(1) The atmosphere should be genuinely conversational. That means that most of the time–and not just a few minutes at the end of a 90-minute panel–should be filled by discussion/Q&A that is open to everyone in [...]]]> Like most academics, I attend conferences fairly often, and enjoy some of them more than others. I wanted to share a few thoughts on format features that tend to make conferences a better experience from my perspective, and to invite commenters to share their views. I have enjoyed conferences that follow a variety of different formats, and I think format diversity is good, for reasons discussed below. Still, there are a few features that I tend to prefer and would like to see more often:

(1) The atmosphere should be genuinely conversational. That means that most of the time–and not just a few minutes at the end of a 90-minute panel–should be filled by discussion/Q&A that is open to everyone in the room. (I admit to hypocrisy here–when participating on panels, I often push whatever time limit I’m given. A note to moderators of any future panel that I’m on: Feel free to tell me to shut up sooner!)

(2) Assuming the conference centers on presentation of papers, there should ideally be an expectation, or at least a strong recommendation, that everyone in the room have read those papers. This facilitates goal (1), because the speakers can then talk for much less time or even cut out the intro talk entirely. It also increases the quality of the conversation, and means that speakers are more likely to get useful feedback.

(3) Participants should be given a reasonable chance to get to know one another, which generally means the conference should be pretty small in size and there should be social meals that don’t center on a presentation by a speaker. This makes conferences (a) more fun and (b) more valuable in terms of getting to know colleagues with whom you might collaborate in the future.

These goals are interrelated and generally favor similar kinds of conferences. In particular, I really like small conferences that consist of a series of workshops each focusing on a single paper, rather than panels. With panels, more time will necessarily be occupied by intro talks rather than discussion, and it is less realistic to expect everyone to have read the papers if they’re going to four panels each day with three speakers each. I am especially averse to panels that are held in front of enormous audiences in hotel ballrooms–when the room is smaller, it’s more likely that a real conversation will ensue. Another interesting format that I’ve enjoyed is the one used by the Constitutional Law Schmooze at Maryland: in each session, several people speak for no more than a few minutes each, serving basically as a conversation-starter, and thereafter each person who offers a comment is responsible for calling on the next person. The conversation thus proceeds in pleasantly disorderly fashion around the room, rather than always going back to the speaker/panelists after each question or comment as a normal Q&A would.

Of course, some of what makes a conference enjoyable is its subject matter and what speakers are invited–if the substance is interesting enough and the speakers dynamic and provocative, even panel presentations in crowded ballrooms can be worth attending. Also, I can see reasons that particular conferences might prefer to depart from some or all of the suggestions, and reasons that it’s good not all academic conferences look alike. If a conference is smaller, obviously that means that fewer people can enjoy and learn from it, and speakers gain something from sharing their ideas with more people. Some attendees might like panels, rather than workshops, because they enable them to basically browse a wider range of new ideas without committing as much time to each of them. Some conferences should be open to students, practitioners, and/or members of the public who might not have time to commit to reading a bunch of papers ahead of time. And there might be something to be said for having more or less everyone in a given field gather somewhere once a year–it could be a way of getting big, field-shaking conversations started. (If people aren’t dozing off in the back of the ballroom, that is!)

So I’m not arguing for uniformity–but I do wonder if there’s demand out there for more conferences of the smaller, more workshoppy sort. Commenters, what do you think? And has anyone attended a conference with a particularly innovative format that’s worth copying?

“This is a time for reflection, not retribution. I respect the strong views and emotions that [...]]]> On Thursday, the Obama administration released several of OLC’s notorious, but previously classified, memos on so-called enhanced interrogation techniques. President Obama made a statement decrying the techniques at issue but offering assurance to “those who carried out their duties relying in good faith upon legal advice from the Department of Justice that they will not be subject to prosecution.” This promise appears to be directed at the CIA interrogators themselves, not at the lawyers who drafted the memos or the policymakers who ultimately called the shots. Still, a passage near the end of Obama’s statement suggests that the administration’s not planning to charge anybody, period. He stated:

“This is a time for reflection, not retribution. I respect the strong views and emotions that these issues evoke. We have been through a dark and painful chapter in our history. But at a time of great challenges and disturbing disunity, nothing will be gained by spending our time and energy laying blame for the past. Our national greatness is embedded in America’s ability to right its course in concert with our core values, and to move forward with confidence. That is why we must resist the forces that divide us, and instead come together on behalf of our common future.”

