Category: Law School (Scholarship)


Street Level Bureaucrats And The Revival Of Rehabilitation

OK, it is self-promotion, but since my article (co-written with Austin Smith) is now officially out in volume 91 of the Iowa Law Review I’ll take the chance to flog it here. The New Rehabilitation, available for free! free! free! in an earlier version from SSRN, challenges the received wisdom that rehabilitation is dead in American criminal justice. It also challenges the underlying assumption of most commentators that punishment policy is created from the top down – prinicipally by legislators. Pointing to the rise of specialty juvenile tribunals – like drug and mental health courts – it argues that street level bureaucrats (to use the language of political scientist Michael Lipsky) actually have a substantial role in shaping punishment policy. These local officials – judges, DA’s, probation officers, and others – crafted local courts that manage to avoid, or subvert, legisliative efforts to convert juvenile justice to a more punitive model. This new rehabilition isn’t available to all defendants, however. The specialty courts cream the less worrisome defendants and redirect them to alternative procedures while relegating the tougher kids to harsher juvenile or adult processes. I hear that this issue of the Iowa Law Review includes a limited edition Fountains of Wayne CD, but haven’t yet received confirmation.


The (Mis)use of Research Assistants

library.jpgAs the summer starts to wind toward its inevitable close closing stage midlife crisis eternal twilight I’ve been doing some thinking about how to maximize the use of law student research assistants. This summer, I’ve learned that in one sense, I’m a bad boss: I can’t manage to help my RAs to collect information for me in efficient ways. As my research has moved further in an interdisciplinary direction, I’ve found that the traditional front-line tools of legal research, HeinOnline, WL, and Lexis, complemented by the Web of Science, are incomplete and/or borderline useless. For example, I asked an RA to try to find the research behind Malcolm Gladwell’s observation regarding the relationship between anticipated regret and effort I blogged about here. My suggested search strategy: (1) do a search on WL/LEXIS for regret and effort; and failing that (2) read everything Gladwell had written. Ever. Option 2 took some time, but we finally nailed down the research. [Hint: he talked about the research in question in the New Yorker, and it wasn’t found in WL’s New Yorker database.]

Now, according to a librarian friend, this entire process could have taken under ten minutes in a fancy-pants humanities database. Nuts.

Tell you what: bragging honors to the first commentator to post the name for the relevant phenomena in the comments below. [Reader L.A. not eligible for bragging rights.]

More disheartening, I’ve learned from another research librarian that there is a general perception that we law-prof types are known to be weak at electronic research that doesn’t involve typing in a search into the ALLCASES database. Why is this? Perhaps it is due to the lack of an academic track in law, which means that we haven’t been tested and trained in research methods (apart from those methods necessary to be a law firm associate.) It might be that there is a connection between this lack of academic training and the length of the literature reviews that launch most law review articles: we have spent so much time finding the darn material, we want to stuff it in come hell or high water. Maybe if we were better at research, law reviews would be shorter?

While we’re on the topic of libraries, I thought I’d highlight this NYT Librarian Award announcement. Know a friendly neighborhood librarian doing good work?


Duke Law Journal: Call for Papers

The Duke Law Journal is organizing a symposium on food law, to be held in Feb. 2007. The call for papers is here, and reads in part:

We seek submissions addressing novel administrative law issues raised by organic and genetically modified foods, in addition to food safety, nutrition, and regulations affecting farmers, ranchers, and the food supply in general.

Please submit a short (1,500-word) prospectus of your proposed topic to by August 28, 2006, with the subject heading “ALC Submission.” Authors will be notified of the results of our selection process by September 12, 2006. All submissions should be accompanied by the author’s curriculum vitae, and an indication of the author’s availability in February 2007.

Please note the format and timing of our conference issue. Accepted proposals will be developed into ESSAYS of not more than 15,000 words, which will be published in the April 2007 issue of the Duke Law Journal. To adhere to this timeline, we will require authors to submit ready-to-edit drafts of their essays no later than January 8, 2007.

Please contact us at with any questions. We look forward to reading your submissions.


Selecting Book Publishers

book-new1a.jpgOver at PropertyProf, our previous guest blogger Al Brophy (law, Alabama) has a very thoughtful post on selecting book publishers. For many of us, the choice comes down to the one publisher that will publish our book or nothing at all, but for those with choices, Al provides some sage advice. He writes: “[W]hen we you’re shopping a manuscript, if you’re interested in getting adoptions, it’s important to be sensitive to what presses typically charge for books.” He also notes: “Another factor besides price that is critical in adoptions is: how long a press keeps its work in print.” Both of these considerations are very important. Some academic book publishers price their books at obscenely high prices, all but guaranteeing that the book will sell only a handful of copies, mostly to libraries. The print runs on these books will be very small too, ensuring that once the few copies are sold to libraries, the book promptly goes out of print.

