Month: January 2007

It’s time for my guest blogging stint to come to an end. My thanks to Dan and all the other folks at Prawfsblawg. I had a bunch of posts this go-around that touched on ways to improve legal research and scholarship, and I especially appreciate the comments on Westlaw Blues, Westipedia, and “Choose Your Own Legal Scholarship” (still time for a few more to step up to the plate on this last one). Looking forward to my next visit!

Posted by Adam Kolber on January 11, 2007 at 05:53 PM

Comments

Adam, thanks so much for another great visit!

Posted by: Dan Markel | Jan 11, 2007 11:30:53 PM

Greetings, sportsfans! The Chief’s been working on the railroad in [yesterday’s] lone opinion. But don’t stop reading now, tempting though that may seem: I promise there’s some interesting stuff at the end.

Norfolk Southern Railway v. Sorrell, 05-746

The Chief—whether graciously or of necessity­—kept a real dog for himself from the October sitting. He wrote the Court’s opinion (joined by all but RBG) vacating the decision of the Missouri Court of Appeals. The question was whether, in Federal Employers’ Liability Act cases (railroad injury cases often tried in state courts), Missouri properly applied a more lenient standard of causation for employer liability than for an employee’s contributory negligence. The Court saw no reason for tilting the playing field toward the employee in this way. The common law applied the same causation standard for both employer negligence and contributory negligence, and FELA’s statutory text did nothing to alter the common-law rule. And it makes no sense to apply different causation standards under FELA’s comparative-fault system, which treats contributory negligence as a direct offset against employer negligence. The Chief declined to decide precisely what the causation standard is, on the ground it would be unfair to let Norfolk “switch gears” and seek a ruling on that issue after it took conflicting positions below. That non-holding is a great example of both the Chief’s clever railroad humor and his attempt to preserve unanimity by reaching only issues that are squarely presented.

DHS concurred, joined by Scalito (AS + SAA). While Justice Souter agreed that the Court should not establish the causation standard, he couldn’t resist offering a few words of wisdom on it anyway. It should be the common-law “proximate cause” standard, and lower-court rulings that rely on a recent Supreme Court case to water down that standard are just plain wrong.

RBG concurred only in the judgment. She agrees with the Court that the causation standards should be the same, but she reads Supreme Court precedent (contra DHS) as departing from the strict common-law standard, thus making it easier for plaintiffs to prove negligence. RBG contends that this reading is in accord with FELA’s remedial purpose, as Justice Douglas colorfully put it, to lay on that robber-baron railroad industry “some of the cost for the legs, eyes, arms, and lives which it consumed in its operations.” Anyone else have a craving for sausage about now?

ASSIGNMENT WATCH: Two opinions remain of the 9 from the October sitting, and 2 Justices have not yet written opinions—RBG and SGB. The 2 remaining cases are Cunningham v. California (constitutional challenge to California sentencing guidelines) and Global Crossing v. Metrophones (administrative law/private cause of action under 1996 Telecom Act). It is exceedingly difficult to guess our mystery authors. After all, both RBG and SGB played key roles in Booker, the case on which Cunningham turns—Breyer as the author of the remedial opinion, and Ginsburg as the swing vote who joined different 5-4 majorities to first strike down the federal Guidelines, and then to salvage them by making them advisory. As a result, either one could be writing Cunningham to uphold California’s guidelines. On the other hand, either one could be writing Global Crossing: Breyer was an administrative law professor, and Ginsburg a former DC Circuit judge who also has expertise in that area. My purely speculative guess: Breyer writes upholding California’s system as salvaged by the California Supreme Court, thus reprising his role in Booker. And RBG pens Global Crossing over multiple dissents or concurrences (which would explain why the speedy RBG has been so slow in issuing her first opinion of the Term). However, if the Chief’s dog adoption from the October sitting means that he was in the minority in both Cunningham and Global Crossing, then the roles could be reversed, with RBG striking down the California guidelines (over JGR’s dissent) and SGB writing Global Crossing. A final word of caution: virtually all of this speculation rests on the assumption that Roberts and Alito will mirror their predecessors’ pro-Guidelines/anti-Apprendi views, thereby maintaining four votes to uphold judicial-sentencing schemes. If either JGR or SAA turns out to be pro-Apprendi, however, then it would seem almost certain that RBG is writing Cunningham to invalidate California’s guidelines.

Until next time, that’s today’s baseball.

Aaron M. Streett is an associate in the Houston office of Baker Botts LLP, and a member of the firm’s Appellate and Supreme Court Practice. If you would like to subscribe to these updates, please send an e-mail to [email protected]

Posted by Administrators on January 11, 2007 at 03:21 PM

Every three years or so, the Law and Society Association holds a joint meeting with an International Socio-Legal Association and has its annual meeting oversees. This year, the meeting will be held in Berlin, Germany on July 25 -28, 2007. The deadline for submitting proposals is this Friday, January 12, 2007.

This year’s meeting co-sponsors also include the Socio-Legal Studies Association (UK), the Japanese Association of Sociology of Law, the Vereinigung für Rechtssoziologie, and the Sociology of Law Section of the German Sociological Association. It promises to be one of the larger LSA meetings ever, with the broad theme of, Law and Society in the 21st Century: Transformations, Resistances, Futures, inviting scholars from around the world “to reflect on the law and society in the 21st century. The fall of the Berlin Wall in 1989 is commonly evoked as the symbolic beginning of the 21st century, so it is fitting that we are holding this meeting in Berlin.” The call for participation can found here. I recommend submitting abstracts via research networks or together with other speakers to form a non-random, more cohesive panel.

