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Wednesday, October 22, 2008

FIU College of Law in the Roger Williams Survey

FIU College of Law (which opened in Fall 2002) is not yet a member of the AALS, which meant we were not included in the Roger Williams survey of faculty productivity at non-Top-50 law schools. So, as St. Thomas (MN) did last month, we ran our numbers. The result: a 4.590 faculty score, placing us around # 30, just behind Indiana-Indianapolis and just ahead of St. John's, Tennessee, and Loyola-Chicago.

Not bad, especially since I had thought before we ran the numbers that our faculty might have a couple of built-in disadvantages, given the study's methodology. First, we have a very bottom-heavy faculty--10 of our 22 tenure/tenure-track faculty are pre-tenure and five of those are in their second year teaching, and three of our senior faculty are newly tenured. Second, we have a lot of specialists doing legal history (including non-U.S./non-English legal history) and niche international work, stuff that tends to place in specialty journals and that also tends to be shorter. Third, several of our top senior people have focused almost exclusively on writing books (scholarly and casebooks) rather than law review articles over the past 3-4 years (although I wonder if the trend in the academy towards book projects makes this an issue across the board).

Anyway, I was happy to see us come out that well in a preliminary study. It gives us something to build on with a new dean (we are beginning a dean search as I write this) and in the never-ending search for new faculty.

Posted by Howard Wasserman on October 22, 2008 at 07:21 AM in Life of Law Schools, Teaching Law | Permalink | Comments (3) | TrackBack (0)

Globalization and Global Governance

In response to my post from earlier, Rob Howse referred me to his review article -- The End of the Globalization Debate: A Review Essay -- published earlier this year in the Harvard Law Review.  It's nicely written, insightful,  and well-worth the read.

In the article, Rob describes how both the traditional political right and left have come to embrace globalization -- neither side argues any longer that the territorial nation-state should remain the "locus of control over economic activity" or "should retain a monopoly on legitimate governance."  Rob explains how the once antiglobalization movement, which saw globalization (and the pro-free market forces with which it was identified) as undermining progressive values, itself began to embrace global law and policymaking as a way to advance those same progressive causes.  In Rob's words, everything has gone global.

As a descriptive matter, Rob seems correct that the globalization debate is largely over.  The concept of the nation-state as the sole operator and source of authority in the international sphere has long been inaccurate (if it ever was).  The state, as Rob notes, has been reshaped, remade and reordered as a result of the worldwide expansion of commerce, communications, crime, and human rights, among other things.   If the point is that globalization is here to stay with us, it seems correct.  The question is: what next? This, as Rob highlights at the very end of his review, is the issue of global governance and global justice. It is where much of the cutting-edge legal scholarship in this area is being written.  No longer is the debate over the benefits of globalization itself.

Continue reading "Globalization and Global Governance"

Posted by Austen Parrish on October 22, 2008 at 01:45 AM in Article Spotlight | Permalink | Comments (5) | TrackBack (0)

Tuesday, October 21, 2008

Planet-Eating Black Hole vs. Maverick Scientists: The Ultimate Preliminary-Injunction Case

I’ve noted that I am fascinated by a case that is pitting a group of worried individuals against the multinational CERN consortium, which, last month, completed work on the Large Hadron Collider – the most powerful subatomic particle smasher ever built. It was constructed with the hope of resolving fundamental questions about the universe. Among other things, scientists hope to create particles that have not existed since the Big Bang.

Not everyone is excited. Some people believe the $5-billion-plus LHC machine, which inhabits a circular tunnel under the French and Swiss countryside outside of Geneva, could create exceedingly tiny black holes. In time, critics worry, these little black holes could grow in size to eventually devour the Earth. A malfunction causing mechanical damage and a helium-coolant leak has delayed the critical LHC experiments until early spring 2009. In the meantime, we have yet to see how a court would handle, on the merits, the perplexing judicial conundrum posed by this granddaddy of all preliminary-injunction requests.

Jurisdictionally, there might be no way to apply American preliminary-injunction law in litigation against CERN. But how American law would handle such a request is, I think, an interesting question, and one that is worth exploring.

Like mathematical equations that seem to break down under the weight of very large or infinite variables, our rubric for preliminary-injunction analysis begins to unravel when faced with alleged facts such as these. Let’s step into the mire.

Under American law, preliminary-injunction requests often involve an attempt by the plaintiffs to make a showing of probable success on the merits. For many reasons, that would be difficult to do in a case against CERN. Better for plaintiffs in this case is doctrine allowing a court to grant a preliminary injunction if “serious questions are raised” and the “balance of hardships tips sharply” in favor of the plaintiffs.1

So let’s balance the hardships.

Continue reading "Planet-Eating Black Hole vs. Maverick Scientists: The Ultimate Preliminary-Injunction Case"

Posted by Eric E. Johnson on October 21, 2008 at 04:15 PM in Judicial Process | Permalink | Comments (5) | TrackBack (0)

Remember the CEO President?

The Bush-Clinton divide could be seen as, among many other things, a difference between business people and lawyers. The MBA versus the JD. The comparison caught a difference in attitudes about procedure and decisionmaking. If we wanted to frame the current contrast, Obama seems to be in the JD camp. Maybe we could think about it as JD versus military? JD versus CAPT?

Posted by Verity Winship on October 21, 2008 at 04:11 PM in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Signing out

I'd planned to keep posting, but I'm feeling pretty blogged out these days. Combined with lots of other stuff I owe co-authors, colleagues, my wife and dog, that means that I need to bid PB goodbye for this turn.

As time permits and topics arise, I'll still do a bit of econ-blogging over at Economists for Obama, so you can find me there if you like.

I'd like to thank the good folks here at PB, especially Dan Markel, who asked me on, for their indulgence over the last few weeks.

Thanks also to the commenters who weighed in, whether pro or con, on my September posts. It's been fun!

Posted by Jonah Gelbach on October 21, 2008 at 01:18 PM | Permalink | Comments (0) | TrackBack (0)

The Effects Test and Transnational Litigation

Eric's post on the litigation from the Large Hadron Collider ("Could bad judging cause the earth to be sucked into a black hole? Maybe"), spurred this post on a slightly different issue.

The Hawaiin case that Eric mentions -- although dismissed on jurisdictional grounds -- is part of a larger trend. In recent years, litigants have increasingly sought to use domestic laws to regulate the activities of foreigners outside U.S. borders. In the United States, domestic laws have long regulated extraterritorial conduct in the commercial context (think antitrust and securities laws as classic examples), but over the last decade courts have appeared to be more willing to apply all sorts of public and private laws to activity occurring abroad, so long as the foreign conduct has some effect within the United States. Other countries have now also followed suit, applying their own laws extraterritorially (a famous example being the Yahoo! case, where a civil lawsuit was brought in France after Yahoo! auctioned Nazi memorabilia in the U.S.). In fact, American businesses are concerned over EU's growing intrusion into U.S. mergers and acquisitions (think of the Honeywell and Microsoft cases)

Continue reading "The Effects Test and Transnational Litigation"

Posted by Austen Parrish on October 21, 2008 at 12:35 PM | Permalink | Comments (2) | TrackBack (0)

The Lowest Top-20 Schools on Student Satisfaction

Over at TaxProf Blog this week, Paul Caron is doing a great series of posts unpacking the data from the new The Princeton Review's Best 174 Law Schools. Today's post is on the "academic experience" rating, which Princeton Review describes this way:

Academic Experience Rating: The quality of the learning environment, on a scale of 60 to 99. The rating incorporates the Admissions Selectivity Rating and the average responses of law students at the school to several questions on our law student survey. In addition to the Admissions Selectivity Rating, factors considered include how students rate the quality of teaching and the accessibility of their professors, the school's research resources, the range of available courses, the balance of legal theory and practical lawyering skills stressed in the curriculum, the tolerance for diverse opinions in the classroom, and how intellectually challenging the course work is.

Because it incorporates admissions selectivity, the elite schools should all do quite well here, and indeed 17 out of 20 score above 90. The three that fell below 90: Southern Cal (88); Yale (87); Cornell (63). Judging from the narrative sections in the book, USC's relatively low score (95 for UCLA) may be due in part to too much theory/not enough practical from some professors. Yale: indifference to teaching among some faculty seems to be the culprit. Yikes on Cornell. Sure, discount it a bit for weather/location and not being first-choice school of many, but still, that's awfully low. Students seem to complain about range of courses offered, small size of faculty. May also be they're working harder (5.5 hrs a day outside class) than peers at other places.

Continue reading "The Lowest Top-20 Schools on Student Satisfaction"

Posted by Jason Solomon on October 21, 2008 at 12:07 PM in Life of Law Schools | Permalink | Comments (5) | TrackBack (0)

Could Bad Judging Cause the Earth to Be Sucked Into a Black Hole? Maybe.

