Wednesday, July 27, 2016
Oral Arguments for Law Students
I will sometimes – not often, maybe once a semester, if that – play a couple of minutes of oral argument from the Supreme Court for my students if they are particularly enlightening. For example, I have played portions of the argument in the recent Facebook threat case, Elonis v. U.S., in Criminal Law in order to put a spotlight on how the Court decides on what mental state requirement it will impute to a statute when the statute is silent. Particularly helpful is Justice Kagan’s ticking off of the Model Penal Code’s taxonomy of mental states, just as the students are being introduced to this taxonomy in class. In my death penalty seminar, I recently had the students do moot courts of two pending cases, and then in subsequent classes we listened to the actual arguments. This was particularly helpful because students were by then intimately familiar with the issues in the case and had read the briefs.
It occurred to me recently that we ought to encourage, or perhaps even require, our students to listen to full oral arguments outside of class. For students who are still under the mis-impression that law school is about learning the law as opposed to learning to think like a lawyer, listening to arguments is a helpful reminder that the law is largely indeterminate and in flux, and that good advocacy skills are essential to the practice of law.
I would even strongly suggest that students listen to a few oral arguments before starting law school in the fall. After all, the back-and-forth between judge and advocate is strikingly similar to the back-and-forth between professor and student. Listening to oral arguments will prepare students for what law school is really all about. It may also teach students to avoid some of the common pitfalls for students, which are often reflected in poor advocacy, such as dodging the question and fighting the hypo.
While most of our students will never make it to the Supreme Court, I think there is a value to having them listen to arguments from that Court rather than some other court. First, the recordings are easily available. Second, the arguments in the Supreme Court are much more likely to cut to the heart of an issue, whereas arguments in lower courts can get bogged down in jurisdictional, procedural, or factual issues that are less interesting and accessible for future lawyers. Third, the students are more likely to be familiar with the issues in Supreme Court cases without having read the briefs. Finally, and most importantly, the issues that arise in Supreme Court cases, of course, are not peculiar to Supreme Court cases. The same issue might arise in scores of lower court cases that, for one reason or another, never make it to the Supreme Court.
Tuesday, July 26, 2016
If you write and think about policing, as I do, acting on behalf of the community has become one of the core problems of recent weeks. I have found the whole business of shootings and assassinations in Dallas, Baton Rouge, and Minnesota, quite appalling. These shootings have raised questions about who can claim to act on our behalf. And that question—how we get to act on behalf of or in the name of some community—seems to me to be one of the most pressing issues in modern policing. For the police are legitimate only if they act on behalf of the law and of the community.
Michelle Madden Dempsey, has proposed one answer to the “acting on behalf of” conundrum in her great book on criminal prosecution, Prosecuting Domestic Violence: A Philosophical Analysis. The book’s title is misleading: it goes way beyond a focus on domestic violence, although domestic violence prosecutions form a test case for some of her claims. If you are interested in criminal prosecution, or applied analytic philosophy, or just probing, clear thought, it's a must read.
On the subject of law enforcement and communities, Dempsey suggests that:
Philadelphia police and public protest
Interesting discussion of how the Philadelphia police are responding to public protest during the current DNC (as well as how they have responded to more recent Occupy and Black Lives Matter events). And he contrasts it with the city's absurd overreaction to the 2000 RNC, which produced 400 arrests in four days, few or no convictions, and unknown amounts in civil settlements. I was clerking in Philly during the 2000 convention and it was walking around a police state, in the pre-9/11 days, when that was not the norm.
Monday, July 25, 2016
JOTWELL: Campos on aggregating administrative action
The new Courts Law essay comes from Sergio Campos (Miami), reviewing a recent report of the Administrative Conference of the United States on using aggregate adjudication in administrative proceedings.
Google Scholar Law Review Rankings - 2016
Google has published its 2016 Google Scholar Metrics, just in time for the fall law review submissions angsting season to begin (I see that in response to folks already calling for a new Angsting Thread, Sarah has just posted the Fall 2016 Angsting Thread slightly ahead of schedule). I've placed a table with the 2016 Google Scholar Rankings for flagship/general law reviews below the break (with comparisons to the 2015 ranking). I started tracking these Google Rankings as part of the Meta-Ranking of Flagship Law Reviews that I first proposed here at Prawfs in April (combining USN, W&L, and Google scores into a single ranking). And, as both Google and W&L have updated their rankings/metrics since that time, I'm also working on an updated meta-ranking in time for the opening of the fall submissions period (just for fun).
