Archive for the ‘Law School (Scholarship)’ Category
Choosing Book Publishers: Academic, Teaching or Trade?
posted by Lawrence Cunningham
Where to publish your latest book-length manuscript? Law professors can position their books for publication in many different ways. The target audience and a publisher’s program are the key factors in choosing a publisher.
Do you want to reach students, teachers, scholars, policy-makers, the general public? What publishers best target which groups? Are they all equally good at marketing or are some more effective than others? 
Often it is clear where the book should be published but sometimes a book straddles the markets, posing vexing decisions. How do professors choose then?
Some books are clearly meant for the classroom, and should be published by the likes of Aspen, Foundation, Lexis or West. Within that cohort, houses further distinguish between adoptables, targeted to professors who require the book, and discretionary student purchases, for supplemental reading.
Other books are obviously written for a specialized academic market and should be published by such university presses as Cambridge, Harvard, NYU or Stanford. A small number undoubtedly show greater potential trade market appeal, and could be published by such houses as John Wiley, McGraw-Hill, Penguin or Random House.
But what of the book that transcends one or more of these audiences, positions, and publishing programs? Is it possible that some houses can deliver it all, as many authors say is true of such presses as Oxford, Princeton, Yale?
In particular, I have spent this past year writing a book on contract law stories in the news during the past several years. Readers of this blog would recognize a dozen or more of them. Read the rest of this post »
April 13, 2011 at 11:17 am
Posted in: Articles and Books, Law School (Scholarship)
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Digital Law Books: II
posted by Lawrence Cunningham
As we all migrate to the digital world, imagine the future of the law school course book by reflecting on its history, purposes, and promulgation over the seven generations since C.C. Langdell initiated our current mode of legal education in 1870.
Some see the future of digital course books as a radical shift, akin to the original revolution of Langdell’s Contracts casebook. Others dismiss it as a simple marketing maneuver, the way post-Langdell addition of notes, questions or problems might be regarded.
In a new essay, I look back at casebook history to find it suggests that digital course books are more likely to be something in between, an incremental but meaningful evolution. The essay, a chapter in a new book on the subject, engages with great innovations in law school course books over the past century-plus, highlighting historic contributions from luminaries across the century and today.
April 5, 2011 at 1:17 pm
Posted in: Contract Law & Beyond, Education, Law School (Scholarship), Law School (Teaching), Law Student Discussions, Law Talk, Teaching
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Randomization Uber Alles?
posted by Dave Hoffman
Jim and Cassandra write:
“To Dave, we say that our enthusiasm for randomized studies is high, but perhaps not high enough to consider a duty to randomize among law school clinics or among legal services providers. We provided an example in the paper of practice in which randomization was inappropriate because collecting outcomes might have exposed study subjects to deportation proceedings. We also highlighted in the paper that in the case of a practice (including possibly a law school clinic) that focuses principally on systemic change, randomization of that practice is not constructive. Instead, what should be done is a series of randomized studies of an alternative service provider’s practice in that same adjudicatory system; these alternative provider studies can help to assess whether the first provider’s efforts at systemic change have been successful.”
I meant to cabin my argument to law school clinics. And I do understand that there may be very rare cases where collecting outcomes will hurt clients (such as deportation). But what about a clinic that focuses on “systemic change.” Let’s assume that subsidizing such a clinic would be a good thing for a law school to do (or, put it another way, we think it is a good idea for current law students to incur more debt so that society gets the benefit of the clinics’ social agitation). Obviously, randomization of client outcomes would be a terrible fit for measuring the success of such a clinic. It would be precisely the kind of lamppost/data problem that Brian Leiter thinks characterizes much empirical work.
But that doesn’t mean that randomization couldn’t be useful in measuring other kinds of clinic outcomes. What about randomization in the allocation of law student “employees” to the clinic as a way to measure student satisfaction in the “learning outcomes“? Or randomization of intake and utilizing different client contact techniques as a way of measuring client satisfaction with their representation (or feelings about the legitimacy of the system?) One thing that the commentators in this symposium have tried to emphasize is that winning & losing aren’t the only outputs of the market for indigent legal services. Controlled study of the actors in the system needn’t be constrained in the way that Jim and Cassandra’s reply to my modest proposal to mandate randomization suggest.