Last month, courts on two continents were asked to grant injunctions to stop the Earth from being sucked into a black hole. Really.

Complainants claimed that the just-completed Large Hadron Collider, a ground-breaking particle smasher built beneath the border of Switzerland and France, could create microscopic black holes that would eventually grow in size to swallow the Earth. Plaintiffs sued to stop the European Center for Nuclear Research (“CERN”) from turning on the multi-billion-dollar machine.

The case is absolutely fascinating on a number of levels. In fact, it has all the makings of a law-school classic. At this point, however, we lack a thorough written judicial opinion on the merits to inspect. One lawsuit, filed pro se in federal court in Hawaii, was dismissed, as you might expect, on jurisdictional grounds. The other lawsuit, filed in the European Court of Human Rights, has not produced any written opinion that I can find. News reports indicate the ECHR rejected a request for interim measures, indicating that the case may take years to reach the most interesting questions. So far as I can tell, there is no legal action being pursued in the Swiss or French courts. It may be that the case has simply not been teed up such that we will be able to see a judicial review on the merits. If so, that would be a shame.

But even without that, I find the controversy to be, from a legal academic perspective, highly intriguing.

To begin with, it is a case that highlights the trust modern civil society has vested in the institution of the law and courts. A court of law, unarmed and employing only a tiny staff, wields enormous power. That power includes, ostensibly, the authority to shut down what is perhaps the most expensive scientific endeavor in history.

At the same time, if we take the case seriously at first face, as I think fairness requires, then literally the fate of the entire world rests, potentially, upon the decision of a judge.

That is food for thought.

Continue reading "Could Bad Judging Cause the Earth to Be Sucked Into a Black Hole? Maybe."

Posted by Eric E. Johnson on October 21, 2008 at 11:24 AM in International Law, Judicial Process | Permalink | Comments (7) | TrackBack (0)

Monday, October 20, 2008

The Judicial Process, Defined

Last week I bemoaned the fact that those of us who do work in the judicial process area have no organizational home of our own.  My aim in this post is to talk a little bit more about what I've got in mind when I talk about the judicial process as a field of learning.  Probably the best way to do so is to describe the seminar I'm teaching this semester - "Judging and the Judicial Process" - which provides a pretty good first cut.

Our focus, as I put it in the course description, is "on courts as institutions and on judges as the primary actors within those institutions."  We started with what one might call the "standard" model of judging, which calls for judge-umpires to apply determinate law via formalist analysis.  Then we pretty much blew it up, considering the work of the legal realists, public law theorists, political scientists, cognitive scientists, and so on.  Having blown it up, we tried to put it back together.  Is there still a case to be made for formalism?  Is pragmatism the way to go?  (Judge Posner appears on the syllabus often enough that he ought to get credit for co-teaching the class.)  Are we left to rely on the good faith of judges and Karl Llewellyn's "major steadying factors?"  Now we're on to some more discrete topics: are judicial activism and judicial independence meaningful concepts?  What purposes do judicial opinions serve?  What's the proper role of precedent?  What are the relative merits of specialized versus generalist judges?  Although I had initially thought we'd start with judicial selection, it turns out that we'll end there (on the theory that only after we've been thinking about the descriptive and normative aspects of judging for a while can we really address the question of how judges ought to be selected).

The seminar has been a blast.  The students are engaged, the discussion is lively, and the comments are thoughtful (and I've gained a lot from the exercise of putting it all together).  So it's somewhat puzzling to me that this isn't standard fare in U.S. law schools.  No doubt some of it gets covered here and there in the curriculum.  But as far as I can tell that coverage is typically piecemeal.  Sometime over the medium term I'd like to turn these seminar materials into a casebook.  As I suggested last week, it's apparent to me that there are enough people out there writing on judicial process topics that some of you might be persuaded to teach a class on the subject.  Either way, there's still plenty of time to join the movement.

Posted by Chad Oldfather on October 20, 2008 at 11:50 PM in Judicial Process | Permalink | Comments (3) | TrackBack (0)

$ 150 million worth of speech

The Obama Campaign announced Sunday that it raised $ 150 million in September, an obscene, record-breaking figure that more than doubles the previous record (which was Obama's haul in August). This certainly justifies Obama's decision to opt-out of public financing. What is especially interesting to me is that 3.1 million people have contributed to his campaign, including more than 630,000 new contributors in September. And the average donation was around $ 86. Of course, by definition "average" means there were donations of more than that, including several large fund-raising events, including one hosted by Barbra Streisand that netted $ 11 million.

But I would like to hear how these numbers--donors, new donors, average donation amount--compare with past primary and general elections. And what do these numbers tell us about the debate over campaign-finance rules and public funding? The theory of Buckley v. Valeo (which never has been entirely repudiated) is that making campaign contributions is a First-Amendment protected way of expressing support for a candidate, albeit a right subject to fairly close regulation and limitations in amount (a principle with which I generally agree). The theory of campaign-finance regulation has been that politicians will simply cozy-up to a small number of big-money donors who use large contributions to gain access and influence, resulting in various forms of corruption (indeed, that was the warning from the McCain Campaign in response to the Obama announcement).

But if a campaign can fund itself, at least in part, on smaller contributions from a substantial number of voters looking to do their part and have their say, do we come close (or at least closer) to a First-Amendment regime of "The People" speaking through their pocketbooks to support a candidate, without the same risk of corruption or influence-peddling? I think McCain's criticism misses the mark because the corruption rationale works when a campaign receives $ 2 million from one contributor; it looks very different, and has a different effect, when the campaign receives $ 2 million from 20,000 contributors. The corruption criticism looks out of place when it becomes not a problem with the amounts of money people are able to contribute (which remain restricted), but of the number of people who are able to contribute, particularly in small amounts.

Can what Obama has achieved tell us anything about how candidate fundraising can work, especially with the power of the internet? Is Obama a unique candidate and no (or few) other candidate can generate this kind of excitement and support?

Updated: Tuesday morning

Publius at Obsidian Wings links Obama's expansive fundraising to Madison's theory of republicanism. Recall that Madison argued that the way to limit the power of factions in a republic is to increase the size of the republic and thus the number of factions, preventing any one from seizing control. Similarly, dramatically expanding the size of the donor base, the Obama model (and Publius recognizes, as does one of our commenters, that Howard Dean started us down this road in 2004) prevents any one donor from gaining influence.

Posted by Howard Wasserman on October 20, 2008 at 09:35 AM in Current Affairs, First Amendment | Permalink | Comments (5) | TrackBack (0)

The Supreme Court and Software Patents

This is a continuation of my series on patentable subject matter.  The first post introduced my argument that judicial limits on patentable subject matter should be abandoned in favor of adherence to the statutory categories: processes, machines, manufactures, and compositions of matter.  My second post discussed how Supreme Court precedent in the area is based on repeated dicta with little analysis.  This post extends that discussion in a particular area – computer software.  Analysis of these cases reveals just how difficult it is for courts to apply judicially developed limitations on patentable subject matter.

The Supreme Court has addressed software patents directly on three occasions.  I address each in turn.

Continue reading "The Supreme Court and Software Patents"

Posted by Michael Risch on October 20, 2008 at 07:21 AM in Intellectual Property | Permalink | Comments (2) | TrackBack (0)

Sunday, October 19, 2008

Teaching Research: Next in an Ongoing Series on LRW

Some readers have asked me to address teaching the research aspect of LRW head-on.

Of all of the components of an LRW program, I found teaching research to be the most difficult.  We had help from two resources on this score--librarians and Lexis/Westlaw reps.  The Lexis/Westlaw reps bring a tremendous amount of knowledge about their products to the table.  My sense is that the trouble is that they are trying to sell these products to students.  They aren't trying to teach the most efficient and effective ways to resolve questions.  Thus, they don't introduce all available tools, including actual books (particularly good as secondary sources to get you started on a project) as well as other online resources like government websites that carry many primary sources.

Law librarians are a different story altogether.  They bring a huge amount of knowledge and information to the table, and they can introduce students to a whole range of resources.

None of this has anything to do with how to teach legal research, though.  And like I said, I found it very difficult to teach in an effective way.  I invite readers to drop comments.

Posted by Hillel Levin on October 19, 2008 at 07:20 AM in Hillel Levin, Life of Law Schools, Teaching Law | Permalink | Comments (7) | TrackBack (0)

Saturday, October 18, 2008

Bounded Rationality and The Price is Right

I just read a really great paper by Jonathan Berk and Eric Hughson called "Can Boundedly Rational Agents Make Optimal Decisions? A Natural Experiment."  The Berk and Hughson examine a sample of games on the game show The Price is Right to see whether contestants make optimal bidding decisions. 

