The Faculty Lounge

ExpressO and Resume Bias

In the recent past, I've raised some objections to Scholastica's pricing for law review submissions.  Scholastica's pricing is especially disappointing to me because ExpressO has some serious problems, and competition in this marketplace would be very welcome.

One of the things I don't like about ExpressO is how much they seem to encourage the resume bias that plays a large role in the law reveiw selection process.   I was reminded of this issue when one of my colleagues sent me an e-mail she had received from a  journal.  That e-mail attached an e-mail sent to the journal by ExpressO notifying the journal of her submission.  The re: line of the e-mail said "ExpressO Submission by [professor's name] at Widener University School of Law".  I suppose that is all some journal editors need to know, sad to say.  I think it would be a lot more informative, in the right way, if the re: line said "ExpressO Submission by [professor's name] - [article title]".  That might encourage editors to at least look at the abstract before they decide to ignore the submission or just hit "reject".

The Law Review and the World

I've been thinking a bunch about applied legal history these days and enjoyed very much Janet Cooper Alexander's meditation on the impact of John Yoo's idiosyncratic interpretation of the war powers in his 1996 California Law Review article.

An interesting paper from Jack Balkin

Has been posted on Balkinization and on SSRN The First Amendment is an Information Policy. This paper sounds like it could have interesting implications for an issue which I intend to return to on the scholarship front, that is, what happens when some of what appears in law reviews has been "sponsored" or "commissioned" ? And when I say "sponsored" or "commissioned" I am not referring to law school summer research grants. Such grants are never conditioned on the topic or on the author reaching a particular result.  The only string attached are usually that the faculty member actually produce something that results in a publication.

In contrast, in, what for lack of a better word I will call "commissioned" or "sponsored" scholarship, the author has been paid precisely because of the viewpoint he or she espouses.  Drug company sponsorship, or worse ghostwriting (i.e. paying a doctor to add his or her name to an article) has long been a problem in medical journals relating to pharmaceutical drug research and has led to some overhauls on most medical journal's requirements about financial disclosures. Most law reviews don't have such policies. Should they? A few have implemented them.  Perhaps more will come. But the fact that there is some interest in financially supporting the production of law review scholarship to promote a particular point of view raises some interesting questions about the reliability of the information, whether "the marketplace" is a good sorter of the best ideas, as the "marketplace of ideas" metaphor is often used to imply.  And, more prosaically, illustrates that somebody thinks law reviews are worthwhile enough to pay for the production of these sorts of articles. Who is doing this, how much of this goes on and what difference it makes are big unknowns at this point but may bear some investigation. 

In the meantime, going back to Professor Balkin's paper, I think there might be some interesting implications for these questions given what looks like his thesis --- that one purpose of the First Amendment is to generate information.  Stay tuned.

The Ex Ante/Ex Post distinction

Lawrence Solum over at the Legal Theory Blog has this excellent discussion of the ex ante and ex post question as it comes up in analyzing best legal rules and depending on the orientation of the analyst as to whether we care most about outcomes (regardless of fault) or fault (regardless of outcomes). Ex Ante and Ex Post.  (These would be extreme ends of the spectrum).

But the ex ante/ex post problem also extend to the analysis of any issue where you are not sure what the right distribution of resources and investments are.  Ex post, when you know how a particular decision has come out, that decision tends to look inevitable and thus it is easy to criticize the choices made or not made as ones which ignore the "obvious" likely outcome. This is often termed hindsight bias (or Monday morning quarterbacking) and can make decisions seem easier than they were at the time they were made.

In contrast,  a lot of decisions require us to make assessments ex ante - before we know how it is going to "turn out."  And that is one of the problems raised in an earlier post on the value of  scholarship.  How can you calibrate the right amount to invest (even assuming you could come up with an accurate assessment of its cost, a proposition I am skeptical about), if you don't know how much of the "bad" stuff you have to support in order to get the "good" stuff.  And that also omits the even more problematic question about assigning labels like "good" and "bad" to something which  may defy easy calculation in market terms. 

There is an analog to this problem in advertising circles. The old joke goes:  "I know that 50 % of my advertising budget is wasted. I just don't know which half!"  For advertisers the ROI problem (return on investment) is both ex ante and ex post since, although they can track dollar returns from investments in certain advertising campaigns, they can never be sure that they know why a given campaign seemed to drive sales so successfully.  The annals of advertising lore are littered with examples of an advertiser trying to take a proven formula only to have it bomb. Hence the joke. But advertisers have one advantage over academics in any field - they are marketing a product which is sold in the market, not in the so-called "marketplace of ideas," one with a price in dollars (which of course may have little or not connection to its intrinsic worth in some other system of valuation) and advertisers can measure the sales number before and after a campaign. They may not be able to say for sure that it was the campaign that made the difference, but it is often a reasonable inference.

