Thursday, May 25, 2017

Scope of injunction in the 4th Circuit travel ban decision

The Fourth Circuit divided 10-3 in affirming the district court and enjoining the second travel ban. The court agreed to keep the injunction nationwide, but reversed the part of the injunction that ran against the President personally (although the injunction stands as to other federal officials involved in its enforcement). I will leave substantive analysis to others, but check out here, here, here, and here. Given my interests, I want to address two points about the scope of the injunction.

Continue reading "Scope of injunction in the 4th Circuit travel ban decision"

Posted by Howard Wasserman on May 25, 2017 at 05:52 PM | Permalink | Comments (0)

The Allure of Big Data Policing

As I mentioned in my initial post, the goal of my book project on “The Rise of Big Data Policing” is to examine how technology is changing the “who,” “where,” “when,” and “how” we police – especially in large urban cities.  As I write in the introduction:

"New technologies threaten to impact all aspects of policing, and studying the resulting distortions provides a framework to evaluate all future surveillance technologies. A race is on to transform policing. New developments in consumer data collection have merged with law enforcement’s desire to embrace “smart policing” principles in an effort to increase efficiency amid decreasing budgets. Data-driven technology offers a double win—do more with less resources, and do so in a seemingly objective and neutral manner."

In the book, I make the argument that in addition to the strong lure of new technology and cost efficiencies, there is an openness to new “data-driven technologies” as a result of the recent upheaval arising from a heightened awareness about police violence in America. 

Over the last few years – and again last week – the death of African Americans at the hands of police officers has generated protest, anger, and dissent. In addition, policing systems like the NYPD’s stop and frisk program created fear, resentment, and frustration about how citizens should be treated by law enforcement.  My argument is that out of this tragedy and frustration, the idea of policing strategies being guided by data-driven objectivity has become quite alluring.  Replacing human discretion with algorithmic precision – at least in theory – seems like a move toward progress.  Following data and not hunches seems (again in theory) like an improvement.  More after the break.

Continue reading "The Allure of Big Data Policing"

Posted by Andrew Guthrie Ferguson on May 25, 2017 at 10:42 AM | Permalink | Comments (0)

Wednesday, May 24, 2017

Doctrine trumps party loyalty (sort of) in two race districting decisions

SCOTUS decided two important cases dealing with race-based districting this week. As I have noted in an earlier post, this area of doctrine has evolved in a suspiciously partisan way. So the question naturally arises: Was this week's pair of decisions mostly a product of partisan loyalty, or did they have some hard core of non-partisan doctrine behind them?

This week, I am happy to report that it looks like doctrine is trumping party. In Cooper v. Harris and Bethune-Hill v. Virginia State Bd. of Elections, the constitutional doctrine of "strict-ish" scrutiny for racial classifications delivered two victories for the "color-myopic" constitution (not to mmention the Democratic Party in the South), winning (in Cooper) bi-partisan votes from a coalition of the four liberal justices plus Thomas. After the jump, a moral for this parable: You might only need a peppercorn of loyalty to legal principle (in this case, from Justice Thomas) for that principle to be durable on a closely and ideologically divided bench. But that legal principle would have a much easier time if it were embodied in crisp, clear precedents that allay justices' concerns about precedents' being manipulated for partisan reasons.

Continue reading "Doctrine trumps party loyalty (sort of) in two race districting decisions"

Posted by Rick Hills on May 24, 2017 at 12:00 AM | Permalink | Comments (7)

Tuesday, May 23, 2017

Another unwarranted universal/nationwide injunction

Last week, Judge Jones of the Western District of Washington issued a nationwide TRO against enforcement of a federal regulation barring attorneys from providing limited limited legal services for otherwise-pro bono litigants in immigration proceedings. The regulation requires attorneys to file a formal appearance as counsel of record in order to provide any representation, something the plaintiff Northwest Immigrant Rights Project, a nonprofit advocacy organization, cannot afford to do in all cases for all clients. NWIRP argued that the regulation violated the First Amendment.

As always, the court made the order nationwide: "Counsel for the Government represented during the hearing on the TRO that it desired to continue issuing cease and desist letters to non-profit organizations providing legal services to immigrants. As such, the Court grants this TRO on a nationwide basis. Therefore, the Court prohibits the enforcement of 8 C.F.R. § 1003.102(t) during the pendency of this TRO on a nationwide basis."