The two games they consider are Contestants' Row (where you bid on the price of the prizes - whoever gets closest to the price without going over wins).  The second is the Wheel Spin - whoever gets closest to 100 wins.   You must win on Contestants' Row to get to the Wheel Spin.

Their results are interesting - they find that a large percentage (nearly 50%) of relevant bidders on Contestants' Row bid suboptimally - in other words, they don't bid $1 over one of the other bidders.  This result is interesting, because that strategy is pretty easy to figure out.  At the same time, about 95% of Wheel Spinners spun optimally, despite the fact that the Wheel Spin decision is a much more complex decision.  In otherwords, a large portion of contestants were irrational in the easy game and highly rational in the difficult game.

Some comments on the implications and on the reasons follow the jump.

Continue reading "Bounded Rationality and The Price is Right"

Posted by Michael Risch on October 18, 2008 at 09:07 AM in Legal Theory | Permalink | Comments (6) | TrackBack (0)

Friday, October 17, 2008

Malcolm Gladwell and Legal Scholarship

Gordon Smith and Orin Kerr have interesting posts up about their respective writing processes. I'm struck by the parallels with the two types of creativity - conceptual and experimental - that Malcolm Gladwell discusses in his latest New Yorker piece (which in turn draws on the work of David Galenson).  As the distinction is explained on Galenson's web site: "Experimental innovators work by trial and error, and arrive at their major contributions gradually, late in life. In contrast, conceptual innovators make sudden breakthroughs by formulating new ideas, usually at an early age." The latter, one imagines, write law review articles before doing the research.  The former go through lots of research, and lots of drafts, before arriving at a final product.

I've found that I tend toward the experimental.  For my first article, I thought I had a good sense, when I started, of where it was headed.  It turned out OK, but in retrospect I think I was a little too much the captive of my opening idea. Over time I've become more comfortable with the notion that I will, at the outset, have almost no idea where an article is headed.  I pick a topic and ask myself, in effect, "what's up with that?"  I have some preliminary thoughts, of course, but find that the immersion that comes through research reveals interesting angles that I hadn't anticipated.  There's a cumulative effect as well.  Having been at the same family of topics for six-plus years, I feel like I've acquired not only a greater base of knowledge, but also a better sense of how to go about immersing myself in the research process. (Cue the comments about the value of a Ph.D.)

If nothing else, Gladwell's essay (and Galenson's research) gives me reason to keep plugging away.  There may or (much more likely) may not be a major contribution lurking within.  The only way for a fellow like me to find out is to keep at it.

Posted by Chad Oldfather on October 17, 2008 at 02:39 PM | Permalink | Comments (0) | TrackBack (0)

The Judicial Process, um, Movement(?)

One of the things that seems critical to establishing oneself as a scholar is becoming a part of a broader community of scholars.  Six-plus years into my academic career, I feel only partially successful in this regard.  Here's why: When people ask me what I write about, I usually say "the judicial process."  It's an accurate answer.  Nearly all of my scholarship has to do with judging, including the processes of appellate review, the functions of judicial opinions, and a concept I've called "judicial inactivism."  I find it all fascinating and important, and expect it will keep me busy for the rest of my career.

But as I scan the schedule for the upcoming AALS meeting, I feel as though I lack a home.  It's not that there isn't plenty of stuff written dealing with the judicial process. Nearly every day Larry Solum brings my attention to at least one article that falls into the judicial process category. But the authors seem to have primary allegiances elsewhere - they are Civ Pro people, or Con Law people, or Empirical Legal Studies people, or what have you.  Nor is there a recognized Judicial Process component of the curriculum.  (I'm in the early stages of trying to change that.  More on that in a subsequent post.)

This strikes me as odd.  And so I wonder: Should there be a judicial process community in some formal sense?  After all, if I may understate the matter somewhat, courts and judges play a central role in this enterprise of ours.  Given the constant chatter about judicial activism and the various threats to judicial independence and the explosion in the amount of empirical work being done on courts and the kerfuffles over unpublished opinions and on and on, oughtn't those of us who write about judging and courts at the very least get together from time to time to talk about what we're up to?  Am I alone in this?  If someone were to throw such a party, would anyone come?

Posted by Chad Oldfather on October 17, 2008 at 10:57 AM in Legal Theory, Teaching Law | Permalink | Comments (2) | TrackBack (0)

Penn's Rankings Problem

As U.S. News voters figure out what rating to give each school, and start focusing more on educational quality, Penn Law seems to be quite well-positioned -- sky-high student satisfaction ("academic experience" rating of 96 in Princeton Review), great bar passage rates, on curriculum, we'll have to see what they submit for their "Best Practices" survey today (thanks to all who have submitted so far!).

But Penn faces a real ceiling on these "quality assessment" surveys: its legal writing program. Like Yale, it's taught by 3Ls. This ceiling prevents Penn from having an "outstanding" JD program ("5"), instead, I'm inclined to think they should get a "4" ("strong"). Particularly where one of its chief competitors, Northwestern, has top-10 (or close) legal writing, clinical, dispute resolution and trial advocacy programs (Penn's not on any of these lists from last year's US News surveys) and an increasingly innovative, practice-oriented curriculum, all of which point to a "5" in the survey, Penn needs to fix this soon.

Here's what the recently released Princeton Review "Best 174 Law Schools" says: "The only gripe that many Penn students express is with the first-year legal writing program. While some report positive experiences, many complain that the program is of poor quality and 'instructed by third-year law students that often don't have a lot of real-world experience outside of the summer clerking opportunities.'"

Continue reading "Penn's Rankings Problem"

Posted by Jason Solomon on October 17, 2008 at 08:41 AM in Life of Law Schools | Permalink | Comments (2) | TrackBack (0)

Thursday, October 16, 2008

Beyond the Traditional Syllabus: Using Narrative to Teach Torts

Last week, I wrote about one of the ways (using a Navajo court opinion and a Canadian case) that I have tried to expand my syllabus beyond the traditional slate of federal and state appellate opinions.

Yesterday, I had a tremendously energetic class based on a case reading that wasn't a judicial opinion at all.

Our reading was a personal-injury attorney's first-person narrative of Howard v. Collins & Aikman Corp. (N.C. Super. Ct. 1990), a wrongful death suit brought by a four-year-old boy after an overworked tractor-trailer driver crossed into oncoming traffic, jackknifed his rig, and crawled up on top of the passenger car carrying the boy’s mother and father.

The author, of course, is John Edwards. Before he was a meteorically rising and falling presidential candidate, he was a multi-multi-multi-million-dollar success as a tort lawyer. We have his political ambition to thank for the valuable residue left over in the form of his autobiographical collection of plaintiff-side war stories, Four Trials.

I'm using each one of the four chapters this year to replace an appellate opinion on my syllabus. Each chapter discusses one case, and in so doing, does what a good appellate opinion should for a law-school class: It presents facts, applies law, and serves as a basis for classroom dialog. But these narratives go so much further, exposing the tactical, strategic, and human side of lawyering that lies beyond the sightlines of the appellate bench. The facts are richer, and the real-world context for the legal doctrine is more clear. Best of all, the text is gripping and imminently readable. These stories make marvelous teaching tools, and I urge you to try them. USA Today published an excerpt you can assign without using the book itself. But if you want more than one, the paperback only adds a relatively guilt-free $13 to students' bookstore bills.

Here's a list of chapters, corresponding doctrinal topics, and specific page assignments (so you can skip the campaign-preening interludes):

Continue reading "Beyond the Traditional Syllabus: Using Narrative to Teach Torts"

Posted by Eric E. Johnson on October 16, 2008 at 10:05 PM in Teaching Law, Torts | Permalink | Comments (1) | TrackBack (0)

Bloglines or Google Reader?

Eric Goldman laments that Bloglines randomly drops his feeds and for that reason (among others) he is switching to Google Reader.  I am relatively new to online readers - I have always used Firefox bookmarks and/or Sage Extension for Firefox, both of which work quite well for what they are.  Portability, however, is a problem.  I toyed around with rss feeds on my own website (which has rss modules) and on my yahoo, but those aren't the same as a reader.

So, I started with the base Bloglines product - yuck.  Terrible interface, and not intuitive at all.  I do, however, like getting email list and searches in my rss feeds.  It took about 10 minutes to move to the beta product, which I think is quite great - it allows for quick, full, and three-pane viewing, including a slick iframe that allows me to see the original page (useful for site that have short pre-jump intros or interesting comments (like Prawfs, for example!).  It does have its problems - feeds don't always update in a timely fashion, and links to the backend database seem to be broken a lot.  That said, it is a beta and I have high hopes.

