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BLAWG REVIEW #75

lawbooks3a.jpgWelcome to Blawg Review #75. We’re proud to be continuing this venerable tradition at its diamond anniversary. Others also just hitting this milestone: The University of Wisconsin Hoofers, Blondie (Dagwood’s better half), and Bilbo Baggins Ian Holm.

When it comes to diamonds, the entire world is reduced to the 4 C’s: carats, cut, clarity and color. And so it is with Blawg Review #75.

This post was created with the collaboration of the entire permablogger crew at Concurring Opinions — Dan Filler, Dave Hoffman, Nate Oman, Daniel Solove, and Kaimi Wenger.

Carat: The World is Not Enough

Venkat Balasubramani has launched Spamnotes, a blog about litigation related to spam.

Bruce MacEwen, at Adam Smith Esq., chewed on the possibility of a Dewey-Orrick merger. Who knew that the received wisdom is that two “elite New York firms will never merge.” Which leads to the questions of whether this merger will happen, and whether these firms qualify as NY elites. Somehow I don’t think the folks over at Cravath are doing much quaking right now. (Granted, it’s hard to quake when you are dead-tired, yelling at three paralegals simultaneously, and worried whether Seamless Web is down tonight. Can you tell that we miss practice?)

A large group of law professors and lawyers have launched Consumer Law & Policy Blog.

And David Lat of the famous Underneath Their Robes blog, has started a new blog, Above the Law. He’s gone from being Underneath to Above — now that’s moving up in the blawgosphere! Belle Lettre, however, is decidedly not impressed: “So this guy is out of stiletto drag now, and we are still supposed to care about his juvenile characterizations of legal figures?” Ann Althouse stooped from her lofty perch to attack young Lettre and generalize from her to a entire generation’s political strategy:

This dread of triviality, does it hurt? I wonder if Belle has considered whether this grim, censorious, humorless — nay, humor-phobic — attitude helps women. I know you want to be taken seriously, but being so intent on being taken seriously is one of the main things that make people want to mock you. And not just you, but feminism.

And then Althouse promptly launched what has become known as “boobgate“, leading to a powerful retort (and a further retort) and prompting Ann Bartow to ask: “What leads a law professor who describes herself as a feminist to do something like this?”

For a different feminist perspective, check out this terrific post by Christine Hurt (Conglomerate), who described how in 1925, the governor of Texas convened the first – and last – all woman Supreme Court of Texas. This three judge panel heard a single case involving a fraternal organization – the Woodmen of the World – and was immediately disbanded. But we digress…

Jurisdynamics has launched an affiliate blog, First Movers, written by law students, graduate students in law, and law school graduates. The blog will focus on “law amid societal and technological change.”

Bobby Chesney, guesting at PrawfsBlawg while simultaneously starting a new blog, asked: “Here’s a question for the students out there: does it bother you when a professor cancels a class in order to attend a conference or workshop?” Will Baude, a Yale Law School student, offered his thoughts at his blog, Crescat Sententia. Professor Michael Froomkin offered his views at Discourse.net. Will Baude replied.

PENNumbra, the University of Pennsylvania’s online companion to the Penn Law Review, was born (…in a field of corn? Sorry. We’ve been reading The Big Red Barn an awful lot lately.)

Speaking of expansion, law prawfs are beginning to buzz about faculty hiring.

Each year, law schools hire new law professors through a process known affectionately as the “meat market.” Roughly 1000 people apply each year, and their resumes are currently being pored over by committees across the nation. Most law schools do first round screening interviews at a conference in Washington, DC. Each school interviews about 15-30 people. Over at the Volokh Conspiracy, Orin Kerr estimated the chances a person will get a second-round interview (the “callback”) at 20%. And the odds that a candidate will get an offer after the callback interview? Kerr estimated that at about 33%.

Meanwhile, Al Brophy at Moneyball considered the possibility of law school affirmative action based on class background. He wondered whether prawfs from lower income backgrounds might be more likely to support what he terms “aloha jurisprudence.” We’ll hold off on assessing the coherence of this new jurisprudence movement category, but he’s surely got a Top 50 article title on his hands.

Then there’s the century-old debate about whether size matters, and exactly what counts anyway. Joe Hodnicki of Law Librarian Blog attacks Chapman Law School’s claim that it has the highest scholarly output of all law schools in the country. Dan Markel of PrawfsBlawg weighed in, and over at MoneyLaw, Tom Bell of Chapman responded.