I realize most people probably don't make any submissions decisions based on the Google Rankings (and the methodology does have its limitations; and one startling change in the 2016 data is that the North Carolina Law Review, ranked #21 in 2015, doesn't even show up in Google's metrics this year for some reason - perhaps their article repository no longer meets Google's inclusion criteria), but I do think it provides an interesting metric for measuring law journal impact, alongside the W&L rankings, particularly for someone like me who publishes in both law reviews and peer-reviewed journals in other disciplines. I like that Google Metrics can provide some idea of how a particular range of law reviews measure up to a social science journal - and vice-versa - in terms of scholarly impact. The W&L ranking doesn't provide much of that information, as it is generally limited to law reviews; US News college rankings don't apply; and the Journal Citation Reports rankings by Thompson Reuters doesn't have very good coverage of legal journals.
However, with Google's metrics I can see e.g., how the social science journals I've published in (or am thinking about submitting to) stack up against law reviews. For example, I can see that Government Information Quarterly has a slightly higher average Google Metrics score (63; h5-index of 51, h5-median of 75) than the Harvard Law Review (61; 40/82), that The Information Society (26.5; 21/32) ties with the UC Davis Law Review (26.5; 20/33) and the Ohio State Law Journal (26.5; 18/35), and that Surveillance & Society (21; 18/24) ties the Houston Law Review (21; 16/26). I think this can be helpful for gauging where to submit research that crosses disciplinary boundaries, but I see how it might not be so useful for someone who only wants (or needs) to publish in law journals. I'm curious if any readers find the Google metrics useful for comparing law/non-law journals or for thinking about (law) journal submissions generally.
Submission Angsting Fall 2016
This is the post to share information or ask questions about submitting to law reviews.
The comments can be used to share information, complaints, praise, etc. about which journals you have heard from, which you have not, and so forth.
Additionally, a spreadsheet to gather information is here (and embedded below).
I won't update or watch the spreadsheet. You can go ahead and add your own information by going to the spreadsheet here. The spreadsheet is editable by anyone, except that a few columns and a row (the ones highlighted in yellow) are locked, either because they auto-calculate or because tampering with them has caused a problem in the past. (If something about them needs to be changed post a comment, and I will change them.) As more information is added, I will do some pointless data calculations on subsequent sheets.
Entering information in the column entitled "Username" is of course totally optional, but a way to make keeping track easier. For example, if you pick a username, you will easily be able to sort by your entries and update them, instead of trying to remember what day you submitted and sorting that way. This also adds information -- showing, for example, that all of the entries on the spreadsheet come from one person, or from lots of people, etc. At any rate, totally optional, and simply a way to add more information.
Here is the final page of comments.
Thoughts on Reason-Based Regulation of Reproductive Decision-Making: Part II
In an earlier post, I blogged about the rise of reason-based bans on abortion (such as laws banning abortion for sex selection, or because of fetal anomaly), and I hypothesized that there is the constitutional privacy right includes a right to make a constitutionally protected decision for whatever reasons one chooses. In this post, I want to consider another type of law that arguably implicates this privacy right, and also places it in conflict with other individuals’ religious freedom–specifically, laws that require employers to provide insurance coverage for contraceptives when they are needed for particular reasons.
About half of the states currently require insurers in the state to provide coverage for contraceptives. These state-law contraceptive coverage mandates are separate from the regulation requiring contraceptive coverage under the Affordable Care Act and apply independently of it. Because these mandates are enforced by state governments rather than the federal government, the federal RFRA—construed in Hobby Lobby to require an accommodation for employers that object on religious grounds—does not apply directly to them. Nonetheless, in many of these states, religious employers may still be able to access insurance plans without contraceptive coverage, either because the state contraceptive coverage laws also have religious exemptions written into them, or because those exceptions are available via state RFRA analogs.
