The Volokh Conspiracy’s Jonathan H. Adler writes about a new paper by Adam Bonica (Stanford University), Adam S. Chilton (University of Chicago), Kyle Rozema (Northwestern University) and Maya Sen (Harvard University), The Legal Academy’s Ideological Uniformity,  “[t]heir bottom line: The legal academy is significantly more liberal than the legal profession, which is notable because the legal profession itself is more liberal than the public at large.” Here’s the paper’s abstract:

We compare the ideological balance of the legal academy to the ideological balance of the legal profession. To do so, we match professors listed in the Association of American Law Schools Directory of Law Teachers and lawyers listed in the Martindale-Hubbell directory to a measure of political ideology based on political donations. We find that 15% of law professors, compared to 35% of lawyers, are conservative. After controlling for individual characteristics, however, this 20 percentage point ideological gap narrows to around 13 percentage points. We argue that this ideological uniformity marginalizes law professors, but that it may not be possible to improve the ideological balance of the legal academy without sacrificing other values.

— Joe

In Law, Belief, and Aspiration, Arden Rowell examines the relationships between what the law is, what people believe the law to be, and what people aspire for the law to be. The article takes seriously the possibility that people do not know perfectly what the law is, and tests the hypothesis that people’s beliefs about the law may sometimes be better explained by people’s aspirations for what the law should be, rather than what the law actually is. Findings from the study:

The study finds that people often do not know the laws under which they live, even when they themselves believe those laws to be important. For example, 1 in 6 participants held inaccurate beliefs about whether their state has a state income tax; 1 in 4 participants held inaccurate beliefs about whether their state has a death penalty; 1 in 3 held inaccurate beliefs about whether their state has a waiting period for purchasing handguns; and fewer than half of participants knew whether they are legally required to report felonies. Somewhat disturbingly, participants were no more likely to know the law when they indicated that the topic was important, although they were more likely to know the law accurately when they felt confident about their knowledge.

Furthermore, when people’s beliefs about the law are inaccurate, they tend to assume that the law reflects their aspirations for it: that the law already is whatever they believe it should be. In some cases, this wishful thinking is so strong that aspiration exceeds the actual rule in predicting people’s belief — or in other words, you can sometimes predict people’s beliefs about what the law is better by knowing what they think the rule should be, than by knowing what the rule in fact is.

These findings have important implications for developing behavioral models that predict how people will respond to law: for example, behavioral theorists might question whether anyone is deterred by a law that no one knows. The findings also points to normative and democratic concerns: where citizens rely on a mistaken belief that their aspirations are already reflected in the law, they may not push for legal change, and even widely-held aspirations might fail to find reflection in the law.

— Joe

In his introduction to The Foreign Emoluments Clause and the Chief Executive, Iowa Law prof Andy Grewal writes “[t]he 2016 Presidential election brought widespread attention to a part of the Constitution, the Foreign Emoluments Clause, that had previously enjoyed a peaceful spot in the dustbin of history. … Donald Trump’s successful election has ignited public and scholarly interest in the Foreign Emoluments Clause and, specifically, the meaning of the term ’emolument.’” Here’s the abstract:

This article, forthcoming in the Minnesota Law Review, extensively examines whether and to what extent President Trump risks violating the Foreign Emoluments Clause through his continued interests in the Trump Organization. Numerous legal authorities show that the clause is narrower than is commonly asserted, but that serious constitutional problems will arise if President Trump becomes entangled in the organization’s business activities.

— Joe

About some of the conclusions reached in his article, Citations, Justifications, and the Troubled State of Legal Scholarship: An Empirical Study [SSRN], co-authored by Dean Amy Mashburn (Florida), Jeffrey Harrison (Florida) stated in his The Cost of Scholarship (and Peeps) blog post that law profs produce an estimated 8,000 law review articles per year at an aggregate cost of about $240,000,000 annually. That’s approximately $30,000 per law review. Harrison adds in his blog post:

I read that the average student graduates with $140k in debt. That is about 4.5 articles or, if all scholarship money were devoted to reducing student debt, 1700 students a year could graduate without debt. Personally, I am not that comfortable writing 4.5 articles and making the case that they are worth the same as asking a 24 year old to start his or her life with 140K in debt.

