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Straw Men In Advertising

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I recently noticed that Rite Aid’s prescription bag sports the following headline: “One in two women dies from heart disease. One drugstore is taking a stand.” What is Rite Aid suggesting? Have CVS, Walgreens and Osco gone soft on heart disease? Do they condone the illness? It reminds me a bit of Outback’s flummoxing motto: “No Rules, Just Right.” Just what are the regulatory structures handcuffing the eager steak lover? What does a fellow have to do to get a Porterhouse over at Ruth’s Chris?

I’m waiting to see what straw men will be identified next. Will Southwest Airlines boast that their cargo holds are mold-free? Will we learn that Crest does not cause teeth to turn indigo? It’s time to have a talk with the marketing folks here at Alabama Law. I’m going to suggest that we stand up against irrational jury verdicts. Take that, Harvard!

4

Law Clerk Disqualification

There has been some to-do about this story concerning one of Justice Alito’s soon-to-be clerks. In brief, the article quotes some academics who have a problem with the selection of Mr. Ciongoli, who is a former clerk of then-Judge Alito and a former aid to then-Attorney General Ashcroft. The article reports that Ciongoli had a hand in creating “the Bush administration’s legal strategy after the Sept. 11, 2001 attacks.” As a result, some academics (Deborah Rhode is cited) question whether it is proper to have clerks who are perceived as “partisan” or who may be able to influence the way “his own work” is judged by the Court.

Stephen Gillers is quoted as saying that Ciongoli will likely be removed from working on cases that touch on his prior experience, as a way of mitigating the latter fear. I suspect that is in fact what will occur, but I don’t know that it should, or that if Alito were to ask for Ciongoli’s opinion he would be doing anything the least bit wrong. Is it unethical, for example, for a judge to ask for a clerk’s opinion on a case that was decided the prior year by the court on which the clerk was then working? Obviously the current practice (though not always the historical one) is for judges to recuse when they have participated on a case. (There have been many examples of Supreme Court Justices participating in cases interpreting laws they had a hand in drafting or implementing before assuming the Bench.) But isn’t the situation different when the only prior involvement is that of a clerk, and the judge would be able to evaluate his advice with a grain of salt?

I know of no statutory restrictions on the ability of clerks to participate in cases because of their prior experience. There is the danger of undue influence, but I think it is minimal, since (1) clerks see it as their job to advise their judges and not to deceive them or push for policy results, (2) judges retain the final decision, and (3) the chance that a judge’s opinion will be significantly different from his clerk’s is very small, at least as to an issue for which the clerk has developed a reputation.

I can see a large upside to allowing these clerks to participate in cases with which they are familiar. First, it eliminates a large amount of time that would be spent in gaining background information. Second, it is an inestimable advantage to have a clerk who has substantive experience in the field implicated by a particular case. Decisions are more likely to be correct and anticipate potential unintended consequences if the judge has the advice of someone who knows the field. Third, the prior experience is likely to alert the clerk to potential counter-arguments, so the involvement of the clerk may be as likely to fully inform the judge as to bias his understanding of the case.

All this is different, of course, from the situation where a clerk participates in a decision that may have an effect on the clerk’s future employment, for example if the clerk’s future firm is representing a party in the Court. If anything the problem is more severe in that circumstance, but there (to my knowledge) the involvement of the clerk is left completely within the judge’s discretion.

4

Take Your Case to the Supreme Court and Get a Website

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So you’re one of the lucky few, whose case has made it to the U.S. Supreme Court. Indeed, your odds of getting your case to the Supreme Court are no better than winning Powerball these days. Your next step: create a website. You can parlay your luck at getting chosen by the Supreme Court and become a legal celebrity.

Over at the VC, Orin Kerr is collecting information about the websites of litigants in famous cases.

Here’s Dudley Hiibel’s website. Hiibel was the center of attention in Hiibel v. Sixth Judicial District Court, 124 S. Ct. 2451 (2004), where the Supreme Court upheld a statute requiring people to identify themselves during a stop. You can check out pictures of Hiibel and his attorneys. And you can even watch a video of the stop that gave rise to his case.

Here’s Danny Kyllo’s website. Kyllo was the defendant in Kyllo v. United States, 533 U.S. 27 (2001), where the Supreme Court held that the police needed a search warrant in order to use a thermal sensor device to detect heat patterns in people’s homes. At the website, you can see pictures of Danny Kyllo’s house. You can even buy Kyllo’s “just say no to thermal imaging” T-shirt.

Go to Orin’s post and check out the comments for more websites.

[The picture above on left is Hiibel and the one on the right is Kyllo.]

