The Stanford Law Review Online has just published a piece by Mark Lemley, David S. Levine, and David G. Post on the PROTECT IP Act and the Stop Online Piracy Act. In Don’t Break the Internet, they argue that the two bills — intended to counter online copyright and trademark infringement — “share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet’s addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression.”

They write:

These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country’s tradition of leadership in supporting the free exchange of information [...]]]>

The Stanford Law Review Online has just published a piece by Mark Lemley, David S. Levine, and David G. Post on the PROTECT IP Act and the Stop Online Piracy Act. In Don’t Break the Internet, they argue that the two bills — intended to counter online copyright and trademark infringement — “share an underlying approach and an enforcement philosophy that pose grave constitutional problems and that could have potentially disastrous consequences for the stability and security of the Internet’s addressing system, for the principle of interconnectivity that has helped drive the Internet’s extraordinary growth, and for free expression.”

They write:

These bills, and the enforcement philosophy that underlies them, represent a dramatic retreat from this country’s tradition of leadership in supporting the free exchange of information and ideas on the Internet. At a time when many foreign governments have dramatically stepped up their efforts to censor Internet communications, these bills would incorporate into U.S. law a principle more closely associated with those repressive regimes: a right to insist on the removal of content from the global Internet, regardless of where it may have originated or be located, in service of the exigencies of domestic law.

Read the full article, Don’t Break the Internet by Mark Lemley, David S. Levine, and David G. Post, at the Stanford Law Review Online.

Note: Corrected typo in first paragraph.

The Stanford Law Review Online has just published a piece by M. Ryan Calo discussing the privacy implications of drone use within the United States. In The Drone as Privacy Catalyst, Calo argues that domestic use of drones for surveillance will go forward largely unimpeded by current privacy law, but that the “visceral jolt” caused by witnessing these drones hovering above our cities might serve as a catalyst and finally “drag privacy law into the twenty-first century.”

Calo writes:

In short, drones like those in widespread military use today will tomorrow be used by police, scientists, newspapers, hobbyists, and others here at home. And privacy law will not have much to say about it. Privacy advocates will. As with previous emerging technologies, advocates will argue that drones [...]]]>

The Stanford Law Review Online has just published a piece by M. Ryan Calo discussing the privacy implications of drone use within the United States. In The Drone as Privacy Catalyst, Calo argues that domestic use of drones for surveillance will go forward largely unimpeded by current privacy law, but that the “visceral jolt” caused by witnessing these drones hovering above our cities might serve as a catalyst and finally “drag privacy law into the twenty-first century.”

Calo writes:

In short, drones like those in widespread military use today will tomorrow be used by police, scientists, newspapers, hobbyists, and others here at home. And privacy law will not have much to say about it. Privacy advocates will. As with previous emerging technologies, advocates will argue that drones threaten our dwindling individual and collective privacy. But unlike the debates of recent decades, I think these arguments will gain serious traction among courts, regulators, and the general public.

Read the full article, The Drone as Privacy Catalyst by M. Ryan Calo, at the Stanford Law Review Online.

“The Journal is edited by David Klein, of the University of Virginia’s Department of Politics, and published by the University of Chicago Press. The JLC is a double-blind peer-reviewed, single-submission journal, indexed by Lexis-Nexis, Westlaw, EBSCO, JSTOR, and others. While formally an APSA section journal, the JLC aims to be the premier outlet for the publication of work on law, courts, and things judicial from a wide range of perspectives.  More information about the journal and instructions for authors can be found here.

Submissions are being accepted now, via the journal’s Editorial Managerpage. We anticipate publication of the inaugural issue in spring 2013.”

Seems like a great forum!

In my line of work, I have seen many efforts in the political realm to shut down civil legal services for the poor, and have continually worked to combat such efforts.  In 1996, when the Gingrich Congress barred federally funded legal services lawyers from bringing class actions on behalf of the poor, I left Legal Services for the Elderly in order to finish a lawsuit on behalf of widows and widowers who were suing to compel the United States Treasury to fix its practices for replacing stolen Social Security payments.  When I later moved to the Brennan Center for Justice, I helped [...]]]> David Udell is the Executive Director of the National Center for Access to Justice and a Visiting Professor from Practice at Cardozo Law School.

In my line of work, I have seen many efforts in the political realm to shut down civil legal services for the poor, and have continually worked to combat such efforts.  In 1996, when the Gingrich Congress barred federally funded legal services lawyers from bringing class actions on behalf of the poor, I left Legal Services for the Elderly in order to finish a lawsuit on behalf of widows and widowers who were suing to compel the United States Treasury to fix its practices for replacing stolen Social Security payments.  When I later moved to the Brennan Center for Justice, I helped bring a lawsuit against the rules that barred legal services lawyers from participating in such class actions, I filed another lawsuit against similar rules that barred law school clinic students from bringing environmental justice cases in Louisiana, and I built a Justice Program at the Brennan Center dedicated to countering such attacks on the poor and on their lawyers.