Posted by Orly Lobel on January 10, 2007 at 08:26 PM

Comments

Once you are in Berlin for Law & Society you could go to Cracow on August 1 for the IVR legal philosophy Congress.

Posted by: John Rooney | Jan 13, 2007 7:09:39 PM

A patient of my father’s had the following experience when called in for jury duty:

The judge emphasized to the panel that the case was a “murder 1” indictment and that the trial would take about 4 weeks. He asked jurors to raise their hands if they felt that the trial’s length would adversely affect how they were likely to view the defendant. He then dismissed all those who did not raise their hands and thanked them for their time. The professionals who thought they were too important to serve were kept in the pool for voir dire.

Reactions?

Posted by Ethan Leib on January 10, 2007 at 07:28 PM

Comments

Well, if we knew who was more likely to try to get out of service, our system for screening these folks could be more effective. But that’s a “policy-oriented” research agenda. I happen to still think it is interesting sociologically to ascertain who thinks of themselves as too important or too pressured financially to attempt to get out of jury service. Such information might also be probative on the question of how much the decision to fulfill civic responsibilities is an economic one.

Posted by: Ethan Leib | Jan 16, 2007 3:04:39 PM

You are right, our paper does not directly answer your question. Our paper asks, in part, who is SUCCESSFUL at getting out of jury service. It does not address who is likely to TRY to get out of jury service. I’d imagine that the only way to answer your question would be to sit in on lots of jury selections, though you’d have to match the people who raise their hands to their occupations/education levels/livelihood, or some proxy–perhaps based on the reasons they give for raising their hands. There was a good study that did just that–sit in on lots of jury selections–but I don’t think the researchers looked at your question.

I guess I might follow up your question with another one: who really cares? If people are systematically unsuccessful in their attempts to get out of jury duty, why do we care if they try?

Posted by: Hillel Levin | Jan 16, 2007 2:33:03 PM

I can’t believe I forgot about that paper. But it is not quite head on: my query to Margo was about who is more likely to try to get out of jury service (by raising their hand, say, when a juror thinks it is likely to get her our of serving), not about service rates (which seems to measure something slightly different because the selection system may be relatively good at disallowing the “educated” to opt out with their attempted subversions).

Posted by: Ethan Leib | Jan 15, 2007 2:31:36 PM

Ethan:

This seems like an opportune time to re-pimp by co-authored paper, Hillel Y. Levin & John W. Emerson, Is There a Bias Against Education in the Jury Selection Process?, 38 Conn. L. Rev. 325 (2006). We address your question pretty much head-on.

Hillel

Posted by: Hillel Levin | Jan 15, 2007 2:18:44 PM

Wouldn’t it be possible to rehabilitate many of the jurors? It is far easier to raise one’s hand in response to an apparent “get out of jury duty free” question addressed to the entire panel than it would be to answer dishonestly during one on one direct questioning. If jurors were empaneled without being properly rehabilitated it would be inviting reversal but without knowing more about the remainder of the voir dire it is impossible to really know.

It would be interesting to know why the judge did it. Whether he had some reason other than codgerly mean-spiritedness.

Posted by: Jim Green | Jan 11, 2007 11:20:32 AM

If you’ve got empirical data on that issue (of a non-anecdotal nature), I’d love to know. I concede that I have no idea who is more likely to try to wiggle his way out of jury duty, since it isn’t just a pure economic decision — one thinks about how superiors may view it in assigning work, in promotion; how colleagues may view it; how much one likes one’s job; etc. You may be right that professionals get paid without working — a proposition that makes sense to law professors, perhaps, but not to most doctors, therapists, dentists, non-big-firm lawyers, etc. in private practice — and that many from lower socio-economic backgrounds stand to lose more from missing four weeks of work. But I don’t think there is an easy way to guess how this plays out without data. I shouldn’t have suggested otherwise.

Posted by: Ethan Leib | Jan 11, 2007 1:32:38 AM

I don’t disagree that this might be reversible error because of the acknowledged bias. But more generally, I wouldn’t be so sure that it’s the “busy professionals” who seek to get out of jury duty disproportionately. After all, they are far more likely to have jobs for which they are paid regardless of whether they work. It’s blue collar and service people who don’t get paid when they go to jury duty. So the people who have the least economic disincentive to serve are retired people and unemployed people. The ones with the largest disincentive are the working poor up through a couple of socio-economic strata. Busy professionals are after that.

I was just on a jury panel in a murder trial that was going to go a week. I got struck early (because, I think, one of my students was working on the case for the prosecutor). On the panel of 50, it was clear that a few folks were really working to get struck. They didn’t seem to me to be disproportionately white, or disproportionately prosperous.

Posted by: Margo Schlanger | Jan 11, 2007 12:52:34 AM

Just kidding around with you, Orin.

You may be right. This patient, I’m told, didn’t raise her hand — so got out of jury duty.

Posted by: Ethan Leib | Jan 11, 2007 12:19:01 AM

Um, Ethan, I’m not calling anyone a liar. My guess is that the patient misheard what the judge said: the judge presumably dismissed the jurors who said they *would* be biased, but the patient missed it in passing and thought the judge had dismissed those who said they *wouldn’t* be. That just seems a lot more likely to me that a judge committing what seems to be reversible error in the first hour of a 4-week trial for homicide.

