Law Librarian Blog

Cohen's Configuring the Networked Self

Georgetown Law Prof Julie E. Cohen's Configuring the Networked Self: Law, Code, and the Play of Everyday Practice (Yale UP, 2012) has been receiving a great deal of recognition since its release. Recently, Concurring Opinions hosted a series of blog posts by invited bloggers to discuss topics in her new book. Very interesting. The blog series is called a symposium (and hopefully it is the start of a trend). Cohen also discussed one of the chapters of her work at the Beckman Center [YouTube video].

Configuring the Networked Self can be purchased on Amazon. The author has made a Creative Commons edition available here. From the product description:

The legal and technical rules governing flows of information are out of balance, argues Julie E. Cohen in this original analysis of information law and policy. Flows of cultural and technical information are overly restricted, while flows of personal information often are not restricted at all. The author investigates the institutional forces shaping the emerging information society and the contradictions between those forces and the ways that people use information and information technologies in their everyday lives. She then proposes legal principles to ensure that people have ample room for cultural and material participation as well as greater control over the boundary conditions that govern flows of information to, from, and about them.

[JH]

Wealthier People Are More Likely to Lie, Cheat, and Behave Unethically Then Those Who Are Not Wealthy

Details on the studies conducted to reach this conclusion at ADR ProfBlog's Rich People Lie and Cheat. [JH]

Law and Order, Then and Now: Animals and inanimate objects, including human corpses, put on trial

And what for? In the history of animal trials, typically to adjudicate criminal complaints based on their behavior. Today's animal rights advocates who are campaigning against breed-specific legislation might want to take note that in the annuals of animal litigation, defendants -- the accused animal -- oftentimes enjoyed the benefits of due process. In Bugs and Beasts Before the Law, Nicholas Humphrey, a theoretical psychologist who is known for his work on the evolution of human intelligence and consciousness, reports

All over Europe, throughout the middle-ages and right on into the 19th century, animals were, as it turns out, tried for human crimes. Dogs, pigs, cows, rats and even flies and caterpillars were arraigned in court on charges ranging from murder to obscenity. The trials were conducted with full ceremony: evidence was heard on both sides, witnesses were called, and in many cases the accused animal was granted a form of legal aid — a lawyer being appointed at the tax-payer’s expense to conduct the animal’s defence.

For an animal found guilty, the penalty was dire; execution was not uncommon. However, Humphrey adds

[T]he outcome of these trials was not inevitable. In doubtful cases the courts appear in general to have been lenient, on the principle of “innocent until proved guilty beyond reasonable doubt”.

Humphrey explains that much of his souce material comes from a book he found in the Cambridge University Library, E.P. Evans, The Criminal Prosecution and Capital Punishment of Animals (1906) (Open Library link). His article, adapted from several sources by permission, was published in The Public Domain Review as an illustration of the value works in the public domain may have for scholarship.

In this article, Humphrey asks "What was the purpose of these lengthy and extravagant procedures? A desire for revenge cannot have been the only motive." Humphrey cites to cases reported by Evans where inanimate objects were brought up on charges.

In Greece, a statue that fell on a man was charged with murder and sentenced to be thrown into the sea; in Russia, a bell that peeled too gleefully on the occasion of the assassination of a prince was charged with treason and exiled to Siberia.

Humphrey also argues that the protection of society cannot have been the only motive either.

Evans tells of the bodies of criminals, already dead, being brought to trial. Pope Stephen VI, on his accession in 896, accused his predecessor, Formosus, of sacrilegiously bringing the papal office into disrepute. The body of the dead pope was exhumed, dressed in the pontifical robes and set up on a throne in St. Peter’s, where a deacon was appointed to defend him. When the verdict of guilty was pronounced, the executioner thrust Formosus from the throne, stripped him of his robes, cut off the three benedictory fingers of his right hand and threw his body “as a pestilential thing” into the Tiber.