Clarity: Law Professors and Others Try To Make The World Coherent, And Also Contemplate The Process By Which Their Ideas Are Distributed

One of the great attractions of the legal blogosphere this week was the cage match on corporate governance at the Manhattan Institute’s blog Point of Law (Motto: “Two will enter, one will leave”) between Gordon Smith and Stephen Bainbridge. Topics included shareholder power, authority and accountability, director primacy, hymns of praise to the status quo, and calls for change. Needless to say, it was the sort of thing that gets the adrenaline pumping among teenage boys.

Duncan Hollis (Opinio Juris), analogizing presidential signing statements to treaty reservations, suggested that the comparison might save IL from the “not law” objection, and might constructively restrain the executive to boot. Not bad for a morning’s blogging. Perhaps it’s work like this that has led the increased prominence of IL in flagship law reviews, as Peter Spiro observed here.

Over at the Yale Law Journal’s PocketPart, Christopher Bracey, Paul Caron, Eugene Volokh, Jack Balkin, Ann Althouse, and Steve Vladeck ruminate on the future of legal scholarship. Over at Madisonian.net, Mike Madison critiques the symposium: It “had a chance to advance the ball, but failed.” Mike writes: “The problem is that things like The Pocket Part, and Harvard’s Forum, for example, aren’t really designed to extend the law review in new and innovative directions; they’re designed to save the law review, and all of its traditional tics, from various challenges to its authority and prestige.”

Terry Smith (Blackprof) considered the racially-charged primary in New York’s 11th Congressional District. After attacking both black and white candidates for undermining what he sees at the spirit of the Voting Rights Act, Smith concluded

Black voters will ultimately have to take matters into their own hands by forming strong community-based satellite parties (often referred to as political clubs) to conduct informal caucuses among black aspirants as a means of winnowing the field.

Miriam Cherry (guesting at PrawfsBlawg) lamented being preempted by a paper on SSRN. After Miriam solicited sniglets for such a happenstance, Adam Kolber commented: “After someone posted on the same topic I was writing about, I realized my project had reached its ‘SSREnd’.”

Meanwhile, the folks at Shlep are trying to tear the walls down. They asked if your local bar a “guide (helping to improve and expand self-help) or a guild (building walls against self-help and looking after the financial interests of lawyers first)?”

Dennis M. Kennedy at Between Lawyers wrote: “Professor Charles Nesson, Rebecca Nesson, Gene Koo making their class at Harvard Law School called “CyberOne: Law in the Court of Public Opinion” available to anyone using the Internet for free.” The course website is available here. Question: will the online Nesson experience involve techno music, dancing, and a exam question asking students “what they learned in this semester?”

In a beautiful “day in the life” post, Scoplaw painted a picture of his first courthouse adventure as a criminal defense clinic student.

Hanno Kaiser of Law and Society Blog offered some interesting thoughts about terrorism: “The crux with terrorism is that it terrifies, even though it is, objectively speaking, not particularly dangerous.”

Over at the Volokh Conspiracy, Orin Kerr compared attitudes toward the USA-Patriot Act and the Specter Surveillance bill.

And finally, a moment of clarity. Criminal defense lawyer Lawrence Taylor, one of the few critics of DUI laws that is not employed by the hospitality or liquor industry, decries those jurisdictions that prosecute individuals found sleeping (and drunk) in cars pulled off to the roadside.

Bobby Chesney slices, dices, and parses the statistics on terrorism prosecutions. Elsewhere, the British, after an eight-century long prohibition on double jeapordy, have finally decided to convict people notwithstanding a previous jury acquittal, and Opinio Juris opines on the first conviction under the relaxed standards.

According to Religion Clause the IRS has revoked the tax-exempt status of Operation Rescue. Elsewhere on the non-profitish front, in a shocking departure from institutional and family reputation, Eric Posner extolled the virtues of the for-profit charity on the University of Chicago Law School Faculty Blog. Meanwhile Times & Seasons had a post on the law and economics of religious utopias and the preference for institutions over property rules.

Cut: How to Succeed in Business Without Really Trying

Mike at Crime & Federalism had some tips about what not to write on a Bar Exam essay and what not to say in an interview at the prosecutor’s office.

Yale Law School graduate and Information Society Project fellow Katherine McDaniel created The Clerkship Notification Blog as a “forum for law clerk applicants to share information regarding their clerkship applications.”

Tung Yin at PrawfsBlawg wrote about what makes for an effective letter of recommendation for a judicial clerkship.

Ian Best at 3L Epiphany offered a roundup of law advice to second year law students. Hanno Kaiser of Law & Society Blog offered advice to LLM students. So there’s a lot of advice out there for 1Ls and 2Ls — and even LLM students — but what about 3Ls? 3Ls need some tips for what to do in the few minutes when they’re not slacking off.

