Archive for the ‘Law Talk’ Category
posted by UCLA Law Review
Volume 61, Discourse Discourse
|The View From Below: Public Interest Lawyering, Social Change, and Adjudication||Douglas NeJaime||182|
posted by UCLA Law Review
UCLA Law Review, Volume 60 Symposium
Twenty-First Century Litigation: Pathologies and Possibilities
A Symposium in Honor of Stephen Yeazell
Volume 60, Issue 6 (September 2013)
Volume 61, Discourse
|Re-Re-Financing Civil Litigation: How Lawyer Lending Might Remake the American Litigation Landscape, Again||Nora Freeman Engstrom||110|
|Of Groups, Class Actions, and Social Change: Reflections on From Medieval Group Litigation to the Modern Class Action||Deborah R. Hensler||126|
|Procedure and Society: An Essay for Steve Yeazell||William B. Rubenstein||136|
|What Evidence Scholars Can Learn From the Work of Stephen Yeazell: History, Rulemaking, and the Lawyer’s Fundamental Conflict||David Alan Sklansky||150|
|Procedure, Substance, and Power: Collective Litigation and Arbitration Under the Labor Law||Katherine V. W. Stone||164|
August 31, 2013 at 4:09 am Posted in: Civil Procedure, Corporate Law, Education, Law Rev (UCLA), Law School, Law School (Law Reviews), Law School (Scholarship), Law School (Teaching), Law Talk, Legal Theory Print This Post No Comments
posted by Michael Simkovic
Here is the overview.
Here is the first part.
July 24, 2013 at 8:52 am Tags: Economic Value of a Law Degree, economics Posted in: Economic Analysis of Law, Education, Empirical Analysis of Law, Law Practice, Law School, Law Talk Print This Post No Comments
posted by UCLA Law Review
Vol. 61, Discourse
The killing of Trayvon Martin in 2012 and recent verdict in the trial of George Zimmerman has generated intense national debate. Mr. Zimmerman’s verdict has not ended the discussion, but instead caused of a firestorm of conversation in the national media.
In light of this debate, we offer a 2012 essay published by two UCLA Law alums discussing the concept of implicit bias and its relationship with gun violence. The essay remains timely event a year after its publication, and can be found here.
posted by Michael Simkovic
posted by Taunya Banks
The original title for this post was The People’s Supreme Court? because it was triggered by an article in last week’s New York Times about the increased use by law firms of place-holders (paid stand-ins) for seats at the United States Supreme Court. According to the article, “place holding is common at Congressional hearings and is on the rise at the Supreme Court, where seats for last month’s arguments went for as much as $6,000.” An earlier piece, published around the time the same-sex marriage cases were argued, noted that the practice has its detractors, including former Congressman Barney Frank, whose proffered remedy is televised Supreme Court arguments.
I changed the title of this post after an incident on Friday. While returning to my law school midday I passed a scraggly group picketing in front of a neighboring Marriott Hotel. The signs said that the protesters were picketing because the Carpenters Union had a beef with the management. As my very general description suggestions, I did not look at the signs too closely. I was distracted because many of the protests were so drunk or drugged that they could not walk in a circle. A colleague with whom I was walking informed me that some labor unions now hire homeless people to walk picket lines for them. Surely the Union did not think that the picketing would be effective. I was astonished that actual Union members were shirking their membership responsibilities, but did I have a right to be appalled?
Hiring stand-ins for pay is a very American institution. Read the rest of this post »
posted by Gerard Magliocca
I’ve got a question for all of the law review editors (and faculty) who read CoOp. My article on the Bill of Rights is coming together much faster than I had anticipated and may be done in a week. Is a general submission at that point worthwhile, or is too late?
posted by Gerard Magliocca
I have not seen Lincoln yet–it feels too much like work– but I may reconsider after reading something yesterday. An excellent paper about James Wilson by Nicholas Pedersen (published in 2010) points out that one reason his modern reputation is poor is that he was depicted (inaccurately) as a loser in the musical 1776. I must admit that it’s been a long time since I’ve seen that movie, so it’s not something that I remembered. Still, it’s worth thinking about.
