Archive | Legal Scholarship

New Paper: “Kiobel Surprise: Unexpected by Scholars But Consistent with International Trends”

My article on Kiobel v. Royal Dutch Petroleum is up on SSRN. It is forthcoming in the Notre Dame Law Review‘s Federal Courts Issue.

Here is the abstract; comments on the article are welcome:

The unanimous ruling in Kiobel v. Royal Dutch Petroleum blind-sided the legal academy. The case involved one of the most contentious and dynamic aspects of U.S. foreign relations law, the Alien Tort Statute (ATS). Yet the Court surprised observers by deciding the case on grounds almost entirely ignored by the academy – the presumption against extraterritoriality.

Amazingly, despite an extensive academic literature on the ATS, the winning issue in Kiobel had never been examined in a law review until a 2003 student note. No court ruled on it until 2010. Indeed, the issue had not even been part of the litigation in Kiobel until the Court sua sponte raised it during oral argument. Finally, the Court’s unanimous endorsement of an extraterritoriality limitation came as yet another surprise to most observers, who predicted a split along more ideological lines.

The story of the extraterritoriality issue in ATS litigation is a case study in the path dependence of legal doctrine and of agenda-setting by the Supreme Court and the Justice Department. This Article examines the intellectual history of extraterritoriality arguments in ATS litigation, while placing Kiobel in a broader context of international trends in universal jurisdiction. The Article also considers possible reasons for this academic oversight. While normative approval of ATS litigation no doubted contributed to the neglect of the issue in the exciting early years of ATS litigation, its longstanding omission must also be attributed to broader intellectual factors. It demonstrates the power of sub silentio decisions: while courts had never dealt with presumption in ATS cases, most observers assumed the issue to have been

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A Market for State Borders

Following up on my earlier post on parts of a state seceding to join another state, I’d like to call attention to a neat article by Joseph Blocher, coming out in the University of Pennsylvania Law Review, entitled “Selling State Borders.” It suggests such political redrawing can be accomplished through sales between states, and shows how common such deals already are. [...]

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What Should You Do When Someone Incorrectly Cites Your Academic Work?

At CoOp, Lawrence Cunningham ponders how academics should respond when someone else incorrectly cites their work.

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?

It’s a good question, and something I’ve wondered about myself. [...]

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The Audiences for Legal Scholarship

Shapiro and Pearse’s latest study of the most-cited law review articles has inspired a lot of blogging and commenting about the proper audience for legal scholarship. This topic arises from time to time, so I wanted to offer some thought on it.

In my view, what makes legal scholarship so interesting is that there are many different audiences for it. The field of law wears many hats. It is a profession, a subject of public debate, a means of governance, and an academic field connected to many other academic fields. Legal scholarship can legitimately focus on any or all of these roles, and therefore any of these audiences. It can choose an audience of practicing lawyers (the profession), judges or lawmakers (the means of governance), other academics in law (the academic field), academics in other fields (the connections to other fields), or even the public (the subject of public debate).

In my view, all of these audiences are perfectly legitimate. The goal of legal scholarship is to offer insight into the legal system, and it can do so in different ways. Some insights happen to be ones useful to practicing lawyers; others to academics; others to judges; others to the public. In my view, it’s short-sighted to say that any one of these audience is the “right” audience. It’s human nature to think that one should be the focus, I suppose. Everyone in the legal system thinks that they should be the audience: Judges want more scholarship relevant to judges, practicing lawyers want more scholarship relevant to practicing lawyers, etc. In my view, though, the field of law serves too many roles for that. The proper audience for a particular idea about the law depends on the idea. As long as the idea offers insights into the legal system, then [...]

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Estimating the Costs of Legal Scholarship

Over at Inside the Law School Scam, Paul Campos reveals that he worked extensively with David Segal in helping Segal with his article on law professors and legal scholarship, and in particular with Segal’s estimate of the price students pay for legal scholarship. According to Campos, the basic methodology is to assume that 40% of law school operating costs pay the salaries of tenured or tenure-track professors, and that law professors spend 40% of their time writing articles. Multiplying the two suggests that 16% of law school operating costs pay for law review articles, which Segal estimates collectively at about $575 million.

