The Faculty Lounge

Law Review Submission Formats

Here's a stupid question for the end of July. I was wondering if anyone would like to weigh in on the issue of formatting articles for submission to law reviews. I have usually used the Word template that Eugene Volokh posts on his website because many years ago I was told it would give me an "edge" at getting editors' attention. Now, everyone uses that format and I have inadvertently been drafting an article in a good old-fashioned Word format. I'm wondering if now I could buck the trend and my article will garner attention for *failing* to look like all the other articles.

Seriously, though, I'm interested in whether there are any specific word templates, fonts etc that law review editors prefer for submissions these days. In the digital age, I assume they can re-format however they like at the push of a button so it's probably a moot point, but it's been niggling away at me so I thought I see if there are any new trends emerging.

Michigan Law Review Book Review Issue

As Karen Tani and Paul Horwitz have pointed out, the new Michigan Law Review book review issue is out.  I think book reviews can serve a really importance function of getting people talking about ideas.  And along those lines I have to say that I've been pleased to see that the Texas Law Review's reviewing a lot of books these days -- though spreading out the reviews over the entire volume.  I like Texas' approach of getting multiple perspectives on books by having a couple of people review the volumes (as they did with my and Brian Tamanah'a's reviews of David Rabban's Law's History) -- that can really give a sense of range of responses to a book.  And you can see what's common among reviewers as well.

Turning now to the Michigan Law Review.  Several works of legal history are represented here.  Kerry Abrams reviews Inside the Castle: Law and the Family in 20th Century America by Lawrence Friedman and Joanna Grossman.  Mary Dudziak's War Time is reviewed, as is Susan Pearson's The Rights of the Defenseless: Protecting Animals and Children in the Gilded Age.  One might also put the biography of Justice Brennan by Seth Stern and Stephen Wermiel on that list, though I usually think of biographies of recent justices as having more to do with contemporary politics than legal history.  The entire issue is longer than several recent issues (there are about 360 pages of reviews by outsiders and a few other reviews by members of the Michigan Law Review.)  I think the 2012 issue had about 300 pages and the 2009 issue was around 200 pages.  We're still a long way from the glory days of the late 1980s -- and I'm guessing there are no plans to get back to book review issues of that size.

But what I want to talk about now is the Foreword, "Oh, the Treatise!" by my Durham neighbor Richard Danner, who's the senior associate dean for information services at Duke.  Danner presents a history of the treatise in the United States (with some nods to Britain as well) -- though I read him as really addressing the question why legal scholars write books and how the structure/purpose of books has changed over time.  The basic upshot is that treatises that synthesized cases served a function in the late 19th and early 20th century and that now we don't so much need the synthesis and so scholarship takes a different form.  I guess my response to this is that some lawyers do need those kind of comprehensive treatises -- and that's why we have some of them, still.  Others of us need other kinds of treatises -- I still use formbooks every now and then, and unsurprisingly I use monographs all the time. 

Danner doesn't mention either of my two favorite treatises -- Francis Daniel Pastorius' Young Country Clerk's Collection, which I believe is the first treatise written in British North America.  (Notice that I emphasize written rather than published, because it was a manuscript.)  It was a formbook, so not much of synthesizing was in there, but I think it reflects well the nature of legal thought in late seventeenth century Pennsylvania.  And for people looking for practical scholarship, that fit the bill.  Need a will?  A parternship agreement?  A contract for sale of real estate?  They're all in there.

Then fast-forward to the middle of the nineteenth century, which is the great era of the treatise.  Thomas Cobb wrote a very important treatise on slavery that synthesized the southern, proslavery ideas about the history and economics of slavery and put them together with the southern case law on slavery.  This was pointed at several audiences -- judge and lawyers as well as a more general audience of the proslavery public.  For the treatise began with a long section on slavery's history and its centrality to the economy.  Cobb built on that to interpret the law, but it had a use justifying slavery outside of the courts.  If one is looking for the writings of lawyer that had an impact, unfortunately, Cobb's treatise is one of them.  I saw unfortunately because I think it served to justify proslavery ideas and propelled proslavery jurisprudence forward.  About that I'll have more to say soon.  

