65)
  48. European Journal of International Law (57)
  49. Law & Social Inquiry (62)
  50. George Washington Law Review (31)

Posted by Oren Perez on September 17, 2018 at 02:53 AM in Article Spotlight, Howard Wasserman, Information and Technology, Law Review Review, Peer-Reviewed Journals | Permalink | Comments (13)

Wednesday, September 12, 2018

Tacit Citation Cartel Between U.S. Law Reviews: Considering the Evidence

In my previous posts, which draw on my co-authored paper ‘The Network of Law Reviews: Citation Cartels, Scientific Communities, and Journal Rankings’ (Modern Law Review) (with Judit Bar-Ilan, Reuven Cohen and Nir Schreiber)  I described how the metrics tide is penetrating the legal domain and also described the findings of our analysis of the Web of Science Journal Citation Reports of law reviews. We studied a sample of 90 journals, 45 U.S. student-edited (SE) and 45 peer-reviewed (PR) journals and found that SE generalist journals, direct and receive most of their citations to and from SE journals. We argued that this citation pattern is a product of tacit citation cartel between U.S. SE law reviews. Most of the comments focused on the following valid point: how can we distinguish between a tacit citation cartel and epistemically-driven scientific community (generated by common scientific interests). We argue, generally, that in tacit citation cartels, the clustering observed should extend beyond what can be explained by epistemic considerations, reflecting some deep-seated cultural and institutional biases.

In the paper we provide several arguments (both quantitative and qualitative) in support of our tacit cartel thesis. While none of them is conclusive in itself we think that jointly they provide a robust support for our thesis. First, we considered whether the clustering of U.S. SE journals could be explained by geographic proximity. Our sample included 57 U.S. journals consisting of all 45 SE journals and 12 PR ones. Statistical analysis reveals however that US PR journals do not receive more citations than non U.S. ones. Second, we also analyzed separately the sub-sample of generalist (PR & SE) journals but the citation pattern remained the same. Third, we considered the hypothesis that U.S. SE journals constitute a separate epistemic field – maybe due to their emphasis on U.S. law. We rejected this explanation on qualitative grounds, primarily because U.S. SE journals have become increasingly more theoretical and interdisciplinary over the past few years (Harry T. Edwards, ‘Another Look at Professor Rodell's "Goodbye to Law Reviews’; George L. Priest, ‘The Growth of Interdisciplinary Research and the Industrial Structure of the Production of Legal Ideas). This trend should make PR journals very relevant to U.S. legal scholarship. Fourth, one may try to explain the citation pattern by assuming a deep difference in the quality of the papers published in the two journal groups. We do not think this argument stands up to scrutiny.  First, the selection practices of SE journals were subject to strong critique (e.g., Richard A Posner, ‘The Future of the Student-Edited Law Review’ (1995)). This critique casts doubts on the thesis that there is a strong and systemic difference in quality of papers published in the two categories. We also examined this claim empirically by looking into the citations received by the 10 top-cited articles published in PR journals in our dataset. We found that even these highly cited papers received only a small percentage of their citations from SE journals.

Finally, we also considered the accessibility of PR journals in Lexis, Westlaw and Hein. We found indeed that these databases only offer access to approximately half of the PR journals (See Table F, technical appendix.) However, we do not think that this fact provides a convincing explanation to the phenomenon we observed. We believe that most U.S. law schools have access to digital depositories that allow access to the PR journals in our sample. A quick search in 3 US libraries demonstrates that (https://www.law.pitt.edu/research-scholarly-journals; https://library.columbia.edu/find/eresources.html ; http://moritzlaw.osu.libguides.com/legalresearchdatabases ). Rather than providing an explanation to the citation pattern we found, this claim constitutes a manifestation of the institutional culture that facilitates the citation bias we identify. The comment we received from an AnonymousLawLibrarian (suggesting that U.S. legal academics, unlike equivalent scholars in the social science disciplines, only use Westlaw/Lexis/Hein or in-discipline journal research) seems to support our interpretation.

We think that this citation pattern is epistemically problematic because it hinders the flow of ideas. Further (and independently of the question of whether or not we are right in describing it as a tacit cartel) it can also influence the journals’ ranking. I will discuss this latter question in my next post.  

Posted by Oren Perez on September 12, 2018 at 02:10 PM in Article Spotlight, Howard Wasserman, Law Review Review, Legal Theory | Permalink | Comments (7)

Friday, September 07, 2018

JOTWELL: Smith on Tang on the role of political power in judicial review

The new Courts Law essay comes from Fred Smith, Jr. (Emory), reviewing Aaron Tang, Rethinking Political Power in Judicial Review (Cal. L. Rev., forthcoming), arguing that courts should be less willing to invalidate laws that burden the politically powerful, a new corollary to the longstanding political-process idea that courts be more willing to invalidate laws that burden the powerless.

Posted by Howard Wasserman on September 7, 2018 at 11:47 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Wednesday, September 05, 2018

Tacit Citation Cartel Between U.S. Law Reviews

In my previous post I discussed the various metrics that are being used to measure law schools and legal journals. One of the difficulties with these metrics is the perverse incentives they may create for both authors, research institutions, and journals to use various manipulating techniques in order to elevate their scores. Examples of manipulating strategies include the publication of editorials with many journal self-citations, coercive journal self-citation, and citation cartels (Phil Davis, ‘The Emergence of a Citation Cartel’ (2012)). There have been several conspicuous cases of citation cartels, which have been widely discussed in the literature. Particularly notorious was the case of several Brazilian journals that have published articles containing hundreds of references to papers in each other’s journals in order to raise their journals’ impact factors (Richard Van Noorden, ‘Brazilian Citation Scheme Outed’ (2013)). We distinguish in the paper between explicit citation cartels, in which the cross-citations are a product of explicit agreement between editors or scholars and tacit citation cartel. In the latter case the citation dynamics may be a product of tacit cultural and institutional habits. Both tacit and explicit citation cartels should be distinguished from epistemically-driven scientific communities. Although tacit citation cartels do not carry the same immoral connotations as explicit citation cartels, they have similar adverse effects, especially given the increasing influence of the impact factor in the evaluation of research quality. By (artificially) elevating the scores of some journals and disciplines over others, they may distort the publication choices of scientists, and consequently may impede the creation of ideas.

