Wednesday, September 12, 2018

Tacit Citation Cartel Between U.S. Law Reviews: Considering the Evidence

In my previous posts, which draw on my co-authored paper ‘The Network of Law Reviews: Citation Cartels, Scientific Communities, and Journal Rankings’ (Modern Law Review) (with Judit Bar-Ilan, Reuven Cohen and Nir Schreiber)  I described how the metrics tide is penetrating the legal domain and also described the findings of our analysis of the Web of Science Journal Citation Reports of law reviews. We studied a sample of 90 journals, 45 U.S. student-edited (SE) and 45 peer-reviewed (PR) journals and found that SE generalist journals, direct and receive most of their citations to and from SE journals. We argued that this citation pattern is a product of tacit citation cartel between U.S. SE law reviews. Most of the comments focused on the following valid point: how can we distinguish between a tacit citation cartel and epistemically-driven scientific community (generated by common scientific interests). We argue, generally, that in tacit citation cartels, the clustering observed should extend beyond what can be explained by epistemic considerations, reflecting some deep-seated cultural and institutional biases.

In the paper we provide several arguments (both quantitative and qualitative) in support of our tacit cartel thesis. While none of them is conclusive in itself we think that jointly they provide a robust support for our thesis. First, we considered whether the clustering of U.S. SE journals could be explained by geographic proximity. Our sample included 57 U.S. journals consisting of all 45 SE journals and 12 PR ones. Statistical analysis reveals however that US PR journals do not receive more citations than non U.S. ones. Second, we also analyzed separately the sub-sample of generalist (PR & SE) journals but the citation pattern remained the same. Third, we considered the hypothesis that U.S. SE journals constitute a separate epistemic field – maybe due to their emphasis on U.S. law. We rejected this explanation on qualitative grounds, primarily because U.S. SE journals have become increasingly more theoretical and interdisciplinary over the past few years (Harry T. Edwards, ‘Another Look at Professor Rodell's "Goodbye to Law Reviews’; George L. Priest, ‘The Growth of Interdisciplinary Research and the Industrial Structure of the Production of Legal Ideas). This trend should make PR journals very relevant to U.S. legal scholarship. Fourth, one may try to explain the citation pattern by assuming a deep difference in the quality of the papers published in the two journal groups. We do not think this argument stands up to scrutiny.  First, the selection practices of SE journals were subject to strong critique (e.g., Richard A Posner, ‘The Future of the Student-Edited Law Review’ (1995)). This critique casts doubts on the thesis that there is a strong and systemic difference in quality of papers published in the two categories. We also examined this claim empirically by looking into the citations received by the 10 top-cited articles published in PR journals in our dataset. We found that even these highly cited papers received only a small percentage of their citations from SE journals.

Finally, we also considered the accessibility of PR journals in Lexis, Westlaw and Hein. We found indeed that these databases only offer access to approximately half of the PR journals (See Table F, technical appendix.) However, we do not think that this fact provides a convincing explanation to the phenomenon we observed. We believe that most U.S. law schools have access to digital depositories that allow access to the PR journals in our sample. A quick search in 3 US libraries demonstrates that (https://www.law.pitt.edu/research-scholarly-journals; https://library.columbia.edu/find/eresources.html ; http://moritzlaw.osu.libguides.com/legalresearchdatabases ). Rather than providing an explanation to the citation pattern we found, this claim constitutes a manifestation of the institutional culture that facilitates the citation bias we identify. The comment we received from an AnonymousLawLibrarian (suggesting that U.S. legal academics, unlike equivalent scholars in the social science disciplines, only use Westlaw/Lexis/Hein or in-discipline journal research) seems to support our interpretation.

We think that this citation pattern is epistemically problematic because it hinders the flow of ideas. Further (and independently of the question of whether or not we are right in describing it as a tacit cartel) it can also influence the journals’ ranking. I will discuss this latter question in my next post.  

Posted by Oren Perez on September 12, 2018 at 02:10 PM in Article Spotlight, Howard Wasserman, Law Review Review, Legal Theory | Permalink | Comments (7)

Insights on Online Teaching

Despite the trend towards increasing online offerings for law students, research reveals few articles that assess teaching and learning in asynchronous courses in the law school environment.   

My colleague Yvonne Dutton and I have sought to fill in this void with a multi-year study that assesses the quality of asynchronous online teaching and learning in the law school context using student perception data in the form of 1) focus groups and 2) coded mid-semester surveys from several online courses.

We share the results in a forthcoming Denver Law Review article.  Our data gathered from students who have taken online courses at IU McKinney supports a conclusion that students not only want more online offerings, but that online classes can deliver the same quality learning experience as can quality live classes.

Specifically, our data reveal several key findings.  First, students appreciate an online course that is organized in the way it presents material and assignments.  Second, students equate a quality online course with one that engages students with course content—for example, through short, but interesting and focused lectures.  Third, students associate quality online courses with those that involve regular assessment (especially practice-ready assignments) and professor feedback.

Feel free to read the details and nuances of our findings here.

Posted by Margaret Ryznar on September 12, 2018 at 11:30 AM | Permalink | Comments (0)

Tuesday, September 11, 2018

Injunction Authority Clarification Act of 2018

Introduced by House Judiciary Chair Bob Goodlatte (who miraculously discovered the constitutional command for particularized injunctions on January 20, 2017), the bill prohibits "an order that purports to restrain the enforcement against a non-party of any statute, regulation, order, or similar authority, unless the non-party is represented by a party acting in a representative capacity pursuant to the Federal Rules of Civil Procedure."

Goodlatte's conversion of partisan convenience aside, it is a good bill. It addresses and eliminates the real problem of non-party protection, without conflating distinct and non-problematic issues of geographic scope (by controlling venue) or source (by pushing cases to three-judge district courts). It leaves broad relief available through 23(b)(2) injunctive class actions. And it does not purport to change the Court's standard for the scope of an injunction--commensurate with the violation and no more burdensome than necessary to provide complete relief; the bill thus should continue to allow broad systemic injunctions where remedies are indivisible (e.g., legislative redistricting or religious displays) or where relief to the non-party is necessary for the plaintiff to obtain complete relief.

And on one old scholarly note--I am glad the bill does not speak of jurisdiction but of remedy, which should be a non-jurisdictional merits-related issue.

Posted by Howard Wasserman on September 11, 2018 at 07:13 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (10)

Sunday, September 09, 2018

Since 1892

The University of Chicago pioneered distance education back in 1892, almost a century before the internet became publicly available, which involved mailing course materials and traveling lecturers.  The same reasons for UChicago’s distance learning, such as increasing access to education, have fueled modern-day distance education, which is also facilitated by technological advances. 

This summer, the ABA passed a proposal to expand the amount of online instruction permitted in law schools from 15 credits to 30 credits.  A review of law school websites as of July 2018 reveals that 30 of the top 100 US News law schools are offering online courses.  Some law schools even offer fully-online law degrees, while others offer hybrid programs where some coursework is completed online and some in the classroom. 

My law school, Indiana University Robert H. McKinney School of Law, is among those wading into online teaching and learning.  As we have introduced online classes at McKinney, we have been careful to follow the literature on best practices as well as to engage with each other and experts in the field.  We even had an IU symposium on online teaching last summer, which resulted in contributions published in the Indiana Law Review, available here.

My own contribution to this symposium is relevant not only to online teaching pedagogy, but also to assessing students, which both the ABA and Carnegie Report have emphasized.  Specifically, after receiving IRB approval, I conducted an empirical study of student attitudes in 3 semesters of my online Trusts & Estates course—spanning approximately 280 students—to formative assessments, with the results consistent with prior studies of online course design.  I did so through a mid-semester course evaluation asking about their favorite and least favorite ungraded assessments in the course, which consisted of discussion boards, quizzes (mostly multiple choice), polls, or sample essays & answers.  These mid-semester surveys were later coded and analyzed.  

The results were consistent.  Each semester, most students reported that their favorite assessment was quizzes, and their least favorite was discussion boards.  In their comments, students elaborated that they liked that quizzes provided immediate feedback on their progress on the material, while they didn’t like the redundancy of the discussion board and the lack of immediate feedback. 

As assessments increasingly take center stage in the law school classroom, both online and live, I hope these results are useful to fellow colleagues.

Posted by Margaret Ryznar on September 9, 2018 at 11:37 AM | Permalink | Comments (0)

Saturday, September 08, 2018

Bad TV presentation of law (a weekly series?)

This is my weekly post on how some TV show messed up something law-related.This week: Ozark.

Continue reading "Bad TV presentation of law (a weekly series?)"

Posted by Howard Wasserman on September 8, 2018 at 11:07 AM in Culture, Howard Wasserman | Permalink | Comments (2)

Elected Prosecutors and Non-Prosecution Policies

Rachel Rollins is likely to be the next district attorney in Suffolk County, Massachusetts.  She recently won the democratic primary, and she is not facing a Republican challenger in the general election.  Rollins is a reform-minded candidate, and so her win has caused a bit of a stir.  Rollins is also causing a stir because she recently released a list of crimes that she says she will decline to prosecute if elected.  The list includes larceny under $250, receiving stolen property, disorderly conduct, and other charges.

If you had asked me ten years ago what I thought about a prosecutor making a public announcement about all of the crimes she would not prosecute, I would have been extremely critical.  In particular, I would have said that prosecutors have a duty is to enforce the laws, and policies of non-enforcement conflict with that duty.  Just as decisions about what to criminalize belong to legislatures, I would have said, so too do decriminalization decisions belong to legislatures, not prosecutors.  But having spent time studying the relationship between criminal justice institutions, I am much less critical of Rollins’ announcement.  In particular, I no longer think that decriminalization decisions are reserved for the legislature.

