Tuesday, August 06, 2019

Second Circuit revives Palin defamation suit

Decision here. I wrote about the case here.

The court of appeals correctly criticized the district court's weird use of an evidentiary procedure (testimony from the primary author of the challenged editorial) to evaluate the complaint. When a court considers information outside a complaint, it either must exclude the information and continue as a 12(b)(6) or convert to summary judgment; it cannot use the information and continue to treat the motion as a 12(b)(6). The Times argued that the testimony was background information that was "integral to" the material in the complaint; but that could not be right, because the information was obtained after the complaint was filed, as opposed to information the plaintiff could have relied on in drafting the complaint.

Continue reading "Second Circuit revives Palin defamation suit"

Posted by Howard Wasserman on August 6, 2019 at 06:56 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Conference: "Lawyering in the Digital Age" - Amsterdam, Oct. 17-18, 2019

Screen Shot 2019-08-06 at 4.37.17 PMI'm pleased to be participating as a presenter in a conference entitled "Lawyering in the Digital Age" at the Allen & Overy office in Amsterdam on October 17-18, 2019. It is sponsored by the Centrum voor Postacademisch Juridisch Onderwijs (Center for Professional Legal Education) of Radboud University Nijmegen, and organized by Radboud's Faculty of Law along with a group of other distinguished academics and practitioners from Europe, the United States, and the Middle East.

The program will be both practical and academic, with discussions of legal tech advances generally and specifically in ADR, consumer law, and the public section, as well as a discussion of the practical and ethical implications of digital law practice.

Organizers/participants (in addition to yours truly) include:

Prof. Larry A. DiMatteo: Huber Hurst Professor of Contract Law & Legal Studies, Warrington College of Business, University of Florida

Prof. Florian Möslein: Professor of Contract Law, Company Law and Capital Markets Law, Philipps University Marburg

Jiaying Christine Jiang: SJD Researcher, Emory University School of Law; Attorney, New York

Prof. André Janssen: Chair Professor of Private Law, Radboud University, Nijmegen

Dr. Pietro Ortolani: Assistant Professor, Radboud University, Nijmegen

Dr. Benjamin Werthmann: Attorney, Werthmann.legal, Berlin; Advisory Board Robotics and Artificial Intelligence Law Society (RAILS), Berlin

Paw Fruerlund: Partner, Kammeradvokaten Poul Schmith, Copenhagen

Raffaele Battaglini: Chief Legal Officer, JUR, Zürich Area; Partner, Battaglini De Sabato, Turin

Dr. Mateja Durovic: Lecturer in Contract and Commercial Law, King’s College London, The Dickson Poon School of Law

Dr. Jin Ho Verdonschot: ODR developer; Member Supervisory board Justice Leadership Group, The Hague

Prof. Martin Ebers: Associate Professor of IT Law, University of Tartu (Estonia); Permanent Research Fellow, Humboldt University of Berlin; Co-Founder and President, Robotics and Artificial Intelligence Law Society (RAILS), Berlin

Prof. Francisco de Elizalde: Professor of Private Law, IE University Law School, Madrid

Prof. Sofia Ranchordás: Professor of European and Comparative Public Law and Rosalind Franklin Fellow, University of Groningen

Dr. Georgios Dimitropoulos: Assistant Professor, Hamad Bin Khalifa University, Qatar

Dr. Jean-Marc Van Gyseghem: Director of Research Centre Information, Law and Society, University of Namur; Associate Partner, Rawlings Giles Law Firm, Brussels

Prof. Michel Cannarsa, Dean, Faculty of Law, Catholic University of Lyon

Dr. Christopher Markou: Affiliated Lecturer, University of Cambridge

Dr. Mathieu Guillermin:  Associate Professor, Catholic University of Lyon

Registration information is available here.

Posted by Jeff Lipshaw on August 6, 2019 at 05:17 PM in International Law, Lipshaw, Web/Tech | Permalink | Comments (0)

Hiring Announcement: Suffolk University Law School Transactional Clinic Director

My school is undertaking a search for an entry level assistant clinical professor to launch and direct a Transactional Law Clinic.  From the job description: 

We seek candidates with strong academic records and a commitment to excellence in teaching and scholarship. Prior experience in clinical education is preferred, and at least three years of transactional law experience is required. Applicants must be admitted or eligible for admission to the Massachusetts bar.
The Transactional Law Clinic will provide students with the hands-on, practical experience they need to navigate the rapidly evolving field of transactional law. At a minimum, the Clinic will provide free legal services to underserved clients on transactional issues and collaborate with several existing clinics at the Law School on transaction-related issues.
The ideal candidate will be a self-motivated individual who can launch and grow the Clinic by developing relationships within the greater Boston community, the University community, and the academy and Bar.
In addition to directing the Clinic, the faculty member will be expected to teach one non-clinical course in a related field, contribute to the Law School and community, and produce scholarship.
The Transactional Law Clinic, once launched, will be one of Suffolk’s 12 in-house clinics, adding depth and breadth to Suffolk Law’s nationally regarded Clinical Programs. Suffolk Law’s Clinics have been ranked among the top 20 such programs in U.S. News & World Report for more than a decade. The Clinic also will be a part of Suffolk Law’s successful Business and Financial Services concentration.
Applicants should submit a curriculum vitae, a list of references, and a cover letter addressed to Professor Sarah Boonin, Co-Chair of the Clinical Committee, Suffolk University Law School.

I can add that we have a "unified" tenure track that includes clinical and legal practice skills professors.

Posted by Jeff Lipshaw on August 6, 2019 at 03:10 PM in Getting a Job on the Law Teaching Market, Teaching Law | Permalink | Comments (0)

Monday, August 05, 2019

#MeToo at the Indian Supreme Court

I thought I’d take a break from my series about junior-prawfing to talk a little bit about a current project—rather, part of a future project. This draws from a preliminary “scouting” field trip I did in Delhi this April/May in order to refine ideas for a new research arc on the Indian judiciary. (One of my later posts may discuss the process of developing or shifting research arcs.)

Continue reading "#MeToo at the Indian Supreme Court"

Posted by Deepa Das Acevedo on August 5, 2019 at 10:47 PM | Permalink | Comments (5)

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)

Judgments we like yielding precedent we hate

In a post on Friday, I mentioned Rosenberger v. Rector and Visitors of University of Virginia as a case in which a conservative victory (the Court held that the university could not deny student-activities funding to a religious organization) produced liberal victories in lower courts (holding that universities could not deny funding to LGBT organizations). In other words, the judgment in the case was great, but the judgment was accompanied by an opinion that established a principle that provided precedent for other courts to produce not-so-great judgments in later cases.

Consider this a bleg: I am looking for a particular situation--Case I established a general principle that yielded one outcome, then that general principle yielded a politically opposite outcome. Can people think of other examples of this, in either direction?  And are there examples outside of free speech/press? I think this would make an interesting study.

Posted by Howard Wasserman on August 5, 2019 at 09:31 AM in Howard Wasserman, Judicial Process | Permalink | Comments (10)

Sunday, August 04, 2019

Is Blogging the New Resume?

I learn a lot about career planning through the observation of others’ successes (and failures). I have observed lawyers and non-lawyers alike carve professional niches through blogging and podcasting. The two best examples are On Reserve, a Wine Law blog, and The Gen Y Lawyer podcast.