March 29, 2011 at 1:23 pm
Posted in: Empirical Analysis of Law, Law Rev (Yale), Law School (Scholarship), Law School (Teaching), Symposium (What Difference Representation)
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What Difference Representation: Introduction to the Symposium
posted by Dave Hoffman
Should Law School Clinics Select Clients by Roulette?
I am delighted to announce that Concurring Opinions will be hosting a symposium next Monday and Tuesday on What Difference Representation? Offers, Actual Use, and the Need for Randomization, the forthcoming Yale Law Journal article by Jim Greiner and Cassandra Wolos Pattanayak. [Update: You can read all posts in the symposium by clicking on this link.] As you may recall, What Difference has already caused quite a stir in the clinical and legal aid communities. Given our shared interest in questions of empirical methodology, and Jaya’s background in clinical legal services, we decided that bringing that debate to CoOp would be an excellent use of our time and energy. Here’s the (revised) abstract) – though you should download the article if you haven’t already:
“We report the results of the first in a series of randomized control trials designed to measure the effect of an offer of, and the actual use of, legal representation. The results are unexpected. In the context of administrative litigation to determine eligibility for unemployment benefits, a service provider’s offer of representation to a claimant had no statistically significant effect on the claimant’s probability of a victory, but the offer caused a delay in the proceeding. Because a substantial percentage of the provider’s client base consisted of claimants who were initially denied benefits but who would later have that initial denial reversed as a result of the litigation, the offer of representation inflicted a harm upon such claimants in the form of an additional waiting time for benefits to begin, this with no discernible increase in the probability of a favorable outcome. In other words, within the limits of statistical uncertainty, these claimants would have been better off without the offer of representation. The size of the delay (around two weeks, depending on how measured) was not large in absolute terms, and would have been negligible in many other legal settings, but was relevant in the context of this particular administrative and legal framework, one in which speed has remained a special concern for decades. Moreover, in a small number of cases with a certain profile, the delay caused the unemployment system to continue paying benefits erroneously for a longer period of time, potentially imposing costs on the financing of the unemployment system. We were also able to verify a delay effect due to the actual use of (as opposed to an offer of) representation; we could come to no firm conclusion on the effect of actual use of representation on win/loss.
We hypothesize three potential explanations for our findings (and acknowledge that others are possible). First, it is possible that the client base that reached out to the service provider (and thus was subject to randomization) was a specialized subset of unemployment claimants, a subset that did not actually need legal assistance. This theory suggests special attention to provider intake systems. Second, it is possible that the administrative adjudicatory system at issue, with its semi-inquisitorial style of judging, is pro se friendly. Third, it is possible that the subject matter in dispute in these cases is less legally, factually, or procedurally complex than in other settings.
We caution against both over- and under-generalization of these study results. We use these results as a springboard for a comprehensive review of the quantitative literature on the effect of representation in civil proceedings. We find that this literature provides virtually no credible information, excepting the results of two randomized evaluations occurring in different legal contexts and separated by over three decades. We conclude by advocating for, and describing challenges associated with, a large program of randomized evaluation of the provision of representation, particularly by legal services providers.”
We have assembled a terrific group of symposiasts, mixing clinicians, academic empiricists and practitioners. Besides Jim, Cassandra, Jaya and me, the group includes twelve contributors, lauded in detail after the jump:
March 23, 2011 at 11:23 am
Posted in: Behavioral Law and Economics, Empirical Analysis of Law, Law Practice, Law Rev (Yale), Law School, Law School (Scholarship), Symposium (What Difference Representation)
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Westlaw Next
posted by Sarah Waldeck
Lately I’ve found myself thinking more than I have for a long time about the process of legal research. This is because of an intriguing article by Ronald E. Wheeler, Jr., the director of the library at the University of San Francisco Law School. Wheeler’s article (which can be found here) discusses Westlaw Next, the new search engine rolled out by Westlaw in 2010. Several features distinguish Westlaw Next from Classic Westlaw; most notably, that Westlaw Next is a sort of “Google for lawyers” because it uses a crowd sourcing algorithm that relies on the actions of other Westlaw users to rank the relevance of documents retrieved in a search. Wheeler’s article is a must-read for anyone who teaches legal research to law students and a should-read for any scholar who uses or has research assistants using Westlaw Next. Read the rest of this post »
March 22, 2011 at 5:51 pm
Posted in: Law School (Scholarship), Law School (Teaching)
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Accreditation Sunlight
posted by Dave Hoffman
The Conglomerate Masters Forum on Legal Education is underway, and worth checking out.