For the hapless evaluator of legal scholarship there are no such clear metrics for tracking the dollar value of scholarship and such metrics as exist (citation counts, downloads, US News peer reputation scores) are, as I observed previously, incomplete at best and woefully inadequate at worst. It may be that investments in scholarship are maldistributed, although I have yet to see an argument for this proposition that doesn't rely on generalizations about legal academics and law schools that I don't think apply as widely as some argue.  Maybe the expenditures on scholarship should be reduced. But deciding on the "which half" part of that question is surely part of the problem presented by any such proposal. 

 

Distributing Scholarly Speaking and Publication Opportunities Through Blind and Other Processes

Over at CoOps, Dave Hoffman has graciously taken the time to respond to my query about why there’s been such a fuss over Scholastica’s diversity widget, given prevailing attitudes in legal academia and elsewhere in the academy that when selecting participants in conferences, workshops, colloquia, and the like — which I’ll call, for short, “speaking opportunities” and which may or may not also involve publication opportunities — it is somewhere between permissible and obligatory to consider diversity. Dave argues that symposia (I don’t know if he sees symposia as different than the other speaking opportunities I mention) and articles serve different purposes, and hence, selection criteria should be different in these two contexts. Go read his argument, then come back for my response — and a bit of a confession.

Affirmative Action (In)Consistency (Obligatory Post on L’Affaire Scholastica)

As some of you may have noticed, (at least some of) legal academia is abuzz about the fact that Scholastica, the ExpressO competitor, asks authors to provide optional information about their gender identity, race, sexual orientation, and any additional “hardship diversity,” such as socio-economic status or geographic region. In response to objections by some, Scholastica has given individual journals the option of requesting the information or not, and to date, only California Law Review and NYU Law Review have done so. As a result, when you submit through Scholastica, you will be asked to provide optional demographic information only if you submit to one of those two journals. Josh Blackman has the background, including screen shots of the prior and current “diversity widget” and responses from various law review editors (here, here, and here). You can find additional musings about all of this at CoOps (here, here, and here), Prawfs, ProfessorBainbridge, and the VC. (Update 2/16/13, 5:30 pm: Kaimipono Wenger has a thoughtful Defense of Law Review Affirmative Action over at CoOps.)

Although these musing reflect a range of views, the majority, it seems to me, objects — in some cases vehemently, with calls for a boycott — to the notion of journals deliberately selecting articles on any basis other than merit. My immediate interest in this is not about the appropriateness, per se, of what I’ll call, for simplicity’s sake, affirmative action (AA) in article selection. (For thoughts on that, see the links above.) Rather, I’ve been struck by the strength of objections to this apparent practice in light of equally strong beliefs in the appropriateness of AA when it comes to selecting conference participants, and the like. Here’s the question I posed on one of Dave Hoffman’s Scholastica threads over at CoOps:

I’m curious if you have a position on using gender, race, and the like to select invitees for symposia, conferences, and similar speaking engagements. Is doing so an equally bad idea, in your view, or are there differences between the two situations that suggest different answers? I ask because my first instinct, on hearing of (what it seems to me fair to call) affirmative action at the level of scholarship selection, was that this, like many other aspects of legal scholarship, is a clear anomaly within academia at large (quite apart from its merits or lack thereof as a practice). But then I considered the fairly common — and fairly strong — norm (if not necessarily consistent practice) elsewhere in academia of trying to ensure that one invites a suitably diverse panel of speakers. Indeed, in philosophy, entire boycotts are currently afoot in response to perceptions that conferences failed to include sufficient numbers of women. So I’m wondering whether you think these situations are on all fours, or whether there are significant relevant differences. (To be clear, I don’t mean to be asking a leading question; I’m truly just curious about what you and others commenting on this think about this possibly analogous practice.)

Although “Anon” responded that s/he viewed these as “analytically equal” (and equally inappropriate), one "AnonProf" argued at some length that the two practices could in fact be distinguished, with AA appropriate — indeed, “very important” — for symposia invites, but not for article selections. Dave, who has said that AA in article selection is a “terrible, terrible practice,” agreed. [Update 2/17/13, 11:05 pm: Dave has clarified his reasons for distinguishing article selection from symposia invites here.]

As I said there, “I’m actually not convinced that the two situations are much different — and I’m definitely not convinced that any difference between them is as large as “very important [to do]” in the context of selecting diverse speakers (in AnonProf’s words) and “a terrible, terrible practice” in the context of selecting diverse writers to publish (in Dave’s turn of phrase).” Since the Faculty Lounge seems to be the only law blog without a Scholastica diversity post, and since my fuller response to AnonProf’s argument would have further hijacked Dave’s thread, I thought I’d move this aspect of the conversation here.