Posted by: Orin Kerr | Jan 11, 2007 12:04:52 AM

Just so we’re clear, Orin. Are you calling my father a liar — or is his patient the liar?

Posted by: Ethan Leib | Jan 10, 2007 11:45:09 PM

I’m not familiar with the caselaw here, but my instincts tell me that this would have to be reversible error. According to the story — if true, which I tend to doubt — the judge only allowed jurors to sit if they affirmatively stated that they would be biased *against* the defendant. If I’m a defendant, I’m not going to be very happy with a jury pre-screened for bias against me.

Posted by: Orin Kerr | Jan 10, 2007 11:18:20 PM

Patrick, First a number of otherwise qualified jurors, were disqualified for no apparent reason. That certainly is not a help to the defense. Futher, people with professions tend to be more conservative and vested in the word of the state than those that are not so employed, hence you get a pro-prosecution jury. Finally, if the defendant was of a racial minority chances are the majority of kept jurors were caucasian assuring the defendant had no chance of getting a jury of her peers. Those are just a few reasons that hit me right away. That a juror may rush to reach a verdict to get back to their busy life, or may not be willing to hold out when they are not convinced of guilt beyond a reasonable doubt are two more reasons to worry about this judges grandstanding.

Posted by: That Lawyer Dude | Jan 10, 2007 11:12:08 PM

But that’s assuming they were ‘telling’ the truth and not simply attempting to avoid jury duty. Is that a safe assumption? Perhaps experience has taught the judge that some individuals (e.g. ‘the professionals who thought they were too important to serve’) will exploit any opportunity to avoid lengthy jury service. Precisely how does or why should the length of a trial affect one’s perception of a defendant (and not, say, the judge, the district attorney, the legal system, etc.)? Does one really know in advance that one will ‘take out one’s frustration’ on the defendant? Is that what jurors do? Or in the past have done? Think of this question afresh. It seems remarkable that people could quickly come to such a conclusion when asked such a question. And of course there was still voir dire.

Anecdotal evidence to be sure, but I’ve heard all kinds of reasons folks have used (while confessing no interest in the veracity of said reasons) to avoid jury duty….

I’m open to changing my mind.

Posted by: Patrick S. O’Donnell | Jan 10, 2007 9:50:34 PM

The judge asked who would take out the frustration of a long trial on the defendant. The people who said yes were kept.

Posted by: anon | Jan 10, 2007 9:07:16 PM

I may be more than a bit obtuse, but could someone please explain the precise harm caused to the defendant?

Posted by: Patrick S. O’Donnell | Jan 10, 2007 8:55:53 PM

I can appreciate the judge’s sentiment, but I think anon is right that, as a practical matter, this is more likely to harm the defendant than anything else. Now, if the jurors could be counted on to take it out on the District Attorney ….

Posted by: The Continental Op | Jan 10, 2007 8:33:48 PM

Not wise to make what a point like that at the expense of a criminal defendant. Don’t you think the judge just made a mistake, and dismissed the wrong group? Why would any thinking judge needlessly create that type of appellate issue.

Silly.

Posted by: anon | Jan 10, 2007 8:20:36 PM

One clever, perhaps even wise judge.

Posted by: Patrick S. O’Donnell | Jan 10, 2007 7:49:12 PM

Take a look at Michael Rappaport’s post at The Right Coast on the legitimacy and interpretation of the Constitution. In short, he thinks the classic “nonoriginalist” move is to assume the Constitution’s legitimacy and to pretend that the interpretative enterprise is a wholly different game, one that isn’t bound up with the question of legitimacy in the first instance.

I think this is simply false. First of all, I think it is far more common among originalists to assume away legitimacy. In any case, originalists and nonoriginalists alike similarly duck the question of legitimacy and argue only about “interpretation;” this is no mere non-originalist sin.

Second, as I argue in The Perpetual Anxiety of Living Constitutionalism (I realize you are sick of hearing about it — but I just updated the draft, so that’s a good excuse to plug it one last time), I believe that the interpretive mechanics of a certain group of nonoriginalists (the living constitutionalists, of course) is traceable to a view about the legitimacy of the document. Far from assuming legitimacy away, this group of nonoriginalists embrace their nonoriginalist interpretive methodology out of fear of the illegitimacy of the document itself. This is why Rappaport has it wrong: the intepretive method derives precisely from an account of legitimacy — it is only a fear of illegitimacy rather than excessive confidence in legitimacy. The latter tends to lead to an originalist methodology. Or so I argue in the essay.

Posted by Ethan Leib on January 10, 2007 at 06:28 PM

Comments

I hope the paperback ed. has reproduced the original jacket illustration (Convention to decide final form of Constitution).

Posted by: Patrick S. O’Donnell | Jan 10, 2007 7:43:52 PM

Yep. Who said blogs can’t help scholarship, again? I thanked you in the author footnote in the iteration I did today (which I’ll post soon enough). And I cited the paperback edition from 2003, which is the one I have.

Posted by: Ethan Leib | Jan 10, 2007 7:21:42 PM

Ethan,

Happy to see the Hardin book referenced in the notes (although it was first published in 1999, as cited in my comment to your Dec. 31 post on the topic, not 2003).

Posted by: Patrick S. O’Donnell | Jan 10, 2007 7:10:44 PM

Josh Chafetz is a student at the Yale Law School, a frequent figure in the legal blogosphere, and the author of a new book, Democracy’s Privileged Few: Legislative Privilege and Democratic Norms in the British and American Constitutions. Wow! Pretty heady stuff for a still-student, and due cause for congratulations. They must put something in the water over New Haven way. Josh is flogging the book at Balkinization; take a look.