In my post, I recommend that the ABA accreditation process should model itself after the SEC and move toward an exclusively sunlight model. David Zaring, perhaps surprisingly, favors regulation, though he admits that it makes legal academia “cozy.” Christine Hurt comes out against accreditation-driven tenure. Other folks are posting shortly, so head over to the ‘Glom and join the discussion.
March 22, 2011 at 2:53 pm
Posted in: Blogging, Law School, Law School (Scholarship), Law School (Teaching)
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GW’s Junior Scholars Finalists
posted by Lawrence Cunningham
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.
February 28, 2011 at 8:53 pm
Posted in: Corporate Finance, Corporate Law, Law School, Law School (Hiring & Laterals), Law School (Law Reviews), Law School (Scholarship), Law School (Teaching), Law Talk, Securities, Securities Regulation
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Cognitive Illiberalism and the Speech-Conduct Distinction
posted by Dave Hoffman
The partisanship and bad faith of judges who disagree with us has never been more obvious, or more pernicious. For many, the most irritating personality flaw of judicial politicos (and their fellow-travelers) isn’t the bottom-line results of the opinions themselves, it is that judges refuse to acknowledge their own biases, though it’s evident that they aren’t neutral umpires, but rather players in the game. Indeed, almost every decision you read about these days comes accompanied by a reference to the political party of the appointing President – as if you needed the help! As Orin Kerr has brilliantly pointed out, “people who disagree with me are just arguing in bad faith.”
For the Cultural Cognition Project, the way that we talk about legal decisions – and decisionmakers – is a subject of study and concern. We decided to take a careful look at this topic — which we’ve previously touched on in work like Whose Eyes Are You Going To Believe. Our motivation was to investigate how constitutional norms requiring neutrality in fact finding interact with individuals’ tendencies to perceive facts and risks in ways congenial to their group identities. Building on Hastorf/Cantril’s social psychology classic, They Saw a Game: A Case Study, we’ve written a new piece about how motivated cognition can de-stabilize constitutional doctrine, render legal fact-finders blind to their own biases, and inflame the culture wars. Our resulting paper, “They Saw a Protest”: Cognitive Illiberalism and the Speech-Conduct Distinction, results from my collaboration with Dan Kahan, Don Braman, Danieli Evans, and Jeff Rachlinski. The paper is just up on SSRN, and I figured to jump-start the conversation by using this post to talk about our experimental approach and findings. (I think that Kahan is blogging on Balkinization later in the week about the normative upshot of Protest.)
February 7, 2011 at 6:00 pm
Posted in: Articles and Books, Behavioral Law and Economics, Civil Procedure, Civil Rights, Law and Psychology, Law School (Scholarship), Psychology and Behavior, Sociology of Law
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Iowa Law Review, Volume 96, Issue 2 (January 2011)
posted by Iowa Law Review
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
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
January 20, 2011 at 12:39 pm
Posted in: Law Rev (Iowa), Law Rev Contents, Law Rev Forum, Law School, Law School (Law Reviews), Law School (Scholarship), Law Talk, Uncategorized
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Credit Where Credit is Specifically Due
posted by Joseph Blocher
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.
December 10, 2010 at 5:51 pm
Posted in: Just for Fun, Law School (Law Reviews), Law School (Scholarship)
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Questioning the Value of Omnibus Academic Conferences
posted by Alan Chen
As part of my current job, I try to track and distribute information about conferences and workshops that will interest my colleagues and provide good opportunities for them to obtain critical feedback on their scholarly work, as well as make connections with other scholars in their fields. Perhaps because I pay more attention to all types of conferences now (or perhaps because there truly are more of them), I sense a proliferation of smaller legal scholarship workshops focusing on particular subject matters or disciplines, bringing together scholars from schools in a specific region, or fostering development of junior faculty (of course, there are also combinations of these). Much of the anecdotal feedback I get from my colleagues suggests that these smaller workshops are extraordinarily helpful to participants because of the type and depth of feedback they get on their papers. The size of these gatherings also allows for richer opportunities to engage in informal discussions with colleagues and learn about each other’s work.