Continue reading "Elected Prosecutors and Non-Prosecution Policies"

Posted by Carissa Byrne Hessick on September 8, 2018 at 09:37 AM in Carissa Byrne Hessick, Criminal Law, Law and Politics | Permalink | Comments (14)

Friday, September 07, 2018

ICYMI: Ten (okay, Nineteen) Tips for New Law Professors

I wrote this a while ago and offer it again in case it may be of use.

1.  Begin a little more strictly than you mean to go on.  If you start out strict and stern, you have room to lighten up. If you start out lax, you will pay a real price if you need to impose order later on.

2.  If you put a policy in the syllabus, stick to it even if you think you might have been wrong.  I learned this the hard way.  The first time I taught Professional Responsibility, I stated in the syllabus and in class that the exam would be a two-hour exam.  After I wrote it, I decided it was a bit too hard and I would be "nice" and give them an extra hour to complete it.  I had a young woman in my office 30 minute before the exam so angry I thought she would spit on me. I told her she was welcome to finish in two hours instead of three, but that didn't placate her. I finally told her she'd have to take it up with the associate dean, and I'll be damned if she didn't march down there and do just that.  Thankfully, he backed me up, but I never again made a major policy shift midstream.  She wasn't the only disgruntled student that day, either.

 3. Put everything you can think of in the syllabus, even things that should go without saying.  For example, if you are teaching a seminar, you should consider a policy stating that plagiarism is a ground for failing the course, and you should have an extended explanation in the syllabus explaining what plagiarism is.  You might think that everyone accepted to law school already knows what plagiarism is, but you would be wrong.  More importantly, by explaining what plagiarism is in the syllabus, you deprive the student of the ARGUMENT that s/he didn't know s/he was committing plagiarism.  Another example of something you might want to put in the syllabus is a statement that it is rude and disruptive to come late to class, to come and go during class, or to leave class early without notifying the professor beforehand.  Frankly, I'm not sure I realized how distracting these habits are before I started teaching, and many of your students won't, either.

 4. "Don't be moody." 

Continue reading "ICYMI: Ten (okay, Nineteen) Tips for New Law Professors"

Posted by Lyrissa Lidsky on September 7, 2018 at 11:56 AM in Lyrissa Lidsky, Teaching Law | Permalink | Comments (12)

JOTWELL: Smith on Tang on the role of political power in judicial review

The new Courts Law essay comes from Fred Smith, Jr. (Emory), reviewing Aaron Tang, Rethinking Political Power in Judicial Review (Cal. L. Rev., forthcoming), arguing that courts should be less willing to invalidate laws that burden the politically powerful, a new corollary to the longstanding political-process idea that courts be more willing to invalidate laws that burden the powerless.

Posted by Howard Wasserman on September 7, 2018 at 11:47 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (1)

Save the Date for AALS Panel on January 5, 2019: Promises & Pitfalls of Technology in Dispute Resolution

On January 5th, 2019, a three-hour panel entitled “Promises and Pitfalls of Technology in Dispute Resolution” will feature the top minds in the field of Online Dispute Resolution. The speakers will examine the intersections of dispute resolution and technology on a broader scale. Panel members will discuss how technology, including AI, blockchain, smart contracts, and the like, are affecting dispute resolution. 

Speakers includes:

Professor Alyson Carrel (Northwestern)

Professor Noam Ebner (Creighton)

Professor Ethan Katsh (National Center for Technology and Dispute Resolution)

Professor Dave Larson (Mitchell Hamline)

Professor Jan Martinez (Stanford)

Peter Reilly (Texas A&M) (Moderator)

Mr. Colin Rule (Tyler Technologies)

Professor Amy Schmitz (Missouri)

Professor Jean Sternlight (UNLV)

 

As Dean of the University of Missouri School of Law, I'm proud to announce that the speakers' papers presented at this AALS panel will be published in a special symposium edition of our Journal of Dispute Resolution. Professor Amy Schmitz of the University of Missouri and Peter O'Reilly of Texas A&M worked together to lay the foundation for this innovative panel and symposium issue.  It is sponsored by the “Litigation” and the “Technology, Law and Legal Education” sections of the AALS.

Posted by Lyrissa Lidsky on September 7, 2018 at 11:29 AM in Lyrissa Lidsky, Symposium, Web/Tech | Permalink | Comments (0)

Robot Love

Meet Sophia—a Saudi Arabian citizen with a wicked sense of humor.  She has an expressive face and blue eyes.  Flaunting her charm, Sophia has made the TV media rounds and graced magazine covers, even going on a date with Will Smith.  Sophia just happens to be a social humanoid robot developed by Hong Kong-based company Hanson Robotics. 

Robots have rapidly developed in recent years to improve people’s quality of life and welfare.  They offer companionship and assistance around the house, such as vacuuming floors and weeding gardens.  Future robots will be able to cook.  There are sex robots and those that offer companionship.   If these traits are combined in one robot, it will embody the reason that many people marry in the United States.

The line between human and machine is still too bright for humans to marry robots.  However, computer scientists have been working around the clock to develop a sophisticated humanoid robot that would be marriageable, both in terms of physical and mental attributes.  These scientists want to create robots that learn by imitating humans, as opposed to the current artificial intelligence that simply recognizes patterns.  For example, the Massachusetts Institute of Technology (MIT) announced in February 2018 the launch of a new initiative aimed at producing better artificial intelligence.  One goal is to produce robots that learn like children and then develop into human adult thinking. 

When they do, robots may seem appealing as we continue to struggle with human relationships in the age of technology.  The Economist just ran an article on how lonely people have become, and how robots have started to fill the void. 

On the other hand, MIT Professor Sherry Turkle had an opinion piece in the New York Times last month titled “There Will Never Be an Age of Artificial Intimacy.”  She writes, “Now, science goes a step further and presents us with artificial intimacy, yet another form of A.I. Again, this is an intimacy that does not make room for human empathy or what human beings in their bodies experience as the fear of death, loneliness, illness, pain. We diminish as the seeming empathy of the machine increases. It is technology forcing us to forget what we know about life.”

Who’s right?  Either way, it’s interesting to think about the family law implications of marriage to robots.  In a forthcoming Seton Hall Law Review article, I point out all the nuances of it, and note the information that we need to know to make the family law work.  If you’re interested, read it here

Posted by Margaret Ryznar on September 7, 2018 at 05:00 AM | Permalink | Comments (6)

Thursday, September 06, 2018

Ministerial exemption as a mandatory merits defense

I have thought much about the jurisdictional status of the ministerial exemption since SCOTUS decided (correctly) in Hosanna-Tabor that the exemption was a merits-based affirmative defense and not a limit on the court's jurisdiction.

But that makes footnote 4 of this Third Circuit case a bit strange. The court held that the ministerial exemption barred a pastor's breach-of-contract claim, granting summary judgment for the Church on exemption grounds, even though the pastor was the one who moved for summary judgment and the Church never raised the defense. The court noted the following:

The ministerial exception is an affirmative defense. Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171 , 195 n.4, 132 S. Ct. 694 , 181 L. Ed. 2d 650 (2012) (stating that the ministerial exception "operates as an affirmative defense to an otherwise cognizable claim, not a jurisdictional bar"). Although the District Court, not the Church, first raised the ministerial exception, the Church is not deemed to have waived it because the exception is rooted in constitutional limits on judicial authority. See EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 884 F.3d 560 , 581-82 (6th Cir. 2018) (holding that a defendant "has not waived the ministerial-exception by failing to raise it . . . because '[t]his constitutional protection is . . . structural'" (citation omitted)); Conlon v. InterVarsity Christian Fellowship, 777 F.3d 829 , 836 (6th Cir. 2015) (explaining that Hosanna-Tabor's rationale for recognizing the ministerial exception establishes that "the Constitution does not permit private parties to waive the First Amendment 's ministerial exception" because "[t]he constitutional protection is not only a personal one; it is a structural one that categorically prohibits federal and state governments from becoming involved in religious leadership disputes"). Moreover, Lee did not argue before the District Court that the Church waived the defense. Therefore, it was appropriate for the District Court to consider the ministerial exception.

Hosanna stated that the ministerial exemption is not a jurisdictional bar. But the second sentence contradicts that by describing it as "rooted in constitutional limits on judicial authority"--which is the definition of a jurisdictional bar. Rather, we should think of the exemption as a  mandatory merits defense--although a limit on substantive merits, it has a structural basis and thus cannot be waived. As Scott Dodson has argued, mandatoriness or non-waivability is a consequence, not a defining characteristic--some defenses can be so important as to be non-waivable, even if they go to merits and have nothing to do with adjudicative jurisdiction.

Posted by Howard Wasserman on September 6, 2018 at 11:55 AM in Civil Procedure, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (7)

In search of Deep Throat

The greatest disappointment about the anonymous NYT op-ed? We have a corrupt and scandal-plagued administration and an anonymous source talking publicly, but no good porn movies after which to name that anonymous source. Perhaps something off Stormy Daniels' IMDB page.

Posted by Howard Wasserman on September 6, 2018 at 08:52 AM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Wednesday, September 05, 2018

A Closer Look at Medical Education—the role early licensing exams play in constructing a curriculum

Before we really know what law schools could borrow from medical schools and what we can’t, it is critical to understand how very different our two enterprises are.   Medical schools have access to resources of which we can only dream (they are profitable).   Also, medical education is far from flawless—there are issues, especially in the second two years, of bullying and systemic racism that are very troubling.  Finally, the phenomena of medical students not attending class is old news—although some schools have responded with very impressive creative solutions like self-directed learning to making class time more valuable.  Moreover, a focus on U.S. Medical Schools  alone is misleading given how my physicians practicing in the U.S. attended allopathic or foreign medical schools.