One thing Josh’s book reminds me of that’s long been of interest to me is a seemingly anti-democratic norm built into the daily routine of Congress itself. Under congressional rules, as one report notes, “Observers in the galleries may not take notes; pencils and pens can be confiscated; photographs are forbidden.” That citizens (and others) are forbidden from exercising what in most circumstances would be a fundamental right to gather information and record it, in the very place in which the spectacle of open government is enacted daily (when in session), is a curious phenomenon and well worth noting. One can trace this norm well back into Parliament itself, and it’s worth observing that the Senate itself operated initially behind closed doors, and the publication of debates and votes from that body was highly limited at first. Of course, that norm has long since faded in favor of open deliberations in both bodies (although from time to time the Senate, at least, holds a rare closed session, famously so during the Clinton impeachment). And yet the prohibition on note-taking remains. Perhaps Josh can speak to this if he gets the chance, although it may be rather far afield from his concerns. Surely some citizen-journalist, or just plain citizen, out there must be interested in testing this rule, although I would not bet on his or her success.

Equally interesting, although still further afield from Josh’s book, is the fact that the rule does not apply to credentialed journalists in the press galleries — one more way in which, despite the commonly accepted notion that the First Amendment consists of a set of generally applicable rules, both constitutional and statutory regimes do, in fact, privilege various “First Amendment institutions,” including but not limited to the press.

Posted by Paul Horwitz on January 10, 2007 at 09:16 AM

Comments

This is somewhat odd. I was under the impression that prior to the Congressional Record in 1873, the only accounts of the proceedings of congress were from private reporters, who created the Congressional Globe et al. How does this square with the aforementioned rule?

Posted by: Ubertrout | Jan 10, 2007 11:08:12 AM

Congrats to Josh Chafetz for this achievement. Unfortunately, while Mr. Chafetz is qualified to publish a book with the Yale University Press, he is completely unqualified to publish an article in the Washington and Lee Journal of Civil Rights and Social Justice, the Campbell Law Review, and literally dozens of other law journals.

Posted by: Anthony | Jan 10, 2007 9:57:55 AM

Greetings from the chilly (at least to this transplanted Angeleno, climate change notwithstanding) Midwest, where I take up residence for a visiting semester at the justly celebrated University of Notre Dame Law School. I blame the paucity of my recent posting, and my absence from last week’s wicked excellent party, on the move from LA, the holidays, my beautiful baby girl, and my search for increasingly novel ways of avoiding grading exams (not necessarily in that order). Mea maxima culpa, as they say around here; the new year will hopefully find me posting more regularly.

I’m freshly moved in at the Law School, and at this point there are probably scads of Prawfs readers who know where the bathrooms are around here better than I do, not to mention the classrooms. (Although I do know where Touchdown Jesus is!) But I look forward to getting to know the South Benders (Bendies? Bendians? Benderinos? And if they leave town, are they South Bents?) among our readership, especially those who will be taking either of the courses I’ll be teaching this semester, which I hope will be enjoyable and interesting. Stop by ol’ office 341A anytime to say howdy. Or at least to tell me where the bathrooms are. Really. Please. Someone….

[Hat tip for the title of this post: the Shea brothers.]

Posted by Paul Horwitz on January 9, 2007 at 10:08 AM

Comments

As an undergrad at Notre Dame still anxiously waiting get back to his studies , welcome! I have not been in the law school building myself, but feel free to pass along any South Bend related questions (I just call them the locals). Enjoy your time on campus.

Posted by: Matt Letten | Jan 10, 2007 1:41:34 AM

Hi Prof. Horwitz! I am glad to hear you are at Notre Dame safe and sound, I will pass the good word on to the class. We had our first constitutional law class of the new semester yesterday, which went well, but our group could not help but reminisce about last semester’s class and your television jokes. The Notre Dame students are lucky to have you and should they ever doubt it, send them to this blog as evidence that your students at Southwestern did appreciate your jokes and efforts in teaching us about the three branches and their powers and, of course, the limits on these powers. 🙂 I hope you have a great semester!

Posted by: Vivian Bodey | Jan 10, 2007 1:27:05 AM

Still only 6 days after the Sugar Bowl–it’s still a bit painful to think about thunder & sky for me.

There’s a men’s room on the third floor that goes between the computer lab & one of the faculty-office hallways, but it’s sort of ducked behind a wall, I think. Quite a byzantine building design.

Posted by: Chris | Jan 9, 2007 10:14:05 PM

I look forward to getting to know the South Benders

I believe that a South Bender is a pre-football drinking binge.

As a transplanted Angelino in northern Indiana, you will no doubt enjoy the Lake Michigan dunes — Malibu of the Midwest.

Posted by: The Continental Op | Jan 9, 2007 10:57:27 AM

Welcome (from 90 miles away) to the Bend, Paul! Or, as I like to call it, the “Gateway to Mishawaka.”

Posted by: Rick Garnett | Jan 9, 2007 10:27:25 AM

Those of you familiar with legal scholarship know that it is overflowing with footnotes. It would not be particularly unusual to read a five sentence paragraph with five footnotes, where each footnote has multiple paragraphs and citations. Think about what this must do to the unity and clarity of the original paragraph in the text! But what does it do? It depends in part on how people read these footnotes. Do they (1) read all of them, (2) read none of them, or (3) read them selectively? I’m sure it depends on the piece and what the reader is trying to get out of it. I suspect that the answer is (3), for most people, most of the time.