This is a poetic passage, but is it right? The United States is party to a treaty (the Convention Against Torture ) that unambiguously requires it to take suspected torturers (or those complicit in torture) into custody and either extradite them or “submit the case to its competent authorities for the purpose of prosecution.” Now, Obama did not use the word “torture” in his statement, which was surely not an accidental omission—but his AG did explicitly state that waterboarding was torture in his confirmation hearings, and Obama presumably condemned these memos because he disagrees with their legal conclusion that none of the disputed techniques constituted torture. Let’s assume arguendo, then, that torture took place.

If this is so, then it seems to me that the United States has a clear treaty obligation to do precisely what Obama dismisses as a waste of time: lay blame for the past, and look for retribution. That is what obligatory-prosecution treaties are for—they aim to end impunity for international crimes by requiring governments to look backward, and demand accountability, even when they would rather not do so. I am not suggesting that the Convention requires every individual associated with torture to be prosecuted regardless of the circumstances. It states that upon investigation, the “authorities shall take their decision in the same manner as in the case of any ordinary offence of a serious nature under the law of that State,” which seems to allow some room for the ordinary exercise of prosecutorial discretion. DOJ might reasonably decide that some of the people involved with the policy aren’t legally responsible under the criminal implementing legislation. Or it could choose to focus enforcement resources on those it deems the most responsible for the policy, and exclude the interrogators themselves. Or it could decide that it simply couldn’t win cases against interrogators—that no U.S. jury would convict a defendant who had been acting on orders and on DOJ legal advice when the chief witness for the prosecution is a senior al Qaeda operative. But Obama didn’t make those arguments—instead, his argument was simply “Time to move on.” And that seems to me to be the one argument that the Convention bars us from making.

All that said, I have considerable sympathy for the position that Obama is in and even for the “time to move on” argument. Because I teach and write about international criminal law, quite a few people have asked me in the past few months whether I think Obama should pursue torture prosecutions, and my response has often begun with some variation of “Ugh.” On the one hand I have the international lawyer reaction, which is yes, of course (assuming the evidence is there to support prosecutions). But on the other hand I have the gut reaction, the practical reaction of somebody who generally supports President Obama and his policy agenda and wants him to succeed. That side of me says ugh, what a political nightmare that would be—there goes health care, etc., and is it really worth it?

As a general matter, while I hope that the push toward effective enforcement of international criminal law will continue and believe that domestic courts should be the front-line enforcers, I’m not really a supporter of the idea of imposing on states an absolute obligation to prosecute past international crimes. In some situations, there may be really compelling reasons not to do so. Not every society is the same; sometimes victims of international crimes would rather have peace than justice, for instance, and it is facile to suggest that the two always go hand in hand. Amnesties can sometimes help to bring an end to wars. Fragile new governments could be destabilized by an attempt to target former leaders, exposing citizens to renewed atrocities. My gut “ugh” reaction to the idea of prosecutions in the U.S. gives me renewed appreciation of the difficult dilemmas faced by transitional governments who are trying to do the best they can for their people.

When it comes to our dilemma, though, I don’t think “ugh” is ultimately a compelling argument. The United States is not a struggling transitional state, nor a war-torn nation trying to broker a peace deal with rebels. We have not experienced an overthrow of a regime, but a peaceful change of administration. Obama is the popular president of the world’s richest and most powerful nation and its oldest democracy. Taking on a few controversial prosecutions will not rend our Union–indeed, most Americans oppose torture and it is certainly possible that a criminal process (or at least a serious criminal investigation), carried out fairly and targeting those most responsible, might strengthen that consensus. And while the President is right that the country faces great challenges at this time, I think that in one important way pursuing these cases might help us to meet those challenges. The rest of the world cares about this stuff, and we need to earn back the trust of the rest of the world. We have made an unambiguous treaty commitment, and Obama ran for president in part on a promise to do his best to restore U.S. moral standing in the world by taking our international legal commitments seriously. I have to swallow hard saying it, but I would like to see that promise filled.

If you said “none,” you’re right. The highest-ranked woman was Lynn Stout at #58. I went on to look at the top 1000 authors on the list. SSRN lists 100 authors per page, so I just counted the women on each of the first 10 pages. The results: a total of five women in the top 100, 13 in the next 100, 8 in the [...]]]> A few weeks ago, out of idle curiosity, I clicked on the SSRN “Top Law Authors” list . The list ranks authors by “total new downloads” of all of their pieces. I was surprised, in one respect, by what I saw. How many women would you expect to find in the top 50?