The challenge for the metrics industry then is to develop ways to detect and respond to both tacit and explicit citation cartels. In our paper ‘The Network of Law Reviews: Citation Cartels, Scientific Communities, and Journal Rankings’ (Modern Law Review) (with Judit Bar-Ilan, Reuven Cohen and Nir Schreiber) we examined the ranking of law journals in Journal Citation Reports focusing on the question of the existence of tacit citation cartels in law. We studied a sample of 90 journals included in the category of Law in the JCR: 45 U.S. student-edited (SE) and 45 peer-reviewed (PR) journals. The sample, which amounts to 60% of all legal journals in JCR, included the most prestigious PR and SE journals (e.g., Harvard Law Review, Yale Law Journal, Columbia Law Review, Journal of Legal Studies, Oxford Journal of Legal Studies, Modern Law Review). The number of papers published by both SE and PR journals in our sample is nearly identical (47.8% of the articles were published in PR vs. 52.2% in SE journals). There are huge differences, however, in the total number of references and in the number of references per article. The SE journals produced in 2015 overall 3 times more references than the PR journals. The mean number of references in SE articles is 2.5 times higher.

We found, using both statistical analysis and network analysis that PR and SE journals are more inclined to cite members of their own class, forming two separated communities. You can find the citation graph here. Close analysis revealed that this phenomenon is more pronounced in SE journals, especially generalist ones. We found that SE generalist journals, direct and receive most of their citations to and from SE journals. This tendency reflects, we argue, a tacit cartelistic behavior, which is a product of deeply entrenched institutional and cultural structures within the U.S. legal academia. Because the mean number of references in SE articles is 2.5 times higher than in articles published in PR journals, the fact that their citations are directed almost exclusively to SE journals elevates their ranking in the Journal Citation Reports in a way that distorts the structure of the ranking. In the next post I will demonstrate the implications of this finding on the journal ranking in JCR. In further posts I will also consider some potential explanations and counter-arguments associated with this result.

Posted by Oren Perez on September 5, 2018 at 01:35 AM in Article Spotlight, Information and Technology, Life of Law Schools | Permalink | Comments (15)

Saturday, September 01, 2018

The Metrics Tide and the Law

Thanks Howard for having me (and for Michael Helfand for making the connection). Most of my posts this month will focus on the question of metrics and rankings and their increasing influence on the legal academia. I will draw in that context on a new article – ‘The Network of Law Reviews: Citation Cartels, Scientific Communities, and Journal Rankings’ which I have co-authored with Judit Bar-Ilan, Reuven Cohen and Nir Schreiber (all from Bar-Ilan University) and forthcoming in Modern Law Review.

Research evaluation is increasingly being influenced by quantitative data. Journal impact factor (JIF) (the mean citation counts of items published in journals in the preceding two years) has become particularly salient in this context, leading to “impact factor obsession”. There has been widespread opposition to this trend in the scientific community. The DORA declaration for example recommends that journal-based metrics, such as JIF, should not be used “as a surrogate measure of the quality of individual research articles, to assess an individual scientist’s contributions, or in hiring, promotion, or funding decisions”. However, despite the opposition these metrics continue to flourish.

The legal field has not escaped this ‘metrics’ wave. Law schools and legal journals are being ranked by multiple global rankings. The key rankings for law schools are the Times Higher Education and Shanghai University subject rankings for law and SSRN Ranking for U.S. and International law schools. These global rankings are accompanied by local ones such as the influential U.S. News Ranking in the U.S., the UK law schools ranking by the Guardian and the University Magazine ranking of Best Canadian law schools. Law Journals are measured by four different rankings: Clarivate Analytics Web of Science Journal Citation Reports (JCR), CiteScore from Elsevier, Scimago and Washington and Lee. Despite their quantitative appearance, the pretense of these metrics for objectivity is merely illusory. Because of the increasing influence of these metrics, and the bodies that produce them, on research evaluation, it is important to closely scrutinize their structure and methodology. In our paper we examine one particular metric - the influential ranking of law journals in Journal Citation Reports and critically assess its structure and methodology.   I will discuss our findings in the next post.

Posted by Oren Perez on September 1, 2018 at 11:12 AM in Article Spotlight, Current Affairs, Howard Wasserman, Information and Technology | Permalink | Comments (0)

Friday, August 31, 2018

Sponsored Post: The unauthorized practice of law for nonlawyers

The following post is by Ellen Murphy and Steve Nickles (both from Wake Forest) and is sponsored by West Academic.

The dramatic changes in the legal profession since the 2008 market crash, from the increase in virtual law practice to the rise of DIY services to clients’ increasing demand for efficiencies, have led to a recognition that nonlawyers have an increasingly critical role in the delivery of legal services. While most regulatory bars are not yet sure exactly: (a) what this role should be; or (b) how, if at all, it should be regulated, that a change is coming is certain.

Meanwhile, companies large and small -- saddled with increasing regulations but fewer resources – look more frequently to employees in risk management, compliance, and human resources, to name but a few, to exercise legal judgement, decreasing the reliance on traditional inside and outside counsel.

When the ABA created the Commission on the Future of Legal Services, with a goal of using technology and innovation to increase access to justice, the President acknowledged that some people see this shift as a “back doorway of disrupting a system that they’re comfortable with.” All a perfect precursor to the coming regulatory challenges for our current restrictions on the unauthorized practice of law.