 The purpose of these posts, though, continues to be introducing how other disciplines use research data to evaluate and develop curricular innovations—and if you’d like to know about that without further talk of medical education have a look here and here.

Let’s start an issue close to all of our hearts—licensing exams.   Medical students start taking licensing exams while they are in school.  The United States Medical Licensing Examination (USLME) has three parts (steps).

Passage at each step is mandatory for continuation of medical studies.  The first exam comes after two years.  At four years, when they graduate, they must pass a two part second exam after which they are licensed to practice only under supervision and, finally, they must pass a third test before they can be fully licensed. 

Who writes exams?  A company that is owned by the Federation of State Medical Board  (“FSMB).   Like lawyers physicians must be licensed by the state in which they practice but unlike lawyers, these licensing boards have come together in developing a uniform licensing exam.

And it’s not coincidental that the need to pass two licensing exams while in medical school focuses the curriculum towards the more practical aspects of practicing medicine.  Have a look at FSMB’s mission-- “70 Boards. One Mission. FSMB supports America’s state medical boards in licensing, disciplining and regulating physicians and other healthcare professionals. Our end goal: keep patients safe.”   

Because these exams have come during medical school as far back as the living memory of anyone practicing medicine, the idea that the medical school curriculum would ignore them has never had the hold on academic medicine the way it has in the legal academy.  It’s not that anyone believes that the contents of the exam are the most important or certainly most interesting part of practicing medicine (look  here, herehttps://www.ncbi.nlm.nih.gov/pmc/articles/PMC1681601/, and herehttps://www.stfm.org/fmhub/fm2008/September/John574.pdf)—it’s that there can be no practice of medicine without passing them.  And even more so, because failure rates are very low, the score students achieve on these exams (which they can only take once if they pass) are critical to their chances of getting a desirable residency slot.

So, like it or not, Medical Schools have to confront licensure exams while students are in school whereas we legal academics do not have this direct exposure.  The USMLE’s emphasis on patient safety orients the first four years of medical school’s curriculum towards issues that are most likely to come up in practice (with its fair share of “gotchas” to keep things interesting).  Neither the finer points of neurosurgery or heart transplantation are tested in Step https://www.boardvitals.com/blog/9-things-to-know-before-taking-usmle-step-1-exam/1 or Step 2https://www.usmlepro.com/single-post/How-to-Score-a-280-on-Step-2-CK.  Yet the first four years of medical school are hardly one long exam prep session.  Medical school professors also like to teach students about complex problems with no easy answers. (and students often complain there is not enough focus on the boards).

In contrast, law school curriculums, even in first year mandatory courses, often  privilege the most difficult problems that make their way to appellate courts.   We have also designed a curriculum where the most heavily tested subjects are taught years in advance of the exam-and likely never referred to again until the students begin bar preparation after graduation.

As noted in the beginning, the differences between law and medical schools make drawing on the nose analogies or facile comparisons a waste of time and resources.   But by understanding the differences and seeing how medical schools have applied research findings to solving their curricular issues we can benefit from knowing more about what they and indeed what all our colleagues in higher education are doing to enhance the education of their students.

Going forward, I will look more closely at issues like how medical schools prepare students for these licensing exams, how the MCAT has changed with the change in medical school curriculums, and what efforts are being made to reduce the cost (and length) of medical school.

 

 

Posted by Jennifer Bard on September 5, 2018 at 03:09 PM | Permalink | Comments (0)

I wanna be a billionaire so freakin’ bad --Bruno Mars

But I never got into bitcoin, so I missed the whole bitcoin billionaire boat.  Since late 2017, however, you too can get into the bitcoin game through bitcoin futures without touching the underlying cryptocurrency, if you dare.

Futures generally contribute to systemic risk because they multiply losses and rewards, but distinctive features of bitcoin futures raise concerns.  For example, bitcoin as a currency is not regulated like stocks and futures.  Such lighter regulation may allow for price manipulation.  There are also concerns about a bitcoin bubble.  This all contributes to bitcoin's volatility.

Bitcoin futures are still limited in number, which keeps their risk to the economy limited.   Earlier this year, for example, volumes in bitcoin futures at CME only averaged about 1,000 contracts per day.  However, their number can only grow to cause severe risk to the financial markets.

After considering their risks in a forthcoming Houston article, I offer several regulatory solutions in this new context.  I’m not sure the CFTC needs to ban them, however, like South Korea did.  Instead, one risk management option is to put a limit on the number of positions that may be held by any person.  Another is to require bitcoin futures traders to post significant margin deposits, which is collateral posted to protect the clearinghouse (the middleman in the trade) in the case of default.  Third, separate guarantee funds can be introduced for these trades to minimize the risk of clearinghouse insolvency.  In other words, the party who brings the risk should pay for the risk.  Fourth, tress testing should continue to be used in the bitcoin context by stress testing the positions at the clearinghouses. Finally, cybersecurity regulation should be considered related to bitcoin given its digital nature. 

Anything I’m missing?   

Posted by Margaret Ryznar on September 5, 2018 at 11:05 AM | Permalink | Comments (4)

Joint reponse to comments on the cartel post

Many thanks for all who have responded to my earlier post

We are very familiar with citation practices of US scholars but the purpose of the article was to try and think about them - also going beyond intuitions. I will make 2 quick points in response.

First, it is a valid question to ask how to distinguish between citation cartels and epistemically-driven scientific communities. From a network-topological perspective, these two forms of clustering seem indistinguishable: both constitute a group of nodes (which may represent scholars, institutions, or journals) that are more highly connected to each other than to the rest of the scientific world. Our argument - and I will try to give the detailed argument (which appears in the paper) in a later post - is that the kind of closure we see in US law reviews (the quantitative analysis can be found in the paper) cannot be defended on epistemic grounds. For example, one could argue that the reason for that greater closure is that US law reviews focus on domestic law. However, U.S. law journals have been criticized over the past few years for being too theoretical and for not displaying the right balance between theory and doctrine (e.g. Harry T. Edwards, ‘Another Look at Professor Rodell's "Goodbye to Law Reviews’ (2014)). They have also become increasingly more interdisciplinary (e.g., George L. Priest, ‘The Growth of Interdisciplinary Research and the Industrial Structure of the Production of Legal Ideas: A Reply to Judge Edwards’). If this is the case, the work that is published in PR journals - in the 'law and genre' - should be relevant for the work published in US generalist journals. If U.S. scholars do not cite articles in PR journals they might be losing good ideas. I think this point was missing from the responses.  

My second point is that we are also trying to make a general argument about the risks of relying on rankings as a way to judge quality of research. Part of our objective is to expose some of the problems with the current practice of lumping the 2 categories together. I will further reflect on that in future posts.

Posted by Oren Perez on September 5, 2018 at 10:35 AM | Permalink | Comments (4)

Tacit Citation Cartel Between U.S. Law Reviews

In my previous post I discussed the various metrics that are being used to measure law schools and legal journals. One of the difficulties with these metrics is the perverse incentives they may create for both authors, research institutions, and journals to use various manipulating techniques in order to elevate their scores. Examples of manipulating strategies include the publication of editorials with many journal self-citations, coercive journal self-citation, and citation cartels (Phil Davis, ‘The Emergence of a Citation Cartel’ (2012)). There have been several conspicuous cases of citation cartels, which have been widely discussed in the literature. Particularly notorious was the case of several Brazilian journals that have published articles containing hundreds of references to papers in each other’s journals in order to raise their journals’ impact factors (Richard Van Noorden, ‘Brazilian Citation Scheme Outed’ (2013)). We distinguish in the paper between explicit citation cartels, in which the cross-citations are a product of explicit agreement between editors or scholars and tacit citation cartel. In the latter case the citation dynamics may be a product of tacit cultural and institutional habits. Both tacit and explicit citation cartels should be distinguished from epistemically-driven scientific communities. Although tacit citation cartels do not carry the same immoral connotations as explicit citation cartels, they have similar adverse effects, especially given the increasing influence of the impact factor in the evaluation of research quality. By (artificially) elevating the scores of some journals and disciplines over others, they may distort the publication choices of scientists, and consequently may impede the creation of ideas.

The challenge for the metrics industry then is to develop ways to detect and respond to both tacit and explicit citation cartels. In our paper ‘The Network of Law Reviews: Citation Cartels, Scientific Communities, and Journal Rankings’ (Modern Law Review) (with Judit Bar-Ilan, Reuven Cohen and Nir Schreiber) we examined the ranking of law journals in Journal Citation Reports focusing on the question of the existence of tacit citation cartels in law. We studied a sample of 90 journals included in the category of Law in the JCR: 45 U.S. student-edited (SE) and 45 peer-reviewed (PR) journals. The sample, which amounts to 60% of all legal journals in JCR, included the most prestigious PR and SE journals (e.g., Harvard Law Review, Yale Law Journal, Columbia Law Review, Journal of Legal Studies, Oxford Journal of Legal Studies, Modern Law Review). The number of papers published by both SE and PR journals in our sample is nearly identical (47.8% of the articles were published in PR vs. 52.2% in SE journals). There are huge differences, however, in the total number of references and in the number of references per article. The SE journals produced in 2015 overall 3 times more references than the PR journals. The mean number of references in SE articles is 2.5 times higher.