If you said “none,” you’re right. The highest-ranked woman was Lynn Stout at #58. I went on to look at the top 1000 authors on the list. SSRN lists 100 authors per page, so I just counted the women on each of the first 10 pages. The results: a total of five women in the top 100, 13 in the next 100, 8 in the third 100, 19 in the fourth 100, 30 in the fifth, 29 in the sixth, 24 in the seventh, 16 in the eighth, 33 in the ninth, and 28 in the tenth.

Note that this list has been updated since I did that count, so if you click on the link you’ll see somewhat different results (based on a glance, it seems that the top woman is now Roberta Romano at 59). Also, this was a pretty quick and unscientific review, and my coding method was no doubt error-prone. If I did not know the author, I went by first name, and only looked up the author if the first name was unfamiliar or in common use for both men and women. Still, I doubt that my count is very far off. And for what it’s worth, I just did a search to see if anybody had blogged on this subject before, and found this post on citations of women–see the comment by Jason Mazzone, who also looked at the top-100 list last August and found only five women then as well.

Women are also significantly underrepresented in “most cited” lists , so perhaps I shouldn’t be surprised. But I didn’t expect the disparity on SSRN to be quite so stark, especially on the “new downloads” lists. First, “most cited” lists heavily favor older authors because those authors have generally produced more total work to be cited—for instance, on the (all-male) top-ten list compiled by Brian Leiter, the top 5 range in age from 56 to 78, while two scholars in their 40s crack the next 5. Because women have become increasingly better represented in legal academia over time, lists favoring older authors should be more male-dominated than legal academia as a whole. In contrast, SSRN (especially the “new downloads” ranking) lacks this bias. If anything, it favors younger authors —those of us who, while not quite young enough to be “digital natives,” are at least highly assimilated immigrants in Internetland.

The significant increase in female representation after the first few pages suggests that the reason can’t be that women don’t post on SSRN—women may be underrepresented on SSRN (just as in legal academia generally), but not that underrepresented. So what’s the explanation? I can think of three possibilities:

(1) SSRN plays a bigger role in fields in which women are most underrepresented (especially business law and law and economics). Some evidence for this theory: four of the five women who did crack the top 100 at the time of my survey write in corporate law: Lynn Stout, Roberta Romano, Alma Cohen, Jennifer Hill. Nancy Levit (feminist theory, jurisprudence) is the exception. I do not have any figures on the relative representation of women in different fields of law or the relative levels of SSRN use in each field, but I would not be surprised if the numbers support this hypothesis.

(2) Women aren’t as comfortable with self-promotion. To get a paper downloaded a lot, it helps to have bloggers link to it, and to get that to happen, many authors will have to email the bloggers. Or they’ll have to self-promote in other ways—sending links to colleagues, for instance. I think it’s plausible that, culturally, women are on average more conditioned to resist self-promotion.

(3) Downloaders are sexist. Under this theory, all other things equal, potential downloaders who see a title or abstract and an author’s name are more likely to think the piece is worth downloading if the author’s name sounds male. Again, I have no direct evidence of this—it would be interesting to run an experiment to test it. (SSRN offers the option of emailing a digest of recent postings, right? I could imagine an experiment where half the digest subscribers received an abstract by Michael McFakeauthor and the other half by Michelle, to see which got more downloads.) But studies have repeatedly shown the persistence of (mostly unconscious, I assume) sex discrimination in a wide variety of professional situations. There’s no reason to assume legal academia is immune.

No idea how much each of these factors contribute—I welcome thoughts and alternative explanations.

A final question is whether this matters. As a commenter on the Volokh Conspiracy pointed out a few years ago , SSRN download rankings are not a great way to measure an author’s ultimate impact on scholarship. As noted above, they favor some fields over others, and an article might be much downloaded but little cited. Still, it seems intuitively obvious that SSRN downloads must at least be a contributing factor to an article’s ultimate impact—SSRN is one important way of getting ideas into circulation, faster than the publication process and reaching a somewhat different audience. Also, I’ve heard rumors that some law review editors look at SSRN downloads as a proxy for scholarly interest in the idea, which means that the download count might affect placement. And I imagine that authors’ careers could be helped, at least to some degree, by the increased exposure independent of its connection to the ultimate citation count. So I think if you care about improving gender balance in legal academia, the issue of representation on SSRN, while not the most important factor, is at least worth considering.

–Many critics of judicial decisions promoting same-sex marriage had previously focused their complaints on courts’ “activist” interpretation of state constitutions or their circumvention of popular will. Will those critics support or at least accept this development in Vermont? (My guess is that some will, because some are sincere in their preference for major social change to come through the democratic process–but for many others the process arguments are fig leaves, covering antipathy toward same-sex marriage itself.)

