Author: Dave Hoffman

13

Ranking: Law v. Undergrad

Inspired by this 2007 Taxprof post, I decided to compare the 2013 US News undergrad ranking to the 2013 overall law school rank. This project was a bit more complicated than it was six years ago,  due both to scandal & to the proliferation of regionally rankings.  But, ignoring schools that aren’t present on both lists, the results are illuminating.  For figures, follow me after the jump.

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0

Free Advice to Incoming Law Review Boards

While academics angst, law journal editors toil to manage the fire hose of submissions, real and fake expedites, and the uncertainty that comes with a new job.  Many journal editors now seem to have the goal of “improving their ranking“.  Seven years ago (!) I wrote some advice on that topic.  It seems mostly right as far as it goes, but I want to revise and extend those comments below, in letter form.

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0

The Pacific Legal Foundation May Challenge Law Review Affirmative Action

Via Josh Blackman comes this news:

“The Pacific Legal Foundation has sent requests under the California Public Records Act (the equivalent of FOIA) to the University of California Berkeley and University of California Davis, seeking information about how they use race and gender in making decisions about what articles to publish. You can download the requests here: [UC Davis PRA requestUC Berkeley PRA request.] The letters were sent to the Dean of the law schools, and carbon copied to the Editor in Chief and the Faculty Adviser.”

The PLF demands a response by March 2.

1

What is the Point of Symposia?

Over at the Faculty Lounge, the estimable Michelle Meyer argues that it’s possibly inconsistent to take account of race, gender, and sexual orientation in symposia invitations but not to do so when selecting articles in law reviews.  Her post is thoughtful and well-written, though I believe it rests on a false premise.  Go over there and read it and then come back to find out which one.

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3

Dodge v. Wholefoods?

Like many corporate law teachers, I have mixed views about the old chestnut of Dodge v. Ford.  On the one hand, it’s very quotable. On the other, shareholder wealth maximization is a normative goal, not a rule with teeth.  Still you go to war with the data you have.

Now we’ve more data – useful for an exam fact pattern, at least!  An alert student (thanks, C.M) found this choice quote in a recent interview of Wholefoods CEO John Mackey:

“JOHN MACKEY: I think that Whole Foods does have higher purposes. We take them very seriously. We don’t exist primarily to maximize profits.

We’re fulfilling the mission that we set for ourselves of helping people to live healthier lives, to hopefully reverse this obesity crisis we have in America. Whole Foods does feel this sense of responsibility to try to make a difference. And that filters through our team member base to our customers. We really are united around kind of our mission as an organization. That really makes a difference.”

Now, obviously this is a branding statement – which could be interpreted as a way to make money by convincing customers to pay more for fruit than they ought to.  And maybe nothing Mackey says should be taken very seriously. See, e.g., fascism & sockpuppets. Indeed, he’s certainly said CSR-like things like this before.  But it’s still striking to see a CEO say essentially what Henry Ford said (and was punished for saying) in Ford v. Dodge. In the interview, Mackey also was asked about why his perspective is rarely articulated by CEOS.  Check out his answer after the jump.

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4

Why Is Privatized Procedure So Rare?

For some time, I’ve been mulling over how closely parties can tailor the rules of civil procedure to their own purposes. That is: can parties write enforceable contract terms which state that if they sue each other, the ordinary procedural rules won’t apply? Do such contracts exist? For example, parties might contract to be able to take 5 depositions in a case instead of the default 10. Or they might dispose of the rules of hearsay.  The literature on this topic of private procedure arguably started with the Scott/Triantis piece, Anticipating Litigation in Contract Design, and has gotten new momentum from Bone, Kapeliuk/Klement, Dodge, and Drahozal/Rutledge. My contribution, freshly up on SSRN, ended up being slightly more empirical than I’d expected — though I guess this won’t surprise any of our long-time readers.  In Why Is Privatized Procedure So Rare?, I try to explain why there is actually so little private procedure in places we’d expect to see it:

“Increasingly we hear that civil procedure lurks in the shadow of private law. Scholars suggest that the civil rules are mere defaults, applying if the parties fail to contract around them. When judges confront terms modifying court procedures — a trend said to be explosive — they seem all-too-willing to surrender to the inevitable logic of private and efficient private ordering.