We found, using both statistical analysis and network analysis that PR and SE journals are more inclined to cite members of their own class, forming two separated communities. You can find the citation graph here. Close analysis revealed that this phenomenon is more pronounced in SE journals, especially generalist ones. We found that SE generalist journals, direct and receive most of their citations to and from SE journals. This tendency reflects, we argue, a tacit cartelistic behavior, which is a product of deeply entrenched institutional and cultural structures within the U.S. legal academia. Because the mean number of references in SE articles is 2.5 times higher than in articles published in PR journals, the fact that their citations are directed almost exclusively to SE journals elevates their ranking in the Journal Citation Reports in a way that distorts the structure of the ranking. In the next post I will demonstrate the implications of this finding on the journal ranking in JCR. In further posts I will also consider some potential explanations and counter-arguments associated with this result.

Posted by Oren Perez on September 5, 2018 at 01:35 AM in Article Spotlight, Information and Technology, Life of Law Schools | Permalink | Comments (15)

Tuesday, September 04, 2018

Careers over Jobs

There is a recent book I loved "An Intelligent Career: Taking Ownership of your Work and Your Life" by Michael Arthur, Svetlana Khapova and Julia Richardson. It's about how to make the most of the inevitable changes of technologies, globalization of professional networks, and new patterns of employment. Over the weekend, one of the book's coauthors Michael Arthur, a business school professor in Massachusetts, wrote this is insightful article in Forbes. It discusses the new law in Massachusetts that limits the reach of non-competes. Arthur describes this reform as a win for investors and innovation, not just workers. He draws on the works of Nobel Laureate Elinor Ostrom, Information Scholar Annalee Saxenian, and my work on non-competes. here is an excerpt from the Forbes article

Does your talent want to be free?

The heading above borrows from the title of University of San Diego Professor Orly Lobel’s book Talent Wants to be Free. Her subtitle goes on to assert “why we should love leaks, raids, and free riding.” Her fundamental point is that financial investment in innovation creates human capital investment, and increases the overall talent in an economic system. In turn, your choice of where to invest your own talent contributes to the effectiveness of that system. Any attempt to protect single organizations, with particular axes to grind, fades in comparison to the aggregate benefits to the system as a whole.

All three of Saxenian, Ostrom and Lobel point the way toward a more communicative and innovative world driven by your and other people's career ownership. Are you playing, or can you play, your part?

An Intelligent Career definitely enriched my thinking as an employment law scholar and I am glad to see changes happening on the ground in Massachusetts. 

 

Posted by Orly Lobel on September 4, 2018 at 06:15 PM | Permalink | Comments (0)

Judge Willett questions qualified immunity

Fifth Circuit Judge Don Willett, a conservative and Trump long-lister for SCOTUS, "concurred dubitante" to question qualified-immunity doctrine in this case. (H/T: Volokh Conspiracy, HTing Josh Blackman). The court found that the Texas Medical Board violated the rights of the plaintiff doctor and two patients in issuing and enforcing administrative subpoenas, but that the right was not clearly established.

Willett derides qualified immunity as a deus ex machina that smacks of "unqualified impunity" by letting officers behave badly so long as they are the first to behave badly. He emphasizes two problems with current doctrine--the inconsistency over how factually similar precedent must be to clearly establish a right and the continued tendency of courts to skip merits and decide the right is not clearly established, thereby depriving plaintiffs of precedent that can be used to clearly establish the right. Requiring a plaintiff to produce identical precedent as courts create less precedent is a catch-22, an Escherian Stairwell, and a heads-defendans-win-tails-plaintiffs-lose situation. Willett joins the growing cross-ideological chorus of judges (including Justices Thomas and Sotomayor, as well as Judge Jack Weinstein) and scholars (Will Baude and Joanna Schwartz) urging recalibration of the doctrine.

On that cross-ideological consensus, it is telling that Willett's statement comes in an ideologically unique case--a regulatory body allegedly overstepping its authority in investigating a licensed professional sounding in the the regulatory over-zealousness that libertarian judges dislike. It does not come in the more frequent (and ideologically different) qualified immunity case case arising from a police officer using excessive force against an unarmed person of color.

Posted by Howard Wasserman on September 4, 2018 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

What’s the Fuss about Medical Education-Some Preliminary Thoughts

As some of my readers know, my first job in academe was on the full time faculty of a medical school and since then I’ve always had joint appointments.   I’ve done some writing about the differences here and here.  Like law schools, medical schools face the challenge of turning lay people into professionals in a very short period of time.  Over the month, I will highlight some of the things they do that could work for us.  Notice throughout that medical education articles about teaching techniques are almost always accompanied by research about how they worked compared to alternatives.    In later posts, I will suggest how we could (and why we should) test our curricular innovations so that we can make better decisions about what works—and so that we can make it easier to share effective techniques within our own schools and beyond.   For now, though, it’s important to understand that medical school faculty start ahead of us on this because every medical school has its own office of medical education to support the faculty and , as a profession in itself, these educators produce vast amounts of easily available research studies on what works and what doesn’t.    Here are some examples from  Johns Hopkins, Stanford, Brown, and University of Illinois, but every medical school has one.  And if we could be more meta, here’s some research on their effectiveness. How big is this field of medical education- have a look at an overview of the conference schedule.

This focus on testing what works goes beyond medical schools into the other health professions as well.  So, for example, this article is by a professor of veterinary medicine looking at whether students learn neural anatomy better when they use expensive three-dimensional and digital teaching tools in addition to the traditional dissection and learning methods.  In recap, yes, although the students themselves don’t notice the difference.  The article cites about 50 other articles around the world looking at the same question—all very important when making the decision of where to invest limited resources.  Here’s an overview of the concept of evaluating educational effectiveness. 

Finally, for tonight, medical education has approached the challenge of teaching busy practitioners to be educators in ways that respect the time of volunteers yet maximize the learning experience for students. In particular, they’ve spent considerable time finding ways for students in the first year (or days) of medical school to learn in practice based settings.   This is years before they begin the process of clinical rotations or residencies.

 This article runs through four techniques that practitioners can use to turn what are essentially “shadowing” experiences into teaching.  And here’s the evaluation study. .

--to be continued…..

Posted by Jennifer Bard on September 4, 2018 at 12:07 AM in Teaching Law | Permalink | Comments (0)

Monday, September 03, 2018

Two free expression stories for Labor Day

First, Nike is celebrating the 30th anniversary of its Just Do It campaign. Here is the opening image, with the tag line "Believe in Something. Even if it means sacrificing everything." Good for Nike, which has always mixed its product advertising with political messages. I assume the company calculated the lost sales from the more than half the country that seems to oppose the player protests. Or it has more corporate courage than the NFL. DmMfV2QV4AAF11z

 

Second, a group called USA Latinx raised almost $ 10,000 in one day to rent this billboard for about $6000. The fundraising effort was helped by Parkland survivor David Hogg, who tweeted about the campaign. The billboard is a response to President Trump's announced plan to come to Texas to hold a rally in a big stadium in support of Ted Cruz's re-election campaign. Several contributors to the GoFundMe campaign urged the group to raise more money to put these ads all over the state.

32614890_1535818206259214_rI presume USA Latinx believes that money is not speech, that corporations have no speech rights, and that Citizens United is the fourth-worst SCOTUS decision ever. Do its leaders realize that this is a campaign expenditure and that they are a corporation or other entity? Do they realize that if money were not speech, there would be no limit on government halting such expenditures? Do they realize that a $ 5000 expenditure limit or a bar on expenditures within 90 days of an election (all perfectly lawful if money is not speech) renders this unlawful?

Posted by Howard Wasserman on September 3, 2018 at 05:48 PM in Culture, First Amendment, Law and Politics, Sports | Permalink | Comments (5)

Lawyering up in the Kavanaugh hearings

I have no intention of watching the national travesty of the Kavanaugh hearings, because nothing he says or does this week will make any difference to his confirmation. (I have in the past employed the common description of this as Kabuki, but I was told by a Japanese scholar that Kabuki, while stylized, is not empty or devoid of meaning, which is what the term is used to describe with respect to hearing).

I am, however, intrigued by this idea of hiring counsel to handle questioning, getting a lawyer with the skill and expertise to ask meaningful questions of witnesses and force them to give answers, rather than the word salad that passes for dialogue between Senators who lack the knowledge, training, and skill to perform the task and witnesses with no desire (or practical obligation) to answer. The historical examples the article provides (Watergate, Iran-Contra, Army-McCarthy) were investigatory hearings rather than confirmation hearings, so the need for cross examination and adverseness was clear. But the point remains--hired counsel would be much better able to perform the task. How much better might the exchange be if the Democrats hired Marty Lederman or Seth Waxman or Republicans in the future were to hire David Bernstein or Paul Clement to have a genuine constitutional dialogue?

Update: The author of the article is David A. Kaplan, author of the new book The Most Dangerous Branch: Inside the Supreme Court's Assault on the Constitution and a guest on this week's First Mondays podcast. Kaplan argues that the Court should be less interventionist (he interviewed several Justices, who referred to him as "Felix"), including urging the argument that the public should understood SCOTUS decisions as resolving a case for past parties but not necessarily for future parties. I like the second part of that.

Posted by Howard Wasserman on September 3, 2018 at 02:54 PM in Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

A Personal Law Review Article Submission Narrative

0dc3c821-583e-4983-87ce-a89c1b7bef6b-originalBefore the end of the month, I mentioned to Howard the possibility I would have one more thing to say about what has become a theme this summer: the folkways of career advancement in legal academia and, in particular, the angst around law review submissions.  I recognize that my circumstances may not match anybody else's - I have a job, tenure, and I'm too old and sedentary to be thinking about lateral moves.  But, for what it's worth and with the consent of the editor of the journal in which I've just agreed to publish an article, I'm going to offer here a narrative about the submission process. 

