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Going Digital: The Future of Reprints?

reprints1.jpgOne of the great things about law review articles is that you can order a batch of reprints — separately-bound copies of your article that you can send out to a list of your colleagues. I have a large and growing database of various professors, policymakers, journalists, and others who receive copies of my articles — a fact that is not without some irony, since many of these people are in the information privacy law field, and I have written extensively on the problems posed by databases. Thus, ironically, I maintain a database with one of the most extensive collections of people who criticize databases.

It is common practice among law professors to send out reprints widely, as this is a way to present one’s scholarship to others in a highly-readable format. But reprints come at a considerable cost. Recently, I got the price quote for a reprint order for a soon-to-be-published article. Under the pricing scheme, I get 40 free reprints, but that’s not nearly enough for my database, which includes hundreds of people. For 200 extra reprints, it would cost about $744 and for 400 extra it would cost $1059. Wow! I nearly had a heart attack . . . and I’m not even the one paying the bill — my school picks up the tab. Anyway, if I handed a bill for over $1000 to my dean, the keys to my office might not work the next day. Plus, there’s the cost of postage, envelopes, and stationary.

So here’s my idea. I’m thinking of moving toward a system of electronic reprints. I could send out a PDF version of the final article in an email to everybody in my database. In other words, I’d shift from being a junk mailer to a spammer. . . .

In my email, I’d include the text of the letter I would have sent to accompany the reprint, attach the article in PDF format, and possibly include a link to the final version of the paper on SSRN. I’d still order some reprints — about 50 to 100 — and offer to send hard copies of the reprints to anybody who requested them. My guess is that I’d get a few people requesting the actual reprint, but most people interested in reading the article would just print it out from the attached digital version.

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2

O Canada!

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Today Canadians go to the polls to see if the ruling Liberals remain in power, or if they will be ousted in favor of the Conservatives. (For those who don’t closely follow such things, Canada is a small country south of Detroit.) The Liberals have been in power for a long time, and aside from the normal woes of prolonged incumbency (in-fighting, intellectual exhaustion, voter fatigue, etc.), the Liberals are also reeling from a scandal over the funneling of government advertising money in Quebec into Liberal coffers. The Conservatives are sharpening their knives and trying their darndest not to make any anti-Quebec jokes in public.

The Liberals are pinning their hopes on America, or more precisely, Canadian aversion to America. Aside from (eastern) Canada’s cultural dislike of America, the Liberals have been pitched a great slow ball by the Bush Administration, which in its role of protectionist pander to the American timber industry has been flouting a final ruling to the effect that US soft-wood tarrifs against Canada are a blatent violation of the its NAFTA treaty obligations.

While most Americans are likely to react to this issue by saying, “I didn’t realize that Canada was — you know — technically a separate country,” it has been a very big deal north (or south if you are in Detroit) of the border. Interestingly, the American judiciary has also popped up as an issue in the campaign:

[Martin, the Liberal PM] seized this week on Harper’s [the Conservative challenger] criticism of judicial activism, warning that the Conservatives would try to circumvent the courts. Helping Martin, the attorney general of Ontario, Michael J. Bryant, accused Harper of wanting to “Americanize our judiciary.”

What they are arguing about here is the Canadian Supreme Court’s decision on same-sex marriage. Now regardless of how one comes down on the merits of Canada, same-sex marriage, or the evils of the United States, this is a bizarre rhetorical game. Whatever judicial involvement in contentious social issues may be, it is as American as apple pie. (And yes, I realize that they have apples in Canada too. The Bush Administration is probably secretly funding covert Canadian crop destruction at the behest of Washington apple farmers.) Indeed, it seems to me that strong judicial review has been one of America’s few constitutional exports. Most places have not been too impressed by the separation of powers and a strong independent executive. In this sense, the Westminster model has been much more successful around the world than has been the American model. What countries — notably Canada and Israel — have self-consciously borrowed from the United States are strong, independent judiciaries dedicated to the legal elaboration of fundamental rights.

Hitting Harper for secretly wanting to Americanizing Canadian health care might be a bit plausible. As for the Canadian judiciary, it strikes me that it has already been Americanized…

2

On Conservative and Liberal Labels

My most recent post has engendered some discussion on a point tangential to its purpose, but important nonetheless — how to determine whether a particular Justice (or, I imagine, judge or individual for that matter) is conservative or liberal, or somewhere in between. Can we agree in any significant percentage of cases that an individual belongs at a particular place on that spectrum?

I think the answer is no, because such categorization depends on context, and each of us subjectively chooses the context.

Focusing on categorizing judges, now, each of us, I imagine, wants to see conservative and liberal as labels indicating the direction in which the given judge deviates from the ideal. Thus Judge Bork sees originalists not as “conservatives,” but as simply applying the law, and I am sure others on the left are the mirror image. If you’re an originalist, therefore, a conservative is one who deviates from originalism to achieve conservative results, and a liberal is one who deviates from originalism to achieve liberal results.