Reading notes selectively is a hit-or-miss enterprise, however. It turns legal scholarship into a “Choose Your Own Adventure” story. Readers almost certainly miss out on important footnotes and read ones that are less important. Two different readers may come away with different views of a piece in part because they haphazardly selected different notes to read! Why not give authors a bit more control over the process? For example, an ordinary superscripted footnote in the body text could indicate a relatively simple reference to a source or sources. An underlined superscripted footnote could indicate that the note contains significant additional textual material. This would at least save our eyes from playing vertical ping-pong (or our fingers from flipping back and forth when reading the awful Westlaw and Lexis law review formats). If you want to get fancier and less elegant, a double-underlined superscripted footnote could indicate that there is additional textual information in the note that the author thinks is particularly interesting or important.

I know, I know, the Bluebook is complicated enough as it stands. And I think the conventional wisdom says that authors should try to put all the important material in the text. But that may be an unnecessarily restrictive view. Footnoted material might be interesting, original, and important, yet still be somewhat tangential to the paper’s main thesis. Robert Nozick’s footnotes come to mind.

In any event, in a field where 1/3 of our work appears in footnotes, it is worth thinking critically about what these notes are meant to accomplish, particularly as law review articles have become less about citation to legal authority and more about citation to other scholarship and to non-legal sources. For example, some say that detailed footnoting helps fill the void in legal scholarship left by the fact that most of it is not peer reviewed. I’m not sure how much it fills the void, and though I’m still ambivalent about law review footnoting, I do find more and more that when I read non-legal scholarship, I’m disappointed that important claims or data points lack sufficient references.

Posted by Adam Kolber on January 9, 2007 at 05:52 AM

Comments

I find the footnoting in legal scholarship excessive, not helpful, and obscures the overall structure of the argument.

With luck, hyperlinks and user controls over them, will allow readers like myself to scan a legal paper for its logical argument. If the argument appears invalid, there is no way I am going to take the time to figure out whether I agree with the premises or not.

Posted by: Michael Webster | Jan 9, 2007 2:22:50 PM

“Been to any good panels?” is, sadly, sometimes a laugh line at AALS. A lot of profs in attendance complain that this or that panel wasn’t good, or that they didn’t see any good panels listed in a certain time slot, etc. I’m not here to defend those negative vibes, just (1) to report on them and (2) to ask what an AALS Section can be done to avoid being one of “those panels.” As the new Secretary of the Employment Discrimination Section, I’m receiving many emails from those with actual influence over such matters participating in the discussion about next year’s panel, so I’d be curious if you have any thoughts on any of the following questions:

(1) What makes a panel bad?

(2) What type of title or description dissuades you from attending a panel?

(3) Is my premise wrong — i.e., is the average panel pretty good, in which case perhaps the complaining I hear simply is defensiveness by those who (err, like myself) simply are disinclined to attend too many panels, whether for good or for bad reasons?

(4) Do people like any of the alternative panel structures, such as “call for papers” panels or “open source” panels (the latter being the ones not affiliated with any one section)?

Posted by Scott on January 8, 2007 at 09:26 PM

Comments

This year marked my maiden voyage to the AALS in anything other than babysitting capacity, so my data set is paltry. Having thus completely depricated my own viewpoint, I will echo folks upthread and say that the panels that I attended that were based on calls for papers were better than the panels that I attended that were based on calls for big names.

Posted by: Deborah Ahrens | Jan 10, 2007 2:33:15 PM

I agree with Orin about getting people who disagree (intelligently and civilly). Also, I’m glad to see that the AALS has started experimenting with what most serious academic organizations do most of the time: issuing calls for papers that are then evaluated, instead of saying, “hey, I know so-and-so, he’s a pretty big name, and he’ll be good.”

At the panel itself, moderators should sometimes be more aggressive about keeping speakers to their time limits (I often wonder whether folks giving papers ever practice to see if they can actually give it in their allotted time).

As to topics, in employment discrimination, there’s always a decent possibility that the Supreme Court will have just decided some new case that people will want to talk about. On the whole, though, I think it’s better to have several quality papers that, at minimum, people in the field would find interesting and ideally would attract some curiious folks from other fields.

Posted by: Joseph Slater | Jan 9, 2007 10:21:51 AM

I tend to disagree with Bill Henderson. I think most AALS panels are on the weak side precisely because organizers pick the the kind of panel they would like to attend rather than the kind of panel that the audience would like to hear. So if the organizer happens to specialize in French basketweaving law, the panel often will be “Developments in French Basketweaving Law” regardless of whether there is anything particularly interesting going on in that area.

My own two cents:

First, pick interesting people with interesting and different things to say. That is, pick interesting and engaging speakers and scholars who will deliver something good. This may seem obvious, but it’s not: a lot of panels will pick from the list of people who happen to have written on the topic of the panel. Better to pick someone with interesting and fresh ideas who hasn’t written on the topic than someone who has written on the topic a lot and will just repeat what they have said many times before.

Second, make sure people on the panel disagree with each other. Maybe this is just my contrarian bias, but the one line that I hate to hear at a panel is “I agree with everything said so far, and I just want to add one or two additional points.” In contrast, my favorite line is “I completely disagree with my co-panelists, and here is why.”

