Month: April 2012

I have suggested that the brouhaha over Ozzie Guillen’s “praise” of Fidel Castro was silly, in the sense that we are giving far too much creedence to the words of a baseball manager who has built a career out of saying provocative things. (I also recognize that I do not equate Castro with Hitler and thus do not get as exorcised over tepid compliments directed his way).

But I have also argued that the calls from some in the Miami-Cuban community for a boycott of the team and/or for Guillen’s firing reflect precisely what the First Amendment demands: counter-speech in response to speech you don’t like.

I attended today’s game at Marlins Park (against my inept Cubbies), the third game since Guillen’s reinstatement after a five-game suspension. Inside, Marlins fans seem to have moved on. I did not see any signs or banners about Guillen and he was not booed on any of the many, many times he came on the field to change pitchers or when he came out to celebrate the Marlins’ victory. Outside, there were about two dozen anti-Guillen protesters, mostly in their 50s or 60s or older, which fits with the demographics of anti-Castro sentiment in Miami. No one seemed to be paying them much attention, other than to take pictures on their cell phones.

Mine are after the jump.

Posted by Howard Wasserman on April 19, 2012 at 06:00 PM

Jaya at CoOp beat me to the post, but this been making the Civ Pro rounds all day. It’s one of the best (in terms of cleverness and quality) of these that I’ve seen.

Survey question: Is this too risque to put up on a course blog?

Posted by Howard Wasserman on April 18, 2012 at 10:32 PM

Comments

Well, sex sold this video (it won the contest), and it may sell civil procedure, but I probably would not post it!

Posted by: Margaret Ryznar | Apr 25, 2012 2:44:11 PM

If you enjoyed the video, please vote for the Columbia Law Revue here!: http://abovethelaw.com/2012/04/law-revue-video-contest-2012-the-finalists/2/

Voting ends tonight! Thanks!!! 🙂

Posted by: Johan | Apr 23, 2012 6:50:48 PM

I’ve been of two minds about this. This first is that — like Dr. Zhivago and Lawrence of Arabia and Titanic — it is little more than sexual innuendo and glossy production values. The second is, oh those production values.

(Actually, on third thought, it’s just like a brief or article that says very little, but does so in a way that just sings. And I admire the craftsmanship.)

Also, the blonde. If only I was a decade younger.

Posted by: Joe (not that one) | Apr 20, 2012 11:25:04 PM

It’s odd that the critique about a civil procedure song is that its lyrics lack substance.

I liked it quite a bit, and I think they nailed it.

Posted by: Michael Teter | Apr 20, 2012 3:36:17 PM

Ditto anonymous. As a professor.

Posted by: BAA | Apr 20, 2012 2:23:47 PM

For what little it may be worth: not as a professor but as a lawyer (and a non-prudish one, at that), I agree with Anonymous on all points.

Posted by: Sam | Apr 20, 2012 1:56:46 PM

The singing is good. But there’s actually minimal cleverness because the lyrics bear no relation to anything of substance. Just dirty innuendos and rhymes.

And it isn’t in the universe of a close call whether it’s appropriate to post for students.

Posted by: Anonymous | Apr 20, 2012 11:28:57 AM

I loved it too, but I wouldn’t post it either.

Posted by: David Levine | Apr 19, 2012 11:46:06 PM

As a colleague of Joe Glannon, I think it’s rich, but no it’s not appropriate, or at least it’s not worth the risk of offending somebody’s sensibility. But I do not close my office door if a student is in my office.

Posted by: Jeff Lipshaw | Apr 19, 2012 2:25:03 PM

For my next post on the law review submission process (see intro, part I, part II on timing of submissions,part III interview and part IV interview if you are interested), I interviewed three editors from the Vanderbilt Law Review.

I had the opportunity of presenting a paper at Vanderbilt Law School this year and was extremely impressed with the faculty. I am now equally impressed with their student editors. Here is my interview with Jenna Farleigh, Editor-in-Chief 2011-12; Caroline Cecot, Senior Articles Editor 2011-12; and Michaela Jackson, Senior Articles Editor 2012-13.

1. What is Vanderbilt’s review process for articles? (how many levels, what is the vote like, etc.)

The articles review process for the Vanderbilt Law Review consists of two levels of review. First, the Senior Articles Editor assigns each article submitted to the Review to an individual articles editor. Where possible, we try to match the topic of the article to the interests and experience of the articles editor. Each editor is responsible for reviewing her assigned articles in sufficient detail to decide whether to recommend the article for Full Committee Review, which is the second and final stage of our process. The Senior Articles Editor schedules recommended articles for Full Committee Review. In Full Committee Review, all nine articles editors read the article in full and then discuss and vote on whether or not to extend an offer for publication.

The process takes time.

Although we would certainly like to send more articles to committee, there is a natural limit to the number of articles that we can review each week. But no news generally means that you are still in the game.

2. What is your acceptance rate for articles?

In the 2011-12 academic year, the Vanderbilt Law Review published seventeen unsolicited articles/essays. For these spots, we received about 2,600 submissions, resulting in an acceptance rate of less than one percent. Already, in the spring selection cycle for 2012-13, the Review received close to 1,600 submissions. From this pool, the journal will publish ten articles.

3. Who receives your expedited reviews and how are they used in the review process? Which are the most helpful?

We receive requests for expedited reviews through ExpressO. Each articles committee member is expected to keep track of the expedite requests on her assigned articles. Sometimes the Senior Articles Editor will remind editors about soon-approaching offer deadlines. We strive to respond to authors before their deadlines lapse; however, that isn’t always possible.

Expedite requests have a different effect depending on where the article is in the process. In the initial review stage, an offer from a comparable journal may induce the editor, at her discretion, to take a closer look at the piece or to speed up review. In the second stage, expedite requests may result in earlier scheduling for Full Committee Review.

4. For Jenna and Caroline, as an outgoing EIC and articles editor, what are some tips (or short-cuts) you gave to your incoming EIC and articles editors? (examples include, don’t worry about the cover letters, they are a waste of time, don’t consider nonprofessors, don’t consider professors from schools in certain rankings)

We don’t provide any specific tips to committee members, as we want to allow each editor to formulate her own review process and opinions.

On the whole, the Vanderbilt Law Review considers all submissions other than those written by outside law students. That being said, we generally publish articles by law professors because those articles tend to be the most well-researched, well-supported, and well-written. The fact that the author is a professor further lends credibility to the piece because we know that professors are bound by institutional research norms, such as obtaining IRB approval when necessary.

While we do not consider the rank of the school at which a professor teaches, we do look at a professor’s past publication record (excluding her student note). That being said, the Vanderbilt Law Review is typically very receptive to emerging scholars; we take great pride in discovering new contributors to legal scholarship. We also encourage articles editors to review cover letters and abstracts, especially if these supplemental documents neatly summarize the article’s argument.

5. Did you find yourself looking more carefully at articles from professors at top 25 schools, versus other schools?

As mentioned above, while we don’t consider the school at which a professor teaches, we do take note of an author’s past publication history during our review process. Due to the weight that law school hiring committees place on publication, we find that impressive publication records are often correlated with faculty positions at highly ranked schools.

6. If you could give professors some advice on the submission process and how to improve the articles they write, what would it be?

We recognize that we are law students, and we do not profess to have any expertise in specific legal fields. But, we are well trained in logic, and thus coherent, well-written arguments with clear roadmaps certainly get our attention. The bottom line is: if we don’t understand it, we don’t publish it. Authors help themselves by highlighting each logical leap that they want the reader to make. Articles also seem to have grown in length lately. While our journal does not enforce a word limit, we are less willing to take on long pieces, especially when the reason for the length is unclear.

7. Did you find that you had an aversion to any type of article? Did you find that you had a balance of all topics in your books or did you find that you favored certain subjects more than others? What do you think of coauthored articles? Empirical pieces?

The Vanderbilt Law Review has an institutional interest in retaining its generalist reputation. This interest stems from our desire to continue to receive submissions from scholars in all legal fields. Thus, we consider the balance of articles in a particular volume during almost every committee meeting. Year to year, however, as committee interests change, some topic areas may have particularly fervent advocates. For example, last year’s committee had a strong affinity for patent law pieces. This changes every year and is one area where luck enters into the process. That being said, a strong article will be fairly considered regardless of the topic. If you are writing about a popular topic, however, you have to take a unique angle to differentiate your piece from the others.

Empirical pieces are often difficult for law students to evaluate. In recent years, however, the Vanderbilt Law Review has had someone from Vanderbilt’s new Ph.D. program in law and economics on the articles committee to provide some guidance. Even methodically sound empirical articles must contribute to legal scholarship; articles insufficiently grounded in law do not fare well.

While the number of authors on a particular piece plays no role in determining whether we make an offer, we do take notice where multiple authors’ expertise improves the piece.