All of this brings me to the larger question I want to pose. What is the purpose of the annual January AALS meeting? Don’t get me wrong. I love New Orleans and San Francisco and catching up with friends and colleagues from other schools as much as anyone. But at this point, the conference itself seems like a bit of a dinosaur. If the principal justification for the meeting is intellectual enrichment, it’s pretty inefficient. Hundreds of papers are presented, the vast majority of them beyond any single professor’s areas of interest or expertise. And personally, with some important exceptions, I often have been disappointed with the papers presented at the annual meeting compared to the papers I have heard at specialized conferences (including specialized AALS conferences). One could make the case for the general meeting as an opportunity to hear work in fields beyond our specialty areas, but how many of us actually attend panels in fields completely unrelated to our work? I’m sure some administrative work gets done at AALS, but probably nothing that couldn’t be accomplished by a conference call.
Some academic disciplines combine their annual meetings with their hiring conferences. For example, the Modern Language Association has a long tradition of facilitating faculty job interviews at its annual meeting. That approach makes a little more sense because faculties from most schools are gathered in one place to interview candidates, anyway. But the AALS separated out its Faculty Recruitment Conference from the general meeting many years ago, so that rationale has disappeared.
I approach my thinking about the AALS meeting from a resources standpoint as well. At this time of year (as the early bird registration deadline approaches), I receive lots of faculty requests for funding to attend the meeting. Our school spends a disproportionate percentage of its travel budget sending faculty to AALS. In tight fiscal times, it seems useful to contemplate whether that is a good use of funds, or whether that money would be better spent sending faculty to the smaller specialty or regional conferences discussed above. Or, might we decide after considering the heretical idea of scrapping the annual meeting that the AALS’s winter fest is just too big to fail?
November 4, 2010 at 4:32 pm
Tags: AALS, academia, Academic Conferences
Posted in: Conferences, Law School (Scholarship)
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Assessment Assessment
posted by Dave Hoffman
Academics – driven by their accrediting agencies - have a new buzzword. We are all now charged with thinking about assessment. How well are we doing at the goals we set out for ourselves? How do we know? How do we know if our processes of assessment are appropriate? As an academic (non-legal) blogger observed:
Going beyond the reasonable notion that you should periodically take a deeper look at what you’re doing, pedagogical reformers of many sorts get convert zeal and treat assessment as a moral imperative. But, when a religion has enough zealous adherents, it might suddenly become mainstream. And when it goes mainstream, it goes from being pure to being mass market lowest common denominator oversaturation. The word “assessment” is no longer just confined to careful examinations of how well something is working. It isn’t even just applied to a bureaucratic ritual of report-writing focused on the curriculum. It’s applied to every piece of paper, every report, every bit of data, any and every piece of bureaucracy and hoop-jumping and report-generating. The odds are good that a time sheet will soon be marked “Hours assessment” and an account statement will be marked “Fiscal assessment.”
This proselytizing ideal has obviously caught on in the ABA’s self-study process, which requires not just a strategic plan and a strategic planning process, but also that the school show that it regularly evaluates its self-assessment and thinks about whether the school’s goals are good ones. Schools which fail to have a process, plan, and plan assessment will be disapproved until they come to their senses.
It’s no small irony – nor I’m sure am I the first to note – that there is no evidence at all that schools which regularly engage in planned reflection produce better outcomes for students or for society than schools who muddle through with less formal techniques. I’m not even sure that it is possible to design an experimental study that would make the case for assessment, given external validity concerns. The case against self-reflection is pretty simple: deciding what academics ought to maximize is a hard problem, and any answer arrived at by any group of people will necessarily be too vague to provide hooks for truly useful tactical choices, especially when the time spent planning uses up productive resources . Indeed, it’s possible that designing ever-more-particularly assessment metrics (and plans for achieving those metrics) encourages us to set ever-more-narrow goals, which are then, comfortably, met.
