The Present Public Meaning Approach to Constitutional Interpretation

My article, The Present Public Meaning Approach to Constitutional Interpretation will be published in Volume 89 of the Tennessee Law Review--most likely sometime in 2023. The article is here. Here's the abstract:

Originalists often respond to critics by claiming that originalism is worth pursuing because there are no feasible alternatives. The thinking goes that even the most scathing critiques of originalism ultimately fall flat if critics fail to propose preferable alternative to originalism. After all, it takes a theory to beat a theory.

This Article proposes an alternate theory. While most variations of originalism require that the Constitution be interpreted based on its original public meaning, this Article proposes that the Constitution should instead be interpreted based on its present public meaning. This straightforward alternative has attracted surprisingly little discussion in the originalist literature until Frederick Schauer’s recent article, Unoriginal Textualism, argued for the theory’s feasibility. While Schauer devotes much of his article to the claim that the present public meaning approach is theoretically possible, his discussion of why such an approach is preferable to originalism is limited.

This Article picks up where Schauer leaves off and argues that the present public meaning approach is preferable to originalism. The present public meaning approach to constitutional interpretation is a better means of constraining judges, and leads to judicial decisionmaking that is more transparent and predictable. It also better achieves goals of democratic legitimacy by taking into account modern views on indeterminate, value-laden language in the Constitution and its amendments and by accounting for significant expansions in the right to vote since the founding. Additionally, the present public meaning approach avoids significant implementation obstacles originalism faces, and is more likely to lead to desirable results by better accounting for present circumstances.

This Article does not contend that the present public meaning approach is the best approach to constitutional interpretation. But it is still preferable to originalism—avoiding numerous shortcomings and critiques against originalist methodology, and preferable in light of many normative considerations that originalists claim to honor. Originalists must therefore take the present public meaning approach seriously when defending their theories of constitutional interpretation.

This article has been in the works, in one form or another, for a few years. I previously blogged about Schauer's article here, and got into some of the initial thoughts that I've since incorporated into the larger article.

At The Originalism Blog, Michael Ramsey has a brief reaction to the article:

Often, especially as to technical provisions, I think present public meaning doesn't differ that much from original public meaning, which is why (in my view) original meaning originalism is, or should be, heavily textualist. But sometimes it does, and I'm not sure of the justification for letting our basic law be determined by random changes in language. More importantly, though, I think in many cases the present public meaning isn't distinct from what one thinks the Constitution ought to mean. Consider "due process of law": does its modern meaning include "substantive" due process? That question isn't really separable from whether one thinks it should include "substantive" due process. Thus it is not really an objective test.

On the first point, I agree that there are likely many instances where the original and present meanings of constitutional provisions are the same. Age requirements for offices and the numbers of senators per state don't require us to delve into the archives to determine original meanings. But these generally are not the provisions that trigger litigation and which are front and center in modern disputes over constitutional law.

As for the justification for taking an approach that may result in "random changes in language" changing the meaning of the Constitution, a substantial portion of the Article discusses why this potential problem is: (1) generally portrayed as more dramatic than it actually is; and (2) why other shortcomings of originalism which this approach either avoids or substantially mitigates are a compelling reason to accept this cost of the present public meaning approach.

As for Ramsey's concern about this not being an "objective test," it's unclear how this objection does not apply to originalism as well. The article's suggestion is fairly minimal: rather than looking to the original public meaning of a constitutional term or provision, judges, lawyers, and the public should look to the present public meaning of the term or provision. Apply this to a phrase like "due process of law." The definition of this term is not immediately apparent. One might argue that this indeterminacy is not a product of present or original meaning, but the phrase itself--it's a loaded term.

Originalists will likely respond that the original public meaning of "due process of law" is narrow and technical, and that once one gets into the weeds of historic meaning, what seems to be a loaded or indeterminate phrase can actually be parsed out with a fair degree of certainty. Lawrence Solum and Max Crema have recently posted a forthcoming article arguing precisely that. From the abstract:

The modern understanding of the Fifth Amendment Due Process of Law Clause is dramatically different from the original meaning of the constitutional text. The Supreme Court has embraced both substantive due process—a jurisprudence of unenumerated rights—and procedural due process—a grab bag of doctrines that touch upon almost every aspect of administrative and judicial procedures. We demonstrate that the original meaning of the Clause is much narrower. In 1791, “due process of law” had a narrow and technical meaning: the original sense of the word “process” was close to the modern sense that the word has when used in the phrase “service of process,” and it did not extend to all legal procedures, much less to all laws that impact liberty or privacy. In the late eighteenth century, “due process of law” was distinguished from two other important phrases. The phrase “due course of law” referred broadly to all aspects of a legal proceeding, including trials, appeals, and other matters. The phrase “law of the land” extended to all of what we would now call the positive law of a particular state or nation. Once these three ideas are properly distinguished and the relevant history is examined, the evidence for the narrow understanding (what we call the “Process Theory”) is overwhelming. As a consequence, almost all modern Fifth Amendment Due Process of Law Clause cases are either wrongly decided or wrongly reasoned from an originalist perspective.

Say that Solum and Crema's argument is correct. This doesn't change their observation at the outset: "The modern understanding of the Fifth Amendment Due Process of Law Clause is dramatically different from the original meaning of the constitutional text." If the modern meaning of "due process of law" does include substantive due process, then that's the meaning. Seems fairly "objective" to me. 