My project this summer was a thought experiment that looked at the current embodiments of "smart contracts" - crypto-currencies as well as systems of legal documentation that can operate on blockchain technology - and considered what it would take for a traditionally negotiated complex and bespoke agreement to be "smart" in the same way.  (The title is a clue to the conclusion:  The Persistence of "Dumb" Contracts.).  I finished it to the point of public consumption and posted it on SSRN on June 25.  All things considered, it did pretty well there.  It's up to 222 downloads as of this morning, and made a bunch of the SSRN "Top Ten" lists.

In terms of hiring or tenure, it doesn't matter where I publish. I am pretty sophisticated about what is meaningful and what is not in a linear ranking like the US News list. But I'm as susceptible as the next person to the allure of glitzy branding, even if for no reason other than pure ego.  I am not on the faculty at a school whose letterhead sends student law review editors into spasms of fawning sycophancy.  Nor do I think my stuff is easy for student law review editors to assess.  (Dan Markel, of blessed memory, once told me I am "orthogonal" to most debates, something I took as a compliment even though I'm quite sure he didn't mean it that way. I think of it as "anything you can do, I can do meta.") Indeed, I've already noted that I've been asked to "peer review" articles for multiple super-elite flagship law reviews.  Each time I've done it, bitching all the while to my contact articles editors about the fact that my own submissions to their journals don't make it out of the submission inbox.

So, after the break, a short narrative about Persistence's submission odyssey.

Continue reading "A Personal Law Review Article Submission Narrative"

Posted by Jeff Lipshaw on September 3, 2018 at 02:07 PM in Getting a Job on the Law Teaching Market, Law Review Review, Life of Law Schools, Lipshaw | Permalink | Comments (6)

Note to PrawfsBlawg readers: Appearance of comments

A note to readers and commenters:

Comments to posts now appear newest to oldest. We did this to accommodate our annual faculty hiring post and our semi-annual submission post. Both posts generate hundreds of comments, requiring readers to scroll through multiple pages to read new comments. The old hack for this problem--a jump link--no longer works and Typepad recommended this as the solution. So this is the workable solution--new comments appear immediately below the post.

Unfortunately, we only could make the change globally, so comments must appear this way for all posts.

This format is necessary while the hiring and submission threads are alive and active, which should be another few months. After that, we will evaluate the appearance and decide whether to keep it or switch back. We already have heard from one reader who describes it as "crazy and moronic," so we will take that under advisement.

Posted by Howard Wasserman on September 3, 2018 at 09:27 AM in Blogging, Housekeeping, Howard Wasserman | Permalink | Comments (0)

Greetings

I’m delighted to be back; thanks for having me.  This month, I’ll be blogging about tax reform changes, ABA changes on distance education, as well as the other changes impacting my fields of tax, trusts & estates, and family law.  In the meantime, happy Labor Day.

Margaret

Posted by Margaret Ryznar on September 3, 2018 at 12:01 AM | Permalink | Comments (0)

Sunday, September 02, 2018

Bard Signing in for September

 

Hi everyone and thank you very much to Howard for inviting me.  This is, I think, my fifth (possibly sixth) guest stint at PrawfsBlawg and as always I want to thank Dan Markel (may his memory be for a blessing) who gave me my first opportunity to join this distinguished group.

Over the next month, my goal will be to share some of what I learned while getting a mid-career Ph.D. in Higher Education about both the existing body of research on teaching and about how we can use research tools to evaluate the many curricular innovations that are blooming throughout legal education.  Evaluation is important because it creates the information that we need to innovate in our own classrooms.  Evaluation (also called Assessment-although not of the students or of us--) also helps inform others who might want to adopt a new technique, exercise or even entire curriculum.    It has long been a concern of mine that we in legal education simply do not know about the vast body of existing research on promoting student learning nor are we aware of the tools that our colleagues in other parts of the university use every day. 

I will be arguing that the movement to make math, science, engineering, and technology subjects (STEM) more accessible to a larger group of students ( as opposed to the old fashioned and wasteful practice of setting up barriers to entry that few could surmount) has resulted in valuable information that we can use as we seek to make legal education more experiential and less dependent on classroom hours.  

It is also likely that I will be sharing some of the work in global public health law & human subject research I'm doing while a scholar this year at the O'Neill Institute for National and Global Health Law at Georgetown Law Center.

Posted by Jennifer Bard on September 2, 2018 at 08:43 PM | Permalink | Comments (0)

How enthusiastically should the Left support laws and doctrines protecting public employee unions?

It is generally assumed that conservatives should oppose, and liberals should support, laws and doctrines protecting public employee unions. In his pre-game commentary on Janus v. AFSCME, for instance, Garrett Epps noted that "these unions are an important pillar of the Democratic Party." Indeed, the SCOTUS split 5-4 along partisan lines, with the four Democratic appointees defending agency fees from the Republican appointees' First Amendment attack. President Trump's executive order limiting the scope of federal employees' collective bargaining rights, recently struck down by Judge Ketanji Brown Jackson likewise suggests a Republican agenda to curtail public sector unions.

On this Labor Day weekend, however, I would like to suggest that the the politics of public sector unions should be a bit more complicated. The Left really ought to be a little less complacent about the benefits of strong public sector unions, because those unions are major obstacles to some of the Left's more important political causes. It is not merely that some important public sector unions support fairly conservative Republicans (although they do: Consider, for instance, Wisconsin's state troopers' support for Wisconsin's Scott Walker and the Border Patrol and Ice unions' support for Donald Trump). More important than such partisan stances are the efforts by law enforcement unions to stymie reforms policing, prison, and immigration reforms favored by the Left.

After the jump, some suggestions that the Democratic Party, the Left in general, and the academic Left in particular might ask themselves "Which Side Are You On?" Does it make sense to resist so unequivocally decisions like Janus on the ground that they weaken collective bargaining and reduce union revenue without also looking at those whom these bargains and revenue most injure?

Continue reading "How enthusiastically should the Left support laws and doctrines protecting public employee unions?"

Posted by Rick Hills on September 2, 2018 at 05:37 PM | Permalink | Comments (10)

Damnatio memoriae

This is an interesting case from the Sixth Circuit (H/T: Volokh Conspiracy). Plaintiff sued the recorders of deeds throughout Ohio, alleging that continued maintenance of deeds, plat maps, and other property documents containing (unenforceable) racially restrictive covenants violated equal protection and the FHA. The court held that the plaintiff lacked standing. He suffered no economic injury because he offered no evidence that he had been unable to purchase property. Any non-economic injury of a feeling of not belonging was not particularized to him, but undifferentiated and generalized.

Continue reading "Damnatio memoriae"

Posted by Howard Wasserman on September 2, 2018 at 04:43 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Saturday, September 01, 2018

The Metrics Tide and the Law

Thanks Howard for having me (and for Michael Helfand for making the connection). Most of my posts this month will focus on the question of metrics and rankings and their increasing influence on the legal academia. I will draw in that context on a new article – ‘The Network of Law Reviews: Citation Cartels, Scientific Communities, and Journal Rankings’ which I have co-authored with Judit Bar-Ilan, Reuven Cohen and Nir Schreiber (all from Bar-Ilan University) and forthcoming in Modern Law Review.

Research evaluation is increasingly being influenced by quantitative data. Journal impact factor (JIF) (the mean citation counts of items published in journals in the preceding two years) has become particularly salient in this context, leading to “impact factor obsession”. There has been widespread opposition to this trend in the scientific community. The DORA declaration for example recommends that journal-based metrics, such as JIF, should not be used “as a surrogate measure of the quality of individual research articles, to assess an individual scientist’s contributions, or in hiring, promotion, or funding decisions”. However, despite the opposition these metrics continue to flourish.

The legal field has not escaped this ‘metrics’ wave. Law schools and legal journals are being ranked by multiple global rankings. The key rankings for law schools are the Times Higher Education and Shanghai University subject rankings for law and SSRN Ranking for U.S. and International law schools. These global rankings are accompanied by local ones such as the influential U.S. News Ranking in the U.S., the UK law schools ranking by the Guardian and the University Magazine ranking of Best Canadian law schools. Law Journals are measured by four different rankings: Clarivate Analytics Web of Science Journal Citation Reports (JCR), CiteScore from Elsevier, Scimago and Washington and Lee. Despite their quantitative appearance, the pretense of these metrics for objectivity is merely illusory. Because of the increasing influence of these metrics, and the bodies that produce them, on research evaluation, it is important to closely scrutinize their structure and methodology. In our paper we examine one particular metric - the influential ranking of law journals in Journal Citation Reports and critically assess its structure and methodology.   I will discuss our findings in the next post.

Posted by Oren Perez on September 1, 2018 at 11:12 AM in Article Spotlight, Current Affairs, Howard Wasserman, Information and Technology | Permalink | Comments (0)

Rotations

Thank you to our summer-long visitors, who joined us for July and August.

With September upon us, welcome back to Jennifer Bard (visiting at Georgetown's O'Neill Institute and Harvard's Petrie Flom Institute), Oren Perez (Dean at Bar Ilan), and Margaret Ryznar (Indiana-Indianpolis).