Compared to the beta version, Google Reader is simply unusable.  The list is nice, but you have to jump out to see the full page - no better than my Sage reader in that sense.  Also, the menu at the top left is mostely useless to someone who has no interest in sharing feeds or doing whatever else is available there- on my laptop the feeds don't appear until the bottom of the screen - pretty annoying.  I also don't like being logged in for Google search (privacy concerns), and Google Reader requires me to log in.  Eric mentions some "oddities" in Google's product, but I think that it goes way beyond that - I don't think Google Reader is anywhere on par with Bloglines - at least not the new beta version.

Given that this is all new to me, I am willing to be convinced otherwise.  Is there a nicer Google version I don't know about?  Some way to improve the viewing or rearrange the menus?  Is there another online reader that is better than both of them?

Posted by Michael Risch on October 16, 2008 at 12:10 PM in Blogging | Permalink | Comments (4) | TrackBack (0)

A law school hiring thread: 2008-09

NB: Moved to the front and updated after the jump.

This thread is for both law professors and people who are on the market this year to become a law professor. We invite those on the market to leave comments (anonymously if they prefer) regarding a range of things:

a) whether they have received a call from a particular school inviting them to an interview at the AALS meat market, and/or whether they accepted it; also whether the school has asked for a candidate's scholarship yet

b) whether they have received a callback from a law school and/or accepted it

c)  whether they have received an offer from a law school and/or accepted it; feel free to also leave details about the offer or info about teaching loads, research leaves, etc.

Law professors may also choose to provide information that is relevant to the entry-level or the lateral market.

Bear in mind: if you don't want your contact information displayed, please just enter in [email protected] or something like that as an email address.

Update: This post will be moved to the front of the blog once every ten days or so, and we will also try to provide updates in the comments that consolidate the various bits of information here. If you are looking for links on how to manage going through the job hunt, check out the posts under these three archives: here, here, and here.

To get things started: FSU has invited a substantial number of entry and lateral candidates to FSU this fall. The school has also extended a large number of invitations to AALS.

After the jump: a summary that will be revised every few days.

Continue reading "A law school hiring thread: 2008-09"

Posted by Administrators on October 16, 2008 at 11:40 AM in Getting a Job on the Law Teaching Market, Life of Law Schools, Teaching Law | Permalink | Comments (255) | TrackBack (0)

What can we learn from Nobel laureates in economics? According to Krugman: Listen to the Gentiles

For a while, I've been prone to skipping most of Paul Krugman's columns in the NYT, finding them a bit on the shrill side for my taste. Still, as he was basking in his recent Nobel-generated glow, I was directed, via Gordon Smith, to a great set of links by Tyler Cowen at Marginal Revolution that describe Krugman's work in economics. Especially interesting to me was an essay Krugman wrote about how he works and goes about finding useful projects in economics. He develops a few rules of thumb to try to guide his research. Here they are, with the discussion after the jump. I wonder which of these might apply cleanly or with some minimal translation to the academic law context. As far as I know, the closest legal analogue to this "How I Work" series is Kim Ferzan's instantly-classic interview with Ian Ayres, Paul Robinson, and Carol Sanger. To my mind, some of Krugman's notions regarding "question the question" and "dare to be silly" are a bit similar to Ian Ayres' advice to embrace perversity. Of course, question the question is an old philosopher's trick...

1. Listen to the Gentiles

2. Question the question

3. Dare to be silly

4. Simplify, simplify

Continue reading "What can we learn from Nobel laureates in economics? According to Krugman: Listen to the Gentiles"

Posted by Administrators on October 16, 2008 at 11:25 AM in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Churches as First Amendment Institutions: Of Spheres and Sovereignty

I'm very pleased to say that I've posted on SSRN a draft of a new paper, Churches as First Amendment Institutions: Of Spheres and Sovereignty.  A slightly different version is forthcoming in the Harvard Civil Rights-Civil Liberties Law Review, which has been a pleasure to work with.  Here's the abstract:

This Article offers a novel way of approaching the role of churches
and other religious institutions within the First Amendment framework.
Beyond that, it offers a broader organizing structure for the legal
treatment of "First Amendment institutions" - entities whose
fundamental role in shaping and contributing to public discourse entitles
them to substantial autonomy to organize and regulate themselves
without state interference. Drawing on the work of the neo-Calvinist
writer Abraham Kuyper, it encourages us to think about churches, and
other First Amendment entities, as "sovereign spheres": nonstate
institutions whose authority is ultimately coequal to that of the state. In
the sphere sovereignty model, a variety of spheres, including the church
and other non-state institutions, enjoy substantial legal autonomy
to carry out their sovereign purposes. The state is limited in its
authority to intervene in these spheres. A sphere sovereignty conception
of the legal order retains a vital role for the state, however; the state
mediates between the spheres and ensures that they do not abuse their
power with respect to the individual subjects of their authority.

Continue reading "Churches as First Amendment Institutions: Of Spheres and Sovereignty"

Posted by Paul Horwitz on October 16, 2008 at 11:05 AM in Paul Horwitz | Permalink | Comments (1) | TrackBack (0)

Bar Passage: A Key Factor to Look To in USN Voting

Continue reading "Bar Passage: A Key Factor to Look To in USN Voting "

Posted by Jason Solomon on October 16, 2008 at 09:19 AM in Life of Law Schools | Permalink | Comments (8) | TrackBack (0)

Is IRAC Good or Evil? The Next in a Series of Posts on LRW.

I say good. 

Virtually every LRW teacher will teach IRAC in some form or another.  For many, it may well be the centerpiece of writing instruction.  God knows that there are problems with teaching students IRAC, though.  It can make their writing superficial, too structured, too rote, and not analytical enough.  Still, broached the right way, IRAC is a powerful tool for the lawyer.

Why teach/learn IRAC?

The first thing to know is that some version of the IRAC structure is what a law-trained audience expects to read.  A talented writer can write brilliant analysis with some radical non-IRACy structure, but the busy judge, attorney, or law clerk reviewing it will find it difficult to read.  Imagine looking at the front page of the newspaper and finding that the lead story is written as a lengthy poem in iambic pentameter, or as a first-person narrative.  Poetry and first-person narrative writing can be graceful, brilliant, moving, informative, and profound.  But if you are looking at the front page of the newspaper, you probably want the news delivered to you in the format that you expect; and if it isn’t, the author has made your life harder than he should have.  Thus, the first reason to IRAC is that this is what the profession expects.

Second, IRAC is a useful tool for structuring legal writing, and we must give the novice a structure.

Continue reading "Is IRAC Good or Evil? The Next in a Series of Posts on LRW."

Posted by Hillel Levin on October 16, 2008 at 09:15 AM in Hillel Levin, Life of Law Schools, Teaching Law | Permalink | Comments (7) | TrackBack (0)

Some thoughts on Greenawalt, judicial review, and underenforcement

As Paul was kind enough to mention, Notre Dame Law School hosted a roundtable conference last week dedicated to Volume II of Kent Greenawalt's "Religion and the Constitution."  (I really like this format, by the way:  No need to worry about having an audience for the various panels -- especially the dreaded last one -- and less of a problem of presentations passing like ships in the night.)

Anyway, my own contribution (we all did short, 3-5 page "admission ticket" reflections on the book) was inspired (I think) by a mix of Thayer, Waldron, Fallon, Berman, and others.  In a nutshell, my reaction to "Kent's accomplishment in dealing in a characteristically sensitive and careful manner with a vast and complicated subject" was, among other things, to wonder if we shouldn't just give up on judicial enforcement of the no-establishment norm, outside the heartland "coercion" cases (which, I would think, Free Exercise can take care of anyway) and entanglement and church-autonomy disputes.  (ed.  Who says that's the "heartland"?  rg:  Me, I guess.)  We could come up with some clear rules -- going, in other words, in the opposite direction Kent takes us -- and even err on the side, perhaps, of over-enforcement in this heartland, where individual and institutional liberties are clearly at stake, and then leave -- as, I suppose, Noah Feldman has suggested -- most of the endorsement and even secular-purpose fights to the political process.

This admittedly tentative suggestion -- I reserve the right to retreat, sniffling, in defeat -- is prompted not so much by a strong view that only the endorsement and secular-purpose fights don't implicate non-establishment values and traditions, but instead by a sense that, in a world where we cannot all be Greenawalts, why should judges bother trying to enforce the full extent of the Clause's meaning -- or, more pointedly, why should we let them decide?  Not an original thought, of course, but it's the one I was turning over most during the conference.  See, by the way, Jeremy Waldron's "Core of the Case Against Judicial Review", here.