I’m kind of wondering who else might fall into this category of “popular culture has treated them badly.” Richard III might be a good example, though I don’t know enough about the War of the Roses to say. When it comes to Americans, William Jennings Bryan comes to mind. Most people who watch Inherit the Wind know that it is a thinly veiled portrayal of Bryan and the Scopes Trial, though they don’t typically know that its not an accurate version. Any other nominees?
posted by Gerard Magliocca
One idea for legal education reform that I’ve talked about before and want to repeat is that more states should allow people to take the bar exam without earning a JD. Until the early twentieth century, it was common for lawyers to get their training by serving as an apprentice to a licensed attorney for a period of years. This cannot, of course, fully substitute for law schools. Some people want more academic training or the opportunities available at a school with a broad curriculum. And there are only so many attorneys with the time or inclination to mentor apprentices. Still, why should state law block this path? Everyone has to pass the same bar exam. If a course that would allow students to earn money rather than rack up debt to become lawyers would work for some, then it should be an option.
posted by Lawrence Cunningham
Imagine law professor Felix Cohen giving a law faculty workshop of his famous 1935 paper, Transcendental Nonsense and the Functional Approach (here), addressing the topic of personal jurisdiction over corporations. But pretend he is presenting the paper to a faculty today, in 2012, and tune your hear to the sound of the words he might utter when explaining his argument to those assembled. If he followed the common gluey talk of fancy law professors today, it might be transcribed as follows:
The question of where a corporation is, right, when it incorporates in one state and has agents transacting corporate business in another state, right, cannot be answered by empirical observation, right. Nor is it a question that demands for its solution any analysis of political considerations or social ideals, right.
It is a question identical in metaphysical status, right, with the question scholastic theologians are supposed to have argued at great length, “How many angels can stand on the point of a needle?”, right. Now it is extremely doubtful whether the scholastics actually discussed this question, right. Yet the question has become, for us, a symbol of an age in which thought without roots in reality, right, was an object of high esteem.
Will future historians, right, deal more charitably with such legal questions as “Where is a corporation?” Nobody has ever seen a corporation, right. Some of us have seen corporate funds, corporate transactions, etc., right. But this does not justify assuming that the corporation travels about from State to State as mortal men travel, right.
Yet it is exactly in these terms of transcendental nonsense, right, that the Court of Appeals approached the question of whether the Susquehanna Coal Company could be sued in New York State. “The essential thing,” said Judge Cardozo, writing for a unanimous court, right, “is that the corporation shall have come into the State.” Why this journey is essential, right, or how it is possible, we are not informed.
The opinion notes that the corporation has an office in the state, right, with eight salesmen and eleven desks, and concludes that the corporation is really “in,” right, New York State. From this inference it easily follows, right, that since a person who is in New York can be sued here, right, and since a corporation is a person, right, the Susquehanna Coal Company is subject to suit in a New York court, right.
The much-maligned “you know” would be as productive as “right” in this transcript. You rarely hear law professors insert that phrase in their speech. Too polished for that. Yet they pepper their sentences with the annoying right, usually pronounced riiiiiight, with the lilt of a rhetorical question. A lamentable institutional habit.
UPDATE IN REPLY TO THE KIND COMMENT OF EDWARD CANTU: We had a post and conversation about So here at Co-Op, which can be viewed here.
posted by Lawrence Cunningham
Wonderful as it is to be cited, being cited incorrectly poses a dilemma. If your article is referenced for a proposition it does not support, what should you do? Should you alert the author of the piece or the editor of the journal? Should you ignore it? Should you correct the reference the next time you publish on the topic?
Perhaps the ideal response varies with the degree of error. Scholars delight to participate in the discourse, after all, and sometimes a citation that seems incorrect to an author is really a way to advance the conversation. A reference in ensuing scholarship explaining that contribution would be apt. Sometimes a piece is cited for a general point that an author rather than a reader would recognize as a bit afield. No response at all is okay.
But what about a statement that is clearly wrong? Suppose someone makes an assertion that European accounting law is principles based and cites my Vanderbilt Law Review article challenging the whole notion of principles based accounting. It infuriates me. I want to write to the author and editor to object. But should I? Should I care?
The problem is even worse than appears, because while I am particularly sensitive to incorrect citations to my own work, I also see incorrect citations to the work of others with which I’m familiar. It appears that many writers and editors today cite things without really reading them. It seems as though someone should say something. But who? And to whom?
posted by Gerard Magliocca
I’m starting to work on my next book, which will be about the New Deal. A leading character in that story will be Huey Long, and I thought I’d throw out one nugget about him that I haven’t posted before.
Long was 29 when he argued (and won) his only case before the Supreme Court in 1922. Years later, a quote surfaced from Chief Justice William Howard Taft stating that Long had one of the best legal minds to ever appear before the Court. Naturally, I was curious about the source of this impressive statement. Turns out that it’s a fabrication. There is nothing in Taft’s papers to confirm the quote, and nobody who uses it cites a primary source. Robert Post, the Dean at Yale who is writing the Holmes Devise about the Taft Court, once told me that the only mention of Long in the Justices’ papers came because he sent them (inappropriate) gifts after the decision.
