Category: General Law

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Advice on Legal Book Publishing

Opinion Poll on Behalf of Younger Colleague Ready to Publish First Casebook in First Year Course.

Suppose offers of publication by the following publishers. What’s the order of ranking, assuming all terms are equal?

Aspen, Carolina, or West?

Please feel free either to leave comment or send me an email [lacunningham@law.gwu.edu]

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FAN 128 (First Amendment News) Ten States Buttress High School Students’ Press Rights — Extend Protection Beyond Hazelwood Ruling

The majority opinion written by Justice White . . . announced a new category of speech — “school sponsored” — and a new [and] highly deferential standard for evaluating censorship of that kind of speech. . . . Justice White had originally wanted to go even further in expanding school officials’ authority. A draft opinion he circulated among the Justices would have permitted censorship unless it was “wholly arbitrary . . . .”  –Catherine J. RossLessons in Censorship (2015) 

Many who follow free speech law probably think a student journalist’s rights begin and end with the Court’s ruling in Hazelwood v. Kuhlmeier (1988). In his majority opinion in Hazelwood ( the vote was 5-3), Justice Byron White declared that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Of course, by that judicial norm the power to censor was virtually unlimited.

But that is changing thanks to our brand of rights-enhancing federalism by which states can often recognize a greater measure of rights than those accorded under federal law.

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Enter the New Voices campaign (FB page), a student-powered grassroots movement spearheaded by the Student Press Law Center. The campaign’s objective is to “give young people the legally protected right to gather information and share ideas about issues of public concern. To that end, the Center has worked “with advocates in law, education, journalism and civics to make schools and colleges more welcoming places for student voices.”

Jonathan Peters, How a new campaign is trying to strengthen the rights of student journalists, Columbia Journalism Review (Feb. 19, 2016)

“New Voices USA is a network of state-by-state campaigns to pass anti-censorship legislation that will grant extra protections to student journalists. The movement is inspired by the success in North Dakota, where in 2015, the state legislature unanimously passed a bill that ensures the free-speech rights of journalism students in public schools and colleges.”

Ten States Expand Student Press Rights (statutory rights)

  1. North Dakota (public colleges & high schools)
  2. Colorado 
  3. Pennsylvania 
  4. Iowa
  5. Kansas
  6. Arkansas 
  7. California
  8. Oregon
  9. Maryland (public colleges & high schools)
  10. Illinois (public colleges & high schools)

“It’s anomalous that high school students in a number of states have greater statutory protection than college students. That is a product of the initial belief post-Hazelwood that the ruling could never realistically be applied at the collegiate level; the first wave of statutory fixes logically addressed itself only to K-12 schools. Little did anyone suspect that four circuits (so far) would embrace Hazelwood as applying at all levels of schooling, and so the succeeding generation has addressed that “rights gap.” — Frank LoMonte

Related 

  • Oregon (protection for public college students)
  • California (protection private college students)
  • New Jersey (pending legislation: public colleges & high schools)

 Ryan Tarinelli, U.S. Sen. Heidi Heitkamp speaks on the Senate floor in support of student free speech, New Voices, March 11, 2016 (YouTube video here)

→ American Society of News Editors Resolution in Support of Legal Protection for Student Journalists and Advisers (2016)

→ Society of Professional Journalists: Resolution No. 4: In support of enhanced protections for student journalists (2015)

Is downloading hacked Clinton e-mails a crime? Read More

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Recess Appointments for Supreme Court Justices

Here’s a puzzle I was thinking about.  Suppose the President makes a recess appointment to the Supreme Court.  The appointment is challenged by someone with standing who cites Noel Canning.  During the pendency of the litigation, odds are that the challenged person would sit on the Court (you could conjure a scenario where there’s an adverse decision and no stay, but that seems doubtful).  Suppose at the end of that process, the remaining eight Justices rule that the recess appointment was invalid.  What would happen to the decisions made in which the recess Justice was the decisive vote?  Moreover, wouldn’t the recess appointment likely expire before the Supreme Court could even rule?  Would that make the case moot?

UPDATE: Here’s another problem. Wouldn’t all of the Justices have to recuse from deciding on the eligibility of someone that they had sat on cases with?