8. At some stage, article fatigue hits and you are just overloaded with articles (which signals to us prawfs, that it is past the point when we should submit articles). When was this for you and when do you think the ideal time is to submit articles?

Our articles submission process has two cycles. The spring cycle, which opens in early February, fills the following issues: October, November, January, and March. The fall cycle, which opens in the middle of August, fills the April and May issues. Spring fatigue hits our committee by the first week of April. This is also approximately when we fill all of our spring slots. For this reason, we strongly encourage authors to submit to us by late February for the spring cycle. Alternatively, we encourage authors to submit as early as possible during the fall cycle, which tends to be less popular.

9. Did you find that your attitude about articles changed from the beginning of submissions to the end? For instance, did you first think that all of the articles would be the next big thing from Laurence Tribe and soon realize that those types of pieces were few and far between?

At the beginning of each committee’s tenure, most editors feel that selecting “the best” articles from thousands of submissions is near impossible. As time goes on, the task gets easier because the committee develops a sense of what constitutes good scholarship. That being said, committee members don’t always agree on the merits of a specific piece.

10. Anything you want to add that you think may be helpful to professors bewildered by this process?

We would simply like to reiterate that, in general, student editors work tirelessly to both select articles and edit them into their best possible form. While we do not purport to be legal experts, we are experienced readers and know how to think about the law—you taught us that. We agree that the process isn’t perfect. Perhaps if it was, we would all get a little more sleep. But, the system is what it is, and we are dealing with it as best we can. With that in mind, please know that kind and understanding words in cover letters, emails, and the blogosphere go a long way. You’d be surprised how often appreciative emails from authors are forwarded around to the staff—and how many people remember how great it was to work with those authors. On the margin, both good and bad interactions can make a difference.

Next interview, BYU Law Review…

Posted by Shima Baradaran Baughman on April 18, 2012 at 11:48 AM

Comments

Is the author’s identity known to all of the editors at all stages of the process, or is there any part where review is blind or quasi-blind?

Posted by: Will Baude | Apr 19, 2012 3:35:47 PM

This is more of a question for the Vandy folks, really just a quick followup: You mentioned the # of pieces ultimately published and the # of pieces submitted but I bet people want to know also how many offers you extended. Put differently, what’s your yield on offers to acceptances? Thanks, DM

For some reason, Shima’s having trouble posting the response but here’s the answer we got on the yield question:

Dear Professor Markel:

Regarding your question about the number of offers made, the figure varies wildly from cycle to cycle. Small changes, such as when spring break is scheduled in a given year, can have a major impact on the offer and yield rate. As we do not distribute offers through ExpressO, we do not have historical data on the number of offers given in each cycle. Instead, our editors simply grant as many offers as required to fill the books. That being said, however, during this past cycle we had about a 75% acceptance rate from authors. But, last year, that rate was closer to 50%. I hope you find that helpful.

Sincerely,

Jenna Farleigh Editor-in-Chief Vanderbilt Law Review, 2011-12

Posted by: Dan Markel and Shima/Jenna | Apr 18, 2012 12:01:15 PM

Those readers who are interested in the legal economy will want to take a look at this study, by the Alabama bar, of Alabama lawyers in 2010, following up on two earlier surveys. It’s not cheerful news. Here’s a snippet from the executive summary:

When comparison is made to the surveys conducted by the bar in 1986 and 1998, it appears that, overall, individual lawyer income may be falling, particularly at the margins, with more lawyers reporting income of less than $50,000 than in 1998 and fewer lawyers reporting income of more than $100,000 than in 1998, while the percentage of lawyers reporting income of between $50,000 and $100,000 remained relatively even across all three surveys. The number of respondents in the less than $50,000 range increased from 24% in 1998 to 36.9% in 2010 (still under the 47% figure in 1986), while the number of respondents in the more than $100,000 range fell from a high of 40% set in the 1998 survey to 28% in 2010 (yet still more than the 17% figure in 1986). The number of respondents in the middle range of $50,000 to $100,000 remained fairly steady at 35.1% in the 2010 survey. . . .

Only time will tell whether these numbers showing decreasing lawyer income are a result of the recession and will improve by the time the next economic survey is done, or reflect the greater competition resulting from the increase in the number of lawyers in Alabama since 1986 and the trend toward commoditization of certain types of law practice and the lower income levels that often results from a commodity practice and increased competition.

Paul Campos has analysis here. I should add that I learned about the study simultaneously from a newspaper story and from my own students here at Alabama; clearly it didn’t take long for word of the study to spread to them. One other thing noting is the size of the practices involved: “The largest single group was solo practitioners at 41.5% of respondents. Respondents from firms of 2 to 5 lawyers were next at 20.8%, reflecting the fact that about two-thirds of Alabama lawyers practice in firms of five lawyers or fewer.” I was very pleased to learn this year about a new course at my law school on law office management, and hope that our school, other schools with similar practice profiles for graduates, and students themselves will give strong ongoing thought to how the law school curriculum should reflect these facts, both in terms of substantive courses and in terms of teaching fledgling lawyers best practices in terms of forming professional networks and exchanges and other ways of building relationships and safeguards into their practices.

Posted by Paul Horwitz on April 18, 2012 at 11:25 AM

Comments

Test.

Posted by: anon | Apr 19, 2012 3:31:15 PM

Two notes: 1) Apologies to Prawfs readers for the delay in this post. It took my student and I longer than anticipated to complete some of the technical work behind this idea. 2) This post is a little longer than originally planned, because last week the Ninth Circuit en banc reversed a panel decision in United States v. Nosal which addressed whether the CFAA extends to violations of (terms of) use restrictions. In reversing the panel decision, the Ninth Circuit found the CFAA did *not* extend to such restrictions.

The idea for this post originally arose when I noticed I was able to include a hyperlink in a comment I made on a Prawfs’ post. One of my students (Nick Carey) had just finished a paper discussing the applicability of the Computer Fraud and Abuse Act (CFAA) to certain types of cyberattacks that would exploit the ability to hyperlink blog comments, so I contacted Dan and offered to see if Prawfs was at risk, as it dovetailed nicely with a larger project I’m working on regarding regulating cybersecurity through criminal law.

The good news: it’s actually hard to “hack” Prawfs. As best we can tell the obvious vulnerabilities are patched. It got me thinking, though, that as we start to clear away the low-hanging fruit in cybersecurity through regulatory action, focus is likely to shift to criminal investigations to address more sophisticated attackers.

Sophisticated attackers often use social engineering as a key part of their attacks. Social engineering vulnerabilities generally arise when there is a process in place to facilitate some legitimate activity, and when that process can be corrupted — by manipulating the actors who use it — to effect an outcome not predicted (and probably not desired). Most readers of this blog likely encounter such attacks on a regular basis, but have (hopefully!) been trained or learned how to recognize such attacks. One common example is the email, purportedly from a friend, business, or other contact, that invites you to click on a link. Once clicked on, this link in fact does not lead to the “exciting website” your friend advertised, but rather harvests the username and password for your email account and uses those for a variety of evil things.

I describe this example, which hopefully resonates with some readers (if not, be thankful for your great spam filters!), because it resembles the vulnerability we *did* find in Prawfs. This vulnerability, which perhaps is better called a design choice, highlights the tension in legal solutions to cybercrime I discuss here. Allowing commenters to hyperlink is a choice — one that forms the basis for the “open doors” component of this question: should a user be held criminally liable under federal cybercrime law for using a website “feature” in a way other than that intended (or perhaps desired) by the operators of a website, but in a way that is otherwise not unlawful.

Prawfs uses TypePad, a well-known blogging software platform that handles (most) of the security work. And, in fact, it does quite a good job — as mentioned above, most of the common vulnerabilities are closed off. The one we found remaining is quite interesting. It stems from the fact that commenters are permitted to use basic HTML (the “core” language in which web pages are written) in writing their comments. The danger in this approach is that it allows an attacker to include malicious “code” in their comments, such as the type of link described above. Since the setup of TypePad allows for commenters to provide their own name, it is also quite easy for an attacker to “pretend” to be someone else and use that person’s “authority” to entice readers to click on the dangerous link. The final comment of Part 1 provides an example, here.

A simple solution — one to which many security professionals rush — is just to disable the ability to include HTML in comments. (Security professionals often tend to rush to disable entirely features that create risk.) Herein lies the problem: there is a very legitimate reason for allowing HTML in comments; it allows legitimate commenters to include clickable links to resources they cite. As we’ve seen in many other posts, this can be a very useful thing to do, particularly when citing opinions or other blog posts. Interestingly, as an aside, I’ve often found this tension curiously to resemble that found in debates about restricting speech on the basis of national security concerns. But that is a separate post.

Cybercrime clearly is a substantial problem. Tradeoffs like the one discussed here present one of the core reasons the problem cannot be solved through technology alone. Turning to law — particularly regulating certain undesired behaviors through criminalization — is a logical and perhaps necessary step in addressing cybersecurity problems. As I have begun to study this problem, however, I have reached the conclusion that legal solutions face a structurally similar set of tradeoffs as do technical solutions.