In a handful of states, employers may opt out of providing insurance coverage of contraceptives for contraceptive purposes but not for therapeutic purposes. For example, Arizona law, which requires insurers to provide contraceptive coverage if they cover other prescription drugs, also provides that “a religiously affiliated employer may require that the corporation provide a contract without coverage for” contraceptives. However, it goes on to specify that the insurance policy cannot exclude coverage for prescription contraceptive methods prescribed "for medical indications other than for contraceptive, abortifacient, abortion or sterilization purposes.” Similarly, North Carolina law allows religious employers to offer plans without contraceptive coverage but does not exempt them from covering prescription contraceptives "for reasons other than contraceptive purposes, or ... that is necessary to preserve the life or health of a person covered under the plan.” Presumably, these sorts of provisos would cover women who seek contraceptive drugs for purposes of avoiding or curing particular medical conditions (such as certain skin conditions or menstrual disorders) as well as women who need contraception because pregnancy would be life-threatening or harmful to their health. At least in the latter scenario, it seems clear that such provisos distinguish between valid and valid reasons for the same reproductive conduct.
These sorts of laws set up a potential conflict between a woman’s right to privacy with respect to the deliberative process and an employer’s right to act based on religious motivations. Because the right to autonomous decision-making has constitutional stature (as I argue in Part I) and the right to act based on religious motivations does not (as explained below), it seems clear that the woman’s right to access contraception for any reason whatsoever should prevail.
Saturday, July 23, 2016
Dudziak on Trump on Turkey (Updated)
Mary Dudziak (Emory) critiques Donald Trump's comments about not lecturing Turkey about civil liberties in light of our problems at home. A legal historian, Dudziak describes how this argument--that the United States could not exercise moral authority abroad because of problems at home--was made by the Soviet Union, not Presidents of the United States. Instead, those Presidents responded by seeking to remedy domestic injustice (she points to Eisenhower sending troops to Little Rock and Kennedy's response to Birmingham), expressly to bolster international standing.
But as I argued, Trump is not making the same argument that the Soviets made during the Cold War, that we cannot exercise moral standing on matters of justice because we have not corrected racial injustices at home. He is not arguing that we are estopped to exercise moral leadership because of our own failings, failings these other Presidents then tried to correct. He is arguing we should not care about exercising moral leadership until we get our house in order. And getting our house in order means not eliminating barriers to racial equality, but eliminating barriers to police maintaining law and order. Trump does not want to convince Turkey to be more like us; he wants to make us more like Turkey.
More on athlete speech in the WNBA (Second Update)
Second Update (Saturday evening): The WNBA, about to enter a month-long break for the Olympics, has rescinded the fines against several teams and players and will use the break to negotiate with the players' union about rules for player protests.
Following on my post about protests by WNBA players: Claire McNear at The Ringer wonders when the WNBA became apolitical, given the league's reactions to previous tragedies such as the Orlando shooting (when the league gave the players official memorial t-shirts), to say nothing of the league's general promotion of LGBTQ and women's issues. It also departs from the NBA's response both to the Lynx protest (NBA Commissioner Adam Silver praised their efforts) and to individual NBA players who have spoken out in similar ways the past few seasons (notably in wearing "I Can't Breathe" shirts during warm-ups). McNear questions whether the line really can be about who made and distributed the t-shirts.
Clinton's VP and the Senate
I do not pretend to know anything about Hillary Clinton's political calculations in choosing Tim Kaine (forever a/k/a, "The Boring Choice") as her running mate. There was a lot of media discussion about the effects on the Senate. Four of Clinton's choices were sitting Senators--Kaine, Cory Booker (NJ), Sherrod Brown (OH), and Elizabeth Warren (MA)--who would resign their seats if elected VP. All but Kaine would be replaced by a temporary appointee appointed by a Republican governor, possibly costing the Democrats control of the Senate, which might come in at 50-50. In theory, that was a factor in his favor.