The utility of scholarship - round two

A good debate is always worth having, but the majority of the comments responding to my last post on this subject appear to have been responding to arguments I did not make.  I appreciate that other people think the question I ought to have discussed is "What is the cost of producing legal scholarship?" or "What is the proper balance of scholarship to teaching?" However, those were not questions I was attempting to raise.

Nor was I attempting to suggest, in Panglossian fashion, that we currently enjoy the best of all possible worlds in legal education or that I was indifferent or unsympathetic to the problems  so many law school grads have finding jobs.  On that matter, see this great post from Adam Levitin The Legal Employment Market (As an aside, with respect to many of the suggestions commonly made, both in the comments to my post and elsewhere, about what law schools ought to do, Tulsa has been doing many of them for several years. These include: reduction of class size, holding down tuition costs, introducing experiential learning opportunities, etc.  And our employment numbers have been comparatively good for what is without a doubt a terrible market. Again, I do not say that to suggest that everything is great or that there are other reforms that we or other law schools might undertake. But that is not this post.)

Instead, I was actually trying to make a relatively narrow and I think pretty unassailable point: It is very difficult to measure the “utility” (or cost) of scholarship where (a) the time horizons for its effects to be fully felt can potentially stretch out so far, and (b) where citations are not a reliable metric for assessing the impact of a piece of scholarly work.

Some readers clearly don't agree with this proposition.  However,  I invite those in doubt to read the Redish article I cited and compare it to the Virginia Pharmacy decision and decide for themselves whether it appears that the Redish article influenced the Court's decision. I think it did. Most knowledgable observers think it did. It was not cited by the Court [point (b) above] and yet it clearly had an influence on the Court and everyone who knows anything about the commercial speech doctrine knows that the theory advanced in this article, which was so outside the mainstream at the time that the late, great Thomas Emerson devoted only a few paragraphs to commercial speech in his book "Toward A General Theory of the First Amendment" the year before,  now represents, some 30 years later,  the dominant view of commercial speech as reflected in recent judicial opinions [point (a)].

Of course this is but one example. I offered other examples gleaned from my experience and from suggestions which came from others. Those examples lead me to suspect there are more and that at the very least  this phenomenon ought to give one pause before making snap judgments about scholarship's "worth" as a global matter or about how much is the right amount to invest in it. 

Since I wrote that initial post I have recieved several new examples from others - some relating to influential student pieces; and since at some reviews student authors are anonymous, this adds an additional complicating factor for tracking influence.  No less an authority than Judge Kozinski has observed, "Published student papers can also be quite useful and influential in the development of the law. A few law review notes and comments become classics cited widely by lawyers, courts and academics." (This quote is from the foreward to Eugene Volokh's Academic Legal Writing which is an invaluable resource btw, for  writing law review article - for students and faculty alike - and no, I'm am not being paid to say this). 

Judge Kozinski goes on to note that (in his opinion) "most" student articles are not influential. And who can argue with this? Whether it is "most" though  an empirical question. I rather hope that professor's articles have a better track record for influence than student pieces, but I don't know that this is true. I've given examples and reasons for thinking that it might be difficult ex ante, or even at publication, to determine what proportion of legal scholarship - from whatever source - is "useful."

Notice, my claim is not  that all scholarship is inherently valuable, nor that some "x" quantum of work needs to be produced in order to generate such useful scholarship.  It is a claim that one ought to perhaps be cautious  before concluding that "most" scholarship is worthless or that its worth pales beside the cost to students of producing it. Maybe. But maybe not.

I have no idea how much subsidy we ought to give scholarship to produce good work or whether the current amount is enough or too much. But I think is far from proven that the cost of producing these articles is "immense" as Ralph Brill suggests.  I don't think reduced teaching loads are that common outside of the top twenty law schools.  And I have no idea how many people you need working, for how many hours, to get good work. (I know my own knowledge about the commercial speech doctrine has taken years to acquire and involved a lot of help from a great many research assistants.) And while it is true that many of the examples I listed involve famous legal scholars, they didn't all start out famous. And not all influential articles have been published in top 20 law reviews. If you don't believe me, check it out for yourself. You don't have to find very many counter-examples before you have reason to doubt whether the metrics being proposed for how to identify what constitutes useful or worthwhile scholarship, or whether scholarship has any value at all, pose problems because worth is a difficult thing to measure.

