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The Changing Definition of Legal Scholarship

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The Touro Law Review has published an issue focusing on "Engaged Scholarship and the Changing Definition of Scholarly Work", which has been a rather hot topic lately in the legal blogosphere. The debate tends to focus on the question of legal scholarship's value. On the one side are the entrenched academics who argue that scholarship influences not just other scholars, but judges and practitioners, and also makes them better professors. On the other side are the reformers who assert that the vast majority of scholarship not only doesn't influence anyone, but is hardly read by anyone, and with such little impact it's probably not worth spending over half a billion dollars a year on. (That price would be roughly half of professor salaries, assuming they spend about half their time on scholarship. If you add in interest paid, since it's debt financed, you're looking at maybe three quarters of a billion.)

But today we're going to look at the debate in a different way. What if legal scholarship is just objectively bad?

In announcing the new Touro Law Review issue, Patricia Salkin write on The Faculty Lounge:

Arcila of Touro Law Center offers an introductory piece, The Future of Scholarship in Law Schools, beginning with a discussion of the scholarly obligation to engage in research and scholarship noting that despite the waves of anti-intellectualism, scholarship “…influences public and academic discourse, legislation, and judicial decisions, all of which guide our conduct.” He asserts that even with the increased emphasis on experiential legal education, scholarship deserves prominence not only because it is “central to the role of institutions of higher education as creators of knowledge and fonts of ideas about law’s role in society, government, and business,” but also because such efforts also help to inform our teaching role by deepening knowledge and thinking on the subject matters we teach.

If one were to reach Arcila's article, they would expect to find evidence that scholarship influences discourse, legislation, and judicial decisions. Looking at the article we can easily find the exact language Salkin quoted:

Waves of anti-intellectualism come and go.4 We are in the midst of one now, a wave whose crest may even have reached the highest levels of our judiciary.5 But it is undeniable that legal scholarship has had, and continues to have, an impact on the most important legal issues that confront us.6 It influences public and academic discourse, legislation, and judicial decisions, all of which guide our conduct.

In a debate over the impact of legal scholarship, in which one side is clearly denying the impact, it's pretty odd to call such impact undeniable. Of course it can be denied. One only need to spend a few minutes on The Faculty Lounge or PrawfsBlawg to see it being denied. The denial happens all the time. What's more interesting of course is if the deniers are in the right, or if they're ignoring what should be convincing evidence. So to that end, let's check out ol' footnote 6 there:

Professor Robert Condlin has usefully collected citations exemplifying “numerous contributions of legal scholarship to the development of law over the years,” in areas as important and diverse as privacy, tax, commodities trading, antitrust, property, environmental protection, copyright, consumer financial protection, product safety, “and dozens of others,” and also pointed to “the systemic contributions of [numerous other] scholars.” Robert J. Condlin, “Practice Ready Graduates”: A Millennialist Fantasy, 31 TOURO L. REV. 71, 80-81 n.28 (2014). The law and economics movement, including Coase’s Theorem and more, has had terrific influence.

Alrighty, off to Issue 31 to find Condlin's article. The language Arcila is quoting is actually from a footnote, and a whopper of a footnote at that! In fact, the majority of Condlin's article is footnote text, with several pages offering only a few lines of the essay itself. Here's the relevant excerpt from FN28:

In this same spirit, it depicts legal scholarship as a drag on education, adding to its cost without producing any corresponding benefit, ignoring the numerous contributions of legal scholarship to the development of law over the years. See, e.g., Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890) (privacy); Boris I. Bittker, Tax Shelters, Nonrecourse Debt, and the Crane Case, 33 TAX L. REV. 277 (1978) (tax); Saule T. Omarova, The Merchants of Wall Street: Banking, Commerce, and Commodities, 98 MINN. L. REV. 265 (2013) (commodities trading); ROBERT H. BORK, THE ANTITRUST PARADOX (2d ed. 1993) (antitrust); Charles A. Reich, The New Property, 73 YALE L. J. 733 (1964) (property); Joseph L. Sax, The Public Trust Doctrine in Natural Resource Law: Effective Judicial Intervention, 68 MICH. L. REV. 471 (1970) (environmental protection); Robert C. Denicola, Applied Art and Industrial Design: A Suggested Approach to Copyright in Useful Articles, 67 MINN. L. REV. 707 (1983) (copyright); Elizabeth Warren, Unsafe at Any Rate, DEMOCRACY, Summer 2007, available at http://www.democracyjournal.org/5/6528.php (consumer financial protection); GUIDO CALABRESI, THE COST OF ACCIDENTS: A LEGAL AND ECONOMIC ANALYSIS (1970) (product safety); and dozens of others. See THE CANON OF AMERICAN LEGAL THOUGHT (David Kennedy & William Fisher III eds., 2006) (describing twenty law review articles that have had a profound effect on the shape of American law and legal institutions); Michelle M. Harner & Jason A. Cantone, Is Legal Scholarship Out of Touch? An Empirical Analysis of the Use of Scholarship in Business Law Cases, 19 U. MIAMI BUS. L. REV. 1 (2011) (describing the influence of legal business law scholarship on the decisions of the Delaware Supreme Court). It also ignores the systemic contributions of scholars like Henry Hart and Albert Sachs, Mitchell Polinsky, Richard Posner, and numerous others, who changed the ways in which generations of judges and lawyers go about their business and think about law and legal institutions. Scholarship is the legal system’s seed corn, and destroying seed corn eventually makes an ecosystem uninhabitable.