Posted by Howard Wasserman on September 1, 2018 at 10:31 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Avoiding dueling universal injunctions

Judge Hanen of the Southern District of Texas* on Friday refused to preliminarily enjoin DACA, where such an injunction would have created a direct conflict with injunctions enjoining the Trump Administrations rescission of DACA. Although the court held that the states have standing and were likely to succeed on the merits (because DACA violates APA and the Take Care Clause), the balance of equities weighed against the injunction, as the injunction would undo the status quo by undoing rights and reliance interests that had attached to DACA recipients since 2012. So we again avoid the clash of injunctions and impossibly conflicting obligation only by a bit of restraint from one court.**

[*] Whose universal injunction in the DAPA litigation in 2015 was the starting point for the recent trend.

[**] Note the clash comes even if the injunction issued was particularized and non-universal. The existence of one universal injunction by definition collides with all future injunctions. A particularized injunction in this case would have forced the federal government to act inconsistent with the earlier universal injunctions prohibiting rescission.

In a separate order, Hanen certified the case for interlocutory review under § 1292(b), finding the validity of DACA is a novel and unique controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. This seems weird in two respects. First, while there is a controlling question of pure law within this order, the decision turned on the balancing of equities, an application issue that is not reviewable under § 1292(b). The court said that a Fifth Circuit declaration of DACA's validity would speed termination of the case, but it is not clear why, because that would not alter the purported balance of equities on which the district court denied relief, at least not at the preliminary injunction stage. I guess if the Fifth Circuit declares DACA invalid, the district court could summarily convert to a permanent injunction. But that assumes the Fifth Circuit takes on DACA directly and does not address the legal issue in context, saying only that DACA is likely invalid, but limiting the decision to the case's preliminary posture.

Second and in any event, certification was unnecessary to obtain review. A decision denying a preliminary injunction is immediately reviewable under § 1292(a)(1). Although the text of the statute only enumerates orders refusing to dissolve or modify an injunction as appealable, every circuit, including the Fifth, reads § (a)(1) to allow immediate review of the denial of the initial preliminary injunction. And § 1292(a)(1) appeals do not require leave of court and are not limited to controlling questions of law.

Update: Other conversations on the subject suggest that Hanen blew the procedure in another way. If he wanted to declare DACA invalid, tee-up the issue for appellate review, and avoid the chaos that would come with a preliminary injunction, he should have ordered the parties to file cross motions for summary judgment and issued a declaratory judgment. A D/J is a final judgment, appealable as such under § 1291. This stuff matters.

Posted by Howard Wasserman on September 1, 2018 at 08:18 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Friday, August 31, 2018

Sponsored Post: The unauthorized practice of law for nonlawyers

The following post is by Ellen Murphy and Steve Nickles (both from Wake Forest) and is sponsored by West Academic.

The dramatic changes in the legal profession since the 2008 market crash, from the increase in virtual law practice to the rise of DIY services to clients’ increasing demand for efficiencies, have led to a recognition that nonlawyers have an increasingly critical role in the delivery of legal services. While most regulatory bars are not yet sure exactly: (a) what this role should be; or (b) how, if at all, it should be regulated, that a change is coming is certain.

Continue reading "Sponsored Post: The unauthorized practice of law for nonlawyers"

Posted by Howard Wasserman on August 31, 2018 at 03:23 PM in Article Spotlight, Sponsored Announcements | Permalink | Comments (0)

Kai-zen and Poka-yoke in the Classroom

Even when I'm not doing a whole new prep, in the spirit of kai-zen ("continuous improvement"), I like to tinker with the form and the substance of a class.  Sometimes the tinkering is fairly substantial.  Several years ago, the authors of my contracts casebook decided to produce another edition.  I respectfully declined to adopt it, not believing that there were sufficient advances in the law of contracts to justify having students buy a newly-issued book.  But, upon discovering that there weren't enough copies of the old edition in circulation to be sure students could get them, I decided to scrap the casebook entirely, download and edit the cases myself, post them on Blackboard, and assign the very good Examples & Explanations book as the text.

If you aren't familiar with it, kai-zen is a fundamental aspect of lean manufacturing, something that had its roots in the Toyota Production System in Japan after World War II, and migrated to the United States and elsewhere in the 1980s and 1990s.  In first year contracts, I came up with two improvements yesterday, as usual in the several hours before the first class was to begin.

Screen Shot 2018-08-30 at 6.23.23 PMThe first was substance.  I record all my classes and post my notes as soon as we are done with a unit.  I decided that I wanted the very first thing that I said on the very first day to be something to which the students could return when, as I put it, later in the semester they got frustrated with the material, me, the book, the cases, or why they made the decision to go to law school in the first place.

The second was form.  As I've mentioned, I don't impose a seating chart, and my cold-calling tends to be half-hearted at best, and tails off over the course of the year.  I do, however, start with "on-call" panels, and I do like to know something about my students.  In past years, I have simply given them blank index cards with the instruction to write their names and other information.  But, regardless of the instructions, students have managed to leave stuff out, write on the back of the cards, fill the cards so that I can't put pictures on them, etc. I have also struggled with how to take that information and use it (a) to organize the panels, and (b) have the information, including their pictures, readily accessible as I have to find them in the classroom (because I don't use seating charts). 

So I called on another lean manufacturing concept - "poka-yoke" or "inadvertent mistake prevention."  The idea on the manufacturing floor is that you set the process so that the operator can't make a mistake without shutting things down.  Instead of having two similar and identical holes for which the inserted piece could get reversed, you make the holes into different shapes and non-symmetrical.  It occurred to me that, if I just did a little poka-yoke on the cards, I would get the information just as I wanted it, and with a space in which to insert a picture.  

Voila!  What you see above, which took about 90 seconds in Word to create, and which could be duplicated on 4 x 6 index cards.  To create the panels, I just shuffle the cards and separate them into groups.  To call on students, I just reach for a card.

Posted by Jeff Lipshaw on August 31, 2018 at 08:46 AM in Lipshaw, Teaching Law | Permalink | Comments (3)

Interdisciplinary Projects

I have enjoyed my time here blogging, and many thanks again to Rick and Howard for having me.  In my last post, I thought I would discuss an interdisciplinary project I have been working on. 

Last year, I applied for a large, internal university grant to try out some interdisciplinary projects.  The goal was to spend a year investigating a significant corporate scandal with colleagues from around the university in an effort to come up with a “super solution.”  When I wrote the grant proposal, I used the General Motors ignition switch scandal as an example of what one might investigate.  The original grant proposal envisioned a three-year project, which would have allowed three areas of study. 

I was instead offered a more modest grant to test out the idea.  By the time the award was provided, the #MeToo movement was in full swing, so I changed the topic of inquiry to sexual harassment within organizations.  Ultimately, we had participants from law, management, economics, philosophy, and journalism.  Each participant wrote a small three to five page paper addressing the sexual harassment crisis within organizations from their scholarly discipline and expertise.  We then had a one-day conference where we presented our solutions, and we had two senior external scholars attend to comment and provide additional input.  Ultimately, we walked away with two potential theses, and a few of us are currently working on a paper. 

One of the proposed uses of the grant award in the original proposal was to provide research funding for contributors as an incentive to participate.  Every department at Notre Dame has its own publication expectations, so I worried that people might need an incentive to participate in interdisciplinary work.  When I received the more modest grant, however, I dropped the attempt to provide the incentive.  As it turned out, each person I approached agreed to participate except for one, and the one person who declined instead provided some additional funding for the project. 

For the those of us working on a writing project together, we have determined that we may be able to publish three articles—one each in a management, law, and economics journal—related to one of the theses we identified.  We would of course emphasize different points in each publication.  I think this is in actuality a better incentive than research funding would have been.  We identified a thesis that hasn’t been written about in our respective disciplines, and we have identified related projects that we can tackle for the purpose of publishing pieces in those disciplines.  This provides us each a publication opportunity that “counts” in our departments, but it also broadens the potential impact of our work.  This is still very much an experiment, but it does seem as if it is an experiment worth attempting as the potential upside is quite high. 

With that, I close my stint here at Prawfs.  I had some more half-written blog posts, but my 1Ls are happy, eager, and love sitting in my office.  Until next time! 

Posted by Veronica Root on August 31, 2018 at 07:09 AM in Corporate, Culture, Employment and Labor Law, Workplace Law | Permalink | Comments (2)

Thursday, August 30, 2018

Call for Papers for Section on Administrative Law Program at the 2019 AALS Annual Meeting

My awesome colleague Mila Sohoni sends word:

The Section on Administrative Law is pleased to announce a Call for Papers from which one or two additional presenters will be selected for the Section’s program to be held during the AALS 2019 Annual Meeting in New Orleans, LA.

Form and length of submission:

The panel is titled “Presidential Control of Administrative Agencies,” and will be held on Thursday, January 3, 2019 from 1:30-3:15. The Section welcomes submissions on any topic relevant to presidential influence or control over administrative agencies, with a (non- exclusive) focus on issues pertaining to President Trump’s interaction with the administrative state.

Submissions may take the form of abstracts or more complete drafts, but preference will be given to more developed projects.

Submission method and due date:

Submissions should be anonymized. They should include a cover page with the author’s name and contact information. The cover page should be the only part of the submission that includes any identifying information for the author.

Submissions should be sent electronically to Professor Lou Virelli at  [email protected]. The due date for submissions is Friday, September 7, 2018.

Submission review:

Papers will be selected after review by members of the Executive Committee of the Section. The author(s) of the selected paper(s) will be notified by Monday, September 24, 2018. The Call for Papers presenters will be responsible for paying their conference registration fee and hotel and travel expenses.

Inquiries or questions:

All inquiries should be submitted to Lou Virelli at Stetson University College of Law ([email protected] / 727-562-7329).