And it's unclear how originalism is more "objective" than the present public meaning approach. Indeed, if one can establish that substantive due process is not a part of the original public meaning of "due process of law," then the choice to proceed with an originalist interpretation may well be motivated by the goal of reading that phrase to exclude substantive due process. This does not appear to be a particularly objective approach either.

"Objectivity" aside, the present public meaning approach is appealing in other ways. As Solum and Crema's article demonstrates, if they are right about the original public meaning of the Due Process of Law Clause, then "almost all modern Fifth Amendment Due Process of Law Clause cases are either wrongly decided or wrongly reasoned from an originalist perspective." A strong originalist approach to constitutional interpretation would result in an extensive overturning of precedent, leading to legal upheaval. Moreover, the present public meaning approach makes the task of interpreting the Constitution more democratic--it employs meaning based on what America today looks like, rather than the unrepresentative America of the founding, where women and African Americans lacked the right to vote. And this approach requires judges to be more up front with their reasoning. Hiding goal-oriented decisions behind a haze of selective historic citations is no longer an option. Even if there is a lack of objectivity, the nature of the present public meaning approach makes it more likely that this will be apparent to the public.

Ramsey's brief remark does not lend itself to an extended, in-depth response, and I look forward to seeing if he and others have more to say. The version of the article that is currently online will be updated to incorporate at least some additional discussion of potential objections--in particular, I will be addressing likely objections from Christopher Green based on what he discusses in this article. Work, an impending wedding, and career moves have delayed these revisions, but they will be coming soon! In the meantime, comments are welcome!

The Opaque, Incomplete Corpus Linguistics Analysis in the Mask Mandate Ruling

As virtually all news outlets have reported, Judge Kathryn Kimball Mizelle of the United States District Court, Middle District of Florida, recently struck down the CDC's requirement that people wear masks in certain settings, including plains, train stations, busses, and other public transit settings. The ruling is here. The case is Health Freedom Defense Fund, Inc. v. Biden.

Reaction to the ruling has been swift. Most of the commentary is an early phase, with initial reactions widespread on Twitter. For some initial, detailed discussion, Ilya Somin writes about the opinion here, suggesting that it is more defensible than critics claim, but that it may still be vulnerable to being overturned on appeal. The Wall Street Journal's editorial page writes favorably of the ruling here. The Washington Post has dueling takes for and against the ruling. 

More undoubtedly will be written as the days go on and as commentators parse the 59-page decision. Initial reactions suggest that the textualist methodology employed by the court is lacking. (See, e.g., here and here). I want to focus on one portion of the analysis: the court's use of corpus linguistics methodology in support of its conclusion.

I won't delve into the intricacies of the dispute and all of the arguments made by the parties and addressed in the ruling. In brief, the court addressed whether 42 U.S.C. § 264(a) was a sufficient basis for the CDC's mask requirement. The court concluded it was not, finding, among other things, that section 264(a)'s grant of power to provide for "sanitation" did not apply to requiring masks.

In reaching this conclusion, one method the court employed was corpus linguistics--a method in which databases of documents and texts are searched for instances in which words and phrases are used. In theory, one trying to determine the meaning of a word or phrase can type that word or phrase into a corpus linguistics database and examine the instances in which that word or phrase is used across a wide variety of texts. In doing so, patterns may emerge demonstrating multiple usages, common trends in meaning, and other information that may aid in determining the definition (or definitions) of a term. This method of interpretation has gained steam in recent years, particularly in originalists circles where it is hailed as a groundbreaking method for determining the original public meaning of constitutional provisions. (See articles by Lawrence Solum and Thomas Lee and James Phillips advocating the use of corpus linguistics in the originalist context). As I've noted in recent work coauthored with Alexander Hiland, this methodology raises a fair share of concerns, including a lack of transparency as to how a judge undertook the corpus linguistics analysis. The corpus linguistics analysis in Judge Mizelle's opinion demonstrates that this concern is well-founded.

Here's the excerpt of the ruling addressing corpus linguistics (from pages 17-18 of the ruling):

Customary usage at the time agrees. One method to assess the ordinary meaning of a term is to search a database of naturally occurring language. A search returns the desired word as well as its context and, with a sufficient sample size, search results permit inferences on how a word was used. This method is known as corpus linguistics.[FN 2] The Court here searched the Corpus of Historical American English (COHA) [FN 3] to find uses of "sanitation" between 1930 and 1944. Of the 507 results, the most frequent usage of sanitation fit the primary sense described above: a positive act to make a thing or place clean. Common examples referred to sanitation in the context of garbage disposal, sewage and plumbing, or direct cleaning of a dirty or contaminated object. In contrast, by far the least common usage-hovering around 5% of the data set-was of sanitation as a measure to maintain a status of cleanliness, or as a barrier to keep something clean. And so, the COHA search results are consistent with the contextual clues of the active words surrounding sanitation in § 264(a).

[FN 2]: "Corpus linguistics is an empirical approach to the study of language that uses large, electronic databases" of language gathered from sources such as books, magazines, and newspapers. Thomas R. Lee & Stephen C. Mouritsen, Judging Ordinary Meaning, 127 YALE L.J. 788, 828 (2018) (footnote omitted) (describing this tool).

[FN 3]: The COHA corpus is publicly available. See CORPUS OF HISTORICAL AMERICAN ENGLISH, https://www.english-corpora.org/coha/ (last visited Apr. 12, 2022). It is "the largest structured corpus of historical English." Id. Because Congress enacted the PHSA in 1944, the Court searched for uses of the word "sanitation" and variants like "sanitary'' and "sanitize" between 1930 and 1944. The search returned 507 hits, or "concordance lines."

