Does Scholarly Writing Have to Be Tedious?

book5a.jpgOver at the new and very engaging blog, LawCulture, Rosa Brooks writes:

As a junior professor, I dutifully churned out law review articles to fill my tenure file. Some of those articles, I think, may even have contained a few good ideas and a few good lines, but all of them suffered, to one degree or another, from the contraints of the genre. Worse yet, I’m fairly sure that practically no one outside my tenure committee and my mother has actually read the damn things (and I have my doubts about my mom). Not that this makes me unusual: the vast majority of law review articles are read by few people, and cited by even fewer. So… what’s it all for?

Now, since I’m devoutly hoping my colleagues won’t actually revoke that tenure vote, I’m awfully tempted to echo Rodell and say goodbye to law reviews. From now on: books, absolutely. Magazine and newspaper articles? Sure. Blogs? We’re trying. Even, perhaps, the occasional law review symposium piece or essay, since those are fairly harmless. But as for those ponderous, still-much-too-long, ludicrously over-footnoted things we call Articles, with that portentously capitalized “A”? No, no, no.

No more going through perfectly good prose and inserting pointless qualifiers and parentheticals; no more searching for vaguely on point articles and cases to fill out footnotes; no more going through the ludicrous and humiliation rituals of submitting pieces to law reviews then playing the expedited review/trading up game.

Over at PrawfsBlawg, Paul Horwitz responds by observing:

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Drug Package Insert Regulations


The Times this morning offers this revealing story about the FDA’s new drug package insert regulations.

There is lots here for the legal blawgosphere to chew on. Administrative law profs will be interested in claims about the pre-emptive effect of the regulation’s preamble. Behavioral researchers will like the discussion of information overload. And, needless to say, food law folks will wonder if they are next.

But I’m interested in a detour around halfway through the story, where the author notes (and I’m going to take his word for it) that:

But the rule does not address the information sheets routinely provided to patients by pharmacists. These sheets are lightly regulated and often fail to include important drug warnings.

Here’s my (perhaps silly) question. What economic explanation is there for the “fail[ure] to include important drug warnings”? Even if consumers don’t want this information,* why don’t drug companies want to marginally reduce their liability costs? Perhaps they are more interested in making “extra” profits on off-label use (which could be deterred by pharmacy information sheets) than they are concerned about reducing accident costs (which might be relatively fixed). But perhaps I haven’t thought about this hard enough. Does anyone else have an idea?

* I’m skeptical, that that is a topic for another post.


Website Hacking Blackmail

A while back, I wrote about the Million Dollar Homepage, where Alex Tew, a student, created the idea of selling a million pixels on a website to advertisers for $1 each. His plan was successful, and he recently reached his goal of raising a million dollars in just a few months.


But the story attracted some unsavory criminals bent on ruining Tew’s enterprise. From the BBC:

But the publicity brought the unwanted attention of extortionists who knocked the site over with a massive denial-of-service attack.

Following a week of downtime, the website is now back online.

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Double Jeopardy?

Perhaps Dan or Dan can help out a non-crimlaw guy here, because this just doesn’t make any sense to me. From CNN:

Lane insisted he was innocent for another decade and when he finally confessed to Salt Lake City police a few months ago, there was nothing the justice system could do. He had been tried and acquitted and under the “double jeopardy” provision of the U.S. Constitution could not be tried again.

So, not only did Watts find her baby murdered, not only did she stand by the man she later found out killed him, but now she also has to live knowing that he will never pay for his crime.

Is that really true? It sounds like the plot out of an Ashley Judd movie.

I’m at a bit of disavantage here — when I was a law student, my criminal law class covered very little black-letter criminal law. (We did spend a lot of time on ever-more complex self-defense hypotheticals, however). But I think I remember reading somewhere that new evidence of this sort can create some kind of exception to double jeopardy. (In this case, he lied at his first trial, but later confessed to the killing after he had been acquitted).

Is there any relevant exception to double jeopardy? To use another example: If 30 seconds post-verdict, O.J. had jumped over to a camera and yelled “haha, I did it, can’t bust me now!” — would we really be stuck with the verdict?


Guilty as charged . . . see you at church (Part II)

From the Associated Press:

Racist Man Sentenced To Attend Black Church

A judge has sentenced a suburban Cincinnati man to attend services for six weeks at a black church for threatening to punch a black cab driver and using racial slurs.

Last year, I blogged on Prawfsblawg about a case where a judge sentenced substance abusers to church time. Much of what I wrote then applies now as well:

In general, I think that sentences to church time raise some serious red flags, and present quite a bit of potential for abuse. But I’m wondering about scenarios in which there is a good reason to offer alternative church sentences. Say that you’re a judge in a small town in Kentucky or Alabama or West Virginia, and you’ve got a batch of DUI’s and drug-possession cases. Your town doesn’t have a strong network of social service agencies, but it does have a strong local church which runs a highly regarded, historically effective 12-step program for addicts and alcoholics.

Is it wrong to offer some of these convicts the option of going to the local church 12-step program instead of jail time? On the broader level, what should the judge do in cases where it looks like there is a genuine rehabilitation benefit to be gained from channeling some convicted people to a religious organization that has an effective social network that will help them overcome their problems? Is the judge’s only option “sorry, I’ve got to send you all to the slammer”? On the one hand, there are fairness issues for prisoners who do not wish to attend church services. On the other hand, there could be a real loss in rehabilitation for prisoners who would be willing to work with the social programs operated by a church.