The CFAA is the primary federal law criminalizing certain cybercrime and “hacking” activities. The critical threshold in many CFAA cases is whether a user has “exceeded authorized access” (18 U.S.C. § 1030(a)) on a computer system. But who defines “authorized access?” Historically, this was done by a system administrator, who set rules and policies for how individuals could use computers within an organization. The usernames and passwords we all have at our respective academic institutions, and the resources those credentials allow us to access, are an example of this classic model.

What about a website like Prawfs? Most readers don’t use a login and password to read or comment, but do for posting entries. Like most websites, there is a policy addressing (some of) the aspects of acceptable use. That policy, however can change at any time and without notice. (There are good reasons this is the case, the simplest being it is not practical to notify every person who ever visits the website of any change to the policy in advance of such changes taking effect.) What if a policy changes, however, in a way that makes an activity — one previously allowed — now impermissible? Under a broad interpretation of the CFAA, the user continuing to engage in the now impermissible activity would be exceeding their authorized access, and thereby possibly running afoul of the CFAA (specifically (a)(2)(C)).

Some courts have rejected this broad interpretation, perhaps most famously in United States v. Lori Drew, colloquially known as the “MySpace Mom” case. Other courts have accepted a broader view, as discussed by Michael Risch here and here. I find the Drew result correct, if frustrating, and the (original) Nosal result scary and incorrect. Last week, the Ninth Circuit en banc reversed itself and adopted a more Drew-like view of the CFAA. I am particularly relieved by the majority’s understanding of the CFAA overbreadth problem:

The government’s construction of the statute would expand its scope far beyond computer hacking to criminalize any unauthorized use of information obtained from a computer. This would make criminals of large groups of people who would have little reason to suspect they are committing a federal crime. While ignorance of the law is no excuse, we can properly be skeptical as to whether Congress, in 1984, meant to criminalize conduct beyond that which is inherently wrongful, such as breaking into a computer.

(United States v. Nosal, No. 10-10038 (9th Cir. Apr. 10, 2012) at 3864.)

I think the court recognizes here that an overbroad interpretation of the CFAA is similar to extending a breaking and entering statute to just walking in an open door. The Ninth Circuit appears to adopt similar thinking, noting that Congress’ original intent was to address the issue of hackers breaking into computer systems, not innocent actors who either don’t (can’t?) understand the implications of their actions or don’t intend to “hack” a system when they find the system allows them to access a file or use a certain function:

While the CFAA is susceptible to the government’s broad interpretation, we find Nosal’s narrower one more plausible. Congress enacted the CFAA in 1984 primarily to address the growing problem of computer hacking, recognizing that, “[i]n intentionally trespassing into someone else’s computer files, the offender obtains at the very least information as to how to break into that computer system.” S. Rep. No. 99-432, at 9 (1986) (Conf. Rep.).

(Nosal at 3863.)

Obviously the Ninth Circuit is far from the last word on this issue, and the dissent notes differences in how other Circuits have viewed the CFAA. I suspect at some point, unless Congress first acts, the Supreme Court will end up weighing in on the issue. Before that, I hope to produce some useful thoughts on the issue, and eagerly solicit feedback from Prawfs readers. I’ve constructed a couple of examples below to illustrate this in the context of the Blawg.

Consider, for example, a change in a blog’s rules restricting what commenters may link to in their comments. Let’s assume that, like Prawfs, currrently there are no specific posted restrictions. Let’s say a blog decided it had a serious problem with spam (thankfully we don’t here at Prawfs), and wanted to address this by adjusting the acceptable use policy for the blog to prohibit linking to any commercial product or service. We probably wouldn’t feel much empathy for the unrelated spam advertisers who filled the comments with useless information about low-cost, prescriptionless, mail-order pharmaceuticals. We definitely wouldn’t about the advance-fee fraud advertisers. But what about the practitioner who is an active participant in the blog, contributes to substantive discussions, and occassionally may want to reference or link to their practice in order to raise awareness?

Technically, all three categories of activity would violate (the broad interpretation of) (a)(2)(C). Note that the intent requirement — or lack thereof — in (a)(2)(C) is a key element of why these are treated similarly: the only “intent” required for violation is intent to access. (a)(2)(C) does not distinguish among actors’ intent beyond this. As I have commented elsewhere (scroll down), one can easily construct scenarios under a “scary” reading of the CFAA where criminal law might be unable to distinguish between innocent actors lacking any reasonable element of what we traditionally consider mens rea, and malicious actors trying to takeover or bring down information systems. At the moment, I tend to think there’s a more difficult problem discerning intent in the “gray area” examples I constructed here, particularly the Facebook examples when a username/password is involved. But I wonder what some of the criminal law folks think about whether intent really *is* harder, or if we could solve that problem with better statutory construction of the CFAA.

Finally, I’ve added one last comment to the original post (Part 1) that highlights both how easy it is to engage in such hacking (i.e., this isn’t purely hypothetical) and how difficult it is to address the problem with technical solutions (i.e., those solutions would have meant none of this post — or of my comments on the Facebook passwords post — could have contained clickable links). I also hope it adds a little bit of “impact factor.” The text of the comment explains how it works, and also provides an example of how it could be socially engineered.

In sum, the lack of clarity in the CFAA, and the resulting “criminalization overbreadth,” is what concerns me — and, thankfully, apparently the Ninth Circuit. In the process of examining whether Prawfs/TypePad had any common vulnerabilities, it occurred to me that in the rush to defend against legitimate cybercriminals, there may develop significant political pressure to over-criminalize other activities which are not proper for regulation through the criminal law. We have already seen this happen with child pornography laws and sexting. I am extremely interested in others’ thoughts on this subject, and hope I have depicted the problem in a way digestible to non-technical readers!

Posted by David Thaw on April 17, 2012 at 07:07 PM

Evidently, we are all empiricists now. Except for me. But even I have a cool randomized field experiment in-progress with David Abrams, so I’ll become an empiricist in no time, at least by some people’s definition. Phase one: Collect data. Phase two: ???? Phase three: Profit.

Anyway, the Brian Leiter thread on empiricists, general frustration at identifying the right criteria for classifying empiricsts, and the subsequent comments (“My earlier post cataloguing School X’s eight empirical legal scholars neglected to mention my dear friend and colleague, the multi-talented empiricist Slobotnik. Signed, mortified School X booster.”) provide an opportunity to ask what sorts of empiricists should be hired in the legal academy. I recognize that the answer some people will provide is “none.” I’m not addressing that crowd, though I am raising some issues that might be helpful to people who are skeptical about empiricist hiring in general on law faculties.

Here, then, are a few thoughts about how to hire entry-level quantitative empiricists with PhDs in disciplines like Political Science or Economics, as well as a coda about what many empiricists should be doing as the “field” matures. Hiring qualitative empiricists or experimentalists is a different ball of wax entirely, so I’m not really writing about those sorts of hiring decisions. My views are informed by having been a member of a law school’s faculty appointments committee for most of the last decade (with trips to seven of the last ten AALS hiring conferences, for the quantitatively minded). They do not reflect the views of my institution. And my views don’t match up perfectly with the way I have voted internally. I’ll omit obvious advice like (a) hire smart people, and (b) fill curricular needs:

1. Ignore the findings. The legal academy probably focuses too much attention on the results of the empirical research project, particularly when hiring entry-level scholars. This is an empirically testable claim, but my impression is that entry level scholars with highly significant results do better on the market than candidates with marginally significant or null results. If this effect exists, it is largely pernicious. It rewards blind luck, it promotes the testing of questions that the empiricist already has strong intuitions about, it encourages entry-level scholars to write tons of papers (with less care) or run countless regressions until they find an interesting result, and it reinforces existing publication biases, which tend to publicize significant results and bury null results. Subject to the caveats below, we should not expect someone who achieved a highly significant result in paper A to be particularly likely to achieve a highly significant result in paper B . . . unless the scholar in question falsified data in paper A and wants to press her luck. But when you’re doing entry level hiring, you really ought to care about papers B, C, and D. Which is why you should (almost) ignore paper A’s findings.

2. Emphasize the methodology. Now the caveat to suggestion 1. Sometimes what’s driving a highly significant result is a methodological breakthrough or the construction of a large new data set. These efforts or achievements should be rewarded. Someone who had a methodological breakthrough in paper A is plausibly more likely to have further breakthroughs in paper B. (Again, this is testable.) Someone who assembled a massive data set is likely displaying the work ethic and care that will serve them well in future projects. The same goes with framing a really interesting question, ideally one where either a null result or a highly significant result is revealing. Now, there are two major problems with emphasizing methodology. First, scholars genuinely making significant methodological breakthroughs are likely to go to Economics or Political Science departments so they can hang around with other researchers who are making methdological breakthroughs. Second, most law faculties don’t have enough good empiricists to evaluate the empirical chops of a teched-up entry-level candidate. These faculties tend to lean heavily on references. And most references are relatively unreliable. (Except for me. And you!) The only things less reliable than references are outside letters and amicus briefs.