Again, I make no claim about the proportions, although I notice most critics have no hesitation about tossing off empirical claims about how "most" legal scholarship is not influential.  I am willing to assume for purposes of argument that this is true. Still, since we don't know ex ante how much scholarship needs to be produced in order to generate "the good stuff";  and we know that relying on the status of the institution or the scholar to determine who ought to get support would be a form of hindsight bias and would rely on the signaling function of the prestige of the law review or the author to substitute as a measure of quality, we have a problem calculating that figure.  We know that status already matters a lot, but I daresay some of the articles which caught the negative attention of the critics like the Chief Justice appeared in these very prestigious publications or from well known authors.  So prestige, like citation counts, may be a blunt and unreliable instrument for judging worth or quality.

But here we come to another hot button. And this too comes out in some of the comments. One gets the sense that what bothers some critics is the subject matter. (Some of the commenters seemed determined to confirm this suspicion). The usual suspects are anything having to do with feminism or critical race, or perhaps critical approaches generally. Whatever one's feelings about feminism or sexual harassment as a cause of action, Catharine MacKinnon's "Sexual Harassment of Working Women" has been cited by at least 40 courts. Litigants can now sue for an injury that didn't have a name before. And of course those litigants have lawyers.

Like it or hate it, no one can deny that works like these and many more influenced the law, gave work to lawyers and therefore had "utility" if by "utility" we mean that it was relevant for litigants. I suspect that was not how much of this work was viewed when it was first published.

Similarly, Charles Lawrence's "The Id, The Ego & Equal Protection: Reckoning With Unconscious Racism," 39 Stan. L. Rev. 317 (1987) has 16 judicial citing references on Westlaw. (It has been cited hundreds of times in treatises and other law reviews).  Some courts found his work very persuasive indeed, even if not all others have agreed. So the claim that CRT or feminism is somehow inherently lacking in merit simply betrays the normative commitments of the critic. If "merit" = "influence" both theories have had a great deal of influence  in the courts and in society at large.

If you want to argue about whether these offerings have made net positive contributions to law (and I think they have), that is a different point than the one I am offering here. 

Coming up in future posts: Is the dollar cost of producing scholarship really so great as some propose? And, if scholarship is so despised and useless, why does it appear that law firms and interest groups are paying to produce it? Do we really want to go to a system where the only funding for scholarship comes from those who want to use it promote a particular agenda? And finally, a quick survey of recent law reviews where in I ask the question: "Do these articles sound useless?"

[This is a corrected version of the earlier post which fixed some typos and added some missing words. The substance is unchanged. ]

Parochialism and Law Review Submissions

While chatting about the current law review submission season with some colleagues, a question came up that I've never really thought about before because I tend to write in areas of law that involve federal legislation.  A few folks suggested that it's better to focus on federal law issues than state law issues in law review submissions, particularly if considering a choice between proposing harmonized state law and federal legislation.  The thought was that law reviews would be more interested in something of national import than something that sounded too 'parochial'.  I'd be interested in others' experiences on this question - and whether law review editors want to weigh in on it.  There may well be some merit to the argument in the sense that if law reviews want to increase readership they want to hit on topics that appeal to a national audience, but I've never really given it much thought before.

It’s February -- Law Review Submission Season is upon us!

Put your final edits to bed and finish out those pesky footnotes.  It's almost time to send that piece out.  Is there anything different in the submission season this spring?  

Since last fall, several more law reviews have opted to use Scholastica as their exclusive provider of online submissions.  Though the list of law journals is short (list below), it does pack a punch.  And as Dan suggests, the increased cost may have an effect on the number of journals to which each author submits through electronic means ($5 compared to $2).  Yet, isn’t this cost barrier really dependent on more law reviews raising their prices of playing the game?  I can foresee -- especially when the dollars don’t come from individual pockets -- someone saying “I’ll pay an extra $75 to submit to those 15 journals.  Do we expect more journals to join up with Scholastica?   

With new announcements of Law Reviews switching to Scholastica as their exclusive carrier, also come several announcements for the opening of the submission cycle.  For example, UC Davis announced its season as opening February 19.  Lewis and Clark and Boston College both list February 1 in their announcement, though its ambiguous whether they mean they will open their Spring window February 1, or if February 1 is just the arbitrary date for exclusively accepting submissions through Scholastica.  Anyone with inside knowledge, please discuss.  Looking back at  Sarah Lawsky's law review submission tracker  from last year several journals listed early February, February 1, or even January as the beginning of their season (including Yale, Penn, Duke, Cornell, Texas, Georgetown, UCLA, Vanderbilt, Wash U, Minnesota, GW, Illinois, William and Mary, Hastings and Florida).  So maybe the season officially began on February 1.  

General Law Reviews Accepting Through Scholastica

American University Law Review

Arizona Law Review

Arizona State Law Journal

Boston College Law Review (Feb. 1)*

California Law Review

Cardozo Law Review

Case Western Reserve Law Review

University of Iowa Law Review

Lewis and Clark Law Review (Feb. 1)*

NYU Law Review

Ohio Northern University Law Review

Southern California Law Review 

UCLA Law Review

UC Davis Law Review (February 19)

University of Chicago Law Review

*Note, it is unclear whether February 1 is the effective date for these journals’ switch to Scholastica or whether that date is the opening of their Spring submission cycle. 