In this case, the judge may honestly believe that special benefits can be achieved by sending the offender to a Black church. The question that I would ask is whether similar benefits could be achieved through less potentially problematic avenues. Why not send the fellow to the local NAACP office?


What’s in a name?

From the Chicago Sun-Times (link via my friend Fook King Steve):

Fuk King Kwok was waiting for his driver’s license to be printed when his name was called and a chuckling Illinois secretary of state employee offered some advice.

“She [said] this is a dangerous name,” the Chinese immigrant recalled. “She [said] the name translated is not so good, maybe I should change [it]. The word I hear is not so good.”

Mr. Kwok successfully changed his name to Andy. One wonders what hurdles he would have faced had he continued to go through life as Fuk King. Would he have been denied employment due to his name? (Can you imagine that name tag on your restaurant waiter?) Prosecuted for obscenity when he filled out a credit card application? Or would the fallout have been limited to snickers behind his back and inexplicable troubles finding a Friday night date?

I guess we’ll never find out. Welcome to a slightly more normal life, Andy.


The Best Thing About Being a Law Professor

Certainly there are more than a few great potential responses, most of which we have rehearsed anticipating the meat market question, “So why do you want to teach?” The fantastic schedule, the opportunity to introduce law students to the excitement of law study and the legal profession, and the chance to explore one’s area of scholarly interest in depth and, perhaps, influence public debate are all important factors making this a terrific job.

For me, however, the best aspect of law teaching has been a more general one: Being in legal academia gives me the opportunity to learn simply out of interest in the subject. This occupation gives me the opportunity to develop courses relating to my academic interests, and the freedom to pursue those interests without worrying about billable hours, even if they never materialize into scholarly production or courses. This opportunity to learn means that the intellectually curious professor can avoid the tedium that affects so many others, resulting in low job satisfaction (or so I hope).

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Hail to the (New) Chief: Death With Dignity-Part III


So, what might be gleaned from the New Chief’s silent joining of Justice Scalia’s dissenting opinion in Gonzalez v. Oregon? First, as to be expected (at least for now), he is influenced more by his experiences as a former executive branch lawyer and member of the political elite than he is by any popular backlash against the unitary executive model.

Second, national interests trump state interests–even where there is ambiguity in the federal statute. His own questions at oral argument, particularly his concern for the uniformity and supremacy of federal law, suggested this outcome. Federalism is messy, and it appears he is unwilling to countenance too much muss. He, like Scalia, is willing to read Congress’ enumerated powers broadly (and the core of state’s rights narrowly in advance of national interests)–even when the strongest interest appears to be in cultivating moral standards. This is bad news for proponents of interstitial federalism.

Third, his willingness to sign Scalia’s dissent in toto–and thereby subjugate his own ego in a high-profile matter–shows that he is as savvy as his confirmation hearings suggested. The practice of writing separately has almost become a custom with the Rehnquist Court. He is willing to buck this trend, to allow Scalia to speak for this coalition on this day with a single voice, and to build his alliances carefully–starting with his natural friends.

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Law School Recruiting: Location, Location, Location

Law school recruiting season is in full swing. This means, not surprisingly, that our faculty is waiting to hear back from a candidate to whom we’ve extended a job offer. What’s the delay? As is often the case, when you’re recruiting to Tuscaloosa, Alabama, geography can be an significant issue. Many lawyers-turned-aspiring-profs make significant compromises – school quality, package, salary, etc – in order to land in a desirable city. This makes sense, but it is my impression – grounded only in anecdotes – that geography drives the hiring process more in law teaching than in other academic disciplines. Compared to law teaching candidates, aspiring liberal arts profs appear to weigh department quality more heavily, and geography less so.

If I’m right – and I’m curious whether others think I am – why is this so? Two reasons come to mind initially. First, those who attend graduate school for the express purpose of finding an academic job spend more time buying into the education hierarchy and coming to grips with the geographic compromises they are likely to face. Law teaching is often an afterthought for law students and, in any case, they certainly don’t spend three years kvetching about how they’ll have to move to Stillwater once they graduate.

Second, because profs in most fields make less than law profs, perhaps they prefer less popular (read: cheaper) locations. A salary of $35,000 a year gets you a good life in Tuscaloosa. In Boston, it buys a load of ramen.


Big Mac Attack on Clinical Legal Education

Heather MacDonald, a conservative writer, has launched an attack on clinical legal education. An abbreviated form of the screed surfaced in the Wall Street Journal last week, but a more complete version just came out in the City Journal. Basically, MacDonald argues that law school clinics are stuck in the 1960’s, training students to be social activists, pursuing a left wing agenda on just about every issue.

MacDonald’s claims surely excited some conservatives – and why not? What is juicier than proof, proof, of a vast left wing conspiracy. MacDonald announces a couple of big non-news stories: law school faculties are generally liberal, and clinicians are even more so. And yes, it turns out that these progressive clinicians tend to direct their clinics to serving poor people and non-profits rather than, say, landlords and state prisons (her suggestions, not mine.) If MacDonald’s point was simply to argue for more clinics doing conservative work, I wouldn’t have a beef with her. (As a hiring chair, I might have trouble finding business lawyers looking to leave their million dollar practices for jobs on the clinical tenure track, but that’s another matter.)

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