Posted by: Orin Kerr | Jan 8, 2007 11:57:48 PM

I was on a panel on the Military Commissions Act that seemed to keep the audience interested (or alert on a Friday afternoon, anyway), notwithstanding the fact that the topic was complex and that in some spots we were assuming a certain level of familiarity with the statutory, constitutional, treaty and habeas questions involved. (Of course, I will leave it to others to judge how informative, provocative and entertaining the panel was.)

To the extent it was successful, I think it was largely the function of two things:

(i) Our moderator, Bobby Chesney, chose to forego opening statements, and instead simply prompted us to answer some of the more difficult questions (as very artfully posed by Bobby).

(ii) Although the five of us were approaching the problem from very different perspectives (with some overlap, obviously), we didn’t talk past one another (at least I hope it didn’t seem that way): From all I could tell, all five of us clearly wanted to engage with the others (rather than simply to present our own papers or talking points), and to have our arguments tested and tweaked by others who had given those arguments serious thought.

All of which is to say that it was a genuine conversation — credit to Bobby and Janet Alexander, who planned it that way.

At every law conference I’ve attended, such formats — *if* well-moderated — invariably produce richer and more interesting panels than the paper-presentation or “four opening statements” models.

Of course, if the discussion is poorly moderated . . . watch out.

Posted by: Marty Lederman | Jan 8, 2007 10:27:01 PM

Scott,

The best part of being an organizer is creating a panel that you would want to attend. So create a vision and sell it in the program.

Also, I think it worth scrutinizing the nature of the complaining. I notice that many people run down panels just by eyeballing the list of presenters; if none of the affiliations are schmooze-worthy, the panel gets skipped.

I have found no shortage of worthwhile panels. bh.

Posted by: William Henderson | Jan 8, 2007 10:09:14 PM

[Ed. Just a reminder: Prawfs, with Aaron’s permission, will often reproduce his Supreme Court Today updates. If you want access to the archive of them, you can find them here.]

Greetings, sportsfans! Hope y’all had a merry Christmas/happy Hanukah and a happy New Years. For its part, the Court started out 2007 with a bang, granting 7 cases to fill out much of its spring docket. That’s 15 grants in the last three conferences, so it looks like the Court is trying to avoid the “do-nothing” moniker after all. Off to the cases!

Panetti v. Quarterman, 06-6407

Petitioner Panetti once tried to subpoena John F. Kennedy and Jesus Christ. But Panetti is not a newly installed congressional committee chairman, he is a delusional death-row prisoner seeking to forestall his impending execution. You see, Panetti believes that the real reason the State of Texas wants to execute him is to stop him from preaching the gospel, and he thinks that Jesus and JFK can help him avoid that fate. Panetti’s lawyers argue that this kind of reasoning indicates that it would be unconstitutional to execute Panetti under Ford v. Wainwright (1986), because he does not comprehend the reason the state is planning to execute him (e.g., the brutal double-murder of his in-laws in 1992). According to the 5th Circuit, however, it’s enough that Panetti understands that he’s about to be executed as a result of a criminal sentence, notwithstanding his delusions about the state’s “real” motivation. This case gives the Court an opportunity to clear up the mess that has resulted from the lack of a majority opinion in Ford.

Tellabs, Inc. v. Makor Issues & Rights, 06-484

This case involves the heightened pleading standards for intent enacted by the Private Securities Litigation Reform Act. To wit, how heightened are those pleading standards anyway? The PSLRA tells us that a plaintiff must create a “strong inference” that the defendant acted with fraudulent intent. The 7th Circuit interprets that to mean that a securities fraud plaintiff need only plead facts that could lead a “reasonable person” to infer that the defendant acted with fraudulent intent. The 6th Circuit has a higher standard: A plaintiff must plead facts that make fraudulent intent the “most plausible conclusion.” This is one of those classic tensions in the law: “reasonable persons” don’t always reach the “most plausible conclusions.” The Supreme Court’s choice between the two standards will have an enormous impact on the number of securities lawsuits that survive motions to dismiss in the coming years.

Tennessee Secondary School Athletic Association v. Brentwood Academy, 06-427

This case first went up to the Supreme Court in 2001, when the Court held that the petitioner Association—an ostensibly private and voluntary group that regulates high school sports—is a “state actor” because of the pervasive “entwinement” of state officials in its governance. On remand, the 6th Circuit held that the Association’s ban on recruiting violates the First Amendment because it prohibits school officials from communicating with prospective student-athletes. Petitioner not only challenges this First Amendment ruling, arguing that Brentwood Academy freely chose to join the Association and abide by its rules, it also asks the Court to overrule its earlier holding on the state-actor issue. The 2001 ruling was 5-4, with O’Connor and the four liberals in the majority, so it is certainly possible that the newly constituted Court could overrule it. This will be a very interesting early test of the new Justices’ views on stare decisis. As a Texan, I’d like to say that high school football recruiting is protected by substantive Due Process, if not the First Amendment, but I’m going to have to go on record predicting a reversal in this one.