Where did this quote come from then? It looks like it started appearing in newspapers in the early 1930s while Long’s political career was on the rise and after Taft was, conveniently, dead. My suspicion is the Long or one of his supporters simply made up the quote and fed it to a journalist. Can I prove this? Probably not, but we’ll see.
This gives me an excuse to tell one of the best Long stories (true or not). When asked in his oral bar exam how he would handle an admiralty case given that he knew nothing about admiralty law, Long allegedly replied “First I’d call the judge and then we’d split the fee.” He passed.
posted by Gerard Magliocca
To move away from health care . . .
As the Associate Dean for Research at my school, I would like to gather statistics on law review submissions. Specifically, I would like to see if at least some law reviews will give me the following:
1. The number of submissions that they received last year (for articles and essays separately)
2. The number of offers that they made. (The number of offers accepted I can, of course, figure out myself.)
In other words, I want to learn about the acceptance rates and yields of law reviews. I have no idea if they have this information or are willing to share. (This is for internal use at my school, so the data will be kept confidential if you so desire.) Any law reviews that would like to help me out can email me at email@example.com.
posted by Gerard Magliocca
I just pre-ordered Akhil Amar’s forthcoming book on America’s Unwritten Constitution: The Precedents and Principles We Live By. I’m sure it will be excellent, just like most of his work.
posted by Sarah Waldeck
This fall Minnesota voters will decide whether to amend their state constitution by adding a ban on same-sex marriage. The William Mitchell faculty recently adopted a resolution against the amendment and then released the resolution along with details of the faculty vote (24 – 7) to the press. The resolution first notes that the proposed amendment conflicts with William Mitchell’s anti-discrimination policy and “could substantially impair William Mitchell’s ability to recruit and retain the best qualified students, staff and faculty.” The resolution then goes on to list legal and moral objections to the amendment and states, “As a Faculty of Law, we believe that limitations on civil rights should not be enshrined in our state constitution.” Finally, the resolution encourages Minnesota’s three other law schools to adopt similar resolutions of their own.
William Mitchell’s action has left me thinking about several broad questions. First, when—if ever—do law faculties have a responsibility to take public positions on matters facing the electorate? Of course individual faculty members routinely comment on such issues, either in their own writings or when responding to press inquiries. But when an issue involves fundamental rights or constitutional amendments, are law professors obligated to weigh in “as a faculty?” For example, did law professors in the South have the responsibility to speak collectively about segregation? Or should law faculties on the West Coast have passed resolutions against Japanese internment? On one hand, law faculties reasonably can be expected to have opinions on such matters. If faculties do nothing, their silence could be construed as tacit approval or at least as evidence that the issue is not important enough to warrant public comment. On the other hand, public resolutions do not mean that all faculty members agree. At William Mitchell, for example, about one-fifth of voting professors are now publicly affiliated with a resolution that they were against.
This leads to my next question. If a faculty can’t speak with unanimity or at least near-unanimity, is there value in the faculty speaking at all? William Mitchell’s resolution specifically states, “Many people of good faith support [the proposed amendment], including some co-workers, students, and alumni, and they have every right to do so.” One can easily imagine the kinds of concerns and compromises that would lead to the inclusion of this language, as well as the decision to make public the 24 – 7 vote. But is the public likely to see that vote tally and just conclude that the William Mitchell faculty—like the state of Minnesota—is split on the merits of the proposed amendment? Assuming that law faculties are generally perceived as left-leaning, could the vote tally even have the unintended consequence of suggesting that there is something meritorious about the proposed amendment because 7 out of 31 law professors did not want the faculty to speak out against it?
Finally, if you conclude that law faculties are sometimes obligated to speak collectively and that doing so is effective, is the obligation limited to the faculties located in the areas where the problematic behavior is occurring? For example, did law faculties on the East Coast as well as the West Coast have a responsibility to weigh in on Japanese internment? Law faculties have a special interest in what happens in their own communities, so perhaps we would expect that if any faculty spoke against internment, it would be one on the West Coast. But if the relevant issue involves fundamental rights, are law faculties obligated to speak up about more than just what is happening in their backyards?
I’ve raised questions here without offering answers, but I’m hoping readers will take a stab at that in the comments.