But this also means the Democrats will have to defend that seat in a special election in a purple state, a low-turnout situation in which Democrats tend not to fare well. Which means if the Senate is 50-50 beginning in January 2017, Clinton may have her majority only for a year. By contrast, at least with Brown Booker and Warren, Democrats would have had the opposite problem--a lost or weakened majority at the beginning of the term (because those seats would be filled by Republican governors), but a greater chance to win the special election in a deep-blue state (Booker won his seat in a 2013 special election), giving or increasing that majority for the second year of Clinton's term. Moreover, the calculus likely assumes that Democrats will lose the Senate in 2018, when they have to defend 25 seats, including a number of people in Republican states who won on the strength of Obama turnout in 2012. So is it better to have the bigger majority in the first year or the second year? Probably the first, since by 2018, the Republicans will be gearing up for a landslide mid-term.
Advocates for selecting Warren had been pushing a way to make the appointee term even shorter. Massachusetts requires a special election 145-160 days after a vacancy occurs (in the other states, the special election would be in November 2017). So if Warren had resigned on January 20, the election would have been in June; if she resigned November 8 (or whatever date it became clear she and Clinton had won and that she would be VP absent some catastrophe), the special election would have been in April. The Democrats likely would have won that seat (having learned the lesson of Scott Brown), so Clinton would have gotten her majority 3-6 months into the first year of her term.
Friday, July 22, 2016
The Meaning of Sex Discrimination
In response to a number of questions from school districts about how to serve transgender students under Title IX, the Departments of Justice and Education issued joint guidance in May explaining how they interpreted the prohibition on sex discrimination contained in Title IX and its implementing regulations. In bringing clarity to the issue, the guidance explains that the prohibition on sex discrimination “encompasses discrimination based on a student’s gender identity, including discrimination based on a student’s transgender status.” Pursuant to the guidance, “[t]he Departments treat a student’s gender identity as the student’s sex for purposes of Title IX and its implementing regulations.” The guidance then details that transgender students should be permitted to use restrooms and locker rooms consistent with their gender identity.
A number of states have filed lawsuits challenging the guidance, arguing that the Administration is “foisting its new version of federal law” on schools. But the Departments’ interpretation is not drawn from whole cloth. In fact, courts have recognized that sex discrimination under federal civil rights statutes includes discrimination based on someone’s transgender status for some time, authority that is noted in the Departments’ guidance, and is collected here and here. And of course, in Price Waterhouse v. Hopkins, the Supreme Court adopted a capacious understanding of what constitutes “sex” discrimination, prohibiting sex stereotyping or treating people differently because of their perceived failure to conform to gender norms.
The states also argue that the Departments are attempting to “redefine the unambiguous term ‘sex.’” But the statutory and regulatory meaning of the prohibition on sex discrimination as it relates to transgender individuals is far from clear, as the Fourth Circuit recently concluded in G.G. v. Gloucester County School Board, the lawsuit by a Virginia transgender boy challenging his exclusion from the boys bathroom. Indeed, as one of the lawsuits challenging the Departments’ guidance concedes, “[n]othing in Title IX’s text, structure, legislative history, or accompanying regulations address gender identity,” suggesting—at most—that the statute doesn’t speak, one way or another, to whether transgender individuals are protected by the statute. As the Fourth Circuit held in G.G., because the law is “silent as to how a school should determine whether a transgender individual is a male or female for the purpose of access to sex-segregated restrooms,” there is an ambiguity which the Departments are permitted to clarify.
But if you try sometime
The Rolling Stones' "You Can't Always Get What You Want" has become a staple at Donald Trump rallies, including following last night's acceptance speech (the band objected months ago, but the campaign has not relented). Some questioned the choice, that it seems odd for a political candidate to adopt a theme of settling because you could not get what you wanted to get.
But the theme of last night's speech-- "I alone can fix it"--suggests that the key phrase is what comes later in the chorus--"if you try sometime, you might find you get what you need." Trump is positioning himself as the essential person, the only person to save the nation from, apparently, a dystopian hellscape. The American people need Donald Trump, and only Donald Trump, to be President. By electing him, the American people will find they got what they need.
Or am I giving them too much credit?