In response, education directed at nonlawyer legal professionals is also increasing; the providers include law schools, other higher education entities, trade associations, and for-profit companies. However, little of this education is focused on the unauthorized practice of law. As the debate is getting hotter over what nonlawyers, people or computers, can do without running afoul of unauthorized practice of law restrictions, education must include coverage of the current state of the law, no matter how impossible it may be to define the “practice of law” with precision.

To bridge this gap, our new book and interactive course, The Unauthorized Practice of Law for Nonlawyers, explores the extent to which people with legal training, but no license to practice, can use the law, as a social and economic variable, to better manage risk without fear of prosecution or civil liability. Materials include a complete, 1-credit course syllabus, with over 4-hours of videos and 700-minutes of direct-faculty contact hours through discussion prompts and project prompts, perfect for an active-learning, flipped classroom. Alternatively, the materials can be used as a 1-hour self-directed module.
The book is intended for general education about the UPL and to provoke informed thinking and useful discussion about the UPL’s present and future boundaries. UPL regulation varies widely across the country, is always and everywhere highly fact-specific, is riddled with non-uniform, judicial and legislative exceptions, and always is decided on a case-by-case basis. But even with this uncertainty, educators must promote and provide for the exploration of these issues.

Posted by Howard Wasserman on August 31, 2018 at 03:23 PM in Article Spotlight, Sponsored Announcements | Permalink | Comments (0)

Tuesday, August 14, 2018

JOTWELL: Vladeck on Caruco on CAAF as court of last resort

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing Rodrigo M. Caruco (Maj., USAF), In Order to Form a More Perfect Court: Quantitative Measure of the Military's Highest Court's Success as a Court of Last Resort (Vt. L. Rev.), which considers how the Court of Appeals for the Armed Forces operates as a court of last resort and what can be done to improve its functioning.

Posted by Howard Wasserman on August 14, 2018 at 10:28 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Friday, August 10, 2018

Failure, It Turns Out, is an Option, and a Pretty Good One Sometimes

Image.ashxIn my last post, I promised to talk about fear not just in the horse but in the rider.  The point, of course, has to do with the relationship of fear to learning. Kaci Bishop's (North Carolina) recently posted article, Framing Failure in the Legal Classroom, provides a nice segue.  (H/T Paul Caron.) Failing, at least in the micro, is learning, and I agree with Professor Bishop's bottom line that academic and practicing lawyers tend not to be very good at connecting the subject and the predicate in those three words.

I have four very vivid memories of the subject of failure - in the abstract - coming up during my education and career.  I'm paraphrasing most of it.  The first was when I watched the moot court competition finals at Stanford.  The esteemed federal Third Circuit judge A. Leon Higginbotham was a member of the panel.  During the post-argument comments, he said something like "a well-prepared advocate can never lose; the client may not win, but the advocate never loses."  The second was when I was interviewing for my first job out of law school (the Dykema firm in Detroit).  One of the litigation partners said to me, "One of the things we have to do here is train people how to lose."  The third was when I left the firm to join the law department at what was then AlliedSignal (now Honeywell). One of the recruiting documents I received was the 1991 annual report, which contained CEO Larry Bossidy's first letter to shareholders (he had just come over from General Electric where he was second in command to Jack Welch).  The piece I remember most was about leadership and it went like this:  "Of course there will always have to be leaders who make the final decision, but the tyrant in the corner office, the guy with all the answers, need not apply here." (This much appealed to me because, in 13+ years at the law firm, both as associate and partner, I rarely felt that I had any answers to much of anything.)  The last was an interview with Steve Kerr, who had just been installed as GE's first Chief Learning Officer, on the tension between failure and Jack Welch's famous (or infamous) "stretch goals": namely, that if you set ambitious goals for people, you can't punish them if they fail to meet them.

At the risk of TMI, I'm sixty-four years old and still have the standard dreams about failure - for example, the one about missing the entire semester of a math class that met early on Tuesday mornings and now having to take the final.  I started as a litigator, and it became clear that it was easier to give Judge Higginbotham's advice (particularly if you were the judge) than to take it.  I took losing very personally.  Looking back, and then considering what I internalized as failure even in the deal-making or business context, I see it as an illusion (or delusion) of one's own ability to control circumstances.  You can't eliminate the fear; you have to learn to cabin it or manage it (and I think that is one of the points Professor Bishop is making).

I had a couple reactions that I'll talk about after the break.

First, I do agree that failing, in the micro sense, is integral to learning.  I also think that Professor Bishop is correct in incorporating Carol Dweck's distinction between the fixed and the growth mindset.  As I interpret it, it's the difference in the affective orientation to learning that precedes any learning.  If you want to learn, you learn.  If you don't want to learn, you don't.  The fixed mindset is one that has given up on learning; the growth mindset invites it.

Second, Professor Bishop mentions classroom "failures" (i.e. that "law students have as a primary goal not embarrassing themselves in the classroom") but doesn't center her arguments on what I think is a particular aspect of law school culture: the difference between private failure and public failure.  The fear of public failure is what I recall most vividly from the very first class on the very first day of law school forty-two years ago.  It wasn't so much that I read the first case in the Dawson & Harvey contracts casebook (Groves v. John Wunder & Co.) and was mystified; it was that from the opening bell others in my 25-student small section appeared to understand it so well (yes, Robert Weisberg and Douglas Baird, I'm talking to you).

Dealing with public failure if you run a moderately interactive law school classroom is a challenge.  It is hard to be nurturing when a significant aspect of the job is the theatrics of it all.  If you believe in the non-paternalistic classroom, then you ought also to believe that your job as professor is to make the experience more compelling than what is available by way of internet, text, or Angry Birds. Nor is it easy.  Some things students say or ask in class are misplaced or wrong or distractions.  For each student that you try to accommodate gently, there's another one thinking you should have been more brutal.