How concerned should we be? This Article casts a wide net to find examples of private contracts governing procedure, and finds a decided absence of evidence. I search a large database of agreements entered into by public firms, and a hand-coded set of credit card contracts. In both databases, clauses that craft private procedural rules are rare. This is a surprising finding given recent claims about the prevalence of these clauses, and the economic logic which makes them so compelling.

A developing literature about contract innovation helps to explain this puzzle. Parties are not rationally ignorant of the possibility of privatized procedure, nor are they simply afraid that such terms are unenforceable. Rather, evolution in the market for private procedure, like innovation in contracting generally, is subject to a familiar cycle of product innovation. Further developments in this field will not be linear, uniform and progressive; they will be punctuated, particularized and contingent.”

Download it here. I’d love your comments. It’s out in the scrum, but I’m intending to continue to revise it as data continues to come in.

13

Affirmative Action for Law Scholarship

There are several issues in this unfolding story about Scholastica, law review submissions, and “diversity” preferences. Let’s break them out.

  1. I’m shocked!  Shocked!:  Over at Prawfs, Professor Mannheimer and various anonymous commentators think that Orin, Josh and I are naive.  Everyone knows that law reviews routinely take race, gender and sexual orientation into account when choosing between articles.  Indeed, Josh got an email from a former editor at the California Law Review saying that the practice “is nothing new and not exactly a secret.” Well, shucks. I guess I’m the sucker here.  Even if this had crossed my mind, I would have naively thought that law faculties would never permit law student boards to make decisions about articles based on race, gender and sexual orientation without clearly thinking through whether such practices were legal, and without setting forth an explicit and public set of guidelines vetted by university counsel’s office. Honestly, the idea that California, NYU, Boston College, and other law reviews are thinking about my sexual orientation when they go forward with a “board review” is so unbelievably offensive that I’m still having some trouble wrapping my head around it.  So, yup, I’m shocked.
  2. But everyone else is doing it: On the prawfs thread, several anonymous commentators stated that diversity preferences (however defined) are no worse than preferences that boards already express for (or against) elite school letterhead.  There are two points to make here in response. First, the best law journals already engage in blind review, and using letterhead as a proxy for quality is antiquated and embarrassing. It’s not a defense of a bad practice that another bad practice exists.  Second, though it’s not well thought out and should be abolished, at least the intuition behind letter-head bias is rationally related to what I thought the law review’s ends were: to select the best piece of scholarship. But what’s the intuition behind picking people, not papers?  That law review placement is a “good” owned by the law review that wise and benevolent boards should redistribute in the ways that seem best to them?
  3. Scholastica’s just an enabler: I can’t quite figure these folks out.  They commented yesterday that they were just giving reviews what they wanted. But then some editors wrote me to say that they didn’t want this widget – and that they only clicked on it because it was so easy to do. Indeed, Iowa appears to have de-clicked the widget yesterday in response to this thread.  In the best possible light, it seems to me that Scholastica’s developers are simply importing other disciplines’ norms and preferences into the law without thinking carefully about how you might want to have different tools for faculty editors than unsupervised student boards. But maybe that’s not the light to see Scholastica in. As I wrote yesterday, their high price, preference for a different kind of scholarship, and exclusivity campaign might suggest that far from being merely a “platform”, they are hoping to use digital architecture to change law review behavior. I’d love to hear more from them about what their goals were and are going forward for legal scholarship.
  4. Until such questions are answered, my view is that of a commentator from yesterday: vote with your feet. Don’t use Scholastica unless the journal absolutely insists, as very, very few do.  Consider also sending emails to the faculty advisors of journals that are exclusive to ask them if they are on board with this potentially radical, and radically troubling, shift in law review standards and selection processes.
10

Scholastica & Law Review Selection

As several commentators noted (most in private emails, because they are afraid of negative consequences in the submission market), a very disturbing aspect of Scholastica’s new submission process is that it appears to facilitate and encourage law reviews to use sexual orientation, race, and gender in selection decisions.  Josh Blackman has investigated, and written a very useful follow-up post which I hope you all will read.