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More Speech — A First Amendment Salon Occasional Paper: Bruce Johnson on Volokh & the “Speech Integral to Criminal Conduct” Exception

This is the first in the “More Speech” series of Occasional Papers to be circulated by the First Amendment Salon and the Floyd Abrams Institute for Freedom of Expression. The purpose of these More Speech papers is to introduce the practicing First Amendment bar to some new and important scholarly work that might be useful in litigation. Thus, we will invite a noted First Amendment lawyer to write a foreword to a particular scholarly article. By the same token, from time to time we will invite a noted First Amendment scholar to write a foreword to some important appellate brief, which we think might be of interest to the academic community. In this way, among others, we hope to enhance the communication between the practicing bar and the legal academy (and among journalists and activists, too).     

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The Giboney Resurrection: A Civil Practitioner Considers the “Speech Integral to Criminal Conduct” Exception

By Bruce E. H. Johnson

Where does free speech end, and crime begin? This is an old legal question in American law; it stretches back to the beginnings of the Republic, and even earlier.[1]

Bruce Johnson

Bruce Johnson

Early on, the federal prosecutions under the Sedition Act and similar state libel prosecutions – such as People v. Croswell[2] defended by Alexander Hamilton – cited to Lord Coke and spoke “of a libel, as having a tendency to break the peace.” In such cases the courts confronted cause and possible effect (‘tendency”) to evaluate what defenses would be allowed to avoid criminal liability for allegedly libelous speech.

In recent years, however, at least since New York Times Co. v. Sullivan[3] and Garrison v. Louisiana,[4] defamation lawyers have generally focused on First Amendment protections from civil liability. During more than five decades, First Amendment litigation has mostly moved on, freed from its criminal law origins. In the process, civil liability for free speech activities has become detached from the historic criminal law principles that were the subject of debate and litigation in the 1790s and thereafter. This is because, recognizing that the “erroneous statement is inevitable in free debate, and that it must be protected if the freedoms of expression are to have the ‘breathing space’ that they ‘need … to survive,’”[5] Sullivan and its progeny developed constitutional rules applying free speech protections.

In his new article[6] UCLA Law Professor Eugene Volokh reminds us that, excluding modern defamation law, this “tendency” analysis remains key in evaluating unusual governmental limitations on free speech protections. Indeed, under the Roberts Court, a new category of unprotected speech has quietly been added to the historic list of First Amendment “exceptions” recognized in Chaplinsky v. New Hampshire.[7]

As Professor Volokh notes, this is a recent development, and potentially very troubling. When the Supreme Court decided United States v. Stevens[8] and United States v. Alvarez,[9] First Amendment advocates were generally pleased. In both cases, citing the First Amendment, the Court struck down the application of a federal criminal law to activities that were plainly speech or speech-related.

Professor Eugene Volokh

Professor Eugene Volokh

Neither case presented great facts.[10] Stevens involved so-called “crush videos,” while Alvarez construed the constitutionality of the Stolen Valor Act, a federal law that criminalized false statements about having a military medal, with the Justices voting 6-3 to hold the law unconstitutional as applied. In his plurality opinion, Justice Anthony Kennedy ruled that “[t]he Government has not demonstrated that false statements generally should constitute a new category of unprotected speech.”

But, in both cases, the Court, when listing the usual collection of well-recognized Chaplinsky “categories,” added “a long-dormant and little defined First Amendment exception: the exception for ‘speech integral to criminal [or tortious] conduct,’” and included a citation to Giboney v. Empire Storage & Ice Co.[11] as the leading case supporting that exception. In another decision, Sorrell v. IMS Health Inc.[12] – a “commercial speech” case holding unconstitutional a Vermont law that “restricts the sale, disclosure, and use of pharmacy records that reveal the prescribing practices of individual doctors” – the Court also cited Giboney in listing the categories of speech that were excluded from the First Amendment.[13]

