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Category: Law School (Law Reviews)

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UCLA Law Review Volume 60 Symposium: Volume 60, Issue 6 (September 2013) and Discourse

UCLA Law Review, Volume 60 Symposium

Twenty-First Century Litigation: Pathologies and Possibilities

A Symposium in Honor of Stephen Yeazell

 

Volume 60, Issue 6 (September 2013)
Articles

Complexity, the Generation of Legal Knowledge, and the Future of Litigation Ronald J. Allen 1384
Regulation by Liability Insurance: From Auto to Lawyers Professional Liability Tom Baker & Rick Swedloff 1412
When Courts Determine Fees in a System With a Loser Pays Norm: Fee Award Denials to Winning Plaintiffs and Defendants Theodore Eisenberg, Talia Fisher, and Issi Rosen-Zvi 1452
Symmetry and Class Action Litigation Alexandra D. Lahav 1494
Atomism, Holism, and the Judicial Assessment of Evidence Jennifer L. Mnookin 1524
Altering Attention in Adjudication Jeffrey J. Rachlinski, Andrew J. Wistrich, and Chris Guthrie 1586
Wolves and Sheep, Predators and Scavengers, or Why I Left Civil Procedure (Not With a Bang, but a Whimper) D. Michael Risinger 1620
Gateways and Pathways in Civil Procedure Joanna C. Schwartz 1652
Pleading and Access to Civil Justice: A Response to Twiqbal Apologists A. Benjamin Spencer 1710
Teaching Twombly and Iqbal: Elements Analysis and the Ghost of Charles Clark Clyde Spillenger 1740
Unspoken Truths and Misaligned Interests: Political Parties and the Two Cultures of Civil Litigation Stephen C. Yeazell 1752

 

 

Volume 61, Discourse

Discourse

Re-Re-Financing Civil Litigation: How Lawyer Lending Might Remake the American Litigation Landscape, Again Nora Freeman Engstrom 110
Of Groups, Class Actions, and Social Change: Reflections on From Medieval Group Litigation to the Modern Class Action Deborah R. Hensler 126
Procedure and Society: An Essay for Steve Yeazell William B. Rubenstein 136
What Evidence Scholars Can Learn From the Work of Stephen Yeazell: History, Rulemaking, and the Lawyer’s Fundamental Conflict David Alan Sklansky 150
Procedure, Substance, and Power: Collective Litigation and Arbitration Under the Labor Law Katherine V. W. Stone 164
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ABA Task Force on Legal Education: Down with Status

aba status merceGood news for law professors now submitting articles seeking offers from high-status journals: the importance of status in American law schools is over-rated and is about to be reduced. At least that is the urging of an American Bar Association Task Force Working Paper released last Friday addressing contemporary challenges in U.S. legal education.

Obsession with status is a culprit in the woes of today’s American law schools and faculty, the Working Paper finds.  It charges law professors with pitching in to redress prevailing woes by working to reduce the role of status as a measure of personal and institutional success.  The group’s only other specific recommendation for law faculty is to become informed about the topics the 34-page Working Paper chronicles so we might help out as needed by our schoools. 

Much of the rest of the Working Paper is admirable, however, making the two specific recommendations to law faculty not only patently absurd but strange in context.   After all, the Working Paper urges reform of ABA/AALS and state regulations with a view toward increasing the variety of law schools. It calls for serious changes in the way legal education is funded, though it admits that the complex system of education finance in the U.S. is deeply and broadly problematic and well beyond the influence of a single professional task force.

The Task Force urges US News to stop counting expenditure levels as a positive factor in its rankings.  It stresses problems arising from a cost-based rather than market-based method of setting tuition. It notes a lack of business mind-sets among many in legal education.  It questions the prevailing structure of professorial tenure; degree of scholarship orientation; professors having institutional leadership roles; and, yes, faculty culture that makes status an important measure of individual and institutional success.

But amid all that, law professors have just two tasks: becoming informed and demoting status.  So there must be some hidden meaning to this idea of status as a culprit and the prescription for prawfs to reduce the importance of status as a measure of success.  I am not sure what it is. The Working Paper does not explain or illustrate the concept of status or how to reduce its importance.

I’ll to try to be concrete about what it might mean.   Given the other problems the Task Force sees with today’s law faculty culture (tenure, scholarship and leadership roles), I guess they are suggesting that faculty stop making it important whether: Read More

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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.

Read More

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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.