Humphrey reaches the following conclusion:

Taken together, Evans’ cases suggest that again and again, the true purpose of the trials was psychological. People were living at times of deep uncertainty. Both the Greeks and medieval Europeans had in common a deep fear of lawlessness: not so much fear of laws being contravened, as the much worse fear that the world they lived in might not be a lawful place at all.

Social chaos vs some sort of system of governance defined by law cannot be dismissed because they are based on Humphrey's examination of the strange world of bringing to law courts animals and inanimate objects which exhibit no criminal intent and even corpses for trials of possible crimes. Law and order is a cultural phenomenon that remains alive today. Quite likely it is based on a fear that the society we live in must be a lawful place. [JH]

Constitutional Chiffhangers: Learning the "hard way" or fixing some ahead of time

Last month, Brian C. Kalt, Harold Norris Faculty Scholar and Professor of Law at Michigan State Univ., published a series of The Volokh Conspiracy posts devoted to topics addressed in his new work Constitutional Cliffhangers: A Legal Guide for Presidents and Their Enemies (Yale UP, Jan. 24, 2012)[Amazon] including one responding to the comment trails of his posts.

In his final post, Kalt writes

There are two kinds of cliffhangers: those in which the main problem is a bad result, and those in which the main problem is uncertainty. An example of the former is Chapter 1, where a sitting president might get prosecuted (with the attendant disruption) or might not (with the attendant injustice). The fact that, in the meantime, presidents and prosecutors go about their days unsure of the answer is much less of a problem. The chapters on self-pardons and late impeachment fit in this category as well. Legislation requires energized consensus, and there wouldn’t be one. Best, then, to just wait for an actual case to deliver a final resolution: either an acceptable result or an unacceptable one that motivates Congress to act.

When the problem is uncertainty, by contrast, the case for proactivity is stronger. In Chapters 3 and 4, constitutional uncertainty could rip the country in half, with two people claiming presidential power, issuing contradictory orders to the military, and purporting to fire cabinet members. The cost of resolving such cliffhangers “the hard way” is so high that it should soften opposition and make it easier — albeit still not easy — to reach a consensus and fix things ahead of time.

All in all, not a bad way to promote interest in the work. Hopefully, Robert William Bennett's blurb review is right because I bought a copy to reading on the plane.

"Brian Kalt's Constitutional Cliffhangers is full of insights into constitutional interpretation, a lively topic of concern among both scholars and the public more generally. Without in the least diminishing its scholarly contribution, the book is also playfully written, so that it is a delight to read." — Robert William Bennett, Northwestern University

[JH]

Content Analysis of SCOTUS Confirmation Hearings: Nominee Candor from Harlan to Kagan

In their recent SCOTUSblog post, Dion Farganis and Justin Wedeking explain the context for their recent article, “No Hints, No Forecasts, No Previews”: An Empirical Analysis of Supreme Court Nominee Candor from Harlan to Kagan, 45 Law & Society Review 525 (2011):

According to the prevailing wisdom, today’s nominees are more reluctant to answer questions during their Senate testimony, and the hearings have suffered as a result. ... Have nominees really become less forthcoming in recent years? Previous studies of Supreme Court confirmation hearings have focused on changes in the topics of the questions that senators ask.  But to date, there has been no systematic analysis of how nominees respond to those questions. Therefore, while it is possible that things have gone rapidly downhill since Bork, as the conventional wisdom suggests, the evidence supporting this view has been largely anecdotal.

Farganis and Wedeking provide a content analysis of every Supreme Court confirmation hearing transcript since 1955, the year that the proceedings became a regular part of the confirmation process.

For each hearing, we coded all of the exchanges between a senator and the nominee, recording things such as the type of question asked, the degree to which the answer was forthcoming, and the reasons nominees gave for not answering more fully. Using this original dataset – nearly 11,000 exchanges in total – we then tested a series of hypotheses about nominee responsiveness in the face of Senate questioning.

