On his retirement from the Stanford Graduate School of Business, legendary organizational theorist Jim March addressed his faculty colleagues, reflecting on the varied motivations for human action, one of the enduring themes of his scholarship. March observed that the social sciences, particularly economics, portrayed human action as the result of a rational choice. March called this form of reasoning the “logic of consequence.” It is the domain of incentives and calculation.

But March cautioned his colleagues not to forget “a second grand tradition for understanding, motivating, and justifying action,” a tradition that views action as “based not on anticipations of consequences,” but as “attempts to fulfill obligations of personal and social identities and senses of self.” He called this the “logic of appropriateness.”

While these observations may seem incongruous, given the occasion and the audience, March assured his colleagues that they held “some mundane implications for those of us who claim to be educators.” We teach and write, March said, partly because those activities produce consequences that we value, but we also engage in those activities as an expression of our faith in the intrinsic value of ideas. We teach and write because we feel impelled to do these things, not for potential rewards, but because being a teacher or a scholar is who we are. March compared institutions of higher learning to temples:

A university is … a temple dedicated to knowledge and a human spirit of inquiry. It is a place where learning and scholarship are revered, not primarily for what they contribute to personal or social well being but for the vision of humanity that they symbolize, sustain, and pass on…. Higher education is a vision, not a calculation. It is a commitment, not a choice. Students are not customers; they are acolytes. Teaching is not a job; it is a sacrament. Research is not an investment; it is a testament.

Does this resonate with you? It does with me. For March, this attitude toward higher education has real-world implications:

The complications of confronting the ordinary realities of day-to-day life often confound such lofty sentiments, and I would not pretend that it is possible or desirable to ignore consequences altogether. But in order to sustain the temple of education, we probably need to rescue it from those deans, donors, faculty, and students who respond to incentives and calculate consequences and restore it to those who respond to senses of themselves and their callings, who support and pursue knowledge and learning because they represent a proper life, who read books not because they are relevant to their jobs but because they are not, who do research not in order to secure their reputations or improve the world but in order to honor scholarship, and who are committed to sustaining an institution of learning as an object of beauty and an affirmation of humanity.

I don't know the backstory here, whether March was reacting to a particular dean, but it reads like he has had some experiences with "deans, donors, faculty, and students who respond to incentives and calculate consequence." I count myself fortunate that my deans have been uniformly excellent on this front.

If you want to read March's entire speech, the published version of it is here.

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That gem comes from Ron Gilson at the Columbia conference. He was describing Chuck Whitehead, who had substantial practice experience prior to entering legal academe.

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A young legal scholar just sent me the following question via email: "I'd love to hear at some point how you organize data as your researching (how you take notes, etc?)  I'm having a hard time dealing with my mountains of articles and books."

This is my response: "This is a tough issue for me. I have never been great at organizing mountains of research because I tend to write papers 'backwards.' Maybe this is because I am left handed, but I usually start writing before have done the research. (True confessions.) This is the method Richard Epstein taught me while I was at Chicago. I sketch out my thoughts on a subject, then use the research to refine or develop those thoughts. It sounds terribly inefficient, but it prevents me from being overly influenced by what others have written. Anyway, using this method means that most of my notes are put right into the draft of the paper, which I edit mercilessly as I get closer to publication."

Hmm ... that does not seem at all responsive to the initial question. Any thoughts on note software or other methods?

UPDATE: I should add that backwards writing doesn't work on empirical pieces ... at least for me. But most of my work is not empirical. And it's not as if I am starting with a completely blank slate on any project, since I have read lots of cases and scholarship before I begin. As a result, the first draft is a sketch of an argument in its starkest form, and that sketch gets more nuanced through subsequent drafts. In some instances, the initial argument becomes implausible and the whole piece changes or is abandoned. That's one of the hazards of writing backwards.

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Mike McBride, guest blogging at orgtheory.net, uses the "cocktail party standard" to judge the value of social scientific work: "While reading the research, I envision myself at a party and visualize whether or not the crowd around me grows or shrinks as I attempt to mix wit and charm in describing the empirical patterns and theoretical explanations.  If the crowd grows, then the topic meets the cocktail party standard."

