Category: Law School (Scholarship)

5

More Sophisticated Than What the Clientele Wants

While reading this post by Paul McGreal over at Faculty Lounge about the rising costs of legal education, I was struck by the unexpected relevance of political scientist John Zaller‘s work on media politics.  First, something about Paul’s post.  Paul underscores the argument that “the cost of legal education bears no necessary connection to what it would cost to provide a quality legal education in an efficient manner.”  He implicitly takes on a prominent theme in the scamlaw narrative that costs are driven up by the faculty “‘stealing’ from students for their own selfish desires” by engaging so much time and energy on academic scholarship.  Scholarship and even the related teaching of legal theory, according to a common narrative, diverts law school resources from the type of practical training—often argued to be applied skills and black-letter law—most valued by students as helpful to them in a challenging labor market.

I leave aside a defense of scholarship for the time being, but I think John Zaller would say that this debate over the place of legal scholarship is characteristic of a chronic tension that defines every professional field.  In his forthcoming manuscript A Theory of Media Politics, Zaller posits that members of a professional field seek to produce a more sophisticated product, based on their own professional values, than the typical consumer actually demands and is willing to purchase.  According to Zaller, “Every professional group wishes, if possible to have as much business as possible.  Yet they typically wish to offer products that are more sophisticated than what the clientele wants.”

As a result, professionals always confront a basic tension between market pressures from the typical consumer on one hand and their own desires to produce a more sophisticated product on the other hand.  Applying this notion to television news, Zaller finds that media markets with greater market competition among news outlets tend to feature “lower quality” local news (e.g., more tabloidish, less high-level reporting) compared to media markets with weaker market competition.  Zaller postulates a basic Rule of the Market—that increases in market competition lead to lower news quality—but that in the absence of competition, “journalists seem to be able to persuade owners to cast their fates with respectable ‘high-quality’ news.”  In my view, Zaller nails the dynamics of big city news media by astutely capturing this active tension between professional and market values.

You can see how Zaller’s ideas generalize to academic scholarship.  Read More

5

Farewell to the Fall Submission?

Not long ago, the busy month for law review submissions was August, not March.  As anyone who has been teaching law for more than six or seven years can confirm, law faculty worked on their manuscripts during summer break and had shiny new articles to send off as the fall semester approached.  There was a spring cycle as well, with law journal submissions and publication offers split reasonably evenly between the spring and fall cycles, but at one point, the fall was probably the busier one.

It’s not quite yet time to declare the death of the fall cycle for law journal submissions—many journals still will receive and accept a number of articles this month—but we’re getting close.  A nontrivial number of flagship journals didn’t open for business this fall—e.g., Duke Law Journal, Indiana Law Journal, University of Illinois Law Review, and Utah Law Review—each noting on ExpressO that they’ll begin looking at articles next in the spring.  What’s more, many of the journals open for business reserved only a handful of publication slots for this fall from last spring.  Demand during the fall for articles appears to be shrinking.

Why did this apparent shift from fall to spring cycle occur?  My guess begins with the fact that the business of legal scholarship is increasingly competitive on all ends, and after boards turn over during the spring, there are more high-quality articles than ever pouring into journal offices.  So many high-quality articles, in fact, that a top journal finds it difficult to resist filling their entire volume just from the spring submissions alone.  Of course, top journals could resist the temptation, but they may not see the point once they’ve already invested the time to read and decide on a sufficient mass of articles.  They may also fixate on the pieces in front of them rather than assume that stronger pieces will be available in the fall.  This is just a version of the “unraveling of the market” that Dave Hoffman cited to explain why the spring cycle itself seemed to be creeping up earlier and earlier.  All this hinges, of course, on the quantity and quality of spring submissions hitting a critical threshold such that journals tipped from saving slots for the fall to consuming almost all of them in the spring.  By the fall, however, journals feel constrained not to steal even more spots from the subsequent spring, because it would be taking them away from the next board of editors and next volume.

There are at least two significant costs of the migration of publication slots from fall to spring.  The first is that we may, before long, have only one cycle for submissions per calendar year—the spring.  Spring versus fall as a matter of timing isn’t a big deal, but having two cycles per year for submissions versus only one is a big deal.  If you have an article that isn’t quite ready for the spring cycle, then you would need to wait a full year for the next spring cycle to submit it.  The result is increased turnaround time between completion of the average article and its publication date.  Articles therefore become less timely on average, and scholarship takes longer to become widely disseminated in finished form.  This development would cede one relative advantage of student-run law journals over academic peer review journals—speed.