For the findings of the study, see Farganis and Wedeking's article, “No Hints, No Forecasts, No Previews”: An Empirical Analysis of Supreme Court Nominee Candor from Harlan to Kagan. Recommended. [JH]

Classifying Law Review Article Types

See Kyle Graham's A Guide to the Eight Most Suspect Types of Law Review Articles on Concurring Opinions. I can't decide which of the two types, below, is my favorite.

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.”

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.”

[JH]

The Role of Internet Access for the Freedom of Expression

From the absract of Nicola Lucchi's Access to Network Services and Protection of Constitutional Rights: Recognizing the Essential Role of Internet Access for the Freedom of Expression [SSRN]:

In January 2010, after a troubled process, the French law for "creation and Internet", commonly known as Hadopi 2, was finally adopted in an amended form. The enacted text was the result of corrective action undertaken by the Conseil constitutionnel (France’s highest constitutional authority), through Decision No. 2009-580 DC of the 10th of June 2009. The Conseil examined the mechanism of sanctions introduced by the regulatory measure assessing the compliance with fundamental rights and freedoms, such as the presumption of innocence, the separation of powers, the right of defense, the right to fair trial, the respect of the right to be heard and the necessary compromise between copyright and freedom of expression and communication.

[JH]

Tiffert's The Chinese Judge: From Literatus to Cadre (1907-1949)

Glenn D. Tiffert (Berkeley) has posted an updated version of The Chinese Judge: From Literatus to Cadre (1907-1949),  PASSAGES TO MODERNITY: KNOWLEDGE, CULTURE, AND INSTITUTIONS IN MODERN CHINA, Eddy U., Robert Culp, eds., (Forthcoming) on SSRN. Here's the abstract:

Since the late Qing, probably no phrase has seized the imagination of legal reformers in China more than 'rule the country by law 以法治国,' and no group has occupied a more central place in their designs than the judiciary. Yet, the judiciary registers only weakly in the large and growing literature on courts and judicial practice in China.

This study explores the dynamics of judicial recruitment, selection and training in republican China, and the impact these had in determining the shape of the modern Chinese legal system. For historians, the study illuminates the rise of a novel professional community that spearheaded the pursuit of modernization in China, and the concomitant reconstitution of the state, learned elites, knowledge and power. For legal scholars, this study furnishes background against which to read the challenges, policies, debates and values that animate judicial reform today, particularly with respect to the relationship between authoritarianism, the rule of law, professionalization and the soaring technical sophistication of the Chinese judiciary.

Finally, this study aims to contribute to the historiographical reformulation of contemporary China’s connection to the past by retexturing our image of the republican era and its role in producing the PRC.

[JH]

Do Systems Establishing Quasi-Peer Review of Articles Submitted to Student-Edited Law Journals Make Sense?

Recently Chicago made a provisional decision to join the ranks of law reviews like Harvard, Yale and Stanford by establishing a quasi-peer review system for article submissions. In Chicago Law Review Chutzpah, Stephan Bainbridge, William D. Warren Distinguished Professor of Law at the UCLA School of Law, writes

Either the student-edited format makes sense or it doesn't. The whole purpose of peer review is to get students OUT of the process, not to supplement a decision that would remain in the hands of second and third year law students. A pure peer review/edit system has several advantages. First, more informed and experienced decision makers should make better decisions. Second, one key function of peer review is to provide expert advice at a stage at which the authors can still tweak the paper. Hence, the advice should go directly from the reviewer to the author, rather than being mediated through students. Third, making the decision dependent on peer review provides a strong incentive for authors to heed the advice and to improve the paper. Giving students final say means the author is incented to make the students editors happy rather than the more knowledgeable reviewer. Finally, leaving the final decision in the hands of students means that the reviewer has less incentive to provide his/her best analysis, since his recommendations presumably will not be conclusive and may not even impact the final product. The proposed Chicago system being neither fish nor fowl, there is no reason to think it will combine the best attributes of peer and student journals.

For details about the Chicago form of peer review, see Bainbridge's post.