Even if universal injunctions might at times be warranted, this is not one of those times. NWIRP represents clients only in the Pacific Northwest, so it would be sufficiently protected by an injunction prohibiting the issuance of cease-and-desist letters to it in Washington. We could even extend that to the issuance of letters to NWIRP anywhere in the country (a real "nationwide" injunction). But NWIRP's is in no way deprived of complete relief if the government issues C/D letters to any other lawyers or nonprofit organizations anywhere else in the country. There is no reason, and no basis in principles of equity and judgments, for one district court in a non-class action to freeze enforcement as to every other person everywhere in the country.

But we have reached a point where universality is automatic and unthinking. Every district judge believes that every injunction baring enforcement of a provision of federal law must be universal.

Posted by Howard Wasserman on May 23, 2017 at 06:08 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (5)

An Updated Fiduciary Forecast

As the clock ticks down, the fiduciary rule seems increasingly likely to go into effect.  This morning, Secretary Acosta dropped a surprising op-ed in the Wall Street Journal announcing that he would not delay the fiduciary rule's implementation because Labor's review has "found no principled legal basis" to delay the rule's effective date.   The op-ed reads almost as a civics lesson.  Acosta pledges "respect for the rule of law" and explains how the notice and comment procedure limits the ability of administrative agencies to regulate on whims.  

This does not mean that the fiduciary fight is finished.  The op-ed promises to reopen public comment on the rule and consider the issue yet again.  Acosta explains that the administration has "respect for the individual" and "presumes that Americans can be trusted to decide for themselves what is best for them."  In the financial advice context, the argument makes little sense.  If a retirement saver knew what was best for him, he would not need a financial adviser.  We seek out advice when we do not know how to act in our own best interest.  A paean to freedom of contract here amounts to a defense of the freedom to fleece and to be fleeced.   

In a way, this development looks like a blown play from the administration.  The Trump team may have assumed that its initial sixty-day delay opened a sufficient window for Congress to kill the rule, leaving the President's hands cleaner.  This outcome seems particularly surprising given the Trump team's general opposition.  Anthony Scaramucci compared the fiduciary rule to Dred Scott--contending that the rule discriminated against financial advisers. Gary Cohn argued that the rule should be scrapped because it was "like putting only healthy food on the menu, because unhealthy food tastes good but you still shouldn’t eat it because you might die younger."

In any event, the rule does not prevent retirement savers from making unwise investments.  It simply limits the ability of financial advisers to steer clients toward poor choices that generate more profits for the financial adviser.

Posted by Benjamin P. Edwards on May 23, 2017 at 04:30 PM | Permalink | Comments (0)

Big Data Policing

I wanted to spend a bit of time this week discussing my forthcoming book “The Rise of Big Data Policing: Surveillance, Race, and the Future of Law Enforcement” (NYU Press, release date Oct. 2017).

The book describes how new predictive technologies and surveillance capabilities are changing the “who,” “where,” “when,” and “how” law enforcement does its job.  As I write in the introduction (available here):

"Roll call. Monday morning. Patrol officers receive digital maps of today’s “crime forecast.” Small red boxes signify areas of predicted crime. These boxes represent algorithmic forecasts of heightened criminal activity: years of accumulated crime data crunched by powerful computers to target precise city blocks. Informed by the data, “predictive policing” patrols will give additional attention to these “hot” areas during the shift. Every day, police wait in the predicted locations looking for the forecast crime. The theory: put police in the box at the right time and stop a crime. The goal: to deter the criminal actors from victimizing that location."

More after the break.

Continue reading "Big Data Policing"

Posted by Andrew Guthrie Ferguson on May 23, 2017 at 11:11 AM | Permalink | Comments (1)

Monday, May 22, 2017

The Ticking Fiduciary Clock

Despite an initial 60-day delay from the Trump administration, the Department of Labor's fiduciary rule now nears its June 9th effective date. The rule requires financial advisers to give advice in the best interests of their clients when giving advice about retirement accounts.  With just eighteen days to go, it seems increasingly likely that the rule may actually go into effect.

Some legislative and administrative risks remain for the rule. The U.S. House of Representatives seems likely to pass the Financial CHOICE Act of 2017 in the near future.  It spans about six hundred pages and seeks to unwind many of Dodd-Frank's reforms and, among other things, repeal Labor's fiduciary rule. The legislation has been widely criticized and may fare poorly in the Senate.  Earlier today, John Coffee memorably described it as something "drafted by the staff of a libertarian think tank . . .  after they had all smoked something very strong."   Given the strong opposition to the CHOICE Act, a legislative repeal appears unlikely before June 9th.