The second cost is that the spring cycle, as the only cycle, would become even more chaotic and random.  I don’t know whether authors have fully adjusted to the shift from fall to spring, but if they do, authors might submit all their work during the spring.  The obvious result is that virtually all article selection for top journals would occur in basically a couple months.  The volume of submissions would place additional stress on articles editors, and time pressures on both articles editors and authors in the competition for articles would speed up.  More articles, more decisions, compressed into a shorter period of time.

4

Subsidizing Student Scholarship

In recent discussions about reforming law review submissions to decrease the burden on editors, authors have been treated more or less as a unit. The argument goes that all authors submit too many articles, creating a mountain of paperwork for poor editors to sort through.  But of course not all authors are similarly situated – letterhead bias distinguishes between professors; practitioners have little time to polish pieces and consequently rarely make it to board reviews; and many journals exclude student authors entirely.

Notably, excluding student authors is a foolish rule that testifies more to student editors’ insecurity than to any thoughtful judgment about the quality of scholarship produced by particular authors.  (I’ve made this argument repeatedly here and to every Law Review editor I speak to – I won’t bore you with it again.)  Assuming that this bad policy is on the way out, I wondered whether law schools ought to be in the business of subsidizing scholarship by, say, paying for submissions on expresso.

Of course, we already subsidize scholarship in a sense by creating a system of writing seminars and guided research credits. (In my view, such credits could and should be better spent). But direct subsidies are relatively rare.  When I was at Harvard, there was no money available for what was then a hard-copy mailing process. Mike O’Shea and I were lucky enough to get Olin Center funding to mail out this piece.  Later, I heard that Elena Kagan made funding generally available.  I’ve no idea how common that practice is – Temple, for example, limits its BePress account to faculty.

Some schools obviously have sufficient resources so as to make the choice anodyne.  For others, the pros and cons are worth discussing:

Pros:

  1. Students who can publish at an outside journal get a resume item of some use, and not incidentally increase the likelihood that someone will actually read their work.
  2. We pay for similar resume-enhancing items – like clerkship letter postage – which benefit only a few members of the class.
  3. Spending law school funds on direct student services is generally a good thing!
  4. The cross-subsidy argument in con #2 applies as strongly to paying for faculty scholarship. What’s good for the goose….

Cons:

  1. The world doesn’t need more law review submissions –  and paying for submissions creates moral hazard for students just as it does for their professors.
  2. Taking tuition dollars and giving them to students to produce scholarship, so as to produce resume credentials, effectively is a wealth transfer to students who need help the least.  Exactly like the clerkship process, schools end up pouring resources into the most credentialed members of their class.

What do you think?

7

Should Law Reviews Charge for Submissions?

Yesterday I read this post about possible changes in the way that law professors submit articles to student-run journals.  One issue is that electronic systems have led to a sharp increase in the number of submissions at many journals, and they basically just cannot handle the volume.  This problem is compounded by the risk-averse practice of submitting to every journal, which I know some people do, so they can generate an offer and seek expedited review.

There are many ways to deal with this problem–exploding offers, for example–but here’s one that should get more attention.  Normally rationing occurs through prices, so why don’t law reviews just charge for submitting?  They would make money (and could become self-sustaining) and fewer people would submit.  If law schools absorb submission costs, then that would not do much to stem the tide.  Then again, that could just mean that law reviews could charge fairly high prices for the privilege of submitting until they reach a price point where schools would start limiting the number of submissions that their faculty could make.

0

Quantifying Probable Cause

The quantification of legal standards is an important and interesting topic that has garnered much attention in various contexts. We know that the preponderance of the evidence standard requires greater than 50% certainty, but most other legal standards, including beyond a reasonable doubt, probable cause, and reasonable suspicion, remain undefined numerically. The debate remains active between what I’ll call “fuzzy types,” who distrust the incorporation of math (with its potential false sense of precision) into the law, and “hard types,” who seek to add increased precision and clarity using numbers.