In their March 3, 2011 draft report, What Difference Representation? Offers, Actual Use, and the Need for Randomization (“the Study”), authors D. James Greiner & Cassandra Wolos Pattanyak are right about the importance of developing a solid evidence base – one founded on methodologies that include randomization – to establish what works in ensuring access to justice for people with civil legal cases. They are right again that in the absence of such evidence, both the legal aid community and its critics are accustomed to relying on less solid data.  And they are smart to “caution against both over- and under-generalization of these study results.”  But, unfortunately, the bare exhortation to avoid over- and under-generalization is not sufficient in the highly politicized context of legal services.

While the authors obviously do not have any obligation to arrive at a particular result, they can be expected to recognize a need to avoid statements that have a high probability to mislead, especially in light of the likely inability of much of the Study’s audience to understand the authors’ methodology and findings.  In fact, because of the Study’s novelty and appearance in a non-scientific journal, it will be relied on to analyze situations where it doesn’t apply, and by people who have no background in social science research, plus it will be given disproportionate weight because so few comparable studies exist to judge it against.  It is these factors, in combination with the politicization of legal services, that make it crucial that the authors’ assertions, particularly in the sections most likely to be seen by lay readers (the title and the abstract), do not extend beyond what the findings justify.

So, it is a cause of concern that the Study leads with dramatic headlines and minimizes essential caveats – most significantly, omitting the authors’ own important acknowledgement that the data could not support any useful empirical conclusion about the effect of actual representation (as distinct from an offer of it).  Thus, the title still leads with the phrase “What Difference Representation?,” while the abstract declares the findings “unexpected” and then goes on to state:

• “a service provider’s offer of representation to a claimant had no statistically significant effect on the claimant’s probability of a victory.”
• “the offer of representation inflicted a harm upon such claimants [. . .] with no discernible increase in the probability of a favorable outcome.”
• “within the limits of statistical uncertainty, these claimants would have been better off without the offer of representation.”

By leading with the question “What Difference Representation,” and by employing alarming phrases such as “no … effect,” “inflicted harm,” and “better off without an offer of representation,” the title and abstract guide readers to conclusions that reach beyond the underlying data.  The abstract offers caveats, but only in the form of opaque technical phrases such as “statistically significant,” “no discernible increase in the probability,” and “statistical uncertainty.”  This is an approach that invites misuse.

I do not exaggerate the risk.  An overview of the politics surrounding the federally funded Legal Services Corporation (LSC)), published just two weeks ago in the National Law Journal, describes recurring efforts to defund the nation’s flagship legal services institution.  One piece carries the title, “For LSC, a 30-year funding rollercoaster; Throughout most of its history, the agency has been a political football, periodically the target of massive cuts.”  Another leads with, “Looking for allies in Congress, and finding few.”  Indeed, for decades, we have seen the legal services community compelled to respond to allegations that on investigation prove trumped up or spurious.  A recent example is Disappointing Reporting on Legal Services, in which the Legal Aid Society of the District of Columbia undertakes to rebut an “exposé” circulated on the internet that falsely sought to tar all legal services programs based on a single instance involving a single employee’s misconduct.

But, more specifically, in a Brief submitted this past month to the United States Supreme Court, opponents of legal services cited the “What Difference” study for the proposition that legal representation doesn’t matter, urging “A recent randomized, controlled Harvard study of simple, nonjury litigation found no significant difference in success rates between litigants who were offered legal representation and those who were not.”   In its haste to attack legal representation, the Brief omits to mention that the Study:  i) contains no empirically useful finding regarding the efficacy of actual representation (as distinct from offers of representation), ii) examined administrative advocacy, not court litigation, and, iii) evaluated law students, not lawyers.  Nor does the Brief mention that (as described in greater detail below):  i) the control group for the Study included many people (apparently 49% of the group) who ultimately  received actual representation from “other service providers,” ii) those “other service providers” presumably possessed greater experience and greater training than the law students, and iii) the Study included cases without regard to whether representation was expected to make a difference in their outcomes.  Finally, the Brief omits to mention the Study’s explicit admission that “It would be a mistake to over-generalize the results of our study to conclude that offering free legal assistance is not worth the cost or time, or even that offers of representation make no difference in Massachusetts first-level appeals.”  Study at 47.

But, the Study’s presentation isn’t likely to confuse only the enemies of legal services.  Even as esteemed a thought leader as Ian Ayres omits mention of some the Study’s limitations in an essay he published this past winter, Iatrogenic Legal Assistance, in the on-line forum, Freakonomics.  Describing the Study’s primary finding as “The claimants who were offered representation were no more (or less) likely to win their administrative appeal,” Ayres (who flagged several of the Study’s limitations, including a concern about the small size of the pool of subjects) does not include the authors’ acknowledgment that the Study failed to make any empirically useful finding that actual representation (as distinct from offers of representation) has any effect on a claimant’s probability of a win.  He also makes no mention of the fact that the “other service providers” who represented members of the control group should be presumed to possess deeper experience and training than the law students.  Nor does he mention that the Study included cases without regard to whether representation would be expected to make a difference in their outcomes.  Like the authors of the Supreme Court Brief, Ayres also does not mention the Study’s acknowledgment, that “It would be a mistake to over-generalize the results of our Study to conclude that offering free legal assistance is not worth the cost or time, or even that offers of representation make no difference in Massachusetts first-level appeals.”