My own view is that whatever the merits of law reviews giving “plus” points to authors at less prestigious schools,* providing plus points on account of race, gender, and sexual orientation is a terrible, terrible practice, especially if the plus points are awarded in an opaque manner by a largely unsupervised student board at an instrumentality of the state. Scholastica appears to take the position that it’s just giving journals what they want here.  Would it feel the same way if journals were planning to use sexual orientation and race as negative factors?  (Which, from a certain perspective, is exactly what they may be planning on doing.)

Mike Madison, writing on this topic in the fall, suggested that Scholastica is leading the charge toward a privatization of legal scholarship, with all of the associated pathologies (lack of transparency, etc.) That sounds right.  Why, again, are faculty at schools like California (Berkeley), NYU, Iowa, and USC on board with this development?

 

*This too is a bad idea, but that’s a topic for a separate post.

13

Against Scholastica

Like many of you, I’ve an article out in the Spring submission season. (More on that in a separate post later.) Let the agonizing begin! Seriously, where’s the thread?

This year, in addition to ExpressO, email, website submission, Redyip, and printed copies, we’ve a new way to deliver our articles to their ultimate masters: Scholastica. You may have learned about Scholastica when your favorite law review wrote you to inform you that they were exclusively taking submissions through that system, or when your associate dean told you that the institution would prefer not to pay pay more per submission than ExpressO for a substantially similar service.

Here are some key things you might not know:

  1. As far as I can tell only two of the top fifty journals – NYU and Iowa – are exclusive to Scholastica. “Exclusive” for other journals appears to mean “we’d prefer.”
  2. Scholastica is very  hostile to the currently way that legal scholarship is selected — they push double-blind peer review and don’t very much like student editing. This isn’t surprising, because as far as I can tell, none of the developers went to law school, served on a law review, or writes for legal audiences. They are, respectively, a sociology graduate student, a former historian, and a political scientist. There are many things one could say in defense of our current multiple-submission, student-selection, system. None appear on the Scholastica page.
  3. Scholastica asks for your sexual orientation and other demographic information (include a free-form place to talk about “additional comments that demonstrate diversity”) and then provides that information to each submitting journals that request it. Apparently the theory is that journals will want to take identity politics into account when making selection decisions. [For more, see blackman's post on this topic, which I hadn't seen before writing this.]
  4. Did I mention that Scholastica is more expensive that ExpressO and infinitely more expensive than emailing the journal directly?

I think Scholastica might be a good deal for journals – it takes care of publishing problems, and it will significantly reduce the flow of submissions. I can also see why graduate students from other disciplines would find our tiny corner of the world to be odd.  But I don’t see why anyone would ever submit through their system unless absolutely forced to, especially when they appear determined to import some unattractive aspects of other disciplines into legal academic publishing, which is already quite ugly.

What I don’t particularly understand is why faculty of the institutions running law reviews which are now exclusive to Scholastica are permitting this radical turn, which almost certainly will result in more concentration of prestige publication in the hands of prestige authors (who have the money to pay for multiple submissions at $5.00 each).  Er.  Reading that sentence again, I guess I understand after all.

That all said, Scholastica, please don’t lose my submission to NYU! I’ve never even gotten a rejection from those folks – maybe this year you can gin one up?

6

Pick up the Phone!

From Redstone Federal Credit Union’s credit card agreement:

“Collection. If your Account should become past due, or otherwise in default, you will accept telephone calls from us regarding collection of your Account. You understand that the calls may be automatically dialed and a recorded message may be played. You agree that such calls shall not be “unsolicited” calls for the purpose of state or federal law.”

Translation: screening us is breach of contract!