The fiduciary rule still faces administrative risks.  President Trump issued a memorandum directing Labor to review the fiduciary regulation. In response, Labor delayed the rule by 60 days to conduct its review.  The "review" may be mere pretext for rescinding the regulation.  According to one report, the new Secretary of Labor Alexander Acosta has begun casting about for a way to "freeze" the fiduciary rule in a way that will "stick" as his top priority.  These reports have drawn harsh criticism from Democratic Senators questioning whether Secretary Acosta "prejudged the outcome of the review."  If Labor moves to delay the rule again, consumer protection groups seem likely to challenge the decision in court.  

As the clock ticks down, it will be interesting to see what justification Labor might trot out to block its own rule or whether it will allow the rule to go into effect.

 

Posted by Benjamin P. Edwards on May 22, 2017 at 08:29 PM | Permalink | Comments (0)

JOTWELL: Thomas on Wistrich and Rachlinski on implicit bias

The new Courts Law essay is from Suja Thomas (Illinois), reviewing Andrew J. Wistrich and Jeffrey J. Rachlinski, Implicit Bias in Judicial Decision Making: How It Affects Judgment and What Judges Can Do About It, a forthcoming book chapter in a volume exploring implicit bias in the judicial system.

Posted by Howard Wasserman on May 22, 2017 at 10:47 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Baseball rules--collect them all, trade them with your friends

For my recent birthday, my wife and daughter got me a baseball card for the Infield Fly Rule. The card, from 1978, features a picture of an infielder (for you fans of late-'70s baseball, it is Jerry Remy, then of the Angels, later the Red Sox) sitting under a fly ball with an umpire (decked out in very-1970s umpire gear and the old league-specific hat) standing in the background, although he has not yet signaled infield fly. The back of the card explains and defends the rule as "Unique and Necessary."

It turns out to have been part of a series of cards produced by the company Sportscaster from 1977-79 on "The Rules." The cards featured a photo of player in action, with an explanation of the rule or play on the back. According to this list, there were cards for Interference, the Hidden-Ball Trick, Pickoff, Rundown, and other plays and rules. I was in the heart of my baseball-card collecting phase in this period, so I am disappointed that I did not know about these at the time. I was fascinated by the Infield Fly Rule even then.

Posted by Howard Wasserman on May 22, 2017 at 09:31 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Police in changing communities

Some good stuff in this lengthy Buzzfeed piece on the tensions between the (overwhelmingly white) police and the increasing Black and minority communities in Troy, New York. Two items to pull out that are common in these types of stories, but illustrate some things I have been thinking about:

1) Describing the cycle that multiple incidents followed: "a stop for a low-level infraction; an interaction that escalates; use of force by officers; a charge of resisting arrest, dismissed by prosecutors or acquitted at trial; and then a lawsuit settlement with the city that allows officers to deny the allegations of misconduct." And four officers involved in multiple incidents remain on the police force. And the city works these (relatively small) settlements into the cost of doing business, so civil damages litigation produces no political or accountability pressure to change its policies or the behavior of its officers.

2) Among the reforms the chief of police proposed were dashcams, which were opposed by the union and ultimately rejected. Again, a common reaction--police unions are the one stakeholder not enamored of cameras and many unions are going in the opposite direction of moving away from initial support.

Posted by Howard Wasserman on May 22, 2017 at 08:06 AM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Sunday, May 21, 2017

Are esports sport?

It has been awhile since I wrote on the bar debate over what is and is not sport. Now Gizmodo asks the question about esports.

My preferred definition of sport has four elements: 1) Large motor skills; 2) Simple machines; 3) Competition; and 4) Outcome determined by success in performing skills to achieve some other instrumental end, rather than for the virtue of the skill itself. On that definition, esports fail on # 1--operating a game console involves fine rather than large motor skills.  I also would question # 2--the competitors small-motor physical actions do not do all the work--it is the complex machine translating those physical actions into something bigger on the screen. So while esports do require "training, endurance, mental focus, and, yes, physical precision," the physical precision is of the wrong type and works too indirectly.

The comments are interesting in that several people have argued "not a sport" based on a definition that requires direct interaction between competitors and the possibility of one competitor thwarting another.