My quibble, if I have one, with Professor Bishop's piece is that her focus on mindset is confined solely to that of the student.  Just as psychoanalysts need to experience their own analysis to be able to guide anybody else, I don't see how there's going to be much change in the classroom if the fixed mindset is in the mind that is behind the podium.  Over the years, one of the ways I have tried to put myself in the position of a fearful student has been to make myself learn in environments that are not my natural habitat.  The three things I've tried to pick up over the last ten years are playing the piano (I never learned to play any musical instrument) and two athletic endeavors.

All my piano failures are private and relatively trivial, ego-wise.  Not so the athletics.  To put it bluntly, I think I'm pretty agile mentally, but I really, really suck as an athlete.  My joke over the years is that I engage in athletic endeavors (golf, for example) for the massive doses of humility I get.  I think, more seriously, that the activities I've selected in the last couple years force me to confront not only fear of failure, but physical fear, and, more importantly, the delusion of control.  When you ride a horse in an indoor ring with other riders present, you are dealing with a thousand pound sentient being with a point of view, and one that often is not aligned with your own.  Several years ago I decided to start taking fencing lessons (epee).  I'm really bad.  And your opponent is waving a long thin sword around, trying to jab you with it.  Even with all the equipment, it can hurt.  Every one of my opponents' touches is a public failure, but also a learning experience.  Particularly when the opponent is a thirteen year old young woman who wins 10-2.  It's really hard to learn when you are afraid!

Even with all of this, the performance art of teaching law students causes me, unfortunately, to get in touch more often than I should with my inner smart ass and outer stand up comic. (One only need look at some of the things some students say about me in their evaluations to know that I am no paragon of virtue when it comes to making students comfortable with "failure" in class discussion.) Fear has to have its source in evolutionarily adaptive instincts that get housed deep, deep in the reptilian and pre-reptilian parts of our brains.  And, of course, what we are doing in class is the polar opposite. As the Carnegie Report observed,“[a]t a deep, largely uncritical level, the students come to understand the law as a formal and rational system, however much its doctrines and rules may diverge from the common sense understandings of the lay person.”  They are doing that because that is what we are teaching them to do!

I should conclude by observing that, contrary to some popular memes, the vast majority of law professors I've met in the last fourteen years care very deeply about the quality and effectiveness of their teaching.  Wanting to be better, wanting to learn, comes from the inside.  And there are external sources of fear.  Before tenure, there are student evaluations and classroom visits from tenured faculty that bear significantly on your career.  Even after tenure, getting lousy evaluations is like being criticized as a corporate board member from the shareholder activists.  It may not make a lot of difference, but it doesn't feel very good.

Perhaps the lesson from Professor Bishop's piece, at least for me, is to think about the failures that occur from my side of the podium.  One of those might be the failure to heed at least two tenets of Kant's Categorical Imperative: (a) to act in every instance in way that you would legislate the rule of your action as a universal rule (for you aspiring legal philosophers, the source of Rawls's "veil of ignorance" as the basis for justice), and (b) to see every other person as an end rather than a means.  To return to a theme of an earlier post, think about what that says about cold-calling on one student as a means of teaching another student!

Posted by Jeff Lipshaw on August 10, 2018 at 09:09 AM in Article Spotlight, Lipshaw, Teaching Law | Permalink | Comments (1)

Thursday, July 12, 2018

JOTWELL: Wasserman on Mitchell on writs of erasure

I have the new Courts Law essay, reviewing Jonathan Mitchell (VAP at Stanford), The Writ-of-Erasure Fallacy, 104 Va. L. Rev. (forthcoming), which debunks the idea that courts "invalidate" constitutionally defective laws, since the laws do not disappear from the U.S. Code. Mitchell's article has lent a welcome new angle to my arguments against universal injunctions and in favor of judicial departmentalism.

Posted by Howard Wasserman on July 12, 2018 at 09:52 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (2)

Monday, July 09, 2018

Constitutional Politics, Court Packing, and Judicial Appointments Reform

The following post is by Matthew Seligman, a VAP at Cardozo. It is a short version of his new paper.

In the aftermath of Justice Kennedy’s retirement announcement, several legal scholars have suggested that Democrats should add seats to the Supreme Court when they retake the Presidency and Congress.  Jed Shugerman, for example, advocated expanding the Court to 15 if Trump’s replacement nominee is confirmed, on the ground that no President under investigation for conduct that plausibly could lead to impeachment has appointed a Justice who might rule in his own case.  In addition to that conflict-of-interest principle, Ian Samuel suggests packing the courts in response to prior rounds of Republican hardball—most notably the Republican Senate’s refusal to consider Judge Garland’s nomination to succeed Justice Scalia.  Samuel is aware of the obvious implication of initiating a cycle of retaliatory court packing, as Richard Primus explained in the Harvard Law Review Blog in response to Steven Calabresi and Shams Hirji’s proposal last year that Republicans expand the courts of appeals by dozens or even hundreds of judgeships.  An escalating cycle of packing and re-packing the courts would offer fleeting advantage to one side and then the other (assuming neither side is able to permanently entrench its political dominance).  And the cost would be steep: undermining the legitimacy, public acceptance, and even basic functioning of the courts. 

The irregular Supreme Court appointments process has been a problem for centuries.  Allocating substantial power based on the vagaries of the timing of deaths and retirements is no way to run a constitutional democracy.  And the best solution on offer has been around for decades or more: a term limit on Supreme Court Justices of 18 years, joined with fixing the number of Justices at 9 and a regularized schedule of appointments every 2 years.  The primary problem with this solution, whether it is to be sought by statute or by constitutional amendment, is actually making it happen.  Constitutional amendments are exceedingly challenging to achieve even on issues with lower ideological stakes and when the parties’ willingness to cooperate is much higher than it now is.  A statutory compromise on the judicial appointments process would be extremely challenging in its own right, in part because such a statutory measure could be reversed by a single party in control of Congress and the Presidency.  We live in an era, we are told, of constitutional hardball.  With the continuing collapse of constitutional norms, it seems less likely than ever that the parties could cooperate to solve the problem.  So, it may seem, we are likely to see the initiation and escalation of continuing cycles of court packing.