On PrawfsBlawg, Boston College law prof Brian Galle adds in Peer Review at Student-Edited Journals: Best Practices?:

For now, though, my impressions are that: 1. journals often disregard or weight lightly the advice they get from outside reviewers; 2. reviewer comments are not shared with authors; 3. authors cannot respond to reviewer comments; 4. reviewers are anonymous but free to reveal themselves; 5. reviewers don’t know author identity (except perhaps in the new case of Chicago, which does not use blind review). I think 1 & 2 are significant problems, 3 sucks but is probably hard to fix, 4 needs some tweaks and 5 seems a'ight.

What do you think? Is something like this better than nothing? [JH]

Location, Location, Location: Feeder Law Schools for BigLaw Associate Hiring and Promotion to Partnership

Two B-school profs, Paul Oyer and Scott Schaefer, have published the results of their study at American BigLaw Lawyers and the Schools that Produce Them: A Profile and Rankings:

We profile the lawyers that work at the largest 300 American law firms as of the Summer of 2008. We show how gender, years of experience, prestige of law school, and other qualities vary across lawyers of different rank and firms of different prestige. Geography is an important determinant of where lawyers work, with many going to undergraduate school and law school near where they ultimately practice. Geography is less important, however, at more prestigious firms and for graduates of higher ranked firms. We then go on to rank law firms based on the prestige of the law schools they attended and we rank law schools based on their success at placing lawyers at BigLaw firms. Chicago, Harvard, and Yale law schools are the clear leaders in placing graduates at BigLaw firms. We provide important caveats about these rankings

First, our rankings are sufficiently close to other rankings that it is clear, as one might expect, that whatever leads a school to be successful in other rankings also leads them to be successful in placing lawyers at BigLaw firms. Second, we find that the University of Chicago, Yale, and Harvard law schools are clearly the most successful at placing lawyers at BigLaw schools. Finally, we show that BigLaw firms have a bias towards East Coast schools -- West Coast schools rank lower by our measure than by previous rankings.

(Emphasis added.) Hat tip to Leiter's Law School Reports.

And which law schools produce the most BigLaw partners? Hat tip to TaxProf Blog for calling attention to Loyola-LA law prof Theodore Seto's Where Do Partners Come From? [SSRN]. From the abstract:

Which law schools produce the largest numbers of partners at national law firms? This article reports the results of a nationwide study of junior and mid-level partners at the 100 largest U.S. law firms. It identifies both the top 50 feeder schools to the NLJ 100 nationwide and the top 10 feeder schools to those same firms in each of the country’s ten largest legal markets. U.S. News rank turns out to be an unreliable predictor of feeder school status. Hiring and partnering by the NLJ 100 are remarkably local; law school rank is much less important than location. Perhaps surprisingly, Georgetown emerges as Harvard’s closest competitor for truly national status.

(Emphasis added.)

Comparing Seto's study with Oyer and Schaefer's makes for interesting reading. [JH]

If the Bench Finds Law Journal Articles Irrelevant, What About Law Prof Amicus Briefs?

According to Tun-Jen Chiang's PrawfsBlog post, Amicus Briefs and the Academic-Judge Divide, law prof amicus briefs are just as, if not more, irrelevant then their scholarly law journal output. "In discussions about the supposed uselessness of legal scholarship to judges, I often ask: 'should law professors file more amicus briefs?'  Responses are mixed, but my general impression is that judges see law professor amicus briefs as just about equally, if not more, useless than their articles," writes Tun-Jen Chiang.

This, to me, is a pretty illuminating attitude.  The usual complaints about law review articles—that they are too abstract and don’t grapple with legal materials like case precedent in a serious way—really can’t be said about law professor amicus briefs, which usually do make legal arguments in a lawyerly way.  If what judges are really seeking from law professors was help in legal analysis from a group of reasonably intelligent individuals with expertise in an area and time to conduct research, then an amicus brief should answer all of those requirements.