Top-Ranked Journals Are Losing Their Share of Top-Cited Articles

An article in The Chronicle of Higher Education's percolator reports that "Top-Ranked Journals Are Losing Their Share of Top-Cited Articles."  Cribbing from the Chron, a study "published in the November issue of the Journal of the American Society for Information Science and Technology, found that in 1990, 45 percent of the top 5 percent of the most cited articles were published in journals whose impact factor was in the top 5 percent—publications like Cell, Nature, Science, and the Journal of the American Medical Association. By 2009, that rate had fallen to 36 percent...."

While that study is focused on science journals, I'd not be surprised to find a similar result in law reviews.   Some of the best cited articles in good but not super elite law journals win more citations than many articles in our most elite law journals.  I had some related thoughts on this last summer.

Digital Innovations in Law Review Publishing

From Bobby Cheren at the CWRU Law Review:

On November 5, 2012 the Case Western Reserve Law Review broke new ground in the digital pre-release of the first issue of Volume 63. The new volume is redesigned from the ground up to support tablet reading.  A digital edition of the entire issue is available here.  

The Law Review also released the second episode of the first-of-its-kind podcast series Below the Line featuring articles published in the Law Review on iTunes.  The Law Review created the student-produced series to showcase important legal scholarship published in the Law Review, to generate and disseminate commentary on articles, and to offer a behind-the-scenes glimpse of the research process. On each program the author offers a summary of the article and answers questions from the Law Review. In addition, the Law Review invites leading authorities in the relevant field of law to offer their commentary on the article. The second program, Below the Line 63:1, features Professor Clay Calvert (Florida) and his article To Defer or Not to Defer? Deference and Its Differential Impact on First Amendment Rights in the Roberts Court with commentary by Professor Mark Tushnet (Harvard) and Professor Steve Shiffrin (Cornell). The series is available on iTunes here. 

 

 

CFP: Northeast Regional Scholarship and Teaching Development Workshop

The Northeast Regional Scholarship and Teaching Development Workshop has issued an announcement and call for papers for its 2013 gathering for pretenured law faculty at Albany Law School.

From the Workshop website:

This workshop is intended for law faculty who do not have tenure and who seek an opportunity to develop their scholarship and discuss their teaching with other, similarly situated law faculty. This program will provide a forum for untenured faculty to present works in progress, solicit feedback from peers ahead of the February-March Law Review submission season, and network with other untenured faculty about teaching practices and related issues. 

The Workshop is free, but registration is required before November 16, 2012 (register here). Given its timing (in advance of the Spring submission cycle) and the chance to have senior faculty review and comment on works-in-progress, this looks like a great opportunity for juniors and VAPs.

 

CWRU Law Review's Below the Line Project

From the editors of the Case Western Reserve University Law Review comes the announcement of a new initiative involving podcasts of articles published in the review.

For each issue of the Case Western Reserve Law Review, the editors select one article to feature in the new Below the Line series. In each podcast the author offers a summary of the article and answers a few questions. In addition, the editors invite leading authorities in the relevant field of law to offer their commentary on the article. The first podcast is available here. 

The first two programs are:

Below the Line 62:4 Featuring Professor Daniel P. Tokaji (Ohio State) and his article Baker, Bush, and Ballot Boards: The Federalization of Election Administration

With commentary by Professor Rick Hasen (UC Irvine, Election Law Blog) and Professor Bradley Smith (Capital University)

Below the Line 63:1 Featuring Professor Clay Calvert (Florida) and his article To Defer or Not to Defer? Deference and Its Deferential Impact in the Roberts Court

With commentary by Professor Mark Tushnet (Harvard) and Professor Steve Shiffrin (Cornell)

Available November 2012

Pepperdine Law Review Seeks Article

From my friend (and Pepperdine law professor) Greg McNeal comes this email:

NOTICE: The Pepperdine Law Review is one article away from finalizing its Volume 40 line-up and announces this call for articles—or exclusive submission window—to fill the final spot.  This year’s volume already features a wide array of excellent articles from both established and emerging professors on topics ranging from constitutional interpretation to corporate law to bankruptcy. 

The article will be placed in Issue 4 and is slated for publication in Spring 2013.  The Law Review guarantees that one of the articles submitted in this exclusive submission window will be chosen.  Further, articles will be accepted from today until October 8, 2012, and the article will be selected by October 15, meaning expedited review is assured.  The only condition of submitting an article is your commitment to publish with Pepperdine Law Review in the event that the article is chosen.