Posted by Rick Garnett on October 16, 2008 at 12:03 AM in Religion | Permalink | Comments (2) | TrackBack (0)

Wednesday, October 15, 2008

A new not-blog: "Public Discourse"

"Public Discourse" is (it insists) the not-blog (though it is kind of like a blog) of the Witherspoon Institute (one of Robby George's projects) at Princeton.  Here is the link, and here is a description of the not-blog's mission and a list of the Editorial Board's members.  A bit:

We call it Public Discourse: Ethics, Law and the Common Good for three simple reasons. First, the topics we cover all center on public life. Second, we approach these topics using methods of discourse that are inherently public, open and accessible to all fellow citizens. Third, we contend that at the heart of our public debates are ethical questions - questions about good and bad, right and wrong, just and unjust. As to our approach, we rely on neither revelation, emotivism, nor majoritarianism. Rather we aim to address these questions rationally through critical reflection on man's nature, his personal and communal flourishing, and the ethical principles that should guide his conduct.

Aristotle taught that the central question of political life is how we ought to order our lives together. This is an inherently ethical question. Whatever the pressing question of the day may be - debates surrounding economic policy, biotechnology, international relations, marriage and the family, constitutional law and religious liberty - they all entail ethical positions. . . .

Posted by Rick Garnett on October 15, 2008 at 11:46 PM in Blogging | Permalink | Comments (0) | TrackBack (0)

Statutory Interpretation for Toddlers; Or, No Tricycles in the Park

My daughter, who is a few months shy of three, loves to remove her socks and shoes.  Yesterday, apparently, she did so in the playground at her daycare program -- something no one noticed until later.  Asked why she had done so, she replied: "[The teacher] said, 'don't take off your socks inside.'  I was not inside!"

Is this the daughter of two lawyers taking her first toddling steps toward One First Street?  Or is it one or both of her Jewish and Catholic heritages emerging in a flurry of Talmudic/Jesuitical reasoning? 

Honestly, I'd hoped for med school, or perhaps a combined JD/MD.  But what will be will be....   

Posted by Paul Horwitz on October 15, 2008 at 06:25 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack (0)

More on Dunlap: "Pick-up on Noon Street"

My take on the reactions to Chief Justice Roberts's dissent from the denial of cert. in Pennslyvania v. Dunlap is a little different from Steve's.  I don't think the reaction was as laudatory as Steve seems to think it was, although I acknowledge I may not have read as much as he did.  Certainly many people thought it was a notable oddity.  But Orin's take on VC, for instance, was fairly neutral as I read it, and a number of his commenters were critical.  (About the opinion!  Not about Obama!  Many did not even mention Bill Ayers!)

I also don't think Roberts's attempt at creativity was that successful.  First, consider the style of the opening itself.  I yield to no one in my admiration for Raymond Chandler, who I consider one of the best stylists of the last century.  I think every writer, including legal writers, ought to read him.  But Roberts's intro is a far cry from Chandler.  (Cue the obligatory "I know Raymond Chandler.  I read Raymond Chandler.  And you, Chief Justice, are no. . . .")  It is not Chandler.  It's not even Chandler manque.  It's Chandler manque'd by a mile.

Then, consider what style should achieve in a particular context.  Legal writing, to what I hope is just about everyone's regret, often attempts to win by obscurantism, or by piling on endless useless details rather than cutting to the heart of the issues.  It also often attempts to conceal the fact that an opinion has a writer and a personality; or, put differently, it adopts a personality, but a distinctly bureaucratic one.  I think more style and personality ought to be a part of good legal writing, including opinion writing. 

Continue reading "More on Dunlap: "Pick-up on Noon Street""

Posted by Paul Horwitz on October 15, 2008 at 12:55 PM in Paul Horwitz | Permalink | Comments (3) | TrackBack (0)

Uelman on Conscience and Citizenship in the Catholic Tradition

I don't mean to bogart Rick's MoJ prerogatives, but let me recommend a lovely article recently plugged on that site: "It's Hard Work": Relections on Conscience and Citizenship in the Catholic Tradition, by Amelia Uelman of Fordham, in the Journal of Catholic Legal Studies. 

The article is a critique of "The Voter's Guide for Serious Catholics," a voting guide published by what I take to be a lay Catholic organization.  Uelman argues that the guide's focus on five "non-negotiable" moral issues unduly scants other significant issues, for what she appears to believe are reasons of "raw political judgment."  Although I suspect she might be right about this, I don't think she quite proves her point here. 

But her second criticism -- that the guide confuses the obligations of Catholic elected officials and Catholic voters, and thus misses opportunitites for nuanced and meaningful discussion about how to make right choices in our particular social and political context -- seems quite right to me, based on my poor understanding of the role of individual voters within the Catholic tradition.  Uelman contrasts this with the somewhat greater appreciation of the mix of factors that influence individual political decision-making in the Catholic Bishops' 2007 document, "Forming Consciences for Faithful Citizenship."

On MoJ, Uelman describes her paper as "a strong critique" of the Serious Catholics guide, and it is.  But I appreciate her ability to give it fairly respectful treatment and still leave room for readers to disagree about the value of either that guide or the bishops' own document.  I think stronger arguments than she provides can be made for the "non-negotiable" position of the Serious Catholics guide.  But I share her broader perspective that such guides fall short if they fail to fully explore the complications involved in making actual political choices -- such as, to use one of her examples, whether a voter who is so inclined should vote for the candidate who promises to eliminate abortion but is unlikely to do so, or for the candidate who, all things considered, is more likely to actually reduce the number of abortions.

Much depends on one's starting premises, obviously.  But this is a rich and thoughtful piece that should be of interest to anyone interested in the relationship between religion and political decision-making.   

Posted by Paul Horwitz on October 15, 2008 at 11:59 AM in Paul Horwitz | Permalink | Comments (1) | TrackBack (0)

And the Winner of the "Best Law Porn" Award is...

UCLA! We can judge "law porn" -- the glossy brochures that arrive in the mailboxes of of law professors, lawyers and judges this time of year -- on any number of dimensions: aesthetics, weight, ability to convey excitement, number of articles in top journals per square inch, etc.

My key metric is relevance, and that' s where UCLA's submission this cycle stands out. After all, these mailings are not just designed to create warm and fuzzy feelings towards the school, though they are that.  They are designed to get the recipients to answer a particular question asked by U.S. News -- rate the "academic quality of their J.D. program" on a scale of 1-5 -- higher than the person would otherwise.

And to answer that question, the cover story of UCLA's law-porn magazine, "How UCLA Law Trains Lawyers", available here (see p. 34 of the pdf), provides highly relevant information on things like curriculum and the use of pedagogic techniques backed by research on learning theory. I read about how UCLA offers skills-oriented courses for transactional practice, which more law schools need and students want, and I'm turning my internal U.S. News dial upward.

Continue reading "And the Winner of the "Best Law Porn" Award is... "

Posted by Jason Solomon on October 15, 2008 at 10:19 AM in Life of Law Schools | Permalink | Comments (2) | TrackBack (0)

Tuesday, October 14, 2008

Someone is reading us

In August, I criticized the Ninth Circuit decision in In re DRAM Litigation, which dismissed a claim under the Foreign Trade Antitrust Improvements Act (FTAIA) for lack of subject matter jurisdiction, rather than for failure to state a claim, which I believe was the more appropriate ground.

Well, today, I received an e-mail from the author of the opinion, Ninth Circuit Judge Raymond Fisher, and a copy of the revised opinion, which included the following footnote:

The district court granted defendants’ motion to dismiss, which was premised solely on jurisdictional grounds. It is unclear, however, whether the FTAIA is more appropriately viewed as withdrawing jurisdiction from
the federal courts when a plaintiff fails to establish proximate cause or as simply establishing a limited cause of action requiring plaintiffs to prove proximate cause as an element of the claim. Compare Empagran S.A. v.
F. Hoffman-LaRoche, Ltd., 417 F.3d 1267, 1268-69, 1271 (D.C. Cir. 2005) (affirming dismissal under Rule 12(b)(1) for lack of subject matter jurisdiction), with In re Elevator Antitrust Litigation, 502 F.3d 47, 49-50
(2d Cir. 2007) (affirming dismissal on 12(b)(6) grounds). The Supreme Court’s decision in Empagran I provides little guidance because, although the district court had dismissed under Rule 12(b)(1), the Court did not
explicitly address whether the issue was properly viewed as one of federal question subject matter jurisdiction or of a failure to state a claim under federal law. We decline to resolve the question, because it was not argued
by the parties and in this case the result and analysis are the same. Accordingly, we assume without deciding that the district court correctly dismissed under Rule 12(b)(1).

Judge Fisher also graciously said that they welcome constructive feedback from academics. No citation for the blog or for my articles on the issue, unfortunately. But kind of nice to see that we can have some practical effect.