Although many of the Study’s limitations were omitted from the Supreme Court Brief and from the Ayres essay, and although virtually all of them are omitted from the Study’s abstract, for the most part they are articulated in the body of the Study:

1. The “mixed control group” problem – Contrary to what is implied by the abstract, the Study compared outcomes obtained by members of a “treatment group,” who received offers of representation from HLAB law students, to outcomes obtained by members of a “control group,” 49% of whom obtained offers of representation (and, actual representation) elsewhere (from advocates with presumably greater experience and greater training, see discussion below), and 51% of whom obtained no offers (and, no representation).  The fact that 49% of the members of the control group received representation potentially upwardly biases how well the control group did (as if in a medical trial, ensuring that 49% of the control group took the same medicine administered to the treatment group), thereby making the impact of HLAB offers of representation more difficult to discern in relation to the full control group.  Indeed, some members of the unrepresented 51% portion of the control group may also have received certain limited forms of legal help, such as “legal advice” or “brief assistance,” further upwardly biasing the performance of the control group.  The Study acknowledges the mixed control group issue (see, e.g., pp. 11, 41), but rejects, as “implausible,” the theory that it prevented  detection of the impact of the HLAB offers of representation (see p. 45).  In fact, the authors’ assertion of implausibility appears unwarranted in light of the “experience  gap” problem (discussed in greater detail below).  But, regardless of whether the authors are persuaded (or not persuaded) that the presence of represented persons in the control group upwardly skewed the results, the abstract should let readers know the facts. To prevent readers from being misled about what was studied, the authors should simply modify the abstract to make clear that:  “the HLAB law student service provider’s offer of representation to a claimant had no statistically significant effect on the claimant’s probability of a victory when compared to a control group in which 49% of the members received representation from other service providers and in which the remainder of the members may have received other forms of assistance.”
2. The experience gap problem – The abstract omits all mention of the experience gap that exists between the HLAB students and the “other service providers” who represented members of the control group.  Although the Study explicitly rejects, as “implausible,” the notion that the HLAB “lawyering” was “low quality,” (see p. 45), “low quality” isn’t the relevant issue.  Rather, the Study fails to acknowledge that the “other service providers” who represented 49% of the members of the control group presumably possessed greater experience and greater training than the HLAB students (some of whom were handling their first case), and that this discrepancy with respect to experience and training may have upwardly biased the performance of the control group, with respect to both the possibility of a clamant obtaining a favorable outcome and the speed with which a favorable outcome is obtained.  This experience gap may thus be expected to conceal the effectiveness of the HLAB students’ performance while highlighting any delay caused by the HLAB students’ performance. To prevent readers from being misled about what was studied, the authors should modify the abstract to make clear that “the HLAB law student service provider’s offer of representation to a claimant had no statistically significant effect on the claimant’s probability of a victory in a study in which a portion of the control group (49%) received representation from other service providers who should be presumed to possess greater experience and training than the HLAB law students, and in which the remainder of the members may have received other forms of assistance.”
3. The “screening for merit” problem – Another limitation that is missing  from the abstract is that subjects were selected for inclusion in the Study without regard to whether advocacy would be expected to make a difference in the probability of their obtaining a victory. The authors describe this problem as worthy of further inquiry (which they are pursuing) and explicitly acknowledge that:  “One might object, however, that [the current study’s] design cannot capture the effect of representation because one of the tasks attorneys, particularly legal aid attorneys, perform is to choose which cases will benefit from representation, and the randomizer prevents them from exercising their judgment in this manner.”  Study at 72.  To prevent readers from being misled about what was studied, the authors should modify the abstract to make clear that:  “Subjects were included in the Study without investigation as to whether their cases could benefit from representation by an advocate.”
4. The “what is statistically significant” problem – The abstract relies on technical concepts of statistical significance, statistical uncertainty, and discernibility, but contains no definition of these concepts, thereby giving no clue to the lay reader to counteract the abstract’s direct message that a service provider’s offer of representation is ineffective, harmful, and necessary to avoid.  It is therefore interesting to see, deeper in the Study, the following clarification:

This finding [of “no statistically significant effect on the probability that a claimant would prevail”] does not mean that we know that the HLAB offer had no positive effect on a claimant’s probability of success; we can say, however, that the [sic] any such effect is unlikely to be very large (or the data probably would have shown it).

Study, at 8; see also Study at 45 (repeating clarification). Moreover, the Study explicitly acknowledges that the data are “useless” with respect to the question of whether HLAB “actual representations” increase a claimant’s probability of a victory (as distinct from HLAB “offers”).  See Study, at 43.  The Study also explicitly acknowledges, as noted above, that “It would be a mistake to overgeneralize the results of our study to conclude that offering free legal assistance is not worth the cost or time, or even that offers of representation make no difference in Massachusetts first-level appeals.”  Study at 47.  To prevent readers from being misled about the Study’s findings, the authors should modify the abstract to  make clear that:  “The Study does not find ‘that the HLAB offer had no positive effect’ or ‘that offers of representation make no difference,’ nor does it contain any useful findings regarding the possible effect of actual representation.”