So much text here, it's useful to remember how Arcila described this. It's a collection of citations exemplifying the numerous contributions of legal scholarship, and this collection is used to back up the claim that legal scholarship's past and continuing impact is undeniable. You know what's missing from the list though? The impact! Most of the list just references the articles themselves, and does nothing to demonstrate their impact. Consider the difference between these two statements:

Many people find hamburgers to be delicious and a great value. See, for example, Five Guys.

Many people find hamburgers to be delicious and a great value. See, for example, Zagat's review of Five Guys.

The first just says a burger place exists. The second points to a source that will speak to whether or not the burgers are delicious and a great value.

We're also going to note that not all of the authors are relevant to Arcila's argument. Samuel Warren, Louis Brandeis, and Albert Sachs weren't professors. Henry Hart is a poet and hasn't even written any legal scholarship. Perhaps Condlin meant Herbert Hart (better known as H. L. A. Hart). But back to the non-prof legal scholars. Yes, their work was impactful. But, the debate is over the value of scholarship produced within the academy. If practitioners or others want to write articles, no one is going to criticize them for doing so. They do it on their own time and dime. The debate is over scholarship produced by legal academics which is paid for with debt-financed student tuition dollars. Arcila even acknowledges that it's a debate over the academy, not about legal scholarship from other sources, saying "Although there are many ways of approaching this issue, fundamentally, it revolves around the future role of research and scholarship within law schools" (emphasis added). A list which includes (and even leads off with) non-professor articles actually helps to undermine the argument. If the academy was the only place producing scholarship there's a stronger argument in favor of it, but it's clearly not.

The Condlin list contains two other interesting entries though, two sources which purport to speak to the impact of legal scholarship. So now we need to dig into those two. First up, the Canon of American Legal Thought (and fyi, to all the novice writers out there, you can remove all caps when you're citing a source). Four of the articles is discusses are written by non law professors (we're not counting Coase because he became a law prof after writing his most influential work -- you don't get to hire someone after the fact and then claim his work as the work of your institution).

Next, the Harner and Cantone article on business law cases. Long story short, courts are generally citing legal articles less, but are citing specialty journals more. But that's not the end of the story. When it comes to citing specialty journals, courts are slightly more likely to cite a piece written by a practitioner than one written by a professor.

 

Let us once again return to Arcila's claim: "[I]t is undeniable that legal scholarship has had, and continues to have, an impact on the most important legal issues that confront us. It influences public and academic discourse, legislation, and judicial decisions, all of which guide our conduct." Her evidence is a list put together by Condlin which consists of three parts. First, Condlin's own list which fails to demonstrate any impact. Second, the Canon, which does demonstrate impact, but also acknowledges quite a bit of non-lawprof impact. And finally, the business law study, which acknowledges less impact generally, but more among specialty articles, but puts professor impact on par with practitioner impact.

Arcila's claim, while poorly sourced, is in fact true. Legal scholarship does have influence and impact. Kinda. Some legal scholarship has influence. Based on her sources, business specialists and a few dozen philosophers have impact. What she's failed to demonstrate is that the rank and file law professor's scholarship published in a typical law review will have any sort of meaningful impact. And that's what the debate is over. Not the existence of superstars, but the mass of profs consuming half a billion dollars a year in research.