All in all, I’d give the current assessment trend a 23.3 on an A to ∂ point scale, where our goal is to hit a ß.
November 3, 2010 at 2:06 pm
Posted in: Law School, Law School (Rankings), Law School (Scholarship), Law School (Teaching)
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Paying for Tenure Letters?
posted by Lawrence Cunningham
Most schools don’t pay honorariums to outside scholars to write tenure letters (that vital component of a professor’s application for promotion and tenure), whether on internal promotions or about lateral recruits. At least that’s been my experience, based on writing about 25 of them since my own first tenure 15 years ago and requesting them on behalf of a couple of schools.
Instead, this task seems to be a service duty each tenured academic has to the broad academy as a whole. True, writers invariably receive a warm “thank you” note from the Dean at the requesting school and appreciation from the home Dean and Provost as part of their annual review of faculty contributions. There’s also the intrinsic reward of engaging deeply with a single scholar’s body of work and writing a report for an audience not necessarily expert in the particular field. 
On the other hand, writing a thoughtful and fair tenure letter requires many hours of work, at least five and often ten or sometimes more. As a result, at least one school pays $250 for the service.
Should other schools pay money too or should that school stop spending money it need not spend? My vote is to save the money. If offered the honorarium, I favor asking the school to reallocate it to PILF (the Public Interest Law Foundation) to fund stipends for law students working in the public interest.
What do you think?
October 28, 2010 at 10:11 am
Posted in: Law School, Law School (Hiring & Laterals), Law School (Scholarship), Law Talk, Uncategorized
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Baron on Leiter on Empirical Legal Studies
posted by Dave Hoffman
A few weeks ago I was on the train home, reading an old piece of scholarship from one of my favorite colleagues at Temple, Jane Baron. Jane is well-known for her work on law and literature, the rhetoric of property/T&E, and interdisciplinary studies more generally. The particular piece that I read on the train was “Interdisciplinary Scholarship as Guilty Pleasure: The Case of Law and Literature” (Law & Literature, 1999). Jane’s observations about law and literature were strikingly relevant to the blog debate this summer which Brian Leiter instigated in his post “So-Called ‘Empirical Legal Studies.” That debate was fierce, but no one made the precise point that Jane appears to have anticipated over a decade ago. So I asked her to comment for us on Leiter & ELS. Here’s what she had to say.
“I arrived late to the debate Brian Leiter stirred up in his summer post on “So-Called ‘Empirical Legal Studies,’” whose incendiary title alone probably irritated self-identified ELS scholars. Of course, I’m not an ELS scholar, and frankly I have my own share of axes to grind about ELS. All those annoying numbers, data points, p’s and n’s—no one writes prose well enough to make those methods sections interesting to read. And I have already had my fill of faculty candidates with inchoate and incoherent ideas for adding an unspecified “empirical” component to their research—meaning they would count something if they could think of something to count.
But even given my own frustrations with ELS, two things particularly struck me about Leiter’s post. One was his assertion that the skill level of ELS scholars was “low, or at least lower than the typical . . . law & philosophy interdisciplinary scholar of yesteryear.” Considering Leiter’s 1992 characterization of then-extant law and philosophy scholarship as “intellectual voyeurism,” the insult to contemporary ELS is perhaps even stronger than many current ELS scholars might have realized.
The second thing that struck me was Leiter’s assertion that the ELS “mutual-admiration society” might be “disconnected from the central normative and conceptual questions of legal scholarship and legal education.” I think the challenge here was intended to provoke ELS scholars to show that their work does connect to those questions. Josh Wright has written thoughtfully on this question and probably lots of other folks have as well.
But I think it’s worth asking some different questions: why are we to assume that there are “central normative and conceptual questions of legal scholarship and legal education”? And should we be sure, as Leiter seems to be, that “smarts on your feet, the ability to draw conceptual distinctions, [and] construct and deconstruct arguments . . . are the . . . intellectual skills . . . needed in law”?