4

Execution By Overdose

California is set to exceute Michael Morales tonight via a lethal overdose of barbiturates. This is hardly the glamorous end that most state legislatures have designed for convicted murderers. In years past, societies used corporal punishment – beatings, whippings, and the like – in response to crime. With the exception of the death penalty, American society has abandoned physical punishment, trading it in for incarceration. In the last century, we’ve struggled to figure out how to square the act of killing with this rejection of corporal punishment. We’ve often veered toward technological solutions, presumably because they appear less brutal – less like the destruction of a human body. Unfortunately, gas chambers echoed the tactics of Nazi Germany. Electric chairs just didn’t work that well and the explicit pain accompanying death gave lie to our claim that we no longer punish the body. Finally, we moved to lethal injection which fit in with the modern scientific obsession of the age: medicine. Lethal injection looked very advanced, using a three step process of anesthetic, paralytic agent, and heart stopper. It was supposed to be painless, closer to shutting down a machine than killing a person. In practice, however, this sophisticated medical treatment plan was not quite so antisceptic. Like all medicine, sometimes it worked poorly. Sometimes people regained consciousness in the middle of the process and suffered.

Last night, Morales was supposed to be executed by lethal injection. Judge Jeremy Fogel, concerned about the potential cruelty of this approach, required that the state have an anesthesiologist on hand to insure that Morales never regained consciousness. The appointed physicians rebelled, however, and would not assist in the execution. So California has chosen to overdose Morales on barbiturates. There is something very mundane about execution by overdose, in part perhaps because it is so simple that a person could do it himself. And indeed they do, every day. Society has grand hopes for the death penalty. We hope it will dramatically decrease murder rates. We think that it will provide a just response to a horrible crime. We feel it will make the victims, and indeed society at large, whole again. Compared to these grand designs, death by overdose seems very sad and small. Notwithstanding the national drama, Morales will die just like hundreds of other addicts around the country. I hope it gives the victim’s family some peace.

1

The Career Consequences of a Notorious Reputation

The Wall Street Journal today had an article about the now famous email exchange I blogged about a few days ago where Dianna Abdala, a recent law school graduate turned down a job offer from an attorney, William Korman. The article discusses the fact that in some circumstances, people who are getting notorious reputations for being particularly rude or inappropriate aren’t suffering any career damage:

We all know what happens when someone commits a particularly embarrassing gaffe in a private email conversation: The message gets forwarded, with each recipient instructing the next to “read from the bottom up.” Indeed, this testy exchange skipped off servers as far away as China with a subject line attesting to its journey: “Subject: Fwd: FW: FW: Lawyers Behaving Badly.” People also added comments, such as “Great lesson here… on email and how to ruin your career.”

But not so fast. Certainly one could turn this into cautionary tale No. 1,346 about what not to commit to private email. But if you haven’t learned that lesson yet, you haven’t been paying attention — or, more likely, you don’t care that much. “I’m more worried about whether I’ve left my hair iron on than this little email exchange,” [the law school graduate] told me over the phone.

These days, résumé building can be less about preserving a reputation than about acquiring one in the first place. Just ask Omarosa Manigault-Stallworth, the “Apprentice” contestant who famously said, “I’m going to crush my competition, and I’m going to enjoy doing it.” She has parlayed her backstabbing into a television career and speaking engagements. “Who knew that being soo bad could be soo good$$!!,” the show’s Web site quotes her as saying.

“I wouldn’t jump to the conclusion that this kind of behavior is naturally rewarded,” cautions Paul Argenti, professor of corporate communication at Dartmouth’s Tuck School of Business. “But it does lead to success in some realms.” And those realms can include the legal profession, sales teams, trading floors, entrepreneurial endeavors — in other words, the corners of the business world where unmitigated gall can be more marketable than galling. “This could be great for [her] career if you think about it,” he says.

Is having one’s “unmitigated gall” displayed for the world to see a good thing? I sure hope not. While I certainly don’t like to see people live life with a scarlet letter, I don’t think they ought to be rewarded for being rude.

Of course, not all notorious reputations should be viewed as problematic. In my blog post, I mentioned perhaps the most famous email from the legal world to circulate throughout cyberspace — that of the Skadden Arps summer associate. He wrote:

Read More

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Law Review Article Submissions Outside the “Windows”

window3a.jpgFor law professors submitting law review articles, it has become common knowledge that there are two good times to submit — in late February/early March when new law review editors are selected (the “March window”) or in late August when law review editors return from their summer vacation (the “August window”). There has been a lot of discussion about when, precisely, the sweetest spot in a particular window is, but I want to raise a different question in this post. What are the merits of submitting pieces outside of the two windows?