Scholarship Tips

As the semester draws to a close, I'm sure many of us our thinking about scholarly projects for the summer.  I wondered if now would be a good time to open a post to share some "scholarship tips".  What is the most important thing you would advise colleagues, or want to make sure you remember to do yourself, in new scholarly projects?  Issues relating to approaching research, effective use of research assistants, outlining a proposal, developing successive drafts etc...

Sunstein's Least-Cited Article?

The following vignette is a great example of why we should be quite skeptical of judging the quality of an article by how many citations it has....

I'm writing a short essay on a survey of student attitudes towards intestacy and also towards the marital elective share that I conduct on the first day of my trusts and estates class.  I survey student attitudes on those issues as a way of introducing them to some of the topics we're going to be talking about in class -- and I often find that the students' ideas about what should happen don't really match up at all with what does happen.  And therein begins some great discussion both on the first day of class and down the road in the semester.  I use surveys at other points in the class to gauge students' attitudes towards cases and see if they vary according to gender.  It won't surprise any trusts and estates teachers that male and female students differ greatly in their attitude toward In re Strittmater.  But that's really a story for another time.

I remember about fifteen years ago -- back when I was teaching administrative law -- really enjoying an article that Cass Sunstein wrote (actually co-authored, though I'd forgotten this) on a survey he conducted in his administrative law class about students' attitudes towards allocation of resources in response to risk.  (The article is by Christopher E. Houston and Sunstein, Risk Assessment, Resource Allocation, and Fairness: Evidence from Law Students 48 Journal of Legal Education 496-523 (December 1998).)  And so I was looking for that article this weekend as a sort of model for this very compact essay I'm writing.  I remembered that it was in the Journal of Legal Education, but I'd forgotten the title.  But I figured that it would have been cited a bunch and would be easy to find.  It actually didn't take long to find, thanks to the magic of westlaw, but I was surprised that it hadn't been cited much, at all -- I think only twice in westlaw's JLR file.  

I mean, I'd understand it if it were on pre-Civil War popular constitutional thought -- even more so if it were on pre-Civil War trusts and estates or landscape art and property law.  But this is Cass Sunstein -- and it's on adminstrative law and risk.  Just further evidence that you shouldn't judge an article -- even an article's utility -- solely by its citations.

Bounties for Prestigious Law Review Placements

I'm sure we've discussed this before, but a number of schools still retain incentives for faculty to publish in high-ranked law reviews through bounties/rewards e.g. if any faculty place an article in a journal whose school is ranked in the U.S. News Top [10/20/50 etc], they get a grant or stipend for doing so.  I understand that placements are the coin of the realm, but these systems seem strange to me.  If faculty are being productive and their scholarship is impactful, I wonder if pressure or encouragement to publish in certain journals creates incentives in some cases to make scholarship less effective than it might otherwise be.  For example, this year, I've turned to more internationally focused intellectual property work and have published more in international journals than I usually do.  Some of the reason for that focus is that international journals have actually solicited this work, but it's still getting cited and noticed, perhaps more so than it would have in a traditional U.S. law review.

If the argument in favor of publishing in traditional law reviews is that everything is online now anyway, so it doesn't matter where you publish (so why not publish in traditional U.S. law reviews?), I would suggest that is incorrect.  While most U.S. law reviews are available online, many of them are not available free of charge online.  So the audience would be limited to those who have paper subscriptions or can afford LEXIS/Westlaw access.  Of course, the same would be true for journals in other countries and professional journals.  So the argument can easily be turned around to say that everything is equally accessible online (sometimes free of charge, and sometimes for a fee), so why not publish in the place where the article will get the most traction?