My first Concurring Opinions blog, posted in April, and the discussions that followed inspired a paper on quantifying probable cause. Getting Beyond Intuition in the Probable Cause Inquiry seeks to assign a numerical value to probable cause in situations where quantifiable evidence is already a critical factor in the probable cause inquiry.  This would occur where, for example, an alert by a drug sniffing dog is the sole evidence offered to satisfy probable cause. The paper uses a hard-type approach, but largely in situations where the valid concerns of the fuzzy types are minimized. I have posted a draft of the paper at SSRN, and I will be submitting the paper during the August submission season.

I will post more blogs in July, but I’d like to thank everyone who commented on my blog posts.  The discussions have helped shape this paper. I am a huge champion of legal blogs, both because of their ability to facilitate exchanges of more accessible length than law review articles, and because of their ultimate benefit to the content of law review articles.

 

4

Sabbatical Grant Opportunities for Law Professors

In my capacity as Associate Dean for Research at my school, I’m trying to compile information about fellowships or grants that are available to law faculty and could be used to support a research leave. I know about the obvious ones (e.g., Fulbright, Guggenheim, Burkhardt), but if you know of others, I would much obliged to hear what you know.

4

A Tip on Writing Better Articles.

There’s tons of advice out there on how to get better placements for your academic writing.  Much of that genre holds writing quality constant or assumes it away.  But that’s silly.  Pat Rothfuss, one of my favorite fantasy authors and a former interviewee here at CoOp, has written a terrific column on how to avoid a mistake that bedevils first-time fantastists and junior scholars alike: excessive and ponderous vomiting of everything the author learned while preparing to write.  His diagnosis of the problem is lucid, and for fans of the genre, familiar:

“So here’s how it goes wrong.

1. You create something for your fantasy world: a creature, a culture, a myth, whatever.

2. You’re proud of your creation. You’re excited about it. You love it with a fierce love.

3. You need to describe this thing to your reader, because if they don’t understand how it works, your story won’t make sense.

(3b. Remember, the story is the real reason people are there. Story is everything. Story is god.)

4. So you start to explain how folks in the the Shire celebrate their birthdays. (This is important because one of the first major events of the book is a birthday party.) You talk about how hobbits give presents away at their parties instead of receiving them. (This is important because it ties into why Bilbo is going to hand over the ring to Frodo.)

Then you start talking about how some of these presents get passed back and forth, party after party. And how those items are actually called mathoms, and how there’s actually a museum full of mathoms at Michel Delving, which is in the Westfarthing of the shire, since, as you know, the Shire is composed of four sections which take their names from prominent families in the area, such as Tookland being named after the Tooks, who are among the largest and oldest of the Shire families, and in fact still held the title of Thain, which had been passed to them from the Oldbucks, and while the title was largely ceremonial these days due to the lack of Shire-moot in recent, peaceful times…. …

You see what happens? It’s easy for an author to get so caught up in the details of the world they created, that they go off the rails and give us more than is really necessary for the story.”

How many articles have you seen where an author provides multiple footnotes in each sentence of the introduction, each larding on another fact that the reader is compelled to digest?  Or first sections of articles that, in elaborate detail, tell you what the existing literature says.  Such articles are exhausting to even skim – it can be fifteen to twenty thousand words before we start to get a hint of the author’s unique contribution. We get it – you did your homework!

Follow the link to read Pat’s advice on how to avoid the problem.

14

The Tragedy of Anonymous Comment Threads

Shame About Submissions Is For Suckers

Prawfs is running its annual Law Review Angsting thread.  Like many such threads, it is dominated by anonymous commentators. That struck me as odd, and I said so.  Several anonymous commentators immediately objected that I wasn’t understanding the reputational risks involved.  They said that for pre-tenure scholars, “there is a distinct risk in publicly announcing that you have an article submitted for publication, at least before it is actually accepted.”  The argument goes that the piece it isn’t accepted, and the person goes on the lateral or entry market, then the world will know that they are shopping around already rejected goods.  Another commentator that if you talk about your article not getting offers, you might sway law review editors against the piece. Failure reeks.

I found these arguments surprising, and weak.  But I don’t want to hijack Prawfs’ thread, which is now moving onto further productive hand-wringing.  So, here goes.

