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The Harvard Bloggership Conference in a Nutshell

harvardlawschool.jpgI have returned from the bloggership conference at Harvard Law School. This conference has already been blogged about (big surprise), with Ann Althouse and Larry Solum live-blogging it and Michael Froomkin, in grand meta fashion, blogging about those blogging about the conference.

I thought I’d contribute to all this blogging by translating the conference into “blog” (the punchy to-the-point language of blogging). You can get everything you need to know about the conference from this post — absolutely free of charge. It’s as if you had gone to the conference yourself — only better, because I’ve saved you hours of time and engaged in extensive analysis to bring you the key points. [Warning: The summaries below are caricatures. Plenty of more serious commentary about the conference has already been done — see the links above and below.]

INTRODUCTION:

Paul Caron: “Who are we? Why are we here?” Answer: we’re bloggers, and we’re great. [And we’re here because of the free grub at Harvard.]

PANEL 1:

Doug Berman: Blogging brings us to the people; it is less hierarchical than normal scholarship — and it’s fun.

Larry Solum: Blogs are short, open source, and without mediation.

Kate Litvak: Blogging is akin to a “bugged water cooler” conversation; we should get a grip because blogging ain’t that revolutionary.

Paul Butler: The blog “is slapping legal scholarship in the face” and it brings power to the people.

Jim Lindgren: Why should we want to know whether blogging is scholarship?

Ellen Podgor: Everybody is right.

PANEL 2:

Gail Heriot: Blogging is fun and makes the academy less cloistered; 40% of law review articles never get cited — not even by their own authors — ouch!

Orin Kerr: The problem with blogs is tyranny — yes, tyranny — which is the result of the fact blogs are in reverse chronological order rather than focused around the best and most lasting posts.

Gordon Smith: Blogs connect you into the network.

Randy Barnett: Blogging can seduce you away from scholarship [don’t be seduced to the dark side young Skywalker], but blogging can help advertise your stuff.

Michael Froomkin: We should blog more about law review articles we like. [But can we find enough?]

More below the fold.

Read More

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Quantifying the Effect of Good Teaching

law1950.jpgWhy should law professors invest in being better teachers? Different professors would give you (no doubt) different answers. Similarly, the question of why we write has been asked, and answered, in a variety of ways.

I bet that for some law professors, the answer to the write/teach question is the same: they want to sell ideas to an audience and thereby change the world in some way. The transmission of law memes has historically been seen differently in scholarship and in teaching, however. Teaching is said to impart doctrine (the black letter law), and (to a greater extent) the method of legal practice. That is, law teachers help students to “think like a lawyer.” By contrast, scholarship is said to influence the world by changing theoretical perspectives. (Check out lists and criteria of “important” law review articles here and here.) A basic conclusion: important scholarship moves doctrine (i.e., judge’s minds). Important teaching moves hearts.

Since most scholarship isn’t read, and since most read scholarship isn’t read by judges, this view of the relative unimportance of teaching to doctrinal development feels off. But I wonder: has anyone tested the hypothesis empirically? A quick look on WL found no studies – but it might be there. Basically, the idea would be to look to the natural experiment of multiple scholars with different views teaching thousands of law students over the last century. Some of those thousands of students became judges. Some of those judges wrote opinions about topics discussed in the law school classroom. It would be interesting to know if there is any statistically significant relationship between being taught the law is X (or the way to approach the problem is Y) and writing an opinion holding X, or using method Y. To give a concrete example, do judges who were once students in Larry Tribe’s con law class produce similar opinions about the commerce clause as those who were once students of Charles Fried?

Obviously, coding and controlling the data would be tricky. You’d ideally want to look at the first-year subjects only, to avoid the selection biases that the Fried/Tribe example raises. You’d also want to find scholars who taught together at an institution, but who differed sharply on a easily codable area of law. Ideas include: the scope of the parol evidence rule; the enforceability of adhesion contracts; the usefulness of enterprise liability; the proper test for insanity in the criminal law; or even an Erie controversy. Finally, you’d want folks who entered teaching some time before, say, 15 years ago, so that you could have a significant enough crop of resulting judges.

Let’s pretend this project is possible and non-preempted. Do folks have ideas for professor pairs?