Here’s the abstract to Citations, Justifications, and the Troubled State of Legal Scholarship: An Empirical Study:

Recent pedagogical, economic and technological changes require law schools to reevaluate their resource allocations. Although typically viewed in terms of curricular changes, it is important also to focus on the very significant investment in legal scholarship and its impact. Typically this has been determined by some version of citation counting with little regard for what it means to be cited. This Article discusses why this is a deeply flawed measure of impact. Much of that discussion is based on an empirical study the authors conducted. The investigation found that citation by other authors is highly influenced by the rank of the review in which a work is published and the school from which the author graduated. Courts, on the other hand, are less sensitive to these markers of institutional authority. Perhaps more importantly, when the purpose of the citation is examined, a very small handful of those citing a work do so for anything related to the ideas, reasoning, methodology, or conclusions found in the cited work. This is slightly less true for judicial citation compared to citations by other authors. Given the level of current investment in legal scholarship and findings that reliance on it is far lower than citation counts would suggest, the authors offer a number of recommendations designed to increase accountability of legal scholars and the utility of what they produce.

H/T to ATL’s Stats Of The Week: Law Review Sticker Shock. — Joe

What is the scholarly impact of providing open access to law reviews? In The Open Access Advantage for American Law Reviews, Edison 2015-03A (2015) [SSRN], James Donovan (Kentucky), Carol Watson (Georgia) and Caroline Osborne (Washington & Lee) provide the answer.

In answer to law faculty questions about how participation in an open access repository will affect the works’ impact, the present research offers a definitive reply. When looking at citation by other law reviews to all the author’s work, the averaged increase in citations in flagship journals is 53%. In general, half of these cites will be dispensed in the first six years after the article’s publication. OA articles will attract more attention earlier in the lifecycle of the publication, and endure longer on the intellectual stage.

For authors, the message is clear: The open access advantage is real, sizable, and consistent. The minimal effort to upload an article onto an OA platform such as SSRN or a school’s repository pays rich dividends in the currency of subsequent citations in law reviews and court decisions.

Here’s the abstract to this very informative article:

Open access legal scholarship generates a prolific discussion, but few empirical details have been available to describe the scholarly impact of providing unrestricted access to law review articles. The present project fills this gap with specific findings on what authors and institutions can expect.

Articles available in open access formats enjoy an advantage in citation by subsequent law review works of 53%. For every two citations an article would otherwise receive, it can expect a third when made freely available on the Internet. This benefit is not uniformly spread through the law school tiers. Higher tier journals experience a lower OA advantage (11.4%) due to the attention such prestigious works routinely receive regardless of the format. When focusing on the availability of new scholarship, as compared to creating retrospective collections, the aggregated advantage rises to 60.2%. While the first tier advantage rises to 16.8%, the mid-tiers skyrocket to 89.7%. The fourth tier OA advantage comes in at 81.2%.

Citations of legal articles by courts is similarly impacted by OA availability. While the 15-year aggregate advantage is a mere 9.5%, new scholarship is 41.4% more likely to be cited by a court decision if it is available in open access format.

Recommended. — Joe

In Takedown and Today’s Academic Digital Library [SSRN], a report to be presented at The Future of the Library in the Digital Age Conference on March 25, 2016 at Ohio State University, Moritz College of Law, Brianna L. Schofield and Jennifer M. Urban suggest that managers of academic digital repositories will likely see an increase in formal DMCA takedown notices as their digital offerings grow.

The authors found that academic libraries have not yet developed shared norms and best practices for handling DMCA takedown requests. “As libraries continue to digitize collections and grow open access repositories, their long experience with less-formal requests and their relatively well-developed norms for handling those requests can serve as a foundation for handling the potential growth in DMCA notices,” write Schofield and Urban (both UC Berkeley). “In addition, the growth itself might be curtailed if stakeholders take steps to limit the need to use the DMCA notice and takedown process.” Towards that end, the authors make the following recommendations:

  • Academic libraries should continue to educate authors about author-friendly publishing practices, and authors should retain more control of their own works.
  • Publishers, authors, and academic libraries should take steps to make the terms of publication agreements transparent.
  • Academic libraries should continue to support—and authors should embrace—open access policies.
  • Academic libraries should consider developing shared norms and best practices for DMCA notice handling similar to those they have developed for non-DMCA requests.
  • Academic institutions should ensure that librarians receive any DMCA notices targeting library materials that are sent to DMCA agents in other departments, and that library-developed best practices are followed in handling these notices.
  • Publishers should develop and publicly communicate reasonable notice-sending policies.
  • Publishers should ensure that REOs [rights enforcement organizations], if used, comply with publisher notice-sending policies.
  • Academic libraries should consider creating educational materials about the counter notice process and tools that make it easy for authors whose works are challenged to send counter notices if their content is inappropriately targeted for take down.

