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Thursday, October 20, 2016

Luther on Placing Your First Law Review Article

From TaxProf Blog, I learned of this essay by Robert Luther III on the art of submitting law review articles for publication. Here is the abstract:

Many law reviews are only open to the top 10% of the class or to students who excel in a writing competition. While a high percentage of law schools now have at least one journal in addition to the law review, the reality is that well over half of the students enrolled in law school today do not have the opportunity to serve as a law review or journal staff member. Without that experience, those students-turned-lawyers who wish to publish legal scholarship after graduation are left in the dark about where to begin the process. I was one of those individuals, but over the last eight years, I have regularly published legal scholarship. Recently, my former students and other young attorneys have started asking me for advice. This essay — directed at emerging scholars who seek to publish their scholarship shortly after entering the legal profession — is a compilation of the advice I have shared.
The essay is a quick read, and I recommend checking it out. Luther devotes a bit too much space to the simple issue of submitting a curriculum vitae and cover letter (it could be shortened to: submit both and expect that neither will be read, let alone subjected to letterhead analysis). Additionally, tip number five on requesting expedited review is presented as though authors need to write a letter or email for each request -- which is generally not the case, as the submission websites ExpressO and Scholastica make the process almost entirely automatic.

For those in a hurry, I suggest following the one simple rule of: buy Eugene Volokh's Academic Legal Writing and do everything he tells you. It worked for me.

As for tips that I would add to Luther's essay, here are a few that came to mind:
  • If you are not currently in law school or a legal academic employed by a law school, start a savings account for the outrageous amount of money you will need to spend on submitting articles through Scholastica and ExpressO. ExpressO submissions are $3.10 each, and Scholastica costs $5.00 per submission. Authors hoping to cast a wide net (a description that probably applies to most people submitting for the first time) will find that these submission costs add up very fast.
  • On a related note, to push back against Luther's advisement against publishing while still in law school, students should take note that most law schools will pay all submission fees through their institutional account. While many schools may be reluctant to publish scholarship by student authors, students with access to unlimited free submissions can sent articles to so many journals that they may be lucky enough to find the exception.
  • While on the subject of student scholarship, students should consider submitting shorter pieces as essays or to online law review supplements. Those publications are more likely to be published without a "note" or "comment" label that Luther describes as a "scarlet letter" that frightens away those who would otherwise cite the article. You can find an excellent list of online law review supplements and their rankings here.
  • Avoid using overly complicated technical legal terms and submit something that is fun, or at least easy, to read.
  • Read and re-read Luther's ninth tip on coauthoring. It is very good advice that I don't see often enough in books or articles on this subject.
In short, students and practitioners should write, submit, and publish scholarship. Parts of the process can be tedious and time consuming, but it is ultimately a rewarding undertaking.

Monday, October 17, 2016

In Memoriam: Skye Donald

UCLA School of Law issued this press release earlier today which states in part:

UCLA Law faculty member Skye Donald, widely admired for her excellent teaching and extraordinary student mentorship, succumbed to cancer on Oct. 16. She was 43.
Donald joined UCLA School of Law in 2009, and was diagnosed with a brain tumor the following year. She nonetheless taught the Lawyering Skills course to hundreds of first-year students and assisted in upper-division clinical courses, and became an enormously successful and well- regarded teacher. In recognition of her excellence as an instructor, she was awarded a continuing appointment as a lecturer in law in 2015.
“Even in the midst of her very serious medical issues, Skye was extraordinarily focused on the well-being of those around her,” said UCLA Law Dean Jennifer L. Mnookin. “She worked very hard to understand and connect with her students, and she coupled high expectations with extraordinary empathy. We have lost a wonderful teacher, colleague and friend.”
Skye was my legal writing professor during my first year of law school. As my classmates and I attempted to manage our regular lecture coursework (including learning to glean rules and doctrine from cases and adapting to the Socratic method), we faced increasingly complex writing assignments that forced us to confront and adopt legal writing's terse analysis of facts and case law and the employment of cases as authority in legal arguments. For most of us, lecture courses were akin to learning to read in a different language and our legal writing course felt like learning to write in a different language.