In a new essay, I argue that this understandable pessimism is a mistake.  I offer the counterintuitive conclusion that in this moment of cratering cooperation, there may be a rare political and legal opportunity to restructure the judicial appointments process for the better and for good.  The readily apparent prospect of imminent court packing changes the game.  Precisely because the threat of endless escalation is now so salient, both parties are positioned to recognize the value of pursuing a long-term solution over securing short-term and ephemeral partisan advantage. 

Here’s how:

Escalation in constitutional hardball predated the present moment, but its inevitability now presents itself to us with perhaps greater clarity than anything that came before.  There was, perhaps, some uncertainty about the opposing sides’ strategies and potential responses in this iterated game when it came to the abolition of the filibuster or with respect to how late in a President’s term the Senate will consider a Supreme Court nominee.  Court packing is different.  Once the cycle of court packing begins, that uncertainty will likely evaporate.  Each party will be certain—or as certain as one can be when it comes to law and politics—that the other party will re-pack the courts with ever greater numbers.  Moreover, unlike other hardball moves like the elimination of the filibuster, court packing admits of no clear limiting principle.  The parties can eliminate the filibuster only once.  But once the parties start packing the courts, there is no natural stopping point.  And both parties know that.

That shift from uncertainty to near-certain knowledge of imminent escalation with no foreseeable stopping point is the unique circumstance that may change the game.  The players now know that the other side’s strategy would be hardball, and that those strategies will inevitably lead to endless escalation—an outcome that is worse for everyone (I assume) than cooperating.  That alters the payoff matrix in a critical respect.  Neither party has any reasonable hope of achieving unilateral dominance through the hardball of court packing, because it knows that the other party will respond by playing the hardball of court packing as well.  Thus, due to the newly shared perception of impossibility of achieving dominance through hardball about the courts, for the first time the parties’ self-interested incentives point to a strategy of binding cooperation.  Accordingly, precisely because the threat of escalation has become so salient and so apparently inevitable, judicial appointments reform through a constitutional amendment may be more attainable than it ever has been before.

Posted by Howard Wasserman on July 9, 2018 at 03:24 PM in Article Spotlight | Permalink | Comments (12)

Monday, July 02, 2018

Self-Plagiarism (and the First and Second Laws of Textual Physics)

June is my intense writing month, by and large, and I just finished up a draft that, as I said elsewhere, may not be ready for Broadway, but is ready for out-of-town previews on SSRN.  (If you are curious, it's titled The Persistence of "Dumb" Contracts. It ponders the extent to which artificial intelligence could take over the non-blockchain contract drafting lawyers have been doing for hundreds of years.)

If you are like me, and have been at this for a while, you probably have developed a theme that pervades your work. Mine has to do with how people, and lawyers especially, make tough judgments in the face of uncertainty. Not tough judgments (although they may be) in adjudication, but what to do when your nicely developed lawyerly rationality can give you five good reasons for doing A and five equally good reasons for not doing A. A perfect example was Meryl Streep as Katharine Graham deciding whether to publish the Pentagon Papers (I rented The Post last night); you either take the leap or you don't.  Not to decide is to decide.

Sometimes a sentence or a paragraph or a long footnote from a previous piece seems like it fits in the new one. It's so easy to copy and paste and - voila! - you've written 200 words - a nice chunk of the day's quota. At least at some point in the drafting of Persistence, I did that. Is it okay?  (Spoiler alert: as far as I know I made it okay under even the most stringent standards.) Thoughts on self-plagiarism follow the break.

First off, let's define plagiarism.  I'll go with the definition we give our students: "taking the literary property of another, passing it off as one's own without appropriate attribution, and reaping from its use any benefit from an academic institution."

Second, self-plagiarism is indeed an issue,  There's a nice piece on this at the RIPS Law Librarian Blog, specifically about this issue in the law review context.  There are two sins that fall under "self-plagiarism" that are not what I'm talking about.  The first is creating many publications from the same study.  (Even that strikes me as overbroad - you can do a popular piece and an academic piece from the same material and not be committing a faux pas, as long as you disclose it.) The second is more serious, which is actually submitting the same work to different journals and permitting it to be accepted in multiple places.

The third issue is the one I'm most likely to encounter in my own work - what the RIPS bloggers call, in a less pejorative way, text recycling. That seems fair, because (apart from copyright issues if the journal holds it) you really aren't passing off someone else's intellectual output as your own. The RIPS bloggers are thoughtful about this.  If you are building on a body of work, it does seem silly to have to reinvent the wheel or have part of your article oddly set off in block quotes because you used it before.  On the other hand, they point out that editors and readers have a right to know if what they are reading is not original work, even if if originally it was yours. Not surprisingly, they advocate a sensible policy.  If you are using it again, disclose it either in a footnote, a in-text reference, or a general disclosure like you regularly see in a book preface when some of the chapters had earlier iterations as law review articles.

The lesson I learned this month, however, was slightly different.  I had inserted a footnote to the effect that much of the discussion on a couple pages had first appeared in my own piece, appropriately cited. The RIPS people would have been satisfied. The problem was one that, frankly, I didn't see, and it took another reader to point out.  I'm going to call it "textual inertia," or even better, "Lipshaw's First Law of Text Recycling." It goes like this:  "Every piece of text, once written, tends to remain in that state of drafting unless an external force is applied to it."