— Joe

Ask most legal professionals where the Bluebook originated and they will likely say “Harvard Law School.” In The Secret History of the Bluebook (Minnesota Law Review, Vol. 100, No. 4, 2016 Forthcoming) [SSRN], Fred R. Shapiro (Yale) and Julie Graves Krishnaswami (Yale) beg to differ. They trace the origin of the Bluebook to Yale. As proof, the authors point to a 1920 one-page set of citation rules covering court opinions, law reviews, and treatises prepared for the use of the editorial board of the Yale Law Journal by William Murray Field under the direction of Karl Llewellyn, both YLS grads. In 1921, the Yale Law Journal expanded the Llewellyn-Field rules with the publication of “Abbreviations and Form of Citation”. Seven of the tiny 3-1/2″ x 5-1/2″ pages covered citation formats with seven additional pages being a table of abbreviations. (A second version of the “Abbreviations and Form of Citation” pamphlet containing only minor additions was printed in 1924.)

Following Yale’s lead in what we would call today, the uniform citation movement, Harvard Law School produced its own guide for the Harvard Law Review editioral staff in 1922, “Instructions for Editorial Work.” Many have pointed to the Harvard document as being the precusor to the first edition of the Bluebook which was published in 1926. The authors argue that the claim is unjustified because the Bluebook’s first edition only contains one sentence from HLS’ “Instructions for Editorial Work” while approximately 30 sentences from YLS’ “Abbreviations and Form of Citation” are found in the Bluebook’s first edition. Other similarities between Yale’s “Abbreviations and Form of Citation” and the Bluebook exist, e.g., the size and design and layout of the covers of the early editions of The Bluebook mimic Yale’s 1921 and 1924 pamphlet editions of “Abbreviations and Form of Citation.” There is much more historial detail in this highly recommended article that cannot be covered in this brief post. The article, for example, details workloads, copyright ownership and revenue sharing of the proceeds of the various editions of the Bluebook.

With the recent publication of the latest edition of The Bluebook, we can expect numerious articles by Bluebookologists for Bluebookologists about our current edition of the Bluebook as has happened when prior editions were first released. This time around, Shapiro and Krishnaswami set the record straight about where and how this work began. Highly recommended for Bluebookologists and anyone else interested in the adoption and use of standardized citation practices and advances in legal bibliography. — Joe

The University of California System issued a directive near the end of October that require faculty to place their scholarly works in open access sources:

Each Faculty member grants to the University of California a nonexclusive, irrevocable, worldwide license to exercise any and all rights under copyright relating to each of his or her scholarly articles, in any medium, and to authorize others to do the same, for the purpose of making their articles widely and freely available in an open access repository. Any other systematic uses of the licensed articles by the University of California must be approved by the Academic Senate. This policy does not transfer copyright ownership, which remains with Faculty authors under existing University of California policy.

* * *

To assist the University in disseminating and archiving the articles, Faculty commit to helping the University obtain copies of the articles. Specifically, each Faculty member who does not permanently waive the license above will provide an electronic copy of his or her final version of the article to the University of California by the date of its publication, for inclusion in an open access repository. When appropriate, a Faculty member may instead notify the University of California if the article will be freely available in another repository or as an open-access publication. Faculty members who have permanently waived the license may nonetheless deposit a copy with the University of California or elsewhere for archival purposes.

Notwithstanding the above, this policy does not in any way prescribe or limit the venue of publication. This policy neither requires nor prohibits the payment of fees or publication costs by authors.

That last line is interesting.  There are two articles at the Chronicle of Higher Education worth reading that relate to the issue of fees.  One is What Open-Access Publishing Actually Costs by Ellen Wexler, and the other is What a Mass Exodus at a Linguistics Journal Means for Scholarly Publishing, also by Wexler.  Both are pretty good examinations of issues surrounding the hidden costs of open-access publishing.  The first article (later in date) points out that placement of scholarly articles even for open access can require a publication fee.  Comments there point out that someone is paying for the time to peer review (usually the university or college employing the reviewer through salary), or providing the server space, or other elements that go between the publication and its editorial and distribution network.

The other article tells of the mass resignation of the editorial staff for the journal Linqua, published by Elsevier.  The staff had asked that the journal become open-access and given to them to pursue that goal.  Elsevier unsurprisingly said no.  The company has said that it continue publishing the title under a new team.  The article states that authors currently must pay some $1,800 per article to make it free to readers among other costs.