I am no labor economist, and my comment is probably amateurish, but this strikes me as a puzzling way to calculate the costs of legal scholarship. It assumes that professors spend a fixed amount of time working and a fixed percentage of time writing articles. But that’s not the case, as professors spend a wildly varying amount of time working and a wildly varying amount of time writing. Some professors work very hard; some don’t. As a result, I would think that a better way to measure the costs of legal scholarship would be to compare the salaries of the professors who are active scholars with the salaries of the professors who are inactive scholars. (To determine the costs of X, compare the costs with X to the costs without X.) Consider an example. At a given school, it may be that a professor who spends 25 hours a week writing articles has earned merit increases in pay over time, and as a result is paid $40,000 more per year than a professor who doesn’t write articles at all. If so, that would suggest the costs of legal scholarship are somewhere in the ballpark of $30 [...]

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What Should Law Schools Teach? (What Should the NYT Learn?)

Today’s NYT has a lengthy front-page article on legal education suggesting that a major problem with legal education is the failure to teach law students how to practice law. There is something to this complaint — some schools and some legal academics do relatively little to prepare their students for practice and there is much relatively worthless legal scholarship — but the article overstates the case, fails to identify workable alternatives, and makes various errors about legal education and scholarship along the way. For instance, the article identifies a philosophy paper, published in a philosophy journal, as an example of how legal scholarship is divorced from legal practice. The article simultaneously harps on the high cost of legal education and suggests more clinical education is a good way to help prepare law students to practice law. Yet the article makes no mention of the fact that clinical education is more expensive than traditional doctrine-oriented classes.

For more on the article, see these comments from Matt Bodie, Brian Leiter, Jason Mazzone, and Larry Ribstein. As Ribstein notes, if one really wants to understand what’s going in on legal education, the good and the bad, one’s better off reading legal bloggers than the NYT.

UPDATE: Leiter has a fuller response to the article here, and Orin comments above. [...]

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The Ethics of Law Professor Amicus Briefs

Co-blogger Orin Kerr links to Richard Fallon’s interesting article on the ethics of law professor amicus briefs.

Fallon argues that lawprofs are far too quick to sign amicus briefs that fit their ideological proclivities even if they aren’t really expert in the underlying legal issues and sometimes even if they don’t agree with the particular legal argument advanced by the brief. He further contends that legal scholars should only agree to sign briefs if they 1) have personal knowledge of the major factual claims and legal authorities the brief relies on, 2) agree with the brief’s reasoning (not just its bottom-line conclusions), and 3) the brief makes at least some reasonable effort to confront key opposing arguments and evidence.

I certainly agree that Fallon has identified a real problem. For what it’s worth, I have long refused to sign amicus briefs except in cases where I am an expert on the relevant subject and I endorse the brief’s reasoning as well as its conclusion. This is less stringent than Fallon’s standard of personal familiarity with all the major authorities relied on by the brief. But it does have real bite. For example, I have refused to sign several amicus briefs in Second Amendment cases because, despite my sympathy for the individual rights theory of the Amendment, I feel I’m not expert enough on the subject to opine on it to a court. In another major Supreme Court case that did touch on areas where I am an expert, I refused to sign a brief because, even though I agree with its bottom-line conclusion, one of its principal arguments relied on a theory of the Spending Clause that I had criticized in my scholarship.

Are all legal scholars ethically obliged to follow something like my rules or Fallon’s more restrictive ones? [...]

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One Out of Three Law Professors at the “Top 13” Law Schools Has A Ph.D.