But help in legal analysis and decision-making is not what judges are really looking for.  A modern judge has lots of help on legal analysis from numerous sources like law clerks and staff attorneys, in addition to the parties’ attorneys, with Lexis and Westlaw making research ever more easy.  The contribution that a law professor can provide on top of this is minimal.  What judges really want from law professors are convenient citations to support an outcome the judge already has in mind, but that the judge wants to attribute to an authoritative and “objective” source other than the judge himself.  An amicus brief provides less of the appearance of authority and objectivity than a law review article does.  Our depriving judges of one traditional source of the sheen of objectivity that is necessary to sustain the formalist myth is what really drives the complaints from those quarters.

Perhaps there was a time when amicus briefs authored by law profs were valuable but Tun-Jen Chiang correctly observes:

A modern judge has lots of help on legal analysis from numerous sources like law clerks and staff attorneys, in addition to the parties’ attorneys, with Lexis and Westlaw making research ever more easy. The contribution that a law professor can provide on top of this is minimal.

What judges want is something akin to citing and quoting blackletter statements of law produced by authoritative doctrinal analysis that once were but is no longer be as readily available from recognized authorities because those titles are now spit out by "Publisher's Staff" without the expertise required to produce new authorative black-letter statements.

Filling the legal treatise vacuum created by vendor commodization. Law journal literature has not filled the gap in editorial analysis produced by our vendors traditional updated sources. Hell, take for example contract law. Do our vendors even stay true to the different schools of thought that originally resulted in competing intellectual perspective produce by Williston and Corbin. I'm thinking the kids employed straight out of law school as editorial staff probably don't even know what I am referring to.

I also thing there is no reason for court libraries to continue acquiring these qualited-deluded titles in print or online. In the "new normal" editorial quality matters and if traditional named author-branded titles fail to meet current expections, contrary to past expections, it is time kill them and look for alternatives that the Bench can use. Some of our very expensive legal information providers apparently believe that branded titles are beyond critical evaluation because users will always want to rely on them -- they even rely of the reluctance of librarians of a certain age to elminate old standbys from the collection. No longer the case in the Shed West Era. They are ignoring generational shifts in conducting legal research, shifts promoted by those vendors who minimize the importance of using of secondary legal sources. But I digress... .

Tun-Jun Chiang writes

What judges really want from law professors are convenient citations to support an outcome the judge already has in mind, but that the judge wants to attribute to an authoritative and “objective” source other than the judge himself.  An amicus brief provides less of the appearance of authority and objectivity than a law review article does.  Our depriving judges of one traditional source of the sheen of objectivity that is necessary to sustain the formalist myth is what really drives the complaints from those quarters.

Well, that's hardly an earth-shattering revelation. Just legal formalism? Let's toss in legal realism. Absent some sort of "unified theory" for interpretation of the Big Bang of access to primary legal materials that is and has existed for several decades, law profs have plenty of fodder for churning out amicus briefs as well as law journal articles based on micro-interpretative schools of thought which don't offer any intellectual assistance to the Bench.

Hat tip to the Legal Skills Prof Blog postby Villanova's Louis Siricos, Jr. [JH] 

Does the President Have Directive Authority Over Agency Regulatory Decisions?

I think I would add Maryland law prot Robert V. Percival's Who's in Charge? Does the President Have Directive Authority Over Agency Regulatory Decisions? [SSRN] 79 Fordham Law Review 2487 (2011) to the reading list for an ALR course. Here's the abstract:

After describing three principal views on whether the President has directive authority, this Article discusses the constitutional foundations of this debate. It then reviews the history of presidential oversight of agencies and its implications for the debate over directive authority. The Article concludes by explaining why, even if the President has unfettered removal authority over the heads of non-independent agencies, it matters that this removal power does not imply the power to control decision making entrusted by law to agency heads.

[JH]

History of Dictionary Usage by the Supreme Court: Is SCOTUS Guidance Needed?