Posted by Howard Wasserman on October 14, 2008 at 07:40 PM in Law and Politics | Permalink | Comments (1) | TrackBack (0)

A Dissenting Opinion on the Chief Justice's "Noir" Moment

I decided to make a momentary re-appearance in blog-land because I've been a bit perturbed by the various blog coverage of the Chief Justice's dissent from the denial of certiorari today in Pennsylvania v. Dunlap.  Everyone's obsessed with the creativity of the film-noir (or Dragnet-style) opening to the dissent, with a substantial amount of praise for the Chief Justice for doing something original (what does _that_ say about the predictability of Supreme Court opinions that we go nuts for anything remotely different?).

I want to raise one note of dissent from the praise. It's not that I don't think it's clever and fun to read--like most of the Chief Justice's writing, it is clear and to the point. It's that I think the opinion, especially the opening stanza, is to some degree contemptuous of both the defendant and the state courts...

• Maybe it's that I'm bothered by the whole idea that the Court's probable cause jurisprudence cares what neighborhood you live in--should the same transaction among sketchy-looking characters have different legal consequences in Northwest DC than in Southeast?
• Maybe it's that the Chief Justice seems to suggest, however implicitly, that all criminal procedure is like Dragnet (and how many times were _those_ searches thrown out by the courts)? That there is an obviousness to what the police officer saw, and that obviousness = probable cause (as opposed to reasonable suspicion, which may well have been present here). Does probable cause really arise from every commercial transaction on a street corner where the product sold might be drugs? Really?
• Maybe it's that the Chief Justice suggests this is so obvious when the state supreme courts--as he himself notes--have so bitterly divided on the issue.

I'm not sure--and I'm no literary critic. But something about the opinion just rubbed me the wrong way... am I crazy?

Posted by Steve Vladeck on October 14, 2008 at 07:35 PM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink | Comments (10) | TrackBack (1)

Law Professors and CLE

While we are on the topic of blogging and blanking without tenure, I wanted to discuss an experience from my recent past (last Friday), but that isn't mentioned by Professor Horwitz as something one might ordinarily do while untenured - namely teaching CLE.

Is the view of the academy really as down on CLE as the rumors might have me believe?

Continue reading "Law Professors and CLE"

Posted by Michael Risch on October 14, 2008 at 11:42 AM | Permalink | Comments (3) | TrackBack (0)

_________ Without Tenure

Verity raises the question -- I guess age-old isn't the right term, but the by now well-worn question -- of whether one should blog without tenure.  It's a perfectly fair question, and all of us (at least all of us without tenure) have thought about it from time to time.  Some thoughts:

1) I think the comments were wonderful, and Orin's advice in particular is good: when blogging, think about what you're saying and write thoughtfully and carefully.

2) I think it's important to put that advice, and the issue in general, in a broader context.  I know I've said this kind of thing before, but it seems to me that, if you have formed the right habits of mind, this advice will apply naturally to everything you do as a scholar and writer, whether tenured or untenured.  Of course a junior scholar should be humble about what he or she doesn't know, and both junior and senior scholars should do their best to write carefully and well, with special care taken on subjects that are further outside their area of expertise.  That applies to everything one does. 

 

Continue reading "_________ Without Tenure"

Posted by Paul Horwitz on October 14, 2008 at 11:09 AM in Paul Horwitz | Permalink | Comments (0) | TrackBack (0)

U.S. News Survey: Vote Quality, Not Reputation

The U.S. News surveys -- the primary determinant of the overall rankings -- are now in the boxes of hundreds of law professors around the country, due in a few weeks. Next month, it's the lawyers' turn.  Discussion in the blogosphere and elsewhere have referred to these as "reputation" surveys, which is misleading -- so let's stop doing so. Respondents are supposed to be actually assessing the quality of each school's JD program. U.S. News used to call them "reputation" surveys, but has not since 2002. The label, nonetheless, persists. This may seem like a small point, but I think it's quite important.

Here's what U.S. News asks law professors: "Identify the law schools you are familiar with, and then rate the academic quality of their J.D. program at each of these schools. Consider all factors that contribute to or give evidence of the excellence of the school's J.D. program, for example, curriculum, record of scholarship, quality of faculty and graduates."

U.S. News calls this its "quality assessment" surveys. They're asking law professors as experts on legal education, not as experts on public opinion ("reputation"). And lawyers and judges are asked the same thing as experts in lawyering (to assess "academic quality") except they are asked to particularly consider the degree to which schools prepare students for practice.

So if you were considering Yale, for example, and thought the question was what is the school's reputation on a scale of 1-5, of course the answer is "outstanding" ("5") or at least "strong" ("4") -- after all, it's the #1 law school in the country, according to the dominant rankings system! But if you were actually assessing the quality of their J.D. program, you might take into account the low student satisfaction ratings relative to their peers; the bar passage rate in New York, where most of its graduates take the bar, that was lower than Cornell and Cardozo last year, among others, despite its students having the highest entering credentials; and the fact that first-year students get most of their feedback in Legal Writing from upper-level law students, leading to legions of complaints from lawyers and judges about the work product of Yale summer associates and entry-level lawyers. And so you might say that the academic quality of the school's J.D. program was more like "adequate" ("2") or "good" ("3"), and rate the school as such.

By sticking with "reputation," we're not answering the question (as we often scold our students for doing), and also saying it's OK to answer the survey year after year according to last year's U.S. News rankings (which after all determine reputation) and in the absence of any real information on relative educational quality. The result is no competition on the quality of the service provided (legal education), and instead various attempts to "game" the rankings by buying LSAT scores (how much does your school spend on this practice?), shifting students into a part-time program, reducing the size of the first-year class, and other devices.

Time for a change. For a different approach that actually focuses on assessing quality, see here, and I'll have some more thoughts on available indicators to look to in the days ahead.   And no, faculty scholarship, which has little to do with the quality of a school's JD program and is a poor proxy, won't be one of them.

Posted by Jason Solomon on October 14, 2008 at 07:50 AM in Life of Law Schools | Permalink | Comments (1) | TrackBack (0)

Monday, October 13, 2008

Blogging Without Tenure

I know many of us blog without tenure, but is it really a good idea?

Some advise that blogging doesn't help.  For one, it may not always look like it, but blogging takes time.  And that time could be spent writing law review articles.  That's the theory, at least, although in my experience it is nice to have a variety of projects of different lengths, media, etc.

But does it hurt?  Any practicing lawyer has seen indiscreet email come back to haunt its author.  Blogs are more overtly public, but they are also a place to float ideas that aren't entirely worked out.

Posted by Verity Winship on October 13, 2008 at 04:18 PM in Blogging | Permalink | Comments (8) | TrackBack (0)

Follow up to "Is There a Place for Non-Traditional Scholarship?"

Yes!  There is!  And more than one!  See the comments for direction.

Thank you all for your advice on placement, as well as for the positive feedback on the piece.

Some follow-up points upon reflection:

I think that Howard and "anon." are probably right that legal academia is not quite as confining in this respect as I made it out to be (and thought it was).  Indeed, it turns out that blogs, online companions to journals, and various alternative publishing venues offer many different publishing opportunities for non-traditional writing.

Nevertheless, I do think that the meat market and tenure process indoctrinate and acculturate us into a certain set of assumptions about what kinds of publishing and writing are worthwhile.  This 2500 word piece will not get me tenure, nor should it (though please call me if you'd like to offer me tenure on account of this piece).  But putting aside this particular piece, suppose some very interesting, short non-traditional piece reaches a greater number of readers than the average law review article?  What if it makes a few more people understand, think about, and question the issues in the field?  What if it raises and addresses a novel issue?  Shouldn't that be entitled to some professional reward? 

This applies to other things like publishing co-authored pieces (which I have also done) and essays, writing fiction that makes serious legal points, or appearing before legislatures and other policy-makers.  There are some professional rewards for these activities, depending on the school and the context, but does it make sense to treat them as secondary or tertiary to the main job of publishing standard, turgid law review articles (which, of course, I have also done)?

Surely there are some personal and professional rewards here: you get your name "out there," you have something to talk about with other people, you have a teaching tool, and you generally get the benefits of being productive.  But the push towards a particular kind of publishing inevitably disincentivizes other kinds of writing and activities.  Is that a good thing?

Posted by Hillel Levin on October 13, 2008 at 02:35 PM in Hillel Levin | Permalink | Comments (1) | TrackBack (0)

On Greenawalt on Religion

I'm back from a weekend jaunt to South Bend -- the "gateway to Mishawaka," as Rick Garnett once described it to me -- and I'm happy to say that the Dome is doing as well as ever and that the Law School is flourishing. 

The occasion was a roundtable discussion on Kent Greenawalt's Religion and the Constitution: Establishment and Fairness, the second in his comprehensive and magisterial two-volume "treatise" on law and religion.  The discussants included Larry Alexander and Steve Smith of San Diego, Steve Smith of Virginia, Robert Audi, Kathleen Brady, John Finnis, Frederick Mark Gedicks, Cathleen Kaveny, Andrew Koppelman, Mark Noll, Robert Rodes, Winnifred Fallers Sullivan, Nelson Tebbe, Rick Garnett (the host), and the author himself. 