Posted by Orly Lobel on August 30, 2018 at 11:27 AM | Permalink | Comments (0)

POSITION ANNOUNCEMENT - DIRECTOR OF THE ENTREPRENEURIAL/TRANSACTIONAL LAW CLINIC AND ASSISTANT/ASSOCIATE/PROFESSOR OF LAW

DRAKE UNIVERSITY LAW SCHOOL invites applications for the position of Director of the Entrepreneurial/Transactional Law Clinic. The position will begin in the 2019-2020 school year, and will be a twelve-month position. The directorship could be annual or long-term contract, or tenure-track, depending on the candidate’s qualifications and preferences. Duties will include supervising and assessing Clinic students representing nonprofit organizations and emerging entrepreneurs.   The Clinic primarily focuses on assisting startup businesses and nonprofits in underserved communities in Polk County, Iowa that are not able to afford retained counsel.   In addition, graduate students and other researchers at Iowa State University provide another source of Clinical transactional cases, many of which include advanced issues involving tech transfers, capital structures, and software licensing. The Director will have the opportunity to build on the success of the existing clinic, which serves a vibrant, diverse community of innovators.  In addition, there may be opportunities to teach doctrinal and experiential-learning courses depending on the law school’s curricular needs.

Continue reading "POSITION ANNOUNCEMENT - DIRECTOR OF THE ENTREPRENEURIAL/TRANSACTIONAL LAW CLINIC AND ASSISTANT/ASSOCIATE/PROFESSOR OF LAW"

Posted by Administrators on August 30, 2018 at 10:35 AM in Sponsored Announcements, Teaching Law | Permalink | Comments (0)

Wednesday, August 29, 2018

Law Schools as a Proxy for Class

Above the Law recently published an article by LawProfBlawg—an anonymous professor at a Top 50 law school—called “Classism in Academia.”  The article takes as a jumping off point the characteristics of law professors in the latest citation count rankings, and notes the low numbers of ranked professors “who didn’t go to a top 10 law school (and more likely to be from a lower socio-economic status).”  This isn’t the first time I’ve seen someone endorse the idea that the law school a student attends is a good proxy for his or her class.  So I thought I’d spend a few minutes explaining why I’m uncomfortable assuming that a law professor’s attendance at a Top 10 law school (as opposed to a lower ranked school) is a good proxy for class.

But before I get to that explanation, let me say that I think that schools should consider socioeconomic status when it comes to achieving diversity both for faculty and students.  And I also think that it is a good idea for schools to hire from a broad array of different law schools.  I’d be happy to defend either of those positions.  But I don’t think that one has to believe either or both of those things to think that we shouldn’t use attendance at a Top 10 school as a proxy for class.

So what do we know about the socioeconomic status of people who attend top 10 law schools?  I haven’t done independent research on the topic, so I can’t say with any authority.  But what I can say is that the evidence offered in this article doesn’t support the proxy argument.  That is because, to show that a professor’s alma mater is a good proxy for class, you’d have to show not only that folks who attend top 10 schools came from money, but also that those who attended schools ranked 11 or below didn’t.  In addition to that, you’d have to show that there is a significant enough difference between the socioeconomic status of people at the top 10 schools and those at schools 11 or below that we can say school attendance is essentially interchangeable with class.  And, from what I’ve seen, the limited data available doesn’t suggest that either of these things are true.

Continue reading "Law Schools as a Proxy for Class"

Posted by Carissa Byrne Hessick on August 29, 2018 at 10:14 AM in Carissa Byrne Hessick, Life of Law Schools, Teaching Law | Permalink | Comments (41)

Guest Post: A Law Faculty Candidate and His Judicial Reference (1934)

The following guest post is by John Q. Barrett (St. John's and The Jackson List)

In summer 1934, Harold Roland Shapiro was a young lawyer.  It seems that he had earned his Bachelor of Laws degree eight years earlier at New York Law School, and that he had gone on to work in Washington, D.C., in a government position that had something to do with trade and antitrust law.  [I have not been able to find many sources on Mr. Shapiro’s background—I welcome any pointers.]

It also seems that Shapiro was acquainted with U.S. Supreme Court Associate Justice Benjamin N. Cardozo.

Continue reading "Guest Post: A Law Faculty Candidate and His Judicial Reference (1934)"

Posted by Howard Wasserman on August 29, 2018 at 09:31 AM in Legal History, Teaching Law | Permalink | Comments (0)

Tuesday, August 28, 2018

Dean Search: University of Utah S.J. Quinney College of Law

The University of Utah invites nominations and applications for the position of Dean of the S.J. Quinney College of Law.

Continue reading "Dean Search: University of Utah S.J. Quinney College of Law"

Posted by Howard Wasserman on August 28, 2018 at 04:30 PM in Teaching Law | Permalink | Comments (0)

More on the ACLU's conflicting principles

The internal disputes over the ACLU's First Amendment activities is back, this time over the National Office's amicus brief in the NRA lawsuit challenging New York's practice of pressuring insurance companies, banks, and other regulated businesses not to do business with the organization. This Slate story describes some of the internal conversations responding to Legal Director David Cole's explanation for writing the brief, including a memorandum in response by three people in the New York affiliate. That memo made three points--this is not a novel case or a straight-forward free-speech issue; the NRA has the resources to litigate and the ACLU should consider whether to spend its limited resources helping litigants with "enormous resources at their disposal" as opposed to less-resourced groups, such as Black Lives Matter; and representing the NRA has negative effects on the ACLU's representation with "important allies." Several people objected to the National Office's argument that New York's tactics could be used against groups such as BLM, rejecting the use of BLM as a "shield" to justify representing groups that are causing the very problems, such as gun violence, in the African-American communities that BLM is trying to address. The article closes by suggesting that such disputes may cause the ACLU to "soon abandon its adherence to formal neutrality—and adopt a vision of liberty that openly favors the oppressed over the oppressors."

Regardless of the merits of whether BLM might be targeted, it is beside the point in this brief. A more salient and ongoing example, which the brief included, is states targeting Planned Parenthood, which stands for some in the same position the NRA does for others.

As to the article's final point, that vision of First Amendment liberty is no vision at all. A Muslim should not have less religious liberty than a Christian, nor should government be able to disadvantage powerful organizations but not powerless organizations in retaliation for their speech. And an organization committed to civil liberty should not approach liberty questions that way.

The resources argument (putting aside whether it has any merit) strikes me as inaposite in this case. The ACLU is not representing the NRA in this case, so any expenditure of ACLU resources does not relieve the NRA of the burden to spend money on its own lawyers to make its own arguments. The benefit of the ACLU's brief, on which it did expend some of its limited resources, is to the NRA's legal position, not to its wallet. An argument that the ACLU not only should not represent well-resourced parties* but should not provide amicus support for well-resourced parties seems over-inclusive, tying the merits of a party's constitutional position to the money in its bank account.

[*] This argument remains strange for another reasons--representation makes the ACLU eligible to recover attorney's fees if it prevails. So it should recover at least some of the resources.

Posted by Howard Wasserman on August 28, 2018 at 07:24 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (3)

Sunday, August 26, 2018

A Guide for the Perplexed - Law Professor Careers Edition

220px-Guide_for_the_Perplexed_by_MaimonidesWith sincere apologies to Maimonides, and having been a guest blogger through this year's fall article submission season, it seems like an opportune time for a short update to those classics, Memo to Lawyers: How Not to "Retire and Teach" and "Retire and Teach" Six Years On.  I wrote the former piece after getting a tenure-track law teaching job at the ripe old age of 52, reflecting on the idiosyncrasies of the hiring process, particularly for the superannuated aspirant, after having experienced the real world for most of a career. I wrote the latter piece shortly after I got tenure, reflecting mostly on what it really meant to do scholarship and teaching well.  

I now have the further experience of having participated on various career-related committees and the faculty meetings in which hiring and other career decisions get made.  (Disclaimer:  what follows are my views alone and do not represent views of my employer, any committee on which I sit, or any other member of our faculty.)  So, below the break, and for what it's worth, here are some random and personal thoughts about the role of scholarship in academic law careers and careerism, particularly for pre-tenured folks, from my particular perch at a respectable but certainly not an "elite" school.

Continue reading "A Guide for the Perplexed - Law Professor Careers Edition"

Posted by Jeff Lipshaw on August 26, 2018 at 10:42 AM in Getting a Job on the Law Teaching Market, Life of Law Schools, Lipshaw, Teaching Law | Permalink | Comments (3)

Saturday, August 25, 2018

Faculty Hiring: Drake University

DRAKE UNIVERSITY LAW SCHOOL invites applications for a tenured/tenure-track position as Assistant/Associate/Professor of Law in the field of Agricultural Law and Director of the Drake Agricultural Law Center beginning in the fall of 2019. Applicants must hold a J.D. degree (or the equivalent) and should have outstanding records of accomplishment in scholarship, teaching, and service as well as substantial practice experience.

Continue reading "Faculty Hiring: Drake University"

Posted by Howard Wasserman on August 25, 2018 at 02:03 PM in Teaching Law | Permalink | Comments (0)

Friday, August 24, 2018

Who Doesn't Love a Book Festival? This Saturday in Southern California

Book Festival - each word a primary love, put together - fireworks! Music, art, kids corner, food vendors, beer and lots and lots of books and book talks. Tomorrow is the annual San Diego Festival of Books in Beautiful Point Loma with back-t0-back panels about books, fiction and non-fiction, writing and publishing, and ideas. There is also an amazing author lineup. It's free and open to the public and yours truly is on a panel on "the Dark Side of Business" [and the dark side of Barbie! as well as a new book about Trump/Russia and a book about Gambling Laws and Government Corruption] at 1030. If you are around - it's free and open to the public. Come with your whole family, bring your friends and come say hi!