Lindsey Zahn started On Reserve in law school as a means of writing about her passion in the regulation of alcoholic beverages. It grew a following, and led to opportunities as an alcoholic beverage lawyer. The blog also allowed her to showcase her prolific scholarship in wine law.

The Gen Y Lawyer podcast went down a similar path. A way to express the feelings of a new generation of lawyers by interviewing legal professionals, it provided Nicole Abboud with the opportunity to become a legal marketing consultant.

I do not advocate every aspiring lawyer to create their own blog or podcast. There are logistical issues with attracting readers and listeners (both of the aforementioned were profiled by the American Bar Association). There are, however, some takeaways for establishing a blog or podcast to show one's legal acumen. First, content must be continuous. People will lose interest in your online media if there is nothing new to see. This ties directly into my second observation. It must be born of passion. Both On Reserve and The Gen Y Lawyer were products of the visions and interests of their creators. On Reserve became not only a resource for those interested in wine law, it was also a way to demonstrate Zahn's skills as a writer, scholar, and experience. The fact that both are still going strong today is a testament to this.

Posted by Scott Maravilla on August 4, 2019 at 03:04 PM | Permalink | Comments (0)

More on Malcolm Gladwell

Mike Dorf critiques the fourth season of Malcolm Gladwell's Revisionist History, which contains several episodes relevant to law and legal education. In particular, the first two episodes criticize the LSATs as the gateway into legal education. The basic argument is that the test's tight time constraints favor "hares" who think and react quickly over "tortoises" who take longer to think and analyze a problem, while the practice of law is more for tortoises.

But at least the first two episodes (I am midway through Ep. 3) are worse than Dorf suggests. The problem is that Gladwell tends to pick a thesis, find evidence that undermines one variable in furtherance of that thesis, then conclude (or assume) that his thesis has been proven, without exploring the other variables or other obvious explanations for the result. Dorf describes this as Gladwell "overclaim[ing]." Three glaring examples in these episodes.

Continue reading "More on Malcolm Gladwell"

Posted by Howard Wasserman on August 4, 2019 at 01:48 PM in Howard Wasserman, Teaching Law | Permalink | Comments (11)

Law in Popular Culture

With Avengers: Endgame now the highest grossing film of all time  and Spiderman: Far From Home raking in $1 billion at the world wide box office, we are firmly in an Age of (Super) Heroes. Now that our (popular) culture is immersed in the superhero/comic book genre, it is a good time to reflect on its place in legal culture.

Scholars and practitioners have begun to dissect the themes and portrayal of the legal profession in fantasy-based popular culture. Law and the Multiverse, I believe the first blog on the subject matter, routinely examines the law as it’s portrayed in comics and the films based on them. Editor, James Daily, is co-author of the landmark work, The Law of Superheroes. The first to examine the place of those “with powers far beyond mortal men” in the legal landscape. The subject has also drawn interest at industry conventions. This past April, Awesome Con in Washington, DC featured a panel called Law and Order in Comics.It bought together scholars, practitioners, and writers.

Many of these discussions revolve around the heroics of the blind lawyer turned vigilante, Daredevil. Netflix wove three critically acclaimed seasons of intense storytelling around the character. Albeit, the show turned in a poor outing with its accuracy in its portrayal of the law. Matt Murdock (DD’s alter ego) and his law partner, Foggy Nelson, routinely violated the attorney-client privilege as did every other lawyer in the show. The main bad guy, The Kingpin, is actually convicted based on information he provided to his own lawyers. Law school fares no better with our heroes studying Spanish, and appearing to take other undergraduate classes.

Notwithstanding the portrayal in television and film (let’s not getting started with a private attorney prosecuting a criminal in the Ben Affleck starring movie version), the profession has been well served by the writers of DD. Charles Soule is an attorney and writer, most famous for his work with Marvel, brought his experience as an attorney to the written page. Daredevil, for example, takes a job as an Assistant District Attorney.She-Hulk accurately portrayed the titular heroine losing her BigLaw job for a lack of billing because she’s off saving the universe with the Avengers. 

Louis Rosen, a reference librarian at Barry University School of Law, argues that comics, Daredevil specifically, provide an opportunity to educate the public on the role of lawyers in society through accurate portrayals across mediums. His article can be found here, and an interview with him here.

I have found it interesting to examine real world legal issues through this lens as well. I wrote my own piece on the ethics of Matt Murdock representing criminals he captured as Daredevil. Analogizing to off duty police officers, I examined whether it was ethical for Matt Murdock to represent criminals who he caught as Daredevil.

As it looks like we will be enjoying the fruits of the MCU for the foreseeable future, we can draw from it for legal discourse.

 

Posted by Scott Maravilla on August 4, 2019 at 12:37 PM | Permalink | Comments (3)

Visiting Again

I want to thank Howard Wasserman for providing me the opportunity to guest blog. As a long time reader and fan of the site, it is always a dream come true to be a member of this wonderful community. As we are approaching the AALS teaching market, I want to wish all of the aspiring law professors the best of luck.

As a re-introduction, I am an administrative judge and writer of legal scholarship. I am also an elected member of the American Law Institute, and have been an active participant on the Restatement (Fourth) of Property Law project. I plan to blog on a variety of topics including the portrayal of the law in popular culture, reviewing a new book on using technology in the classroom, and on some recent Supreme Court decisions.

Posted by Scott Maravilla on August 4, 2019 at 12:21 PM | Permalink | Comments (0)

Good guys with guns

I think Sunday's events should end the idea that the answer to bad guys with guns is good guys with guns.

Texas is an open-carry state and Wal Mart stores are happily open-carry. So there is a good chance that someone in the store was or could have been armed. No one shot back. The two "heroes" were the veteran in Wal Mart who reacted to the shooting by pulling children to safety and the guy in Dayton who wrestled the gun from the shooter. No one tried to get into a firefight with the guy. Which is smart, because the chances are that the policy would misidentify the good guy as the bad guy and shoot him (especially if he possessed certain traits).

Everyone is praising the police in Dayton for taking out the shooter in less than a minute. But in that minute, the shooter killed 9 and injured 27. The GGWG argument always has rested on the idea that some early victims will be sacrificed; we not know the BGWG until he starts shooting, so there will be a few victims until the situation reveals itself and the GGWG can spring into action. The GGWG prevents a small tragedy from becoming a big tragedy.  But in Dayton the GGWGs (the police) quickly sprung into action--and the casualties already were enormous. So the only way to prevent mass casualties is for the GGWG to act before the shooting starts, with police being hare-triggered in their suspicions about who might be a BBWG. And we know at this point that the people the police identify do not look like the people who did the shooting this weekend.

The early Republican talking point is that violent video games are causing these mass shootings, so they should be regulated (along with more compulsory school prayer and flag salutes). This is so stupid and vacuous that it should be embarrassing. And the reason I stopped watching mainstream media outlets is that they fail to challenge the stupidity and they keep inviting the same people to repeat the same vacuous talking points.

Posted by Howard Wasserman on August 4, 2019 at 12:17 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, August 03, 2019

Divorce and the Contracts Clause

Next semester I'm teaching a seminar on the Marshall Court. In preparation for that class, I reread Dartmouth College v. Woodward. One fascinating subplot in the argument was whether the Contracts Clause barred a state from making divorces easy to obtain. New Hampshire argued that the Contracts Clause could not truly apply to all contracts and should not be read to cover Dartmouth's charter. If the Contracts Clause were read so broadly, then a state law permitting something like no-fault divorce would be very problematic. After all, divorce laws do undercut the obligations imposed by a marriage contract.

