0

A Different Law Review Metric: Cost Per Citation

My colleague Al Brophy has long been interested in the impact of law reviews, as assessed in terms of citations. He’s even written a paper on the issue, evaluating the relationship between law review citations and law review reputation. Law librarians, however, may be interested in a slightly different metric: the value of law reviews, calculated in cost per citation. John Doyle, at Washington and Lee, has produced a great (i.e., fun) webpage that offers up this budget-based evaluation of law reviews. Here we learn that the Yale Journal offers a library a whopping 12.63 citations for every dollar spent on the journal, while Columbia comes in at 11.45 cites to the buck. The Alabama Law Review is priced quite moderately at 4.08 cites per dollar. We discover that librarians comfortable making decisions on this basis should shut down the specialty journal subscriptions. The De Paul Journal of Sports Law and Contemporary Problems (which, based on its title, is perhaps the least specialized of all secondary journals) provides a scant .06 cites on the dollar. For the frugal librarian who tires of running this long list of numbers, Doyle provides free advice: plug in your total periodical budget, and the site gives you a subscription list. Got $2500 to spend on journals? Splurge on the Brooklyn Law Review, but cancel the GW Law Review.

All this sounds to me like a case for Hein Online.

UPDATE: Professor Brophy has recently posted a second paper on these citations issues here.

1

Where Law Professors Are Manufactured

Brian Leiter, using data from Larry Solum’s law professor hiring reports from 2003-2006, has compiled information about the law schools that manufacture the most new law professors. The Top 5 producers of law professors, on a per capita basis, are:

1. Yale University (.34)

2. Harvard University (.14)

2. Stanford University (.14)

4. University of Chicago (.11)

5. Columbia University (.07)

2

A Sarbanes-Oxley Act for the U.S. News Rankings

SarbanesOxley.jpgLove them or hate them, the U.S. News and World Report rankings have serious implications. If a school rises on the list, it may become more desirable, attracting more applicants and better hires, and the opposite potentially may happen if a school’s rating drops. With so much at stake, and so many complicated factors to be calculated and self-reported by each school, moral hazard is inevitably present. And that’s a troubling incentive, for the same reasons that the pressure to “make the numbers” each quarter is problematic in the corporate context.

But at least in the corporate arena, the accuracy of the data reported is audited, and the CEOs of the companies have to certify that the data is correct. This was re-emphasized by the Sarbanes-Oxley Act, passed in 2002, which has as its goal better corporate governance, as well as accuracy and transparency in reporting. With the U.S. News rankings, we’re talking about a magazine, a private entity, that reports the data as it is given to them.

While I’m confident – or at least, I hope – that the vast majority of the reporting is above-board, I’ve also heard rumors about situations that seem slightly shaky. Some folks – while themselves professing to report everything correctly – think that other schools are not being upfront. Perhaps not exactly dishonest, mind you, but there are suspicions that some of the numbers are the result of skillful dodges or artful interpretations. Of course, this undermines the legitimacy of the vast majority of the schools that report the numbers accurately.

So what about some type of Sarbanes-Oxley analogue for these rankings? I don’t think the system could in any way be hurt, and might be considerably helped, by an occasional random check of the numbers and how they are derived every couple years. Not all the numbers, but just enough to keep everyone on their toes. That way, even if people disagree about the rankings, what factors should be included, what value to give to these rankings, etc. at least everyone is starting from the same place, and there’s more of a feeling that the information is accurate.

Read More

0

Elephant on a treadmill

Continuing Miriam’s animal theme this week, I came across a story about Maggie, an elephant at the Alaska Zoo, who is reluctant to exercise on her brand new treadmill. The zoo gave Maggie the $100,000 treadmill as part of a program to improve her lifestyle following the death of the zoo’s only other elephant.

Getting 8,000 pound Maggie onto the treadmill is a slow process. So far, Maggie has put two feet on it and gingerly touched a third foot. The zoo hopes she will progress to taking brisk walks on the treadmill by Thanksgiving–which will help her keep off the extra 1,000 pounds she tends to put on.