One thing I could never understand about academic book publishers is the extent to which they seem so uninterested in doing anything that will sell more of their books. A reasonable price, decent cover art, and a small bit of marketing can go a long way toward getting a book some sales. But sometimes publishers price a book at $50 and do no marketing, virtually guaranteeing it won’t sell. Perhaps the business model for these books is close to that of a vanity press. On the other hand, I think that it is great that some presses still publish books with an eye not always to generating lots of sales. An increasing number of academic presses are moving away from publishing more academic books and toward printing more general audience trade books. This is unfortunate, as the line between intellectual commercial presses and academic presses is quickly evaporating. Academic presses should be publishing books because they are excellent, not just because they are the most commercially viable.

Although academic presses should continue to publish books without always obsessing over commercial viability, they should at least try to give these books a fighting chance in the marketplace. There are many excellent academic books that could sell with a better price, a snazzy cover, and some good marketing.

So if you’re blessed with choices among publishers for your book, you should ask:

1. What is the estimated print run?

2. What will the estimated price of the book be?

3. Will there be a paperback edition of the book?


Solum on the Need for Opinions

opinion.jpgLarry Solum recently posted a kind response to my post on the need for judicial reasoning. Here is a taste of his analysis:

An obligation to offer justification has obvious accuracy-enhancing effects: it forces the decision maker to engage in an internal process of deliberation about explicit reasons for an action and to consider whether the reasons to be offered are “reasonable” and whether they are likely to be sustained in the event of appeal. Balancing approaches, which consider the costs of procedural rules as well as their accuracy benefits, point us in the direction of the costs associated with requiring justifications on too many occasions and of the costs of requiring justificatory effort that is disproportionate to the benefits to be obtained. Requiring reasons facilitates a right of meaningful participation as well: when a judge gives reasons, then the parties affected by the action can respond–offering counter reasons, objecting to their legal basis, and so forth. Moreover, the offering of reasons provides “legitimacy” for the decision.

Very helpful. Clearly, the procedural justice literature has much to say on whether it is illegitimate for judges to rule without explanation. It seems to me that much of Larry’s discussion would seem to foreclose the legitimacy of what our commentators have suggested as the backstop for expressed opinions: back-pocket explanations, i.e., reasons produced by litigant demands.

But I still think that much of our thinking on the problem of “why and when reasons” is driven by biases built into our legal-DNA by the law school experience. I’ll ramble a bit more on this problem below the jump.

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Must District Judges Give Reasons?

gavel.jpgJonathan Adler highlights this astonishing Ninth Circuit opinion on the alleged misconduct of now-embattled District Judge Manuel Real. Some interesting facets of the case (previously blogged about here, here, and elsewhere). First, dissents matter. It is more than tempting to attribute the current push to impeach Judge Real to Judge Kozinski’s harsh dissent from the panel’s order exonerating him on the misconduct charge. Second, the case raises a neat issue which relates to what I’ve been writing this summer. While the overall facts of the case are well worth reading in the original, if you’ve ten or twenty minutes, I want to focus briefly on part of Judge Kozinski’s charge against Real: that he failed to explain the reasoning for a controversial order.

The basic story is that Judge Real withdrew the petition in a pending bankruptcy case and stayed a state-court judgement evicting a woman who was appearing before his court in a criminal matter. Both orders were entered apparently sua sponte, or at least without hearing the evicting party’s arguments. According to Kozinski, Judge Real “gave no reasons, cited no authority, made no reference to a motion or other petition, imposed no bond, balanced no equities. The two orders [the withdraw and stay] were a raw exercise of judicial power…” In a subsequent hearing, Kozinski continued, “we find the following unilluminating exchange”:

The Court: Defendants’ motion to dismiss is denied, and the motion for lifting of the stay is denied . . .”

Attorney for Evicting Party: May I ask the reasons, your Honor?

The Court: Just because I said it, Counsel.

Kozinski wrote:

I could stop right here and have no trouble concluding that the judge committed misconduct. [Not only was there a failure of the adversary process . . . but also] a statement of reasons for the decision, reliance on legal authority. These niceties of orderly procedure are not designed merely to ensure fairness to the litigants and a correct application of the law . . . they lend legitimacy to the judicial process by ensuring that judicial action is-and is seen to be-based on law, not the judge’s caprice . . . [And later, Kozinski exclaims] Throughout these lengthy proceedings, the judge has offered nothing at all to justify his actions-not a case, not a statute, not a bankruptcy treatise, not a law review article, not a student note, not even a blawg. [DH: Check out the order of authority!]

So here’s the issue: in the ordinary case, to what extent are judges required to explain themselves?

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Student Notes R.I.P. or Survive on SSRN?

poor little sue 4.JPG

A student asked me what happens to notes that are not accepted for publication on a law review. When I mentioned that they may be submitted to other journals but often they are not published, she seemed a little down about the work not being seen.