The discussion itself was a treat.  At the risk of boiling down a day's discussion, everyone agreed about the magnitude of Kent's accomplishment in dealing in a characteristically sensitive and careful manner with a vast and complicated subject.  The broader question was whether Kent's promise to build the Religion Clauses "from the bottom up" can be accomplished in the absence of a stronger overarching and organizing theory that allows one to reconcile the many competing values that contend for inclusion in thinking about the Religion Clauses.   

I can think of better things for my confidence than being the junior member of a very distinguished conference, but I can't think of much that would have been more enjoyable and educational.  Thanks, Rick and everyone else, for a wonderful conference and a great education.

Posted by Paul Horwitz on October 13, 2008 at 12:00 PM in Paul Horwitz | Permalink | Comments (2) | TrackBack (0)

Irony Department

I know this is last week's news, but compare this:

McCain's Homeownership Resurgence Plan

The McCain Resurgence Plan would purchase mortgages directly from homeowners and mortgage servicers, and replace them with manageable, fixed-rate mortgages that will keep families in their homes. . . . The new mortgage would be an FHA-guaranteed fixed-rate mortgage at terms manageable for the homeowner. The direct cost of this plan would be roughly $300 billion because the purchase of mortgages would relieve homeowners of “negative equity” in some homes.

With this:

Yikes!  It's a big shadow!

Posted by Matt Bodie on October 13, 2008 at 11:17 AM in Current Affairs | Permalink | Comments (0) | TrackBack (0)

Macey on Corporate Governance

Jonathan Macey's new book Corporate Governance: Promises Kept, Promises Broken arrives this week.  It is available now on Amazon.  Here is the publisher's blurb.

In the wake of the Enron meltdown and other corporate scandals, the United States has increasingly relied on Securities and Exchange Commission oversight and the Sarbanes-Oxley Act, which set tougher rules for boards, management, and public accounting firms to protect the interests of shareholders. Such reliance is badly misplaced. In Corporate Governance, Jonathan Macey argues that less government regulation--not more--is what's needed to ensure that managers of public companies keep their promises to investors.

Macey tells how heightened government oversight has put a stranglehold on what is the best protection against malfeasance by self-serving management: the market itself. Corporate governance, he shows, is about keeping promises to shareholders; failure to do so results in diminished investor confidence, which leads to capital flight and other dire economic consequences. Macey explains the relationship between corporate governance and the various market and nonmarket institutions and mechanisms used to control public corporations; he discusses how nonmarket corporate governance devices such as boards and whistle-blowers are highly susceptible to being co-opted by management and are generally guided more by self-interest and personal greed than by investor interests. In contrast, market-driven mechanisms such as trading and takeovers represent more reliable solutions to the problem of corporate governance. Inefficient regulations are increasingly hampering these important and truly effective corporate controls. Macey examines a variety of possible means of corporate governance, including shareholder voting, hedge funds, and private equity funds.

Corporate Governance reveals why the market is the best guardian of shareholder interests.

Posted by Matt Bodie on October 13, 2008 at 11:09 AM in Corporate | Permalink | Comments (0) | TrackBack (0)

More on non-traditional legal writing

I started to include this in the comment I left to Hillel's post on where to place a short, tongue-in-cheek essay that nevertheless explores important legal ideas (I am looking forward to reading the paper). He is looking for suggestions as to where to place the article, noting that the writing game is somewhat "confining." But I wanted to break out a broader point.

Hillel received a ton of good responses as to where he could place this article. And I think that suggests that the rules for legal writing in the academy are not as confining as Hillel's post suggests. There actually are a lot of opportunities to write and publish short and fun pieces such as this one that make creative (and often important) legal points. Many journals will jump at them. The expansion of outlets, both in the number of journals as well as the addition of on-line supplements (that really were intended for precisely this sort of thing), means there is a place for this type of work. One of my great frustrations was my inability to place this piece (like Hillel's, it was short, tongue-in-cheek, but, I think, hit on an interesting idea about the law) in some law journal forum, settling instead for FindLaw.

Of course, something like this does not "count" if you are at a school that counts publications and are just trying to meet the statutory minimum for promotion and tenure. But I think committed and successful scholars just keep writing, doing many different types of projects for many different forums, all of which form an overarching body of legal writing. The short piece that Hillel is describing is a perfect example of the sort of things that should be part of that corpus, in addition to the traditional books and big law review articles. And that is why I do not believe blogging is anathema to legal scholarship--it is another way of exercising the writing muscles.

Posted by Howard Wasserman on October 13, 2008 at 10:16 AM in Life of Law Schools | Permalink | Comments (0) | TrackBack (0)

Is there a place for non-traditional legal writing in the legal publishing universe?

I love being a law professor.  I love thinking about the law.  I love teaching and engaging with students.  I love writing.  I love hanging out with law professors.  And I love the many personal and professional benefits that come with being a professor.  (Do all junior professors feel this way?  Does it wear off?)

One of the very few things I don't like about being a professir is that it is confining.  I mean this in a broad sense--it really limits experiences and exposure, I think (as, perhaps, does every job)--but I have something very specific in mind here, and I'm looking for advice.

I have drafted an extremely short, non-traditional piece (2500 words, not yet footnoted), and I don't know if there is anyplace to publish it. 

The piece, Everything I Needed to Learn About Legisprudence I Learned by Third Grade, is a little gimmicky.  Okay, maybe it is very gimmicky.  Based on a true story, it starts with a proclamation by Mother, the Supreme Lawmaker, that "no food may be eaten outside the kitchen."  What follows is a series of rulings by Judges (Father, Babysitter, Grandma, etc.), who, using traditional tools of interpretation, eventually declare it to mean that all food may be eaten outside of the kitchen.  Ultimately, the Supreme Lawmaker reacts and clarifies.

The piece, which I will use as a teaching tool in my Legislation and Statutory Interpretation class, is meant to highlight the following:

Continue reading "Is there a place for non-traditional legal writing in the legal publishing universe?"

Posted by Hillel Levin on October 13, 2008 at 09:04 AM in Hillel Levin | Permalink | Comments (11) | TrackBack (0)

Parroting Dicta

In my last post on this topic, I introduced the basic argument that any type of invention should be patentable, so long as it falls into one of the statutory categories – process, machine, manufacture, or composition of matter – and so long as it meets all of the other requirements of patentability.

Understanding why it is considered unorthodox to propose that we follow the statute requires a bit of history of Supreme Court precedent.  I like to think of that history is a string of (for the most part) the right outcomes reached for the wrong reasons.  A by-product of the history is what I call "parroting dicta" - the Court makes a statement that is not necessary (or even related to) the holding, and that statement gets repeated in every case, even though it is not necessary for that case either.  Eventually, lower courts and even the Supreme Court start believing the dicta despite the fact that it has never actually been helpful in resolving a case.

In this post I will explain what I mean.

Continue reading "Parroting Dicta"

Posted by Michael Risch on October 13, 2008 at 08:13 AM in Intellectual Property | Permalink | Comments (0) | TrackBack (0)

Saturday, October 11, 2008

Googling Years Gone By (with the Google of Years Past)

If there are a few Web searches you forgot to do back in 2001, you now have a second chance:  Google is celebrating its 10th anniversary by allowing you to search the 2001 version of the Web with that year’s version of the Google search engine. Monica Hesse uses this as a launching point for an interesting discussion of Web archiving in today’s Washington Post. 

Not surprisingly, a Google search for “Barak Obama” turned up far fewer results in 2001 (671) than it does today (73 million) and also far fewer than a search for “John McCain” got in 2001 (158,000).  Not that this has much significance for who is more likely to become, or deserve to be, the next president.  “Cole Hamels” got far few Google results in 2001 (only 6) than did “Derek Lowe” (9,090) and yet it’s now looking like he’s more likely to be pitching in this year’s World Series.

Posted by Marc Blitz on October 11, 2008 at 06:05 PM in Culture | Permalink | Comments (3) | TrackBack (0)

Ugly political rhetoric v. Unlawful political rhetoric

Bloggers, and belatedly the mainstream media, have been sharply criticizing McCain and his campaign for the increasingly angry, ugly, and personal tone of their campaign rhetoric, which has played up the Obama-as-terrorist-Muslim-traitor-secret-communist, and which has prompted the over-the-top rage and hatred it has stoked and provoked in the crowds at McCain and Palin rallies. Video and reports from rallies shows audience members shouting "Kill him" and "Off with his head" and "terrorist" and "traitor" and "treason" during speeches and rallies. There are reports of racial epithets being shouted, at Obama and at members of the press. Susan Kuo offers some thoughts. The "kill him" shout-out has drawn interest from the Secret Service. And in a Town Hall today, McCain urged supporters to be respectful and not to be scared of Obama and apparently cut-off one town-hall questioner who claimed to be scared of Obama because he is an Arab. On the other hand, when McCain described Obama as a "decent family man," the crowd booed. And, in response to Obama's criticism of the divisiveness and ugliness of the rhetoric at these rallies, the McCain campaign said Obama was attacking McCain supporters and does not understand "regular people and the issues they care about"--which, to the McCain campaign, apparently includes whether Obama is a terrorist who should be tried for federal crimes.