This isn’t necessarily the model for law reviews.  They are edited by students and usually not peer-reviewed.  The trend is to make content available for free via the law journal’s web site.  Even still, the University or Law School has underlying costs to make this happen by paying for the underlying technical equipment and/or subsidizing the loss of subscriptions.  The takeaway from Wexler’s articles is that free really isn’t really free.  Costs shift to someone else.  Whether that model is sustainable remains to be seen.

Mark

Gizmodo reports that the Wayback Machine, the part of the Internet Archive that preserves web sites, is getting its own search engine.  That’s good news in that the only way one can use the archive now is by typing in a URL.  There are 439 Billion pages in the Archive.  The web from my perspective is still a chaotic place despite its sophistication.  Stuff comes and goes, and it’s not just Facebook posts.  This development should be a vast improvement for researchers.

Mark

I’m in the middle of creating lesson plans for three introductory legal research classes to be taught to first year students by librarians next month.  That’s one reason why there has been a lack of posts in the last couple of weeks, among others.  The task is, how can I put it, time consuming.  That’s another story.

I thought I’d take a moment this afternoon and wander through Google Scholar to see what literature it contains on the process of legal research.  I did the obvious and searched the phrase “legal research.”  At about two or three pages into the search I noticed an entry for Land Use, Planning, and Zoning Legal Research Guide: Home by Vicky Gannon at Pace University.  The citation came up because the title contains the words “legal research.”  I have to admit that I had not expected a libguide to be one of the results in Google Scholar as I had not seen any prior to today.  I use Scholar a lot.  I mean, a lot.

I decided that I would try and search the word “libguide” all by itself and sure enough there were citations linking to any number of guides mixed in with the scholarly articles about the use of libguides.  Many of them were listed as [citation] which linked to an entry in either Bepress or a university commons page that in turn linked to the actual guide.  I found this all quite interesting.  Scholar apparently can be another vehicle for researchers to get to the intellectual output of a law library staff.  My suggestion is for all of you out there to give it a try.  Create some sample searches and see what happens.  I know I will.  This may be another strategy I can use in teaching or advising at the reference desk.

Mark

Available on SSRN, Michigan Law School prof Michael D. Murray’s The Ethics of Visual Legal Rhetoric is a timely contribution to the legal writing literature. Here’s the abstract:

This Article discusses the application of visual rhetorical techniques in legal writing and the ethical questions that are raised regarding the use of these techniques. It is likely that visual rhetoric will be used in brief writing and general legal communications at an increasing rate because the research and scholarship of a wide range of disciplines — law and popular culture, cognitive studies and brain science, data visualization studies, and modern argument theory in rhetoric — indicate the communicative power of visual techniques. This fact coincides with the development of technology in the production of legal documents, and technology in the reading and reception of legal documents, that allow judges and attorneys to access full-color graphics, imbedded video, and multimedia content, and follow hyperlinks in the normal course of reading legal briefs and memoranda.

The recognition in the literature that visual rhetoric is rapid, efficient, constructive, and persuasive reveals the potential of visual rhetorical devices to serve as topics and tropes in legal discourse to construct meaning and to inform and persuade legal audiences. The visual rhetorical topics and tropes inspire inventive thinking about the law that constructs meaning, for the author and the audience. For many members of the legal writing discourse community — judges, practitioners, government agencies, and academics — the modes of persuasion of visual rhetoric can construct meaning and improve the persuasiveness of legal discourse generally in content, arrangement, and style.

Attorneys should fulfill their professional responsibility to use the best practices to represent the interests of their clients in law practice. However, the cautions of scholars as to the dangerous power of visuals to deceive or to overpower more deliberative forms of rational thought and analysis are not lightly to be dismissed. The speed and power of visuals is seductive. Visual topics and tropes are subject to abuse, and must be used ethically and with careful regard to their propriety as a tool to create meaning and inspire imagination, and not used as a tool of deception or obfuscation within the rhetorical situation at hand. I conclude that visual rhetorical devices are a proper form of legal rhetoric if they are used to construct knowledge and understanding of the meaning and message of the communication and do not mislead or prejudice the audience’s reception or understanding of the communication.

Recommended. — Joe

Or is the correct term “wither?”  I was wondering, at least.  I was in the process of putting together a handout for a lecture I was giving to law review cite checkers on sources and strategies when I thought I’d include Microsoft Academic Search as an alternative to Google Scholar.  A Search in Google brought up links to the page which turned out to be unavailable.  I hadn’t used Academic Search in a while as it was light on law and law related sources.  As it turned out, the site was shut down.  A page in Wikipedia basically stated that the service was folded into Bing.  Pity that as the model Scholar uses is ad free and limits itself to scholarly items.  Bing, of course, is a general search.  That’s not to say it can’t bring up specific articles and their sources.  A scholarly search site would be a more efficient way to find this stuff.  More information on the decline and fall of MS Academic Search is available from Newsblog.