–What lessons will historians draw concerning the ability of courts to promote social change? As readers [...]]]> Quick follow-up to Friday’s post: Vermont just became the first state to adopt same-sex marriage by legislative vote, with an override of the governor’s veto. A couple of questions for commenters:

–Many critics of judicial decisions promoting same-sex marriage had previously focused their complaints on courts’ “activist” interpretation of state constitutions or their circumvention of popular will. Will those critics support or at least accept this development in Vermont? (My guess is that some will, because some are sincere in their preference for major social change to come through the democratic process–but for many others the process arguments are fig leaves, covering antipathy toward same-sex marriage itself.)

–What lessons will historians draw concerning the ability of courts to promote social change? As readers no doubt remember, Vermont’s supreme court issued a landmark decision nearly ten years ago requiring reform of the marriage law, but holding that civil unions were a constitutionally permissible alternative to marriage. The legislature at that time chose civil unions, but over the course of the past decade, apparently, social norms in Vermont have shifted. Can the judicial decision be credited with triggering that shift, by starting a statewide (indeed, nationwide) conversation? If so, was the court’s deference to the legislature in selecting the remedy wise from the perspective of promoting lasting social change? Or could a similar result have been reached if the court had just gone the whole distance on its own, as in Massachusetts or Connecticut–or California, where chances are good, considering demographics and changing attitudes, that it won’t take ten years for the people to reinstate the rule adopted by the high court? (Of course, these comparisons are complicated by the fact that Vermont’s decision came considerably earlier in our national conversation about this issue. In 1999, the main precedent for the Vermont court to consider was what had happened in Hawaii, where voters had amended the state constitution following a court decision that had taken a big step toward legalizing same-sex marriage.)

UPDATE: Also today, the city council of Washington, DC voted unanimously to recognize same-sex marriages performed in other states. It’s been an eventful few days on this front!

A brief summary, in case you don’t have time to read 65 pages: The Court holds that intermediate scrutiny is appropriate because (a) gays and lesbians have long been victims of invidious discrimination, (b) sexual orientation is unrelated to ability to contribute to society, and (c) sexual orientation [...]]]> The Iowa Supreme Court today unanimously struck down the state’s marriage law as a violation of the Iowa equal protection clause. I don’t have much to add to the well-reasoned opinion, but just wanted to call it to the attention of anyone who missed it, as it is currently buried in scrolldown-required small print at the New York Times and Washington Post websites. (Seriously, I know this isn’t the first state, but isn’t this still newsworthy?)

A brief summary, in case you don’t have time to read 65 pages: The Court holds that intermediate scrutiny is appropriate because (a) gays and lesbians have long been victims of invidious discrimination, (b) sexual orientation is unrelated to ability to contribute to society, and (c) sexual orientation is at least largely immutable. (The Court points out that it doesn’t need to find definitively that nobody can ever change his or her orientation to justify intermediate scrutiny; after all, some people change their sex.) Applying this standard, it then rejects all of the county’s proffered justifications for marriage exclusion. First, the claim that the marriage law should be upheld “to preserve the traditional definition of marriage” is tautological, and treats discrimination “as an end in itself.” Second, the claim that opposite-sex parents are better for kids has been disproven by a raft of studies, and even if it were true, marriage exclusion is a poor fit to the kid-protective aim: the law does not prevent gays and lesbians from becoming parents, and it does not exclude from marriage people who would undoubtedly make way worse parents, like straight convicted child abusers, while it does exclude gays and lesbians with no intent to raise children. Third, the related “promoting procreation” goal also lacks a substantial relationship to the law—straight people will not stop having babies because gays and lesbians can marry. Fourth, the goal of “stabilizing opposite-sex relationships” likewise has no logical relationship to excluding gays and lesbians from marriage. Finally, the goal of saving the state money in taxes and benefits could justify excluding any group from marriage, but intermediate scrutiny requires that there be a good reason to exclude this particular group and not everybody else.

Notably, this decision apparently will not result in an initiative campaign this fall. According to the New York Times story, Iowa law requires constitutional amendments to be approved by two consecutive legislative sessions, and only then approved by voters. That’s good news for marriage equality, because as demonstrated by the experience of Massachusetts (which has a similar amendment procedure), the longer same-sex marriage is in place, the more public support it gains. Given a little time, straight citizens tend to recognize that their own marriages haven’t fallen apart, nor has the sky otherwise fallen, just because other loving couples are also able to recognize their commitments through marriage.