Hat Tip: Mark Edwards
posted by Derek Bambauer
If you Google “Santorum,” you’ll find that two of the top three search results take an unusual angle on the Republican candidate, thanks to sex columnist Dan Savage. (I very nearly used “Santorum” as a Google example in class last semester, and only just thought better of it.) Santorum’s supporters want Google to push the, er, less conventional site further down the rankings, and allege that Google’s failure to do so is political biased. That claim is obviously a load of Santorum, but the situation has drawn more thoughtful responses. Danny Sullivan argues that Google should implement a disclaimer, because kids may search on “Santorum” and be disturbed by what they find, or because they may think Google has a political agenda. (The site has one for “jew,” for example. For a long time, the first result for that search term was to the odious and anti-Semitic JewWatch site.)
This suggestion is well-intentioned but flatly wrong. I’m not an absolutist: I like how Google handled the problem of having a bunch of skinheads show up as a top result for “jew.” But I don’t want Google as the Web police, though many disagree. Should the site implement a disclaimer if you search for “Tommy Lee Pamela Anderson”? (Warning: sex tape.) If you search for “flat earth theory,” should Google tell you that you are potentially a moron? I don’t think so. Disclaimers should be the nuclear option for Google – partly so they continue to attract attention, and partly because they move Google from a primarily passive role as filter to a more active one as commentator. I generally like my Web results without knowing what Google thinks about them.
Evgeny Morozov has made a similar suggestion, though along different lines: he wants Google to put up a banner or signal when someone searches for links between vaccines and autism, or proof that the Pentagon / Israelis / Santa Claus was behind the 9/11 attacks. I’m more sympathetic to Evgeny’s idea, but I would limit banners or disclaimers to situations that meet two criteria. First, the facts of the issue must be clear-cut: pi is not equal to three (and no one really thinks so), and the planet is indisputably getting warmer. And second, the issue must be one that is both currently relevant and with significant consequences. The flat earthers don’t count; the anti-vaccine nuts do. (People who fail to immunize their children not only put them at risk; they put their classmates and friends at risk, too.) Lastly, I think there’s importance to having both a sense of humor and a respect for discordant, even false speech. The Santorum thing is darn funny. And, in the political realm, we have a laudable history of tolerating false or inflammatory speech, because we know the perils of censorship. So, keeping spreading Santorum!
Danielle, Frank, and the other CoOp folks have kindly let me hang around their blog like a slovenly houseguest, and I’d like to thank them for it. See you soon!
Cross-posted at Info/Law.
February 29, 2012 at 5:54 pm Posted in: Advertising, Architecture, Bright Ideas, Culture, Current Events, Cyberlaw, Education, First Amendment, Google and Search Engines, Humor, Innovation, Just for Fun, Law Talk, Media Law, Politics, Psychology and Behavior, Technology, Web 2.0 Print This Post 7 Comments
posted by Danielle Citron
As my co-blogger Gerard notes, today is SOPA protest day. Sites like Google or WordPress have censored their logo or offered up a away to contact your congressperson, though remain live. Other sites like Wikipedia, Reddit, and Craigslist have shutdown, and more are set to shut down at some point today. There’s lots of terrific commentary on SOPA, which is designed to tackle the problem of foreign-based websites that sell pirated movies, music, and other products–but with a heavy hand that threatens free expression and due process. The Wall Street Journal’s Amy Schatz has this story and Politico has another helpful piece; The Hill’s Brendan Sasso’s Twitter feed has lots of terrific updates. Mark Lemley, David Levine, and David Post carefully explain why we ought to reject SOPA and the PROTECT IP Act in “Don’t Break the Internet” published by Stanford Law Review Online. In the face of the protest, House Judiciary Committee Chairman Lamar Smith (R-TX) vowed to bring SOPA to a vote in his committee next month. “I am committed to continuing to work with my colleagues in the House and Senate to send a bipartisan bill to the White House that saves American jobs and protects intellectual property,” he said. So, too, Senator Patrick Leahy (D-VT) pushed back against websites planning to shut down today in protest of his bill. “Much of what has been claimed about the Senate’s PROTECT IP Act is flatly wrong and seems intended more to stoke fear and concern than to shed light or foster workable solutions. The PROTECT IP Act will not affect Wikipedia, will not affect reddit, and will not affect any website that has any legitimate use,” Chairman Leahy said. Everyone’s abuzz on the issue, and rightly so. I spoke at a panel on intermediary liability at the Congressional Internet Caucus’ State of the Net conference and everyone wanted to talk about SOPA. I’m hoping that the black out and other shows of disapproval will convince our representatives in the House and Senate to back off the most troubling parts of the bill. As fabulous guest blogger Derek Bambauer argues, we need to bring greater care and thought to the issue of Internet censorship. Cybersecurity is at issue too, and we need to pay attention. Derek may be right that both bills may go nowhere, especially given Silicon Valley’s concerted lobbying efforts against the bills. But we will have to watch to see if Representative Smith lives up to his promise to bring SOPA back to committee and if Senator Leahy remains as committed to PROTECT IP Act in a few weeks as he is today.