There is a Second Law as well: "The relationship between a text's mass (m), the ease by which it can be edited (a), and applied force (F) is F = ma, where a text's mass is directly proportionate to how pretty a word processor makes it look on the page."  What this means is that if you were to handwrite the text in a scrawl on a legal pad, you don't need much force to edit it.  But if you cut and paste the prior text into Eugene Volokh's wonderful law review article template, it becomes very hard to move.

That's why it's so hard to edit even a piece where you haven't recycled text. But when you recycle, chances are you really aren't making the same point that you made before.  It's the idea underlying the text that has relevance in this newer piece.  But it's so damn easy to cut and paste, and once you've done that, the First Law sets in.  And, as my friend who read the draft pointed out, that particular passage sounds like a tangent not quite related to the point of the article.

* By the way, my usual blogging home, at least on issues relating to legal education, lawyering, legal thought, etc. is now Paul Caron's iconic Tax Prof Blog.  This entry will be self-plagiarized, I mean cross-posted, over there.

Posted by Jeff Lipshaw on July 2, 2018 at 08:08 AM in Article Spotlight, Lipshaw | Permalink | Comments (2)

Friday, June 15, 2018

JOTWELL: Singer on Rosen on Taft

The new Courts Law essay comes from guest contributor (and former guest Prawf) Jordan Singer (New England), reviewing Jeffrey Rosen's biography of William Howard Taft.

Posted by Howard Wasserman on June 15, 2018 at 11:21 AM in Article Spotlight, Books | Permalink | Comments (0)

Thursday, June 07, 2018

SCOTUS Term: Slightly Belated Reactions to Masterpiece Cakeshop

I was on the road when Masterpiece Cakeshop came down on Monday and had time for a Twitter reaction but not for a blog post. Suffice it to say, I wasn’t impressed. Even by the Court’s own standards in high profile, culture war cases, the result and reasoning seemed slapped together and unconvincing. There has been a ton of excellent commentary pointing out why—including Howard's insta-reaction and Rick's post at this site—but one of the advantages of waiting a few days is that you need not cover everything but simply get to fill in the gaps. So, here are three angles I don’t think are getting enough attention:

  1. The proper places for respectful consideration of religious scruples. There is no doubt that the recurrent fact pattern at the heart of the case involves a conflict of constitutional values and that our constitutional culture cannot resolve these disputes without weighing the cost to religious conscience of denying religious exemptions to civil rights laws (and other laws of general applicability) against the constitutional obligations to pursue civic equality and govern even-handedly. What strikes me as strange is the opinion’s assumption that such weighing should take place in individual civil rights enforcement actions.  Maybe the Court’s opinion is, at Howard suggests, simply a “happy talk” requirement, but to the extent that it requires something more substantive, I think it is making a category mistake. Our existing jurisprudence envisions two places where that kind of weighing should take place. The first, as Howard points out, is at the level of constitutional doctrine. In cases both specific to civil rights (for example, the famed Piggie Park litigation) and more general (notably Employment Division v. Smith), the courts have already undertaken that balancing and determined that the Constitution does not require states provide such exemptions. However, nothing prevents states from according them either, which brings us to the second place in which respectful consideration of religious scruples ought to take place, the legislative chamber.  The federal government and many states have disagreed with Justice Scalia’s balancing in Smith and provided statutory rights to religious exemptions that go beyond what the Constitution requires. While many on both sides object to the scope of particular state laws, few would argue that there has not been true democratic engagement on these questions.  In the context of that debate and the institutional design decision made in Smith, Colorado’s decision to broadly protect civic equality without according an individualized assessment of the baker’s religious scruples should have resolved the case. To allow state regulators to deny an exemption but only if they provide a sympathetic hearing and words of apology is not only a silly rule but also one that misunderstands what respectful consideration of religious scruples would actually look like.
  2. The content of the Commissioners’ comments. On a related point, I think that the emergent consensus that the Commissioners’ comments about religion were, at a minimum, intemperate and disrespectful is a bit too convenient and fails to acknowledge the serious substantive point they were (inartfully) attempting to articulate.  When participants in the debate about religious exemptions reference religious support for slavery or the Holocaust, they are not making ad hominem attacks on religious belief but are instead pointing out the historical and anthropological truth that religious belief is a species of culture that often adapts to, borrows from, and incorporates other prevailing social attitudes. Not all religions or religious believers supported those outrages, but some did, and those that did often incorporated their support into their theological world view.  The likelihood that some religious groups will endorse any sufficiently popular set of cultural arrangements or social attitudes is one of the most potent arguments against allowing religious exemptions for all laws of general applicability, as legislators must remain free at minimum to identify certain nominally religious practices as sufficiently violative of human dignity to be outside the bounds of acceptable conduct. It is because outrages are sometimes perpetrated in the name of religion that we don’t let a sincere claim of religious conviction be a trump card but instead engage in complicated line-drawing to determine whether particular legal obligations ought be imposed even on those with religious objections. Given the substance of the argument, references to slavery and the Holocaust are especially pertinent examples, not cheap shots that evince hostility to religion.
  3. Justice Breyer’s legacy. Masterpiece Cakeshop now joins Bush v. Gore and the Affordable Care Act cases as the third major culture war case in which Justice Breyer voted with (and likely facilitated) a seven-Justice consensus reaching a politically conservative result on a hotly contested issue for which his prior record suggested little sympathy. Perhaps these are votes of true conviction, but in my heart of hearts I remain skeptical that he would have provided a fifth vote to find an equal protection violation in Bush v. Gore, a Spending Clause violation in the ACA cases, or a Free Exercise violation in this case.  If my speculation is correct, I find it absolutely fascinating that Justice Breyer has willingly made these votes such a central part of his legacy. (And, let's be clear, we are talking about first paragraph of the obituary stuff here.)  A lot of the commentary speculates about the strategic aspect of his (and Justice Kagan’s) decision to join the opinion and that is likely an aspect of his decision making.  To that, I would add that Justice Breyer has always articulated a longterm perspective on the institutional authority of the courts and the need to maintain public trust in the process that pushes him to look for middle ground and to avoid creating the appearance of political schisms, particularly in hot button or high profile cases.  Whether the reasons for his votes in these cases are strategic or institutional, and whether his reasoning is intentional or inchoate, his behavior in these cases raises fascinating questions about the role of the appellate judge and proper decision making procedures on a multi-member court that have now become a central part of his legacy. 