Note:  Let me know if anyone is interested in the guide I referred to earlier.  It is DePaul centric in terms of databases and electronic strategies.  I’m sure the guide could be adapted to any library if one wanted to edit it.  I need to make a few minor changes to it based on the lecture questions.  I could send out copies within a day of request.

Mark

There is an interesting article from the CBC called Academic publishers reap huge profits as libraries go broke.  The sub-title is “5 companies publish more than 70 per cent of research papers, study finds.”  There is a constant cry from academic libraries in the United States, and I assume Canada, over the cost increases in scientific, medical, and social science journals.  Harvard University in fact joined that chorus three years ago in encouraging its scholars to publish in open source publications.  Academic libraries in some situations dropped Elsevier subscriptions in protest.  Others joined in as well.

The CBC article documents a study of publishers by Vincent Larivière and others from the University of Montreal’s School of Library and Information Science.  He found that the top five journal publishers held 53% of the academic journal market and had a 40% profit margin.  This sentence explains why that is possible.

“The quality control is free, the raw material is free, and then you charge very, very high amounts – of course you come up with very high profit margins.”

Indeed.  There is a link to the full paper within the article.  Here’s the abstract:

The consolidation of the scientific publishing industry has been the topic of much debate within and outside the scientific community, especially in relation to major publishers’ high profit margins. However, the share of scientific output published in the journals of these major publishers, as well as its evolution over time and across various disciplines, has not yet been analyzed. This paper provides such analysis, based on 45 million documents indexed in the Web of Science over the period 1973-2013. It shows that in both natural and medical sciences (NMS) and social sciences and humanities (SSH), Reed-Elsevier, Wiley-Blackwell, Springer, and Taylor & Francis increased their share of the published output, especially since the advent of the digital era (mid-1990s). Combined, the top five most prolific publishers account for more than 50% of all papers published in 2013. Disciplines of the social sciences have the highest level of concentration (70% of papers from the top five publishers), while the humanities have remained relatively independent (20% from top five publishers). NMS disciplines are in between, mainly because of the strength of their scientific societies, such as the ACS in chemistry or APS in physics. The paper also examines the migration of journals between small and big publishing houses and explores the effect of publisher change on citation impact. It concludes with a discussion on the economics of scholarly publishing.

It’s published in PLOS ONE, which is an open source journal.

Mark

There is an interesting discussion going on at my library.  As others may be doing, we are considering the proper mix between print and online resources.  ABA law school accreditation Standard 606 now allows for “a core collection of essential materials through ownership or reliable access.”  It’s that last part, “reliable access,” that triggers deep soul searching of what to buy in print or what to buy as an electronic subscription.  Tempering the rule are other qualifications that state the core collection should support faculty scholarship and the curriculum, and that a collection that consists of a single format may violate Standard 606.

In this context I’ve recommended that we drop the National Reporter System, ALRs, CJS, multiple state codes, and selected treatises that are online.  This may sound radical to some.  I know that law schools and libraries are experiencing budget cuts due to lower enrollment.  That drives part of the analysis.  Another factor that bears thought is what we teach these days.  The legal writing program at DePaul started teaching all electronic research.  We experienced a drop in library visits as a consequence.  No more treasure hunts, no answering the same questions over and over at the reference desk.

I can remember how far we’ve come in electronic access.  We used to teach print resources because that’s what the legal market had out there.  Now electronic access to case law and other primary sources is ubiquitous.  At one time it was viable to teach print because the databases were based on print.  Understand the organization of print and the online version would make more sense.  That’s not so true anymore.  Online database providers no longer think in terms of echoing print other than citation and star paging.  Certainly there was a time when case law on Westlaw was organized by reporter.  Not anymore.  It’s all jurisdictional, and that seems natural now compared to looking for a database containing the Northeastern Reporter.

Look at how citators have changed.  There was a time when Shepards online would be no more current than the latest print update.  Even the CD-ROM product mirrored print.  Now everything is dynamic.  I can’t imagine why anyone would want to subscribe to the print edition at this point.  We cancelled our print copies years ago. If anything was made easier by online access, Shepards, KeyCite, and citators in general are it.  They are more complete, can be filtered, and everything is spelled out instead of interpreting symbols attached to citations.