And of course the fact that bounties exist for prestigious placements doesn't mean that any professor has to aim for a certain kind of placement for every single article.  And presumably faculty who don't publish in Top [10/20]50] journals but do publish well have other incentives such as professional reputation enhancement and potentially recognition in base salary?

It just seems to me that the express recognition of what "prestigious placement" means can send strange and potentially inaccurate signals to faculty about the definition of good/insightful/impactful scholarship. Thoughts?

 

Open Source Public Review

Here's a pretty exciting idea, which I guess some number of people are experimenting with -- crowd sourcing peer review.  Ohio University Press will be publishing soon a volume called Subjecting History: Building a Relationship Between History and Its Alternatives.  The volume asks how the perspectives of historians and the public differ about history.  That is, the volume makes history the subject of study.  Cribbing now from the book's website, the editors Trevor R. Getz and Thomas G. Padilla are interested in question such as: how well academic scholarship represents past? Does it align or conflict with nonacademic ways of understanding the past?  What are ways that academic scholarship can better represent the past without appearing to ignore interpretations that run counter to it?  These questions are important and I'd think that down the road one might address how judges think about history, perhaps differently from how academics historians think about it. 

As part of an NSF funded experiment in open peer and public review, the editors have put drafts of the chapters on the net and are asking for public comment.  You can read all the chapters and then comment on them.  Just to be clear, these are drafts that are still undergoing revision.  And this I find particularly interesting -- the Press may include the public comments in their final volume.  The essays deal with a bunch of different micro-level stories -- one, for instance, deals with a Rhode Island playground named after a child who passed away in the late nineenth century.  Reminds me of how a lot of people use parks to create memorials to their friends -- and also in the early twentieth century used restrictive covenants to control who could use the park.

I learned about this because my friend Jim Hall of the University of Alabama has a chapter on how the University preserved (and in some cases removed) the ruins of the campus after it was burned by the United States army at the conclusion of the Civil War.  The short version of Jim's story is that campus was largely burned at the conclusion of the War and some of the ruins were maintained for several decades (and in fact a few ruins are still on the campus).  All of this is tragic -- the University was yet another of the many, many victims of the extraordinary violence unleashed by the war (and that preceeded the war during the era of slavery).  The library was one of the many buildings burned.  And so we lost the collection of books -- though if you're interested in this, here's a catalog of the books in that library.  One of these days I'm going to write something about that collection.  There's also an important story about the compensation that the federal government gave the University (in the form of land in the late nineteenth century).

The image is of the University of Alabama's campus before the War.  As the caption indicates, the Mound (one of the ruins that Jim writes about) is on the site of the Washington Dormitory.

Researchers and Librarians

On February 26 I had the chance to be on a really fun and thoughtfully-organized panel over at Davis Library, our main library at UNC.  The idea was to get a few faculty (two of anthropology, one from library and information science, and two from law) to talk about how we research.  The audience were academic librarians here at UNC and I think they thought of us sort of like zoo creatures -- or human research subjects, anyway.  (Michelle Meyer could tell us whether they needed IRB approval!)  

Some of the talk was of simple questions, like how do we keep up with developments in our field; others were research intensive, like what are our current projects and what library resources are we using for them.  It was pretty interesting to hear the resources the social scientists were using.  Unsurprisingly, there was lots of talk of GIS and huge databases.  The professor from the library and information sciences school spoke about one of her projects, on the first woman librarian at Oxford's Bodleian Library.  Pretty cool stuff.  Makes me jealous, because I'm pretty sure that book will get a lot of sales!  Perhaps one of these days I'll write a book about Mrs. Lincoln's Librarian's cat.  That would be like catnip to acquisitions librarians.

My use of library resources seems rather pedestrian by comparison -- or maybe old fashioned, though in a digital kind of way.  Unsurprisingly I rely heavily on westlaw and then some of the more specialized databases for historical sources -- like books.google and some of the propriety databases (a couple of my favorites are making of modern law and the Sabin catalog).  