3. Hire candidates who intend to grab low-hanging fruit. There are important fields in legal scholarship where empirical scholarship has largely saturated the market. Setting aside extremely gifted candidates, these are areas where it is easy to pile up citations and hard to make much of an impact. I think that’s become true of Corporate and Securities law, as well as judicial behavior, and the bar may be getting higher for quantitative empiricists writing in these areas. But there are other areas of law where great empirical scholarship is harder to come by: Civil Procedure, Comparative Public Law, Bankruptcy, and Health Law. Ok, you might have caught on to what I did there, having just mentioned the specializations of the last four JD/PhD empiricists hired by Chicago. Of course, these hires happen to be brilliant too; and that doesn’t hurt. That’s not to say we didn’t try to hire a couple empiricists in fields where the low-hanging fruit has been picked. But the trend may be meaningful.

4. Hire empiricists who have really practiced law. This is a hedging strategy. A fair number of empiricists on the market have little evident interest in legal doctrine and seem poised to become middling or worse teachers and colleagues. An empiricist who has actually practiced law at a high level and seemed to have this practice experience inform her research agenda is a relatively good bet to add value to the institution even if the research winds up only being ok. My understanding is that at least one major law school that launched a JD/PhD program refused to let its JD/PhD candidates participate in on-campus interviewing or otherwise utilize the Career Services office to pursue non-academic jobs . . . [Shakes head].

5. What will we do with all of these empiricists? Some empiricists have become or will become superstar researchers. Most will not. An interesting question going forward is what the latter group should do with their time. I would hope that non-superstar empirical scholars increasingly turn their attention to replicating highly significant work by others upon which policymakers have relied. If my hunch about results-driven hiring is correct, then the temptation of entry-level scholars to falsify data is strong. I worry that some scholars will give in to temptation. A good faculty workshop can catch all kinds of errors in the data. Many good questions are asked about robustness. But such a workshop will be unlikely to unmask intentional falsehoods in the underlying data – that typically takes a lot of time and attention. I suspect that the legal academy is presently at a point where trying to replicate famous empirical results – using new data sets ideally – may represent some of the most socially useful low-hanging fruit, especially in fields that are heavily populated by empiricists.

Such replication is usually not methodologically innovative, so it probably isn’t the wisest work for most entry-level scholars to do, given the obsession most faculties have with “high upside” hires. But for established empirical scholars who have largely reached their ceilings, a renewed emphasis on replication would be most welcome. This is an alternative to the “teaching colleges” approach discussed elsewhere. It is probably not wise to ask average-ish tenured JD / PhDs to give up research and focus exclusively on teaching. But it is perhaps more appropriate to ask that they try to maximize the social value of their research, and keeping the profession honest through replication may be the best way to accomplish that end.

Update:

Jon Klick offered the following additional thoughts, with which I largely agree:

Ideally, you do want someone who knows the difference between a true null/zero and a statistically imprecise result. Further, to some extent, statistical precision will be endogenous to research design. All other things equal, a better design (or using more appropriate data) is more likely to lead to either identifying a true zero or else a statistically significant result. This suggests that there is some information content about the candidate’s skills included in the finding of a statistically significant result. As for zero/insignificant results, assuming the candidate can speak thoughtfully about whether it is a true zero vs a limitation in the research design and/or inherently noisy data, I agree that we shouldn’t downgrade a candidate on that basis.

There’s another important sense where the results matter. Econometric work (really any statistical work) is as much art as science, so there are times when you do everything right and you come up with some crazy result that is almost certainly wrong. Unsophisticated/immature empirical researchers often present results like these and come up with some post hoc rationalization. This is a very bad sign. A sophisticated/talented empirical researcher knows to either re-think his design or to abandon the research and move onto something else in these cases.

I do worry about the problem of “crazy” results being abandoned and never seeing the light of day. As a Bayesian, I want to know about crazy results, null results, and every other kind of result. I certainly feel that a good empirical scholar ought to caveat the heck out of those crazy results and other scholars citing that work need to understand those caveats to contextualize the results.

Posted by Lior Strahilevitz on April 17, 2012 at 10:40 AM

Comments

As one who comes from outside of law, but is an empirical researcher, some comments. 1) No, a Ph.D. is not necessary to do empirical work. The value of a social sciences Ph.D. is what it teaches about a discipline, and how to do solid research in that discipline. One can certainly come to empirical research from the law side, and there are many examples of those who did. 2) Do not, I repeat, do not, take a technique driven approach. The vast majority of good empirical work uses fairly simple statistical techniques. The more technique driven you are, the more likely it is that your data does not meet the assumptions of your approach, and thus the more likely you are depending on asymptotic results that can lead you astray with small small sample sizes. This means that in evaluating empirical researchers you should look for what Arnold Zellner called “sophisticated simplicity.” Put a big premium on people who tease out results using fairly simple econometrics. Real effects will still be there. 3) Stay away from people who lack common sense, or who take their findings too seriously. 4) Stay away from people who confuse statistical significance (which you can just about always buy with a large enough sample, see Lindley’s paradox) with real import.

Posted by: Mark Weinstein | Apr 20, 2012 5:34:07 PM

Also, I disagree with this from Klick:

“All other things equal, a better design (or using more appropriate data) is more likely to lead to either identifying a true zero or else a statistically significant result. This suggests that there is some information content about the candidate’s skills included in the finding of a statistically significant result.”

First, I’m not sure what a “true zero” means — we can fail to reject the null hypothesis, and we can do so with lots of statistical power, but you should never say that you found a “true zero.” (In anything that you’d want to measure, there’s never going to be a “true zero” anyway — for example, even if the death penalty doesn’t deter, are you ever prepared to say that it doesn’t even have an effect size of 0.000000000001 standard deviations? I.e., that the effect really is precisely zero, and not some extremely tiny number that is different from zero?)

Second, research design can, in some cases, increase statistical power and hence the likelihood of finding a significant result (for example, doing cluster randomization in such a way that the intraclass correlation is smaller). But it is logically fallacious to make the opposite inference: that a significant result gives any information about research design or skills.

People can (and do) get significant results by playing around with the model and data in all kinds of ways — choosing what to do with outliers, what to do with missing data (listwise deletion, any of various imputation procedures), choosing among hundreds of model specifications (adding quadratics, adding interaction terms, etc.).

Posted by: Stuart Buck | Apr 20, 2012 9:32:43 AM

The legal academy probably focuses too much attention on the results of the empirical research project, particularly when hiring entry-level scholars. This is an empirically testable claim, but my impression is that entry level scholars with highly significant results do better on the market than candidates with marginally significant or null results.

If that’s true, I’d take it as a sign that (some) law faculty don’t quite grasp the whole concept of social science. If you want good social science, it is neither necessary nor sufficient to find someone who says, “In testing whatever null hypothesis I happened to choose, I found a p-value of 0.049 or below as to something or other.”

Posted by: Stuart Buck | Apr 19, 2012 8:28:55 PM

I would add category 2a: Emphasize the right methodology. There is a hiring bias in favor of complexity, but complexity can hide weak skills and weaker models. A well-designed study can report only marginals, mean differences or crosstabs, and do so to devastating effect. If it lacks a regression table that is probably a sign that the researcher has good judgment, not that they don’t know how to “do” empirical research.

In response to anon, I would begin where Lior leaves off. Learn what techniques are important in your field by replicating the work of others. There are lots of publicly available datasets, and many authors will share with you for the price of an e-mail.

Posted by: Joe Doherty | Apr 17, 2012 9:38:01 PM

“And most references are relatively unreliable. (Except for me. And you!)”

Classic.

Posted by: Michael Risch | Apr 17, 2012 3:03:55 PM

“anon” asks whether it is possible to become an “empiricist” (whatever *that* is) without a PhD. The short answer is to look at people like Dan Kahan at Yale, who does slick, elegant, solid empirical work. Although Dan does not have a PhD, he does better work than many so-called empiricists with PhDs. Some of his success (but, by all means, not all of it) comes from working with smart social scientists like Paul Slovic. Although those in the legal academy tend to produce single-author articles, in other disciplines it is the norm to co-author. My recommendation to a non-PhD who wants to do empirical work: (1) go to workshops (http://lawweb.usc.edu/who/faculty/workshops/legalWorkshop.cfm); and (2) collaborate with a social scientist.