Then there are law reviews.  I have to say how much I like Hein Online when it comes to law reviews.  Everything back to day one is there in PDF format more or less.  We still get paper copies of law reviews but discard them once they appear on Hein.  No more binding these books for the collection.  Google Scholar works as a handy index to Hein content as well as other scholarly databases.

So now the next question is what is the proper mix for print and online?  I know that some libraries have already dropped major primary resources such as reporters.  In one sense, we are behind the curve on making that set of decisions.  Never in my career had I thought I would be part of this kind of decision.  Times change.  I find that I’m not very sentimental about physical materials that no one uses at my library.

Mark

Readers may remember the case where the U.K. government requested tapes contained in the Boston College archives consisting of interviews with I.R.A. members.  The nominal rationale for the request was to aid in solving a murder of an alleged British informant in 1972.  Britain asked the Justice Department for the tapes under a treaty that called for mutual assistance in criminal investigations.  The College resisted turning over the tapes and the matter went to litigation in federal court.  The District Court judge in Boston ordered the College to release 85 tapes from the interviews.  The Court of Appeals later modified that order for the release of 11 tapes.

The Chronicle of Higher Education has a lengthy article on how the Belfast Project was conceived and carried out.  It’s a story of secrecy and misunderstandings.  The secrecy came from the sensitivity of the subject matter.  Former I.R.A. members would not speak freely if they weren’t assured that their comments were held in confidence while they were alive.  The misunderstandings related to the secrecy.  The College was agreeable to the project.  There are conflicts, however, in the understanding of what legal protections the College could offer to interviewees.  The contracts offered to participants were not vetted in advance and did not contain key language defining the legal extent of confidentiality.

Two of the principles in the project are Anthony McIntyre and Ed Moloney.  McIntyre, a former member of the I.R.A. who spent a number of years in prison for his actions, conducted the interviews.  Moloney was the project director.  He wrote a book in 2008 called Voices From the Grave: Two Men’s War in Ireland which used quotes from two participants who had previously died.  The book essentially revealed the Project and drew attention from law enforcement officials in Britain and Ireland.  This showed more misunderstandings in that McIntyre and Moloney had no idea the mutual assistance treaty existed as they carried out the interviews.  The lack of communication and legal oversight put the parties at odds in defending against release.  The College appears to be blindsided in some respects as were McIntyre and Moloney.

The article is useful in that it is a cautionary tale on how not to organize and manage an archival project on a sensitive subject.  There are quotes from outside archivists and others on the need to put a legal team together in advance of collecting interviews.  The Belfast Project is essentially dead at this point.  Interviewees are requesting the return of their tapes.  The University has said that it will honor those requests to the extent that it can, whatever that means.  The litigation is over though the fallout from the Project continues.  –Mark

Perhaps but only if the principle of respect for all persons is actually accepted as being legitimate in civil society instead of merely being politically correct public chatter. Therein lies the problem. Here’s the abstract for Common Good and Respect for Persons [SSRN] by Wojciech Sadurski (University of Sydney – Faculty of Law):

We need a “working” conception of the common good, i.e. a conception that does not rely on where one stands in various current political controversies about specific aims, purposes and measures of achieving them, including controversies reflected in debates about and within constitutional law. Such a “working conception” can be supplied by the idea of public reason as a characteristically liberal device of legitimacy in a pluralistic society: attempts to equate “common good” with a set of common actual first-order interests must fail. Public reason is justified by a principle of respect for persons who may or may not agree with the specific laws but who will likely feel they are “second class” citizens, thus deeply disrespected, if the law is based on grounds which are not endorsable by them. Hence, this paper explores a triangle of concepts: common good, public reason (as a working conception of common good), and respect for persons (as a justificatory argument for public reason). In the first part of this paper I discuss the concept of common good, and its relationship with public reason, and in the second part I discuss respect for persons as a justification for public reason. It is argued, in particular, that respect (as a justificatory value of public reason) should be seen as part of a constellation of values, of which freedom (understood through a presumptive evil of coercion) and political equality (understood in an outcome-based, agency-related sense), are of particular importance.

While not achieving “Download of the Week” status by Larry Solum, hat tip to Legal Theory Blog: “All the theory that fits!”. — Joe

If anyone thinks that the paper industry is dying a slow death because of electronic information replacing printed information, well, this article in the Los Angeles Times should dispel that notion.  One statistic cited is the $27.8 billion in 2012 sales by International Paper.  That was an increase of $1.8 billion over the previous 12 months.  Paper is still essential for everyday conveniences.