Much of the noise has been virulent and ugly, playing, not subtly, to Obama's scary "otherness." Lowest-common-denominator, atmosphere-of-hatred-and-violence stuff. But I cannot buy the notion being floated that anything unlawful is happening. McCain and Palin have not come anywhere close to the constitutional line of incitement--no actual violence or unlawful conduct against Obama is temporally imminent or likely to occur as a result of McCain/Palin campaign statements. And I am fairly certain that no one in the campaign intends anyone to engage in violence against Obama. Nor do the random shouts in the crowd amount to true threats against Obama by McCain supporters. The Secret Service has a tendency, not unwarranted, to over-investigate everything when it comes to political leaders. But "kill him" shouted out at random in an impassioned crowd of thousands with Obama nowhere near the crowd, just does not amount to a threat. (Plus, it is not clear whether the shout was directed at Obama or Bill Ayers). In short, nothing I have seen or read about comes close to the line of unprotected speech.

This is not to defend either McCain's choice of campaign rhetoric or the response of their supporters--and, it seems to me, it is of a qualitatively different tone than what is coming from the Obama campaign or its rally attendees. And it is appropriate to speak out against and denounce the tone of comments (and to praise McCain for trying to put the breaks on it) and to call for a more civil discourse. But ugliness is not unlawfulness. And whatever criticism the campaign warrants for engaging in personal attacks and riling up the crowd, charges of engaging in "borderline incitement" should not be among them.

Posted by Howard Wasserman on October 11, 2008 at 11:52 AM in Current Affairs, Law and Politics | Permalink | Comments (15) | TrackBack (2)

Friday, October 10, 2008

Breaking: Connecticut Supreme Court Rules on Same-Sex Marriage

A divided Court held that Connecticut must allow same-sex couples to marry.

This makes Connecticut the third state to recognize same-sex marriages, though California may yet roll back.

Posted by Hillel Levin on October 10, 2008 at 12:35 PM in Constitutional thoughts | Permalink | Comments (1) | TrackBack (0)

Who Should Teach LRW?

Broadly speaking, there are three choices that schools have in choosing LRW teachers.  In some schools, the programs are taught by professors or full-time instructors; in other schools, part-time faculty teach LRW; and in still other schools, the program is taught by fellows who will, after 1-3 years, go on the tenure-track market.  To be sure, there are variations on these models, but I think these are the broad contours.

Each of these models has its benefits.  On the one end of the spectrum, having permanent, full-time (tenure-track or contract) LRW faculty means that the program is taught by Legal Research and Writing professionals.  They know what they are doing; they are committed to it; they think a lot about it; they attend conferences, contribute to the literature, and stay on top of developments; they become experienced over time; and so forth.  It also shows a commitment on the part of the school and reduces the likelihood that students get the message that LRW is a step-child.

On the other end of the spectrum, fellowship programs offer many ancillary benefits to the schools, the fellows, and the students.  But I want to focus on the actual teaching of LRW.  (Obligatory conflict of interest reminder:  I was an LRW teaching fellow at Stanford.)  I do sometimes wonder whether this model is good for teaching LRW.  Here are some problems with it:

Continue reading "Who Should Teach LRW?"

Posted by Hillel Levin on October 10, 2008 at 10:04 AM in Hillel Levin, Life of Law Schools, Teaching Law | Permalink | Comments (7) | TrackBack (0)

Law Professors as Creative Writers

Perhaps because I had little else to do during my free time yesterday during Yom Kippur, I started brainstorming about my final.  I think it is really a great one - a compelling story, complex but not overly so, broad class topic coverage, realistic, etc.  I told my wife it was going to be a fun exam.  Her response, having been to law school herself, was that a) no law school exam is "fun" for the student and b) surely no patent law exam could be fun.

Nonetheless, I was jazzed as I cranked away at the test last night.  It got me wondering why, and I think the answer is that - assuming even the minimal academic integrity - this is the only real chance most law professors get to do creative writing.  It is most certainly the only area where such creative writing gets counted toward any sort of tenure requirement. 

I never really enjoyed creative writing, but I kind of like it in my field of interest. Maybe this is why Paul Goldstein decided to write mystery novels.  Exam writing is also intellectually challenging because I have to maintain the precision required to generate answers that allow me to gauge how well my students understand the topic. 

I'd be interested to hear what others think.  Will my excitement wane over the years?  Is it just nuts to start an exam halfway through the semester?  Does anyone else get jazzed over writing exams?  When Prawfs did a feature on this last year, few people seemed to volunteer their exams.  Maybe that's an answer in itself...

Posted by Michael Risch on October 10, 2008 at 08:26 AM in Life of Law Schools | Permalink | Comments (1) | TrackBack (0)

Laptops in the Class -- Take 2

OK. I guess the post below on laptop free classroom was not quite accurate. For one thing, the video is not really my class – although it would be nice to think I could somehow generate the same energy level in class discussions that legendary Argentina rocker Indio Solari generates in his concerts.

For another, I haven’t yet banished laptop computers from my classroom – although I can understand why, given the lure of Facebook and other Web sites for plenty of people, laptops are viewed as a threat to class engagement (and a distraction for some students who have to struggle to ignore what others have on their screens). But I found having a laptop invaluable as a law student and so am very reluctant to ban them as a law professor.

But I also think there’s another reason why banning laptops is an unsatisfactory solution to the problems they create: it’s at best just a stopgap measure. One day soon -- and the sooner the better – law students will not only be using computers to take class notes, but also to store, access, and study all of their law school reading materials. When that day comes, it will be difficult for us professors to ban laptops or tablet PCs or whatever computers students are carrying around with them – unless we’re willing to make not only exams but law school classes during the semester “closed book.”

Continue reading "Laptops in the Class -- Take 2"

Posted by Marc Blitz on October 10, 2008 at 12:18 AM in Teaching Law | Permalink | Comments (2) | TrackBack (0)

Thursday, October 09, 2008

An Energy-Filled, but Laptop-Free, Class

After seeing the film Wall-E with my five year old daughter about a month ago, and watching that scene in the film where human beings of the future are blocked from meaningful contact with each other, and their surroundings, by video screens that constantly hover in front of their faces, I decided it was time to see if my law school class would be more engaged in the class without computer screens constantly in front of their faces.

So I held one class discussion where laptops were not permitted. The level of engagement, energy, and enthusiasm were incredible! With the students' permission, I've posted the above video of our dynamic class discussion. As you'll see, not a single laptop. I'll have some additional (perhaps a little more serious) comments to add about laptops and other technology in the classroom in an upcoming post.

Posted by Marc Blitz on October 9, 2008 at 08:43 PM | Permalink | Comments (0) | TrackBack (0)

Baseball Metaphors and Judicial Opinions

A long time ago - so long ago, in fact, that the editing process was conducted entirely via Fed Ex and (gasp) telephone* - I published an article on the use of baseball metaphors in judicial opinions.  It is one of 19 hits in the Westlaw JLR database for "Kirby Puckett," one of four for "Kent Hrbek," and the only law review article ever written that mentions Puckett, Hrbek, and Ron Gant.  Though I missed out on all the fun that might have ensued had it been more readily available when Chief Justice Roberts was describing his role in umpireal terms, and even the more recent discussions here, I have just now posted it on SSRN for your procrastinating enjoyment.

* It's interesting to me that the telephone seems to have disappeared from the editing process.  Not once since I started teaching have I spoken to a law review editor other than the one who made the publication offer.  Maybe it's not that surprising, though.  I remember some of those conversations from the editor side as being a little intimidating. That might have been partly a product of how my first conversation with an author on the phone unfolded.  He (who was kind of big-namish) came across as a little grouchy, and not all that pleased with some of the edits proposed by my predecessor.  Somehow or other - I guess I was trying to find a source or something as I fumbled for an explanation of whatever my predecessor had done - I pulled the phone off my desk.  From his side perhaps the line just went dead.  On my side there was a loud crash and a cascade of papers onto the floor.  In retrospect, not that big of a deal.  At the time, a little bit mortifying.

Posted by Chad Oldfather on October 9, 2008 at 06:57 PM | Permalink | Comments (0) | TrackBack (0)