I assume that submitting a piece in the mid-to-late fall wouldn’t be wise, as most journals are nearly full. On the other hand, suppose a top journal has been particularly picky and is left with an open slot or two. Submissions have largely dried up, and then your piece comes in. The editors might think: “Well, it ain’t great, but we’re not likely to get anything much better at this late juncture, and we need to fill the space, so . . . .” If this is true, then submissions beyond the fall window are a risky gamble, but they could pay off big.

What about submissions during the summer? Suppose one were to send in a piece in late April, or May, or (gasp!) even June or July? What would happen? I wonder about this. The optimist thinks: “This is an ideal time. The journal editors are no longer inundated with millions of submissions, so they can take a bit more time to read the piece. They have already seen a bunch of submissions, so their expectations are more realistic (i.e. they expect lower quality). Therefore, it’s a good thing to submit when it isn’t rush hour for submissions.” The pessimist thinks: “This is a terrible time. The editors will be busy with summer jobs and will not want to bother discussing pieces during the summer. Therefore, they will be less likely to suggest a piece for a full committee read during this time.” Who is right, the pessimist or the optimist? Is it better to submit during a window or at another time? Does it matter? And is one window better than the other?

Answers from law review editors will be especially appreciated.

5

Qualitative Empirical Legal Research

A big welcome to the blogosphere for the new Empirical Legal Research Blog. I applaud the empirical move because I think this sort of research adds substantial value to the understanding of how law functions both internally and within society. As I’ve suggested in a comment over there, however, I do think that many people in the legal academy have come to conflate the idea of empirical work with quantitative work. As people in coordinate social science disciplines well know (because they, unlike most vanilla JD’s, have had formal methodological training), the concept of empirical work includes both quantitative and qualitative work. This is not to say that the quantitative and qualitative camps are always so cozy. Number crunchers sometimes think qualitative work is too squishy or subjective. The qualitative folks sometimes think that the use of numbers creates a false aura of objectivity. But many serious empirical scholars – particularly those trained in recent years – understand that both types of work are necessary to further the grand project of increasing human knowledge. I hope the folks over the new blog take qualitative work seriously. I suspect that in the next few years we’ll see qualitative researchers gain a stronger footing within the legal academy. At least I hope so.

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Light Blogging This Week

I’ll be blogging lightly this week, if at all, as I work to finish two projects with near term deadlines. A litte more near term, perhaps, now that I’ve read Christine’s window post.

In the meantime, our readers may be interested to read this new Linda Beale post on Prawfs, and subsequent reader comments, that seem to be grappling with the question: “must blog posts be short and collegial to be good?”

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ExpressO and the “March Window”

Thanks to everyone for letting me hang out here for a couple of weeks. I’ve had a great time, but I have to get back to my normally scheduled duties of teaching and blogging at the Glom. This week, I will join the hordes of others who will send out an article for submission. I still call this time of the year the “March Window,” even though others have told me the emprical studies show that the actual window is between February 15 and February 24. So, just as I still “dial” telephone numbers and “turn” the TV channels, I guess I still send out in the March Window.

I will also be in good company sending out my article using ExpressO. I experimented with ExpressO in August, like Dan, and submitted to some schools by mail and some electronically. I am a Word Perfect user, and ExpressO’s services are much more limited if you submit a paper in Word Perfect. For this short article, I used Word so that I could keep my transaction costs of send-out lower. This way, I’ll be able to send out exclusively via ExpressO. I’ve said before that I don’t understand why ExpressO is not based on pdf, like SSRN is. Using pdf seems like an intelligent choice for both senders and receivers; the format protects integrity, and any recipient without Adobe reader can downloand it for free. Oh, well. Probably by next January, when I’m sending out in the August window, the system will have changed!

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More on the Democrats and a Contract with America

Earlier this week, I wrote a blog post arguing that the Democrats should create a Contract with America. In today’s Washington Post, an interesting article explores why the Democrats have no version of Newt Gingrich:

Where is the Democrats’ Gang of Seven? Why isn’t some spirited group of junior House Democrats capturing the public’s imagination and sinking its teeth into the spreading Jack Abramoff mess? And where is the Democratic equivalent of Gingrich?

In Congress, reform often comes from the back bench. Junior members have the least to lose and the shortest — and thus usually the cleanest — records. These unlikely agents of change are often change’s biggest beneficiaries. . . .

And yet, after languishing in the minority for more than a decade, the Democrats’ back bench has yet to produce a Gang of Seven or an insurgent leader such as Gingrich, who inspired dozens of GOP House candidates in 1994. Most of the Democrats elected since the Republicans took over in 1994 simply replaced other Democrats. Moreover, none was really elected on a message of bringing “change” to Congress.