Color: Fun Oddities From Around the Blawgosphere

In the law and popular culture category, Blackprofs had a post on the politics of race in the new season of Survivor (Survivor does not come off well), and Larry Ribstein opined about corporations and the movies.

Evan Schaeffer at Evan Schaeffer’s Legal Underground has a post listing Nobel Prize winners in literature who studied or practiced law. Sadly, we hadn’t heard of most of these writers. And we didn’t realize that Gabriel Garcia Marquez (the writer on the list we’re most familiar with) studied law before becoming a journalist. Many of those on the list never completed their legal studies. Who was the first – and thus far only – law professor to win the Nobel Prize in literature? Theodor Mommsen, a law professor at the University of Leipzig who won in 1902. And today, it seems, writing a novel is the “in” thing for law professors to do – Paul Goldstein, Kim Roosevelt, Stephen Carter, and Jed Rubenfeld have recently written novels.

Slashdot published a question-and-answer session with recording industry opponents Ty Rogers and Ray Beckerman, the attorneys who maintain the Recording Industry v. The People blog.

Paul Horwitz (Prawfs) wondered who is the coolest professor in the legal academy in American today. Hint: it’s not him, it’s someone who likes lyrics. Hey, we can play that game too: “Everybody hurts . . .”

Finally, TaxProf, Paul Caron had a great post pulling together coverage of 9-11.

Blawg Review has information about next week’s host, and instructions how to get your blawg posts reviewed in upcoming issues.

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Life in Philly

I’ve previously noted that Philadelphia politics are fun to watch. From a distance, the chaos may even look like democracy in action.

In a recent dispute, a local write-in-candidate for state representative office, who happened to be the dominant party’s favorite son, challenged his May loss to the only candiate who was on the official party line. He won in court, after a judge found that voters writing in the wrong place deserved to have their votes counted, even if (apparently) they got to vote twice as a result.

Two reactions to nuggests from the article about this bitter teacup tempest:

First,“[the write in candidate] . . . was the beneficiary of an extraordinary write-in campaign on his behalf, with stamps and ink pads and training sessions for poll workers.” Stamp and ink pads, I sort of get. But training for poll-workers? Doesn’t that sound fishy, even for Philly?

Second, the court “dated his ruling Thursday, a ittle more than two months after a one-day trial on the issue . . .” I’m sure that it is tough to be a judge on a busy state trial court. But it strikes me that this dispute isn’t, you know, another Bush v. Gore. I doubt that Rick Hasen was waiting by his fax machine when it came out. (Although between the time I wrote this post and the time I put it up, Rick did talk about the decision on his blog, which shows me!) Doesn’t two months seems like a pretty long time to hold up a decision that upsets the status quo?

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To upload or not to upload, that is the question…

ssrn.jpgAfter a couple of months as a law professor, I now have a few manuscripts for articles that I am working on. One of my manuscripts is more or less “finished.” There are few footnotes that say things like “cite to UCC incorporation literature” but you can read the piece from beginning to end. It has a complete argument. So now I am in the circulating phase, finding people who can give me criticisms and suggestions for revision going forward. Which leads to my question: Should I fill in the gaps in the footnotes and post this piece to SSRN? There are advantages and disadvantages.

On the positive side of the ledger, posting now will make it easier to distribute the manuscript among various commenters as I can send them to an SSRN page rather than clogging their in boxes with an attachment. Furthermore, to the extent that posting it on SSRN makes the work generally visible, it might attract the attention of someone that I don’t know but who is interested in the field and might give me useful feedback. Finally, from a purely cynical point of view, early posting allows me to boost my download numbers by having reviewers of my early draft access the paper via SSRN.

Then there are the negative sides of the ledger. As it now stands, my manuscript is hardly an embarrassment (I think that I make some good points), but I fully expect to revise it before submitting it to publication. I’ve no doubt that there are problems that I have not seen, and regardless I ought to be able to tighten up and deepen the argument in the face of criticisms offered on the early draft. In other words, should I post an early version of a manuscript that I hope will be improved in later drafts. SSRN is not the same thing as publication, but a paper on SSRN nevertheless becomes part of your public oeuvre. Do you want an early draft to be part of that? Then there is the issue of law review placement. Should one ever post on SSRN prior to submitting to law reviews? Will pre-publication downloads of an early draft impress future articles committees (“Hmm. There seems to be interest in this piece…”) or turn them off (“Hmm. It’s already up on SSRN; nothing new here…”)?