As I hope is evident, I direct my comments primarily to issues concerning the accuracy of the presentation of the authors’ findings in the title and in the abstract, and leave issues concerning the accuracy of the findings themselves to the empirical experts in this on-line symposium.  I commend the authors for tackling very important questions, highlighting randomization methodology, acknowledging limitations on their findings, and urging readers neither to over-or under-generalize their findings.  But in light of the politicization of legal services, and as the Brief and the Ayres column make plain, readers will tend to overlook the Study’s limitations, including those acknowledged by the authors themselves in the body of the Study.  Of course the authors are not entirely accountable for choices others may make about how to use their Study.  But, nor would it be responsible for the authors to decline to take easy corrective steps to ensure that their title and abstract describe the Study for what it is rather than for what it is not.  One subject is beyond dispute:  “What Difference Representation?” poses a more challenging problem than “What Difference Presentation?”

 The workshop will take place at GW on April 1 and 2, 2011.  We are delighted by the submissions, congratulate those chosen, and stress that making the selections was difficult because of the volume of amazing papers.  We encourage everyone interested to attend and look forward to the weekend.

Adam Leviton (Georgetown), In Defense of Bailouts [George Geis (Virginia) & Art Wilmarth (GW)]

Jodie Kirshner (Cambridge), A Transatlantic Perspective on Regional Dynamics and Societa Eurpoea [Francesca Bignami (GW) & Theresa Gabaldon (GW)]

Alan [...]]]> Thanks to my colleague, Lisa Fairfax, GW has finalized the program for this year’s Junior Faculty Business and Financial Law Workshop and Prize (detailed here).   Of the more than 100 papers submitted, the following dozen presenters were chosen.  [Commentators appear in brackets; I've shortened some paper titles.]  

 The workshop will take place at GW on April 1 and 2, 2011.  We are delighted by the submissions, congratulate those chosen, and stress that making the selections was difficult because of the volume of amazing papers.  We encourage everyone interested to attend and look forward to the weekend.

Adam Leviton (Georgetown), In Defense of Bailouts [George Geis (Virginia) & Art Wilmarth (GW)]

Jodie Kirshner (Cambridge), A Transatlantic Perspective on Regional Dynamics and Societa Eurpoea [Francesca Bignami (GW) & Theresa Gabaldon (GW)]

Alan White (Valparaiso), Welfare Economics and Regulation of Small-Loan Credit: Lessons from Microlending in Developing Nations [Michael Pagano (Villanova) & Lawrence Mitchell (GW)]

Nicola Sharpe (Illinois), Corporate Board Performance and Organizational Strategy [Deborah Demott (Duke) & Michael Abramowicz (GW)]

Julie Hill (Houston), The Rise of Ad Hoc Bank Capital Requirements [Anna Gelpern (American) & John Buchman (E*Trade Bank & GW Adjunct)]

Michael Simkovic (Seton Hall), The Effects of Ownership and Stock Liquidity on the Timing of Repurchase Transactions [Richard Booth (Villanova) & Henry Butler (Mason)]

Michelle Harner (Maryland), Activist Distressed Debtors [Donna Nagy (Indiana Bloomington) & Lisa Fairfax (GW)]

Saule Omarova (UNC), The Federal Reserve Board’s Use of Exemptive Power [Patricia McCoy (Connecticut) & Arthur Wilmarth (GW)]

Heather Hughes (American), Suburban Sprawl, Finance Law and Environmental Harm [Scott Kieff (GW) & Lawrence Cunningham (GW)]

Robert Jackson (Columbia), Private Equity and Executive Compensation [Norman Veasey (Weil Gotshal) & William Bratton (Penn)]

Brian Quinn (BC), Putting Your Money Where Your Mouth Is: Post Closing Price Adjustments in Merger Agreements? [Gordon Smith (BYU) & John Pollack (Schulte Roth)]

Mehrsa Baradaran (BYU), Reconsidering Wal-Mart’s Bank [Heidi Schooner (Catholic) & Renee Jones (BC)]

This is one of many events sponsored by GW’s Center for Law, Economics and Finance.

Articles

How International Financial Law Works (and How It Doesn’t)

Chris Brummer

The Origins of the Privileges or Immunities Clause, Part II: John Bingham and the Second Draft of the Fourteenth Amendment

Kurt T. Lash

In Defense of Bailouts

Adam J. Levitin

Explaining Plurality Decisions

James F. Spriggs II & David R. Stras

Notes

The Barracuda Lacuna: Music, Political Campaigns, and the First Amendment

Sarah Schacter

Don’t Tell Mom the Babysitter’s Dead: Arguments for a Federal Parent–Child Privilege and a Proposal To Amend Article V

Catherine Chiantella Stern

Masters of Their Own Eminent Domain: The Case for a Reliance Interest Associated with Economic Development Takings

David S. Yellin

Articles

The Coercion of Trafficked Workers Kathleen Kim

IP Misuse as Foreclosure Christina Bohannan

Consent to Retaliation: A Civil Recourse Theory of Contractual Liability Nathan B. Oman