Posted by: Robert Rocklin | Apr 17, 2012 11:43:50 AM

P.S. This blog doesn’t like Chrome. I always have to switch to Firefox to post. 🙁

Posted by: anon | Apr 17, 2012 11:25:05 AM

Is it possible to become an “empiricist” without having a PhD? (Obviously, I am trying to do this, or I wouldn’t be asking the question.) I already have a tenure track teaching job so I don’t have to worry about going on the market. I like math and have been teaching myself statistics (although I have no formal background in either). I have put together a data set and will hopefully produce my first empirical piece this summer. I assume that it will be hard to get people to take me seriously, but if I produce good work I had hoped I could overcome my lack of formal training. What do you think?

Posted by: anon | Apr 17, 2012 11:24:27 AM

Thanks, Orin. It’s not clear to me that the right answer to your question differs from the right answer for other sorts of hires. So, while I have intuitions about this question, they are mainly just that. I do think it is a mistake not to look at a law school transcript when doing entry-level hiring, both to see how someone did, but also to see what classes they took.

Posted by: Lior | Apr 17, 2012 10:52:35 AM

This is an excellent post, and very useful.

Lior, I’m curious about your take on a question somewhat related to #4: When looking for empiricists, to what extent should a faculty value what we might call “traditional” law-related credentials such graduating form a top law school, law school grades, clerkships, etc. Anecdotally, faculties generally like to see those traditional credentials to gain confidence that the faculty candidate will operate at a high level in teaching and legal analysis outside doing empirical research. To what extent should schools relax those preferences when looking for an empiricist, either by hiring someone without a J.D. or someone with a J.D. from a less highly ranked school (or someone who did less well in law school courses)?

Posted by: Orin Kerr | Apr 17, 2012 10:33:14 AM

We are way short on reports for the Entry Level Hiring Report. We should end up with about 150 reports, give or take, and we fewer than 100 right now. By this time, hiring should basically be done.

So, a plea: please send in your information, or tell people you know to send in their information. You can post it in the comments to the hiring report thread, or email me directly, slawsky *at* law *dot* uci *dot* edu.

I will feel extremely uncomfortable compiling the data if we don’t get around 150 people–given that even the usual list of 150 or 160 omits many people, analyzing and compiling a mere 100 reports strikes me as even more irresponsible than usual. (I think the problem is that we started collecting the information too early–I won’t make the same mistake next year.)

So, whether by comments or email–information, please!

By information, I mean:

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree, Degree Granting Institution, Degree Subject

Fellowship: Institution and Type of Fellowship

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four)

(I am closing comments on this post to drive the information to the original post or to email.)

Posted by Sarah Lawsky on April 16, 2012 at 06:20 PM

In a recent Balkinization post, Mary Dudziak rightly praises a new article by Cary Franklin, “Inventing the ‘Traditional Concept’ of Sex Discrimination.” Franklin’s article argues that “the ‘traditional concept’ of sex discrimination is an invented tradition. It purports to reflect the historical record, but in fact reflects normative judgments about how deeply the law should intervene in the sex-based regulation of the workplace. . . . The parameters of Title VII’s prohibition of sex discrimination have always been determined by normative judgments about how forcefully the law should intervene in practices that reflect and reinforce conventional understandings of sex and family roles.” Dudziak praises Franklin for “bringing a critical understanding of tradition to bear on Title VII,” writing:

Bringing this classic analysis to bear on contemporary legal analysis has potential importance beyond Title VII. History as a “useable past” is often drawn on by scholars, courts and litigants (in the plethora of historical amicus briefs). For the past to be authoritative, there is a search for the “real,” based on the idea that there is one true past that can be discovered. This fuels instrumental historical research that seems to assume that uncovering history involves mining the past to collect as many seemly stable objects as possible (whether they be past laws, interpretations, ideas, or experiences). A central feature of any critical work in historiography emphasizes the instability of the past, and the fact that we cannot know the past without interpretation. And Hobsbawm cautions us that constructions of tradition often serve the function of legitimating current structures and social hierarchies.

I like the article and the post, and am all in favor of critical examinations of received wisdom about history and tradition. I write only to add the point–an obvious one, perhaps, but less often discussed and possibly subject to some mistaken contrary views–that such enterprises are a good idea for any legal scholarship and neither require nor imply a particular political or normative viewpoint.

Franklin argues that “history does not compel courts to interpret Title VII’s prohibition of sex discrimination in anticlassificationist terms — and that, in fact, in cases where anticlassificationism produces expansive rather than narrow results, courts have routinely departed from it. This tendency should prompt us to think critically about the assertion that deference to the legislature and fidelity to tradition require courts to adhere to a narrow conception of what it means to discriminate ‘because of sex.'” But critical examinations of tradition needn’t point in a particular direction. Their value, as I see it, lies not in the possibility they open up to progressive legal interpretation, but in their capacity to unsettle pat assumptions about history and tradition, of whatever political valence. Lawyers of all political stripes tend to draw on canned versions of history and tradition, often drawn from judicial opinions, which seem like a reasonable place to find “useable pasts” but a terrible place to look for full and nuanced history. There are plenty of standard stories about history and tradition that serve liberal or progressive ends, just as there are many standard stories that serve conservative ends. There are countless examples in legal scholarship of what we might call “one-footnote history”–a pat statement about living constitutionalism, or the expansive intent of the Framers, or the wall of separation, or what have you, backed up by a single slender footnote citing to some general, overbroad, overly confident version of history or tradition.

This should be no surprise; as Dudziak writes, this is more or less how lawyers “do” history most of the time. Reexamining these casual assumptions about history and tradition is always in order, if only because it tends to bring home to us just how little an appeal to canned history as “authority” gets us and just how much is left in our own hands at the end of the day. But certainly no one (and I am not saying either Franklin or Dudziak do) should make the mistake of thinking that reexamining tradition or history will lead inexorably to “progressive” legal outcomes. It may lead us to clearer or different modes of thinking, but it won’t lead to any predictable results. Lazy assumptions about history or tradition are not the sole province of any particular political viewpoint.

I could imagine a response arguing that reexamining tradition is more likely to lead to the unsettling of conservative judicial or scholarly views than of liberal ones, because conservatives appeal more often to history and tradition. I think it quite possible that there could be some disproportionate effect. (Some) conservatives appeal more often to history or tradition as authoritative sources of interpretation, and (many) progressive legal thinkers are more openly concerned with future directions and less with history. But I don’t think such an argument would be completely successful. For one thing, as I said, I think there are plenty of liberal shibboleths that draw on canned history and tradition. More important is the simple fact that unsettling such assumptions doesn’t tell us where to go next. It may tell us, for instance, that history doesn’t “compel” us to adopt anticlassificationist views of sex discrimination law–although in any event I don’t think history ever “compels” us to do anything–but it doesn’t tell us whether we ought to adopt anticlassificationist views anyway. Eliminating “bad” history or “invented” traditions just brings us where we always are: left to our own devices and confronted with our own decisions.

I would be happy to see much more critical history of this kind. Indeed, I’m working on a paper along these lines myself, having to do with political geography and church-state law. I just hope no one will assume this is an inherently liberal or progressive project. Reexamining and deconstructing history and tradition is, I’m glad to say, an equal opportunity activity, with enough fat targets to make everyone unhapy.

Posted by Paul Horwitz on April 16, 2012 at 10:55 AM

Comments

I’m also a fan of this thoughtful post, and I look forward to reading the Franklin. I do agree w/ Paul’s addition about the irreducible gap between any intellectually-honest constructions of history or tradition and the realms of the normative and constitutional–while understanding that any positive historical scholarship is never value-free in the super-strong sense of standing free of particular purposes and perspectives. Revolutions, for example, are sometimes rooted in appeals to tradition (however fictional that construction of tradition).

That said, I have what could be a somewhat divergent perspective (one that may reflect the fact that–although I have historical training–my background is more in political science): I’m under the impression from many discussions of historical methodology that historians today often privilege the unsettling of the past through findings of difference and contingency almost as an a priori (non-empirical) matter over findings of unexpected continuities or patterned dynamics. I have assumed that findings of difference and similarity should vary from context to context, and that where one lands on the relative balance between the two should be more empirically than theoretically determined (though one’s theoretical interests of course will always play some role in drawing the line between what counts as same and different). So I suspect faulty legal historical premises can very often be unsettled through findings of unexpected similarities across different places and times.

For example, a historical literature or a canned lawyer’s history may be structured by assumptions about American Exceptionalism or the exceptionalism of a particular period that are implicitly distorting what came before and after, and what is happening across the globe. In that case, the most unsettling methodology may be one that de-exoticizes.

Historically-oriented political scientists and economists, for example, might find out that some of the different contextual meanings of the choice between secret and public voting (e.g., does the secret vote democratize and promote election integrity, or does it serve disenfranchising purposes) might follow semi-regular patterns based on factors such as the degree of economic inequality in a particular society (patterns that might be detectable across some cultural and temporal differences). Maybe I am stating the obvious here. (I am also well aware that political scientists and economists can be susceptible to crude over-generalizations about sameness.)