Chief Justice Marshall discussed the point in his opinion. He said state divorce statutes were not liberal (in other words, someone needed to prove specific wrongs by their spouse to obtain a divorce). Thus, they tracked fairly closely with the common law exceptions to a contract. (fraud, duress, etc.). He also said that the divorce issue need not be addressed--Dartmouth's charter was a contract no matter what you thought about divorce.

Justice Story, in a separate opinion, went further. He said that no-fault divorce laws would be unconstitutional. Whether anyone else ever took that view, I do not know. (Justice Washington, characteristically, declined to talk about what amounted to a hypothetical in his separate opinion concurring in the judgement.

I do not know why Dartmouth College generated multiple opinions (unlike the typical Marshall Court opinion). But disagreements about divorce among the Big 3 (Marshall, Washington, and Story). may be the answer.    

Posted by Gerard Magliocca on August 3, 2019 at 08:38 PM | Permalink | Comments (2)

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

Judicial immunity can be shocking (sorry)

In the judicial immunity section of my civil rights book, I use a puzzle that I blogged about years ago: A judge in Mississippi cited for contempt and jailed an attorney for refusing to recite the pledge of allegiance prior to court proceedings. I spun that off into several hypos (inspired by a comment from Jack Preis), including the judge ordering the bailiff to tase the lawyer and the judge tasing the lawyer himself. The question is where judicial immunity runs out.*

[*] The attorney did not sue the judge, so this never became a real issue. The judge was disciplined--one of many, many disciplinary actions against him.

This story discusses the use of stun belts to control unruly defendants in court. The problem, besides the extreme pain these devices inflict, is that some judges use (or threaten to use) them not to control security threats, but to get defendants to pay attention to the judge or to stand while addressing the court. States vary as to who controls the device--the courtroom deputy acting on the judge's order or the judge herself.

So here is my hypothetical, brought to life. The arguable immunity turns on  the nature of the judge's action: Ordering the bailiff to tase the attorney would be immune, tasing the attorney himself would not be (nor would Jack's example of the judge shooting the attorney for refusing to comply. Giving orders to maintain courtroom control is a judicial function, with bailiffs and deputies executing those orders; tasing someone to maintain order is not a judicial function because not something done by a judge as judge. But at least some jurisdictions give the judge (not the bailiff) control over this device, making its use--not merely ordering its use--something that the judge is doing in her role as a judge while on the bench.

The story linked above discusses the problems in the use of these devices and how they affect criminal trials, as well as efforts to enjoin their use. No one has yet sued a judge for damages for employing the device, which is where judicial immunity would kick in. Stay tuned.

Posted by Howard Wasserman on August 2, 2019 at 12:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

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?

Continue reading "Confusion of the Inverse??"

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)

Free speech on campus

A random assortment of free-speech controversies on campus. Some were discussed in programs at SEALS.

Continue reading "Free speech on campus"

Posted by Howard Wasserman on August 2, 2019 at 10:25 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (4)

Interview with Calvin Morrill about the Jurisprudence & Social Policy Ph.D. Program at Berkeley Law

For those of you who have been following my interview series, you know that it generally focuses on VAPs and fellowship.  This interview, however, focuses on a related, but slightly different, trend in law faculty hiring—the increase in the number of entry-level hires with Ph.D.’s.  I spoke with Professor Calvin Morrill, who is the Stefan A. Riesenfeld Professor of Law and Professor of Sociology at UC Berkeley, about Berkeley’s Jurisprudence and Social Policy (JSP) Ph.D. Program.  Cal has served as the Associate Dean for the JSP Program, although he is rotating out of that position this summer.  Thanks, Cal, for participating in this series!  An edited transcript of our conversation is below, and I have invited him to respond to any questions in the comments. 

You can read more about the structure of these interviews and other caveats related to them here.


Q. Can you give me a brief overview of the Jurisprudence and Social Policy program at Berkeley?

A. Sure. JSP is a multi-disciplinary, interdisciplinary Ph.D. program that's focused on the study of law and legal institutions. It’s housed within Berkeley Law, but is a relatively autonomous unit like a department. The program has about 60 Ph.D. students and 17 core faculty members, all of whom hold primary appointments in Berkeley Law, and also typically hold a secondary appointment in a disciplinary department at Berkeley. The goal of our program is to train academics for positions in law schools, interdisciplinary programs, and disciplinary programs. Students come to JSP either with only a BA, or with a JD, an MA or an equivalent graduate degree, and they spend about five to six years studying toward the Ph.D.

Rather than organize the program by traditional law school curricular areas such as torts, or contracts, or intellectual property, for example, JSP is organized by research disciplines and their intersections. Our hubs of organization within JSP are law and society/sociology of law, criminology and punishment in society, law and economics, law and political economy, legal history, law and political science/public law, law and political theory/philosophy, and law and psychology. Multiple members of our core and affiliated faculty also draw on critical perspectives of law, including feminist theory and critical race theory. Our faculty embraces methodological pluralism that ranges from advanced quantitative methods to advanced qualitative, historical, and critical methodologies.

Continue reading "Interview with Calvin Morrill about the Jurisprudence & Social Policy Ph.D. Program at Berkeley Law"

Posted by Jessica Erickson on August 2, 2019 at 07:09 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Thursday, August 01, 2019

Richard Re on the "Law of Clarity" and Constitutional Avoidance:

As numerous scholars (see, e.g., Brian Slocum's fine piece) and even one judge (Justice Kavanaugh in a widely cited book review) have noted, few concepts are less clear than the concept of legal clarity. (The problem can be equivalently restated as legal ambiguity’s being ambiguous). Given that a lot rides on a determination that a statute is plain, clear, unambiguous, etc., one would think that courts would spend more time analyzing the concept(s) in judicial opinions. Alas, no — and perhaps predictably so: Keeping the concept of ambiguity ambiguous gives judges discretion that intelligible analysis of ambiguity/clarity might eliminate. Using an unanalyzed concept of clarity, judges can turn Chevron off and on like a spigot, hedge on how much notice to give to criminals about what the law forbids, or vary their deference to state judges in habeas proceedings — all without having to engage in a lot of pesky, tiresome reason-giving.

Leisure-seeking judges beware (but Leg-Reg profs like myself, rejoice): Richard Re has just posted a razor-sharp analysis of the concept of legal clarity. Richard’s piece is full of insights, but its most basic point is also the most important: Legal clarity, he argues in Part I, “is not an empirical or linguistic fact but rather a legal characterization that ultimately rests on normative premises.” Legal clarity is not a linguistic concept at all: It is a legal conclusion dependent on the purposes of the law. So one needs to know the normative goal that any clarity doctrine (e.g., lenity, Chevron, qualified immunity etc.) seeks to accomplish before one can define “clarity.” Different doctrines define clarity in different ways, relying on different levels of confidence about how different sorts of interpreters would read some allegedly clear phrase. The “Law of Clarity,” therefore, is characterized by “clarity pluralism,” about which Richard has ambivalent thoughts.