Automation and the Fourth Amendment Matthew Tokson

Essay

No Middle Ground? Reflections on the Citizens United Decision Randall P. Bezanson

Notes

(Potentially) Resolving the Ever-Present Debate over Whether Noncitizens in Removal Proceedings Have a Due-Process Right to Effective Assistance of Counsel Walter S. Gindin

Princo, Patent Pools, and the Risk of Foreclosure: A Framework for Assessing Misuse Phillip W. Goter

Holden Caulfield Grows Up: Salinger v. Colting, the Promotion-of-Progress Requirement, and Market Failure in a Derivative-Works Regime John M. Newman

Is Senator Grassley Our Savior?: The Crusade Against “Charitable” Hospitals Attacking Patients for Unpaid Bills Amanda W. Thai

My own impulse is to treat colleagues and outside readers just like any other source, and to drop footnotes indicating their specific contributions. If someone gives me an idea that I would have footnoted had it been a published source, it seems that the person should get credit in precisely the same way—that is, at the spot in the article where the idea appears. [...]]]> An Andy Rooney-esque musing to close out the week: Why do we tend to acknowledge useful feedback from colleagues in a single “thank you” footnote at the beginning of an article, instead of at specific points throughout? The former seems to be the preferred practice, but the latter seems more appropriate in many cases, and I’m not sure why it’s so rare.

My own impulse is to treat colleagues and outside readers just like any other source, and to drop footnotes indicating their specific contributions. If someone gives me an idea that I would have footnoted had it been a published source, it seems that the person should get credit in precisely the same way—that is, at the spot in the article where the idea appears. And while my impressions are admittedly totally unscientific, it seems to me that such footnotes (i.e., “Many thanks to X for bringing this point to my attention.”) are pretty rare.

Maybe the single “thank you” footnote ensures that all the people who contributed to the article will have their names noted by casual readers, who are unlikely to scan any footnotes beyond the first. Or if the purpose of footnotes isn’t so much to give credit as it is to help interested readers pursue their own research, maybe it’s less troubling when a human source goes uncited, since readers are presumably unlikely to follow up with individual people directly. Or perhaps most feedback from colleagues and outside readers is not specific enough to be attributed to any one part of an article.

All of those strike me as plausible explanations, though I’m not sure any of them accurately explains why authors do things the way they do.

Columbia Law Review, Volume 110 Issue 8 (Dec 2010)

Articles

Regulating Polygamy: Intimacy, Default Rules, and Bargaining for Equality

Adrienne D. Davis

Judicial Elections as Popular Constitutionalism

David E. Pozen

Notes

Opening Doors to Fair Housing: Enforcing the Affirmatively Further Provision of the Fair Housing Act Through 42 U.S.C. § 1983

The “Foreign Private Adviser” Exemption:  A Potential Gap in the New Systemic Risk Regulatory Architecture

Essay

Do U.S. Courts Discriminate Against Treaties?  Equivalence, Duality, and Non-Self-Execution

David H. Moore

According to this measure, the  following are the top-25 student-edited general interest law reviews published in the United States.   The list looks congruent with my sense of generally accepted understandings among law faculty of law review standings.  At first it may make one wonder whether tools like this are useful because they verify knowledge or useless because they don’t tell us anything new.   But, on second thought, people new to this profession may neither know nor want to ask. 

1. Harvard  Law Review

2. Yale  Law Journal

3.  Stanford Law [...]]]> The latest way to measure scholarly influence is the eigenfactor, a term to describe various algorithms used to quantify aspects of knowledge.  The linked web site enables people to find top lists using assorted measures, including the top law reviews using article influence proxied by citation histories. 

According to this measure, the  following are the top-25 student-edited general interest law reviews published in the United States.   The list looks congruent with my sense of generally accepted understandings among law faculty of law review standings.  At first it may make one wonder whether tools like this are useful because they verify knowledge or useless because they don’t tell us anything new.   But, on second thought, people new to this profession may neither know nor want to ask. 

1. Harvard  Law Review

2. Yale  Law Journal

3.  Stanford Law Review

4. Columbia Law Review

5. NYU Law Review

6. Virginia Law Review

7.  Texas Law Review

8. Michigan Law Review

9.  California Law Review

10.  Penn Law Review

11.  Chicago Law Review

12.  UCLA Law Review

13.  Northwestern Law Review

14.  Duke Law Journal

15.  Minnesota Law Review

16. Cornell Law Review

17.  Georgetown Law Journal

18.  Vanderbilt Law Review

19.  George Washington University Law Review

20. Notre Dame Law Review

21. Iowa Law Review

22. Indiana Law Journal

23.  Illinois Law Review

24. Boston University Law Review

25.  University of Southern California Law Review

Eigenfactor’s linked list also included faculty-edited and subject-limited reviews.  Among those appearing within the top 25 overall were: Journal of Legal Studies (5); Law & Society Review (15);  Harvard International Law Journal (22); and Harvard Civil Rights-Civil Liberties Law Review (23).  The link also enables using an alternative scoring system, which mostly only slightly reorders the foregoing list, though also adds, bizarrely, periodicals like Fortune and the New Republic, as well as one additional journal, Fordham Law Review.