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Does Blind Review See Race?*

In a comment to my earlier post suggesting that law review editors should seek out work from underrepresented demographic groups, my co-blogger Dave Hoffman asked an excellent question: Would blind review remedy these concerns? It seems to me that the answer here is complicated. Blind review would probably be an improvement on balance, but could still suffer from — err, blind spots. Here are a few reasons why.

The paradigmatic case for the merits of blind review comes from a well-known study of musician hiring, published about a decade ago by Claudia Goldin and Cecilia Rouse in the American Economic Review. Goldin and Rouse gathered data on symphony auditions, and found that blind auditions — that is, ones which concealed the gender of the auditioning musician — resulted in a significantly higher proportion of women musicians auditioning successfully. As Rouse commented,

“This country’s top symphony orchestras have long been alleged to discriminate against women, and others, in hiring. Our research suggests both that there has been differential treatment of women and that blind auditions go a long way towards resolving the problem.”

The Goldin-Rouse study shows that blind review can be a useful tool in combating bias. Would a similar review system work in the law review context?

Well, maybe. Read More

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In Defense of Law Review Affirmative Action

As you may have seen, the new Scholastica submission service allows law reviews to collect demographic information from authors. A flurry of blog posts has recently cropped up in response (including some in this space); as far as I can tell, they range from negative to negative to kinda-maybe-negative to negative to still negative. The most positive post I’ve seen comes from Michelle Meyer at the Faculty Lounge, who discusses whether Scholastica’s norms are like symposium selection norms, and in the process implies that Scholastica’s model might be okay. Michael Mannheimer at Prawfs also makes a sort of lukewarm defense that editors were probably doing this anyway.

But is it really the case that law review affirmative action would be a bad thing? Read More

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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.
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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.

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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?

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Recalling Cardozo Law Review’s “Bork Book”

I never knew Robert H. Bork (1927-2012) but as a rising 3L and law review editor at Cardozo in the summer of 1987, my classmates and I met his intellectual heft and political salience. Just after President Ronald Reagan announced his nomination of Bork to be Associate Justice of the Supreme Court in late July, it was obvious that the country was headed for a passionate debate on justice writ large (e.g., abortion, antitrust, civil rights, free speech, you name it).

Sensing an opportunity to discipline the discourse, we decided to collect and publish a dozen essays and four reports assessing Judge Bork’s jurisprudence from every angle. Well-advised throughout by our professors, David Rudenstine and Monroe Price, we solicited extant or original pieces by such luminaries as Ronald Dworkin, Steve Gillers, Mary Ann Glendon and Michael McConnell, as well as reports of the White House, Public Citizen, a research group commissioned by the Senate Judiciary Committee (led by Christopher Schroeder and approved by Floyd Abrams, Clark Clifford, Walter Dellinger and Laurence Tribe) and a DOJ response thereto.

Fifty of us, new 2L staff and 3L editors, spent an intense two weeks collating and editing the contributions. Then four of us (Jim Nobile, Allen Applbaum, Jeff Stamler and me) flew to Lincoln, Nebraska, site of the leading printer of law reviews, Joe Christensen Inc.  We spent several more days and sleepless nights scrutinizing the page proofs before giving the print order. After 10,000 copies were printed, Jeff and I flew back to New York while Jim and Allen drove a rented U-Haul to Washington D.C. where the town was abuzz with debate and Senate hearings would shortly begin.

Meanwhile, back in the nation’s capital, another classmate, Barbara Braucher (who later married U.S. Attorney General Ted Olson and still later perished aboard one of the hijacked airplanes on 9/11) had been making her rounds in the Senate, where Barbara had many connections. She alerted members of the Senate Judiciary Committee, including its chairman Joe Biden, that our law review issue, addressing every important topic and viewpoint in a compact 530 pages under a single two-inch spine, was on its way.

Upon their arrival in Washington, Jim and Allen toted several boxes directly to the awaiting Senators. Standing on the steps of the Capitol when delivering the books, the New York Times interviewed our classmates about this effort.  The story (here) ran the next day, along with a cute quote from Allen and a photo of the group.

The special issue, released in early October ahead of the hearings, sold briskly at many book shops around Washington and New York that fall.  It was clear during the hearings that many Senators had read our product.  In the years after, it was even clearer that Judge Bork had, as he cited to our “Bork book” often.  The issue was volume 9, no. 1 and was a great start to our third year of law school and one of many innovative academic undertakings for which the Cardozo Law Review became known over ensuing decades.