As I explored in earlier work, the compare-and-contrast analysis of interdisciplinary work constructs the very fields being dissected. In the realm of law and literature, for example, the tendency is to contrast the (allegedly) rich, textured, emotional realm of the literary with the (allegedly) dry, abstract, logical realm of the legal. This formulation effectively defines law as a pure domain of rules—a domain in which Langdell himself would have been happy to dwell.
But of course not all literature is morally rich (pick your favorite noire novel). And not all law is dry or abstract (pick your favorite opinion). We can depict literature as a form of plenitude and law as a form emptiness, but do we really want to?
In his ELS post, Leiter employs the inside/outside trope, to similar effect. He puts the ability to react fast, analyze arguments, and address ‘normative and conceptual questions’ inside law, and the ability to crunch numbers and analyze data outside law. But we can all think of some number crunching that is clearly inside law (B=P x L anybody?) and surely someone as intellectually accomplished as Leiter can’t mean to assert that there are no normative or conceptual questions outside law.
I am not just quibbling over words here. The question whether (all or some of) ELS work is good legal scholarship implicates the important question of what counts as “legal.” We can define law as a realm composed entirely (or centrally) of conceptual and normative questions. But we don’t have to. Indeed, at least some ELS work is designed to demonstrate that the normative questions that are ostensibly central in legal analysis are not in practice determinative, so that the “law” we thought we knew is not the “law” with which judges and practitioners work. Maybe that work is persuasive, and maybe it’s not. But at least that work is sensitive to the problem of defining law’s realm, a problem Leiter’s post assumes away.”
Thanks, Jane!
October 20, 2010 at 3:35 pm
Posted in: Articles and Books, Bright Ideas, Economic Analysis of Law, Empirical Analysis of Law, Law School, Law School (Scholarship), Sociology of Law
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AspenLaw
posted by Daniel Solove
I’m pleased to announce our new sponsor, Wolters Kluwer, which has an ad on our left sidebar. They are announcing their new website for the Aspen line of books. They have segmented the site into parts for law students, professors, and bar exam preparation.
On the professor side, you can access to ebook downloads, book companion websites, and order complimentary review copies of our books, among other things.
I really like the new Aspen site. And I’m not saying this because Wolters Kluwer is now a sponsor of our blog. I have several casebooks with Aspen, including Information Privacy Law (3rd edition), and I’ve long lamented that the Aspen website wasn’t user-friendly or very informative. The upgraded site is a big improvement and is quite useful.
One other thing that I’m pleased Wolters Kluwer is now doing — they are allowing professors to create customized casebooks by pulling chapters from various Aspen titles and adding their own content. This is an idea that I mentioned to some folks at Wolters Kluwer many years ago — a kind of iTunes approach to casebooks, and I’m delighted they are trying this out.
October 15, 2010 at 10:28 am
Posted in: Administrative Announcements, Law School, Law School (Scholarship)
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Where’s the Public Health?
posted by Richard Saver
Greetings. Thanks first to Frank Pasquale and Glenn Cohen for extending the invitation to comment on this terrific, provocative book and the important issue of fragmentation in the health care system. I enjoyed the book a great deal. The impressive list of contributors make a compelling case of how fragmentation runs across and unduly complicates many dimensions of the health care system. As a descriptive project alone, the book is immensely useful to scholars and policy-makers. It produces extensive evidence of fragmentation, demonstrating how lack of integration, misaligned incentives, too many decision-makers, unclear obligations and responsibilities of multiple actors in a complicated system, etc. generally result in underpowered, less effective medical care.
Because the book does such a great job of documenting and providing a typology of fragmentation problems and possible causes, I am hesitant to quibble about things that might have also been included but were not. Nonetheless, here is my quibble: where’s the public health?
October 12, 2010 at 1:30 pm
Posted in: Health Law, Law School (Scholarship), Symposium (Health Care Fragmentation)
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Integrated Delivery Systems as a Panacea
posted by Vickie Williams
In “Curing Fragmentation with Integrated Delivery Systems,” Alain Enthoven, the father of “managed competition,” extols his creation as a cure for what ails America’s fragmented health system. Indeed, many of Enthoven’s proposals for reducing fragmentation in our health care system, such as regional health insurance exchanges, were incorporated into the Patient Protection and Affordable Care Act (“PPACA”), the health care reform bill signed into law on March 23, 2010.