And we are not talking about Black's Law Dictionary. From the abstract of Jeffrey L. Kirchmeier and Samuel A. Thumma, Scaling the Lexicon Fortress: The United States Supreme Court’s Use of Dictionaries in the Twenty-First Century, 94 Marq. L. Rev. 77 (2010):

This Article examines the Court’s use of dictionaries in the first decade of the twenty-first century, building on previous research by Professor Kirchmeier and Judge Thumma regarding the Supreme Court’s history of using dictionaries. See Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Has Become a Fortress: The United States Supreme Court’s Use of Dictionaries, 47 Buff. L. Rev. 227 (1999); Samuel A. Thumma & Jeffrey L. Kirchmeier, The Lexicon Remains a Fortress: An Update, 5 Green Bag 51 (2001).

During Supreme Court Terms 2000-2001 through 2009-2010, the Justices have referenced dictionary definitions to define nearly 300 words or phrases. Yet the Court has never expressly explained the proper role and use of the dictionary in American jurisprudence. The Article studies the frequency and the approach the Justices have taken to citing dictionaries in the new century, and it considers the Court's lack of a reasoned process for selecting or using dictionaries.

Part I examines the frequency of dictionary use in the new century as compared to past use, comparing the different Justices with respect to their dictionary usage and the dictionaries most frequently cited by the Court. Part II addresses the stages of dictionary use, from the initial decision to use a dictionary to define a word to the selection of the dictionary and the choice of definitions. Part III examines some recent cases that illustrate the approaches taken in using dictionaries to define terms from various sources, including the United States Constitution, statutes, and prior cases. The Article includes three comprehensive appendices that compile information from the twenty-first century cases listing: (1) the terms defined by the Court with references to the cases; (2) the Justices who have used a dictionary in opinions (along with their frequency of use and which dictionaries are used); and (3) the dictionaries used by the Court. These appendices, when combined with the authors' previous articles examining the Supreme Court's dictionary use through the twentieth century, provide a comprehensive compilation of the use of dictionaries since the Court began.

The Article concludes that, in the twenty-first century, the Court continues to use dictionaries at a high rate with little guidance for parties, lawyers or others regarding when to turn to dictionaries, which dictionaries to use, and how to use dictionaries. Although the authors are able to deduce several principles from the Court's history, to date, the United States Supreme Court has issued no definitive decision squarely addressing the proper use of the dictionary. The ongoing usage of dictionaries by the United States Supreme Court and other courts continues to demonstrate the need for such guidance.

[JH]

How important is it for law journal authors to have their articles published in print?

The print format is fairly important if the author's work was not accepted by the most prestigious law journal he or she submitted it to.

Over two-thirds of the respondents to our survey said they would have published their article in the journal where it appeared even if that journal no longer published print issues. However, as a general matter, given the chance to publish in more than one of these prestigious journals, other than those they considered to be the most prestigious, more than half of these authors indicated that continuing publication of print issues would be the deciding factor in choosing which offer to accept.

That number, considered along with the 32 percent of all respondents who would not have published in the journal that published their article if the journal were not publishing print issues, is large enough to give pause to law journal editors thinking about eliminating print issues. In the short time they serve as editors, students without long term investments in publishing legal scholarship are unlikely to make far-reaching decisions to change publishing formats for their journal, whatever their personal reliance on print resources in their own research.

Quoting from Print or Perish? Authors’ Attitudes Toward Electronic-Only Publication of Law Journals [SSRN], an analysis on the prospects for the adoption of the Durham Statement on Open Access to Legal Scholarship, by Richard Danner (Duke Law), Kiril Kolev (Hendrix College) and Marguerite Most (Duke Law). The authors do, however, report that there appears to be generational differiences. The print format is less likely to be as much of a factor among youger law profs, the ones who must publish or perish.

Why survey law journal authors' attitudes toward electronic-only law journals?

[B]ecause scholars in all disciplines try to place their works in the highest ranked journals in their field, [so] it is important to consider the perspectives of legal scholars who have published in the primary journals of the top-ranked law schools.