I'm old enough to remember having to go to the library and reel through microfilm if I wanted to look at a seventeenth century book.  No need for that now -- I can get every extant book published in English (and in the UK, even if not in English) at my office via the library website.  Too bad these days my research isn't focused on the seveenth century.  

But as for the nineteenth century stuff, most of what I need in terms of law books and cases are on-line and full-text searchable (thank God!)  We also through the magic of ancestry.com (and one of the databases I learned about, heritage -- which I think is essentially a cut-down version of ancestry), have census records on-line.  This makes possible serious social history that would have been essentially impossible even fifteen years ago.  I'd still like to see more in terms of newspapers (especially newspapers) and pamphlets scanned in.  From my perspective, the books.google scanners can't get to that stuff soon enough.  To borrow a phrase from Sarah Palin, "scan, baby, scan."

All of the widely available information puts a huge premium on interpretation.  Once you could make a career in history by finding information; now that a lot of it is much more easily accessible, there's the often more difficult question of what it all means.  I can remember saying when I was in law school that I thought when westlaw put the pre-Civil War cases on-line that would transform how we thought about legal history -- I think we've taken advantage of that mass of data less effectively than we ought to.  But we have seen lots more connections between judges than we had previously and I think we're seeing just how unified legal thought was, north, south, and west in the years leading into war.  (Along these lines, I might observe that Vernon Burton's presidential address for the Southern Historical Association makes great use of books.google data.  But that's a story for another time.)

Then as a sort of fun question at the end my colleague Sara Sampson, who organized the panel, asked what is the most recent book you've read that isn't related to your research.  And she added, in what format did you read it?  Everyone else had pretty creative answers, though I must admit that since I essentially never read anything that isn't related to my research, I had to stretch back a ways for that answer, to Haldor Laxness' Paradise Lost.  (And of course Sara asked about the format in which we read the book -- everyone else was reading on their kindle or ipad.  Not me, unsurprisingly.)

But here's in some ways the most interesting part of this:  because the audience was filled with academic librarians, a bunch of them were tweeting the panel.  And the tweets give I think a really cool picture of how different people viewed the event.  Sort of like reading through student essays from the pre-Civil War era to get a sense of the range of ideas of students on the same topic.  They're at @DonnaBickford  @JoMCParkLib.

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. 

Outsourcing the Up Goering of My Job Talk Paper to Forbes

So, one thing they say about being on the law teaching market is that you likely will never before have enjoyed — and, less happily, will likely never again enjoy — so much attention to your work and so many opportunities to discuss it. That’s totally true, and it’s totally fabulous. But there’s a flip side of that that they don’t tell you: after a while, you get burned out on talking about the same paper over and over again. You’ve likely moved on to other projects and are more excited about them, even if (or because) those projects build on your job talk paper. At this point in the process, your recitation of your job talk paper may have become rote and uninspired. You may, like me, have come to dread the act of rattling off your job talk paper’s thesis and why it matters.

And so it is that, having promised some months ago to blog my job talk paper on what I call the “heterogeneity problem” in research regulation, that I have yet really to do so. I’ve blogged around the edges, to be sure (see, e.g., here, here, here, and here), but I can’t bring myself to explain the central thesis one more time. I also owe book editors a chapter on the challenges of heterogeneity for the growing global trend in "risk-based regulation" across many industries, and I’ve been procrastinating that, too, I think, largely because it requires me first to provide the reader with a précis of the heterogeneity problem. All of this is annoying, because there are lots of things that build on that central thesis that I’d like to write about, if only I could get over this strange aversion.

Enter physician-scientist David Shaywitz whose overly kind piece yesterday in the Pharma & Healthcare section of Forbes.com, Personalized Regulation: More Than Just Personalized Medicine — And Urgently Required, highlights my work and, essentially, Up Goers it for me. It of course doesn’t cover all of the points I make in the paper, and in other ways it extends my thesis beyond what I defend in the paper, but it gives readers the gist. Thank you, David! (Let this also serve as supplemental answers to hiring committee questions about “What does your work have to do with the law?” and “Aren’t you ‘just’ a bioethicist whose work has no relevance for health or administrative law?”)