According to Professor Volokh, Giboney “hadn’t been cited by the Court at all from 1991 to 2005,” but since 2006, “the Court has cited Giboney six times” and its exception for speech integral to criminal conduct “is now a standard item on lists of First Amendment exceptions.” In his view, the reliance on Giboney is a product of the Roberts Court. That is, both Chief Justice Roberts and Justice Scalia sought to avoid “categorical balancing” tests and instead embraced a constitutional doctrine supposedly rooted “in history and tradition.” With apologies to Van Wyck Brooks,[14] it is clear that Giboney was attractive because it offered a usable past to several Justices with originalist tendencies. Read More

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FAN 127.1 (First Amendment News) Trump lawyer to NYT: We will “pursue all available actions” — NYT lawyer: “we welcome the opportunity” to go to court

Given all the talk in the news about the election and the prospect of lawsuits against the press, I have collected several items to help shed additional light on the matter.  

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Alan Rappeport, Trump Threatens to Sue The Times Over Article on Unwanted Advances, NYT, Oct. 13, 2016

NYT Counsel Responds 

David McCraw

David McCraw

In a letter to one of Trump’s attorneys, Marc E. Kasowitz, sent Thursday, New York Times general counsel David McCraw wrote: “The essence of a libel claim, of course, is the protection of one’s reputation. Mr. Trump has bragged about his non-consensual sexual touching of women. He has bragged about intruding on beauty pageant contestants in their dressing rooms. He acquiesced to a radio host’s request to discuss Mr. Trump’s own daughter as a ‘piece of ass.’ Multiple women not mentioned in our article have publicly come forward to report on Mr. Trump’s unwanted advances. Nothing in our article has had the slightest effect on the reputation that Mr. Trump, through his own words and actions, has already created for himself.'”

“But there is a larger and much more important point here. The women quoted in our story spoke out on an issue of national importance — indeed, an issue that Mr. Trump himself discussed with the whole nation watching during Sunday night’s presidential debate. Our reporters diligently worked to confirm the women’s accounts. They provided readers with Mr. Trump’s response, including his forceful denial of the woemn’s reports. It would have been a disservice not just to our readers but to democracy itself to silence their voices. We did what the law allows: We published newsworthy information about a subject of deep public concern. If Mr. Trump disagrees, if he believes that American citizens had no right to hear what these women had to say and that the law of this country forces us and those who would dare to criticize him to stand silent or be punished, we welcome the opportunity to have a court set him straight.”

See also Tessa Berenson & Charlotte Alter, Here’s Everything You Need to Know About the Sexual Allegations Against Donald Trump, Time, Oct. 13, 2016

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According to CNN: “Trump said at a Thursday afternoon rally in Florida that “we are preparing” a suit against The Times.”

“‘NYT editors, reporters, politically motivated accusers better lawyer up,’ a Trump campaign official said.”

Headline: “Trump Can Sue for Defamation, but Proving It is a Different Story”

In the Wall St. Journal Jacob Gershman reports: “[F]rom a legal standpoint, Mr. Trump could have a very hard time proving libel in court should his lawyers actually follow through with a lawsuit.

Dean Ken Paulson

Dean Ken Paulson

“‘Donald Trump is pretty much libel-proof,’ First Amendment expert Ken Paulson told Law Blog.”

“That’s because libel law sets much higher standards of proof for plaintiffs who are famous people or public officials. When it comes to defamation litigation, public figures like Mr. Trump have to establish that not only a statement was false and defamatory, but also published with actual malice.”

“That means the publication either knew the allegedly defamatory statements to be false before publishing them or published them with a reckless disregard for the truth.”

“‘[I]t’s hard to conceive of more of a public figure than someone running for the most powerful job in the world on a major party ticket,’ said Mr. Paulson, dean of the College of Media and Entertainment at Middle Tennessee State University. . . .”

See also Paul Farhi & Robert Barnes, A Trump libel suit against the Times? Don’t count on it succeeding, Washington Post, Oct. 13, 2016

Trump & Spokesperson Reply Read More

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Roundup: Law and Humanities 10.13.2016

In somewhat of an October surprise, the Swedish Academy has announced the award of the Nobel Prize for Literature to singer-songwriter Bob Dylan. Law and humanities mavens, take note: scholars and commentators have been examining Laureate Dylan’s work for links to the law for some time.