Based on their survey findings the authors observe what can be characterized as "print or perish," a format differential in law journal competition for article submissions:

The difficulties are significant for any single journal, other perhaps than the very most prestigious, to move on its own to electronic only publishing.

One has to wonder whether and if so when the generational shift noted above may eventually move law schools to adopt electronic-only publishing. For details and analysis of the survey, check out Danner, Kolev & Most's Print or Perish? Authors’ Attitudes Toward Electronic-Only Publication of Law Journals [SSRN]. Here's the abstract:

An increasing number of U.S. law journals post at least current issues in freely accessible PDF and (in some cases) HTML formats on their web sites. Yet, perhaps without exception, the journals that make their articles freely available on their websites also continue to publish print issues in the face of declining subscription numbers, and law libraries’ growing disinterest in collecting and preserving journals in print. As universities reduce staff, freeze open positions, eliminate salary increases, and cut library budgets, why have law schools continued to subsidize print publication of journals that are accessible in electronic formats? Among the reasons suggested for this is the possible impact of electronic-only publishing on a journal’s reputation and ability to attract authors. This paper reports on the results of a survey of law journal authors’ attitudes toward electronic-only law journals.

Highly recommended.

On a related note, see the Council of Canadian Academic Law Library Directors endorsement of the Durham Statement in the Council's Calgary Statement on Free Access to Legal Information. Details here. [JH]

Law Prof Miffed at CJ Roberts' Characterization of Legal Scholarship as Being Irrelevant

Quoting from the Concurring Opinions post, Sherrilyn Ifill on What the Chief Justice Should Read on Summer Vacation:

[M]ore often than not, published law review articles offer muscular critiques on contemporary legal doctrine, alternative approaches to solving complex legal questions, and reflect a deep concern with the practical effect of legal decisionmaking on how law develops in the courtroom.

Now, perhaps Maryland law prof Sherrilyn Ifill can explain why courts aren't sufficient persuaded by such deeply concerned academic muscularity to cite law review articles in court opinions.

You can view CJ Roberts presentation at the Annual Fourth Circuit Court of Appeals Conference on C-Span. [JH]

“If you asked me when was the last time I read a law review article, I’d have to think long and hard": Paraphrasing Chief Justice Roberts' Remarks on the Relevance of the Legal Academy's Scholarly Output

In his recent Legal Skills Prof Blog post titled Chief Justice Roberts Criticizes Law Profs, Louis J. Sirico, Jr., Professor of Law and Director of Legal Writing at Villanova wrote

"[the Chief Justice] politely criticized legal academics for scholarship that he intimated was relevant only to academics [during his presentation at Annual Fourth Circuit Court of Appeals Conference in June]. I paraphrase: “If you asked me when was the last time I read a law review article, I’d have to think long and hard.”

OMG, that is shocking news! To view CJ Robert's speech at this year's Fourth Circuit Court of Appeals Conference, go to this C-SPAN link. [JH]

Cut the Glut: State-by-State Empirical Labor Market Model for Law School Grads

In The Oversupply of Lawyers in America, ATL's Elie Mystal asks "if we’re producing twice as many lawyers than we need, is it time to close half of the law schools?" I'm inclined to believe Elie's answer is "yes." I'm inclined to agree with him as long as academic law librarians don't join the breadlines with their recent law school grads because they are not responsible for this situation.

Elie is not just tossing out vague, generalized numerical references. His statement is based on an empirical model provided in a recent study conducted by Economic Modeling Specialists Inc. On the NYT Economix blog, Catherine Rampell reports on a EMSI estimate of the surplus of law school grads on a state-by-state basis. This is the first empirical model that I have seen which does a state by state analysis. It is pretty scary. While what is happening may be part a temporary downturn, I believe it also is probably the beginning of a structural transformation in the US lawyer labor market. It's happened in manufacturing and service industry sectors. There is no reason to believe the legal profession is exempt.