Call for papers: Visual Data as Accountability, Resistance, and Surveillance (Law & Social Inquiry)
Along with my colleagues Sarah Brayne (UT-Austin, Sociology) and Karen Levy (Cornell, InfoSci), I am excited to announce our call for papers for a special section of a forthcoming issue of Law & Social Inquiry. Abstracts of ~500 words are due August 10 via email to LSIvisualdataspecialissue [at] gmail [dot] com. You can find a PDF of the full CFP here, and in text form below.
We are happy to receive a broad range of proposals for the special issue as long as they fall within the theme Visual Data as Accountability, Resistance, and Surveillance. Indeed, quite a few topics in the news recently also speak to the importance of greater legal, technical, and social understandings of these issues, including the continued use of citizen video/body camera video/CCTV video to document police action or even livestream events, Erdogan's use of FaceTime after the recent attempts at a coup in Turkey, and even Kim Kardashian's snapchat video of Kanye West and Taylor Swift.
Overview (continues after the break):
The capture, analysis, and dissemination of visual data—including video (with or without audio), photographs, and other visual recordings—has become ubiquitous. Facilitated by digitization, globalization, and the proliferation of mobile media, visual data is transforming the documentation of activities in a wide range of contexts, including policing, legal adjudication, war, human rights struggles, and civic action. Visual data is being collected by state actors and individual citizens, each often documenting the actions of the other. The use of this data as evidence (both inside and outside formal legal proceedings) raises significant issues related to privacy and ethics, authentication and credibility, interpretation, inequality, power, and legibility. Law is implicated at both the point of recording (or documentation) and during downstream activities, such as when recordings are shared or posted online, publicly disclosed under freedom of information laws, or introduced into evidence during legal proceedings.
Different technologies afford different viewpoints. Visual data constitutes a unique form of information that presents emergent legal and policy questions because of its technical form and social effects. The mobilization of visual data can shape and reshape public opinion, representation, suppression, visibility, inequality, and admissibility of evidence; it can serve to incriminate or exonerate. Visual evidence can legitimize certain accounts of events while calling others into question. And, thanks to the proliferation of mobile devices, more people can capture video and photographs than ever before, at a moment’s notice, simply by pulling out their phones—and can distribute them instantaneously, creating visual records of all types of behaviors and conflicts, from confrontations between citizens and police to political gaffes, from sex tapes to dashboard camera footage of traffic-related events. The recent adoption of police body cameras and the use of video by bystanders as a tool for inverse surveillance demonstrate our increasing reliance on video as a check on power, as well as a source of ostensible authority when accounts about “what really happened” are in conflict. At the same time, the crucial role of interpretation suggests video is not as much of an “objective observer” or independent witness as it is sometimes claimed to be, and visual evidence may have unforeseen implications for weighing evidence in civil or criminal cases—or in the court of public opinion.
Thursday, July 21, 2016
Athlete speech and team dynamics
Last week, NBA stars Carmelo Anthony, Chris Paul, LeBron James, and and Dwyane Wade kicked off the ESPY Award telecast with a call for athletes to become politically engaged, particularly around the issues of violence by and against police. Players on the Minnesota Lynx wore black warmup shirts with white lettering commemorating Alton Sterling, Philando Castile, and Dallas shootings, which prompted four off-duty police officers to walk-off their security jobs there. Several other teams followed suit by wearing plain black warmup shirts, which prompted the league to fine each team $ 5000 and each player $ 500, citing its uniform policy. The league president praising and expressed pride in the players' "engagement and passionate advocacy for non-violent solutions to difficult social issues," while demanding that they "comply with the league's uniform guidelines." This, of course, is a classic example of how neutral policies can be used to restrain speech, while allowing those doing the restraining to claim to support the speech. Players responded today with a media blackout, refusing to answer basketball-related questions and only talking about the political issues at the heart of their protests. Since the league no doubt has rules about speaking with the media, expect the WNBA to follow with more praise for the players' political courage, more citation to "neutral" rules, and more fines for that political courage.
