Author: David Zaring


Adieu and Thanks

Its been a pleasure guest-blogging for the past month, and an honor to get to write on a site whose posts I’ve been reading since the beginning. All good things must come to an end, though. Or at least, sort an end: this guest-blogging is apparently addictive! In a week or two, you will find me at the international law blog Opinio Juris, which is the kind of thing you might like, if, as they say, you like that kind of thing. And after that, having hit for the guest-blogger cycle, I will look forward to returning to a consumption-based, rather than provision-based, approach to digital content.


Modeling to the Ignorant

The very brilliant Matthew Stephenson has recently published a positive political theory paper on the choice for Congress between delegation to agencies and delegation to courts. He thinks that a rational Congress will delegate decisions to agencies if it wants to create a regime that will be ideologically consistent across issues but variable over time (he studiously avoids examples, but perhaps agricultural subsidies – which could be changed in the future but in the present Congress wants done in a particular way – are the idea). And that Congress will delegate decisions to courts if it wants temporal consistency but ideological variability (perhaps a regulation requiring the alternating, as opposed to direct, current, or maybe rules that affect long-term government contracts, are cases where Congress would roll the dice on the content of the choice – delegate it to the courts – but hope that whatever choice is made becomes a predictable precedent that future courts follow).

The second part of Stephenson’s paper, though, is, quite literally, Greek to me:


Modeling is upon us. You see it in the Journal of Empirical Legal Studies – though empiricism is conventionally thought to be a form of social science that might be practiced without sophisticated modeling – and now you see it in the Harvard Law Review. Stephenson develops eight such formulas in the formal proof portion of his piece on legislative delegations.

What is the upside of this sort of modeling for lawyers and political scientists? God knows the latter do plenty of it, but there’s an audience cost – I expect that most of the legal scholars sympathetic to positive political theory apply its insights without even being close to being able to model like McNollgasts can. And I’ve been at conferences where law professors assessed models more with fear and trembling than with confidence in the clarity of the modeled insights. I am, after all, semi-like Stephenson, an eager and promising administrative law scholar [ed. – hoo boy. Might be a good time to disable comments.]. But I doubt that Stephenson was writing part II of his paper for my benefit, or if he was, he certainly won’t enjoy my incisive critique of it – I simply skipped it.

So other than noting, gentle reader, that perhaps you ought to try to learn the basics of modeling if you expect to be reading a lot of legal scholarship in the future, I wonder if I might trouble those of you who do enjoy reading modeling pieces to recommend legal scholarship (I guess I’ll leave economists and mathematicians out for now – I’ll assume without deciding that their modeling presents different concerns than does modeling in public law subjects) in which the thesis was inexpressible without the model. I’d also like advice on meta-scholarship – that is, good resources on how to read models. In short, I’d like to hear advice for a inexperienced consumer of formally modeled scholarship. I suspect you’d be doing more of the Co-Op’s readers a service than you might think.


As the Law Blog Prospers, Whither the Law School?

Prawfsblawg is 1 year old today, Concurring Opinions just turned six months old. I’ve guested on both, and I thought that a post honoring my two generous hosts might usefully be combined with what I hope will be the least essential analysis of the US News law school rankings yet.

In the past year, what has happened to the rankings of the schools who have provided the Co-Op and Prawfs with their full-time staff?

Concurring Opinions (GW, TJ, Temple, AL) net +6

Prawfsblawg (FSU, Hastings, MI, SW, ND, Hofstra, Miami) net +4

Let’s not think too hard about the methodology, shall we? Instead correlative congratulations are due to both staffs!


Fiction for Truth About Law Firms

The academics and the message boards can only tell us so much about law firms. Lost illusion is the undisclosed title of every novel, so surely the fictionalists have something to add. But if you’re not up for the latest Turow or Auchinloss, where should you turn? Chick lit has provided us with insight into the cultures of magazines, movie studios, nannies, and bounty hunters – but, though In Her Shoes makes a bow in that direction, I’m unaware of a really good law firm entrant in the genre.

Which brings us to Kermit Roosevelt’s In the Shadow of the Law and Nick Laird’s Utterly Monkey. The former – idealistic young lawyers in a powerful DC firm, and Pacey from Dawson’s Creek is working on the televised adaptation – struck me as quite authentic in the way and style of One L, though you can certainly quibble with the decision to tell the story through fifteen main characters. The latter – fish out of water Irish Proddy tries to survive Magic Circle London firm and his nogoodnik Ulster mates – is, if anything, even more writerly, though I had the same problem with it that I had with Cameron Stracher’s Double Billing, an early entrant in the genre: both match the elegant prose with a kinda grating woe-is-me-the-poor-young-associate schtick.

But these are the quibbles – I raced through the Roosevelt, and I found the Laird (fun fact!: married to Zadie Smith! she’s definitely his better half, tho) quite enjoyable, too. I hope that today’s young lawyers do a bit better in firm life than their fictional counterparts. Maybe they will do so if they find the time to read some novels – as well as plenty of law review articles.