National Association of Home Builders v. Defenders of Wildlife, 06-340

EPA v. Defenders of Wildlife, 06-549

These highly complicated cases address an arguable conflict between the Clean Water Act and the Endangered Species Act. To greatly simplify, the CWA requires the EPA to delegate the administration of pollution permits (known as NPDES permits) to the states if certain criteria are satisfied. EPA tried to delegate this authority to Arizona. The ESA, however, enacted several years after the CWA, generally requires federal agencies to insure that their actions do not adversely affect endangered species. Relying on the ESA, the 9th Circuit held that the EPA could not transfer NPDES permitting to Arizona because it had not considered whether that transfer could hurt endangered species, even though the EPA had satisfied all of the CWA’s criteria for the transfer. Judge Kozinski and 5 other judges dissented from the denial of rehearing en banc. The Supreme Court granted cert on the question of whether the ESA’s general rule supersedes the CWA’s more clearly applicable criteria for delegation decisions. But the Court also asked for additional briefing on whether the 9th Circuit should have given the EPA another chance at explaining its interpretation of the ESA rather than invalidating the EPA’s interpretation altogether. On whichever ground the Court relies, it looks like the CA9 is heading for yet another reversal.

BCI Coca-Cola Bottling Co. v. EEOC, 06-341

This case should finally resolve longstanding circuit-court confusion over when a corporation may be held liable for employment discrimination based on the discriminatory conduct of a subordinate employee (sometimes known as “cat’s paw” liability). In this case, for example, the plaintiff’s direct supervisor allegedly made racist statements, mistreated the plaintiff, and ultimately convinced the regional human resources manager to fire him for insubordination. The manager, however, did not even know that the employee was black and thus did not himself have racial motives for the firing. The 10th Circuit (Judge McConnell) held that the employer could nonetheless be held liable if the supervisor’s discriminatory actions directly caused the ultimate decisionmaker to terminate the employee. However, in an interesting parallel to sexual-harassment caselaw, the CA10 held that the employer could avoid liability if it independently investigated the situation before termination. It’s anybody’s guess how this one comes out.

Long Island Care at Home v. Coke, 06-593

The question here is whether in-home healthcare workers employed by outside agencies are covered by the Fair Labor Standards Act and thus entitled to minimum wage and overtime pay. The Labor Department said that they are not in a 1975 regulation. The 2nd Circuit refused to give Chevron deference to that view (because it was contained in an “interpretative rule,” as opposed to a “legislative rule”) and disagreed with Labor’s interpretation of the FLSA. The Labor Department promptly issued a new advisory memorandum explicitly stating that it intended to issue a legislative rule back in 1975. Following a GVR from the Supreme Court so that the CA2 could rethink its opinion, the CA2 nonetheless reaffirmed its original holding. This case should provide important guidance on when Chevron deference is due, and secondarily, on what deference is due to an agency’s present-day explanation of what it was doing 30 years ago.

Altadis USA, Inc. v. Sea Star Line, LLC, 06-606

QP: “Whether the Carmack Amendment applies to the inland leg of a multimodal shipment to a place in the United States from a place in a territory of the United States even if the inland carrier does not issue a separate bill of lading for the inland leg.” Enough said.

The Court also CVSG’d in a case from the 1st Circuit (Rowe v. New Hampshire Motor Transport Association, 06-457), asking whether the Federal Aviation Administration Authorization Act preempts a state law that regulates the shipment of tobacco products to ensure that they are not ultimately sold to minors.

Until next time, that’s today’s baseball.

Aaron M. Streett is an associate in the Houston office of Baker Botts LLP, and a member of the firm’s Appellate and Supreme Court Practice. If you would like to subscribe to these updates, please send an e-mail to [email protected]

Posted by Administrators on January 8, 2007 at 07:40 PM

I had a thought I neglected to mention in my earlier AALS post, but it seems sufficiently distinct that it’s worth a different post: At the conference, someone mentioned to me that Larry Solum advised people to put up three drafts of a paper on SSRN: first, a ten page version that stakes out the thesis and perhaps the scope of intervention and methodology; later a complete pre-publication draft; and finally, the published version. I didn’t go to the relevant panel so the assertion that Larry said this may be mistaken, but the underlying advice does seem sound, and would, at least at first blush, tend to avoid some of the problems I highlighted last year around this time about the danger of (junior) scholars putting drafts up on SSRN too early. New year’s is a good time for resolutions, so it’s time to bite the bullet this month and put up some more abstracts with ten page overviews about the projects I have in progress about punitive damages and the constitutional deficiencies of indeterminate sentencing schemes. But before I do: am I missing anything? Are there any pitfalls of which I should be aware here?

Posted by Administrators on January 8, 2007 at 07:27 PM

Comments

I have been posting two drafts, a “good pre submission draft” and a final draft (plus updating draft 1 periodically), but will consider Larry’s 3-draft approach when sensible (might not be for an empirical paper.

I want to add two thoughts, one positive and one cautionary.

On the positive side, there are disciplines (Chemistry for example) where something like this is the norm — one publishes results quickly in summary form, and later in fuller form.

On the cautionary side, if you post an idea early, someone who is already working on a similar idea might be prompted to speed up their work. So you ought to be prepared to get to the point of being ready to submit to journals with reasonable dispatch. We might get to a world where date of public posting is the critical date for ownership of an idea, and date of publication is irrelevant. I hope we do, but we’re not there yet.