Posted by Howard Wasserman on May 21, 2017 at 07:26 AM in Howard Wasserman, Sports | Permalink | Comments (6)

Friday, May 19, 2017

Questioning DOJ Independence

Recent new stories suggest that part of the conflict between James Comey and President Trump arose out of Comey’s desire to keep the FBI independent from the administration.  Comey’s goal was not an idiosyncracy; there are regulations that limit and channel contact between the White House and officials at the Department of Justice.

Given the events of the past several months, a debate has emerged over how independent the FBI can or should be from the administration.  Most of what I read seems to assume that such independence should exist, and that it is an unmitigated positive.  I am not so sure. 

To the extent that the FBI is independent from the administration, the FBI is not democratically accountable.  Of course, most democratic accountability in the Executive Branch is indirect.  The primary democratic check on executive officials is the presidential election.  The president can select the individuals he or she wants to appoint to various positions, the president can tell that official which policies to pursue, and the president generally has the ability to fire the official.  But indirect accountability comes at a price: independence from the administration.

Continue reading "Questioning DOJ Independence"

Posted by Carissa Byrne Hessick on May 19, 2017 at 11:30 AM in Criminal Law, Law and Politics | Permalink | Comments (6)

1L Fear

From the days of The Paper Chase to the constricted tightness in the air around exam time, “fear” is part of law school.  But, is there an optimal level of “fear” that creates healthy focus, but not paralyzing distraction?  Is any fear constructive, or is it all a negative emotion that should be eliminated? Should fear be part of the 1L experience?  Does it help, hurt, distort, or destroy students?  As the world changes (with different expectations of students and from students), does fear have any place in the first year law school curriculum? 

As a law professor “fear” is a tool.  Some professors use fear in obvious bullying ways.  Some professors use fear though humor and humiliation.  Some professors make you fearful of disappointing them.  Ask any 1L why they are always prepared, and in between answers about “love of the law,” intellectual curiosity, and ambition, you will get the answer “I was afraid not to be prepared.” 

1L classes set up in a Socratic or semi-Socratic teaching style generate fear of embarrassment.  Students are on call, on stage, called out to answer in public.  The fear of ignorance, confusion, or saying the wrong thing is present every day.  Professors demand answers to their questions.  And, the process generates a natural tension that can make some people afraid.  Add in differences in learning styles, culture, and a host of power dynamics, and law schools create an intimidating learning environment that generates a natural fear.

Even with professors who try to be nice, open, inclusive and “definitely not scary,” fear exists.  I don't consider myself a scary teacher.  I teach soft-Socratic with plenty of humor, banter, and encouragement.  I view myself as a "coach" not a drill sergeant (or appellate judge).  But, there is still fear.  The role of standing up in front of dozens of students and commanding attention, respect, and precision with the subject matter generates a healthy fear.

And, that is my question -- is fear healthy?

Again, looking at my own law school experience (and recognizing my own privileged status and engagement) fear definitely motivated me.  I was fearful of being called on (I can still hear the deafening sound of my own heart beating when I knew I was next to be called on in class).  I was fearful about failing (or at least not doing as well as I could).  And, I worked really hard, less out of love of contracts or torts, and more out of a fear of not being prepared and being called out for that lack of preparation.

I could be wrong, or a product of another generation, but fear of not doing well, of failing to meet expectations, or of literally failing law school was ever present.  Fear motivated me (and I believe others) which is why it was intentionally or unintentionally fostered by law professors trying to motivate mastery of the law.

Yet, fear is not a part of other educational environments.  You don't think of high school English class as frightening.  You don't necessarily think of college seminar courses motivated in any way by fear.  While there are certain professors who emulate John Houseman in their lectures (a style that pre-dates The Paper Chase), much of the undergraduate experience is decidedly not Socratic. It is still stressful, but not full of fear.  One reason why students have a difficult time adjusting to “learning the law” involves a greater sense of fear.  

And, I can't imagine fear is scientifically proven to improve learning.  I am no expert, but learning theory seems to suggest otherwise.  And, the intentional creation of fear in a classroom has to be distracting if not disabling to many students.  Fear can bring with it class, gender, and racial power dynamics and can interfere with interpersonal relationships and learning.

So of all the possible motivational emotions, should law schools encourage fear?  Should we make a conscious effort to reduce fear in the classroom?  Should we be more consumer friendly and kind?  Should we replace fear with inspiration? Or collaboration? Or self-reflection?  Or self-reliance?