This description of the analysis that the court undertook and the conclusions drawn from the analysis lack transparency and raise a number of questions.

To start, it is unclear what search (or searches) the court undertook. In footnote 3, the court indicates that it searched for the word "sanitation," and also "variants like 'sanitary' and 'sanitize'." The court does not specify how many variants of "sanitation" it searched for--only providing two examples of such variants. It appears that the court conducted a single search, although this is unclear as well, given the acknowledgment that the court searched for variations on "sanitation." This suggests that there was a single search for "sanitation," along with some of its variants (say: "sanitation OR sanitary OR sanitize"). The court's failure to specify the precise terms of its search, however, leave the reader to speculate as to how the court conducted its search of the database.

The court's analysis also lacks transparency regarding how it coded the results of its search. The court gives two apparent examples of its coding: results reflecting the meaning, "a positive act to make a thing or place clean" and results reflecting "a measure to maintain a status of cleanliness, or as a barrier to keep something clean." The court does not specify whether its search uncovered alternate meanings, and the percentage of results that fell into these meanings. Indeed, the only percentage specified in the opinion is that five percent of results were consistent with the "measure to maintain a status of cleanliness" meaning. The court is silent as to the percentage of results that fell into the other meaning it identifies, stating only that the "most frequent usage of sanitation" fit that sense. It is unclear whether sanitation as "a positive act to make a thing or place clean" was a majority of the results or a plurality of the results. Even if this sense was a majority of the results, there is still room for the possibility of a frequently used, third meaning that the court does not identify here. Without a breakdown of how results were coded and the frequency of hits for each definition that was code one cannot know how the court reached its decision or evaluate the significance of its conclusions regarding the frequency of definitions.

The court also fails to list sufficient examples detailing how it decided to categorize the search results. The court notes that it one of its definitions was "a positive act to make a thing or place clean," but goes on to provide purported "examples" that list little more than characterizations of the context of the terms. Some of these terms are likely loaded: "sewage" and "garbage disposal," for instance, suggest that some of these results may have been uses of the term, "sanitation," in a specialized sense to describe a "Department of Sanitation." The court does not specify how it classified search results like this, or whether it treated such results differently from the use of "sanitation" in non-departmental contexts. Departments of Sanitation likely carry out a variety of activities, including taking positive actions to make places clean and to maintain a state of cleanliness. Accordingly, it is likely that the court's analysis included hits that, themselves, could have been interpreted in multiple ways. The court does not specify whether, in these cases, it selected one of the alternate definitions, whether it discounted the result from its analysis, or whether it coded the result as including multiple definitions.

Additionally, this analysis illustrates an overall issue with corpus linguistics analysis: the methodology does not contain a basis for selecting among multiple meanings that a search of the relevant corpus uncovers, or whether choosing a single meaning is appropriate. Here, the court notes that the results of its analysis indicated that there were at least two potential meanings of "sanitation." The court ultimately concludes that it should use the variation that appears most frequently, but does not state why the most frequent usage is the only usage that should be employed (for a critique of this assumption, see Donald Drakeman's essay on corpus linguistics; although see Neal Goldfarb's arguments to the contrary). Moreover, selecting a particular meaning of "sanitation" is, itself, a judgment call as to how broadly to read the statute. If one takes a wide view of the CDC's power, one may be inclined to read "sanitation" to cover all of its potential meanings, so as to allow the CDC to take a broad range of actions. Limiting the reading of "sanitation" to only one of its alternate definitions is, itself, a judgment call as to the appropriate breadth of the agency's power--yet no basis or justification for this assumption is set forth.

Advocates of corpus linguistics claim that it can bring a level of empirical rigor to legal interpretation. But as the court's ruling in this case demonstrates, corpus linguistics can backfire and lead to conclusions based on methodology that is impossible to examine or verify. Advocates of corpus linguistics will undoubtedly argue that misapplications of the methodology should not count against the method itself. But in a world where attorneys may increasingly seek to use corpus linguistics in a one-sided manner to convince judges that their position is correct, or where judges themselves employ corpus linguistics without the necessary transparency, the costs of this method to judicial transparency may outweigh the benefits. A judge or attorney may abuse dictionary definitions by selecting a particular dictionary or one particular definition among alternate, plausible definitions. But these abuses can be identified and critiqued. This is not the case with incomplete corpus linguistics analysis, in which a failure to disclose search terms, coding methods, and percentages of coded results makes it impossible to evaluate the interpretive methods employed. The court's decision in Health Freedom Defense Fund illustrates how this opaque, incomplete methodology can impact the lives of millions.

In Praise of Unoriginal Scholarship

Authors of law review articles frequently claim that their article "fills a gap in the literature," that they are making an "original" contribution, or that their take on an issue (that has likely been the subject of prolonged debate for decades, if not centuries) is a completely new perspective. Critics scoff at these claims, arguing that they are almost always exaggerated and that, when it comes to big ideas about the law, there's nothing new under the sun (an example of this criticism is here). These critiques aren't far off. A lot of scholarship addresses arguments that have already been made elsewhere in the legal literature or in the academic literature of adjacent scholarly disciplines (which more than a few academic legal writers tend to avoid). 

Despite this criticism, authors continue to claim originality and take what they may well believe to be original--albeit potentially unusual or ridiculous--positions on issues. They do so in the hope that they'll end up making a novel contribution that ends up resonating (or, less charitably, with the hope that they can at least dupe editors and readers into thinking that they're making a truly original point).