Posted by Andrew Siegel on June 7, 2018 at 01:01 PM in 2018 End of Term, Article Spotlight, Constitutional thoughts | Permalink | Comments (6)

Friday, June 01, 2018

JOTWELL: Kalajdzic on several authors on funding and compensating class actions

The new Courts Law essay comes from new contributor Jasminka Kalajdzic (Windsor), reviewing Eizabeth Chamblee Burch, Publicly Funded Objectors and Brian Fitzpatrick, Can and Should the New Third-Party Litigation Financing Come to Class Actions?, considering the "thorny question" of funding and compensating class actions. Both were published in a new volume of Theoretical Inquires in Law devoted to the 50th anniversary of class actions.

Posted by Howard Wasserman on June 1, 2018 at 03:47 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Thursday, May 31, 2018

SCOTUS Term: Collins v. Virginia And Remedial Shell Games

In Collins v. Virginia, the Court held that the automobile exception to the warrant requirement does not permit police officers to enter the curtilage of a home to search a parked vehicle. Although he joined the majority, Justice Thomas wrote a separate opinion in which he questioned the application of the exclusionary rule to the states.

Justice Thomas’s opinion is part of a long line of cases and individual Justice's writings that chip away at the foundations for the exclusionary rule. His opinion also illustrates a phenomenon I wrote about in a paper forthcoming in the California Law ReviewRemedial Convergence and Collapse. In the paper, I argue that the Court’s opinions engage in something of a shell game with respect to remedies for violations related to policing: The Court will question and limit one remedy, while also suggesting that another remedy could substitute for it and incentivize the government to comply with the law. But when faced with a case in which a plaintiff seeks that other remedy, the Court will deny that one too.

Collins showcases how that might occur. In that case, Justice Thomas questioned the application of the exclusionary rule. Without the exclusionary rule, damages suits against officers would presumably serve as the remedy for Fourth Amendment violations. But as anyone following the Court’s docket over the last decade knows, the Court has ratcheted up the standard for qualified immunity, making it hard, if not impossible, to recover damages in most cases of Fourth Amendment violations. The Court summarily reversed a denial of qualified immunity just a few weeks ago, in Kisela v. Hughes, over a dissent by Justice Sotomayor, which was joined only by Justice Ginsburg, and not Justice Thomas.

Now, Justice Thomas has also questioned the Court’s qualified immunity jurisprudence. But until he gets five Justices to cut back on the Court’s qualified immunity jurisprudence and actually stick with that rule, doing away with the exclusionary rule will only further entrench the lack of any viable remedies for parties aggrieved by constitutional violations. And the difficulty of assembling and coordinating five Justices who can agree not only that there should be a remedy in cases involving constitutional violations, but also what the appropriate or default remedy should be, has created a real problem in the Court’s remedies jurisprudence.

Cross-posted at Take Care.

Posted by Leah Litman on May 31, 2018 at 10:11 AM in 2018 End of Term, Article Spotlight | Permalink | Comments (5)

Wednesday, May 30, 2018

SCOTUS Term: The Cert Denial in Planned Parenthood v. Jegley

On the orders list from Tuesday was a denial of certiorari in Planned Parenthood v. Jegley, a case I wrote about previously here. The case involves a challenge to an Arkansas law that requires providers of medication abortion to have contracts with doctors who have admitting and surgical/gynecological privileges at hospitals. The district court had enjoined the law, but the Eighth Circuit vacated the injunction, reasoning that the district court had not made the necessary findings in order to enjoin its enforcement.

Planned Parenthood v. Jegley is part of a trend in cases post-dating Whole Woman’s Health v. Hellerstedt in which states are seeking to whittle down much of the ground that reproductive health advocates thought they had preserved in HellerstedtHellerstedt invalidated two provisions, one that required abortion providers to have admitting privileges at hospitals, the other that required abortion providers to retrofit their facilities to comply with the requirements for ambulatory surgical centers. In invalidating the requirements, Hellerstedt emphasized that courts must assess whether a requirement actually furthers a valid purpose, and weigh its benefits against the burdens the law imposes. In the wake of Hellerstedt, and particularly in the wake of the election, states enacted a slew of restrictions on abortion, and in defending their constitutionality, they sought to limit Hellerstedt in a variety of unpersuasive ways. I wrote about some of them in this piece for the Michigan Law Review online.

After the certiorari denial in Planned Parenthood v. Jegley, commentators were quick to explain that the procedural posture of the case made it an unattractive candidate for certiorari. The Eighth Circuit, after all, had vacated the injunction and remanded the case to the district court to make additional findings. Thus, it is still possible that Planned Parenthood will prevail and have the law enjoined.

But that tree obscures the forest of the post-Hellerstedt landscape. The Eighth Circuit’s reasoning in Planned Parenthood v. Jegley, which stands in light of the Court’s denial of certiorari, was, to put it lightly, absurd, and also wildly inconsistent with HellerstedtPlanned Parenthood v. Jegley, for example, didn’t assess the law’s benefits while demanding more evidence of the law’s burdens, which wouldn’t (and shouldn’t) have been required given that the law has no apparent benefits. It also faulted the district court for not defining the phrase “the Fayetteville area” and for not estimating the number of women who would forego and postpone their abortions. (The district court in Hellerstedt did not do any of those things.)