To submit, please e-mail an attached copy of the article, your curriculum vitae, and a cover letter to lawrevsubmis@law.pepperdine.edu with the subject line “Exclusive Fall Article Review.”

Articles already passed over by the Law Review may be resubmitted, as should articles still pending review.

Call for Articles: Southern Illinois University Law Journal

From an email that I received earlier today:

CALL FOR PAPERS: GUANTANAMO BAY: WHAT NEXT?

The Southern Illinois University Law Journal is seeking scholarly legal articles from newer legal scholars for possible inclusion in a special Symposium issue on legal issues arising from the continued detention and trial of detainees at Guantanamo Bay. The SIU Law Journal is dedicated to producing scholarly publications of the highest quality attainable.

There have been several recent developments pertaining to Guantanamo Bay, ranging from the constitutionality of the process of indefinitely detaining so-called "enemy combatants" to the hurdles faced by the attorneys who have chosen, or been chosen, to represent those detained there.  For years now, Guantanamo Bay has been a focus of the debate about the proper balance between liberty and security.  Despite its unpopularity among many, it appears that Guantanamo Bay, for the time being, is not going away.  This Symposium issue of the SIU Law Journal will seek to address many of the continuing legal issues surrounding Guantanamo Bay from all viewpoints and provide a platform for legal scholars to present new research and ideas on this important topic.

The SIU Law Journal will choose the best Symposium article from a newer law faculty member (defined as a law faculty member who has been part of the legal academy for seven (7) years or less) on a legal issue pertaining to Guantanamo Bay.  The article should be approximately twenty to twenty-five pages in length.  Three law professors from Southern Illinois University School of Law and the Editor-in-Chief of the SIU Law Journal will select the best article submitted, which will be published in the Symposium issue of the SIU Law Journal.  In addition, the author of the chosen article will be invited to attend the Guantanamo Bay Symposium at SIU School of Law on February 22, 2013, all travel expenses paid, to give a presentation on the topic of his or her article.  Although only one scholar will be invited to participate in the symposium through this call for papers, the SIU Law Journal will consider the other articles submitted for publication in the Symposium issue.

The full manuscript, in Word format, should be e-mailed to the Editor-in-Chief by the deadline indicated below.  Please feel free to contact the Editor-in-Chief, Brian Lee, at bdlee@siu.edu if you have any questions or concerns.

IMPORTANT DATES:
Full Version:       November 19, 2012
Decision Date:   December 21, 2012

Symposium Announcement: Emerging Issues in Social Enterprise

From an email that I received earlier today (slightly edited):

Our friends at the Regent University Law Review are hosting a symposium entitled “Emerging Issues in Social Enterprise” on October 6 in Virginia Beach.   The symposium website is available here:  http://www.regent.edu/acad/schlaw/student_life/studentorgs/lawreview/symposium.cfm.

Presenters and panelists include: Cassady V. Brewer (Georgia State University College of Law); Joan MacLeod Heminway (University of Tennessee College of Law); Lyman P. Q. Johnson  (Washington and Lee School of Law and University of St. Thomas School of Law); Marcia L. Narine (University of Missouri-Kansas City School of Law); Michael I. Pirron (CEO of Impact Makers, a founding certified B Corporation in Virginia); Dana Brakman Reiser (Brooklyn Law School); and Kyle Westaway (Founder of Westaway Law, co-founder of social enterprise Biographe, and lecturer at Harvard Law).  Moderators include Regent law professors Douglas H. Cook and J. Haskell Murray.

Call for Articles: Arkansas Law Review

From my friend (and Arkansas law professor) Dustin Buehler:

The Arkansas Law Review is pleased to announce a call for papers in conjunction with the 2012 Annual Symposium to be held on Friday, November 9 in Fayetteville, Arkansas.  The topic of the symposium will focus on the mortgage foreclosure crisis.  The University of Arkansas School of Law is delighted to host Professor Dale Whitman as a Visiting Professor for the 2012-2013 academic year.  His scholarship has informed the direction of our symposium.

The first issue of Volume 66 will be devoted to the Symposium and will be published in early spring 2013. We encourage articles analyzing both the causes and effects of the crisis from a regulatory perspective and a homeowner perspective.  We would also appreciate forward-looking articles that posit solutions and preventive measures.    

Authors should submit an abstract and a cover letter to rewright@email.uark.edu.  The deadline for submissions of article proposals is Monday, October 8, 2012.  Please feel free to email Robin Wright at rewright@email.uark.edu with any questions.

Sometimes What We Publish Actually Matters

A bold statement!  Catch your breath and savor it (the statement, not your breath).