Perhaps those caught up in the modern race to fill literature gaps and make original claims should take to heart the words of Jeremiah Smith in his article, "The Use of Maxims in Jurisprudence," where he prefaces his critique of various legal maxims with this disclaimer:

Those who are wont to eulogize maxims may not unreasonably require their critics to "file a specification." In compliance with this request, we proceed to furnish specific criticisms of some specific maxims. And the objections to these maxims will be stated, so far as practicable, in the words of jurists of acknowledged reputation. One who has the temerity to attack popular idols can hardly expect even to obtain a hearing, much less to convince, if he relies solely on the views "evolved from his own inner consciousness." The convincing force, if any such there be, of this article will consist in its want of originality. (emphasis added).

The landscape of legal scholarship may become just a bit less ridiculous if more authors and editors meditate on the last sentence of that paragraph. 

Originalism and the Dual Critiques of Indeterminacy and Dishonesty

At the Originalism Blog, Michael Ramsey writes about a couple of recent columns by Eric Segall and Andrew Koppelman, both of which are inspired by Justice Ketanji Brown Jackson's confirmation hearing. This post focuses on one of Ramsey's quick reactions to Koppelman's column.

Koppelman writes:

Originalism has three central problems. It doesn’t really constrain judges. Even if it did, it would do so randomly and chaotically. But in fact, as it has been deployed in the Supreme Court, it is a fraud: The self-styled originalists don’t really care about historical evidence. They manipulate it to reach the results they find politically congenial, and then parade their virtue by saying they are merely following the law.

Ramsey responds:

This essay, like others in a similar vein, seems to suffer from inconsistent claims: either (a) original meaning is indeterminate and so isn't useful as a way of constraining judges, or (b) purportedly originalist judges are frauds in that they ignore the best historical evidence to follow their political preferences. These are both potentially powerful critiques but they're inconsistent so the critic needs to pick one or the other. (Lawyers can argue in the alternative but scholars shouldn't.)

Ramsey goes on to respond to each of these issues, but I want to focus on this initial point. This claim of inconsistency is misguided, as both of these problems may exist simultaneously. One way to illustrate this is to take into account multiple categories of originalist actors. I focus on two categories here: (1) academic originalists; and (2) judges and Justices who claim to be originalists. Critiques of indeterminacy tend to have their place in the academic 

First, consider critiques of originalism as presented by its scholarly proponents. A critic may correctly argue that original meaning may be difficult or impossible to determine. There may also be multiple potential original interpretations of particular provisions. Academic originalists aren't without responses.  They often acknowledge that determining meaning is only one step of interpreting and applying the Constitution to cases before courts or to guide one's behavior. Interpreters may rely on particular rules to determine what interpretation should ultimately be implemented--for examples, rules that the most commonly used meanings of terms should be employed in cases where provisions have multiple meanings, or rules that ambiguous provisions should be interpreted with an eye to the "spirit" of the provisions (or the Constitution as a whole). Critics, in turn, may respond that the choice of what rules to use may inject further indeterminacy into what meaning is ultimately implemented. They may also argue that certain approaches to translating the meaning of constitutional provisions into implementable legal rules and determinations may introduce plenty of opportunities for vagueness and personal opinions to sway decisions. It may turn out that these layers of potential inconsistency are enough to doom originalism as a desirable approach to constitutional interpretation. The debate goes on.

While battle over academic theories of originalism rages in the pages of law reviews and on legal blogs, judges and Justices are making decisions on real world cases. Some of these decisions may be made on purportedly originalist grounds. And it may not take much analysis to realize that these originalist grounds ultimately have little to no connection to any accepted version of the original public meaning of the Constitution. Through selective citations to the vast originalist literature (vast, in part, due to the sheer quantity of theorizing necessary to translate indeterminate provisions into implementable interpretations), judges and Justices may back up their goal-oriented decisions with enough citations and historic hand-waving to create an appearance of legitimacy. 

There doesn't seem to be anything inconsistent about pointing out these two problems with originalist interpretation. Originalism may ultimately provide a range of potential meanings--a range that may be so broad (or that lacks a principled manner of choosing between options). While this issue and the potential meanings and methods for choosing between meanings is debated at the academic level, disingenuous, goal-oriented judges and attorneys may purport to take an originalist approach, yet go beyond the range of potential meanings originalism suggests. They may also reach conclusions that turn out to be consistent with originalism by happenstance, should those results end up being consistent with the desired result.  

Both of these problems can exist simultaneously, and both must be accounted for should originalists ever hope for their theory to be applied in a consistent, meaningful manner. Highlighting the seeming inconsistency of these problems in an effort to avoid criticism is nothing more than a dodge. 

One final point:

"Lawyers can argue in the alternative but scholars shouldn't." This seems to be a throwaway line, but it's a revealing example of legal academia's disconnect from the practice of law. There's been some more discussion lately of the ongoing trend of hiring professors with substantial academic, clerking, and fellowship credentials, but with little to no practice experience. Here, the disconnect is made explicit: "lawyers" are separated from "scholars," with the tactics of the former group having no place in the discourse of the latter. Perhaps this is an attempt to justify legal scholarship's increasing disconnect from the realities of practice--if the argumentative methods of lawyers has no place in legal academia, perhaps there is no loss as a result of the widening gap between practice and scholarship.

This instinct seems misguided. While legal scholarship certainly appears different from the arguments attorneys make in briefs and in court, it is (at least in theory) written with the purpose of describing or influencing the legal landscape. If legal scholarship is disconnected from practice (including the practical aspects of lawmaking, judicial opinions, and other real-world aspects of the law), it will end up having little to no impact beyond the theoretical universe it inhabits.