48 States Producing More Attorneys Than Needed. According to EMSI, every state but Wisconsin and Nebraska (plus Washington, D.C.) is producing many more lawyers than it needs. See the state-by-state stats and the cumulative stats Elie references in the table published at Rampell's The Lawyer Surplus, State by State.

[A]cross the country, there were twice as many people who passed the bar in 2009 (53,508) as there were openings (26,239). A separate estimate for the number of lawyers produced in 2009 — the number of new law-school graduates, according to the National Center for Education Statistics — also showed a surplus, although it was not quite as large (44,159 new law grads compared with 26,239 openings).

Take a hard look at your state's surplus.

Perhaps It is Time for a Noble Experience. Shut down enough law schools until the surplus is replaced with a deficit. It might be an attractive budget cutting proposition at some universities. I'm thinking the irresponsibility of the legal academy deserves it. Let law profs join the breadlines ... but I don't wish that on academic law librarians. They don't vote on maintaining and, in some instances, increasing law school enrollments to offset budget cuts in faculty meetings.[JH]

Sign of the Times and Trust in Law Library Relations with HeinOnline: No Shelving Units Required for Law Review and Journal Runs

Both Washington State Law Library and Case Western Reserve Univ. Law Library are offering law review and journal runs for the cost of shipping. For Case Western the scope of titles being removed from the collection can be measured by the the number of spreadsheet pages -- 11. Check this week's AALL law-lib archives, if interested. One might say because we trust HeinOnline, no shelving units are required for past volumes of law reviews and journals. Perhaps, someday, there will be no need for current issues either, at least at those law libraries that still see a need for them.

If Not Retained on Law Library Shelves, Why Publish in Print? In his FoLL presentation, Dick Danner (Duke) reviewed the current status of transitioning to digital-only publication of law reviews in the context of the Durham Statement on Open Access to Legal Scholarship. See his Open Access session presentation (Video 2, accessible from the Conference wiki main page). Despite some current resistance from members of the law review community (and academic law library community), does anyone really believe that law review articles will be published in print ten years from now? [JH]

New Textualism in Constitutional Interpretation

Virginia School of Law prof James E. announces the dead of two competing schools of constitutional interpretation, living constitutionalism and old-style originalism, in Laying Claim to the Constitution: The Promise of New Textualism [SSRN]. From the abstract:

Instead, there is increasing convergence in the legal academy around what might be called “new textualism.” The core principle of new textualism is that constitutional interpretation must start with a determination, based on evidence from the text, structure, and enactment history, of what the language in the Constitution actually means.

This might not sound revolutionary. But it is. This Article explains how we have arrived at this point, why it is significant, and what work remains to be done. In particular, it explains why new textualism is especially important to progressives, as it offers them both a principled and promising means by which to lay claim to the Constitution. New textualists are effectively rebutting, once and for all, the false but still-common perceptions that only conservatives care about the text of the Constitution and that the Constitution itself is fundamentally a conservative document. If new textualists succeed in their effort to show that the Constitution - all of it, including the amendments - is actually a quite progressive document, this reorientation would represent the most significant shift in constitutional theory and politics in more than a generation.

Hat tip to Constitutional Law Prof Blog. [JH}

Freedom for the Press as an Industry, or the Press as a Technology?

In The Freedom...of the Press, from 1791 to 1868 to Now - Freedom for the Press as an Industry, or the Press as a Technology? [SSRN], UCLA law prof Eugene Volokh "discusses what the 'freedom of the press' has likely meant with regard to this question, during (1) the decades surrounding the ratification of the First Amendment, (2) the decades surrounding the ratification of the Fourteenth Amendment, and (3) the modern First Amendment era. The article focuses solely on the history, and leaves the First Amendment theory questions to others. And, with regard to the history, it offers evidence that the “freedom...of the press” has long been understood as meaning freedom for all who used the printing press as technology - and, by extension, mass communication technology more broadly - and has generally not been limited to those who belonged to the institutional press as an industry." (Quoting from the abstract). [JH]