Let Go, Let Google

On this most special of April days, Google has announced its discovery of the e-recipe for true love: Google Romance. How does it work? You create a profile, and then Google datamines it. Reassuringly, it does so “solely by computer algorithm, without human intervention of any kind.” What’s in it for the Goliath of Search? Advertising revenues, of course – but, fear not, “It’s important to all of us on the Google Romance team that the ads you see … be useful and enjoyable, not intrusive and annoying.”

It sounds very personal, but I’m not one to question our ascent to a brave new world. My illustrious host, however, is obsessed with privacy. He may experience Google Romance differently. Dan, is dating, in fact, a search problem?

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The Most Cited Cases in Administrative Law

Some empirical research is more blog-worthy than essay-worthy. Entering citations into Westlaw’s Allfeds database over lunch may be an example.

Others have observed that Chevron v. NRDC may become the most cited case of any kind by federal courts, displacing Erie v. Thompkins. It has garnered 7909 citations, far ahead of the next most cited case in administrative law, NLRB v. Universal Camera Corp. (substantial evidence), with 4801 citations. Following that, it’s a tight race between Matthews v. Eldridge (due process), with 4293 citations, and Citizens to Preserve Overton Park v. Volpe (hard look), with 4227. The scope-of-judicial-review case that has underperformed is MVMA v. State Farm (arbitrary and capricious), with 2276 citations, less than the sort of quaint Goldberg v. Kelly’s (due process) 2377 citations and the narrow-issue-area Abbott Labs v. Gardner’s (ripeness) 2910 citations. Chevron has also stolen a lot of Vermont Yankee v. NRDC’s (rulemaking) glory – it has 1059 citations. But my not-so-dark-horse candidate for the silver medal in the future is Lujan v. Defenders of Wildlife (standing) with 3775 cites. Not too bad for a case from 1992, and I suspect that the government has installed a shift-F4 macro for the case on every one of its attorneys’ computers.


A Conspiracy of Paper-Pushers

Perhaps you have wondered why the money that law school professors pull down is only obvious at certain law schools subject to state cognates of the Freedom of Information Act. Antitrust may be the culprit. Pursuant to a consent decree with the United States resolving a case brought under the Sherman Act, the ABA’s school accreditation committee has, among other things, “agreed to refrain from using law school compensation data and from adopting or enforcing any standards that have the purpose or effect of imposing requirements as to the base salary, stipends, fringe benefits or other compensation paid to law school deans, administrators, faculty, librarians or other employees.”

This consent decree sunsets on June 25, after a ten year run during which a number of new law schools entered the market, and salary data got enshrouded in an aura of mystery. Did the consent decree affect legal education, was it a good thing, and what will happen when it expires?

Antitrust ain’t my raison d’etre. I only wonder – and I confess I only wonder this because of a tip from a colleague – if the law reviews, with their concerted action on article length are going to be the next up against the wall. [ed. Uh, the article length thing isn’t commercial and varies from review to review. Oh really? Each of the eleven law reviews that got the ball rolling on article length signed on to a joint statement, each is “committed to rethinking and modifying its policies,” presumably at the behest of the other ten, and each is “actively exploring how to address” article length in concert with one another. So I recommend against loose talk around Thomas Barnett.]

Anyway, I farmed this one out to an expert. I asked Josh Wright, a prominent and businessey professor blogger, what he thought about the sunset of the ABA accreditation decree, in exchange for an offer to cross-post the result. Here’s what he said:

“The consent decree prohibited activity that was plainly anticompetitive: colluding with respect to faculty salaries and other benefits as well as boycotting non-ABA approved schools. Forcing existing law schools to face competition from schools, even those that offer lower salaries and fewer amenities, can only improve legal education. However, my guess is that the expiration of the decree will not tempt further collusion, because any such attempt would be both highly visible and likely to attract antitrust scrutiny.”

But Josh and I would welcome further thoughts.


We Can All Say We Knew Him When

Todd Kim, my former co-clerk, has just been appointed to be the first ever Solicitor General of the District of Columbia, and he’s part of a notable trend in state SG personnel. Two Jones Day appellate lawyers have left that firm’s schmancy appellate practice to become state SGs, as have a number of other ambitious Washingtonian types eager for Supreme Court arguments. The job offers interesting exit options as well: Greg Coleman left Texas’ post to become a commerical litigator with a Supreme Court practice at Weil Gotshal; Jeffrey Sutton went from being the Ohio SG to being a judge on the Sixth Circuit. So while everyone’s bursting with pride about Todd, we’re all wondering what’s in his future. Will Todd decide to be a judge or a millionaire? It’s something of a catch-22, and so I hope we can all sympathize with him during this no-doubt difficult time.