Posted by: KN | Apr 17, 2012 2:15:24 PM

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Posted by: buy essay cheap | Apr 17, 2012 9:52:43 AM

Andy, I’ll let Mary speak for herself if she chooses (and I’m grateful for her comment). My own partial response is that part of the function of “invented” is dialogic and part of it is–sorry to use the term–deconstructive. To the extent that there are lawyers and scholars out there who appeal to tradition as authority or argue that it provides a reliable and “accurate” constraint, then showing that the tradition is not a tradition at all or only an incomplete and semi-accurate one is a relevant response. To the extent that it serves something less than this authoritative function (which I believe it generally does, for lawyers), then the purpose is to distinguish the substance of the meal from the wrapping it comes in and, perhaps, to expand the range of our imaginable options.

Posted by: Paul Horwitz | Apr 16, 2012 2:30:05 PM

I’m curious what work “invented” does in the argument. If we’re positivists, whether something is invented or not doesn’t matter. If we want a “coherent theory of rights” in the abstract, rational sense, whether it’s well-settled or “invented” doesn’t matter.

So if Mary Dudziak is criticizing invented traditions because “tradition” is always an empty argument, I don’t see what additional work criticizing them as “invented” does. Relatedly, at what point does the past cross the threshold into authoritativeness?

Posted by: AndyK | Apr 16, 2012 2:15:45 PM

Paul — Thanks for taking this up. Especially on your point that you are “all in favor of critical examinations of received wisdom about history and tradition. I write only to add the point–an obvious one, perhaps, but less often discussed and possibly subject to some mistaken contrary views–that such enterprises are a good idea for any legal scholarship and neither require nor imply a particular political or normative viewpoint.” — I agree with you.

In the area of unenumerated fundamental constitutional rights, my preference would be for the Court to abandon the idea that “history and traditions” serves as a constraint on the courts and b/c of that is the touchstone for whether a right is fundamental. Instrumental historical arguments aren’t a good substitute for a coherent theory of rights.

Posted by: Mary Dudziak | Apr 16, 2012 1:53:33 PM

For my next post on the law review submission process (see intro, part I, part II on timing of submissions and part III interview if you are interested), is the second half of my interview with Senior Articles Editor at the Stanford Law Review, Andrew Prout. The first half of his interview is here.

SB: So, now some nitty-gritty questions:

What do you think of the relative importance of the cover letter and CV in reviewing a manuscript? And what kinds of things really stick out to you as important when reviewing these two documents?

AP: I used those documents to triage expedite requests. If we had three articles to be reviewed within a few hours, I would look to the cover letter for the article’s importance. Some authors did a good job selling their pieces, and then I would make sure to give those articles priority. Others didn’t, so they would be reviewed later.

If I saw an author who I knew (or who had especially great credentials), I would give their submission a closer look, but I never told the editors who the author was. Like I said, this process was just how I ordered our approach to expedites when there wasn’t time for me to preview all the pieces first.

SB: Some of us law faculty can be pretty superstitious about the timing of the law review submission process. There are certain professors who swear by the importance of submitting on certain dates every year. I’ve heard of February 1. February 10. Last day in February. March 13. And so on. There is something to these theories. Some professors believe that if you send your paper earlier in February, it is more likely to get a good read since the editors are less tired and that these articles are more likely to get offers than the later ones you receive that come in the deluge at the beginning of March. Others believe that editors are much to selective at the beginning of February and are only willing to consider pieces from legal geniuses like Erwin Chemerinsky and only later do you realize that those blockbuster pieces are not coming and you are willing to consider pieces from others who are mere mortals. Any truth behind any of this superstition? And is there any time that is truly a bad time to submit (in Spring or Fall)?

AP: We accepted a lot in February, but I think we just received better pieces then. We’re on the quarter system at Stanford, so our cycle will be different than others.

The problem with February is that it is so busy, it is easy for a piece to get overlooked–or taken somewhere else by a fast-expiring offer. Exclusive submissions helped, but another approach is to submit off-cycle (but still during our academic year). So April was a good time for us: not many to review, still far from final exams, so more time for each submission. October was similar, though we were accepting our last few at that point.

SB: Lets talk about Expedites. These are a source of serious stress for professors. We receive an offer, we often do not know which journals we should expedite to. If we get an offer from a lower-top-50 school, do we expedite all the way to the top (ie to Stanford)? Do we expedite incrementally so that you only see our expedites from top-20 schools? When you see expedites, which ones make you more likely to consider the piece? Do you ever move a paper to final board review that does not come from an expedited review from another journal?

AP: For expedites, the journal matters. When I see a top-25 expedite, my interest is automatically piqued. That said, we did review a number of pieces at the full committee level without any expedite request (though that was mostly during the off-months). But during the on-months–February, March, and September–we often received expedite requests within a day or two of the initial submission. Under those circumstances, it was very difficult to move any article through our full review process that wasn’t expedited.

SB: In receiving expedites, do you consider the volume of offers, even if they are from lower ranked schools? What if someone has received 15 offers from schools between the top 30 and top 50, would this be something that would make you more likely to consider the piece?

AP: Not really. Those updates were helpful only insofar as they meant more time for our review process (i.e., they were extensions).

SB: And I know this question is completely going to require a subjective response, but are there certain journals that you believe have a good nose for sniffing good pieces, and if so, which journals are they?

AP: It really varies by the year. I remember a lot of action around U. Pa. L. Rev. and Cornell L. Rev. expedites during last spring. This year, my successor tells me he has looked at a lot of Mich. L. Rev. expedites. I think it comes down to individual taste and timing.

SB: Thanks Andrew! This is fun.

AP: Thank you, Shima! I hope this was helpful. Reviewing all those articles was a lot of work, but it was also a lot of fun (and we learn a bunch to boot).

Next up…interview with editor-in-chief and two articles editors from the Vanderbilt Law Review…

Posted by Shima Baradaran Baughman on April 14, 2012 at 11:51 AM

Comments

I, for one, love this series of interviews, because it reveals in what should be, to law professors, explicit and excruciating detail the utter absurdity and bankruptcy of the system of publication that their careers depend on. Consider this a Nelson-pointing-and-HAHAing comment.

Posted by: Anonsters | Apr 16, 2012 4:09:15 PM

Stanford’s law school is on the quarter, not the semester, system. That was one of the changes Larry Kramer and the faculty put into place to encourage taking classes outside the law school. It just means that Stanford students have finals at different times than law students at most other schools, and hence pay attention to law review submissions at different times.

Posted by: Jeff Lipshaw | Apr 16, 2012 3:23:34 PM

What does it mean when a law review is on the “quarter system?”

Posted by: Anon | Apr 16, 2012 3:09:42 PM

If you want to know what’s wrong with the process…I submitted via ExpressO in early February and received an offer (low end of Top 100) within 3 days. I expedited with a short time deadline via ExpressO. This weekend I received a “rejection” from a mid-tier Top 100 – yes in April even though the expedite deadline was 2 months ago!!! Something is very wrong with the system.

Posted by: ex-dist.ct.law.clerk | Apr 15, 2012 3:16:07 AM

In light of Paul’s post below, I thought I’d share a paragraph that I strategically place somewhere near the end of the introduction [sorry, Introduction], and which I call roadmap to the roadmap.

In this section of the Introduction, I aim to explain the paper’s meta-structure. Parts II and III are called ‘exposition.’ Here, the paper exposes to its audience the material which I have read and thought about in composing this article. In order to allay fears that I am insufficiently well-read in an area as to which I am claiming expertise, the reader should expect these sections to include an impressive literature review. I also include sub-parts within these parts. These sub-parts are suggestions of categories of exposition which deserve discussion qua categories. I have affixed titles to the parts and subparts in order succinctly to indicate the subject of the category (or subcategory). Without the titles (and subtitles), I fear no one will understand, or be bothered to read, the content. What follows in Parts IV and V is “argument.” To the extent that this article says something valuable, the conventional wisdom is that it will appear here. That is because in the “argument” sections, one generally takes oneself to say something original to the piece, and originality is the most important part of scholarship. For the sake of my readers’ expectations, I aim to offer something — anything — original in these sections. As before, there will be sub-parts (with subtitles) to suggest the complexity and true originality of the argument. I then end with a conclusion. The conclusion generally says nothing that was not said before. That is why I simply mention it in the roadmap to the roadmap, rather than describing what I say in it, as I do not wish the reader to be surprised by the appearance of a “Conclusion” which was not previously announced.

The only disadvantage of my roadmap to the roadmap is that it leaves that part of the introduction which precedes it completely unmapped, and therefore liable to confuse and distress.

Posted by Marc DeGirolami on April 13, 2012 at 08:13 AM

Comments

I’d also add an introduction to the title, which always goes over well and helps me with offers and expedites. This structure introduces editors to the substance of the article even before they get the actual introduction. An intro to the introduction to the title is probably also advisable, but the word limit student editors place on us precludes that.