Although a proliferation of integrated delivery systems competing with each other for business may be a step in the right direction, it will do little or nothing to cut down on the enourmous amount of health care resources spent on compliance with ever-expanding numbers of billing rules. Even Professor Enthoven acknowledges that a single-payer system could solve many of the same problems as his integrated delivery system proposal, but he believes that Americans do not have the political will to accept such a system. Professor Enthoven also fails to consider that even less-radical changes to our health care system, such as adopting a system of encrypted medical records that a patient carries with her, like the French “carte vitale,” would greatly cut down on or eliminate poor medical outcomes that are attributable to fragmentation in the system.
A well-managed single-payer system could satisfy the American appetite for market competition, and achieve more than the integrated delivery systems proposed by Professor Enthoven. Competition could still take place at the insurer level, much like in Germany, or it could take place amongst providers, such as in Japan (whose system author T.R. Reid cleverly describes as “Bismarck on Rice” in his recent book The Healing of America (Penguin Press 2009)).
Professor Enthoven’s example of the “epitome of integrated delivery system[s]” is Kaiser Permanente (for which Enthoven is also a consultant, according to his Stanford University on-line biography). His vision is for the American people to have a choice of many Kaiser Permanente-like organizations. This presumes that people want choices when it comes to picking a health plan, a presumption shared by PPACA. I believe that is incorrect. What people want is choice of providers. Nobody loves their payers; they love their doctors. They want to make sure they don’t receive numerous bills for every little service they receive, but they don’t really care about who pays those bills. Only the ultimate integrated delivery system, a single-payer one with a compensation system based on outcomes, not services, will achieve this.
It is true that many of the single-payer systems in use around the world are underfunded and under inflationary pressure. A single-payer system in the United States would be no exception. Despite our current economic woes, we remain the richest country in the world. As Dr. Marcia Angell, former editor-in-chief of the New England Journal of Medicine stated in the 2000 PBS documentary “Healthcare Crisis: Who’s at Risk?,” the amount of our GDP that we spend on health care is not really important. What is important is that we get good outcomes and the customer satisfaction that we are paying for. Managed competition and “integrated delivery systems” although a step in the right direction, will not solve our problems in the long run.
October 12, 2010 at 12:00 am
Tags: Health Law, health reform, integrated delivery systems, managed competition
Posted in: Health Law, Law School (Scholarship), Symposium (Health Care Fragmentation)
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The Top Law Reviews (Eigenfactor)
posted by Lawrence Cunningham
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. Read the rest of this post »
October 5, 2010 at 2:20 pm
Posted in: Law School (Law Reviews), Law School (Rankings), Law School (Scholarship)
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The Journal of Legal Education’s Bipolar Issue
posted by Dave Hoffman
Of course, failing the Bar doesn't always turn out badly
I rarely read the The Journal of Legal Education. The Journal, sent to every law professor in the country, is printed “as a public service” by Westlaw, which means that it is indirectly subsidized by the clients of practicing lawyers. Regardless of the merits of that practice, and indeed the Journal’s existence, there is a good and useful article in the recent issue: Jane Yakowitz’s “Marooned: An Empirical Investigation of Law School Graduates Who Fail the Bar Exam.” In the Article, Yakowitz focuses on the 150,000 law school graduates who have “taken but never passed a bar exam”: 1 in 10 law school J.D.s. She creatively amasses data from various sources to conclude:
1) African American and Latino and hispanic law graduates are “at least twice as likely as white graduates to become a never-passer”.
2) If a graduate comes from a poor background, all else equal she is just as likely to pass the bar on the first administration as a student from a richer background. But if she fails the first time, being poor is correlated with becoming a never-passer. Yakowitz argues that this result follows from a lack of resources to study and prepare a second and third time.