Update: To find these results at the linked site, select the word Law from the “Eigenfactor subject category” drop-down menu then click search.  These results are for 2008, the latest available today.

That may be true, but here is a somewhat more charitable reading: from the point of view of the submitting authors Law Reviews offer authors a relatively undifferentiated product and thus we gravitate to the main axis of differentiation – law school/journal rank. I say “from the point of [...]]]> Ok that’s actually a rip-off of the gimmicky slogan of “Lending Tree,” but I have been thinking recently (as many do at this time of year) about the law review submission process. In particular, I have been thinking about the expedite element, and why it happens. One answer is that we are all prestige-whores (er..lovers) and that the only thing we value is the rank of the school where the law review is housed.

That may be true, but here is a somewhat more charitable reading: from the point of view of the submitting authors Law Reviews offer authors a relatively undifferentiated product and thus we gravitate to the main axis of differentiation – law school/journal rank. I say “from the point of view of the submitting authors” advisedly, because there are many axes on which law reviews differ. Even in my short time as an academic, the reviews I have worked with have varied significantly as to the quality of substantive comments, the likelihood they would stick on timeline, whether they use track changes to make it easy to review their alterations, etc. The problem is that these are all things I have only discovered AFTER working with them.

This is in some ways similar to health care purchasing by an individual consumer – quality is opaque, and gathering the necessary information would be too costly to do on my own (there is a further problem with health care that even when information is available such as report cards for hospitals created by state agencies, as I discuss here, many patients tend to ignore them and/or privilege word of mouth appraisals). Further, there is an additional inter-temporal problem in that each law review’s board (and thus quality) and policies changes on a regular basis such that information becomes stale quite quickly. Even in an institutional-memory-obsessed journal like the Harvard Law Review with a long tradition, there is a period called “transition” when the 2Ls take the reigns and as a body can change many of the facets of the reviews process, including things like the number of stages of editing, etc.

Is this problem intractable? Yes, and no. Law reviews could advertise and contractually commit themselves to particular types of terms as soon as the submission season starts – for example, issues will come out within one month of issue date, to give one example.  (I put to one side other kinds of differentiation – for example accepting longer articles when other journals do not, since that will change at most to whom one submits, and even then most of us are risk-averse enough to be likely to shorten our papers to fall within the guidelines of the larger number of journals). True, it is very very unlikely that any of us would sue a law review over the failure to meet that term of publication date, but even the promise itself might be enough to satisfy us and set up a more desirable norm. Are there enough of these kinds of terms on which journals could compete that would counterbalance the incentive to merely pick the best ranked journals? I am not sure, it seems plausible it might matter within rough journal peer groups, but I would be curious if others have ideas of what kinds of terms they would like to see law reviews compete or converge on? Indeed perhaps some enterprising law review editors may be reading this very blog…

In law, lacking a tradition of co-authorship, there appears to be at best a weak norm that the first author is the primary contributor. That [...]]]> Other disciplines don’t kid around about the ordering of authors in publications.  In political science and economics, alphabetical or reverse-alphabetical ordering is the dominant approach, even though it distorts hiring decisions.  In science, the first and last names matter – woe to the middle men!  Harvard is so concerned about the trend that it instructs its faculty to “specify in their manuscript a description of the contributions of each author and how they have assigned the order in which they are listed so that readers can interpret their roles correctly [and] prepare a concise, written description of how order of authorship was decided.”

In law, lacking a tradition of co-authorship, there appears to be at best a weak norm that the first author is the primary contributor. That results in a set of interrelated problems:

1)  To law audiences, the first author did the most work, and is rewarded in two ways.  The first is qualitative, and pops up at tenure, promotion, and lateral review — “he was the driver on that piece,” or “she was just the second author.”  Quantitatively, the bluebook foolishly permits multiple author works to be et al’d, meaning that the second through nth authors never get to see their name in the citation print.  Given the rudimentary nature of impact citation analysis in the legal academy, this mean that people who are listed first get the citations and the people who aren’t don’t. This might be less troublesome if the “first author” norm was correct — that is, if first authors in law reviews actually did more work. But my bet is that given letter head bias, many co-authored pieces list as the first author the most prominent author (or at least the author at the best-ranked school).  The upshot: first authors in law reviews are rewarded for being first in both qualitative and quantitative terms, though it’s not clear they ought to be.

2)  To other disciplines, this is fundamentally screwy and is another reason not to publish in a law review.  But interdisciplinary co-authored work published outside of the law reviews becomes that much more difficult as a result.  If a law professor and a non law professor were to publish in an economics journal, my sense of the norm is to alphabetize. [Correct me if I'm wrong here.]  Non legal audiences look at this and understand that it doesn’t signify relative contribution.  Law audiences don’t have that filter on, and the result (again) is that the second author is punished, here for having a last name at the back of the alphabet.

