Category: Law School (Scholarship)


Quantifying Probable Cause

The quantification of legal standards is an important and interesting topic that has garnered much attention in various contexts. We know that the preponderance of the evidence standard requires greater than 50% certainty, but most other legal standards, including beyond a reasonable doubt, probable cause, and reasonable suspicion, remain undefined numerically. The debate remains active between what I’ll call “fuzzy types,” who distrust the incorporation of math (with its potential false sense of precision) into the law, and “hard types,” who seek to add increased precision and clarity using numbers.

My first Concurring Opinions blog, posted in April, and the discussions that followed inspired a paper on quantifying probable cause. Getting Beyond Intuition in the Probable Cause Inquiry seeks to assign a numerical value to probable cause in situations where quantifiable evidence is already a critical factor in the probable cause inquiry.  This would occur where, for example, an alert by a drug sniffing dog is the sole evidence offered to satisfy probable cause. The paper uses a hard-type approach, but largely in situations where the valid concerns of the fuzzy types are minimized. I have posted a draft of the paper at SSRN, and I will be submitting the paper during the August submission season.

I will post more blogs in July, but I’d like to thank everyone who commented on my blog posts.  The discussions have helped shape this paper. I am a huge champion of legal blogs, both because of their ability to facilitate exchanges of more accessible length than law review articles, and because of their ultimate benefit to the content of law review articles.



Sabbatical Grant Opportunities for Law Professors

In my capacity as Associate Dean for Research at my school, I’m trying to compile information about fellowships or grants that are available to law faculty and could be used to support a research leave. I know about the obvious ones (e.g., Fulbright, Guggenheim, Burkhardt), but if you know of others, I would much obliged to hear what you know.


A Tip on Writing Better Articles.

There’s tons of advice out there on how to get better placements for your academic writing.  Much of that genre holds writing quality constant or assumes it away.  But that’s silly.  Pat Rothfuss, one of my favorite fantasy authors and a former interviewee here at CoOp, has written a terrific column on how to avoid a mistake that bedevils first-time fantastists and junior scholars alike: excessive and ponderous vomiting of everything the author learned while preparing to write.  His diagnosis of the problem is lucid, and for fans of the genre, familiar:

“So here’s how it goes wrong.

1. You create something for your fantasy world: a creature, a culture, a myth, whatever.

2. You’re proud of your creation. You’re excited about it. You love it with a fierce love.

3. You need to describe this thing to your reader, because if they don’t understand how it works, your story won’t make sense.

(3b. Remember, the story is the real reason people are there. Story is everything. Story is god.)

4. So you start to explain how folks in the the Shire celebrate their birthdays. (This is important because one of the first major events of the book is a birthday party.) You talk about how hobbits give presents away at their parties instead of receiving them. (This is important because it ties into why Bilbo is going to hand over the ring to Frodo.)

Then you start talking about how some of these presents get passed back and forth, party after party. And how those items are actually called mathoms, and how there’s actually a museum full of mathoms at Michel Delving, which is in the Westfarthing of the shire, since, as you know, the Shire is composed of four sections which take their names from prominent families in the area, such as Tookland being named after the Tooks, who are among the largest and oldest of the Shire families, and in fact still held the title of Thain, which had been passed to them from the Oldbucks, and while the title was largely ceremonial these days due to the lack of Shire-moot in recent, peaceful times…. …

You see what happens? It’s easy for an author to get so caught up in the details of the world they created, that they go off the rails and give us more than is really necessary for the story.”

How many articles have you seen where an author provides multiple footnotes in each sentence of the introduction, each larding on another fact that the reader is compelled to digest?  Or first sections of articles that, in elaborate detail, tell you what the existing literature says.  Such articles are exhausting to even skim – it can be fifteen to twenty thousand words before we start to get a hint of the author’s unique contribution. We get it – you did your homework!

Follow the link to read Pat’s advice on how to avoid the problem.