Skye approached the task of teaching classes filled with stressed, confused, and stubborn students with an unceasingly positive demeanor. When finals and deadlines began to loom and tensions were high and tempers short, Skye defused the stormy atmosphere and renewed our confidence. She helped us see that with the right attitude and game plan, we could get through the seemingly endless piles of reading and work with which we were confronted. When I was confused about a grade or comment on an assignment, Skye took the time to talk me through my answer and her evaluation process and provided concrete guidance on how I could improve my work. Her cheerfulness cut through the darkest of days, and lifted the spirits of everybody in her presence.

My law school lecture courses gave me a doctrinal background that I have drawn on as an attorney. But without Skye's teaching, I would never have been able to employ my legal knowledge in motions, briefs, or blog posts. My legal writing abilities and my work as an attorney are both attributable to Skye and I will do my best to continue to employ and develop the skills she taught me. UCLA Law will not be the same without her.

Thursday, October 13, 2016

Melania Trump Demands Removal of "Actionable" Statements from People Article

So reports Politico:

Donald Trump may not be planning to sue People over the magazine's story accusing him of sexual assault, but his wife Melania apparently is.
At 7:15 p.m. on Thursday night, Melania tweeted a copy of a letter bearing the return address of her lawyer, Charles Harder, and addressed to People editorial director Jess Cagle and People writer Natasha Stoynoff, who wrote a first-person account about Donald Trump forcibly kissing her at Mar-a-Lago in 2005.
Harder — who represented Hulk Hogan in his suit against Gawker, which was funded by Trump supporter Peter Thiel, and has sent threatening letters on Melania's behalf before — wrote that Stoynoff's account contained "actionable" falsehoods (though it did not call the article defamatory). The specific passage Melania Trump disputes: the account of the writer bumping into Melania and having a brief conversation with her outside of Trump Tower.
"The true facts are these: Mrs. Trump did not encounter Ms. Stoynoff on the street, or have any conversation with her. The two are not friends and were never friends or even friendly," Harder wrote.
A complete copy of the letter is here, and it is reprinted in full in the above Politico article.

The letter, which Politico notes uses the term "actionable," rather than "defamatory," does not specify what causes of action Melania Trump has against People. Melania's attorney contends that the statement gives rise to "claims of damages," but it is unclear how the mere statement that Melania recognized and said hello to Stoynoff is damaging in any way, even if it is false.

The letter states the vague threat that People's failure to retract the statements and issue an apology "will require Mrs. Trump to consider her legal options." Perhaps Melania and her attorneys should have considered the legal options before writing the letter, as Melania's legal options seem to be nonexistent.

Thursday, September 29, 2016

Oakland's Resistance to Mass Surveillance: Would it Play Out the Same Way Today?

The BBC has this interesting article on an attempt by the City of Oakland, California to adopt a wide-ranging surveillance system, and the resistance to the city's efforts. From the article:
Most cities, including Oakland, have cameras monitoring traffic intersections and public areas. But a Domain Awareness Centre, or DAC, is far more sophisticated. It is still based around a bank of screens, but the camera feeds are augmented by data from weather reports, shipping movements, social media chatter, email records, emergency calls and other data sources. 
The port of Oakland had been given federal funds in 2008 to build a DAC as part of a post-9/11 push to protect critical infrastructure from terrorist attack. 
At some point, the city council decided to extend the system to cover the whole of Oakland and its population of 400,000 people. 
. . .

Hundreds of new cameras would be installed across the city and data would be incorporated from from licence plate readers, gunshot-detection microphones, social media, and, in later phases, facial recognition software and programmes that can recognise people from the way they walk. 
The city said it needed an early warning system to give "first responders" a head start when dealing with emergencies like chemical spills and earthquakes, as well as major crime and terrorist incidents. 
But privacy campaigners in the city were alarmed at the thought of the Oakland Police Department having access to an all-pervasive real-time surveillance network. Particularly one that did not have a policy on what data would be stored and for how long. 
The article goes on to report that the Oakland City Counsel hosted a "marathon" meeting on March 4, 2014 to debate the scope of the DAC. At the meeting, privacy advocates, former "Occupy" protesters, and members of Oakland's African American and Muslim communities spoke out against the DAC, and the proposed surveillance program was ultimately scaled back "dramatically."