3)  Making sense of this mess requires coordination, which is quite hard because we lack a learned society that is sufficiently respected to impose change from above.  We do have, however, a few very strong journals that have had remarkable success in changing otherwise intractable scholarly pathologies like article bloat.  If the Harvard Law Review could -almost singlehandedly – impose a 25,000 word limit, surely it could fix this problem too.  In my view, the top few journals (HYS) ought to, as a part of their blue-booking project, agree to impose something like the Harvard faculty author order guidelines on folks who are publishing joint projects in their pages. The default ought to be reverse alphabetical listing.  Each article should state the respective contributions of the authors and, to the extent that they have deviated from the alphabet, why.  Finally, HYS ought to reform the bluebook to insist that the first citation of any work include the names of all contributors to the piece, rather than permitting et al. treatment.

It’s February, March, so let’s ask the regular questions:

1. Has your board turned over? If not, when will it?

2. Details please. Do you want new articles on the day the new board moves in, or would you prefer to get used to the new digs first? Overall, is your journal taking submissions yet; and if not, when will it start?

3. If you have already turned over, are you planning any theme issues that folks ought to consider submitting specialized pieces for?

4. What format do you want pieces in (especially if you are changing your previous policies).

5. Is there anything else that authors should keep in mind as this spring season (gulp) begins?

This thread [...]]]> (Bumped again, as there’s some very interesting discussion taking place in comments)

It’s February, March, so let’s ask the regular questions:

1. Has your board turned over? If not, when will it?

2. Details please. Do you want new articles on the day the new board moves in, or would you prefer to get used to the new digs first? Overall, is your journal taking submissions yet; and if not, when will it start?

3. If you have already turned over, are you planning any theme issues that folks ought to consider submitting specialized pieces for?

4. What format do you want pieces in (especially if you are changing your previous policies).

5. Is there anything else that authors should keep in mind as this spring season (gulp) begins?

This thread will be bumped weakly. Err, weekly.

1. Has your board turned over? If not, when will it?

2. Do you want new articles on the day the new board moves in, or would you prefer to get used to the new digs first? Is your journal taking submissions yet? (Please God no — I have at least two weeks of edits left on my piece.)

3. If you have already [...]]]> A recent comment asked if we were going to put up an open thread on law review submission season. And here we are! (Concurring Opinions, where we listen to our readers. Except when we’re distracted with grading, or watching cute puppies playing Guitar Hero on Youtube.) So, stealing shamelessly from last year’s post:

1. Has your board turned over? If not, when will it?

2. Do you want new articles on the day the new board moves in, or would you prefer to get used to the new digs first? Is your journal taking submissions yet? (Please God no — I have at least two weeks of edits left on my piece.)

3. If you have already turned over, are you planning any theme issues that folks ought to consider submitting specialized pieces for?

4. What format do you want pieces in (especially if you are changing your previous policies).

5. Do you (still) take cash?

And professors should note that, even if/though journals are (hopefully) not reviewing submissions right now, rightnow is the time to send your piece out to colleagues for feedback and/or star-footnote credit — if you haven’t already done so.

Related and possibly helpful: How to write your cover letter

Law Review customer service rankings

Should it become necessary, how to deal with rejections.

Best of luck, all!

Articles

Juvenile Justice: The Fourth Option Christopher Slobogin & Mark R. Fondacaro

Testing Modern Trademark Law’s Theory of Harm Mark P. McKenna

Ignorance Is Effectively Bliss: Collateral Consequences, Silence, and Misinformation in the Guilty-Plea Process Jenny Roberts

Formalism and Pragmatism in Ruins (Mapping the Logics of Collapse) Pierre Schlag

Notes

Making Taxes More Certain: Iowa State Legislators’ Guide to Combined Reporting Lindsay C. McAfee

Rescuecom Corp. v. Google Inc.: A Conscious Analytical Shift Jessica A.E. McKinney

An Iowa Immigration Raid Leads to Unprecedented Criminal Consequences: Why ICE Should Rethink the Postville Model Cassie L. Peterson

Clearing the Air: Analyzing the Constitutionality of the Iowa Smokefree Air Act’s Gaming-Floor Exemption Kevin D. Sherlock

Should law journals do more? Are any doing so? Aside from promotions such as we at Concurring Opinions offer to a necessarily limited number of journals on this blog, listing recent issues, and some symposia pitches, law reviews don’t market themselves. Florida Law Review is poised to change this, and I support the leadership.

Contracts with some publishers, especially trade, university or hybrid presses, often contain industry-standard publisher promises to market using reasonable [...]]]> How are academic works promoted by publishers, trade or university presses, academic book publishers and law journals? In general, trade presses do a broad funded pitch, university presses do some but more narrowly, academic book publishers make a strong push to a targeted audience and law journals do . . . pretty much nothing.

Should law journals do more? Are any doing so? Aside from promotions such as we at Concurring Opinions offer to a necessarily limited number of journals on this blog, listing recent issues, and some symposia pitches, law reviews don’t market themselves. Florida Law Review is poised to change this, and I support the leadership.