1.  This strikes me as a commons tragedy of sorts. If the norm was to sign your name as a part of an effort to be transparent about an obscure process, and both successful and unsuccessful authors repeatedly shared information about their processes, then journals wouldn’t take adverse inferences. But since that’s not the norm, people who do sign their names are fearful of being singled out as lemons.  (I think that the real chance of a journal taking this kind of inference is approximately negative 1 billion.  They can’t even manage to read real articles in front of them.  Or be prepared for class. They are not reading the seventh page of a Prawfsblawg comment thread.)  Similarly, if being open about your identity was encouraged, academics wouldn’t have the reaction that the commentators worry about.  But it isn’t.  So each individual commentator, acting in their perceived self-interest, is anonymous. The quality of information decreases.  Free-riders abound.

2.  In Paul Horwitz’s magnificent post, Courage, Prudence, and Tenure, he noted that young scholars are often too prudent and insufficiently courageous.  He also said that it’s the job of more senior academics to push courage.  This, I think, is a very small example of that phenomenon. Look. You can be as tactical and careful and strategic as you want. You can fret till the sun goes down about every shadow behind every bush. And that kind of strategic maneuvering might – might – pay dividends at tenure time. But it strikes me that if you live your life in that kind of crouch, you probably will not produce exciting scholarship, or be an inspiring teacher, or contribute meaningfully to the institution you are at. You probably will be an uninteresting blogger.  In this regard, I think sometimes about an academic who, when he started teaching, had a ton of interesting ideas. You know the type.  But he never amounted to much as a scholar in part because he was so very afraid of what others thought about his work.  Would people realize he didn’t actually know what he was doing?  That his ideas weren’t as shiny in written form as they had been when he first spun them out over coffee? What if he didn’t achieve his potential? Better, he convinced himself, not to write than fail to be a once-in-a-generation-colossus.

3.  And even if you are fearful of seeming to fail, waiting for law review editors isn’t failure, and you shouldn’t see it that way.  Law review submissions is a weird process – there is zero feedback, the timing is peculiar and random, the stakes feel high.  People invent all kinds of reasons why it works the way it does, and what you can do to get control.  Struggling with submissions is the norm, even for very accomplished people at very elite institutions. The person who gets three offers in two days is the exception. And it is the norm for established teachers and newbies alike.  I’ve waited 18 months for a peer review process to end with an acceptance.  And last year, we waited for Stanford Law Review for four, excruciating, months.   This year, I’ve had an article out for a month – with basically no word – and another for a week – again, silence.  The commentators at Prawfs make it seem like I ought to feel embarrassed or ashamed. I don’t. And if you are waiting for an acceptance, you shouldn’t either.  It will come.  Or it won’t.  While you are waiting, you can write something else.  Get back to work.

2

Don’t use et al.

As a co-authored piece just recently reminded me, I’ve a huge grudge against the Blue Book.  (Which hasn’t yet escalated on their side to using me as an example as a but see.  Or worse!  Actually, I’m not sure that the great platonic blue book guardians even know I’m mad at them.)  As I wrote in 2007:

“Rule 15.1. R. 15.1 states that when there are two or more authors, you have a choice:

Either use the first author’s name followed by “ET AL.” or list all of the authors’ names. Where saving space is desired, and in short form citations, the first method is suggested . . Include all authors’ names when doing so is particular relevant.

This seems to me to express a pretty strong non-listing preference. The “problem” is that much good interdisciplinary work results from collaborations among more than two authors – it is the nature of the beast . . . This seems like a trivial objection, but it will take on increasing weight over the next ten years as empirical legal studies really comes online in the major law reviews.”

The trend toward interdisciplinary, multiple authored, pieces continues.  And though it’s true that law reviews are a dying beast, there is still no good reason at all for omitting the names of authors in the first footnote in which the work is cited. “Saving space” is a terrible argument: we could do that by getting rid of useless and often inaccurate parentheticals “explaining” the source, often written by cite-checking second year students.

If I were running a law review seeking to differentiate itself, or an author negotiating with a few journals, my deal points would be: (1) color graphics on the web version of the article; and (2) no et al. usage.  That has to be more constructive and useful than “lead article” status!

0

Stanford Law Review Online: The Privacy Paradox 2012 Symposium Issue

Stanford Law Review

Our 2012 Symposium Issue, The Privacy Paradox: Privacy and Its Conflicting Values, is now available online:

Essays

The text of Chief Judge Alex Kozinski’s keynote is forthcoming.