The New York Times’ Adam Liptak surveyed the uses of Bob Dylan lyrics in judicial opinions here, listing some here.

Some lawprofs have written about Mr. Dylan’s use of law and legal themes. Here are some examples.

Adam Gearey, Outlaw Blues: Law in the Songs of Bob Dylan, 20 Cardozo Law Review 1401 (1998/1999).

Matthew McNeil, The First Amendment Out on Highway 61: Bob Dylan, RLUIPA, and the Problem with Emerging Postmodern Religion Clauses Jurisprudence, 65 Ohio State Law Journal 1021 (2004).

 

See also music scholar James Dunlap, Through the Eyes of Tom Joad: Patterns of American Idealism, Bob Dylan, and the Folk Protest Movement, 29 Popular Music and Society 549 (2006).

 

The Fordham Urban Law Journal devotes an entire issue to Bob Dylan and the law (38 Fordham Urban Law Journal 2010-2011). The issue includes (complete with poetic titles):

Samuel J. Levine, Foreword, at 1267.

Louise Harmon, Bob Dylan on Lenny Bruce: More of an Outlaw Than You Ever Were, at 1287.

Renee Newman Knake,  Why the Law Needs Music: Revisiting NAACP v. Button Through the Songs of Bob Dylan, at 1303.

Randy Lee, Bob Dylan’s Lawyers, a Dark Day in Luzerne County, and Learning to Take Legal Ethics Seriously, at 1323.

Alex B. Long, The Freewheeling’ Judiciary: A Bob Dylan Anthology, at 1363.

Alex Lubet, Arrested Development: Bob Dylan, Held for Questioning Under Suspicion of “Autism,” at 1385.

Michael Perlin, Tangled Up in the Law: The Jurisprudence of Bob Dylan, at 1395.

Laurie Serafino, Life Cycles of American Legal History Through Bob Dylan’s Eyes, at 1431.

Abbe Smith, “No Older ‘N Seventeen”: Defending in Dylan County, at 1471.

Richard H. Underwood, When the Law Doesn’t Work, at 1495.

David M. Zornow, Dylan’s Judgment on Judges: Power and Greed and Corruptible Seed Seem To Be All That There Is, at 1511.

 

Idealawg discusses some of Mr. Dylan’s lawprof fans here.

 

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Blackacre–The Poetry Collection

Though this a more eclectic post, I want to recommend a new book of poems by my law school classmate, Monica Youn, who has won many awards for her poetry. Her book is called Blackacre (appropriately enough) and has some vaguely legal themes, though it’s most certainly not a book of legal poems.

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FAN 127 (First Amendment News) Cert Petition Raises Question of Standard of Review in Retaliation Case for Calling the President a “Communist”

The case is Bennie v. MunnA cert. petition was filed recently in the Supreme Court with Damien Schiff listed as counsel of record. Before proceeding to the First Amendment issue raised, consider the opening paragraph of the Eighth Circuit’s opinion in the case; Chief Judge William J. Riley wrote for the majority:

Damien Schiff, counsels for Petitioner

Damien Schiff, counsel of record for Petitioner

“Robert R. Bennie, Jr., a financial advisor, sued Nebraska financial regulators after they investigated him and his broker-dealer employer around the time a newspaper reported Bennie made unkind comments about the President of the United States. The district court found that even though the regulators targeted Bennie partly in retaliation for his constitutionally protected political speech, they did not do enough to deter someone of ordinary firmness from continuing to speak, so Bennie’s claim failed. Because we cannot say that finding was clearly wrong, we affirm.”

The Chief Judge ended his opinion by declaring: “We are not of a definite and firm conviction that a mistake was committed by the district court such that the district court clearly erred by finding the state regulators’ actions against Bennie would not have quieted a person of ordinary firmness. Based on this standard of review, see, e.g., Anderson, 470 U.S. at 573-74, 105 S.Ct. 1504, we affirm.”

Circuit Judge Jane L. Kelly joined in the majority opinion and Circuit Judge Clarence Beam concurred in party and dissented in part.