This is playing out on a smaller stage than if it were male athletes in football, basketball, and baseball. But this story illustrates important issues about athlete speech for team, as opposed to individual, sports. The athletes we remember as being most politically engaged played individual sports--Muhammad Ali, Arthur Ashe, John Carlos, Billie Jean King, Jesse Owens, Tommie Smith. A lot of the activism from Jackie Robinson and Jim Brown came after each had retired and, in any event, rarely came out on the field (except to the extent Robinson's very presence on the field was political). All athletes risk their standing with the public and fans who may object to their speech (recall Michael Jordan's apocryphal "Republicans buy shoes, too"). But team-sport athletes face another hurdle--their expression implicates the financial, business, and other concerns of teams and leagues, who have their own incentives to limit this speech. Neutral rules designed to promote the sport (speaking to the media) or to promote team unity (uniform rules) provide the perfect weapon of control, allowing leagues or teams to shut the players down without appearing to be stopping them because of their message.
The question then becomes the extent to which "athlete speech" includes (or should include) the liberty to speak through the game itself and the platform the game provides. In other words, the extent to which LeBron James not only should be able to rely on his fame to get his message out, but also the platform of the game itself to do so.
Trump, Turkey, and the "problem" of civil liberties
Donald Trump's interview with The New York Times would be the story of the day, but for Ted Cruz's act of political courage/political suicide. Trump was asked about the situation in Turkey, where President Recep Endrogan survived a coup attempt and is consolidating power, declaring a three-month state of emergency, purging political rivals, and imposing restrictions on speech and press. Trump's short answer was that the US has too many problems at home and has no right to lecture other countries about civil liberties.
Some have read that as Trump saying that we have issues with limits on civil liberties here, so we cannot speak to anyone else about their own limits. That is what people usually mean by "no right to X"--we don't have the right to lecture anyone about X, because we do X ourselves. It is an argument about hypocrisy and inconsistency between word and deed.
But a closer look at Trump's remarks reveals the opposite. Trump is arguing that we have anarchy here, implicitly because we have too many civil liberties. So we need to restore order (which fits with his new Nixonian Law-and-Order theme) before worrying about urging other countries to be less repressive on their own people. It is an odd use of the "no right to" argument, but it better fits with his views of dissent and speech he does not like.
He Who Must Not Be Named
Do Animal Rights Trump Their Guardians' Fourth Amendment Protections?
Today, the Supreme Court of Oregon decided State v. Newcomb, an interesting animal neglect/Fourth Amendment case, which raises interesting questions about sentience, ownership, poverty, and state intervention.
Newcomb's neighbor complained to the police that Newcomb was neglecting and starving her dog, Juno. A police officer arrived at Newcomb's house and saw Juno "in a near-emaciated condition", with "no fat on his body", "eating at random things in the yard, and * * * trying to vomit", but "nothing was coming up." The officer inquired as to the dog's condition, and Newcomb explained that she had run out of food for the dog, which she bought in small quantities. The officer took custody of Juno and brought him to the Humane Society, where he was found to be in deplorable physical condition due to starvation. The vet took a [warrantless] blood sample--which is at the heart of the controversy here--which found that Juno had no underlying condition explaining his emaciated state except malnutrition.
Newcomb was charged with second-degree animal neglect and moved to suppress the evidence. She claimed the officer had no probable cause to seize Juno. More interestingly, she claimed that, since the dog is no more than property in the eyes of the law--"no different than a folder or a stereo or a vehicle or a boot"--the blood sample was an unreasonable Fourth Amendment search, which violated Newcomb's expectation of privacy. The fact-finding court denied the motion and Newcomb was convicted. At the Oregon Court of Appeals, the decision was reversed with regard to the blood sample. The Supreme Court unanimously reversed, finding for the State and affirming the conviction.
Wednesday, July 20, 2016
In defense of Paul Ryan (no, really)
Paul Ryan is taking heat, from right and left, for his speech last night and his general decision to support Trump's presidency. But Ryan's decision is defensible, in terms of his political and policy goals.
He wants to enact a particular conservative agenda, which he only can do with a Republican in the White House. Ryan may sincerely believe that Trump is not Mussolini or David Duke [or other non-Hitler authoritarian], but Warren Harding with verbal diarrhea--someone who lacks the ability or interest to govern and will turn things over to those around him. So Trump will travel the world and the country talking (sometimes stupidly, perhaps, but never to any real effect), leaving the business of governing to others. Ryan must believe that he will be that other (although it could be Mike Pence), with Trump coming back to sign the bills that Ryan passes. In a sense, Ryan is trying to make himself something like a Prime Minister--the head of government to Trump's figurehead head of state. It is telling that his speech last night spoke less of electing Trump than of establishing a "conservative majority" that could enact the conservative legislative agenda. Trump is necessary for that only in that he is more likely to sign that agenda into law than Hillary Clinton.