And now, with that out of the way, in my next post I’ll feel free to apply the heterogeneity problem to this question I was asked on Twitter. I can almost guarantee you that it will be my first and last post about football.

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.

 

Exempt Research & Expedited IRB Review: Curb Your Enthusiasm

A while back, over at PrawfsBlawg, Martin Pritikin had a useful post collecting advice for legal academics looking to break into increasingly popular empirical legal studies (ELS). As Jeremy Blumenthal notes in the comments, Step 1 is to be sure to get IRB approval. This post addresses what I’ll call, with a nod to Cass Sunstein’s work on Chevron deference, IRB Step Zero: Determine whether your research needs IRB approval at all.

Don’t worry, it’s an easy step: As Jeremy’s plenary admonition to all wannabe ELS scholars implies, the answer is almost certainly Yes. Although the regulations in theory establish three risk-based tiers of review — human subjects research (HSR) otherwise subject to IRB review that the regulations nevertheless exempt; HSR that is eligible for expedited review; and HSR that requires review by a fully convened IRB (everything else) — in practice, the first two tiers tend to collapse into the third. In this sense, and now I borrow from Matthew Stephenson and Adrian Vermeule, IRB review has only one step.

A quick note of clarification: As I’ve noted before (here and here), several projects I have in the works, beginning with Regulating the Production of Knowledge: Research Risk-Benefit Analysis and the Heterogeneity Problem, forthcoming next June in the Administrative Law Review, argue that we suboptimally regulate knowledge production. Just to be clear, my argument in that article doesn’t depend on my argument here about the broad scope of the regulations and their failed attempt to achieve risk-based levels of review.* Consider this post a public service for ELS types. That said, I draw here on The Heterogeneity Problem's background section, where interested readers will find the relevant citations.

The Joy of the Roundtable Conference

I have the great joy of having been invited to the University of New Hampshire/Franklin Pierce’s Intellectual Property Scholars’ Roundtable on the Constitutional issues associated with I.P. law. I wanted to mention briefly the great value of this kind of conference. In the room are about twenty-five scholars who study various aspects of I.P. law. About a dozen of us are presenting an issue on which we are currently working and soliciting questions and comments from everyone else. I am not presenting a paper this year, so I can sit back a bit and think about the roundtable-style conference and its value to our scholarship in addition to absorbing the content of the presentations.

Topics at the conference have been limited to those I.P. issues associated with constitutional questions. To give an idea of the breadth of the topics covered, we have discussed the First, Second, Fifth, Seventh, Eleventh and Fourteenth Amendments as well as the Commerce, I.P., and Supremacy Clauses of the main document — and the conference isn’t over. Some of the most fascinating discussions have occurred when the interconnection of the different Constitutional provisions are discovered. In at least one time, it was exactly that. I don’t think any of us had thought about the connection raised before.

Indeed, this discovery of new interconnections is why the roundtable is such a valuable type of conference. The standard conference where papers are presented, mostly as finished works, has its value in dissemination of the information developed in the paper, but it doesn’t serve as the same incubator for new ideas. Indeed, where the research has been reduced to an article, it is often more informative to read the paper instead of hearing an oral presentation of it. For the roundtable conference, on the other hand, we get the opportunity to have our colleagues serve as idea editors. Whose scholarship wouldn’t be made better by that?

AALS Committee on Research: Advancing Student and Faculty-Student Scholarship

From my friend, and Tennessee law professor, Joan Heminway:

The Association of American Law Schools Committee on Research is considering putting on an AALS panel on (1) how we law professors can advance student scholarship and (related but separately) (2) how we can advance joint faculty-student scholarship. 

Most student law review notes (or other student articles) are written as independent study projects or, occasionally, as individual term papers in seminars.  But are there other approaches that you have seen tried or particular ways of structuring independent study projects or seminar term papers that have been especially successful?  Most faculty members don’t cowrite articles with students.  But have you seen techniques or approaches that helped such collaborative projects succeed—or ones that led them to fail?