I blogged about the federal grant Oakland received back in 2013. In that post, I shared the concern of many of the privacy advocates cited by the article that the widespread surveillance system would be implemented or employed in a manner that would lead to disproportionate surveillance of racial minorities and less-wealthy citizens.

Oakland's attempt at surveillance, and the resistance the attempt inspired, is an interesting case study for the implementation of widespread, automated security measures in urban settings. The BBC suggests that the timing of the Snowden leaks gave momentum to the protest against the proposed surveillance -- as both the content of the Snowden revelations and Oakland's proposals involved the issue of technologically enabled mass surveillance.

I am curious as to whether the same level of resistance would arise in today's political climate, in which most attention seems focused on instances of excessive force employed by police officers and fear of excessive force in personal encounters with officers. These issues seem far-removed from questions of systematic surveillance practices their broader impact on privacy. Indeed, as I discuss at length in this post, today's discussions of policing practices often include calls for body cameras despite warnings from groups like the ACLU that these cameras may lead to systematic privacy violations.

Moreover, those concerned with police excessive force may be tempted to advocate for wider, automated surveillance systems. These systems may appear to enforce the law in a manner that avoids officer discretion, which may arguably reduce the incidence, or opportunities for instances, of excessive force. But as commentators like Elizabeth Joh point out, officers can still exercise discretion with widespread, automatic surveillance systems by focusing those systems on particular people or groups of people.

More cities will likely attempt to adopt wider, more technologically sophisticated surveillance systems as time goes on and as the technology becomes more accessible. I suspect that resistance to these proposals will be less pronounced than in 2014 as notions of mass surveillance become more normalized and as long as protests against law enforcement remain focused on the actions of individual officers rather than on the policies and procedures adopted by departments and municipalities as a whole.

Wednesday, September 21, 2016

Trump's Bold Plan for the Fourth Amendment

Politico reports on an exciting development in Donald Trump's policy proposals. When asked how he would address "violence in the black community," Trump was ready with this nuanced discussion of police procedures:

“I would do stop-and-frisk. I think you have to. We did it in New York, it worked incredibly well and you have to be proactive and, you know, you really help people sort of change their mind automatically,” Trump told the questioner. “You understand, you have to have, in my opinion, I see what’s going on here, I see what’s going on in Chicago, I think stop-and-frisk. In New York City it was so incredible, the way it worked. Now, we had a very good mayor, but New York City was incredible, the way that worked, so I think that could be one step you could do.”
The Politico headline says that Trump called for "national stop-and-frisk," so that's what I'll assume he said there.

I'm intrigued to see how Trump will manage to dictate local police policy from the national level, and how Trump will manage to overcome some procedural obstacles presented by a particular arcane 18th century legal doctrine. But if this is the same Trump that is going to "open up" libel laws, I doubt that pesky technicalities like the Constitution will be much of an obstacle.

Also, "you really help people sort of change their mind automatically?" Yeesh.

Thursday, August 25, 2016

Illinois "Pidgey's Law" an Overly Hasty, Muddled Attempt at Regulating Augmented Reality

Several news outlets have reports on this bill (AB 6601) recently introduced by Illinois State Representative Kelly Cassidy. Nicknamed "Pidgey's Law," the bill was introduced in response to reports that players of the augmented reality game, Pokémon Go, were trampling the habitats of endangered species in a federal park.