The Tragedy of Anonymous Comment Threads

Shame About Submissions Is For Suckers

Prawfs is running its annual Law Review Angsting thread.  Like many such threads, it is dominated by anonymous commentators. That struck me as odd, and I said so.  Several anonymous commentators immediately objected that I wasn’t understanding the reputational risks involved.  They said that for pre-tenure scholars, “there is a distinct risk in publicly announcing that you have an article submitted for publication, at least before it is actually accepted.”  The argument goes that the piece it isn’t accepted, and the person goes on the lateral or entry market, then the world will know that they are shopping around already rejected goods.  Another commentator that if you talk about your article not getting offers, you might sway law review editors against the piece. Failure reeks.

I found these arguments surprising, and weak.  But I don’t want to hijack Prawfs’ thread, which is now moving onto further productive hand-wringing.  So, here goes.

1.  This strikes me as a commons tragedy of sorts. If the norm was to sign your name as a part of an effort to be transparent about an obscure process, and both successful and unsuccessful authors repeatedly shared information about their processes, then journals wouldn’t take adverse inferences. But since that’s not the norm, people who do sign their names are fearful of being singled out as lemons.  (I think that the real chance of a journal taking this kind of inference is approximately negative 1 billion.  They can’t even manage to read real articles in front of them.  Or be prepared for class. They are not reading the seventh page of a Prawfsblawg comment thread.)  Similarly, if being open about your identity was encouraged, academics wouldn’t have the reaction that the commentators worry about.  But it isn’t.  So each individual commentator, acting in their perceived self-interest, is anonymous. The quality of information decreases.  Free-riders abound.

2.  In Paul Horwitz’s magnificent post, Courage, Prudence, and Tenure, he noted that young scholars are often too prudent and insufficiently courageous.  He also said that it’s the job of more senior academics to push courage.  This, I think, is a very small example of that phenomenon. Look. You can be as tactical and careful and strategic as you want. You can fret till the sun goes down about every shadow behind every bush. And that kind of strategic maneuvering might – might – pay dividends at tenure time. But it strikes me that if you live your life in that kind of crouch, you probably will not produce exciting scholarship, or be an inspiring teacher, or contribute meaningfully to the institution you are at. You probably will be an uninteresting blogger.  In this regard, I think sometimes about an academic who, when he started teaching, had a ton of interesting ideas. You know the type.  But he never amounted to much as a scholar in part because he was so very afraid of what others thought about his work.  Would people realize he didn’t actually know what he was doing?  That his ideas weren’t as shiny in written form as they had been when he first spun them out over coffee? What if he didn’t achieve his potential? Better, he convinced himself, not to write than fail to be a once-in-a-generation-colossus.

3.  And even if you are fearful of seeming to fail, waiting for law review editors isn’t failure, and you shouldn’t see it that way.  Law review submissions is a weird process – there is zero feedback, the timing is peculiar and random, the stakes feel high.  People invent all kinds of reasons why it works the way it does, and what you can do to get control.  Struggling with submissions is the norm, even for very accomplished people at very elite institutions. The person who gets three offers in two days is the exception. And it is the norm for established teachers and newbies alike.  I’ve waited 18 months for a peer review process to end with an acceptance.  And last year, we waited for Stanford Law Review for four, excruciating, months.   This year, I’ve had an article out for a month – with basically no word – and another for a week – again, silence.  The commentators at Prawfs make it seem like I ought to feel embarrassed or ashamed. I don’t. And if you are waiting for an acceptance, you shouldn’t either.  It will come.  Or it won’t.  While you are waiting, you can write something else.  Get back to work.


Don’t use et al.

As a co-authored piece just recently reminded me, I’ve a huge grudge against the Blue Book.  (Which hasn’t yet escalated on their side to using me as an example as a but see.  Or worse!  Actually, I’m not sure that the great platonic blue book guardians even know I’m mad at them.)  As I wrote in 2007:

“Rule 15.1. R. 15.1 states that when there are two or more authors, you have a choice:

Either use the first author’s name followed by “ET AL.” or list all of the authors’ names. Where saving space is desired, and in short form citations, the first method is suggested . . Include all authors’ names when doing so is particular relevant.

This seems to me to express a pretty strong non-listing preference. The “problem” is that much good interdisciplinary work results from collaborations among more than two authors – it is the nature of the beast . . . This seems like a trivial objection, but it will take on increasing weight over the next ten years as empirical legal studies really comes online in the major law reviews.”