But because we have no agreement on what is the proper way to interpret legal texts, including constitutions, any labeling system dependent on evaluating a judge’s agreement with the “correct” results is not likely to be effective in general conversation. There are two alternatives I see. First, you could make the label purely relative, being explicit about context. In that manner we could quite sensibly (if over-simplistically) refer to the most conservative Justice on a certain issue, or even the most conservative Justice overall on the current Court.

Second, the inquiry could be more self-consciously empirical, in that a Justice will be scaled liberal or conserrvative based on the percentage of cases in which he decides cases in a liberal or conservative direction. Thus, we would rank Justice Ginsburg as 60% liberal, and Justice Scalia as 34% so. Such an effort has the promise of being relatively objective, but even there there are problems with determining how liberal one must be to be a “liberal” and so forth. For example, Epstein & Segal (from whom I got those figures, see p. 126) characterize Justice Ginsburg as “moderately liberal for voting liberal 60% of the time, but characterize Justice Scalia as “very conservative” and “extremely conservative” for voting conservative 66% of the time.

These debates are played out in plenty of areas besides the judiciary, and rarely do we agree on resolutions because we rarely agree on the proper context. Is academia liberal, for example, because such an overwhelming majority votes Democratic? Or is it conservative because taking a world view American academia is less liberal than much of the rest of the world?

3

Confessions of a Stack Rat

stacks small-thumb.jpgI’ve been thinking a lot, recently, about the purposes of law libraries. In part that’s because of Dave Hoffman’s insightful post about these institutions. The bigger reason is that I’m on the library director search committee for one of the two law schools Dave mentions: the nascent Drexel University College of Law. (Reading between the lines: I will be joining Drexel Law this fall as an inaugural faculty member.) In this context, I’ve confronted an issue that is front and center for librarians – the rise of the digital collection.

I have mixed feelings about digital libraries. On the one hand, there is the nasty truth of the matter: I do most of my research on my computer. I rely on Westlaw and Lexis for most case and law review research. I use the many other fabulous databases to uncover articles in other disciplines. And then there is the world’s easiest (if not always most reliable) way to learn stuff: Google. The ABA, however, rightfully requires a core collection of materials for those without access to digital collections, and I think there are good pedagogical reasons to train law students to do book research. Also, while this will change, today’s fully digital library has a gaping hole in the area of treatises and monographs.

And what about serendipity as research method? How many of us have discovered important books simply by browsing through a call number? John Searle’s Speech Acts may be off the shelves (presumably relaxing in the cluttered office of an English professor), but what of the other 200 books adjacent to B840 .S4 1977x? We lose access to valuable knowledge when we lose the Eureka moment of the unexpected book discovery.

For a stack rat like me, more is at stake though.

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1

Three Cheers for Law Reviews

book18a.jpgLaw reviews get little respect both within and outside the legal academy. For those unfamiliar with the system, legal academics publish their articles in law reviews, which are edited and run by law students. Law students select the articles, not professors. In contrast, journals in most other fields are peer reviewed and edited.

The conventional wisdom is that it is immensely silly and problematic to have students selecting and editing our articles. But while I have many gripes about the current system, there are actually many virtues to the law review approach that are not being stated. So I aim to be contrarian and (ironically) defend the status quo.

1. Article Selection. One argument is that a peer-edited system would be better in article selection. On the surface, it does seem quite odd and almost absurd for professors to have students do the article selection. Critics of the law review system say that students often don’t have sufficient knowledge about a field to appropriately assess the quality of articles.

But with student-selected articles, it is not as though peer assessment is vanquished. It just occurs after publication. To the extent that we use law review placement as a proxy for article quality, we’ve got ourselves to blame. I do think that there is a rough correlation in article quality and placement — the system isn’t perfect, and many mistakes are made, but I wonder whether perfection is possible or efficient. To the extent that we doubt law review placement as a proxy for quality, then we can discount it and assess articles on their own merits. In the end, I think that the objection is really about the fact that other professors (not ourselves and our friends, of course) will not appropriately assess the correlation between law review placement and article quality. In a sense, this is an argument that we don’t trust the judgment of our peers. But that shouldn’t mean we blame the law reviews — we should blame ourselves.

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4

Criminal Prosecution for Scientific Fraud

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I spoke to a reporter at the end of last week about the criminal prosecution of scientific fraud. I’m not sure how coherent my end of the conversation was at the time, but I thought the topic was interesting enough to return to it briefly here.

Let’s put aside potential investigations and prosecutions by the federal Office of Research Integrity (part of DHHS). Granted, the ORI has claimed an extraordinarily broad mandate (funded and unfunded applications!), which might be worth returning to one day. But on the whole, such cases seem to me to be a fairly mundane application of the general contract fraud principles.