 In his cert. petition on behalf of Robert Bennie, Jr., Mr. Schiff contends that the case raises the following question:

“Robert Bennie, a successful financial advisor, was one of the leaders of the Lincoln, Nebraska, Tea Party. Because Bennie called President Obama “a communist” in a prominent newspaper, state regulators pressured Bennie’s employer to impose heightened supervision, conduct unannounced audits, and levy other sanctions to provide them with ‘some comfort.’

“The Constitution prohibits government officials from retaliating against individuals for protected speech. See Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). To prevail on a First Amendment retaliation claim, a plaintiff must show, among other things, that a person of ‘ordinary firmness’ would have declined to speak in light of the government’s adverse action. The courts of appeals have split on whether a trial court’s determination on this issue is subject to clear error or de novo review. The question presented, which the court below viewed as ‘likely [] dispositive,’ is: In light of the First Amendment’s strong speech protections, are “ordinary firmness” decisions reviewed on appeal solely for clear error, as the Third, Sixth, and Eighth Circuits hold, or are they reviewed de novo, as the First, Ninth, Tenth, Eleventh, and D.C. Circuits hold?”

 Mr. Schiff argued that review should be granted for the following reasons:

I. “The decision below deepens a conflict among the Court of Appeals

           A. Like the Eighth Circuit, the Third Circuit and the Sixth Circuit Review a Trial Court’s “Ordinary Firmness” Determination for Clear Error

           B. In Contrast, the First, Ninth,Tenth, Eleventh, and D.C. Circuits, Review a Trial Court’s ‘Ordinary Firmness’ Finding DeNovo

II.  Certiorari should be granted to bring clarity to an important and reoccurring federal question that is clearly presented in this case.”

In a blog post on the Volokh Conspiracy, here is how Professor Eugene Volokh viewed the matter:

Prof. Eugene Volokh

Professor Eugene Volokh

“I think that, when it comes to decisions about what would “chill an ordinary person’s speech,” appellate courts should not defer to trial court findings. This sort of question isn’t a pure question of historical fact, as to which such deference is usually proper; rather, it’s a question of application of law to fact, which courts should review de novo, especially when First Amendment issues are at stake. There was some Eighth Circuit precedent suggesting that courts should indeed defer on such questions, which is why I think the Eighth Circuit should have reheard the matter en banc; I quote the amicus brief below.”

“But for now, whether or not Bennie should have won his case, I think that the Nebraska regulators’ actions were quite wrong, as the Eighth Circuit panel pointed out; and I thought they were worth airing.”

Headline: “Federal Court Blocks Louisiana’s Online Age-Verification Law for Violating First Amendment”

According to an ACLU press release, a “federal judge has signed an order permanently preventing Louisiana from enforcing a 2015 state law that required websites to age-verify every Internet user before providing access to non-obscene material that could be deemed harmful to any minor.”

largerlogopictures_0“[Chief] Judge Brian A. Jackson had previously granted a preliminary injunction in the case, Garden District Book Shop v. Stewart. The state then determined that it would not defend the constitutionality of the law and agreed to the entry of a permanent injunction. The judge signed the permanent injunction Friday.”

“The plaintiffs in the case are two independent booksellers, Garden District Book ShopOctavia Books, Future Crawfish Paper (publisher of Anti-Gravity magazine), the American Booksellers Association and Comic Book Legal Defense Fund. The lawsuit was brought by the Media Coalition and the American Civil Liberties Union.

“The law, enacted as H.B. 153, required that “any person or entity in Louisiana that publishes material harmful to minors on the Internet shall, prior to permitting access to the material, require any person attempting to access the material to electronically acknowledge and attest that the person seeking to access the material is eighteen years of age or older.” A failure to age-verify, even if no minor ever tried to access the material, would have been a crime subject to a $10,000 fine. Louisiana has a separate law that makes it a crime to lie when asked to acknowledge or attest to anything”

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“To comply with the law had it not been enjoined, booksellers and publishers would have had either to place an age confirmation button in front of their entire websites, thereby restricting access to materials that may be appropriate for all ages, or to attempt to review all of the books or magazines available at their websites and place an age confirmation button in front of each individual page that might be inappropriate for any minor.”