Making the Law Review Submission Process Less Terrible

The Spring submission cycle for law reviews is well underway (and over for some), and has prompted a familiar series of complaints about the academic legal publishing process. Many of these complaints raise concerns dating back decades. Yet the submission process remains largely unchanged. To an extent, this is because a great deal of criticism targets well-established, fundamental aspects of the system without a view to the practicalities of changing these aspects. 

For example, while there may be benefits from switching from student-edited journals to journals edited by faculty, this would be such a dramatic change to the world of academic legal publishing that it is unlikely to occur. Practical considerations that often fall by the wayside for critics making this particular argument include: how will faculty find the time to add editing law reviews to their current workloads? If students are to still maintain some editorial role, or cite-checking responsibilities, will they still be incentivized to do so absent the ability to select the scholarship that is published? What would this system mean for the cite-checking progress, in which all citations are subjected to multiple levels of review to ensure accuracy?

Here, I offer some thoughts on simple steps to improve the law review publication process. While these ideas aren't going to transform the publication process into a delight for everyone, they are meant to be steps in the right direction. My primary consideration is whether these proposals are easy to implement by the relevant actors and whether they lead to at least some incremental improvement to the publishing process.

By way of background (you can skip this paragraph if you're familiar with the law review publishing process), law journals are almost all student-edited. Students select articles to publish, edit the text of the article, and undertake a rigorous cite-checking process in which they locate all sources cited by the article, ensure that all citations are accurate, and revise the footnotes so that they comply with the numerous formatting rules of the "Bluebook," which governs the form of legal citations. Law reviews typically review and select articles in two seasons: the Spring season, which lasts from February to March, and the Summer season, which lasts from August to September. These are rough approximations--some law reviews accept submissions earlier, some later. Submissions are almost all sent using Scholastica, a third party platform. Authors upload their articles, as well as copies of their CV and, sometimes, cover letters describing each article. Once uploaded, authors may then send their articles to as many law reviews as they wish, although there is a $6.50 fee for each submission. Unlike in other academic publishing contexts, there is generally no expectation that submissions are exclusive. Indeed, once an offer to publish is received, authors have the option to "expedite" their submission to other journals by sending an alert that they have received a publication offer and have until a certain deadline to respond. This may prompt other journals to prioritize the submission above others, as there is now a deadline to accept, and as another article has apparently found the submission worthy of publication. Unsurprisingly, this leads to journals being inundated with submissions. Editors with less-prestigious journals have trouble filling their volumes, as many offers they extend end up being expedited to other publications. Anthony Kreis details this process, and its many problems, in his concise essay, "Picking Spinach."

With that, here are some modest proposals for making the law review process just a bit more bearable for all involved. As I noted at the top of this post, I don't pretend that these proposals will solve all problems with academic legal publishing. Normally, I'd say that further discussion is warranted on what systemic changes could improve the publishing process for all. But that discussion has been happening for nearly a hundred years now, with little meaningful progress. Perhaps there is hope, but for now, incremental changes that make the system a bit better ought to be a larger part of the conversation.