I suppose that we get horrified when the NSA tracks us, but it’s cool when Apple does it, right?  See this story in ABC News.

Old school publishing and open access tussle in this story of the conflict between Elsevier and Academia.edu over posting academic papers.  Thanks to DMCA takedown notices, guess who is winning for now?  The story is in CNET.

The Chronicle of Higher Education is telling us that the average debt at graduation for undergrads is $29,400.  If that’s the average, then Mamas don’t let your babies grow up to be law students.  That’s where tens of thousands of more get piled on.  Someone should sell bumper stickers that read “law school is for trust funders.”  Some 18.5% of Ph.D graduates have $30,001 or more of debt according to another story in the Chronicle.  It was 16% in 2002.

One law school is actually responding to the debt crisis by (gasp!) lowering its tuition.  The University of Iowa is lowering its tuition by 16.4% for both in- and out-of-state students.  That’s a drop of $4,300 and nearly $8,000 less per year respectively for these students.  The drop kicks in starting with the fall 2004 semester.  How can they do it? Volume, volume, volume.  The school can make up the financial difference with just about 20 or so additional students.  Read about it in the Huffington Post.

Joe wrote about the Arizona State University announcement for its new law school home in downtown Phoenix.  There is a picture of the planned Sandra Day O’Connor College of Law at the KTAR web site.   It looks pretty impressive. I wonder how it’s going to be financed.

Mark

In his recent Download of the Week post, Solum wrote “this is important research, combined with deeply interesting theorizing.” He was referring to Statutory Interpretation from the Inside – An Empirical Study of Congressional Drafting, Delegation and the Canons: Part II, Stanford Law Review, forthcoming, by Abbe R. Gluck and Lisa Schultz Bressman. Part I was published earlier this year. Here are the abstracts for both.

Statutory Interpretation from the Inside — An Empirical Study of Congressional Drafting, Delegation and the Canons: Part I [SSRN], 65 Stanford Law Review 901 (2013):

What role should the realities of the legislative drafting process play in the theories and doctrines of statutory interpretation and administrative law? The ongoing debates frequently turn on empirical assumptions about how Congress drafts and what interpretive rules Congress knows, but there has been almost no testing of whether any of these assumptions reflect legislative reality. We have attempted to fill that void. This is the first of two Articles reporting the results of the most extensive empirical study to date — a survey of 137 congressional counsels drawn from both parties, both chambers of Congress and spanning multiple committees — on topics ranging from drafters’ knowledge and use of the textual and substantive canons of interpretation, to legislative history, the administrative law deference doctrines, the legislative process and the Court-Congress relationship.

Our findings have implications for virtually every swath of the interpretive debates. We can report, for instance, that there are some canons that our drafters know and use — Chevron and the presumption against preemption, for example, but that there are other canons that our drafters know, but consciously reject in favor of political or other considerations, including the presumption in favor of consistent usage, the rule against superfluities, and dictionary use; and still other canons, like Mead and noscitur a sociis, that our drafters do not know as legal rules but that seem to be accurate judicial reflections of how Congress drafts. Our interviews also elicited a treasure trove of information about key influences on the drafting process that legal doctrine rarely considers, from the variety of audiences for legislative history, to the way in which the personal reputation of particular agency heads affects delegation decisions, to the fact that drafting conventions depend on the type of statute being drafted and its path through Congress.

All of these findings, and many others, allow us to press for a more precise answer to one of the fields’ foundational questions: that is, what should be the purpose of these canons of interpretation? Judges, often using the unhelpful generalization that they are Congress’s “faithful agents,” have legitimized these doctrines using a variety of conflicting justifications, some of which turn on empirical reality, some of which do not, and most of which aim to justify many different types of canons that seem to be doing very different types of work. Do the canons reflect how Congress actually drafts, and so effectuate legislative supremacy? Or do judges use the canons for more dialogical reasons, such as to encourage Congress to draft more precisely — and does Congress listen? Might the canons, despite how “neutral” some appear, instead be understood to effectuate judicial values that are external to the legislative process — such as advancing constitutional norms or imposing coherence on the U.S. Code? Our study illuminates this variety across the normative bases for the canons also reveals that each set of justifications rests on a very different vision of the judicial power and the Court-Congress relationship.