The trend toward interdisciplinary, multiple authored, pieces continues.  And though it’s true that law reviews are a dying beast, there is still no good reason at all for omitting the names of authors in the first footnote in which the work is cited. “Saving space” is a terrible argument: we could do that by getting rid of useless and often inaccurate parentheticals “explaining” the source, often written by cite-checking second year students.

If I were running a law review seeking to differentiate itself, or an author negotiating with a few journals, my deal points would be: (1) color graphics on the web version of the article; and (2) no et al. usage.  That has to be more constructive and useful than “lead article” status!


Stanford Law Review Online: The Privacy Paradox 2012 Symposium Issue

Stanford Law Review

Our 2012 Symposium Issue, The Privacy Paradox: Privacy and Its Conflicting Values, is now available online:


The text of Chief Judge Alex Kozinski’s keynote is forthcoming.


Picking up where we left off…

My heartiest thanks to Dan for letting me stick around for another month.  I would like to renew the request I made here for thoughts on mentoring.  Though I appreciated the responsive post and comments that Paul Horwitz generated over at PrawfsBlawg, it did not create the kind of feedback that would allow me to facilitate more information about mentor/mentee opportunities.  So, please feel free to email me or comment here, and I offer again to aggregate any information I receive.


Adviser? Teacher? Sage? What is a mentor?

I think most of us engage in informal mentoring of our junior colleagues as new hires enter the academy, but I recently have taken on more formalized roles that have me pondering what it means to be an effective mentor.  Is it a matter of providing navigational guideposts for advancement toward tenure?  Advice about publishing strategies?  Providing a friendly eye for early drafts?  Teaching aid and advice?  Support for other decision-making, such as child-bearing, and attempting the elusive ‘work-life balance’?  I think mentoring can be all of these things, depending on the mentee’s personal and institutional needs, but I started to question my own assumptions when asked during a panel at SEALS last summer whether anyone really needs a mentor.  My gut reaction was yes, especially for women, minorities, and those who did not attend the usual professor-generating law schools (which are simply better at facilitating connections in the academy).  But, it seems like not many receive the kind of mentoring they desire.  Of course, some formalized inter-school mentoring opportunities exist, such as the annual SEALS conference, which is terrific for matching new scholars with mentors who provide substantive feedback.  Also, the AALS Women in Legal Education Committee has its own website, which is designed to facilitate mentee cold-calling of mentors who look to be a good match (which may be a unique approach).

All of that said, CoOp readers, what do you think makes a good mentor?  What are junior academicians seeking in this context that they can’t find?  And, what other mentoring opportunities are out there?  I would be most grateful for comments either here or by e-mail.  Finally, I would be happy to aggregate information and post it (if enough flows my way before the end of the month).


The Relationship Between Theory and Practice

The longstanding attacks on legal scholarship all seem to assume a particular relationship between theory and practice, one that I believe is flawed.  Recently, I responded to one such critique.  There are others, with Justice Roberts and many other judges and practitioners claiming that legal scholarship isn’t worth their attention and isn’t useful to the practice of law.

It seems to me that those making these critiques assume that the primary value of legal scholarship should be to (1) describe current legal doctrine to make legal research easier for practitioners; or (2) influence an immediate and direct change in the law.  In an earlier post, I argued that #2 above is an unreasonable standard.  Legal change is slow, and rarely will one article have a direct influence.  Rarely does one thing have a direct influence — change typically occurs more through an indirect influence by numerous sources.  Only in the movies or in simplistic historical accounts will we see one article or book lead to dramatic changes.  Of course, it occasionally happens, but rarely.

In this post, I want to tackle claim #1.  The treatise writers and doctrinal legal scholarship of yesteryear has diminished, though it isn’t gone.  Last I checked, there were quite a lot of treatises written by quite a lot of law professors.  But there is today a lot more theoretical scholarship.  Is this scholarship valuable if it doesn’t help in legal research?