Posted by: AnonProf | Apr 13, 2012 2:24:00 PM

You joke, but I got a no-sh!t comment from a reader two articles ago that I needed to put a introductory paragraph at the top of my introduction to preface the introduction’s structure and argument.

Posted by: Joe (not that one) | Apr 13, 2012 12:17:32 PM

Needs a lot more footnotes.

Posted by: Joseph Slater | Apr 13, 2012 10:49:38 AM

Hilarious.

Posted by: Dan Markel | Apr 13, 2012 8:21:31 AM

It’s a casual post, but I very much enjoyed and happily recommend Mark Tushnet’s post today speculating about why his article on art and the First Amendment didn’t place as he might (reasonably) have expected it to. I especially like this portion of the post:

3. I hate “roadmap” paragraphs, and don’t write them on my own. My particular bête noire is this: “Part VI concludes,” which is to say, “The Conclusion concludes.” [What else do you expect a conclusion to do?] The article as published has one, because I will go along with editors’ requests. But, maybe the editors figured that the judgment reflected in the absence of a roadmap paragraph would translate into recalcitrance during the editing stages, and again, why borrow trouble? (Note to law review editors reading this: It doesn’t; I’m really easy to edit.)

4. The article doesn’t have a strong normative conclusion. It doesn’t say that the Supreme Court has completely messed up in its treatment of art and the First Amendment. And, indeed, it says that the Court may have gotten it basically right, though the reasons are more complicated than people tend to assume. So, the reaction might be, “Why bother to go through all this to say that the law is basically in the right place anyway?” – particularly on a question that nobody seems to have raised anyway. (That is, maybe you can publish an article saying that the Court’s basically right when someone else has written one saying that the Court’s messed things up, but without the predicate article no one’s going to care that you’ve “defended” the Court’s results.)

Nicely written. Although I agree with both paragraphs, I’m moved to comment on the first.

I almost always use roadmap paragraphs. In reflecting on Mark’s post, though, I must say there is an argument to be made that roadmap paragraphs are a fairly nice illustration of some of the most risible aspects of legal scholarship. Clarity in writing, scholarly or otherwise, is of course essential. But a paper that lacks clarity in general isn’t going to find it because of the insertion of a roadmap paragraph. (I wince as I write those words.) That’s like a surgeon trying to fix massive spinal injuries by inserting a safety pin and a wad of chewing gum into the patient.

If legal scholarship was written to aid and persuade judges, perhaps a roadmap paragraph would be a wise strategy. But: 1) every time some judge sneers at legal scholarship for being unhelpful to judges, many legal scholars respond that they’re engaged in scholarship for broader purposes, not simply to serve as advocates or secondhand law clerks; and 2) in any case, if your paper is long and complex enough that it needs a roadmap paragraph, you have probably already failed at the task of aiding or persuading judges, or indeed just about anyone else outside the legal academy.

Which leaves those inside the legal academy. But if the experts in your field need a roadmap paragraph from you, there is already a good chance that 1) your paper needs to be rewritten anyway, or 2) there is something wrong with the experts in your field.

That leaves us with what I suspect most legal scholars would agree is the number one reason why they use roadmap paragraphs: because they think that law review editors need and/or expect them. Except that law review editors now also commonly expect, and regularly publish, abstracts — which summarize the paper! (And which also appear on SSRN, even when they don’t appear in the print version.) So the roadmap paragraph is really quite useless. Unless your article itself is overly long and complex. Which, come to think of it, most legal scholars would probably agree is the number two reason for the prevalence of roadmap paragraphs in legal scholarship.

Posted by Paul Horwitz on April 12, 2012 at 10:38 PM

Comments

The only reason for the roadmap is that many (most?) law reviews abhor the table of contents. In my view, anything with more than 15 pages needs one. Why do law review editors fail to understand that an 80-page article without a TOC is extremely hard to navigate and will therefore not get cited a lot?

Posted by: ForeignPrawfintheUS | Apr 15, 2012 2:45:18 PM

FWIW, as a law review editor, I love the roadmap. After the title, it is usually the first thing I look at, and, in the submission process, helps readers at least identify what the author intended to include in a section. I agree with Paul that a good roadmap won’t make better a bad paper; but that doesn’t mean that a good roadmap also won’t improve a good paper.

Posted by: Brad A. Greenberg | Apr 14, 2012 7:47:42 PM

A little off topic, but I think the Tushnet piece might have been hard to place because of the crazy number of permissions you’d need to get for the art. It’s beautiful, sure, but it might scare me as an editor who hadn’t much experience with reproducing copyrighted material.

Posted by: Matt Bodie | Apr 13, 2012 2:10:12 PM

I agree in advance with whatever Pierre Schlag has to say about it.

Posted by: Jeff Lipshaw | Apr 13, 2012 12:03:31 PM

Or, roadmap to my comment: what James said.

Posted by: Bruce Boyden | Apr 13, 2012 11:23:16 AM

I hate the roadmap paragraph in its standard form. I don’t like writing them — it feels like a sell-out to sloppiness — and I only read them as a poor substitute for a table of contents (if the article needs a concise roadmap paragraph, then what it really needs is a TOC, IMO).

However, there’s nothing wrong with “roadmapping” the article in the introduction — I just think it’s more artfully done *in more than one paragraph*. That is, somewhere towards the end of the introduction I think it’s useful for the author to start laying out how the argument proceeds. It’s the equivalent of the “summary of the argument” section in a brief. A minor annoyance writing the intro that way incurs, however: law review editors will often then request citations for all of the unsupported statements in your summary (the ones that, of course, are explained in full later on), leading to an incomplete duplicate set of the authorities cited later on being provided in the introduction.

Posted by: Bruce Boyden | Apr 13, 2012 11:20:19 AM

DHMCarver’s point that a standard roadmap is “practically an annotated table of contents” is important. This is one reason why I prefer it when law reviews include tables of contents at the start of articles: they provide an immediately accessible map to the contents of the piece. It’s also a baseline of quality; good roadmaps rise above it. Thus, for example, an introduction could set up a problem and announce out the key insight that the paper will use to resolve the problem — and then use the roadmap to fill in the details of how the insight responds to the problem and survives possible objections. (This sort of a roadmap will typically span multiple paragraphs.) Another good kind of roadmap helps makes the taxonomic structure of the legal phenomenon under consideration clear. The key, I guess, is to understand the roadmap as a tool that is adapted to solve a particular kind of problem with a particular kind of structure, and try to attack that problem rather than fixating on the structure.

Posted by: James Grimmelmann | Apr 13, 2012 11:15:00 AM

Hate the roadmaps. The concept is fine — an introduction is supposed to sketch the outlines of the argument. But the “formal” law review roadmap is merely lazy writing, practically an annotated table of contents. I had read hundreds of academic articles in my prior incarnation as an historian, yet it was not until I started reading law review pieces when I entered law school that I found the stilted roadmap style, which to this day reminds me of how one would write an elementary school research essay.

Posted by: DHMCarver | Apr 13, 2012 10:51:39 AM

I hate, hate, HATE “Part IV concludes,” too. And I’m not a big fan of roadmap paragraphs in the introduction, either, though, like Mark, I always include them when editors ask me to. I do think that such paragraphs are more helpful when the structure of a piece is particularly complex or intricate; my pieces tend to have a simpler — perhaps more simplistic and less interesting — structure.

Posted by: Sam Bagenstos | Apr 13, 2012 9:47:33 AM

Six comments in less than twelve hours for a post that went up at 10:30 pm! I’m not surprised. I should say first that I was definitely venting spleen at a late hour and definitely exaggerated my argument. So, for what it’s worth, I agree that roadmap paragraphs are not the root of all evil. That said, I’ll push back a bit.

I sympathize with Dan’s view that legal scholarship often involves formal constraints and, as with jazz, we can find freedom within and sometimes because of those constraints. Up to a point! Or three points, actually. The first, and this was largely the point of my post (if it had one), is the point at which form ceases to follow function. The function of the roadmap paragraph is clarity and summary. But the more abstracts (which are often better written and serve the purpose of introducing and summarizing the paper more clearly and thoroughly) become the norm, the less the roadmap paragraph serves a vital use. Then it becomes a matter of form dictating form, if not function itself. It becomes a third kidney.

The second point, and to some degree this is a response to Orin, is that the functional contribution of roadmap paragraphs is to provide order, structure, clarity, and guidance. But I see plenty of articles (sometimes fairly well-placed ones) that are too long, too complicated, too disparate in focus. (I’ve written a couple of them! I don’t exempt myself from the criticisms of this post.) Hence the surgery metaphor. The real focus should be on a clear and readable piece of scholarship, and insisting on a roadmap paragraph for a piece that doesn’t need one because it’s clear, or needs much more fundamental structural surgery, again seems like a triumph of form over function.

The third point is that–as with jazz–sometimes you have to experiment with form, to break the mold, to try new things. That’s true both for growth as a scholar and because the function of the piece may dictate a different form. Then the insistence on particular conventions becomes a barrier to useful scholarship, not an aid.