• More Anonymous Submissions. More journals should employ an anonymous review process, in which the author's name, employer, and other identifying information is hidden from the journal. Many law journals have implemented anonymous submissions procedures already, including several leading publications. Detractors claim that such an approach can be circumvented, as enough investigation may reveal clues to the author's identity. These critiques miss the mark, as anonymous submissions are meant to prevent using an author's name and pedigree as a shortcut for selecting or prioritizing an article rather than its content. The depth of investigation required to uncover an author's identity is likely greater than the effort needed to evaluate whether it is worthy of publication, and certainly far greater than simply reading the name of an author and their employer and concluding that an article should get priority as a result. Time-pressured editors will therefore be more likely to focus on the article's merits rather than do detective work to determine the author's identity.
• Scholastica Should Identify ALL Law Reviews Requiring Anonymous Submissions. Scholastica claims that they have recently implemented a change that flags law journals requiring anonymous submissions. While I certainly saw several journals with this designation in the most recent submission cycle, these designations were not exhaustive, missing multiple journals that required anonymized, or partially anonymized, submissions. For example, the NYU Law Review requires anonymous submissions, but Scholastica has not yet added a designation indicating this. If Scholastica is going to claim to flag all journals that require anonymous submissions, it should do so.
• Journals Not Accepting Submissions Should Close Themselves on Scholastica. Journals have the option of listing themselves as closed to submissions on Scholastica, which makes it impossible for authors to submit articles to them. Many journals do this after they have completed their review of articles during a submission season. I suspect that many journals that are no longer reviewing new submissions often fail to list their journal as "Closed" on Scholastica, which may give authors the impression that the article is still open to submissions. This is a waste of authors' time and money, and will likely clutter the inboxes of law journals. The simple step of closing a journal to submissions will fix this.
• Journals Should Update Their Submission Guidelines. Journals typically post a set of submission guidelines on Scholastica, indicating when they will review articles, formatting guidelines, anonymity policies, and other preferences they have. Many of these guidelines, however, are clearly out of date, with journals proudly announcing that they began accepting submissions for this season starting on March 1, 2019. This suggests that the rest of the guidelines may be out of date, and adds further mystery to whether the journal is indeed accepting submissions.
• Journals Should Say Whether They Refuse Student Submissions. Many journals have a blanket policy of refusing submissions from students at other law schools. These policies are, in general, misguided. But reforming them is the type of far-reaching, ambitious reform that is unlikely to catch on. Instead, my modest suggestion is that if law journals will not accept submissions from students at other schools, they should clearly say so and, if possible, prevent students at other schools from submitting articles to them via Scholastica. This would save authors' and student editors' time, and would allow student authors to prioritize submissions to the more enlightened journals that are open to all types of authors.
• Eliminate Formatting Guidelines at the Submission Stage. This may be getting into the realm of proposals that are too bold, but journals should refrain from requiring particular formats, such as fonts, double-spacing, and related requirements (although requiring footnotes, rather than endnotes, may be an exception to this proposal). Journals requiring different types of formatting may result in authors needing to prepare multiple sets of submissions for the same article, which can lead to confusion in tracking and expediting articles. Many, if not most, submissions are sent as Word documents, which journals can easily reformat themselves if it aids in their review. To the extent that a journal prefers a particular font or finds that double spacing aids in the editing process, these are all requirements that a final draft submission can meet after acceptance for publication. 
• Scholastica Should Change Submission Pricing, Or At Least Waive or Reduce Fees for Certain Authors. Very little criticism of the publication process mentions the price that Scholastica charges for submissions. I suspect this is because most law schools subsidize the submissions of their professors (an assumption I am making based on my prior experience, as well as the replies I am seeing to this tweet). This allows Scholastica to continue charging its submission fees without seeing a drop in use. It also means that professors, who are often the most outspoken about law review reforms, don't bear the burden of paying for their submissions, resulting in the issue seeming to be a lower priority. But for those outside of the academy--particularly those working in government, nonprofit organizations, or as clerks--Scholastica's pricing may be prohibitive. At the very least, it makes it difficult to compete with professors who may operate with effectively unlimited submissions. Timothy Lau is one of the very few commentators who has flagged the problem of submission pricing in his article, "A Law and Economics Critique of the Law Review System."  He proposes a graduated pricing scheme, where in which the first 10 submissions cost $4.00 each to submit, the next 10, $5.00, and so forth, capping out at $13.00 for the 100th submission and onwards. To an extent this would make it easier for non-academics to submit--at least as far as their initial submissions are concerned. It would also, in theory, reduce what Lau describes as "saturation submission," in which large numbers of submissions overwhelm law reviews. This approach has its drawbacks. For one, the particular graduated pricing scheme Lau proposes would likely be too burdensome for nonacademic publishers who aren't making biglaw money. Moreover, if law schools continue to subsidize submissions, pricing changes would not impact author behavior. Instead, Scholastica should consider reduced pricing for those who are not associated with a law school, or a allowing a certain number of free submissions for these authors, which would reduce the burden of submission, and help these authors better compete with those in academia. Since the bulk of submissions will likely continue to come from professors, the cost of this reform should be low.
• More People Should Call Out Submission Pricing. As a follow up to the previous proposal, I want to emphasize that Scholastica's submission fees should be part of the discussion of law review submissions and reforms. It is barely mentioned, but the high price of numerous submissions, coupled with law schools subsidizing submissions, places nonacademic authors--and particularly those working in government or public interest--at an economic disadvantage. 
• Law Journals Should Reject All Pending Articles Once Their Volumes Are Full. For me, both this submission season, and last submission season, were strangely quiet. Many journals to which I submitted never responded in any way. As for the rejections I received, many indicated that the journal had filled its volume and was no longer reviewing any submissions--which suggested to me that my submission had not been reviewed before rejection. Still, that latter approach is preferable to no update at all. If journals have filled their volumes, they should send out an automatic notification to those whose submissions are still pending that those submissions will not be published. Widespread, uniform adoption of this approach would give authors a better idea of the landscape of what journals are still open, and inform decisions on where to expedite and whether further submissions are warranted.

Perhaps some of these suggestions (particularly the Scholastica pricing ones) are too ambitious. But if Scholastica and law reviews adopt some or all of these suggestions, it would make the publication process a bit easier for everyone. Problems remain, but at least they'd be a little less terrible.

Forthcoming Article on Distracted Walking

Since 2017, I have been fascinated by laws prohibiting "distracted walking," which is most typically defined as walking across the street while using a phone or electronic device. I've blogged about ordinances and proposed laws banning this practice repeatedly, starting with Honolulu's ban in 2017 and other states' and cities' ordinances and proposed legislation here, here, and here.

Those readers interested in a longer treatment of the subject should check out my forthcoming article, "Distracted Walking," forthcoming in the Penn State Law Review. You can find the current draft here. Here's the abstract:

Throughout the United States and across the world, cities are enacting bans on “distracted walking.” These bans target cell phone users who cross the street while using a telephone. Doing so in certain cities may result in a fine, community service, or even jail. Drawing inspiration from municipalities, lawmakers in several states have proposed similar statewide legislation. Pushback against these measures is rare—as many people have either directly, or indirectly, experienced the slow and oblivious behavior of “smartphone zombies.”

This Article surveys these laws and demonstrates that the science is, at best, mixed on whether device usage results in distraction significant enough to put pedestrians at risk. Studies of pedestrian deaths and injuries suggest that pedestrian distraction plays a minimal role in pedestrian injuries. And those who are most at risk of serious death or injury—elderly pedestrians—are barely mentioned in debates over distracted walking bans. This Article argues that these distracted walking prohibitions are not only poor traffic policy, but also exemplify a trend of blaming pedestrians for deaths and injuries caused by drivers. What’s more, by criminalizing common behavior, these bans create a further opportunity for selective enforcement by the police. Those most likely to suffer the penalties from distracted walking prohibitions are racial minorities and others living in areas deemed “high crime.” Distracted walking bans therefore contribute to selective enforcement of criminal law and burden the most disadvantaged members of society with additional fines and penalties.