The Committee has asked us to identify some ideas that the panel can more closely explore, and we’d much appreciate any tips that you could pass along.  If you can give us just a few sentences that describe different models for fostering student or faculty-student scholarship that you have seen—whether those sentences include recommendations, cautionary tales, or just neutral reports—we’d love to see them.  Please e-mail them to either Joan Heminway ([email protected]) or Eugene Volokh ([email protected]).  Submissions received by October 1 would be most useful to us in our planning, but feel free to respond later if you can’t reply by then.

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

Law Review Article Titles

As it's that time of year again - all good profs sending out their articles for the fall submission cycle - I thought I'd take a poll of the best and worst law review article titles of all time.  We've blogged in the past about writing 'catchy' titles and the importance of using or not using a semi-colon.  My understanding is that semi-colons are still out of vogue.

Titles can be important because they need to capture the editor's (not to mention the reader's) interest and describe the article as well, particularly these days when there are so many journal article submissions for editors to wade through.

So what are your best and worst titles?  And has anyone ever had a title changed by an editorial team?

The University Press and the Art of Just Pricing

    Think about your own personal backlist, the pieces you wrote years and years ago that haven’t been cited in a decade or more and, truth be told, didn’t get a heck of a lot of play even when they were first published.  Suppose someone contacted you out of the blue to ask for permission to reprint one of those articles.  How would you react? 

    Naturally, there would be an initial moment of Ralph Kramden-esque euphoria – “Alice, we’re sittin’ on a gold mine!”  But when you came to your senses, you would probably realize, sadly, that the market value of your old work is roughly zero, any excerpting or reprinting presents a matchless opportunity to get the work in front of new eyes, and the obvious thing to do is simply to grant permission unconditionally.  Perhaps you might ask for a nominal sum, though for my own part, I find it difficult to imagine having the courage (nerve? gall?) to do so, and in fact have never asked for money in exchange for permission.

    This is why neither of us is editor of a university press.  In the bizarre world of academic publishing, everything has a just price, set if not divinely then by the customs of our people from time out of mind.  I had the occasion to discover this recently when seeking permission to reprint short excerpts from several works in a forthcoming casebook I have written with Guy Charles, Election Law in the American Political System (Aspen).  For your enlightenment, here is the relevant correspondence between me and the editor of a well-known university press:

    Gardner:  "The amount of text I am asking to use is five paragraphs – about 800 words.  The price I have been quoted is $645 – nearly a dollar a word.  They are good words, to be sure, but that price is – and I really don’t know how to say this delicately – absurd.  We would like to excerpt from one essay in a collection . . . that is [more than 25] years old. . . .  I note that [the collection] is listed on Amazon’s best-seller list at number 2,769,366. . . .  The figure of $645 that I’ve been quoted . . . bears no relation to the value of the underlying asset.  Requests for similar works we have submitted through the Copyright Clearinghouse Center have come in priced between about $44 and $80. . . . "

    Editor: "I can appreciate that from your perspective . . . the fee appears high.  We do not, however, calculate our permission fees based on Amazon rankings, the age of the material, or the value others place on it.  Such indicators are highly subjective and changeable and would result in unjustifiable inequities.  Rather, we use a very specific fee chart . . . .  We cannot negotiate a special rate for you based on your particular circumstances, as we must treat every request equally. "

Oh, I see, your fees are established by a CHART – well, why didn’t you say so?  And who indeed would be so foolish as to take into account “the value other place on” a work?  Ridiculous!  Yes, of course you must “treat every request equally”; we wouldn’t want any authors to feel bad if their permissions went out at a price reflecting their actual value, would we? 

    No wonder university presses are in trouble!

Summer Procrastination Fails

    I am pleased to report that my attempts to keep my scholarship from occurring (see Summer Procrastination) have failed. A baby rough draft was delivered this morning.