Instead, I’ll concentrate on a free-floating action in fraud against a scientific investigator for having misled potential patients. Thus, consider the scenario of a doctor faking an experiment to show that Drug X prevents heart attacks and has no side effects, when, in fact, it has no preventative powers, and it causes immediate hair loss. Is that doctor criminally liable? Civilly?

I’d guess that to the extent that general fraud often requires an intent-to-induce element, most scientists would be able to successfully assert that they did not intend for patients to rely on their work. In the civil context, I also assume that a consumer’s action would fail on the “justifiable reliance” end. If this weren’t true, I imagine that most scientific papers would end with a disclaimer that they are not intended to be relied upon, and that patients ought to consult their physicians (etc.)

But let’s put aside the doctrine for a moment and consider the policy arguments for attacking scientific fraud with prosecution. There are at least two reasons to think this is a bad idea (again, apart from the government-contract fraud case).

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14

The Portrait of the Lawyer as a Young Man

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Last week, the WSJ Law Blog had a quick write-up on Douglas Litowitz’s recent book The Destruction of Young Lawyers, which seems to be a fabulously original stream of assertions to the effect that there are a lot of unhappy junior associates in big law firms. Shocking! Just shocking!

Now I should point out that I am a young associate at a big law firm, and I admit that I am from time to time quite miserable. It is a high-pressure job. The hours are long, and frequently your days consist of high-stakes boredom, which combines stress and monotony in a rather toxic cocktail. Some of this is structural. Big-time litigation is not possible without massive priv reviews. The billable hour creates a really cruddy set of incentives for young attorneys from a life-style point of view. However, I think that these structural defects in the legal market — especially at “elite” firms on Wall Street or K Street — have less to do with the spiritual misery of young lawyers than two other factors: lack of interest in the law and the mismatch between the dominant myths about the legal profession current in law schools and the reality of the legal profession in practice.

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8

The Consequences of Misleading the Judiciary Committee

Edward Lazarus’s column on Findlaw this week discusses the constraints Chief Justice Roberts and Judge Alito have placed on their behavior on the Supreme Court by their Judiciary Committee testimony. Specifically, Lazarus argues that should Roberts and Alito turn out to be more doctrinaire than the moderate conservatism displayed in the hearings, the consequences would be “longstanding and grave.” (Lazarus does not elaborate on the nature of those consequences, which could range from possible impeachment, to restrictions on the Court’s power by legislation, to a loss of confidence among members of the public, to demands for even more specific promises from future nominees, etc.)

I am not confident that Lazarus is correct as a general matter, though he may be as to his principal example — voting to overturn what is left of Roe v. Wade. I see little evidence, for example, that Justice Ginsburg is suffering any ill effects from Congress though she has done little on the Court to justify her image in 1993 as a “moderate liberal.” Similarly, though all nominees routinely profess to understand that the law is more than their personal policy preferences, once on the Court they routinely break that promise. (As Justice Scalia said in a related context, campaign promises are, by long democratic tradition, the least binding form of human commitment. See Republican Party v. White, 536 U.S. 765 (2002).)

If I am correct, there could be at least three reasons there are few repurcussions thus far for reneging on Judiciary Committee commitments. First, Republicans may lack the guts to use ideology in the way that Senate Democrats do. We’ll see whether this is true the next time a Democratic President nominates a potential Justice, but the Republicans’ acceptance of Ginsburg indicates it might be true. Second, a determined minority can prevent Congress from taking just about any official action, so even opposition to a Court decision can be expected to result in no action so long as at least one committee in one house supports the Court’s decision. And of course impeachment is practically impossible. Third is the most obvious: Because the statements nominees make are so general, no behavior could constitute breaking that “promise.”

4

NYT Profiles A3G

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In the New York Times today, there’s an interesting profile of David Lat (aka A3G), the author of the blog Underneath Their Robes and soon-to-be author of the popular political gossip blog Wonkette. Some highlights include the reaction of the U.S. Attorney’s office where Lat worked when he revealed he was A3G:

Calls from news media organizations came pouring into the United States attorney’s office. The spokesman for the office, Michael Drewniak, was fuming. Mr. Lat was told by his superiors that it would be wise to take the site down, and he did. He was also told not to return calls from the news media, and he did not.

As the week progressed, Mr. Lat, a slight man with a habit of blinking hard when he is nervous, heard nothing from the boss, United States Attorney Christopher J. Christie. Some colleagues told Mr. Christie that what Mr. Lat did was wildly inappropriate, and that he should be fired. Others tried to convince him that this 30-year-old son of Filipino immigrants, a graduate of Harvard University and Yale Law School, was an otherwise model employee who had simply made a mistake and deserved another chance.

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