“The federal district court found in its preliminary injunction ruling that ‘[t]he ill-defined terms in [H.B. 153] do not adequately notify individuals and businesses in Louisiana of the conduct it prohibits, which creates a chilling effect on free speech.’ . . .”

Garden District Book Shop v. Caldwell (Oct. 7, 2016, U.S. Dist. Ct., Middle Hist., La.) (order of final decree & judgement)

→ Complaint for Declaratory & Injunctive Relief

Attorneys for Plaintiffs: Michael A. Bamberger, Richard M. Zuckerman, Esha Bhandari, Lee Rowland, Stephen A. Dixon & Candice C. Sirmon

[ht: Media Coalition]

Headline: “Environmentalists and Corporations Struggle Over Boundaries of Free Speech”

Writing in the Epoch Times, Tara Maclsaac, reports that “Activists and bloggers expressing concerns about the environmental practices of some companies have been hit with multi-million-dollar defamation suits.For example, four residents in Uniontown, Alabama, are being sued for comments they made on Facebook about a local landfill. The company that operates the landfill is claiming $30 million in damages to its business.”

“The highest court in Massachusetts heard arguments in a similar case on Oct. 7. Karen Savage and Cherri Foytlin wrote a blog post in 2013 alleging that scientific consulting company ChemRisk had oil industry ties. They had thus called into question a ChemRisk’s study that declared cleanup workers at the Deepwater Horizon oil spill site were not exposed to harmful airborne chemicals.”

Just think what a massive muzzle we’d all live with if we all thought we’d be sued at any moment if our opinions might be slightly inaccurate online.Lee Rowland

“In both cases—and hundreds of others popping up around the country every year—the defendants say the lawsuits were just meant to scare them into retracting their statements and discourage others from speaking out. . . .”

“David Green, president of Green Group Holdings, the company that owns the Uniontown landfill in question, [said]: ‘All local residents have the right to oppose us and to exercise their free speech right to protest if they want. What they don’t have is a right to intentionally make false and defamatory statements of fact that damage our reputation and our ability to do business—which is exactly what they have done.’ . . .”

Patent Law & the First Amendment — Judge Mayer’s Concurrence

Read More

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Felix Frankfurter’s Draft of the Constitution Day Address

I’m finished drafting my book on the Bill of Rights, and I’ll have more to say on that (you can be sure) over the next year.  I think that my next project will be on FDR’s Constitution Day Address of 1937.  During my research on the book, I was surprised by the fact that there is no law review article about this profound speech, which is the most detailed discussion on the Constitution ever given by a sitting President.

Here is a small example that I wanted to highlight.  Felix Frankfurter (then at Harvard) wrote an early draft of the speech. Some of what he put together made it into the final draft, but here is one passage that did not:

No true student of the agony of our Southern States in the period after the War between the States can overlook the fact that courts discredited by the victorious and callous majority were able to give the South the protection of only paper and sporadic enforcement of the Bill of Rights, while hundreds of injustices which the courts could not reach were daily being done to the Southern people.

This, of course, was the view of Jim Crow.  The real victims of Reconstruction were Southern whites; victims of a callous majority of Republicans. They were the ones who needed the Bill of Rights, not the freed slaves.  You can understand why FDR did not end up endorsing this canard.  But you can also see why Frankfurter suggested it.  Roosevelt needed the support of the South to push the New Deal forward, and presenting history in this light might help him do that.

Much more on the Constitution Day Address coming soon . . .

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Symposium: “The Future of Legal Scholarship” — West, Wu, Weisberg, Tuerkheimer, Strauss, Dorf, Posner & Others

The dialogue over the value of legal scholarship continues. Following On Legal Scholarship: Questions for Judge Harry T. Edwards (2015) comes yet more on the topic, again from the Journal of Legal Education.

The current issue the Journal (on whose Board I serve) contains the following Symposium titled “TheFuture of Legal Scholarship.” Here is a hyperlinked Table of Contents:

Articles

Book Review

Response 

Rejoinder

*  * *

See also David Ziff, Judge Posner vs. Professor Dorf on Legal Writing (from Ziff Blog)