2

Fun! Fun! Fun! In The High Court Of Justice, Chancery Division

Mr. Justice Peter Smith, the British judge hearing the Da Vinci Code copyright case, has issued an opinion which contains some sort of hidden message. Italic letters in the first seven paragraphs spell out “Smithy Code.” In subsequent paragraphs, other letters also stand out, but they have yet to be deciphered. The judge was very candid about his work, saying in an interview “I can’t discuss the judgment, but I don’t see why a judgment should not be a matter of fun.” Gowri Ramachandran over at Prawfs agrees.

This is not the first time that a judge has crafted an opinion with an eye towards entertainment. Judge Kent’s famous order denying a motion to transfer has long been a Smoking Gun staple. Judge Buchmeyer’s opinion in Rimes v. Curb Records, written to the tune of Leann Rime’s “How Do I Live” is another goodie. (A portion of it can be found here.) Indeed, there is a whole website dedicated to curious and entertaining judicial opinions.

Are there institutional costs to using opinions in this way? In the individual case, it would seem to make little difference how funny or dry the opinion. But over time, if judges start to be seen as frustrated comedians, I wonder if the judiciary writ large loses some of its gravitas. Can a judicial comedian command the respect necessary to desegregate a school district, put a sitting governor in jail, or override a jury’s death verdict and impose life? (I discuss some of these issues in my piece, From Law to Content in the New Media Marketplace.)

I suspect that judges reap a benefit from these opinions beyond the opportunity to flex their funny muscles. I’m guessing – and I’d love to hear if this is right from those who know – that funny judges like Kent and Buchmeyer do particularly well hiring law clerks. Who wouldn’t want to clerk for a judge who airs it out from time to time?

There is also a broader question about whether the social role of judicial opinions changes when they are marketed by media outlets as “fun reading”. Will these content distributors push judges to produce more such opinions? Judicial decisions are, after all, free content. They aren’t copyrighted and the authors are paid with tax money. And the sale of quality free content produces very nice profit margins. Think these concerns are a bit silly? Think that nobody would really look at an opinion for fun? Consider today’s Birmingham News, where on the front cover the editors tease: “CAN YOU CRACK THE CODE? See the ruling online at www.al.com/birminghamnews/documents. ”

Will Shortz, watch your back!

3

Wanna hobnob with George Clooney this weekend?

Then come join the crowds at the Save Darfur Coalition’s “Rally to Stop Genocide” on the National Mall in Washington, D.C., this Sunday, April 30. Other luminaries appearing at the event include Senator Barack Obama, Nobel Peace Prize winner Elie Wiesel, rap impresario Russell Simmons, and Paul Rusesabagina (whose story was depicted in the superb film Hotel Rwanda, which you should rush out and rent tonight if you haven’t seen it yet). The Save Darfur Coalition brings together more than 160 faith-based, human rights, and humanitarian organizations, and the list of speakers at Sunday’s event reflects the incredibly diverse, grass roots nature of this effort. Here’s the blurb from the Coalition’s website:

“The rally is part of the “Million Voices for Darfur” campaign to generate one million postcards for delivery to President Bush, who recently pledged to push for additional UN and NATO help to protect the people of Darfur. We applaud the President’s leadership, but the work is far from done. We are urging President Bush to take steps necessary to end the genocide and build a lasting peace.”

Organizers estimate that around 20,000 people will attend the rally in DC, with smaller rallies to be held in cities around the country. Even if the crowds defy expectations and number in the hundreds of thousands, they will be dwarfed by the figures coming out of Sudan itself: According to the Coalition website, in just three years, 400,000 people have died and nearly 2.5 million have been displaced.

How many political issues out there can unite Barack Obama and Sam Brownback in common cause? Kudos to both Senators, and to the many other politicians, celebrities, and ordinary folk who have put compassion and principle above partisan bickering, in an attempt to shake us all out of our apathy.

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Should Schools Invite Controversial Speakers?

coulter2.jpgAn article in Inside Higher Ed discusses the position of the American Association of University Professors (AAUP) with regard to inviting controversial speakers (such as Ann Coulter and Michael Moore) to university campuses:

Since the 2004 election, the American Association of University Professors has been reviewing the issue of controversial political speakers and it has now published a proposed statement reiterating the importance of inviting such people to campuses — and rejecting the idea that speakers must be balanced, person by person, as invitations go out.

The new AAUP statement rejects two arguments commonly given for disinviting Moore last election cycle and some controversial figures generally: that they lack balance or that their presence on campus could endanger an institution’s tax-exempt status.