There is so much to like about Richard’s article that it would be churlish of me to pick nits about his treatment of constitutional avoidance, a topic to which he devotes four pages. Naturally, after the jump, that’s what I am going to do. In brief, I think that Richard might have overlooked what I call the “Lazy and/or Scared Judge” theory of clarity, viz.: Sometimes the point of a clarity doctrine is neither to make the law more predictable nor to insure that legislative purpose is more faithfully carried out but instead to save judges the politically troublesome, intellectually vexing task of resolving disputes about what the law means. By demanding high levels of semantic clarity in statutes from lawmakers, judges (try to) force those lawmakers to do the work that the judge wants to avoid doing.

Continue reading "Richard Re on the "Law of Clarity" and Constitutional Avoidance: "

Posted by Rick Hills on August 1, 2019 at 05:07 PM | Permalink | Comments (3)

Wednesday, July 31, 2019

Sherry on the "Kardashian Court"

Suzanna Sherry has a new piece on SSRN, Our Kardashian Court (and How to Fix It). Sherry argues that partisanship can be reduced on SCOTUS by a law prohibiting concurring and dissenting opinions and having the Court issue one per curiam opinion, with no indication of how many Justices joined that opinion. The goal is to eliminate the opportunity for Justices to become celebrities or to push personal agendas.

This is a fascinating idea. I had the privilege of reading and commenting on an earlier draft. Some of my comments are after the jump:

Continue reading "Sherry on the "Kardashian Court""

Posted by Howard Wasserman on July 31, 2019 at 01:13 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (10)

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)

Humans Out of the Loop?

As I mentioned a couple days ago, this summer's project has been a reflection on what humans and machines are likely to be able to bring to the lawyering party.  One of the "pro-algorithm" themes out there in the literature is the synergy between "computational law" developments and the insights of the "heuristics and biases" behavioral psychology, of which Daniel Kahneman's work is among the most notable (and popular).  To quote Thinking Fast and Slow, “Whenever we can replace human judgment by a formula, we should at least consider it.” (p. 233.)

Michael Livermore (Virginia) has a nice little essay about the possibility of computationally self-executing legal rules, notwithstanding the famous jurisprudential debates about the “open texture” of language.  Can natural language processing (NLP) and artificial neural networks (ANNs) get to the point where humans trust a computational system to draw conclusions about things like what it means to be a "vehicle" that is prohibited in the park?  (The system would be given lots of pictures of things that could conceivably be "vehicles" and would be trained to use activation functions and weights to learn what a "vehicle" is within the meaning of the statute.)

But I digress into substance when I really want to talk about the outtake.  Professor Livermore uses the phrase "the dream of removing human beings from the loop of legal reasoning." For me, what immediately came to mind was the view of the noted cyber-technologist and DOD consultant, John McKittrick, on the same subject in connection with launching ICBMs: “You can’t screen out human response! Those men know what it means to turn the keys, and some are just not up to it! Now, it’s as simple as that! I think we oughta take the men out of the loop.”  As we know, he prevailed in that view, bringing the world almost to the brink of destruction, to be saved in the end by Ferris Bueller's doppelgänger: 

Posted by Jeff Lipshaw on July 31, 2019 at 08:00 AM in Lipshaw, Odd World | Permalink | Comments (7)

Tuesday, July 30, 2019

Vertical Stare Decisis

Justice Thomas recently wrote an interesting separate opinion in Gamble v. United States outlining his views on stare decisis. In Footnote Three of his opinion, Justice Thomas stated: "I make no claim about any obligation of “inferior” federal courts, U. S. Const., Art. III, §1, or state courts to follow Supreme Court precedent."

I've been wondering about this. Suppose a conscientious judge is presented with an argument that a United States Supreme Court opinion is erroneous. The judge is ultimately bound by the Constitution and not by Supreme Court decisions interpreting the text. (At least this is the argument that Justice Thomas makes about why Supreme Court Justices should not follow their own erroneous decisions.) Why, then, should the judge not state his or her view of the law and present the question for a higher court? 

It's easy to think of practical answers to this question. Because the judge will get reversed most of the time. Because the judge will not get selected for a higher court. Because this will lead to more instability. But what is the principled difference between horizontal stare decisis, which is widely viewed as a flexible standard, and vertical stare decisis, which is widely viewed as an ironclad rule?

Perhaps the answer is that these forms of stare decisis were treated differently at common law. But this claim does not work if you think, as Justice Thomas says, that stare decisis must be understood differently under a written constitution than it was under the common law. Maybe the answer is that Article III's designation of "inferior" federal Cours implies that they must obey Supreme Court decisions strictly. At the Founding, though, Supreme Court Justices sat on "inferior" federal courts, which muddles the textual point. (In any event, this tells you nothing about state judges, who take an oath to the Constitution itself.)

There are some (though not many) instances of an inferior federal court or state court openly defying a Supreme Court precedent. Typically these opinions justify their departure by appealing to the text of the Constitution (though these efforts generally go nowhere). When we will see that move again?   

 

Posted by Gerard Magliocca on July 30, 2019 at 09:01 PM | Permalink | Comments (3)

Monday, July 29, 2019

Organizing a panel

As we enjoy SEALS at Boca Resort, some wise words for all academics from Yascha Mounk.

Posted by Howard Wasserman on July 29, 2019 at 10:29 PM in Teaching Law | Permalink | Comments (1)

Tax Chair Search

I'm pleased to announce that the Indiana University Robert H. McKinney School of Law is beginning a search for a new Chair in Taxation that will begin in 2020-'21. For more information, please contact Professor Florence Roisman at [email protected]

Posted by Gerard Magliocca on July 29, 2019 at 05:32 PM | Permalink | Comments (0)

Blogging with Outtakes - Existentialists, Asymptotes, and Parachutes

Photo-1540256986065-af6d17eab40bThe bad news is that I missed the start of the guest blogging I promised Howard by a full month.  The good news is that I had two excuses (a) our first grandchild was born on July 3 and I seem to waste inordinate amounts of time curating baby pictures, and (b) I was finishing this summer's project.  The upshot of (b) is that by the process of some fairly brutal self-editing I have the drafting equivalent of a portfolio of outtakes.

The piece isn't quite ready for prime time via SSRN, but its title is Unsure at Any Speed: Lawyering Somewhere Between Algorithms and Ends.  It's a contemplation of how we'll reconcile the capabilities of digital lawyering and human lawyering. That means I thought a lot about the differences between what it means to have a brain comprised of flip-flops and P/N junctions, on one hand, and neurons, on the other.  And as it's where science melts into philosophy, it's just made for metaphors that live for a time between drafts 1.2 and, say, 1.9.  Alas, they ultimately have to be sacrificed in the interest of the reader's patience with the filigrees of my cranial neurons.

The risk of metaphor overload is highest when you are wrestling with the very concepts of complementarity, irreconcilability, paradox, and  irreducibility. Those are at the core of what I think is the difference between not just thinking like a human versus a machine, but also being like a human versus a machine. Hence, my existentialist turn. I am more than the physical or social properties a third-person could observe about me. What makes me me” is that I am capable of having an attitude about my own objective existence, that I am engaged practically in the world, that I am a subjective agent capable of action by way of my own will.  Give that one a try, ROSS.  Unless a human like me programs you otherwise, you are doomed to be the two-handed lawyer ("on the one hand; on the other hand") that business people despise.

So I'm fascinated with the ways we can try metaphorically to capture the complementarity of just thinking or even deciding, on one hand, and acting, on the other. Think about that moment after you've clicked "Start New Submission" on SSRN, uploaded the draft and the abstract, chosen your journals, and are about to submit. If you are like me, that is the equivalent in academia to stepping out of the airplane in sky diving. No amount of thinking about it substitutes for the act itself.