Joni Hersch and Kip Viscusi have posted an interesting paper counting the number of law professors at the “top” schools that have Ph.D. degrees. Of course, “top” is in the eye of the beholder: Hersch and Viscusi divide schools into the “Top 13” and then the “Top 26.” A few of the findings:

  • At the “Top 13” schools, 32.3% of faculty members have Ph.D.s. The most prevalent subject area for the Ph.D. was economics, with 9.2% of faculty members having an economics Ph.D. (see page 23)
  • At the next tier of schools, those ranked 14 to 26, the proportion of Ph.Ds dropped: 20.4% have a Ph.D. of some kind, with 4.1% having a Ph.D. in economics (see page 23)
  • Of the faculty at the Top 26 schools taken together, 979 have only a J.D. degree; 294 have a J.D. and a Ph.D; and 65 have only a Ph.D. and no J.D. (see page 21)

Thanks to Al Brophy at the Faculty Lounge for the link. [...]

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Chief Justice Roberts and Current Legal Scholarship

CQ‘s Kenneth Jost assesses “Chief Justice Roberts’ Ill-Informed Attack on Legal Scholarship” on his blog. As had been widely reported and discussed, Chief Justice Roberts was dismissive of the value of much legal scholarship at the Fourth Circuit judicial conference in June.

“Pick up a copy of any law review that you see,” Roberts said, “and the first article is likely to be, you know, the influence of Immanuel Kant on evidentiary approaches in 18th-century Bulgaria, or something, which I’m sure was of great interest to the academic that wrote it, but isn’t of much help to the bar.”

As I told Jost for his post, I think there is something to Roberts’ critique. Much legal scholarship has little relevance to the bar or the bench. At the same time, it would be a mistake to believe that practical utility is the only measure of legal scholarship. Empirical analyses of judicial behavior may not help judges resolve cases, but they can certainly aide in our understanding of the legal system. Much scholarship also has value for its own sake. [UPDATE: Even if some scholarship has intrinsic value, that does not necessarily mean it should be financed by law student tuition.]

Somewhat ironically, as Jost notes, this past term featured several opinions that relied heavily upon legal scholarship for their analysis, including Wal-Mart v. Dukes which extensively cited the work of the late Richard Nagareda.

Somewhat coincidentally, two legal scholars have a draft empirical study of the Supreme Court’s use of legal scholarship over the past 61 years. It finds that the Supreme Court actually cites legal scholarship quite frequently — in approximately one third of its cases. As Jost notes, eight of the current Justices cited legal scholarship at least once in their opinions this past term. [...]

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Anis Shivani on University Presses

My Washington College of Law colleague Robert Tsai points me to an interesting Huffington Post article  by Anis Shivani on new directions for university presses.  I have a somewhat more critical take on this, in the sense of an interest in the economic and business models driving the presses as they move in different directions.

For example, I wonder how falling costs of producing books and different and cheaper distribution models via Amazon interacts with a relative decline, at least among senior law professors, in the prestige of law review articles in favor of books.  I wonder about shifts in the hiring, promotion, tenure, and lateral process and ways in which that drives a cycle of academic production – at least among law professors – of crank out articles, repackage as book, start cycle again – but without it being clear to me, at least, that there is great value added in putting the articles between hard or soft covers.  We tell ourselves that we are pulling together a handful of articles into a unified book-y whole, but, well, I wonder how much it is simply driven by a combined shift in the prestige markers within our academic world and shifts downward in the cost of production, along with dissatisfaction with the student law review publishing model.

Is that a bad thing?  The sometimes assumed frivolity and waste of publishing in humanities, social science, and law – the purely critical story is not all there is to it, by any means.  I, for one, do look forward to a revival of the humanities as a source of meaning.  The availability of an increasing number of scholarly books at a much cheaper price than, well, Cambridge UP’s sticker-shocker numbers is a terrific thing.  It takes into account lower productions costs, the [...]

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One of these days I will take the plunge and compose a “greatest influences” books list, as some of the other Conspirators have done.  I have hesitated in part because my list would not tend to contain works of monumental ideas, but instead plays, works of fiction, poetry, and fragments that are not always  blockbusters in the history of ideas, as well major works of the left.

Part of this is generational.  I intellectually came of age in a period in which both Marx and Freud were still considered the giants, and in which the humanities had not yet collapsed into its current state of identity politics and post-modernist irrelevance; literature was still believed to shed light on something called the human condition – though these were by then on the way out.  Rational choice economics had not yet won over the academy, partly through its own intellectual strengths but also from being the ‘last man standing’ as the humanities sawed off the intellectual branch, as it were, it was sitting on.  I came from the peculiar position of what Larry Solum once called my “left Burkeanism” with a good bit of American libertarianism thrown in.