Distracted walking bans have never been addressed in academic legal scholarship. They are barely examined or criticized when they are proposed—instead attracting widespread media attention for their quirkiness. But odd little crimes like these can have significant negative impacts on people’s lives, fail to help those who they are meant to aid, and implicate wider systemic injustices in the legal system. It is therefore worthwhile to examine these overlooked laws more closely, consider less burdensome and more effective alternatives, and realize that perhaps many other similar, neglected infractions are deserving of similar critique and attention.

Comments and feedback are welcome! The article is on a pretty fast schedule to publication, though, so if any feedback is to be incorporated, you'd better let me know soon.

The Sport of Attacking Law Review Editors

Earlier this week, Gail Heriot at the Volokh Conspiracy wrote a post criticizing the editors of the Emory Law Journal for refusing to publish an invited article after the author, Larry Alexander, refused to make substantial edits to the piece. Initially, Heriot did not include a copy of the article in her post--it was unclear if she did not have access to it or if she simply declined to do so. Instead, Heriot provided a paraphrased version of portions of the article and some heavily edited quotes from correspondence sent by the Editor-In-Chief to Alexander. Heriot called out the Editor-In-Chief by name--a classy move that was repeated by others (here and here, for example) who jumped on the bandwagon to criticize the decision. 

Here's how Heriot portrayed the Editor-In-Chief's reason for rejecting the article absent substantial revisions:

[The Editor-In-Chief] wrote that the ELJ Executive Board had "unanimously stated they do not feel comfortable publishing this piece as written." "We take issue with your conversation on systemic racism, finding your words hurtful and unnecessarily divisive." "Additionally," she wrote, "there are various instances of insensitive language use throughout the essay (e.g. widespread use of the objectifying term 'blacks' and 'the blacks' . . .) . . . ."

And here is Heriot's dissection of this reasoning:

(If the term "black" in reference to African Americans is "objectifying," a lot more than just Larry's essay will need to be canceled. As for "the blacks," I have been told that some consider this to be a rude way to refer collectively to the members of a race. But, even assuming that it would be rude, Larry wasn't using the term that way. He was using it to refer to the particular blacks in one of his hypotheticals. The "the" was intended to make that clear.

In addition to the other bloggers noted above, other scholars leaped to Alexander's defense. Keith Whittington called out the Emory Law Journal's "terrible behavior." Andy Grewal admitted that he hadn't read Alexander's essay, but decided that the incident was enough to stoke fears over the specter of ideological tests for journal content. 

Several hours after Heriot's initial post, Eugene Volokh added his own note at the top of her post with a link to Alexander's article. Here it is--if you dare.

At first, the article appears salvageable--it certainly takes a conservative view towards disparate impact theory and includes legion instances of the "blacks" language that Heriot noted in her initial characterization. But then we get to Part III in which Alexander veers off into an opinionated diatribe on why systemic racism does not exist and is not a problem. Some selections:

One hears a lot these days about so-called “systemic racism.” That term is usually not defined, nor are the “systems” that it refers to identified. 

One such “system” is that of apprehending, trying, and punishing those who murder, rape, rob, burglarize, and batter. It is difficult to see how that “system” is in any way “racist.” One may, of course, object to particular criminal laws, including some that have a disproportionate impact on blacks.30 But that would be a retail objection, not a wholesale objection to the “system” of criminal justice.

[Footnote 30]: A number of criminal laws, including, for example, the various laws against acts of violence, have a disproportionate impact on blacks. But that is because blacks violate those laws disproportionately.

. . . 

There are many causes for why races, however defined, are not proportionately represented in all domains. Asians, for example, are “overrepresented” in science, medicine, and technology. This may be due to native intelligence, cultural preferences, educational diligence, or some combination of factors. The same things may explain the disproportionate number of Jews in the professions, or the disproportionate number of blacks in professional sports. There is nothing racist in the selection processes in any of these fields of endeavor.  [emphasis added]

. . . 

Had there been no slavery, the ancestors of today’s U.S. blacks would have remained in Africa, most often as the slaves of other African tribes. And even more basically, in the absence of slavery, today’s individual blacks would not exist. That is, although blacks might exist in the U.S., the ones who actually exist here would not exist at all. For each of us is the product of a particular sperm and egg. Change the circumstances of conception ever so slightly, and a different individual is created. And slavery caused more than slight changes in the circumstances of conception that would have existed in its absence. Each of us in reality owes our very existence to past horrendous events, and that is as true of today’s blacks as it is of the rest of us. So, none today can say, but for slavery, I would have been better off. People might be better off today had there been no slavery, but none of us, blacks included, would be.

. . . 

The real impediment to the advancement of poor blacks – and everyone knows this, regardless of whether they admit it – is the cultural factors that have produced family disintegration, which in turn portends poor educational achievement, crime and poverty. And this problem will only be worsened by reparations, which sends the message that the predicament of poor blacks is others’ fault, that blacks are victims, and that they have no control over their fate.

Once a link to the article was posted, commentators began to speak out in favor of the Emory Law Journal's decision, noting that it exercised reasonable editorial judgment in rejecting an unsupported and needlessly offensive article. Many of Alexander's initial defenders have not reacted to criticism of the article itself, likely out of the hope that by staying silent their defense will be forgotten. Still, some persist, including Robby Soave at Reason who neglects to cite to or attempt to defend Alexander's article, and this incredible post by William Jacobsen (yet another law professor!) who claims that Alexander's article is "not incendiary" and that "[i]t was hard to find the “controversial” portions to excerpt." He then goes on to include lengthy excerpts from the article, none of which include the excerpts quoted above.