Any thoughts or suggestions?

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Politicians Try to Make Lemonade

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The traditional economic analysis of law analyzes the market for lemons by assuming that folks will try to signal honesty through warranties or other contractual mechanisms, but may fail. A political case in point:

A number of Nigerian politicians have been conned out of thousands of dollars by people selling papers purporting to certify them as “corruption-free”.

The scam follows a warning by Nigeria’s anti-graft agency EFCC that anyone guilty of corruption would be banned from contesting next year’s elections.

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Gmail’s Stunned Silence About Child Molestation

After reading Belle Lettre’s interesting critique of Gmail’s email advertising, I decided to do a little IRB-unauthorized research on my own email collection. I figured I’d look at recent messages sent to my Gmail account and see what curious ads popped up. But I found something even more intriguing. A whole category of emails met with silence. Gmail either couldn’t, or perhaps wouldn’t, match me with a single advertiser for this group of missives.

Regular readers may have noticed my recent post on the subject of child porn and sex offender notification laws. Some might say I’m “a child porn apologist“, but I prefer to see myself less dramatically as a skeptical crim law commentator. In any case, the post generated some active discussion in the comments. I receive an email (to my Gmail account) notifying me each time a comment has been added to one of my posts, and these notices include the full text of the comments. It turns out, that – unlike pretty much every other piece of email I’ve received recently – each of the emails containing comments to this child pornography/sexuality post came with absolutely no ads running along the side.

I am quite certain that there are advertisers who’d love to approach someone emailing about child pornography and the like. Some are obvious problem advertisiers – child porn distributors. But what about religious groups trying to reach out to addicts? And what about anti-molestation advocates who do their fundraising on the web? I discovered both of the prior links as advertising to Google searches like “stop molestation” and “fight pornography addiction.” These groups do advertise with Google. Perhaps our exact terms weren’t enticing to these advertisers. Or perhaps the Gmail advertising algorithm exludes advertising based on these terms. Personally, I was hoping for one of those quirky connection ads – like when I got a comment on my Judge Luttig resignation post that said “Was Luttig the jurist using his position on the Circuit Judicial Council to cover up a felony conspiracy of a District Court judge?” And Gmail reponded with an ad for the myspace page of Gil “The Crab.”

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Law Review Best IP Practices

logo.gifSome time ago, Professor Larry Lessig posted this attack on the Minnesota Law Review’s then-extant copyright agreement. After bemoaning the practice of journals imposing severe restrictions on academic use, he threw down a gauntlet:

I will not agree to publish in any academic journal that does not permit me the freedoms of at least a Creative Commons Attribution-Noncommercial license.

While some speculated about Lessig’s motives, it is my sense that his blog post contributed to a movement. Many journals, including the MLR, have changed their copyright agreements in the past year. As Info/Law recently pointed out,

The journals can always say no, but we have found in research for the Berkman Center’s “Digital Learning” white paper that many journals are willing to allow for some forms of open distribution if an author pushes them just a little. Science Commons has found the same, and notes that “We are aware of no instance in which a publisher has refused to publish an article where the author sought to retain some non-exclusive rights to the article.”

As Solove pointed out here in July, there is a new trend afoot : authors demanding that reviews give up their copyright altogether. I don’t think this is the same as the open-access movement, but instead (possibly) a push by authors to retain exclusive rights so that they can take advantage of new methods of distributing legal scholarship.

Assuming that you are the editor-in-chief of a law journal, what is the current best practice with respect to your license, and why? ( Looking at Froomkin’s wiki on copyright practices, I don’t have a sense that a market standard has emerged.) Further, should licenses be negotiable? Although negotiability is generally desirable, it obviously permits high-profile authors to eat even more of the pie.

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Law School Admissions Standards As Law

Harvard’s decision to end its early admission program was the big story early week. As President Bok explained, the university worried about the social consequences of its admissions process:

“Students from more sophisticated backgrounds and affluent high schools often apply early to increase their chances of admission, while minority students and students from rural areas, other countries, and high schools with fewer resources miss out . . . . Others who apply early and gain admission to the college of their choice have less reason to work hard at their studies during their final year of high school.”

Harvard’s decision got me to thinking about the relationship between admissions standards at high-prestige universities and legal rules.

Both legal rules and admissions standards are conduct shaping regulations. When you set admissions standards to select for trait behavior X, the prevalence of X in the applicant universe will increase. Such an increase will not be uniform, for the reasons that Bok gives, and there will be further distortions depending on individual (or mass) psychology. But there are reasons to believe that law school admissions address a particularly sophisticated and resource-rich audience, who are well suited to governance. Thus, law school admissions are ripe for evaluation as a form of law itself.