That puts me pretty close to James and Adam. The roadmap is neither always nor never necessary or useful. It should depend on the piece, not on observing conventions for their own sake. And clarity should be the rule, not a particular formalized way of achieving (or still not achieving) it. When it is insisted on for its own sake, or to fulfill the real or imagined expectations of law review editors, then it can indeed expose the risible aspects of some of the material and intellectual underpinnings of our scholarly enterprise.

Posted by: Paul Horwitz | Apr 13, 2012 7:33:21 AM

The take home lesson for law review editors is that roadmap paragraphs are neither always required nor always unwarranted. Too often law review editors fall prey to conventions. Much of the point of scholarship is to innovate, and it would be foolish to hamstring authors in their efforts to innovate by unnecessarily limiting the forms in which they are permitted to do so.

I wrote, “I end with a brief conclusion,” in my April Fool’s Day post from earlier this month: http://prawfsblawg.blogs.com/prawfsblawg/2012/04/earning-the-title-of-your-article.html

So that should make clear what I think of those sentences. They are always unwarranted, at least when they are devoid of interesting content, as in my example.

Posted by: Adam Kolber | Apr 13, 2012 6:18:04 AM

I’m a little puzzled by the concern about how to “roadmap” the conclusion. In my experience, you don’t: The conclusion doesn’t add a new developed argument, so you don’t mention it as part of the roadmap. I guess you can add a snarky comment about how the Conclusion concludes, but it’s no more necessary that saying, “And after the conclusion, the next article will begin.”

Posted by: Orin Kerr | Apr 13, 2012 2:35:05 AM

As a reader, I disagree with Orin Kerr. Roadmap paragraphs are invariably canned and end up all looking the same (“Part XXXVI concludes”); much like a roadmap, they don’t really prepare you for following the actual road.

Why not just sketch out the argument in a series of steps?

“My argument has the following structure:

(1) All lawyers are idiots. (Parts II-LXVI) (2) You are a lawyer. (Part LXVII) (3) You sir, are and idiot. (Part LXVIII)

I conclude by demonstrating how (3), when viewed through a proper lens (viz, a Korsgaardian interpretation of Kantian ethics), requires the Supreme Court to banhammer you from life.”

Posted by: Anonsters | Apr 13, 2012 1:32:56 AM

I agree with Paul: the roadmap paragraph is a good example of a characteristic tendency in legal writing. It can be either effective or risible or both: everything depends on execution. I find that the start of a roadmap creates a natural pause in the rhythm of an introduction: it marks the crucial moment when the introduction expands outwards from setting up the issues to connecting them with the rest of the article. A plodding roadmap throws away the dramatic momentum that moment can yield. The best roadmaps recognize that they are a convention of the genre: they can do so sincerely or with a wink, but good legal writing works with those conventions rather than against them.

My current working draft’s roadmap includes the sentence “A brief Conclusion will do exactly what it says on the tin.” We will see whether the editors let me keep that one.

Posted by: James Grimmelmann | Apr 13, 2012 1:31:00 AM

I don’t think I understand the opposition to roadmap paragraphs. Sure, as an author, they’re boring to write. But as a reader, they can be pretty helpful to understand the author’s argument and the structure of the article — and you can easily skip them if you prefer.

Posted by: Orin Kerr | Apr 13, 2012 12:15:35 AM

Disagree. Love the roadmap (and view it as vital as an abstract). Law review articles are like jazz. Accept the perimeters and improvise within some settled forms. Get with the program, people.

FWIW, I fully agree with the heat over the asinine statement “Part VI concludes.” That locution I understand is risible. It’s worst when you draw attention to a conclusion that makes no effort to say anything of interest such as adverting to possible objections and replies…

Posted by: Markel | Apr 12, 2012 11:44:23 PM

In just a few weeks, I’ll be heading off on a big trip that will include two weeks in Vietnam and Cambodia. Of course, as a prawf, I’m incapable of simply planning an enjoying a trip to new and exciting places. Instead, I find myself fretting over the various ethical considerations involved in visiting developing nations. More on this after the jump.

I trace much of my uneasiness to a trip I took to Bosnia in 2006. I went to Sarajevo that year to visit a Bosnian woman I had befriended while studying in Germany. I had always wanted to visit the former Yugoslavia, and having a local friend to host me seemed like a perfect opportunity.

Of course, as an American, almost all of what I knew about Bosnia had to do with the recent wars, with a little bit of Marshal Tito and the assassination of Archduke Ferdinand thrown in. Nevertheless, I was determined to show my friend and her family and peers that I was interested in Bosnia for its own sake, and that I had not come to voyeuristically experience a recent war zone or to gawk at poverty. I was acutely aware of the fact that men and women who were my peers had lived through an unimaginably horrific war. I recall being deeply ashamed when my friend’s sister asked what it was like to be in New York on 9/11, as if my story of temporary displacement could ever compare to what it must have been like to be a teenager in 1990s Sarajevo.

With that uneasiness in mind, I set out with my camera and my journal to document a country that could have been captioned “Bosnia: Not a Warzone!” I snapped pictures of the gorgeous mountains, of the charming Turkish quarter and the stately Austrian quarter in Sarajevo, of the new bridge and beautiful hillside houses in Mostar, and of the almost comical “ruins” of an ancient “pyramid” of dubious provenance. I chronicled my adventures eating cevapi on the most delicious fresh bread I have ever tasted, and enjoying an afternoon coffee in a perfectly landscaped Sarajevo square.

But there were many things that I took fewer pictures of, namely, the bombed out buildings, large cemeteries with too many recent graves, the countless- street-side memorials to urban terrorist attacks, and the appalling interior condition of even “luxury” high-rise apartment buildings. I came back brimming with stories about the warmth and hospitality of the people I met, but was much less forthcoming about some of the daily hardships that I saw them face.

In the years since I visited Bosnia, I have travelled to several other developing countries, each time with an uneasy sense that the poverty and suffering of others is not there for my entertainment or “cultural experience,” but that ignoring this aspect of life would be to leave without a complete sense of the land I have visited.

So, on this trip, I hope to achieve as much balance as possible. Will I see the Vietnam of napalm, of My Lai, and the Cu-Chi tunnels? Or the Vietnam of a rich history that is so much more than colonial occupation and resistance. Will I allow myself to see the Cambodia killing fields, or confine myself to the tourist haven of Angkor Wat? Will I marvel at economic revival in Vietnam or allow myself to confront the reality of continued poverty in developing nations?

Tell me, Prawfs readers: which trip is most respectful to myself and to the nations I am visiting? Is there any way to experience the reality of war or poverty without being exploitative, condescending, or voyeuristic?

Posted by Robin Effron on April 12, 2012 at 03:56 PM

Comments

I visited Vietnam last year and Cambodia this year. The Vietnamese love Americans. I was in taxicabs where the driver had American flag decals on the dashboard. Chinese, they don’t like so much. China is the big neighborhood bully, and they all look to America for protection. I found the drive by the old American air base at Danang very moving (the old quonset huts are still there) as well as the visit to the old imperial palace at Hue, where the walls still have the bullet holes from the Tet offensive of 1968. It occurred to me often how much better off Vietnam would have been had the US won the war; Vietnam, at least the southern part of it, would be like South Korea today, instead of a struggling third world country that is just starting on the capitalist road to development. Cambodia was also fascinating. How can such a gentle people have committed such atrocities against themselves? Of course, Pol Pot was the logical end point of the quest for perfect equality. Do people understand that? The temple complex at Angkor is one of the great wonders of the world. You could easily spend a week there and see something new and exciting every day. The other thing to keep in mind is that as former French colonies, both Vietnam and Cambodia have great food. There are excellent “fusion” restaurants, world class, in both countries. Vietnamese sandwiches on French baguettes are world famous.

You’ll have a great time, just leave the guilt at home.

Posted by: Douglas | Apr 13, 2012 8:18:43 PM

Only you can decide what is most respectful to yourself, and I’m not sure what it means to be respectful to an entire country. But as long as you are respectful to the actual people you meet there, you’ll be fine.

Plus, the tourist infrastructure in Cambodia and Vietnam is so well-developed (all the places you mention are on the tourist trail) that it’s unlikely that you will “experience the reality of war or poverty” in those countries, unless you get pretty far off the beaten path.

Instead, try to see a lot of different things and just accept that, no matter what you do, you will only get a tiny and very incomplete glimpse of two very interesting countries with rich and complicated histories.

Posted by: J.D. | Apr 13, 2012 12:58:36 AM

My own view is that whether you are exploitative, condescending, or voyeuristic depends upon your attitude, not your itinerary. And as long as you pump lots of money into the local economy, I suspect the nations you are visiting will be appreciative.

Posted by: Orin Kerr | Apr 12, 2012 5:08:15 PM