From the Chicago Sun Times:
Cassidy introduced “Pidgey’s Law” on Wednesday during a news conference at the Loyola Dunes Restoration Site. Named after one of the game’s bird Pokémon, the bill aims to crack down on location-based game developers to remove problematic gaming sites from their maps.
. . .  
If passed, “Pidgey’s Law” would give game developers up to two days to remove a location-specific site from its game if that site’s property owner, manager or custodian requests its removal. After that, developers would be fined up to $100 each day until the stop is removed. 
The bill is in response to a Pokéstop — real-life locations gamers can visit for in-game perks — that rests at the center of the dune restoration area, which is protected under state and federal law. The stop, based on an art installation that stood there a few years back, sometimes draws players off the designated path into areas where some endangered wildlife lives. 
The hundreds of Pokémon Go players who frequent the area each night have caused increased littering and vandalism as well as occasional trampling of the wildlife when rare Pokémon appear in the augmented reality of the game.
Other news outlets report on the bill here, here, and here. A common theme in all of this reporting is that the purpose of the bill is to remove in-game landmarks (in Pokémon Go these are known as Gyms and PokéStops) from private property or environmentally sensitive areas at the request of property owners or managers.

But is this what the bill actually does? Below are the pertinent sections of the bill. To make efficient use of these extensive quotes, I've emphasized the terms that are either undefined or that cause problems:

Wednesday, August 24, 2016

Value Judgments in the Bluebook

In the harrowing world of the legal publication process, law review editors use the arcane and intricate rules of the Bluebook to dissect, complicate, elaborate, and brighten up citations in an incomprehensible swirl of multi-colored track-changes notes. The time-pressured author will often defer to the editors' suggestions and click the "accept changes" button at an accelerating pace, hoping that a hasty tempo will bring a swift end to the confusing mire of references to various multi-decimaled rules.

But often these rules are open to interpretation. Indeed, a quick series of searches of value-laden terms, such as "significant," "relevant," and "particularly" lead to a number of rules that seem suspiciously subjective for such an intricate book of rules.

Consider Rule 5.2(c) regarding the proper conduct for quoting a source with a mistake:

Significant mistakes in the original should be followed by “[sic]” and otherwise left as they appear in the original:
  • “This list of statutes are [sic] necessarily incomplete.”
(emphasis added here, and in the rest of these quotes). It appears that they will tell us what mistakes are "significant" in the 21st edition.

Rule 10.6.2 discusses parenthetical notations on quoted sources, and the extreme lengths to which one may go in flagging and exploring citations:
When a case cited as authority itself quotes or cites another case for that point, a “quoting” or “citing” parenthetical is appropriate per rule 1.5(b). Within the parenthetical, the same rules regarding typeface, pincites, and short forms apply to the quoted or cited authority as if it were the direct source:
  • Zadvydas v. Davis, 533 U.S. 678, 719 (2001) (Kennedy, J., dissenting) (citing Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953)).
Note, however, that only one level of recursion is required. Thus, if a case quotes a case, which itself quotes another case, only one level of “quoting” or “citing” parentheticals is necessary. An additional level of parenthetical information may be used if the information conveyed is particularly relevant.
This appears to be the same rule employed in the portion of Rule 10.4 which governs whether one should list a department or district of an intermediate state court:
Do not indicate the department or district in citing decisions of intermediate state courts unless that information is of particular relevance:
  • Schiffman v. Corsi, 50 N.Y.S.2d 897 (Sup. Ct. 1944).

When the department or district is of particular relevance, that information should be indicated as follows:
  • Schiffman v. Corsi, 50 N.Y.S.2d 897 (Sup. Ct. N.Y. Cnty. 1944).
  • Lee v. Perez, 120 S.W.3d 463 (Tex. App. 14th 2003).
Vagueness and value judgments even dictate how the powers that be who author the Bluebook interact with the mere mortals in the legal world. From the message associated with the "Blue Tips" pages:
The editors provide authoritative guidance to reasonable questions on subjects covered by The Bluebook. The most useful answers are gathered here as Blue Tips, classified by subject. These tips are searchable and linked to theBluebook content they address. Send your questions to If our answer is useful to Bluebookers generally, it may be formulated into a new tip, below.
I was able to write this post after conducting a few searches over the course of 15 minutes or so (while also watching The Blacklist). Goodness only knows how many more value judgments the Bluebook contains, and how truly subjective the law review editing process really is.