Continue reading "Blogging with Outtakes - Existentialists, Asymptotes, and Parachutes"

Posted by Jeff Lipshaw on July 29, 2019 at 05:05 PM in Blogging, Legal Theory, Lipshaw | Permalink | Comments (2)

Saturday, July 27, 2019

New AALS Website on Becoming a Law Professor

Hopefully by now, many of you have seen the AALS’s new website for individuals interested in law faculty positions.  The vast majority of the work developing this site was done by the AALS staff (including Sean Scott, the former Associate Director of the AALS), but I served on the AALS Committee on Becoming a Law Teacher, which worked on the project as well, so I wanted to take a few moments to highlight the site and a few of its unique features.

First, I want to recognize that this site builds on the amazing work by Prawfsblawg’s own Sarah Lawsky over the past several years collecting data on entry-level law faculty hires.  The site relies on this data in various places, and it now does a better job of acknowledging her contribution to the site and the profession more broadly.  Thanks, Sarah, for all of your work over the years spearheading this data project!

Second, the site includes a wealth of information about the realities of the law teaching market.  Many of us have probably received phone calls from alumni of our schools or local lawyers expressing interest in law teaching, and it is difficult to convey just how hard it is to land a law faculty position while also explaining the necessary steps and the relevant processes.  This site lays out all of this information in a single place, with the goal of making this process more transparent.  We definitely didn’t want to sugarcoat the process, but we also want to make sure that people who are committed to this path know what they have to do to have the best chances to succeed.

Continue reading "New AALS Website on Becoming a Law Professor"

Posted by Jessica Erickson on July 27, 2019 at 06:52 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (1)

Random snippets of law

Each too short for a stand-alone post. Maybe this is why we have Twitter.

Here is everyone's Evidence question for the coming semester: The government in the Roger Stone prosecution has moved in limine to admit the clip from Godfather Part II in which Frank Pantangeli recants his prior statement implicating Michael Corleone. The government argues this is relevant to explaining Stone's repeated references in his communications with Jerome Corsi and shows that Stone was urging Corsi to lie to Congress.

• This point is moot with the announcement by the House Judiciary Committee that it is investigating "possible impeachment." But following Robert Mueller's testimony on Wednesday, Adam Schiff and Nancy Pelosi stated that their preferred next step was to complete litigation over various subpoenas; if the President disobeyed an Article-III-final court order, that would be the last straw prompting a move to formal impeachment.

I did not understand why that is or should be the relevant line. Some have flagged this as the line that Nixon would not cross, so crossing it would make Trump worse than Nixon. But it is hardly the worst or most wrongful thing a President could do. And it is not obviously worse or more impeachable than the misconduct--some criminal, some representing abuses of office or prospective office--described in Mueller's report and testimony.

I would guess that Pelosi and Schiff believed that Mueller had not described, in sufficiently dramatic terms, a single flashing-red-light act that would rally the public. Or they bought the media spin that Mueller's testimony was too dull to do that. So the strategy became to wait for the next single flashing-red-light act. Or the one after that. Or . . .

Posted by Howard Wasserman on July 27, 2019 at 09:02 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (0)

Friday, July 26, 2019

Junior Prawf Book Projects

Hi folks. This is the third in a series on being a junior, interdisciplinary, multi-subject prawf—you can find the first two posts here and here.

Following up on my last post (and on some emailed comments from other junior prawfs) I thought I would say more about one of my current publication projects: an edited volume for Cambridge on qualitative empirical approaches to studying gig work regulation. I’ll preface this by acknowledging that undertaking an edited volume in year 1 of a TT position is unusual and not necessarily something I would recommend. I hadn’t planned on doing any kind of book just yet, and I only let myself do this on the understanding that it would be in addition to the article projects I had already planned. As earlier Prawfs posts have suggested, a book—especially an edited one—probably counts around the same as a good article, so it’s not the most efficient use of one’s time. I also wouldn’t have done it if I hadn’t already written a handful of articles in the area. That, along with the process of creating an online bibliography related to gig work regulation, made me feel like I had a tolerable if constantly-catching-up grasp of the field.

Continue reading "Junior Prawf Book Projects"

Posted by Deepa Das Acevedo on July 26, 2019 at 05:05 PM | Permalink | Comments (0)

"Amadeus" and the academy

Keith Humphrey (Stanford Medicine) discusses how the movie Amadeus reflects life in the academy--specifically, how fortunate one is to be Salieri even if he cannot be Mozart.

Posted by Howard Wasserman on July 26, 2019 at 10:03 AM in Howard Wasserman, Teaching Law | Permalink | Comments (3)

Interview with Miriam Seifter on the William H. Hastie Fellowship Program at the University of Wisconsin Law School

Next up in my series interviewing VAP and fellowship directors is Miriam Seifter, an Associate Professor at the University of Wisconsin Law School.  For the past two years, she has chaired the committee that oversees the William H. Hastie Fellowship Program at Wisconsin.  An edited transcript of our conversation is below, and I have invited Miriam to respond to any questions in the comments.  Thanks, Miriam, for participating in this series!

You can read more about the structure of these interviews and other caveats related to them here.   For more information about law faculty hiring generally, check out the section of the AALS's website devoted to this topic at https://teach.aals.org/.


Q. Tell me a little bit about the Hastie Fellowship Program, including its history.

A. The Hastie Fellowship is an academic fellowship program aimed to help prepare candidates for the law teaching market. The program is named in honor of William H. Hastie, who was a renowned lawyer, teacher, judge, and civil rights advocate who, among other things, championed the value of legal education. The Fellowship was founded in large part by Professor James E. Jones, who was a labor law expert and one of our celebrated professors here at Wisconsin. The program has been around for over 40 years, and it reflects a commitment to foster diversity and inclusion in the legal profession.

Continue reading "Interview with Miriam Seifter on the William H. Hastie Fellowship Program at the University of Wisconsin Law School "

Posted by Jessica Erickson on July 26, 2019 at 08:18 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (1)

Thursday, July 25, 2019

Manners Matter: Updating George Washington’s Etiquette Book for the Culture Wars

Understanding that the term is probably an essentially contested concept, I nevertheless count myself as a “conservative.” One aspect of at least my brand of conservatism is respect for manners. By “manners,” I mean all of those artificial rules of self-restraint that keep people from saying and doing whatever they happen to have a mind to say or do out of deference to the likely reaction of onlookers. “Manners” include basics like the prohibition against picking your nose or flossing your teeth in public as well as conversational niceties like beginning any new conversation with a question to your interlocutor rather than a statement about yourself. Use of cutlery, tact about religion, waiting for others’ food to arrive before eating — all are part of that vast network of unwritten restraints drilled into well-mannered people in childhood.

What’s so “conservative” about manners? Behind this elaborate network of artificial restraint is a Hobbesian assumption about human nature peculiar to a certain brand of conservativism, viz: Humans are aggressive, self-loving primates, prone both to promoting their own comfort and self-esteem at others’ expense and to taking offense at such slights from others. Such creatures can live together safely only with artificial rules that keep each person wary about the dignity and disgust of others.