Ryan could be wrong about what Trump is and would be as President, of course, and this could blow up in his face. But if he genuinely believes Trump is not dangerous, then this move is the logical extension of the recent trend toward a system that only works if there is party unity between the legislative and executive branches. It no longer matters who is President, only his party affiliation.
Note that Mitch McConnell is making the same calculation in the Senate (with the added bonus that he is more likely to keep his job as Majority Leader if Trump wins, since a Clinton win may flip the Senate), although without taking the same heat. That must be because no one had any illusions that McConnell was anything other than a political hack.
SSRN, Elsevier, and the Alternatives (again)
(I've updated this post on July 21 at 10:17am CET, and I've indicated below what content is new or revised)
Elsevier has become the world's largest open-access publisher, but it has also faced quite a lot of pushback from scholars over its open access policies. Now it has purchased SSRN, generally seen as the go-to repository for open access to (mostly) pre-print legal scholarship (or papers not bound by restrictive copyright licenses), and certain voices have begun to call for authors to pull out of SSRN and move elsewhere (the almost-in-beta nonprofit and open access SocArXiv repository looks like it might make a viable option as it comes more fully online).
Following up on this recent post by Howard (of an email by Stephen Henderson (Oklahoma)), as well as coverage at TechDirt, and Author's Alliance (asking: "Is it Time for Authors to Leave SSRN?"), I wanted to raise some additional questions. My first reaction is that a well-organized and sufficiently funded not-for-profit platform would be much more preferable in the long run than keeping ties with a for-profit platform owned by a controversial mega-publisher. However, I wonder whether such a move is worth it, without some larger (even institutional) challenge to SSRN's reign. I also wonder whether junior scholars like me risk more in leaving than more established scholars. To the specific questions:
First, is there a role for institutions (law schools) to withdraw support for SSRN/Elsevier and move towards supporting a non-profit like SocArXiv? If so, how would we organize such a movement? Would it be worth it in the long run to move support away from a for-profit platform to something like SocArXiv? SSRN has done a good job of getting institutional buy-in, which may make it harder for a broader institutional challenge to its pre-eminence in this regard. For example, my own law school, at Tilburg University, has proudly advertised that we are ranked in the top 10 (worldwide) and #2 (international, non-US) on SSRN for "total new downloads." We also publish our working paper series through SSRN. Yet, we also have a history of calling for boycotts of Elsevier over not making more work available on an open access basis in the Netherlands. (Edit: I offered these examples to show that the elements of gamification on SSRN work as a way to entrench support or, at least, make leaving more costly.)
Second, what are the individual risks of pulling papers off SSRN and moving elsewhere? Would pulling papers off SSRN (and thus presumably losing the stats and author ranking on the site) be more risky for less established junior scholars (or law prof hopefuls)? What role has SSRN (and author download rankings) played in evaluating entry-level job candidates or lateral candidates for jobs, or internal candidates for promotion/tenure? Does SSRN performance play any role in committees or administrations judging scholarly impact? (if so, should it?)
[Edit: Third, If a new open-access archive for law scholarship were to come online in the near future, what characteristics or features would you want it to have or not have (either those already existing on SSRN, ResearchGate, et al., or entirely new features?)]
Tuesday, July 19, 2016
Stanley Fish is Criticizing the Academy, for a Change
I must admit that I am bothered by Stanley Fish’s op-ed from a couple of days ago, entitled Professors, Stop Opining About Trump. In it, he criticizes the strongly anti-Trump “Open Letter” from a group of historians calling itself Historians Against Trump, published on July 11, 2016.