Despite Jacobsen's laughably selective excerpting of the article, his post includes some helpful additional information, including what appears to be an unaltered communication from the Editor-In-Chief of the Emory Law Journal to Alexander regarding their concerns with his piece. Here it is:

Hi Professor Alexander,

Thank you for reading the memorandum and considering our edits. I shared the piece with my Executive Board, and they unanimously stated they do not feel comfortable publishing this piece as written. We think there are fair points of intellectual disagreement that would not necessarily warrant the extreme action of withdrawing our publication offer. However, we believe this piece would need to be greatly revised to be published in our journal.

We take issue with your conversation on systemic racism, finding your words hurtful and unnecessarily divisive. Additionally, there are various instances of insensitive language use throughout the essay (e.g., widespread use of the objectifying term “blacks” and “the blacks” (pages 2, 3, 6, 8, etc.); the discussions on criminality and heredity (pages 11 and 14), the uncited statement that thankfully racism is not an issue today (page 18)). And, crucially, the discussion on racism is not strongly connected to your commentary on Professor Perry’s work, which is the focus of the Issue and the purpose behind the publication opportunity offered.

Can you please modify the piece, removing Part III and focusing on building Parts I & II to discuss the merits of Professor Perry’s work, by Sunday, December 19? We would welcome a manuscript revised along the lines we have suggested, but, absent those revisions, ELJ will not publish this contribution to the festschrift.

Recall that Part III, excerpted above, includes the most flagrant instances of unsupported, incendiary commentary. Additionally, this full communication reveals that Heriot's quoted version at the top of this post was wildly misleading--emphasizing the portions of the communication that were most likely to stoke conservative outrage, and omitting many of the cited bases for demanding revisions.

Jacobsen also quotes Alexander's measured response:

I refuse to eliminate Part III or to modify my language. I cannot believe the censorious tone you are taking towards an invited symposium participant. You don’t have to agree with what I’ve written, but what I’ve written I stand behind.

For what it's worth, I will be copying Alexander's response and using it as a form reply to any partners who attempt to edit my briefs from now on.

The fallout from the Emory Law Journal's decision and the incomplete initial coverage of it continues. At this point, the bulk of the commentary appears to be on the side of the journal--affirming that the editors were within their rights to reject an invited article that turned out to be filled with unsupported nonsense after the author refused to revise away the nonsense. Had the article been published, these same commentators likely would have excoriated both Alexander and the law journal for writing and publishing such a piece.

This likely reaction, and the initial reaction of Alexander's defenders, are examples of the all too common practice of professors criticizing the student editors of law reviews for their editorial capabilities. Starting with Fred Rodell's 1936 article, "Goodbye to Law Reviews," law professors have developed a sub-genre of academic legal literature in which they do little more than criticize the legal publication process itself. Many of these professors are flippant or extreme in their criticism, describing student editors as "incompetents," noting editors' "ignorance, immaturity, [and] inexperience," claims that student editors are uninformed and characterizing the Harvard Law Review's efforts to "ensure adequate representation of minorities and women" as "the fall of the citadel," and others.

These examples are only some of those that have made it into published scholarship. On social media, many professors demonstrate an almost reflexive instinct to criticize the capability of student editors and to lament the state of legal scholarship. To some extent, this instinct is understandable. Decisions over hiring and tenure are largely based on the quantity and placement of professors' scholarship, and for that to be largely in the hands of student editor is a source of frustration for current and prospective professors. Still, when critiquing student editors, law professors often neglect to mention their responsibilities as educators of these students and fail to recognize that they are essentially attacking their own students when they attack journal editors. 

(As an aside, professors and fellows should not discount the significant, innate value in having their name associated with any academic institution when trying to publish legal scholarship. Practitioners like me who are not associated with any law school have the privilege of submitting pieces branded with the "Independent" label--a red flag that many editors likely equate with unserious scholarship. (For evidence and further discussion of this, see here.))

The initial reactions to the Emory Law Journal's decision reflect the eagerness of certain professors to attack their students, as well as the impossible standards to which student editors are held. Without reading the article, multiple professors summarily concluded that the journal had imposed an ideological test on Alexander's submission. After all these are students--why should they be expected to act professionally? Now that article itself has been revealed, it is apparent that the Emory Law Journal exercised good editorial judgment. None of the original critics have recognized this, though, as they have either chosen to double down or remain silent.

And one should not overlook the fact that multiple professors also called out the Editor-In-Chief by name. It is shameful and unprofessional for professors to gang up on a student, even though it should be clear to most that the student was in the right. Those who initially criticized the Emory Law Journal's correct decision not to publish such shoddy scholarship should acknowledge that the editors made the right call. Should they simply remain silent, they should be held to account for the contents of the article itself.

This incident with the Emory Law Journal is revealing. It reveals the candid views of scholars like Alexander and the shoddy arguments they are willing to make in support of their worldviews. It reveals the willingness of (often) conservative critics of legal scholarship to rush to conclusions of bias without seeing all of the relevant facts. And it is a dramatic instance of the all-too-common instinct of professors to bash law review editors. If this messy incident is to have any silver lining, perhaps it can serve as an opportunity for professors to reflect on their scholarly and public treatment of law review editors and to focus on productive reforms rather than bashing their students.