For American conservatives, one urtext of manners is teenage George Washington’s little notes on etiquette, entitled “Rules of Civility and Decent Behaviour In Company and Conversation.” The 110 rules copied out by young George in 1748 epitomize a basic aspect of Washington’s conservatism — his rigidly adhering to a complex code of Virginian deference and dignity designed to avoid duels and demagoguery. In a democracy, this code allowed him to rule without threatening others’ amour-propre by cultivating elaborate obeisances to social constraints that show self-control, self-respect, and respect for others. Washington’s notebook contains some now-quaint rules against (for instance) putting one’s hands in one’s pockets while in the presence of others. But the master principle that all such limits on fidgeting reflected is stated by Rule #1: “Every Action done in Company, ought to be with Some Sign of Respect, to those that are Present.”

If Washington were alive today and updating his notebook, I feel confident that he would include another rule of self-restraint: Do not talk about one’s own students’ 1L grades in a casually disparaging manner on a radio broadcast.

Continue reading "Manners Matter: Updating George Washington’s Etiquette Book for the Culture Wars"

Posted by Rick Hills on July 25, 2019 at 03:06 PM | Permalink | Comments (9)

American Society of Comparative Law: 5th Workshop on Comparative Business and Financial Law

AMERICAN SOCIETY OF COMPARATIVE LAW: YOUNGER COMPARATIVISTS COMMITTEE
FIFTH WORKSHOP ON COMPARATIVE BUSINESS AND FINANCIAL LAW
Submission deadline: October 25, 2019

The Younger Comparativists Committee (YCC) of the American Society of Comparative Law (ASCL) is pleased to invite submissions for its fifth workshop on comparative business and financial law to be held on February 7-8, 2020 at the University of Akron School of Law in Akron, Ohio. The purpose of the workshop is to highlight, develop, and promote the scholarship of new and younger comparativists in accounting, banking, bankruptcy, corporations, commercial law, economics, finance, and securities.

Continue reading "American Society of Comparative Law: 5th Workshop on Comparative Business and Financial Law"

Posted by Howard Wasserman on July 25, 2019 at 09:31 AM | Permalink | Comments (0)

Wednesday, July 24, 2019

Classifying Gig Workers Misses the Bigger Picture

I have a new article out today in the Harvard Business Review - The Debate Over How to Classify Gig Workers Misses the Bigger Picture.

I'd love to get your thoughts. The question of how to regulate platforms and how to classify workers is heated and as this post suggests, scholars have been suggesting middle categories for some time. As a non-American my first exposure to employment and labor law was through the law of work - defying categories and distinctions with an attempt to focus on the substantive goals of fairness and protection. I wrote an early piece drawing on that comparative experience, The Four Pillars of Work Law, Michigan Law Review. Since then I have written a trilogy of article on digital platforms: The Law of the Platform; Platform Market Power (with Ken Bamberger); and The Gig Economy.

I this short HBR piece today I address the current California negotiations and initiatives, after the California Supreme Court's Dynamex decision. I suggest we should focus on the underlying goals of each of the patchwork of rules, regulations, rights and protections and reject a one-classification fits all broad brush solution. 

Posted by Orly Lobel on July 24, 2019 at 04:34 PM | Permalink | Comments (6)

Meta Rankings of Law Reviews

Former guest Prawf Bryce Newell has updated his Law Journal Meta Rankings for 2019. This ranks mainline journals by combining US News ranking for the school, US News peer ranking for the school, Google Scholar rankings for the review, and W&L rankings for the review. It makes some of my recent or forthcoming pubs look better, others worse.

Posted by Howard Wasserman on July 24, 2019 at 09:53 AM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Classroom dress code?

In my post on the MAGA hat incident at Gonzaga, several commenters asked why the student was wearing a hat in the classroom. At some level, this is besides the point because the supposed problem is displaying offensive or provocative messages in class at a professor or colleague, not the medium. We would be having the same conversation over a MAGA t-shirt or whatever.

So the question is should we impose dress codes in the classroom (which would be dress codes in the building, since students are not going to change clothes all day)? As my daughter argued, we expect students to treat the classroom as a courtroom and to be prepared to engage at that level. If so, why allow them to dress in a way they would not be allowed in court. And if we do not go all the way to suits and dresses, at least "business casual."

I would not support such a move. They still are students and should be able to enjoy those comforts, even if we expect professionalism in other respects. But it is an interesting question, especially as politics get more divisive and people become more likely to be offended by the messages on someone's clothing. [Update: I should add that I wear shorts and a polo shirt on my non-teaching days, so I am not living what this would require of students]

Posted by Howard Wasserman on July 24, 2019 at 09:33 AM in Howard Wasserman, Teaching Law | Permalink | Comments (6)

Tuesday, July 23, 2019

Rapid Changes in Law & Scholarship: Gig Work Edition

I thought I’d take a short break from my junior interdisciplinary prawfs series (here are posts 1 and 2) to write about something from one of my substantive areas.

 When I started writing about employment regulation in the gig economy—around 2014, back when it was fairly reliably called the “sharing” economy—it felt like the options for resolving the problems of gig work through classification doctrine were pretty limited. I remember initially floating the idea of a category in between independent contractor and employee (along the lines of the “dependent contractor” concept that crops up periodically in the USA and that actually exists outside the USA) and having more than one person respond that this was so out in left field as to not be worth pursuing.

Continue reading "Rapid Changes in Law & Scholarship: Gig Work Edition"

Posted by Deepa Das Acevedo on July 23, 2019 at 09:27 PM | Permalink | Comments (1)

The rise and fall of laptops in the classroom

A discussion on the Civ Pro ListServ on how attorneys take notes (by hand or computer) morphed into another discussion of laptops in the classroom. Based on people who posted, it was something like 6:2 in favor of the ban. I record classes and make the audio available for those who want to relive the class verbatim and a couple people do the same. Reviewing previous discussions of laptop bans among Perma-prawfs and guests, the results are more mixed.

The pervasiveness of laptop bans caused me to think about the rise and fall of laptops, which tracks with my life in legal education:

Continue reading "The rise and fall of laptops in the classroom"

Posted by Howard Wasserman on July 23, 2019 at 08:53 PM in Howard Wasserman, Teaching Law | Permalink | Comments (8)

Submission Angsting Fall 2019

This is the post to share information or ask questions about submitting to law reviews.

The comments can be used to share information, complaints, praise, etc. about which journals you have heard from, which you have not, and so forth.

Additionally, a spreadsheet to gather information is here (and embedded below).

I won't update or watch the spreadsheet. You can go ahead and add your own information by going to the spreadsheet here. The spreadsheet is editable by anyone, except that a few columns and a row (the ones highlighted in yellow) are locked, either because they auto-calculate or because tampering with them has caused a problem in the past. (If something about them needs to be changed post a comment, and I will change them.)

Entering information in the column entitled "Username" is of course totally optional, but a way to make keeping track easier. For example, if you pick a username, you will easily be able to sort by your entries and update them, instead of trying to remember what day you submitted and sorting that way. This also adds information -- showing, for example, that all of the entries on the spreadsheet come from one person, or from lots of people, etc. At any rate, totally optional, and simply a way to add more information.

Rostron and Levit's extremely helpful guide to submitting to law reviews is available here (this is the January 2019 version). The article now also includes hyperlinks to law review websites.

For those wondering "when should I start submitting?", Scholastica has information through 2016. Here is a graph of submission dates as reported to PrawfsBlawg over three recent fall submission cycles. Remember that this information is drawn only from people who participate in PrawfsBlawg, who are not a random sample at all.

Fall Submissions 2015  2016  2018

And here is a graph of submission dates of articles that were reported as accepted.