Statutory Interpretation from the Inside – An Empirical Study of Congressional Drafting, Delegation and the Canons: Part II [SSRN]:

This is the second of two Articles relaying the results of the most extensive survey to date of 137 congressional drafters about the doctrines of statutory interpretation and administrative delegation. The first Article focused on our respondents’ knowledge and use of the interpretive principles that courts apply. This second Article moves away from the judicial perspective. Our findings here highlight the overlooked legislative underbelly: the personnel, structural and process-related factors that, our respondents repeatedly volunteered, drive the details of the drafting process more than do judicial rules of interpretation. These factors range from the fragmentation caused by the committee system; to the centrality of nonpartisan professional staff in the drafting of statutory text; to the use of increasingly unorthodox legislative procedures – each of which, our respondents told us, affects statutory consistency and use of legislative history in different and important ways. Our respondents also painted a picture of legislative staffers in a primary interpretive conversation with agencies, not with courts, and as using different kinds of signals for their communications with agencies than courts consider.

Most of the structural, personnel and process-related influences that our respondents emphasized have not been recognized by courts or scholars, but understanding them calls into question almost every presumption of statutory interpretation in current deployment. These findings have significance for textualism, purposivism and beyond. They undermine the claims of proponents of each theory that theirs is the most democracy-enhancing, because none makes satisfactory efforts to really reflect congressional expectations. Our findings challenge textualism’s operating assumption that text is the best evidence of the legislative bargain and suggest more relevant – but still-formalist – structural features that might do better. They reveal that although purposivists or eclectic theorists may have the right idea with a more contextual approach, many of factors on which they focus are not the same ones that Congress utilizes. With respect to delegation, for both types of theorists, Chevron now seems too text- and court-centric, in the light of our findings, to actually capture congressional intent to delegate, which has been its asserted purpose.

In the end, our findings raise the question whether the kind of “faithful agent” approach to interpretation that most judges currently employ – one aimed effectuating legislative deals and often focused on granular textual details – can ever be successful. We thus look to different paradigms less dependent on how Congress works, including rule-of-law and pragmatic approaches to interpretation. These alternatives respond to the problem of the sausage factory, but pose different challenges in light of the modern judicial sensibility’s pronounced concern with legislative supremacy.

See also the authors’ Methods Appendix for their two-part series. — Joe

Quoting from the abstract of Nicholas R. Parrillo’s Leviathan and Interpretive Revolution: The Administrative State, the Judiciary, and the Rise of Legislative History, 1890-1950, 123 Yale L.J. 266 (2013).

Drawing upon new citation data and archival research, this Article reveals that judicial use of legislative history became routine quite suddenly, in about 1940. The key player in pushing legislative history on the judiciary was the newly expanded New Deal administrative state. By reason of its unprecedented manpower and its intimacy with Congress (which often meant congressmen depended on agency personnel to help draft bills and write legislative history), the administrative state was the first institution in American history capable of systematically researching and briefing legislative discourse and rendering it tractable and legible to judges on a wholesale basis. By embracing legislative history circa 1940, judges were taking up a source of which the bureaucracy was a privileged producer and user—a development integral to judges’ larger acceptance of agency-centered governance. Legislative history was, at least in its origin, a statist tool of interpretation.

Sounds like a very interesting read. The data files produced for this article can be downloaded here. — Joe

What is the government interest?

This simple query, even before one evaluates the interest (is it compelling? or even merely legitimate?), can be a vexing one for students, professors, litigators, and courts.   Legislative listing of such interests – – – whether in preambles, legislative history, or litigation – – – provides language but not necessarily meaning.

The above quote is Ruthann Robson’s (Professor of Law & University Distinguished Professor, CUNY School of Law) lead-in from her Constitutional Law Prof Blog post about San Diego law prof Dov Fox’s forthcoming George Washington Law Review article titled Interest Creep [SSRN].

From the abstract:

Judicial review has a blind spot. Doctrinal and scholarly focus on individual rights has crowded out alertness to the way in which legislatures and courts characterize the state interests on the other side of the constitutional ledger. This Article introduces and interrogates a pervasive phenomenon of judicial decisionmaking that I call interest creep. Interest creep is the uncritical expansion of underspecified interests like national security and child protection to capture multiple, distinct sources of government concern. By shielding such concerns from critical judicial appraisal, interest creep erodes the adjudicative duty to provide litigants, lawmakers, and lower courts with clear reasons for its decisions. Worse, interest creep generates incorrect legal outcomes when the discrete concerns that go by the name of a sweeping state interest cannot do the doctrinal work for which that shibboleth is enlisted. Only by disentangling the constellation of concerns that its reliance papers over will decisionmakers be able to assess the force with which those more particular concerns apply within diverse and dynamic contexts.

— Joe