As I thought about the topic, I came to a few questions. Does anyone know whether students are putting notes on SSRN or assuming some are posting how many do so? Is there a policy about who can post? Furthermore, is it fair to ask whether they should be “allowed”, as it were, to put work on SSRN? On one hand, the amount of information (some good and some perhaps not so good) would increase but I could see arguments about too much noise or information overload being raised. Then again, one already has to wade through volumes of information using search strings and the like so perhaps adding more narrow but hopefully well done pieces to that pool will allow scholars to focus on large implications of their research and use the increased access to notes as a way to more efficiently see what work has been done on a particular topic that is a footnote or small part of the scholar’s work. So although I would suggest one should be careful using such information because it has not been screened, I think accuracy and quality issues are always in play and a researcher must continually use his or her own judgment regarding how much to trust any piece.

So what do people think? Should unaccepted notes R.I.P. or should they survive on SSRN?


If Not Scholarship, What?

Bill Henderson has a tremendous post up on the Conglomerate which follows up on Dan’s post of earlier this week on the relationship between time and US News reputation ranking scores. As Bill and Dan have now shown, a law school’s academic reputation score is pretty sticky: even with increased, but varied, emphasis on scholarship in the last decade, few schools have moved much up or down. I guess this isn’t totally surprising, given the difficulty in transforming a faculty, the relative weakness of academic institutions at marketing, etc. But it is sobering.

As Bill asks: “Why does every law school strategic plan, formed in the crucible of USNWR rankings angst, emphasize a plan of more and better scholarship when, empirically, such a strategy is unlikely to produce substantial improvements relative to peer schools?”

This all raises, at least for me, two possibly interrelated questions.

1. Is this just an artifact of known US News data collection problems? That is, assume that Leiter’s rankings went back before 1999: would the resulting string evidence non-random movement of multiple schools over time? Will using less sophisticated, but very objective, systems like the SSRN top school ranking produce data that rewards and reflects pro-scholarship expenditures like an SSRN series, workshops, chaired lateral hiring, etc?

2. As I explored here, it is interesting to think about the application of Moneyball to law school hiring. Bill and Dan’s posts suggest that the comparative advantage of selecting for productive scholars as a rankings boost is waning. [Believe me, I don’t mean to suggest that this is nearly the only reason to select for scholarship, just a reason that rational schools might care about.] Billy Beane himself has remarked that the irrationalities he exploited in his early career (overvaluing the five tools, undervaluing walks and HRs) have largely been washed away, and he is finding it harder to exploit new advantages against well-managed peer teams. As I understand it, the new smart money in baseball is paying for defense and speed. I know this because the Phillies are paying for power and David Bell.

Are law schools in the same situation? And, if so, what should the smart money be spending cash on? Employment? Marketing? Facilities? Remember: the goal of this spending is to get as much relative peer-to-peer growth for your buck as possible. So, pretend you are a law school dean. What is in your next budget?


The E-Print Experiment

idtheft4.jpgA short while ago, I blogged about an experiment I was planning — to switch from mailing out reprints of my recently-published papers to sending out emails offering a variety of ways to obtain the reprint (electronic copy via email attachment, SSRN download, or hard copy reprint via snail mail). I decided to go ahead and try the experiment, and many folks asked me to report back the results.

I sent out the following email:

I’m writing to distribute a final reprint of my recently-published essay, Fourth Amendment Codification and Professor Kerr’s Misguided Call for Judicial Deference, 74 Fordham L. Rev. 747 (2005). The essay critiques Professor Orin Kerr’s argument that legislatures are superior to courts in creating the rules governing law enforcement and new technologies. Kerr recommends a deferential judicial approach to the Fourth Amendment when new technologies are involved. I contend that Kerr is wrong.

I’m trying a new experiment with reprints. I used to send out a mass mailing of reprints, a system that was expensive, not environment-friendly, and not very efficient, as I bet that only a percentage of recipients were interested in reading the reprint. Therefore, I’m trying out a new system, one that is designed so that copies of the reprint go only to those interested in reading it.

If you’re interested in reading a copy of my essay, just reply to this email and let me know which version you want:

1. Electronic Copy: I have an electronic PDF copy of the final published version, which prints out looking identical to how the piece looks in its final published format. I’d be happy to send you this version as an email attachment. Or you can download a copy for free at this link:

2. Snail Mail Reprint: I have ordered a bunch of reprints for those who prefer them, and I’d be happy to send you one if you want.

If you prefer not to receive emails from me about my reprints in the future, just send me an email asking to be removed from the list. I promise that my emails will not be very frequent, as I can only publish so many papers in any one year!

Since my reprint list has been growing over the years — and since I could distribute my paper without incurring great expenses for my law school — I sent the email to approximately 350 people.

The result?

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