Submission date of Accepted Articles - Fall 2015  2016  2018

A histogram-ish graph comparing when all reported articles were submitted and when accepted articles were submitted shows that these two groups match up almost exactly. Accepted articles were less than 10% of the total reported articles, so it's not that accepted articles are swamping the data:

Histogram Accepted Submitted

Fall Date of Submission Chart

You can see the data I used for this here.

[Updated 7/26/19 to remove graph with messed up labels; updated 7/27/19 to add graphs with hopefully not-messed-up labels, but please let me know if you see something that looks wonky.]

 

Posted by Sarah Lawsky on July 23, 2019 at 11:06 AM in Law Review Review | Permalink | Comments (154)

Monday, July 22, 2019

Faculty Hiring: Wayne State University

WAYNE STATE UNIVERSITY LAW SCHOOL is seeking to fill up to three tenure-track or tenured faculty positions. One position is for a tax scholar.  For the others, we will consider outstanding candidates in any field, but we are especially interested in scholars working in corporations (and related business subjects), civil rights and social justice, criminal law and procedure, and property.  We warmly welcome applications from women, members of minority groups, and others who will contribute to the diversity of the faculty.  Wayne Law is a vibrant intellectual community in the heart of Detroit.  Candidates not listed in the FAR and those with particular interest in Wayne Law should send a cover letter, CV, and any other materials they wish the committee to consider to Professor Christopher C. Lund, Faculty Appointments Committee Chair, at [email protected].  The law school will be participating in the AALS Recruitment Conference in Washington, D.C., but we will consider applicants outside the FAR process.

 

Posted by Howard Wasserman on July 22, 2019 at 03:53 PM in Teaching Law | Permalink | Comments (0)

Interdisciplinary Publishing

Hi folks. This is my second post in a series on being a junior, interdisciplinary, multi-subject prawf—you can find the first post here.

In my last post I said that “[i]f all I focused on during the next 2–4 years were projects that fit easily within the format and timeline of law review publishing it would be virtually guaranteed that much of what I bring to the table would fade away.” Recognizing that is one thing, figuring out how to avoid it via, among other things, one’s publications is entirely another. (I should also note that the law review cycle & format don't represent logistical challenges for all  interdisciplinary legal scholars who want to remain interdisciplinary.) 

After the jump, I’ll outline a few things that are beginning to make themselves clear to me. I'd love to hear from other interdisciplinary folks about their goals and their approaches to realizing those goals via publication strategy.

Continue reading "Interdisciplinary Publishing"

Posted by Deepa Das Acevedo on July 22, 2019 at 12:05 PM in Jr. Law Prawfs FAQ, Peer-Reviewed Journals | Permalink | Comments (2)

Saturday, July 20, 2019

What makes history constitutionally relevant? Some Reservations about Baude and Sachs’ view of the past

I am alternately puzzled and exasperated by originalist scholars’ attitude towards eighteenth century history. On one hand, they flyspeck old documents unrelated to specific constitutional texts to figure out what those texts mean. (Consider, for instance, Jennifer Mascott’s painstakingly erudite analysis of how eighteenth century writers used the noun “officer” in various corpora of texts to figure out what “Officer of the United States” means in Article II). On the other hand, they mostly ignore the great partisan disputes about banks, monarchy, natural aristocracy, religion, and public debt and the like, that motivated these texts. The historical past in legal scholarship on “original public meaning” has this dignified but misleadingly monotonous look of a white marble Classical Roman statue — misleading, because those statues were originally painted in life-like colors that only washed away with the passage of time. Colorlessly apolitical constitutional interpretations, like colorless Classical statues, are just historically inaccurate.

William Baude and Stephen Sachs have helped me think about this attitude towards history with a typically lucid and analytically deep essay. They argue that lawyers should focus on “legal doctrines and instruments specifically, rather than intellectual movements generally” when trying to figure out what past laws mean, because our law today “grants continuing force to the law of the past,” not the cultural or intellectual movements of the past. Sure, cultural movements, partisan motivations, ideological fights might be the cause of those old legal doctrines, but our modern law “typically” does not incorporate these extra-legal forces. Instead, it incorporates only “legal doctrine (treatises, court cases, and so on).” Baude and Sachs cite Hart’s Rule of Recognition to support the idea that the “internal point of view” leaves out the political, partisan, cultural motivations for the law: In their view, modern law incorporates only this “internal point of view” of the law, not the law’s “external” causes.

As I explain after the jump, I think but am not quite sure that I disagree with almost every part of their argument. Baude’s and Sach’s essay is, however, by far the most careful effort so far to justify a scholarly practice that has previously been followed but not much defended by originalists. For those readers who want the short version, here are my two bones to pick. First, Hart’s “internal point of view” nowhere suggests that the law consists only of “legal doctrine.” Instead, ideological, cultural, even partisan platforms found outside conventional law sources, can just as easily be the basis for an elite’s “internal” consensus of what “law” is. Second, the ideological purposes and functions of constitutional language must be part of legal interpretation of constitutional text from the outset, because (as Ryan Doerfler has persuasively argued) the pragmatic function of words is just as much part of their meaning as semantic usage.

Continue reading "What makes history constitutionally relevant? Some Reservations about Baude and Sachs’ view of the past"

Posted by Rick Hills on July 20, 2019 at 02:03 PM | Permalink | Comments (13)

Faculty Hiring: Wash U.

WASHINGTON UNIVERSITY SCHOOL OF LAW invites applications from entry-level or junior lateral candidates for tenure-track positions, to begin in the fall of 2020. We are particularly interested in corporate & securities law and constitutional law.

Continue reading "Faculty Hiring: Wash U."

Posted by Howard Wasserman on July 20, 2019 at 11:57 AM in Teaching Law | Permalink | Comments (0)

Ceremony and change

This week's Torah portion iincludes Hashem telling Moses that he would die before the Israelites entered the Promised Land, to which Moses responded that Hashem should select a new leader and there should be a public ceremony in which Moses lays hands on him and creates that new leader. This prompted a discussion of life-cycle ceremonies (Brit milah, baby naming, Bat Mitzvah, wedding) in which the person enters the ceremony as one thing and emerges as something else, changed by the ceremony.

Listening to it, my mind drifted to Obama's First Inauguration, in which the Chief and Obama together flubbed the oath, creating questions of whether the ceremony had successfully "changed" Obama into the President. And to questions of what are the details that define a ceremony sufficient to affect the change and how precisely must those details be followed.

Posted by Howard Wasserman on July 20, 2019 at 11:24 AM in Howard Wasserman | Permalink | Comments (3)

Friday, July 19, 2019

PrawfHacks: Top 10 mobile productivity apps and tools for law professors

The following guest-post is from Matthew B. Lawrence (Penn State-Dickinson)

Out of necessity (I have a long commute) I have found a number of incredibly helpful tools for staying productive and organized in teaching, service, and especially scholarship on the “go.”  I often find myself explaining them to colleagues at conferences and the like, and just as often find myself getting great new ideas to improve my workflow from colleagues.  So I thought I would write up my favorites for the prawfsblawg audience and invite suggestions for other great tools I might have missed.
 