Some of you may be following the developing issue surrounding the dubious (and profoundly piggish) tactic indulged in by many private equity fund managers of avoiding (evading?) hundreds of millions of dollars in taxes on the management-fee portion of their compensation.  The strategy involves "waiving" the management fees--except they're not really waived, they're "invested" in the fund or a related vehicle and paid to the manager later.  So instead of paying the 35% ordinary income rate on the management fees, these Masters of the Universe pay the 15% capital gains rate--and pay it years after they earned the management fees.  The amounts involved are staggering.  Bain Capital alone has engaged in this tactic as to over $1 billion (yes, with a "B") in management fees, resulting in over $200 million in unpaid taxes from this company's personnel alone.  And this for people already taking home tens of millions of dollars a year after taxes.

New York Attorney General Eric Schneiderman has issued subpoenas to explore how many New York residents may have stiffed his state's treasury in this fashion.  The New York Times reported on it over the weekend here.

The Times' interest in what might be considered an abstruse tax issue is fueled in siginficant part by Republican Presidential Nominee Mitt Romney's longstanding relationship with Bain Capital, and the possibility that he personally benefited from these tactics either while he was actively working there, or as part of the "retirement" package he received when he left.  Unlike every presidential candidate in recent memory, Romney has famously refused to disclose his tax returns except for the last two years, fueling speculation that he is either a tax cheat or at the least the beneficiary of what are referred to in polite company as "aggressive" tax strategies available only to the superrich, resulting in his paying effective tax rates that are a fraction of ordinary working folks'.  (It is worth noting that not every private equity fund played this game.  A number of the most prestigious and successful funds, including Blackstone and Carlyle, reportedly eschewed it.)

Romney supporters deride Attorney General Schneiderman's investigation as politically motivated, and Schneiderman is in fact a Democrat reportedly with ties to the Obama administration.  Why that should discredit the inquiry whether a major-party candidate for President has underpaid his taxes by millions in the midst of an economic crisis--an inquiry that the candidate could resolve simply by disclosing to the electorate the same information every major party candidate for President has disclosed for decades--remains a riddle to me, but perhaps I lack vision.  To be fair, a Romney tax advisor represented categorically to the Times that "Governor Romney's retirement agreement did not give [his] blind trust or him the right to [engage in the fee-waiver strategy], and I can confirm that neither he nor the trust has ever done this, whether before or after he retired from Bain Capital."  The irreducibly concrete among us may be forgiven for preferring show to tell, but again I perhaps lack vision.

This is all very interesting, Bernie, I hear you say, but you drew me into this rather dismal lesson on federal tax policy on the premise you would show how the academic work I publish actually might matter.  Fair enough:  Prepare to be exhilarated.

The Wall Street Journalreports today (sub. req'd) that "a person familiar with [the NY AG's] office's thinking" has explained that the subpoenas were issued in July, before this issue sprang into public consciousness, and were raised by the office's taxpayer protection bureau (a bureau that apparently protects the taxpayers who do pay their taxes by pursuing the ones who don't) based on discussion of the issue in (wait for it . . .) "academic papers."  I would be remiss if I failed to point out that this phrase in the online report is hyperlinked directly to my brilliant and perspicacious colleague Gregg Polsky's 2009 paper describing and condemning this very strategy, Private Equity Management Fee Conversions, 122 Tax Notes 743 (2009) (ssrn here).

So sharpen your nibs, my friends--real regulators may rely on your work to brook the high and mighty.  And of course your mom likes it too.  Hats off to Gregg Polsky for making himself useful!

--Bernie

Hey, IRBs: You're Doing It Wrong (But It's Not Your Fault). Also, Thanks a Lot, Toshiba

So I've just posted a draft paper on SSRN, "Regulating the Production of Knowledge: Research Risk-Benefit Analysis and the Heterogeneity Problem," the first of a pair of companion articles on, well, how we regulate knowledge production -- focusing on IRBs in particular and on the peculiar risk-benefit standard that pretty much every federal agency (and the governance frameworks of many other countries) requires them -- futilely, I argue -- to perform. As soon as I finish navigating the ExpressO/Scholastica maze, I'll be blogging about some of issues raised in this paper, its companion, and "Legal Experimentation: Legal & Ethical Challenges to Evidence-Based Law & Medicine," a workshop (and edited volume) I'm organizing this spring.

But for now, a few brief thoughts:

(1) I hate the title of the draft paper. It's hideous. I long for the concise elegance of Prison Vouchers or some of the others mentioned here. The companion paper is tentatively titled "Research Contracts." That's followed by the usual boring descriptive subtitle, of course, but I consider it a victory at least to have begun with the kind of title I aspire to. For the posted draft, though, I can't even manage to do that. "Hey, IRBs: You're Doing It Wrong (But It's Not Your Fault)" is a fair description, but seems a little glib for a law review article. So I'm all ears if anyone comes up with a less jargonistic, sleep-inducing title. (More importantly, and in all seriousness, I'm very open to feedback on the paper itself.)