January 18, 2012 at 10:11 am Posted in: Architecture, Civil Rights, Current Events, Cyber Civil Rights, Cyberlaw, First Amendment, Law Talk, Media Law, Social Network Websites, Technology, Web 2.0 Print This Post 2 Comments
posted by Kyle Graham
This is simply my list of the eight most suspect types of articles; I appreciate that others may suggest different, or additional, entries.
1. The Repository of Hope
“As the single-word title connotes, I am very disappointed that this article did not place in a T14 journal.”
2. The Strained Debunker
“In Part I, I will characterize a 1974 Pace Law Review note and a 2007 MySpace entry as embodying ‘conventional wisdom.’ ”
3. The Old-Wine-In-New-Bottles
“No one has evaluated the rule against perpetuities from an animal-rights perspective before, so, you know, what the hell.”
4. The One-Off
“In my previous article, I made a significant contribution to the literature. In this piece, I will coast on the vapors of that article.”
5. The Something Is Unconstitutional
“This article would make a fairly solid student note. It is my tenure piece.”
6. The Turf Staker
“My pre-emption check discovered no articles that cover this territory. I pretty much worked backward from there.”
7. The Half-Hearted Symposium Submission
“We would have tried harder, but hey, we’re talking about a symposium here.”
8. The Torn from the Headlines
“Few would recognize that the United States Supreme Court’s recent decision in ___ vs. ___ would fundamentally alter ___ law. Yet it did, or at least, you won’t be able to prove that it didn’t until this article is already well on its way to publication.”
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.
posted by Dave Hoffman
In a series of posts several years back, I interviewed fantasy authors about their work, including the role that law plays in the “hard fantasy” genre. My favorite interview was with Pat Rothfuss, then the author of the best-selling “The Name of the Wind“. Here’s what he said about the relationship between law and fantasy:
[DH] You’ve talked in interviews about the need to build a world in exhaustive and thoughtful detail, but leaving most of that information on the cutting room floor in the final draft. When you built Kvothe’s world, did you think (at all) about the background rules of tort, contract, obligation, and property that enabled the relatively sophisticated economy that you envisioned?
[PR] Yes and no. I thought of the legal system, but not in those terms. Mostly because I don’t know what a lot of those terms mean. It’s the same way that a person can be a good cook without necessarily knowing how to calculate how many joules go into melting butter using delta T.
The big reason you don’t see much of that in the book is that it isn’t relevant to the story being told, or the experience of the main character. He’s a street urchin for most of the book. If a sailor catches him with his hand in his pocket, he’s not going to press charges. What’s the percentage in that. He’s going to fetch the boy a sharp smack alongside his head, and get on with his day…
Now if Kvothe got brought up on legal charges somewhere, that would be different. Then the reader would see the horrible, corrupt wheels of justice creaking ponderously along. We get a glimpse of that in book two, as a matter of fact.
[DH] If you have imagined a common law system, what sources did you draw on to flesh out what it looks like in the “book behind the book.”
[PR] In the commonwealth, their legal system is based loosely on England in the 1500-1700’s. In short, it’s a huge, tangled, unfair clusterfuck of a system. There are courts that enforce church law, and courts that enforce the Iron Law of Atur. Each court operates under its own authority, and of course their spheres of influence overlap… It’s a real mess, but it’s the only system that they have…”
“Book Two” was released earlier this month, titled “A Wise Man’s Fear.” Pardon the pun, but it is a fantastic read. Well worth your time. And, lo and behold, on pages 328-329, there’s an actual trial. In fantasyland! But rather than get into it, glorying in how the rules of procedure and magic might interrelate, or examining how a system of logic and nuance (law?) would interact with one of fantasy and whim, Pat does this: ”What started as a terrifying experience quickly became a tedious process filled with pomp and ritual. More than forty letters of testimony were read aloud … There were days filled with nothing but long speeches. Quotations from the iron law. Points of procedure. Formal modes of address. Old man reading out of old books.” And later, when a character voices an objection to this cursory treatment (and who I dream to be a stand-in for me), the main character replies that a full account of the law “Would be tedious … Endless formal speeches and readings from the Book of the Path. It was tedious to live through, and it would be tedious to repeat.”
Tedious? Has he never heard of Erie? Of Jacobs & Young? Of Pennoyer, for lord’s sakes? The law isn’t tedious – it’s the stuff of drama!