Or, is the fear that motivates being 100% prepared a life skill we want to cultivate in lawyers?  Should we turn up the pressure and demand more work and stress from our students to be prepared for the always demanding practice of law?  Should every class be like an appellate argument? 

I am afraid I don't know the answer, but think it worth discussing?

Posted by Andrew Guthrie Ferguson on May 19, 2017 at 06:25 AM | Permalink | Comments (13)

Thursday, May 18, 2017

How other law schools do things

Looking for some ideas on how law schools handle some faculty matters.

1) Course/credit releases. How do you handle periodic/special releases from the regular number of courses and credits (whether from 4 to 3 or 3 to 2). Not thinking about faculty buying out, but rather  one-year reductions because of big scholarly projects, etc. How often can faculty do this? Who decides--the dean, faculty, or some combination? Is there written criteria as to what justifies it or is left to decanal discretion? Do the credits get made up in a subsequent year? Is it a banking system?

2) Co-authored articles for P&T. How are P&T committees handling co-authored works in evaluating a colleague's productivity and in deciding what to send for outside review? Are such works being discounted? Do you ask the candidate for a breakdown of who did what or how the writing process worked on the project?

Please respond in comments.

Posted by Howard Wasserman on May 18, 2017 at 03:48 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

The "Fellowship Track": A Plea for Second Thoughts

Building on my earlier post and the comments on it, including mine: There is some agreement there, which I share, that a major contributing factor to the kinds of standardized rhetorical strategies and approaches we are seeing in a lot of (well-placed) law review articles these days--novelty or "under-theorized" claims that are excessive in quantity and substance; sometimes glib Clever Labels strategies; grand claims about the article's importance; overbreadth in treatment; efforts to turn (or portray) what might have been successful and modest "base hit" pieces into home runs, thus making it difficult to dig through the grand claims to find the valuable substantive core and raising the likelihood of fly balls; and so on--is the move to a fellowship model in training and hiring law professors.

As I say below, I think there are reasons for this move and that it has a number of virtues. But I think there has been too little consideration and open discussion of the model's flaws and dangers. In particular, those who run these programs and train the fellows at the high-ranked schools that generate many fellows, including the most successful ones, have not been terribly vocal in discussing what they do and its costs and benefits, whatever internal discussions they may (or may not) be having about them. That's especially dangerous because when it comes to hiring, faculties often consist of a few influential opinion-movers and a fair number of more passive voters, many of whom neither follow the trends closely nor think much about them. They also tend to follow the lead of the elite schools. That means a hiring trend can build easily and without much discussion, especially if the opinion-movers at the hiring schools are (as they sometimes or often are) just chasing the metrics or internalizing trends in the community, without second-guessing these criteria or the trend itself. And there a couple of other reasons, also covered below, why this trend can build without much second-guessing, especially public second-guessing.

One of my favorite movie quotes--I've used it in an article or two--is from Miller's Crossing: "I'd worry a lot less if I thought you were worrying enough." We're not worrying enough about this trend. I emphasize again that there are fair reasons for this model to develop. I'm not trying to throw out the baby (or the babies--the entry-level candidate/fellows themselves) with the bathwater. Criticizing an approach is not the same as urging that we get rid of it entirely. But we do need much more thinking and discussion, and more criticism, of the burgeoning fellowship model. 

As always, it's a long post. I've spared you by giving the thesis above. Read the rest at your leisure and at your own peril. Comments welcome.  

Continue reading "The "Fellowship Track": A Plea for Second Thoughts"

Posted by Paul Horwitz on May 18, 2017 at 02:45 PM in Paul Horwitz | Permalink | Comments (25)

Joining the Prawfs Community

I am extremely excited to join the Prawfs perma-blogger roster.

I started reading Prawfs in 2005, and I followed it kind of obsessively as I left my clerkship and started a teaching fellowship.  I did my first blogging here as a guest.  And it was the Prawfs community--Danny in particular--that introduced me not only to rigorous scholarship workshops, but also to a great number of people that I now consider to be close friends.

In short, PrawfsBlawg helped shape who I am today.  And I'm absolutely delighted to be a permanent part of the community.

Posted by Carissa Byrne Hessick on May 18, 2017 at 10:17 AM in Blogging | Permalink | Comments (1)

Wednesday, May 17, 2017

Welcome Carissa Byrne Hessick as perma blogger

We are happy to announce that Carissa Byrne Hessick of UNC has joined PrawfsBlawg as a permanent blogger. Carissa, who has visited hear many times in the past, writes on criminal law, including Redefining Child Pornography Law: Crime, Language, and Social Consequences.