    More importantly, the bathroom was updated with new trim, lights and paint.

 

 

A Twitter PSA

Twitter is intuitive in most ways, and many of its social norms are not all that different from other forms of social media (for example, don’t be this guy). But there’s one Twitter rule that is not remotely intuitive, yet goes to the heart of the purpose of Twitter and is seemingly unknown to many people who tweet, even those who tweet a lot. Since so many law profs tweet, herewith this brief PSA. I'll return to substantive blogging in short order.

Many, many tweets begin with the @ sign, e.g.:

@SCOTUSblog is reporting that SCOTUS has upheld the individual mandate! [Yay!/Boo!] #ACA

This tweet will show up in the timelines (or Twitter “feeds”) of only those people who follow both you and @SCOTUSblog. That’s presumably not the result you want in this case, since anyone following @SCOTUSblog already knows that they’re reporting the outcome of the ACA case.

If you want your tweet to appear in the timelines of everyone who follows you, all you have to do is begin your tweet with any character other than the @ sign. This is why you’ll see so many tweets beginning with periods that look like typos, e.g.:

. @SCOTUSblog is reporting that SCOTUS has upheld the individual mandate! #ACA #RobertsIsA[Hero/Traitor]

Of course, this works, too:

Big #ACA news: @SCOTUSblog is reporting that SCOTUS has upheld the individual mandate! #TheWorldIs[Redeemed/Over]

Once you know about it, this is actually a feature rather than a bug of Twitter. Twitter offers three levels of publicity/privacy, each appropriate to different tweets:

1. Private DMs (direct messages): These are exactly like Facebook’s message feature, i.e., they’re private messages between you and the recipient (and the FDA, if you're an FDA whistleblower or someone who communicates with them, apparently with the approval of FDA counsel).
2. Less public tweets that begin with the @ sign (sometimes called @replies): These will only appear in the timelines of those who follow both the sender and the recipient, so often relatively few people will see them. However, anyone with an internet connection can look at your Twitter profile page, e.g., https://twitter.com/SCOTUSblog, which shows every tweet you’ve sent, whether it begins with the @ sign or not.
3. Fully public tweets that don’t begin with the @ sign (tweets, proper): These appear in the timelines of everyone who follows you. In addition, as above, anyone with an internet connection (whether they have a Twitter account or not) can navigate to your profile page and see all of your tweets.

As an aside, when we’re through with the NFIB postmortem and return to discussing the actual law that that case upheld, can we please go back to calling it PPACA, rather than the ACA? Puh-PACK-uh is so much more fun to say.

Summer Procrastination

    Today, rather than writing the article I’m doing this summer on patent bar ethics, I’ve decided to think about the ways of justifying delaying the grunt work of producing the actual document. The list of excuses for this summer:

    1.    I have obligations in addition to my job. The bathroom does need repainting desperately, and I’m the one to do it. Besides, the Zen of the paintbrush will help me figure out how I’m going to address the difficult issue of enforcement that I’ve avoided thus far by writing pages of drivel to proceed addressing it — pages that I know will never survive to be published.

    2.    I need a break from the grind of the academic year. This would be fine if I had actually done more writing on the article during the year, but I focused instead on the research. “I’ll write the article this summer,” I told myself.

    3.    Summer is for writing, so I’ll write the article when summer really comes. After all, everyone knows that summer doesn’t start until after Memorial Day. Whoops, Memorial Day is long gone. Maybe I can have summer start on the Fourth of July. Unfortunately, the Fourth is basically here, so I should be writing today and I’m not. Some years, I have used the end of my family’s vacation as the start of summer, but this year it doesn’t end until the week before the fall semester starts.

    4.    Well, maybe I can count Faculty Lounge posts as my scholarship for the year. I’ve always wondered if the Dean actually reads my articles ...

    The moral here is clear. Unless I want to conclude my paper by advocating that miscreant patent attorneys should be sentenced to paint bathrooms, I need to get serious.