And this brings us back to the initial point. We're not looking at the monetary value of Arcila's article, or the chance that it will help him in his teaching later on. We wanted an objective look. Objectively speaker, Arcila has made a claim which (1) does not speak to the debate, and (2) is poorly supported. Objectively, that is bad scholarship. So much for that "Changing Definition."

Harvard Law Prof Shows How Schools Are Circling The Orwell/Kafka Drain

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A recent article by Harvard law professor Janet Halley on the Harvard Law Review's forum (aka: blog) contains a whopper of a story:

I recently assisted a young man who was subjected by administrators at his small liberal arts university in Oregon to a month-long investigation into all his campus relationships, seeking information about his possible sexual misconduct in them (an immense invasion of his and his friends’ privacy), and who was ordered to stay away from a fellow student (cutting him off from his housing, his campus job, and educational opportunity) — all because he reminded her of the man who had raped her months before and thousands of miles away. He was found to be completely innocent of any sexual misconduct and was informed of the basis of the complaint against him only by accident and off-hand. But the stay-away order remained in place, and was so broadly drawn up that he was at constant risk of violating it and coming under discipline for that.

Now we do have take such stories with a grain of salt. Halley doesn't say that she's independently verified his story and students are prone to misinterpreting everything. There's also been plenty of stories involving rape that are devoid of credibility, like the UVA story run in Rolling Stone or Lena Dunham's attack by the "campus Republican." But, if Halley's assertions are correct, this creates a dangerous new precedent. On college campuses you might be punished (and losing your job, your home, and not being able to attend classes is a pretty serious punishment) just for reminding someone of a rapist. This is truly bizzarro territory.

But wait! It gets worse! Last year down the coast at Occidental College, sociology professor Danielle Dirks who helped found the school's Sexual Assault Coalition (that's an anti- group, not a pro- group, btw), created a profile for likely rapists when trying to convince a female student to accuse another of rape. According to Professor Dirks, "[John Doe] fits the profile of other rapists on campus in that he had a high GPA in high school, was his class valedictorian, was on [a sports] team, and was from a good family."

If you can be kicked off campus for reminding a student of a particular rapist (who isn't you), then it doesn't seem like much of a stretch to kick someone off campus for reminding them of rapists generally. After all if we believe that 1 in 4 college women will be raped, it's basically a guarantee that someone on campus will have been raped by someone who meets the profile. And what are we going to do, ask women to come forward and declare that they're being triggered? That runs the risk of re-traumatizing a victim.

Just look at the reactions to the sleepwalker statue at Wellesley. Students made complaints saying the statue of paunchy, pale, sleep walking man in ill-fitting white briefs was "a source of apprehension, fear, and triggering thoughts regarding sexual assault for some members of our campus community. Another student said "I know people who have had triggering responses to the statue. The statue was put in a public place without students’ consent.” No one there (at least no one who talked to the major press outlets) claimed that they themselves were actually triggered, or that the statue reminded them of a real rapist in their past. No, they wanted it removed just because it could potentially cause triggering thoughts in some hypothetical students' minds. That student wouldn't even need to have ever been a victim because even non-victims can have upsetting thoughts about sexual assault.

 

Now just imagine what would happen if we got this whole brain trust together. We're going to kick you off campus is seeing you causes someone to have some bad thoughts about sexual assault, and all that's required to trigger isn't even that you be smart, athletic, and come from a good family. Nope, the criteria would basically be what we're going to call the Miss Swan rule, "He look like a man."

Now that might sound like a bunch of conspiracy theory, slippery slope nonsense. But, universities have been letting Title IX administrators take over campus judicial proceedings (just imagine if someone from the OCR got to sit as a judge in a trial), and worse, many are switching to the Single-Investigator model, under which a lone inquisitor plays detective, prosecutor, judge and jury, free to keep the evidence and their reasoning to themselves. This is the model being pushed for by the White House's Campus Sexual Assault Task Force. Schools can be found in violation of Title IX if they are found to have a dangerous or hostile environment for women which interferes with their education, thus denying them equal access.

Crazy as it sounds, the rules are all basically in place to let universities spiral down the Orwell/Kafka drain. All it really requires is an absurd recommendation from the Department of Education about how to interpret the law. At least we can take comfort in known they'll never do exactly that.

Comcast Admits Its Fee Increase Is Basically Just Fraud

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If you've ever signed up for a cable package, then you know the standard procedure. You pick out the cheapest plan that has all the TV channels you want and will still allow you to play whatever your favorite video game is, and then you sign a contract locking you into that price for a year or more. Then, if you have Comcast, you put the fucking lotion in the basket.