Posted by Howard Wasserman on May 17, 2017 at 12:30 PM in Blogging, Howard Wasserman | Permalink | Comments (1)

Tuesday, May 16, 2017

Conspiracy theory of the day

In July 2016, after Trump selected Mike Pence as his running mate, Pence visited James Comey at FBI headquarters and said, "I want you to help me become President of the United States."

Posted by Howard Wasserman on May 16, 2017 at 07:57 PM in Howard Wasserman, Law and Politics | Permalink | Comments (4)

Connecting the Law Review Dots

I quite enjoyed Benjamin's post on the overused "under-theorized" line in law review articles. As his link to an old post of mine suggests, it is on a topic dear to my obsessive little heart.

I have no great quarrels with his post, but I would suggest that there is no actual paradox at work. Perhaps there would be if calling something under-theorized were sincere and accurate most of the time that this language is used. But I suspect that it isn't. Sometimes, calling a topic under-theorized is just throat-clearing. Often, it's strategic rhetoric for purposes of placement. Much of the time, it is somewhere in between that and a slightly but importantly inaccurate way of defending one's decision to write about a particular topic. If, instead of the standard and ostensibly impressive-sounding--the less impressive the more often you see it; paragraphs that could be saved as boilerplate are not really impressive, but they are aimed at 24-year-olds who have not seen them hundreds of times before--"under-theorized paragraph," authors wrote what they actually mean, and in plain English, we would more often see something like the following: "[X] is an interesting topic. Plenty of interesting things have been said about it, but they have not exhausted interest in the issue (my interest, at least). Even if they have, I have a few things to say about it too." I would welcome that sort of candor, and less standard-issue academic verbiage. 

Benjamin's post is also arguably connected to Andrew's post about "game-changing" law review articles, as a commenter on that post suggests. And it is connected to another pet peeve of mine, also noted in the comments: the equally standard-issue "novelty paragraph." Law professors routinely write about issues that have been written about before--quite understandably, in my view, since little is new under the sun and people often like to write about old but big and interesting questions. But law professors also like fancy placements and the credentialization, platform, and opportunities for advancement that come along with them. There are three standard strategies for trying to satisfy both urges. First, one can claim--usually ridiculously--that this is the very first article to deal with X, or something of the sort. That's the novelty strategy. Usually and amusingly, the sentence asserting that an article is The First Article on a topic is accompanied by a footnote along the lines of, "Of course, there are honorable exceptions..." That footnote then lists some of the prominent prior articles that, as it turns out, also address the topic that this article is supposed to be the very first to address. Authors, it seems, are willing to do both things--to claim that an article is The First, and to cite prior articles on the same topic--and law review editors are willing not only to stomach this, but to reward them for it.

There appear to be few credible limits to this strategy. But in some cases, either the evidence of prior treatment is overwhelming, or the author has a reasonable amount of shame or integrity. In those cases, the thing to do is break out the second strategy: the "under-theorized" strategy. Yes, lots of people have written about X before. But X remains "under-theorized." And that is this article's reason to exist and claim its own share of the spotlight. The under-theorized paragraph is thus arguably a sub-category of the novelty paragraph. Or perhaps it could be seen as an alternative strategy for instances when a novelty paragraph would be glaringly false.

A third strategy, one that I think is increasingly popular but less noticed as such, is what we might call the taxonomical or Clever Label strategy. It bears some relation to the other two strategies. Yes, X has been written about before. Yes, it has already been "theorized" plenty. But this article offers a remapping of the well-covered territory, in a way that makes better sense of all those other articles that have come before. That's the standard taxonomical approach. Sometimes, the author will place such implicit stock in the new Clever Label that he or she will not even bother to concede that the territory has already been marched into dust. The implicit claim will not be that the new article is valuable because it offers a way of making sense of the issue that takes into account and builds on the earlier literature, but that the new Clever Label is so great that the label is the novelty. I love some of these articles; hey, the best of them really are clever, and sometimes really do usefully place the earlier literature in a new light, putting different approaches into conversation with each other in a new way. But I am extremely leery of those articles that, TED-talk-like, treat neat new labels and snappy, no-colon-and-subtitle-needed titles as genuinely new and profound substance. They often place well, however. So long as they do, they're not going away.