The story is not entirely unrelated to law/legal education. The trainers, who say they know just by looking at Maggie whether or not she wants to train on a given day, go along with the pace she sets. Elephants, the trainers report, “are like people. Just like in school, there were days you didn’t want to be in the lecture hall.”

My advice to Maggie is the same advice I give my students: before you get on the treadmill make sure you have a plan for getting off.

5

Parting words from Justice Scalia

scalia.jpgThe time has come for me to say farewell to the CoOp community — I’ve thoroughly enjoyed my stint as a guest blogger, and hope to visit again sometime soon.

As much of my blogging over the last month has been on the controversy over the use of foreign and international law in U.S. courts (see here and here), I thought it would be appropriate in my “farewell” blog to give Justice Scalia the last word. His diatribes against foreign and international law have inspired various Congressional attempts to legislate against the practice: A Senate bill, for example, would forbid federal judges from citing “any constitution, law, administrative rule, Executive order, directive, policy, judicial decision, or any other action of any foreign state or international organization or agency, other than English constitutional and common law up to the time of the adoption of the Constitution of the United States.” So what does the Justice himself think about his Congressional fan club?

Not much, apparently. The Washington Post reports today that Justice Scalia chastised Congress for sticking its nose where it doesn’t belong. “It’s none of your business. No one is more opposed to the use of foreign law than I am, but I’m darned if I think it’s up to Congress to direct the court how to make its decisions.” The pending legislation, Scalia complained, “is like telling us not to use certain principles of logic.” And he concluded, “Let us make our little mistakes just as we let you make yours.”

As surprised as I am to find myself in agreement with him, I say, “Amen, Justice Scalia.” In my view, the jury is still out on whether it’s a “mistake” to rely on foreign and international law in constitutional interpretation — but surely this is something for our judges to decide for themselves. America is blessed with one of the strongest judiciaries in the world, and we can trust them to figure this out on their own. Congress should leave them alone and let them do their jobs.

And on that note, I’ll sign off for now. Many thanks to all those who have debated this and other issues with me over the past month. I have learned much from your comments, and look forward to continuing the dialogue in the future.

0

Milberg Weiss Firm Indicted

At this point, given the amount of press that the investigation received, it does not come as a surprise that plaintiffs’ firm Milberg Weiss Bershad & Schulman has been indicted for providing “kickback” payments plaintiffs in securities class action cases. The firm has launched this new website to deny the charges (and presumably do some damage control).

Having previously worked for a plaintiff’s securities law firm, and knowing how passionately the partners there cared about cleaning up some of the worst abuses in the corporate world, I’m saddened by this. Over many years, Milberg Weiss has taken on many big, high-dollar, controversial cases that have shaken things up. On the other hand, will it really have that big an impact on class actions? If Milberg’s reputation and market share decreases, that leaves a power vacuum for its other competitors to fill. More details here from the government’s press release, all over the WSJ blog, and commentary from Conglomerate here.

6

Fourth Circuit Weighs In On Racist Talk In The Workplace

Full Court Press has a good post on a recent Fourth Circuit decision, Jordan v. Alternative Resources Corp., in which a divided panel upheld the dismissal of a Title VII race discrimination suit. In particular, the plaintiff argued that he had been fired in retaliation for making a complaint to management about what he perceived as a racially hostile working environment. The post at Full Court Press offers many more details, but the core of the court’s holding was that the employee was “unreasonable” in believing that his co-worker’s comments created a hostile working environment.

What were these comments that no reasonable African-American man could possibly have seen creating a hostile work environment? While watching a news account of the arrest of the DC snipers, his co-worker exclaimed: “they should put those two black monkeys in a cage with black apes and let the apes fuck them.” That according to the dissent. The majority redacted the text a bit, so that the gentlememan only suggested that the apes “f–k” them. In the aftermath of this incident, the plaintiff was told by colleagues that this offending speaker had used similar language in the past.