But it was not until quite recently that I read a long list of thinkers on the libertarian or conservative end of things – part of this was that I studied philosophy, not economics, and many of the leading thinkers pointed to by other Conspirators such as Hayek or Friedman did not figure into my intellectual education.  I am the classic case of one of the tangential but not unshrewd definitions sometimes given of a neoconservative – a leftwinger who has moved right.  For many of those “neoconservatives,”  including me, the core intellectual influences from early on come, not from the right or even [...]

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Financial Regulation Reform – AALS Call for Papers

The American Association of Law Schools section on financial regulation is seeking paper proposals for the January meeting on all topics of financial regulation and regulatory reform.  The deadline for proposal submissions is August 1, fast approaching; I have posted details below the fold, and you can also contact my colleague Anna Gelpern with any questions … agelpern at wcl dot american dot edu.  I encourage to take advantage of this opportunity for exploring these issues; as I suggested in a recent talk to a student group that was later published as an informal essay, lawyers and law professors do have certain comparative advantages in relation to economists and others in addressing financial regulatory reform.   [...]

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Podcast extravaganza

Five new podcasts from the Independence Institute’s

1. The University of Montana’s Rob Natelson on the Executive Vesting Clause.  Natelson argues that the first clause of Article II grants the President no additional powers–contrary to the theory that the clause gives the President almost all the powers formerly possessed by English Kings. 36 minutes.

2. The Privileges or Immunities Clause and what it means for the Second Amendment. The Cato Institute’s Ilya Shapiro discusses his new law review article. 29 minutes. (The final version of the Shapiro-Blackman article, “Keeping Pandora’s Box Sealed: Privileges or Immunities, The Constitution in 2020, and Properly Extending the Right to Keep and Bear Arms to the States,” was just uploaded to SSRN today.)

3. What Miller Meant. Oklahoma City University’s Michael O’Shea explains  the history and multiple meanings of United States v. Miller. 65 minutes. 

4. The International Hunter Education Association. IHEA’s Wayne East describes the IHEA’s good works in teaching safety and responsibility. And how you can take most of a hunter safety course on-line. 26 minutes.  

5. Weld County, Colorado, Sheriff John Cooke provides law enforcement perspective on three bills in the Colorado legislature: removing the Governor’s power to prohibit gun sales, transfers, or transportation during an emergency; a declaration that the federal government cannot apply federal gun control laws to guns manufactured in Colorado and which do not leave the state of Colorado (background checks on sales would still be required pursuant to Colorado law); and a bill to state that business owners on their own property have the same self-defense rights as do persons in their own homes. All three bills were supported by the County Sheriffs of Colorado. The first two bills were killed on party-line votes in a state Senate committee; the last bill [...]

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Write to Explain, Not to Impress

Yesterday, I was editing the Introduction to my “Rehabilitating Lochner” book, and I needed a word to fill in the following sentence: “Lochner itself is now considered the ___ of the liberty of contract cases, though the opinion has not always attracted such disproportionate attention.” After some thought, I came up with the word “apotheosis.” I thought it looked good, and, given that this was an early sentence in the book, made me sound erudite.

But then I remembered that I’m trying to write for the readers’ benefit, not to sound smart or well-educated. (William F. Buckley, who was an excellent writer but often used obscure words, was trying to sound smart, in part to counter the image that conservatives are ignorant.) And I noted that even though I have a pretty good vocabulary, I had to look up apotheosis to make sure I was using it correctly, which likely meant that many of my readers would be unsure of the word’s meaning. So I deleted apotheosis, and replaced it with “epitome,” a much more common word. The sentence may sound less erudite, but it’s much more comprehensible.

UPDATE: On further reflection, I changed the sentence to “Lochner has come to exemplify the liberty of contract cases, though the opinion has not always attracted such disproportionate attention.” [...]

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