Planned Parenthood v. Jegley’s reasoning is already been seized upon by states in the Eighth Circuit in order to justify arguments that would have the circuit flouting Hellerstedt. Consider Hopkins v. Jegley, which involves a challenge to an Arkansas law banning the D&E (dilation and evacuation) procedure, a very commonly used method for second-trimester abortions, among other provisions. Here is how the state is using Planned Parenthood v. Jegley in its brief:

  • “A law only imposes an undue burden where its benefits “are substantially outweighed by the burdens it imposes”
  • “An undue burden exists where a law completely fails to advance a legitimate interest (or does so in such a trifling way that it lacks any rational connection with the governmental interest) and imposes exceptional and truly significant burdens.”
  • “[O]nly rarely—where a legislature totally errs in assessing benefits and burdens—will a law constitute an undue burden.”
  • “[A]s this Court recently held in vacating a preliminary injunction similarly based on a finding that a regulation would cause “some women” to delay or forgo an abortion, whether a regulation impacts some is not the relevant question on a facial challenge. Instead, to justify facial relief, [a plaintiff] must demonstrate—and the district court must determine—that the Act would be unconstitutional in a large fraction of relevant cases and not just potential situations that might develop.”
  • A law is not unconstitutionaly in a large fraction of cases where “the district court merely alluded to amorphous groups of women.” “[S]peculation about some, unknown number of women hardly warrants facial relief.”

Some of those are direct quotes from Planned Parenthood v. Jegley; others of them are not. The point, however, is that states are milking Planned Parenthood v. Jegley for all that is worth, and given that their audience is the court that wrote Planned Parenthood v. Jegley, some of these arguments may succeed.

Another, related issue is what will happen to abortion providers so long as they labor under this unfavorable and incorrect regime. I’m not just talking about the clinics that are affected by the regulation at issue in Planned Parenthood v. Jegley, though those clinics may be among the casualties. Under usual circumstances, once an appellate court vacates an injunction and issues its mandate, the state could enforce its law (which would no longer be enjoined). In Planned Parenthood v. Jegley, however, the clinics asked the Eighth Circuit to stay the issuance of its mandate, thus preserving the injunction, until the Supreme Court resolved the petition for certiorari. The Eighth Circuit granted Planned Parenthood a stay, over the noted dissent of one judge, Judge Gruender.

But now that the Supreme Court has denied the cert petition, the mandate will issue and the providers will have to frantically seek interim relief (again) in the district court in order to avoid shutting their doors, even temporarily. (The plaintiffs in Planned Parenthoodargued that the regulations would close two of the state’s three clinics.) Interim relief from the provision is important because even temporary door shuttering can have lasting consequences; that’s part of what makes required do-overs and vacated injunctions so risky (in addition to delaying procedures for women). As Melissa Murray noted in this Jotwell review, many of the clinics that closed in the wake of the regulations challenged in Hellerstedt never reopened once the regulations were ultimately invalidated.   The same thing may happen in the Eighth Circuit and elsewhere in the wake of Planned Parenthood v. Jegley, as litigants may not always succeed in preventing regulations from going into effect, even for short periods of time.

Two other notes on the certiorari denial in Planned Parenthood v. Jegley. In addition to the procedural posture of the case, the denial prompted questions about a certain Justice’s possible retirement. One way of looking at the votes of Justices Ginsburg, Breyer, Sotomayor, and Kagan was that they were unwilling to push for a grant (and vote for a grant, or at least note that they did so) if they were uncertain whether Justice Kennedy would still be on the Court when it heard the case the following term. Another way of looking at their votes, however, is that they were willing to wait for another case to make its way to the Court at some point in the future, suggesting they might not think Justice Kennedy is going anywhere just yet. I guess we’ll learn more by the end of June.

Disclosure: I signed an amicus brief in support of cert in Planned Parenthood v. Jegley.

Cross-posted at Take Care.

Posted by Leah Litman on May 30, 2018 at 09:48 AM in 2018 End of Term, Article Spotlight | Permalink | Comments (2)

Monday, May 21, 2018

JOTWELL: Steinman on Davis and Whytock on human rights litigation in state court

The new Courts Law essay comes from section co-editor Adam Steinman (Alabama), reviewing Seth Davis & Christopher A. Whytock, State Remedies for Human Rights, 98 B.U. L. Rev. 397 (2018), which considers how human rights violations can be litigated and redressed in state court.

Posted by Howard Wasserman on May 21, 2018 at 11:54 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, May 08, 2018

"Nationwide" Injunctions Are Really "Universal" Injunctions (Revised)

The updated/revised draft of my article on universal injunctions (complete with new, and more descriptive, title) is on SSRN (hoping the article will be published by June). The new version adds four new developments to the discussion: the Seventh Circuit affirmance of the universal injunction prohibiting enforcement of the sanctuary-city regulations in Chicago; a third district court decision enjoining DACA rescission (this one from D.D.C.); the brief discussion from Justice Gorsuch of cosmic injunctions during Trump v. Hawaii arguments; and an excellent new article by Jonathan Mitchell (VAP at Stanford) exposing what he labels the "writ-of-erasure fallacy," the incorrect belief that declaring a law unconstitutional erases the law, when what it actually does is prohibit enforcement of the law. (I would add prohibit enforcement of the law against the parties to that case, although Mitchell takes no express position on that).

Posted by Howard Wasserman on May 8, 2018 at 11:49 AM in Article Spotlight, Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (0)

Monday, May 07, 2018

JOTWELL: Coleman on Wexler, Robbennolt, and Murphy on #MeToo Justice

The new Courts Law essay comes from Brooke Coleman (Seattle), reviewing Lesley Wexler, Jennifer Robbennolt, and Colleen Murphy, #MeToo, Time’s Up, and Theories of Justice exploring restorative and transitional justice in the #MeToo Movement.

Posted by Howard Wasserman on May 7, 2018 at 09:49 AM in Article Spotlight | Permalink | Comments (0)