Author: Corey Yung


When is Circuit Agreement Really a Circuit Split?

The Adam Walsh Child Protection and Safety Act (AWA), enacted in 2006, created a new federal crime of “Failure to register.” Section 18 U.S.C. 2250 allows for prosecution of sex offenders who do not register as required by the Sex Offender Registration and Notification Act (SORNA) which is part of the AWA. Importantly, for a prosecution to occur under 18 U.S.C. 2250(a)(2)(B), the government must show that an offender “travels in interstate or foreign commerce, or enters or leaves, or resides in, Indian country.” I have argued that this jurisdictional limitation is inadequate to support Commerce Clause authority for 2250(a) prosecutions. To date, seven district courts have agreed with me on that argument.

So far, only the Seventh, Eighth, Tenth, and Eleventh Circuits have considered defendant arguments related to the Commerce Clause and each has rejected the defendant’s position. As a result of this circuit consistency, the Commerce Clause challenge to SORNA seems like an unlikely candidate for a certiorari grant by the U.S. Supreme Court. There are, however, important inconsistencies among the opinions due, in part, to the mess the Court has created in the aftermath of Gonzales v. Raich.

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Hiding Your Scholarship

Before I started my career as a legal academic, I, as I expect a lot of new professors do, went to the AALS New Law Teachers Workshop. I definitely recommend going there as I learned a lot from more experienced academics. Some of what I learned seemed trivial, but was very important (i.e., how much reading you should assign per class). Other advice has really made me a better scholar (i.e, when you are angry or riled up about something, start writing). There was one piece of advice, however, that left me a little baffled.

One of the leaders of my subject-specific breakout sessions cautioned us new academics against ever sharing drafts of scholarship with any members of the senior faculty at our respective schools. This meant that we shouldn’t ever show written drafts to tenured professors and we definitely should not present works-in-progress to faculty. The chief reasons for the warning were that only bad things could emerge from faculty seeing your work before it was in a polished state. Primarily, your fellow faculty would form an image in their minds based upon the flaws in early editions of your work and that impression would not dissipate upon completion of your writing. I was flabbergasted by the advice. As someone who had published a couple of things before being hired, one of the things I was most looking forward to was having senior people actually read my work. As a practitioner, it had been almost impossible to get anyone to seriously scrutinize my writing.

So, when I heard this cautionary advice, it went against my strong intuitions about academia. I have to admit that so far I have completely ignored it. Last week, I just gave my second works-in-progress presentation which was open to the entire faculty at my school. That presentation concerned an early-stage empirical project that represents a new direction in my scholarship. Because it was based upon early data and was in an area which is outside of my normal area of expertise, the dangers should have been highest. However, as has been the case with all of my interactions with my faculty, I found the response to be incredibly supportive and helpful. Afterward, I scheduled yet another presentation for later this semester on another article that is still in progress.

Now that academics often post very early works on SSRN, the fears of my section leader seem even more strange to me. Am I missing something? Or are some law school environments more dangerous for junior scholars? Should this note of caution continue to be propagated or is it a relic of a different era?


Niche Blogging

I want to thank Dan and the rest of the Concurring Opinions bloggers for having me. I figured I would start by posting about something close to home for me.

Doug Berman, at Sentencing Law & Policy, recently called for more people in the criminal justice world to take up blogging. Specifically, he explained that issue-focused, niche blogs serve the valuable function of expanding the debate about important topics. I have been a blogger for over two years in a very tiny niche: sex crimes. There are definitely positives and negatives to being a single-topic blogger.

For me, the negatives have not been too pronounced, but they do come up from time to time. A niche blog audience tends to be narrower and there are less regular readers. Instead, narrow-focus blogs are consulted more often when a hot topic intersects with the blog’s subject matter. Rick Hasen’s Election Law Blog is a good example of that trend as his traffic patterns substantially change during election season. That means that the niche blogger has to a lot more work during the off-peak times to draw attention to the blog. I am not one who revels in promoting my blog so that has been the toughest thing for me. The other significant negative is there are times when I see a post around the web unrelated to sex crimes to which I really want to respond, but I cannot justify it on my blog.

The positives have, so far, outweighed the negatives for me. Most importantly, the people who read my blog, regularly or irregularly, tend have much higher interest levels about the topics on which I blog. I would guess, for that reason, I get a much higher volume of email from blog readers than I would on a general topic blog. That has allowed me to get to know a lot of people with different perspectives about sex crime laws. Since that has been the primary focus of my scholarship, the reader feedback has served me well in enhancing my scholarly work. I also think there is tremendous value in the disciplinary nature of niche blogging. My blog forces me to read and think about the issues which interest me on a daily basis. While I think there are times when every blogger wonders if blogging is trading off with more productive activity, I think the net effect for me has been to increase my overall work rate.

So, I would extend Berman’s call for more single-issue bloggers beyond the criminal justice area. While I enjoy a lot of group and general interest blogs, there is an important place in the legal blogosphere for niche blogs.

Cross-posted at Sex Crimes.