All of these are strategies for placing articles well, not for placing them as such. It is not hard to place an article somewhere. Rather, these are efforts to convince a young editor at a well-placed law review that the article under submission is not just a fine and creditable discussion of something that has been discussed before but merits continued discussion, but that it adds something sufficiently new and terrific to the mix that it deserves prestigious placement. Most scholars, if they're lucky, turn out singles and doubles, along with the occasional pop fly. Claiming that your article is the first, or the first to properly "theorize," or that it provides the niftiest new labels, is a way of trying to convince editors that everything you do is at least a triple, if not a home run. And that's the connection to Andrew's post on game-changing articles, and the comments on it. If the legal academy and its publishing arm were functioning reasonably well, we would look for a lot more singles and doubles--and in hiring new scholars, we would look for evidence that they could turn out a long succession of solid base hits. But entry-level scholars have for some time now been trained by their schools to turn out articles that at least look like triples or home runs. In reality, many or most of those articles are actually either easily fielded fly balls or carefully disguised singles. All those paragraphs up top--whether they involve novelty claims, "under-theorized" claims, or Clever Labels--are ways of making us think otherwise. It's far from clear to me that this is the best way to encourage good habits or sound scholarship.  

Note that I say "making us think otherwise." Usually, with legal scholarship being the comic and reformist industry that it is, this would be the point for someone to write about how peer review would solve all our problems, by putting into place a system that would not require scholars to aim all these strategies at easily cozened 24-year-old law review editors. That might be true in especially sober or empirically based disciplines. Articles like this make me doubt it is true for all disciplines. Much depends on the soundness of one's peers. And I think there are at least two problems with law as far as this is concerned. First, we appear to be impressed by these strategies. Authors of grandiose articles that provide the illusion of clearing the bleachers, and that place well, do well on the hiring market. It's not the 24-year-olds doing the hiring, so I don't think we can fob off our problems on them alone. Second, all this has been going on long enough that I fear we have internalized all these tactics. If we insist on hiring through the fellowship process, and if fellows are being trained in the use of these strategies, and if they then succeed on the hiring market and mentor and judge the next generation of applicants, then I see little reason to hope that peer review alone will save us from our own sins.

It might save us, if one adopted the cynical view that everyone realizes that these strategies are just that, and that many novelty claims and other such boilerplate should be disregarded in favor of a focus on the substance. But in a field in which everyone on the faculty judges specialist articles when voting on hiring, it's hard to judge soundly on the substance rather than the bells and whistles. And I think this is actually a somewhat naive, first-order form of cynicism. It assumes that everyone is smart enough to know better, and that they are also strong enough to act better when they know better. A more convincing cynical view, to my mind, would conclude that we are not always smart enough to know better; that we suffer from the same cognitive defects as everyone else, and thus are likely to fall for the same tricks as everyone else, especially if we have profited from and internalized those tricks; and that even when we know better, we may lack the strength of will to resist in the face of professional norms, the praise of recommending professors at big schools, and the votes and voices of other members of our own faculty. Even if I am usually aware enough of and peeved enough by the kinds of things I have written about here to spot them when candidates come calling, I am sure I am not always strong enough to stick to my objections in the face of those influences, especially when I know that the strategies work in the wider world and I would like my law school to enjoy enhanced prestige. And I do not think I am significantly weaker-willed than most of my colleagues. So I have little good cheer to offer, other than the faint suggestion that we ought to be spending more of our time looking for solid base hitters than for long-ball hitters. 

Posted by Paul Horwitz on May 16, 2017 at 06:18 PM in Paul Horwitz | Permalink | Comments (10)

Parlor Games and the FBI Directorship

Mitch McConnell (following the lead of Utah's Mike Lee) is urging President Trump to nominate Merrick Garland for FBI Director. McConnell insists that Garland would provide the nonpolitical professionalism needed for the position, plus he would get Democratic support, which would be a benefit for this appointment. And, of course, although McConnell does not say so, it also would give Trump a vacancy on the D.C. Circuit.

But Garrett Epps argues that it need not create any vacancy. Nothing in the Constitution or federal statutes prohibits a judicial officer from holding executive-branch office (I wrote in January wondering whether Garland would have had to resign his seat had Obama made a recess appointment). Epps cites numerous examples of simultaneous work, including Justice Jackson taking a one-year leave from SCOTUS to serve as Nuremberg prosecutor and Chief Justice Warren simultaneously chairing the commission investigating the Kennedy assassination. Epps argues that Garland could take a leave of absence from the D.C. Circuit to head the FBI for a few years (long enough to investigate Russia and anything else that comes down the Trumpian pike), then go back to the court after a few years in the Hoover Building* All it takes is the approval of the Chief Judge of the Circuit--and the Chief Judge of the Circuit is Merrick Garland.