Contracts with some publishers, especially trade, university or hybrid presses, often contain industry-standard publisher promises to market using reasonable or best efforts. Most such houses do so. In my experience, McGraw-Hill and John Wiley & Sons take these clauses seriously and do a good job performing them, not only with paid advertisements, but with results in the form of visible book reviews, author tours and presentations, and, ultimately, sales.

Other contracts, especially with academic book publishers, like West or Lexis, are silent on publisher marketing, but those presses commit resources to the effort anyway. I am impressed with both these publishers of my books. They get word out to teachers about my books, supplements, new editions, and supporting materials like classroom slides, problems-solutions, and teachers’ manuals and updates. The results are large numbers of adoptions and resulting sales, plus more people giving me valuable input into how to improve the work in subsequent editions.

Law review publishing contracts, at least the 40+ I’ve signed, never talk about journal promotional efforts, and I’ve rarely seen a law journal undertake much of any. Journals are obviously trying to expand their presence with various on-line variants of their production, a form of promotion, though mostly responding to new ways of disseminating knowledge. Aside from lack of time, theory may say this is fine because academics will research to discover the great published knowledge and resulting citations will reflect what is valuable—no marketing needed.

Theory and traditional practice aside, Florida Law Review, which will publish a piece of mine in 2010, has created a promotional program.  Florida Law Review has a Communications Editor, and related staff. Their job is to reach out to members of the legal community having particular interest in pieces they publish. The Review’s Communications Department works in partnership with authors to develop marketing plans to publicize works to the media, prominent professors, and accomplished practitioners.

This inspired approach to the dissemination of academic knowledge manifests in other creative results, like this recently featured at the Faculty Lounge, a Florida Law Review piece accompanied by interactive media. I’m impressed. In fact, this effort was a factor to me when I chose to accept Florida Law Review’s publication offer over other offers.

In previous years, I served as Faculty Advisor to my school’s law review. If I were doing that today, I’d urge editors to look at the Florida model as a leader. But perhaps that is happening elsewhere and I don’t know about it.

Readers of this post could benefit from comments saying what is doing at other reviews and, of course, what is appealing and anything detracting about what seems to me a desirable, innovative, law review practice.

The Yale Law Journal is pleased to present its new online platform, The Yale Law Journal Online (http://www.yalelawjournal.org/). YLJ Online will continue the Journal‘s mission of providing accessible and substantive scholarship through the online medium. It offers original essays on timely and novel legal developments and responses to articles in the print Journal, as well as adapted lectures and recordings/podcasts of featured pieces.

When the Journal launched The Pocket Part in 2005, it was the first law review to establish an original online companion; as the Journal nears its 120th anniversary, YLJ Online represents the next step in that endeavor. The launch of YLJ Online‘s original content section features an essay by Hiro N. Aragaki, addressing the Hall Street v. Mattel litigation and [...]]]>

The Yale Law Journal is pleased to present its new online platform, The Yale Law Journal Online (http://www.yalelawjournal.org/). YLJ Online will continue the Journal‘s mission of providing accessible and substantive scholarship through the online medium. It offers original essays on timely and novel legal developments and responses to articles in the print Journal, as well as adapted lectures and recordings/podcasts of featured pieces.

When the Journal launched The Pocket Part in 2005, it was the first law review to establish an original online companion; as the Journal nears its 120th anniversary, YLJ Online represents the next step in that endeavor. The launch of YLJ Online‘s original content section features an essay by Hiro N. Aragaki, addressing the Hall Street v. Mattel litigation and manifest disregard, as well as responses by selected scholars to Michael Stokes Paulsen’s The Constitutional Power To Interpret International Law (118 Yale L.J. 1762 (2009)).

In the coming weeks, YLJ Online will present a variety of essays and features on marriage, property, and corporate law, as well as a selection of pieces from the Hon. J. Harvie Wilkinson III and other participants in its inaugural Washington, D.C. conference on the Supreme Court’s certiorari process. Among the many features that YLJ Online offers are Essays (4,000-6,000 words), Commentaries (under 2,000 words), Responses, adapted lectures and solicited pieces. More information can be found on the Submissions page (http://www.yalelawjournal.org/submissions.html). All YLJ Online publications are available and fully searchable through LexisNexis and Westlaw. The Journal also provides all YLJ Online pieces in PDF/reprint format, and podcasts on its website/iTunes for selected pieces. For questions regarding YLJ Online, please contact the Journal‘s Managing Online Editor, Jeff K. Lee, here.

Now available on YLJ Online:

Essay

Hiro N. Aragaki, The Mess of Manifest Disregard, 119 Yale L.J. Online 1 (2009). [HTML] [PDF]

Responses

Julian Ku, The Prospects for the Peaceful Co-Existence of Constitutional and International Law, 119 Yale L.J. Online 15 (2009). [HTML] [PDF]

Peter J. Spiro, Wishing International Law Away, 119 Yale L.J. Online 23 (2009). [HTML] [PDF]

Margaret E. McGuinness, Old W(h)ine, Old Bottles: A Response to Professor Paulsen, 119 Yale L.J. Online 31 (2009). [HTML] [PDF]

Robert Ahdieh, The Fog of Certainty, 119 Yale L.J. Online 41 (2009). [HTML] [PDF]