3) In the short term, bar failure significantly reduces employment and earnings. In the long term – ten years – never-passers “bounce back”. Though they never make as much as lawyers, they “surpass the trajectory of average college graduates their age.” Most are working in legal settings. That said, they make about “$17,000 less than J.D.-holders the same age and gender…” And compared to lawyers who passed, never-passers experience significantly more career instability. They are divorced more often than passers, and are less likely to live with their children. In sum, never-passers decision to attend law school turns out to be a raw deal – though in the latter half of their careers, may pay mild dividends.
All in all, a decidedly useful and sobering piece of scholarship. Law schools whose students pass the bar at less often than the state average should be thinking hard about changes they can make. About a decade ago, Temple faced a problem like this, and we dealt with it through various forms of mentoring, and by lowering our curve to give students in trouble more sharp notice of what they were facing. Our bar passage rate rebounded sharply, which is a source of great comfort after reading Marooned.
It’s a shame the rest of the issue is full of snarky work in which various authors assert that law schools intend to obfuscate and prevent learning because they are willfully blind to the blinding truth (discovered by the authors) that this is a bad way to teach doctrine. As if that what the main purpose of law teaching was – as opposed to understanding why the rules work the way they do. It is true that you need to know the rules to pass the bar exam. But passing the bar exam – however wealthy and healthy it might make you – will not make you good lawyer.
September 14, 2010 at 11:13 am
Posted in: Law Practice, Law School (Scholarship), Law School (Teaching)
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Why Don’t You Need IRB Approval to Talk About People in Cases?
posted by Dave Hoffman
Legal archaeology is a term sometimes used to refer to scholarship that brings a rich context to famous cases. If you were a legal researcher seeking to enrich a modern classic – e.g., Pepsico [contracts], Lawrence [con law], Liebeck [torts], Twombly [civ pro] – you might proceed by interviewing the parties and their attorneys, examining prior and related cases, and boning up on the briefs and exhibits. It seems pretty clear to me that before undertaking such research, a prudent professor would check in with their IRB. The interviewing of the parties and their attorneys in particular doesn’t appear to be clearly covered by any exemption, and I imagine that at least expedited review would be indicated.
But how about simply writing about living parties – or judges – in modern cases? It would seem inconceivable to go to the IRB before writing about, say, Yaser Hamdi. Well, you never know how your local IRB will deal with novelty. So let’s go back to the basics. Is this research under Section 46.102? Arguably: it is a “systemic investigation . . . designed to contribute to generalizable knowledge.” Is it research regarding human subjects? Well, under 46.102(f), human subjects are people you collect data from through actual contact or those who you collect data that is otherwise private. Private information “includes information about behavior that occurs in a context in which an individual can reasonably expect that no observation or recording is taking place, and information which has been provided for specific purposes by an individual and which the individual can reasonably expect will not be made public (for example, a medical record).” Are their facts about behavior disclosed in judicial opinions which fit this definition? I can think of many: disclosure of facts from police reports, medical records, taxes, etc. Indeed, most opinions disclose facts about individuals that they’d never, ever, want told to the public, and were forced to disclose only through contentious discovery. Quite often, the discovery contained stipulations of confidentiality that bind the parties, but not the court.
Nevertheless, it’s clear that writing about such personal facts in released opinions is in fact exempt from IRB review, since a judicial opinion is, under 46.101(b)(4), a public record. So you might think that this entire exercise is academic. And for some IRBs, it would be. But most IRBs would take the position – if asked – that researchers must submit an application to them, so that the board can evaluate the claim for exemption. This is a slam dunk case for exemption, but that doesn’t mean that the professor gets to decide for herself that no application is necessary. Of course, I’ve never heard of a law professor submitting to an IRB before writing an article about a recent case of interest, even when discussing the most personal facts relating to the parties or the judge. In fact, some articles about particular judges have created political scandals of some note. Unless I’m mistaken about any of the previous analysis, I think that means that most law professors, some of the time, are not in technical compliance with a set of (very silly and possibly unconstitutional as applied) regulations. Ironically, it is probably constitutional law professors, who write about recent cases involving individual parties most often, who are the prime violators. If your law school has not reached a general understanding with your local IRB about how to proceed, it should.
Thoughts?
September 1, 2010 at 3:04 pm
Posted in: Administrative Law, Bioethics, Constitutional Law, Empirical Analysis of Law, Law School (Scholarship)
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