[*] Although how much administrative trouble would it create when Garland came back to the D.C. Circuit. Would he have to recuse from nearly every federal criminal case in which FBI agents investigated?

Of course, McConnell is politically savvy and would ensure that Garland agreed to resign from the bench as a condition of confirmation. But Democrats might still score some political points, showing that McConnell's desire for bipartisanship is a ruse to create a judicial vacancy for a Republican president. If McConnell is  serious about wanting Democratic support and a non-partisan figure for the FBI, he should not insist on the new partisan gain of the judicial appointment

Ultimately, this is a parlor game (hence the title of the post) that makes for fun musings but will never come close to reality.

Posted by Howard Wasserman on May 16, 2017 at 02:23 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Spencer appointed to Civil Rules Committee

Ben Spencer (Virginia) has been appointed to the Civil Rules Advisory Committee. Congratulations to Ben.

Posted by Howard Wasserman on May 16, 2017 at 10:00 AM in Civil Procedure | Permalink | Comments (1)

Game-Changing Articles

This will be the last time I try to crowdsource the wisdom of Prawfsblawg this month.  But, like many relatively new law professors, I have tried to figure out what makes a game-changing, seminal law review article.  Some articles create new theories that shape law.  Some articles canvass an area of law.  Some reconstruct ("under-theorized") theory in new ways.  There are even wonderful law review articles about law review articles -- filled with citation counts and metrics which help identify articles that qualify as influential. 

But, what have been the true game-changing articles in the last seven years (since I have should have been paying attention)?  What are the articles that changed perceptions and qualify as seminal articles?  As just one of many possible examples, something like Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890) which helped shape tort law, Fourth Amendment law, and an understanding of privacy. 

Self-nominations welcome.

Posted by Andrew Guthrie Ferguson on May 16, 2017 at 09:45 AM | Permalink | Comments (9)

Monday, May 15, 2017

The Under-Theorization Paradox

The "under-theorization" paragraph has become a standard move in article introductions. To explain why editors and readers should value a law review article, many authors include a paragraph pointing out that the issue has not received enough attention or is "undertheorized," whatever that means.  The phrase's proliferation has led to posts discussing undertheorization.  We even have a law review article on the Under-Theorized Asterisk Footnote.  A quick Westlaw search reveals that undertheorized or under-theorized has appeared in 1,982 law reviews.  The number stood at about 11,00o in 2012.  In books, the term first began showing up in the 1980s and its popularity has grown steadily. 

Yet supporting an undertheorization claim may undermine an undertheorization claim.  If you want to show the reader that your article addresses an under-theorized area, the usual proof may cast doubt on your claim.  For example, I believe that the academic literature does not examine industry self-regulation enough.  For support, I turned to others making similar claims:  

Jonathan Macey & Caroline Novogrod, Enforcing Self-Regulatory Organization's Penalties and the Nature of Self-Regulation, 40 Hofstra L. Rev. 963, 963 (2012) (“[f]ew issues are as poorly understood and under-theorized as the concept of ‘industry self-regulation’”); Andrew F. Tuch, The Self-Regulation of Investment Bankers, 83 Geo. Wash. L. Rev. 101, 105 (2014) (explaining that FINRA’s “self-regulation of investment bankers has thus far attracted scant scholarly attention”); Saule T. Omarova, Wall Street As Community of Fate: Toward Financial Industry Self-Regulation, 159 U. Pa. L. Rev. 411, 414-15 (2011) (“what is conspicuously absent from the . . . broader debate among academics and policy-makers, is a meaningful discussion of the role and shape of industry self-regulation in the emerging postcrisis regulatory order”).

Evidence for the claim that little attention has been paid to industry self-regulation comes from other articles about industry self-regulation. While we're all correct about the need for closer attention to industry self-regulation, marshaling evidence that an area needs more attention may—at some point—cast doubt on the claim.  

This is the under-theorization paradox:  as claims that not enough people write about an area accumulate, the likelihood that an area actually needs more academic attention declines. 

Posted by Benjamin P. Edwards on May 15, 2017 at 08:07 PM | Permalink | Comments (11)