I thought about this after talking with a friend last night who told me about business schools’ strong emphasis on community service as a part of the application of a well-rounded applicant. This probably creates a class of business school students who are more likely to be civic-minded after graduation. But it also (and more simply) results in a great deal of public service by pre-MBA types in the world. The question is: why don’t law schools use the application process to improve the world too?

You might object: “this is paternalistic social engineering.” Yes, yes it is. But law schools, like HLS, already require onerous mandatory pro bono commitments during school. The problem with such programs is that the incentives are all wrong – toward clock management instead of results. But if you made pro bono service an important part of the admissions decision, and suggested that particularly effective public service would be highly weighted, then you’d set folks incentives well to achieve good. Elite schools might collude to create a list of potential law-related public work that candidates would be “well-advised” to perform in order to increase their chances of admission: volunteering for a public interest firm or tax law clinic; working for the PD or DA as a part-time investigator; assisting social security ALJs as a paralegal, etc.

To be clear, I don’t mean to say that admissions committees aren’t already considering public service. Surely, they are. But they aren’t communicating the idea that public service counts in a meaningful way. Check out HLS’ admissions FAQ, and note the silence on this point. The silence is shared by other top schools. The point is that law faculties (at least those I’ve seen) have traditionally seen the admissions committee as wearing a judicial, rather than legislative, hat. As a result, faculty might tend to think of admissions as a necessary chore accomplished by the folks who run the operations side of the school, instead of an extension of the pedagogical mission. [Update: Even the affirmative action debate, which is a policy choice effectuated through admissions, isn’t intended to shape the conduct of pre-law students.] Perhaps its time to rethink that model.

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Welcome to the Blogosphere: Consumer Law & Policy Blog

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There’s a new blog on the block, and it looks really interesting. The blog is Consumer Law & Policy Blog, and it features several law professors (along with others): Jeff Sovern (St. John’s); Chris Peterson (Florida); Orly Lobel (San Diego); Richard Alderman (Houston)

From the introductory post

The content of postings will be left up to the individual contributors, but we expect the blog will include analysis of the latest judicial decisions, commentary on current research and scholarship in consumer law, and discussion of a wide range of topics, such as consumer class actions, mandatory binding arbitration, predatory lending, debt collection, identity theft, and the relative value of public versus private enforcement, to name just a few. We also hope to invite additional guest contributors and stimulate debate and discussion among readers.

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Racial Politics and Eminent Domain in Brooklyn

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Two hotly contested issues — the role of race in political representation and the use of eminent domain for economic development — collided in the contest for the 11th Congressional District in Brooklyn yesterday. The 11th has been represented by an African American since Shirley Chisolm first won in 1968. The Congressional race began to receive national attention when David Yassky, a white city councilman, moved into the district to seek the seat vacated by Major Owens against three black challengers, Carl Andrews, Yvette Clarke, and Chris Owens (Major’s son) . The District is also home to the City’s controversial plan to use eminent domain to support the Forest City Ratner development in Atlantic Yards, which will include an arena designed by Gehry and 6,800 units of housing. Yassky and Clarke both supported the Atlantic Yards development — with some criticisms of scope, while Owens vocally opposed it.

Yvette Clarke won the seat with 31% of the vote to Yassky’s 26%. Andrews won 23% and Owens trailed behind with 20%. What is the message to draw from Clarke’s victory? What role did race or gender play? How significant was her support for Atlantic Yards?

Read More

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Tracking Federal Clerkship Hiring

Katherine McDaniel, a recent Yale Law grad, has set up an interesting blog – the Clerkship Notification Blog – that seeks to track the hiring of judicial law clerks. She breaks courts out by circuit and districts (by state, at least), allowing for commenters to share the inside hiring dope on a daily basis. Much of the good info thus far seemed to come in the run-up to the official hiring schedule. A number of judges abandoned the national program and hired on their own time. Commenters to the CNB helped students track which judges were no longer in play. The tougher challenge, it seems to me, will be the next two weeks. Clerkship applicants seeking to make strategic decisions – both with respect to scheduling and acceptances – need to know which judges have already hired. And applicants need that data on a very up-to-date basis. I’ll be curious to see whether commenters provide that info. If they do, strike a small blow for transparency…and empowerment of applicants who don’t come from the Top 3.

Bravo to Katherine for trying.

Hat tip: Orin Kerr