(2) Toshiba is on my s*** list. Partly because I'm a die hard Mac person, but mostly because of Toshiba's latest ad campaign, embedded above, which stereotypically portrays research participants as the passive objects of mad scientists -- that is, as proverbial guinea pigs. Like other historically disempowered groups, career research participants have reclaimed that moniker. But Toshiba's customers don't know that, and its ad helps perpetuate the image of research participation as terribly dangerous and degrading and as something that only someone who is either irrational or desperate (and willing to be exploited) would agree to. In reality, research participants can and do initiate research, and in the increasingly popular Citizen Science and Quantified Self movements, the distinction between researcher and "subject" disappears altogether. It's also closer to the truth (ahem, Time Magazine) to say that a lack of experimentation has turned millions of us into human guinea pigs in the realms of health care and legal services, and as the subjects of any number of laws, regulations, and policies (see the "Legal Experimentation" prospectus, linked above). /Rant

How Good Are Students At Picking Law Review Articles?

As my friends and colleagues know, I'm not a huge fan of law reviews.  In fact, as you'd know if you'd been subjected to serve on a faculty with me at any time over the past eighteen years, I'm quite critical of them.  Some years ago I set out to write a short piece, "law review editorship as training for hierarchy" -- which took its inspiration from Duncan Kennedy's "legal education as training for hierarchy," obviously and also from Fred Rodell.  Though in some ways of late I've been a defender of law reviews.  I think they provide some training for the students -- they give the 3Ls a chance to get some management experience and some editing experience, they provide an opportunity for both 2Ls and 3Ls to do some writing and research.   I think law review can be a meaninful intellectual experience for people who take it seriously.  There's something anti-hierarchical about law reviews in that students rather than people more directly connected to the  hierarhcy are picking articles.  Are there better systems that could be devised for these purposes?  I'm sure there are; but I'm not sure law reviews are the complete and utter disaster that so many people make them out to be.  I know that doesn't sound like a resounding endorsement of the educational and scholarly value of law reviews -- but in context around here, it is.

One of the questions that I've had for a long time is how good are students at picking law review articles?  I think it's pretty hard to evaluate an article's quality -- I struggle with this with some frequency when I do peer reviews for history journals, for instance.  And I actually know a lot about the fields I'm reviewing in.  The students seem to think they can do a pretty good job with this -- and maybe they're right.  You may recall the words of one student editor at the University of Pennsylvania Law Review who wrote a response to Judge Posner's critique of law reviews a few years back:

The issue is not whether students are competent to select only the “best” articles, but whether student editors are able to determine whether a given article meets a basic threshold of validity, thereby creating a portfolio of valid articles for dissemination to the legal community. . . .  [B]ecause the article selection process is complex, anyone young and inexperienced will have difficulty with it.  The truth is, however, that article selection is not too difficult a task for law students.  Deciding whether or not an article is desirable is not an elusive process requiring a refined professional judgment, honed through years of apprenticeship and experience.  It is not even like wine tasting or art-gallery visiting, where a certain kind of “taste” or “eye” is needed.

How can we judge the quality of student decisions?  Well, one way I guess is to ask the experts.  Often when I read an article in a truly elite law journal that's in my area of expertise I'm surprised that it was selected -- this is because I can see and identify problems with it.  Of course, I have no idea what the other articles under consideration were, so the fact that I think a particular piece isn't great (and that I'm familiar with better pieces published in "lesser" law reviews around the same time) isn't a great judge.

Another way of looking at this issue is to use citation data.  As I wrote about a couple weeks back in the context of Theodore Eisenberg's and Martin Wells' latest on citations, a study of citations also has a lot of problems.  But if we would just suspend objections for a moment, I want to talk about a simple study I published a few years back, which looked at citations to articles in a thirteen leading law journals over a 15 year period.  The study found that many articles in our nation's most elite journals did substantially less well than articles published in very good, even if not the most elite journals.  There are a lot of things to be said about this -- including that, wow, there's not a lot of space in those journals and some articles do great -- absolutely fantastic in citations -- but a lot don't.  But I think it also suggests that a lot of judgements, even by editors of the best journals, may not be the best decisions they could have made.  This is hindsight -- and it poses all kinds of problems related to field bias in citations -- but it also reminds us that some articles in the best journals may not be as good as many other articles published in other journals.  And I think that's an important caveat, especially this time of year as hiring and promotion and tenure committees are gearing up.

The illustration is a graph in the article that shows the citations to each article published in the journal in 1992, over the next fifteen years.  I blogged some more about this a while back.