The answer is yes for many reasons:

1. As with all humanities, the value of any particular work is hard to quantify.  What’s the value of Kafka’s The Trial or works by Shakespeare?  What’s the value of reading history?  What’s the value of learning things that don’t have direct application to one’s career?  I believe there’s a lot of value.  Reading these works opens up new ways of thinking, sparks new ideas, and helps people understand the world differently.  This can indirectly affect one’s legal practice skills by enhancing creativity, improving one’s writing style, or making one see the facts of a case in a different light. It is interesting that many of the great jurists were also avid readers of literature.  Indeed, many of the great thinkers and writers throughout history had wide-ranging intellectual interests and reading habits.  Would people like Benjamin Franklin or Thomas Jefferson be as creative if they had more narrow and workmanlike intellectual exploration?  Probably not.  Would Justice Holmes have been as great without his love of the humanities?  I doubt it.

2. There is a value in critiquing legal decisions and laws, even if the critique winds up remaining in dissent.  Why do justices bother to write dissents?  After all, it often takes decades if not 40-50 years for the Supreme Court to change the law.  They write dissents in the hope that one day the Court will see things differently.  They write them to make a record.  There is a value in criticizing legal opinions and laws even if it doesn’t immediately result in a change.  Indeed, many of the critiques of legal decisions and laws that I read in legal scholarship are very powerful ones.  Courts and lawmakers should pay more attention, as the scholarship often reveals logical flaws in reasoning, clear errors in applying precedent, assumptions that are based on faulty facts, assumptions that are wrong based on empirical evidence, or assumptions that are contrary to widely-accepted conclusions in science or social science.   Courts and legislatures may hide their heads in the sand, but that shouldn’t be a justification for criticizing legal scholarship — it should be a basis for criticizing courts and lawmakers.

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The Usefulness of Legal Scholarship

A reader of my post about the N.Y. Times critique of legal education writes, in regard to the value of legal scholarship:

I happen to be on the editorial board of a T14 law school’s law review, so I have to cite check and read articles regularly. Of those I’ve read, I can’t think of a single one I thought would be useful to a practicing lawyer. The problem is, in my experience, most seem to advocate a fundamental change in philosophy to an area of law that diverges from what precedent would suggest. To me, this seems extremely unhelpful, because A. Lower courts aren’t likely to accept a grand new theory that seems to contradict what SCOTUS is saying, B. As far as I can tell SCOTUS seems not to usually change its theory either, and C. I don’t think most policymakers tend to read law review articles.

This leads me to be inclined to believe that most law review articles are useless. Are you saying my sample is unrepresentative of what’s out there? Or do I simply have a narrower definition of usefulness? Could you perhaps suggest some articles from the past year that in your mind represented useful legal scholarship?

This commentator assumes that usefulness is the equivalent of being accepted by the courts.  I quarrel with this view for many reasons:

1. An article can have an influence on cases, even if difficult to demonstrate.  Many courts don’t cite law review articles even when they rely on them.  Judges are notorious for not being particularly charitable with citations.  They often copy verbatim parts of briefs, for example.  If a law professor relies on a scholarly work even in a minor way, the professor will typically cite to the work.  Not so for courts.

2. Most articles will not change the law.  Changing the law is quite difficult, and if most law review articles changed the law, the law would be ridiculously more dynamic than it currently is.

3. No matter what discipline or area, most of the things produced are not going to be great.  Most inventions are flops.  Most books, songs, movies, TV shows, art works, architecture, or anything produced are quite forgettable and will likely be forgotten.  Great lasting works only come around infrequently, no matter what the field.

4. Most people are forgettable too.  In the law, most practitioners and judges have been forgotten.  Only a few great ones are remembered.  Of the judges who are most well-known, it is interesting that many were more theoretical in nature and had a major impact in changing the law — typically in ways law professors might change the law.  Think of Benjamin Cardozo, who wrote many articles and books and who radically changed the law.  Think of Felix Frankfurter, a former law professor.  Think of Louis Brandeis.  Think of Oliver Wendell Holmes.  These were jurists who were thinkers.  They were readers.  They were literary.  They were writers of scholarship too.  Maybe the forgettable practitioners and judges are the ones who ignore legal scholarship.

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