In his op-ed, Fish describes the letter as hubristic, in that it improperly seeks both to “equate the possession of an advanced degree with virtue” and to “claim for [the historians] a corporate identity and more than imply that they speak for the profession of history.” He points out that historians do not all share the same political views; that the fact that “that they have read certain books, taken and taught certain courses and written scholarly essays, often on topics of interest only to other practitioners in the field” gives them no special expertise relevant to the question of Trump’s suitability for the presidency; and that professional academic historians’ job is not to opine publicly on such matters, but rather to “to teach students how to handle archival materials, how to distinguish between reliable and unreliable evidence, [and] how to build a persuasive account of a disputed event.”
To summarize, it seems there are two principal aspects of the Open Letter that Fish takes issue with: first, that it claims to speak on behalf of an entire profession; and second, that it implies that historians, by virtue of their professions and advanced degree, have any special standing to criticize a political figure or make political arguments.
This sort of anti-elitism from within the elite of the academy has its charms, of course, and Fish is certainly one of its most brilliant and provocative practitioners....
Black and Blue in Baltimore
Was it worth it? A judge, after a bench trial, just acquitted the third and highest ranking of the Baltimore police officers charged with killing Freddie Gray. So far there have been no convictions. Should the Baltimore District Attorney prosecute the others? More generally, is there a duty to prosecute public officials, even if there is only a remote chance of success on the merits?
I think the work of Antony Duff might prove helpful here. He believes wrongdoers are a specific category of people identified by a duty that they are under: to answer to those they have wronged for their unjustified and harmful act. The duty to answer is, so Duff thinks, a feature of responsibility: wronging someone puts the wrongdoer in a relationship with their victim. The victim has the duty (not just the right, but—Duff believes—the duty) to call the wrongdoer to account; and the wrongdoer owes the victim a response: the wrongdoer has a duty to account for her wrongdoing by giving reasons to justify, excuse, or accept the blame for her wrongdoing, and then take action to expiate her wrong. Owing a response places the onus on the wrongdoer to come forward with her account; morally, she cannot just stand pat and hope no-one notices the wrong, or her responsibility for it.
Monday, July 18, 2016
Decentralizing the Exclusionary Rule
One strand of my research in the last few years has focused on exploring what I see as a federalism component of the Fourth Amendment. In The Contingent Fourth Amendment, 64 Emory L.J. 1229 (2015), I looked at the law of search and seizure from 1765 to 1795, with particular focus on the Justice of the Peace manuals used at the time, and what the Anti-Federalists said and wrote about search and seizure during the ratification period. I concluded that the best way of viewing the Reasonableness Clause of the Fourth Amendment was as a constraint that federal officers follow state law when searching and seizing. In a piece I am currently finishing up, “The Local-Control Model of the Fourth Amendment,” http://ssrn.com/abstract=2721014, I provide more evidence in support of that claim and I contrast this “local-control model” to the two dominant models of viewing the Fourth Amendment, the “warrant model” and the “reasonableness model.” And in “Decentralizing Fourth Amendment Search Doctrine,” which I just began in earnest, I am exploring the claim that the “what is a search” question should be decentralized so that the answer might differ by State, or even by locality.
Something I so far have not looked at, but hope to in the coming years, is the exclusionary rule, and how a decentralized approach to the rule might make sense.
Sunday, July 17, 2016
Greetings from France
As chance would have it, I happen to be in Paris at the moment (and was here at the time of the Nice attack, on the 14th of July). I can’t imagine what it’s like to be in Nice at the moment; Paris is very calm and even somewhat quiet, though this is probably at least partly attributable to the fact that the city is starting to empty out for the long holiday season for the French, which stretches from the second half of July to the end of August.
I haven’t had enough contact with actual French people here to tell you what they are thinking and feeling about the Nice attack; it would be pretty presumptuous to try to speak for them anyway, even if I did. But I was struck by a headline in the Sunday edition of Le Monde, which roughly translates to “After Nice, [Prime Minister] Valls responds to critics, denounces ‘Trumpification.’” (The article, which recounts an interview with the Prime Minister, makes clear that this neologism refers to Trump’s proposed policy of excluding all Muslims from the country.) Apparently, Donald Trump is already having an impact on policy, or at least rhetoric, abroad—though at this point the impact is mostly in the form of rejection of his views. I’ll leave it to others to imagine what the Donald’s Twitter response would be, if he ever read Le Monde...