Bernie Black

Posted by: Bernie Black | Feb 8, 2007 8:35:01 PM

The advice that I gave is to post three versions of each paper on SSRN. Version one is the “idea paper,” the version that sets out the thesis and the core supporting argument. 10 single spaced (or 20 double spaced) pages is only an approximation. Also, I think it a good idea to use a different title for the idea paper–one that reflects its early stage and tentative nature, e.g., “A Preliminary Analysis of . . .”. Idea papers “lay claim” to the new idea–the real contribution to the literature–at an early stage. They also are the perfect vehicle for an “early stage” workshop or brownbag lunch discussion. Idea papers are especially important if you are worried that your new idea may be scooped while you are building the full fledged 50-70 page law review version. The second version is the official “draft.” This is the version that you would circulate widely for comments, present at a “work in progress” workshop (or “job talk” workshop), and in revised form would be the version submitted to law reviews or peer-edited journals for publication. The third and final version is the “final” version of the paper–hopefully the PDF of the paper as published with pagination. This is the version that would be downloaded and cited by others & a link to this version would accompany the citation to the article on your c.v. or resume. I think it is very important that all papers posted to SSRN be in “good shape” before posting. The “ideas” in “idea papers” should be carefully thought out; the paper itself should be carefully proofed and edited. If possible, I would ask a close professional friend to read the “idea paper” before posting–to get comments, catch glitches, and avoid the danger of posting a “less than half baked” idea with glaring defects.

Posted by: Lawrence Solum | Jan 10, 2007 8:38:57 AM

I was there, and that is an accurate quote. I won’t try to speak for Larry, but I don’t think he was suggesting putting up a “shitty first draft.” He characterized it as an “idea paper”: ten or twelve pages in which you lay out the thesis, but don’t necessarily do all the supporting work, nor the anticipation of objections, etc. He had at least two points: (a) it DOES lay a claim for the topic as yours, and (b) it’s actually more likely that somebody is going to read your short piece than your long piece. In fact, I have just posted a piece in that vein: “Why the Law of Entrepreneurship Barely Matters: Rules, Cognitions, and the Antinomies of Transactional Practice,” http://ssrn.com/abstract=954400.

I will let others speak to pitfalls, if any.

Posted by: Jeff Lipshaw | Jan 8, 2007 9:03:01 PM

Not having been at the particular panel, I can’t guess what Larry’s reasoning was, but I think the idea is that by telling people what you’re working on earlier, you may be able to attract some new and more readers earlier on, perhaps garner queries from others working in the area who may be thinking of appropriate conference attendees or speakers at workshops, and maybe pee around the territory to ward off potential thieves. But I’m not sure how successful that is. I recall from my earlier post on Whither SSRN that Michael Jensen said in a comment that putting up a “slides” version of the work in progress would also facilitate the mission of sharing tomorrow’s research today, so I guess there’s both strategic and knowledge-building benefits to foreshadowing through the 10 page draft…

Posted by: Dan Markel | Jan 8, 2007 8:20:50 PM

Dan,

What’s the benefit of putting up a 10-page draft as opposed to the full pre-publication draft? Is the idea to advertise to people what kind of stuff you’re working on?

Posted by: Orin Kerr | Jan 8, 2007 8:09:44 PM

After an early morning flight back to Miami and a 500 mile drive up to funky T-town yesterday, I’ve just finished my first day of teaching back at FSU after a flurry of fun in DC during AALS week. Rick parachuted in for a day of presentations and thus had to miss the Happy Hour, but it was great to see Orly, Steve, and Matt at the bloggerfest on Wednesday night, along with many of our current guests, alums, and readers. All told, I think we had well over 130 people at Cloud over the course of Wednesday night. Sadly, as the various pictures from Dave Lat at Above the Law illustrate, there wasn’t much in the way of age diversity. Tant pis. Still, the kids at the party had fun, and we’re looking forward to hosting the 3d Annual with our friends at Co-Op next time in NYC.

Rick earlier expressed some regret at missing much of the AALS conference. I can say that although I mostly followed Dan Solove’s advice by avoiding panels, there were a few that I went to that were outstanding for one or several reasons. The one I particularly enjoyed was Prawfs alum Kim Ferzan’s Inside the Scholar’s Studio with Carol Sanger, Paul Robinson, and Ian Ayres. I’ve only seen James Lipton spoofed on Saturday Night Live, and not the original show, but I take it that Kim did a good job imitating the genre (e.g., asking for favorite sounds and curse words), and more importantly, a great job at eliciting sage counsel from masters of the art of legal scholarship. Ayres said he tried to write a 1000 words a day in the morning and Robinson also said his preferred regime was writing in the morning. This strategy worked well for me when I was in practice, oddly enough, but now I’m having trouble getting to write in the morning especially on those days when I teach. One hyperproductive friend of mine diagnoses the problem some of us face differently: the issue is not too many days with not enough written, but rather too many days with nothing written at all. Another savvy Ayresism may lie in his response to what “turns him on.” He said: intellectual perversity. To that end, he recounted that when he was younger, he would read a bunch of articles in the top law reviews and then force himself to develop, in one half hour, something to challenge in the articles by flipping things around. It strikes me that this intellectual exercise may be an odd homage to Albert Hirschman’s The Rhetoric of Reaction, which stressed perversity, futility, and jeopardy as the standard kinds of responses one hears lodged against progressive agendas or reform proposals. In any event, Ayres was disarmingly candid and charming, especially as he explained the genesis of his “most influential” piece, which he had the good sense to outline while he was waiting and being stood up by a recent ex-girlfriend extracting her revenge against him for failing to break up in person…

Another surprise of the conference, for me at least, was the unusually feisty panel on academic freedom, featuring Robert Post, Elena Kagan, William van Alstyne, Geoffrey Stone, and the inimitable and bare-knuckled Stanley Fish. Here’s an article recapping some of the highlights from that panel. (H/t: Orin.) If the podcast of either panel emerges, it will likely be at this link from the AALS. Both are definitely worth checking out.

Posted by Administrators on January 8, 2007 at 07:06 PM