Image may contain: 1 person, crowd and outdoor

Posted by Orly Lobel on August 24, 2018 at 05:38 PM | Permalink | Comments (0)

University of Alabama School of Law Clinical Faculty Hiring Announcement

The University of Alabama School of Law is seeking candidates for the position of Assistant Professor of Clinical Legal Instruction and Director of the Criminal Defense Clinic. The official announcement is below:

The University of Alabama School of Law seeks applicants for a Clinical Director and Assistant Professor of Clinical Legal Instruction. The successful applicant will serve as the Director for the Criminal Defense Clinic. The Director will oversee and/or conduct all phases of legal advocacy for clinic clients, teach and supervise clinic students, and manage law clinic staff. The Clinic will offer students the opportunity to acquire skills important to their professional development while representing individuals accused of criminal offenses and/or infractions in Alabama State and/or Municipal Courts. The position is for a non-tenure-earning clinical faculty appointment that has the opportunity for promotion and security of position.

MINIMUM QUALIFICATIONS: a J.D. degree from an ABA accredited law school, a distinguished academic record, and experience as a clinical teacher or practicing lawyer. Candidates must be licensed to practice law in Alabama or become licensed no later than one year after accepting the position. We seek applications from entry-level and lateral candidates with demonstrated potential for outstanding legal practice, clinical education, and scholarly achievement. Salary will be commensurate with experience. Apply online at http://facultyjobs.ua.edu/postings/43351. The position will remain open until filled. Please refer questions about the hiring process to Professor Jenny Carroll, Chair of the Clinical Appointments Committee ([email protected]).

The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, pregnancy, age, genetic or family medical history information, disability, or protected veteran status, or any other legally protected basis, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under Federal law from discrimination on several bases.

Posted by Paul Horwitz on August 24, 2018 at 04:30 PM | Permalink | Comments (0)

Thursday, August 23, 2018

Law School Hiring Spreadsheet and Clearinghouse for Questions, 2018-2019

In a radical departure from past practice, this year the Hiring Spreadsheet post and the Clearinghouse for Questions post will live together in one post (quel scandale! cats and dogs! etc.). This very post, to be specific. (Last year, there were zero comments on the Hiring Thread post, because everyone just put the information in the spreadsheet. So I figured, let's combine them in one action-packed post! Spreadsheet and comments! Woohoo!)

I. The Spreadsheet

In the spreadsheet, you can enter information regarding whether you have received

(a) a first round interview at a school (including the subject areas the school mentioned, if any, as being of particular interest, and whether the interview offer was accepted);

(b)  a callback from a law school and/or accepted it; or

(c) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.

Law professors may also choose to provide information that is relevant to the entry-level market.  

Anyone can edit the spreadsheet; I will not be editing it or otherwise monitoring it. It is available here:

II. The Comment Thread

In this comment thread to this post, you can ask questions about the law teaching market, and professors or others can weigh in.

Both questions and answers can be anonymous, but I will delete pure nastiness, irrelevance, and misinformation. If you see something that you know to be wrong, please feel free to let me know via email, sarah*dot*lawsky*at*law*dot*northwestern*dot*edu.

You may want to take a look at the many questions and answers in the threads from 2014-20152015-20162016-2017. and 2017-2018. In general, there's quite a cache of materials relevant to the law job market under the archive categories Getting a Job on the Law Teaching Market and Entry Level Hiring Report.

Update: Comments have been changed to appear in order of newest to oldest. So the most recent comments are on the first page.

Posted by Sarah Lawsky on August 23, 2018 at 09:00 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (359)

Wednesday, August 22, 2018

CFP: National Conference of Constitutional Law Scholars 2019

THE REHNQUIST CENTER is pleased to announce the inaugural National Conference of Constitutional Law Scholars. The conference will be held at the Westward Look Resort in Tucson, Arizona, on March 9-10, 2019. Its goal is to create a vibrant and useful forum for constitutional scholars to gather and exchange ideas each year.

David Strauss will deliver a keynote address. Distinguished commentators for 2019 include:
Jessica Bulman-Pozen
John Harrison
Aziz Huq
Gillian Metzger
Victoria Nourse
Bertrall Ross
Stephen Sachs

Continue reading "CFP: National Conference of Constitutional Law Scholars 2019"

Posted by Howard Wasserman on August 22, 2018 at 04:18 PM in Teaching Law | Permalink | Comments (0)

Big Little Lies--Crim Law Question

GMy wife and I just finished Season One of Big Little Lies. We enjoyed the show. But we were not fans of how it ended, specifically how the police resolved the investigation and why, why the women told the story they did, and what criminal law has to say about it.

SPOILERS after the jump. Substantive crim law people, please help us out.

Continue reading "Big Little Lies--Crim Law Question"

Posted by Howard Wasserman on August 22, 2018 at 11:11 AM in Criminal Law, Culture, Howard Wasserman, Television | Permalink | Comments (8)

Poor Consumer(s) Law: The Case of High-Cost Credit and Payday Loans

Samuel Becher (Victoria University), Yuval Feldman (Bar Ilan University) and I have a new paper we just uploaded on ssrn about behavioral law and economics, poverty and credit: Poor Consumer(s) Law: The Case of High-Cost Credit and Payday Loans forthcoming in Legal Applications of Marketing Theory, Jacob Gersen & Joel Steckel, eds., Cambridge University Press. Download it while it's hot and would love to hear your comments. Here is the abstract:

Consumers in general, and poor consumers in particular, often make counter-productive financial decisions that undermine their welfare. One key example is that poor people frequently use high-cost credit and loans with onerous interest rates. They are also disproportionately engaged in other types of sub-optimal borrowing, such as rent-to-own transactions and insufficient savings for the future. Although lenders and service providers are obliged to disclose interest rates and other key information in a clear and conspicuous way, disclosures have been at best only partly effective to prevent exploitation and protect consumers. This chapter seeks to examine how consumer law can, and at times should, respond to this reality. While focusing on borrowing practices, we begin by pointing to the main behavioral patterns that impact financial decision making. We first address biases that are relevant to all consumers: over-optimism, the present bias, and the behavioral economics of information. We then discuss the psychology of poverty and scarcity, which demonstrates that the state of poverty depletes cognitive resources and undermines the consumer’s capacity to overcome temptations, choose the uneasy paths and exercise long-term planning. Against this background, we discuss a variety of policy recommendations. We focus on protections that are better-suited to treat the root causes that lead poor people to make dubious financial decisions. We conclude by succinctly noting some of the challenges entailed in our recommendations and discussing ways to expand our proposed framework.

 

Image result for credit cards exploit

Posted by Orly Lobel on August 22, 2018 at 12:27 AM | Permalink | Comments (6)

Tuesday, August 21, 2018

Hiring: Florida State University College of Law

FLORIDA STATE UNIVERSITY COLLEGE OF LAW (FSU) has several openings for full-time tenured or tenure-track positions. Senior faculty candidates may be eligible for a named professorship. We are especially interested in individuals whose scholarship focuses on health care, commercial law, law and economics, and international law but invite applications from scholars in all fields. Candidates must demonstrate distinction or promise in both legal scholarship and law teaching. If interested, please send a Curriculum Vitae to Professor Wayne Logan, Appointments Committee Chair, Florida State University College of Law, Tallahassee, FL 32306-1601 (email:  [email protected]). FSU is an Equal Opportunity/ Access/Affirmative Action/Pro Disabled & Veteran Employer; FSU's Equal Opportunity Statement can be viewed at:http://www.hr.fsu.edu/PDF/Publications/diversity/EEO_Statement.pdf.

Posted by Howard Wasserman on August 21, 2018 at 11:00 AM in Teaching Law | Permalink | Comments (0)

Flipping constituional litigation

Here is a move that could shake-up our expectations in constitutional litigation. A group of Kentucky filed suit in the District of the District of Columbia, challenging HHS' grant of a waiver for Kentucky to change its Medicaid program; Kentucky intervened in that action as a defendant. At the same time, Kentucky sued the D.C. plaintiffs for a declaratory judgment of the validity of the state's new Medicaid rules. The district court dismissed on standing grounds, concluding that Kentucky had not shown an injury and that any injury arose from the result in the D.C. litigation, not from any conduct of the defendants. The court did not resolve defendants' 12(b)(6) and first-to-file arguments.

This is an aggressive move, allowing a state to preempt constitutional litigation by rights-holders by running to a preferred court either before or during the rights-holders' litigation. At the very least, it forces rights-holders into a two-front war. On this logic, nothing would stop a state from the following: Prosecution of X for violating a law, with X arguing in the prosecution that the law is invalid. State runs to a different court against X, seeking a declaration that the law is constitutionally valid.

Perhaps the benefit of resolving this case on standing, rather than something discretionary such as first-to-file, is to signal that states lack standing to sue over an anticipated injury caused by someone else's lawsuit.

Posted by Howard Wasserman on August 21, 2018 at 10:59 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (4)

Monday, August 20, 2018

First Mondays on First Year

With SCOTUS quiet, the folks at First Mondays devote an episode to 1L year. Topics include reading cases and prepping for class, study groups, study guides, different approaches to statutory courses, and studying for and taking exams. It is a great discussion and worth sharing with the 1Ls in your life.

Posted by Howard Wasserman on August 20, 2018 at 04:37 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)