Two thoughts. First, it was interesting to see the majority turn what was clearly family-unfriendly language into, well, family-barely-friendly text. Apparently, for the majority, the “fuck” aspect of this comment was most offensive. Calling African-Americans monkeys – and thereby calling upon a rich history of bigotry – was merely being accurate. (No doubt some will argue that the “fuck” was irrelevant to the claim here, since it was grounded on the monkey image. But that is clearly debatable, if only because the term amplified the speakers intensity of hate.) Judge King’s dissent was very aggressive in terms of word choice. FIrst, he restated the facts, including the word “fuck.” Then, when citing contrary authority, he explicitly noted in parentheticals that those cases involved the use of the term “nigger.” We all know that the mere act of uttering this word is powerful and controversial. His point, presumably, was that any assessment of whether such abusive language could be reasonably viewed as creating a hostile environment cannot occur when the majority is perfuming these statements. Racist language must be addressed squarely, because the mere softening of terminology in a recitation of facts serves to retell a false narrative, one that the plaintiff never experienced. (In some ways, the panel’s decision to obscure the actual language – characterizing it rather than providing a precise image – brings to mind Eugene Volokh’s argument that you can’t discuss the cartoons spoofing Mohammed without seeing the precise images that are under discussion.)

Read More

12

Senate Vote Suggests Fear Of Gay Love Trumps States Rights

So a Senate subcommittee voted 10-8 to send a bill to the floor banning states from recognizing same sex marriage. Arlen Spector voted for the measure, though he says he opposes it, and perhaps other in the majority did so as well. But this suggests, at minimum, a new level of confidence among conservatives. No longer need they oppose rulings like Roe on states rights grounds. The truth, it appears, is that they don’t care about those rights very much at all. At least those rights pale in the face of gay marriage. I wonder if those many Federalists who take states rights seriously will speak out. I hope so. Perhaps we’re just seeing solidification of a realignment. Democrats increasingly support states rights, and fear the courts. Republicans increasingly love the courts (or at least don’t fear them) and now can stake out fresh territory regulating the typically state-organized institution of marriage.

And a new generation of thinkers will have to decide if abstract meta-issues like states rights are serious business or just a means to an end.

0

The Technicalities and Complexities of Electronic Surveillance Law

NSA3.jpgCurrently, there’s a debate raging about whether the phone companies violated the law when they supplied phone call records to the NSA. Orin Kerr opines:

The Stored Communications Act, 18 U.S.C. 2701-11, only regulates two kinds of providers: providers of electronic communication service and providers of remote computing service. Everyone agrees that the telephone companies are not acting as providers of remote computing service, so if they are liable they must be acting as providers of electronic communication service. . . .

A local telephone company is clearly a provider of electronic communication service: it literally provides users the ability to send or receive telephone calls. But is a company that only provides long distance service a provider of electronic communication service?

Maybe, but I’m not entirely sure. I don’t know much about how modern telephone networks work, but I am guessing that local carriers carry the first part of the call. In the case of a long-distance call, I assume that the long-distance carrier picks up the call at some point from the local carrier, and sends it to the local carrier at the receiving end of the call. If that’s right, I’m not entirely sure the long-distance carrier is a provider of electronic communications service.

I can see arguments on both sides. . . .

This debate gets to one of the major problems with electronic surveillance law. In my article, Reconstructing Electronic Surveillance Law, 72 Geo. Wash. L. Rev. 1264 (2004), I observed:

Electronic surveillance law has not kept pace with the staggering growth of technology. As discussed earlier, the law currently makes antiquated distinctions that often do not protect what is most important. Electronic surveillance law has lagged behind technological developments and has not been responsive to new surveillance technologies. . . .

Despite . . . dramatic changes since the passage of [The Electronic Communications Privacy Act (“ECPA”) which includes the Stored Communications Act under its umbrella] in 1986, Congress has failed to engage in a major revision of the law [except for some smaller changes here and there, the most notable of which was the USA-Patriot Act]. Under this state of affairs, law enforcement cleverly employs new technologies to try to avoid triggering ECPA. Often, these technologies are quite invasive, but the debate seems to turn on technicalities—whether the surveillance fits into ECPA’s framework. This invites a technological rat race, in which law enforcement uses new technologies designed to fit within ECPA’s less stringent provisions or to fall entirely outside of ECPA’s scope. . . .

Lost amid the labyrinthian task of applying ECPA’s complex provisions is the question of whether new technologies contravene the appropriate balance between effective law enforcement and privacy. . . .

Read More