It's no secret that Comcast has a horrible reputation for both its product and its customer service. This winter, it also drew criticism for surreptitiously increasing its prices in the form of increased modem rental fees and "broadcast fee." The "broadcast fee" is what you pay Comcast in order to get the broadcast networks that are provided free to anyone with an antenna. This fee actually does make a bit of sense. Even if the product is out there for free, the networks could still charge Comcast for the right to use it. We're going to give Comcast the benefit of the doubt on that one, not that they deserve it.

But the modem fees, oh boy. If you have Comcast, then sometimes in December or January you'll remember having a service technician come to your home and provide you with an upgraded modem. What, that didn't happen?

But the modem rental fees many people pay went from $8 to $10. Surely they got a next gen modem. What else could explain the fee increases? Surely Comcast can't just charge you more to rent the exact same equipment. What explanation could their possibly be? We asked. Here's a bit from an online support chat transcript (click for full size):

No, we do not understand.

 

If you'll recall, when you get your cable package you sign a contract, and that contract locks in the price for your service package. That service package is your set of television channels and your internet speed.

What Comcast has done is improved its TV programming offerings and increased its internet speeds (or so they say). That's an improvement to the service package, but the service package has a fixed price. Since Comcast can't change that, it just puts the $2 service package increase in its modem rental fee. If you had an $89 TV/internet package and an $8 modem, what you now have is a $91 TV/internet package and an $8 modem, but with Comcast lying to you about what the fees are for.

Now we may just be a bunch of simple drunk country lawyers, but we're pretty sure that what we've got here is a case of fraud. Or more specifically, false pretenses. If our bar review notes are correct. A defendant is guilty of false pretenses if he:

(1) knowingly

(2) makes a false represenation

(3) of a material fact

(4) that causes the victim to pass title

(5) to the defendant

(6) with the intent to defraud the victim

The fact that Comcast gave the script to their customer support shows they knew what they were doing. Calling it a modem fee increase seems to be a false representation. What you're being charged for looks to be material. The bill causes victims to pass title. To the defendant. And again, Comcast knows what it's doing, so there seems to be the intent to defraud.

While your local PD isn't likely to lock up the Comcast CEO, enough complaints to the FTC might do the trick. Here's the link to file an FTC complaint. Let them know that despite putting the lotion in the basket, Comcast still decided to hose you.

New York acquires machine guns to counter protests

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In response to the anti-police brutality protests that followed in the wake of Eric Garner's death, NYPD Commissioner Bill Bratton has decided to create a new Strategic Response Group. The SRG will consist of 350 officers, armed with assault rifles and machine guns. Yes. Machine guns. To control protesters. Here it is straight from the mouth of Bill "Blood-n-Guts" Bratton:

It will be equipped with all the extra heavy protective gear, with the long rifles and the machine guns that are unfortunately sometimes necessary in these ­instances. [New York Post]

Sometimes necessary! We here at Con Daily must have really slacked off in our high school US history classes, because we can't think of a single instance when police at a protest needed machine guns. Maybe Stormin' Bill Bratton has something like the Kent State anti-war protests in mind. Those national guardsmen only fired 67 rounds in 13 seconds. A single M2 Browning fifty cal machine gun can get off well more than 100 rounds in the same amount of time.

Bratton later clarified that he had misspoken when he said the new heavy weapons would be part of protest control. The weapons would go along with CRVs, critical response vehicles, and not the SRGs, which are for protest control. [Newsday] That's more reasonable, except for one tiny little gap in Bratton's reasoning...

When have machine guns ever been necessary in domestic counter-terrorism? If only there had been some more CRVs on the streets of New York, those planes wouldn't have hit the World Trade Center.

Fans of Battlestar Galactica will recall Commander Adama's response to President Roslin when she asks him to use the marines as a police force:

There's a reason you separate military and the police. One fights the enemies of the state, the other serves and protects the people. When the military becomes both, then the enemies of the state tend to become the people.

Nevermind that it would have been more clear to say "then the people tend to become the enemies of the state," most people still get the point. Huzzah context and all that. What we're seeing in New York and other cities is essentially the same thing being run in reverse. The police are increasingly taking on counter-terrorism effort -- that is, they are fighting the enemies of the state.

It's a very delicate situation, and while it is possible to strike the right balance, we don't have a ton of faith in a police commissioner who occassionally confuses his department's crowd control duties with its counter-terrorism efforts.

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