I certainly agree that schools shouldn’t shy away from controversy, and I agree with the AAUP position, but I also agree with this comment to the Inside Higher Ed article:

The problem that isn’t being addressed here is that provocateurs like Moore and Coulter are brought in as speakers in the first place. They command high fees to present recycled tedious, predictable polemical rants that lack intellectual depth and rigor. They substitute cleverness and wordplay for genuine argument, and they offer little or nothing that is new or imaginative.

The money would be better spent on bringing in genuine scholars and intellectuals (our college has recently hosted W.S. Merwin and Seamus Heaney, for instance), in which case the need for this sort of policy would vanish.

3

The New Orleans – Iraq Election Metaphor

Bill Quigley, a law prof from Loyola (New Orleans) who stayed in the city during the Katrina nightmare, and continues his activism today, posted one of his passionate analyses of the New Orleans situation over at Alexander Cockburn’s Counterpunch. I don’t want to get into the details of his piece – read it and agree or disagree. But I was intrigued by one point he made about long-distance voting in New Orleans. He wrote:

The state refusal to set up satellite voting for those displaced outside the state resulted in exactly the disenfranchisement predicted. While Iraqis who had not lived in Iraq in years were helped to vote in the US by our government, people forced out of state by Katrina for seven months were not allowed to vote where they are temporarily living.

Of course, whip-smart lawyers will be able to distinguish these two cases on multiple bases. New Orleans residents weren’t forced out by a dictator. It’s a lot easier to go back to New Orleans for a day. And although there was no effort by the relevant authorities to allow remote voting in Houston, and the many other out-of-state homes of these displaced residents, they could have voted absentee. But it struck me that the metaphor remains powerful. Given that we have accepted, as a nation, that displaced people ought to be helped to make sure they have a voice in democracy, shouldn’t the federal government have made a serious effort to promote or authorize remote voting in a place like Houston? Is absentee voting really sufficient access, particularly when the roles of displaced voters were – contrary to normal procedure – not made public? Like Iraqis, the future of those displaced citizens – and their ability to return – will be shaped by the new leaders. Is the task of re-enfranchising these citizens appropriately left to the state, particularly when so many of these folks don’t currently live in Louisiana? Is Iraq the right metaphor?

2

Karl Rove is the Subject of this Blog Post

Robert Luskin, Karl Rove’s lawyer, released the following statement after Rove’s appearance today before the Plame grand jury:

Karl Rove appeared today before the grand jury investigating the disclosure of a CIA agent’s identity. He testified voluntarily and unconditionally at the request of special counsel Patrick Fitzgerald to explore a matter raised since Mr. Rove’s last appearance in October 2005. In connection with this appearance, the special counsel has advised Mr. Rove that he is not a target of the investigation. Mr. Fitzgerald has affirmed that he has made no decisions regarding charges. At the request of the special counsel, Mr. Rove will not discuss the substance of his testimony. (H/T: The Corner)

This isn’t the first time that Luskin has made this claim. But the news media still aren’t really digging into what this means.

Being “not a target” is a good thing for Rove. But it would be better if he were “not a subject” of the grand jury’s inquiry either, and the failure of the Special Prosecutor to say so means that KR remains in some (unknown) amount of legal jeopardy. The distinction between these two concepts has been usefully discussed on Talkleft: for a recent post see here. Before today’s appearance, there was a rumor that Fitzgerald sent Rove a target letter. Either that rumor was false, or Luskin will some day have some explaining to do. I’m betting on the former. Because it would be frankly shocking were Rove to have testified before the Grand Jury after receiving a target letter. I’m not saying it couldn’t have happened under some immunity agreement that hasn’t surfaced, but it is exceedingly unlikely.

0

Trial by Stealth

This month’s ABA Journal Report has an amusing article regarding the growing problem of so-called “stealth jurors” — jurors who “lie on questionnaires and during voir dire to land seats on high-profile cases for bragging rights.” A jury consultant quoted in the article estimates that roughly 15 to 18 percent of today’s jurors view jury service not as a civic responsibility, but as “a way to comment on or influence the outcomes of trials.”