Here are my top ten #PrawfHacks:

Continue reading "PrawfHacks: Top 10 mobile productivity apps and tools for law professors"

Posted by Howard Wasserman on July 19, 2019 at 12:20 PM in Teaching Law | Permalink | Comments (6)

Interdisciplinarity in the Early Years

Hi folks. As I mentioned in my introduction, I’m a legal anthropologist at Alabama Law, and I work in the areas of labor & employment law (especially the gig economy) and comparative law (especially India). In this first post I want to address a concern that I’ve heard voiced by a handful of peers. I’ll limit my comments to my own experiences, but I’m interested in hearing best practices for both junior folks in this situation and for the law schools that hire them.

Even though I felt well-prepared for the market it took time for me to fully understand that I would indeed be employed as a professor after my fellowship* ended. Once it sank in, I started worrying that I would lose my interdisciplinary identity or one of my substantive areas of interest in the course of doing what early-career law faculty are mostly expected to do: publish a lot of high-ranking, mainline law review articles. (I still hold out hope that the worrying decreases post-tenure.) I value mainline law review articles—I’m working on a couple right now—but I also value fieldwork (which takes time), anthropological analysis, and my India work, with the latter two being largely oriented toward law-and-society type venues. If all I focused on during the next 4–5 years were projects that fit easily within the format and timeline of law review publishing much of what I bring to the table would fade away. For both personal and professional reasons, I do not want that to happen.

Fortunately, though it’s too early to make definitive predictions, it seems unlikely that this “atrophy” worry will come to pass for reasons of institutional support, complete happenstance, and of course my own desire to avoid the problem. After the break, I’ll give a couple reasons for my cautious optimism, both of which relate to my identity as a legal anthropologist.

Continue reading "Interdisciplinarity in the Early Years"

Posted by Deepa Das Acevedo on July 19, 2019 at 10:35 AM in Jr. Law Prawfs FAQ, Life of Law Schools | Permalink | Comments (0)

Interview with Andrew Williams from NYU Law on NYU's Lawyering Program

Next up in my series interviewing VAP and fellowship directors is Andrew Williams, who is the Director of the Lawyering Program at New York University School of Law.  An edited transcript of our conversation is below, and I have invited Andy to respond to any questions in the comments.  Thanks, Andy, for participating in this series!

You can read more about the structure of these interviews and other caveats related to them here.  For more information about law faculty hiring generally, check out the section of the AALS's website devoted to this topic at https://teach.aals.org/.


Q. Can you tell me your role with the NYU Lawyering Program?

A. I am the director of the program.

Q. I’d love to take the fellowship program chronologically, starting with the application and then moving into the fellowship process itself and then the job market. When does the program start accepting applications?

A. We accept on a rolling basis. Our website job announcement says candidates are strongly encouraged to apply before October 1st. We actually have two different avenues.

Continue reading "Interview with Andrew Williams from NYU Law on NYU's Lawyering Program"

Posted by Jessica Erickson on July 19, 2019 at 06:39 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (2)

Thursday, July 18, 2019

Remembering John Gardner

The following guest post is by Eric Miller (Loyola-LA)
 
Many of you will have heard the sad news that John Gardner died on July 11, 2019. John was the Senior Research Fellow of All Souls College, Oxford, and former Professor of Jurisprudence at Oxford, one of the major positions in legal philosophy in the Anglophone world. He was a kind, generous, brilliant, fun person, and influenced, directly and through his writings, a generation of legal scholars.

Continue reading "Remembering John Gardner"

Posted by Howard Wasserman on July 18, 2019 at 06:23 PM in Teaching Law | Permalink | Comments (0)

Wednesday, July 17, 2019

CFP: The Resiliance of International Law

EMERGING VOICES PANEL - CALL FOR PROPOSALS

International Law Weekend 2019: The Resilience of International Law

DEADLINE: JULY 29, 2019

International Law Weekend 2019 (ILW 2019) calls on scholars and practitioners to address the resilience of international law. The conference will explore international law’s capacity to preserve the rule of law, promote both peace and justice, and maintain stability in the face of growing fault lines. The world is changing. ILW 2019 seeks to answer whether its theme—The Resilience of International Law—is a question or an affirmation.

Continue reading "CFP: The Resiliance of International Law"

Posted by Howard Wasserman on July 17, 2019 at 06:23 PM in Teaching Law | Permalink

My civil rights course, in one case

This opinion by Judge Easterbrook is a fantastic encapsulation of most of my civil rights course.

Dad loses custody of kids because of state court decision, made in part on testimony of court-appointed psychologist; court strips custody, limits visitation to supervision-only, and twice declines to rescind supervision-only. Dad sues psychologist in her "official capacity," alleging that state child-custody law violates the First and Fourteenth Amendments.

Spot the many, many doctrinal problems with this lawsuit. I think I may use this as one grand, theory-of-everything hypo at the end of class.

(I especially like that, in rejecting plaintiff's argument that he has sued the state through an official capacity suit, Easterbrook talks about Will and states not being § 1983 "persons," rather than the Eleventh Amendment. Courts consistently get this wrong in § 1983 cases).

Posted by Howard Wasserman on July 17, 2019 at 06:14 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, July 16, 2019

Remembering Justice Stevens

Justice John Paul Stevens died Tuesday, at age 99. He is a big deal around Northwestern Law, where I went to school. The award for top GPA is named for him and his official Court portrait was on display in the library until his retirement. And in Chicago, where he was at Wrigley Field for Babe Ruth's "called shot" in 1932 and got to see the Cubs finally win the World Series in 2016.

On an instant reaction, how will Stevens be remembered as a Justice? He is the third-longest serving Justice, just shy of 35 years, trailing Douglas and Field. The easy political story is that he was a Republican appointee who became a leading liberal light on the Court, following in the shoes of Brennan and Blackmun, but on a more sharply divided Court. For purposes of one of my current projects, he spent 16 Terms as senior-most Associate Justice in frequent disagreement with the Chief, one of the longer such periods in the Court's history; this gave him the assignment power in divided cases in which a swing Justice (usually O'Connor and/or Kennedy) switched.

I wonder what opinions will define his legacy on the Court. We do not associate him with particular doctrines (as with Scalia) or particular opinions (as with Blackmun and Roe). He stuck us with Pacifica. He famously dissented in the flag-burning cases, "flipping" positions with Scalia, and in Citizens United, where the majority opinion outraged him. He wrote Reno v. ACLU, which, while not rhetorically memorable, was a more significant decision in allowing the internet to thrive as an open medium. He wrote Claiborne Hardware, which may gain new relevance in challenges to anti-BDS laws and attempts to use civil liability against Black Lives Matters protesters.

I did a Westlaw search for his most-cited opinions. He wrote Apprendi, the first move in the push to returning control over sentencing to juries. He wrote the opinion establishing Chevron deference, a doctrine in danger of overruling by the current Court, but not associated with him by name. He wrote the opinion in Sony v. Universal, which held that VCRs did not infringe copyrights. He wrote Clinton v. Jones for a unanimous Court, which had significant political consequences, but will not stick to him. And while not an opinion for the Court, his "ask me later" concurrence in Asahi means the Court did not, and still has not, solved the stream-of-commerce v. stream-of-commerce-plus problem for personal jurisdiction.

Update: In the realm of opinions that angered people, Linda Greenhouse's Times obit points out that Stevens wrote the majority in Kelo. She also suggests that Stevens' long period as senior-associate will be key to his legacy, elevating him from relative obscurity into a role that he enjoyed.

Posted by Howard Wasserman on July 16, 2019 at 11:40 PM in Howard Wasserman, Law and Politics | Permalink | Comments (10)