I thought these concerns might be a bit overblown, until post-exam-writing insomnia had me up at 3 a.m. last night doing an Amazon search on the subject. Turns out that someone has written a book entitled, appropriately enough, “Stealth Juror: The Ultimate Defense Against Bad Laws and Government Tyranny.” According to the author, “A stealth juror is an ordinary citizen serving on a jury who understands and is not afraid to exercise his right to judge not only the evidence in a case but the very law upon which the prosecution is based. If the law is bad or unfair, he secretly works to acquit any defendant being persecuted for a nonviolent, victimless crime. He must remain undercover because he represents a direct threat to the power of judges and prosecutors. He is the last champion of justice in the American courtroom.” The book promises to teach its readers “exactly how to become a stealth juror, including how to get yourself seated on a jury where you can do the most good for just causes (from preserving gun rights to opposing the War on Drugs), recognize and avoid the games that lawyers and judges use to manipulate the outcome of a case, secretly win over your fellow jurors in the deliberation room and much more.”

Hmm … I’m not sure this is exactly what Henry Fonda had in mind.

The ABA article points out that the “stealth juror” problem is exacerbated by the way in which voir dire is typically conducted: Potential jurors who might be biased against a particular defendant, for example, may be reluctant to speak up about their prejudices in an open courtroom, with tens or even hundreds of spectators watching.

Of course, sometimes the biases revealed during voir dire cut the other way. My father, a federal judge for twenty years in Arkansas, once conducted a criminal trial of a county judge who had been accused of buying up votes to win his election. At the beginning of voir dire, the judge informed the potential jurors of the charges against the defendant. A woman in the back row immediately stood up, hands on hips and full of indignation, and said, “Well, I guess you don’t want me, then. My husband and I always sell our votes. We get three dollars a piece for ‘em – five if it’s a close race.” The judge, without missing a beat, replied, “No ma’am, I don’t think we’ll be needing you today. Thank you for your service to the community.”

But those were 1980s dollars – I’m sure the price of a vote in Arkansas has gone up considerably since then.

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Counter-cyclical journals

Everyone knows that law reviews pick piece up in the Spring and in the Fall.

Except when they don’t. A growing number of journals seem to be bucking the trend and seeking at least some summer solicitations. For example, the front page for the Duke Law Journal website states outright that “We will review articles throughout the summer.”

This post hopes to collect some data from our readers: Which are the counter-cyclical journals (either this year, or in general)? Which journals are seeking summer submissions? If you’re an editor or otherwise knowledgeable on the specifics of a journal that is presently pursuing (at least in part) a counter-cyclical strategy, please weigh in in the comments; ditto if you recently published an off-season piece or picked up an off-season piece from the journal side.

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Memento Mori, and Constraining of Executive Power

362319_caesar.jpgClifford Ando’s book on Imperial Ideology and Provincial Loyalty in the Roman Empire is being passed around the family lending library. It, together with a recent conference invitation, has gotten me to thinking some about the different ways that the American legal system works to constrain executive power. This may all be old hat to some, but, hey, this is just a blog entry!

The legal system offers two major methods of constraining executives: incentives and structural checks. Both approaches are formal, and to a large extent, treat subject executives as rational, wealth-maximizing, actors. Incentive-based constraints follow a fairly traditional carrots-and-sticks approach.

Corporate law relies mostly on carrots. Punishments in corporate law are rarely felt by individual Directors and officers due to the BJR and D&O Insurance. SOX is a notable, and contested, exception. By contrast, control of public sector executives (like agency heads, police, and military officers) is largely based on sticks: court marshals; public shaming, etc.

Control of the government’s chief executive is largely left to institutional constraints. President Bush, not so long ago, reminded Americans that a second-term President has a wide latitude to act in ways that might seem unpopular: “We had our accountability moment, and that’s called the 2004 elections.” That is, elections provide limited incentives; impeachment an impractical stick. Congressional control of subpoena power is the real hammer.

The Romans had a somewhat different model. They had exceptionally few state administrators – a few thousand folks in total at the empire’s height. Those administrators were governed and constrained in a variety of ways. The preeminent, according to Ando, seems to have been socialized norms. Thus, famously, Roman generals on their victory parade were accompanied by a slave whispering in their ear: “Memento Mori.” Remember, you are mortal.

Are there interesting ways to pay-off this analogy? Perhaps we might achieve more efficient corporate and federal executive control through socializing norms of humbleness, loyalty, and self-control. Maybe this humbling function could be served by independent directors, in a reinvigorated real devil’s advocate way. Or, if we wanted to really re-engineer the system, perhaps SOX should be amended to rely less on punishment and more, as in the sexual harassment context, on a system of presumptions that encourages training and socialization of pro-social norms. In the federal government arena, perhaps we need to hire someone who will remind Presidents of the limits of their power, and the fact of their morality. Hmm. Actually, maybe those positions are filled already.