He asks, "How much of your own research meets the standard?"

Of my present projects, the obvious candidate for meeting this standard is my cheesemaker study. In fact, my wife and I are hosting a cheese party tonight with the cache of cheese that I collected during my most recent trip to Wisconsin. We invited five couples, and all of them are coming, including several who were forced to change theater tickets or other plans.

Yeah, I would say that meets the cocktail party standard.

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The Corporate Practice Commentator has concluded its annual survey of articles in corporate law ("Teachers in corporate and securities law were asked to select the best corporate and securities articles from a list of articles published and indexed in legal journals during 2007."). Here are the results:

Baker, Tom and Sean J. Griffith;The Missing Monitor in Corporate Governance: The Directors’ & Officers’ Liability Insurer. 95 Geo. L.J. 1795-1842 (2007).

Bebchuk, Lucian A.; The Myth of the Shareholder Franchise. 93 Va. L. Rev. 675-732 (2007).

Choi, Stephen J. and Robert B. Thompson; Securities Litigation and Its Lawyers: Changes During the First Decade After the PSLRA. 106 Colum. L. Rev. 1489-1533 (2006).

Coffee, John C., Jr; Reforming the Securities Class Action: An Essay on Deterrence and Its Implementation. 106 Colum. L. Rev. 1534-1586 (2006).

Cox, James D. and Randall S. Thomas; Does the Plaintiff Matter? An Empirical Analysis of Lead Plaintiffs in Securities Class Actions. 106 Colum. L. Rev. 1587-1640 (2006).

Eisenberg, Theodore and Geoffrey Miller; Ex Ante Choice of Law and Forum: An Empirical Analysis of Corporate Merger Agreements. 59 Vand. L. Rev. 1975-2013 (2006).

Gordon, Jeffrey N.; The Rise of Independent Directors in the United States, 1950-2005: Of Shareholder Value and Stock Market Prices. 59 Stan. L. Rev. 1465-1568 (2007).

Kahan, Marcel and Edward B. Rock; Hedge Funds in Corporate Governance and Corporate Control. 155 U. Pa. L. Rev. 1021-1093 (2007).

Langevoort, Donald C.; The Social Construction of Sarbanes-Oxley. 105 Mich. L. Rev. 1817-1855 (2007).

Roe, Mark J.; Legal Origins, Politics, and Modern Stock Markets. 120 Harv. L. Rev. 460-527 (2006).

Subramanian, Guhan; Post-Siliconix Freeze-outs: Theory and Evidence. 36 J. Legal Stud. 1-26 (2007).

Note that empirical work is big, but by no means exclusive, that there is only one peer-reivewed article on the list, and that, if I remember correctly, this list this year is a bit more top-ten oriented than it has been in years past.  Via.

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The editors of the Bluebook are at it again!  In anticipation of leaving their mark on the citation world in the next edition, the editors are asking for input.  Here is a survey you can fill out.  Ten participants will be chosen at random to receive a free copy of the Nineteenth Edition!  Email suggestions may also be sent to suggestions@legalbluebook.com.

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Do articles about the professorial profession get particularly downloaded?  Gordon and I speculated that the answer was yes, and Jeff Lipshaw has now done the research.   Click over to his posts for the details, but the long and the short of it is that you might want to consider your own contribution to the burgeoning literature of becoming, dressing, or submitting papers like a law professor.

Might, that is.  You still might get more mileage out of titling your work with curse words or getting it posted on Slashdot.  And, though Jeff disclaims rigorous empiricism, I wondered if Mark West's use of the LLSV methods to predict World Cup success was really professorial navel gazing.  Or is it an example of the effort to bring rigorous economic methods to bear on sport?  A taste:

"In the 49-country specification, Rule of Law and French origin are significant; the correlation suggests that good law, and especially French law, leads to good soccer."

Good stuff.  I got M. West another download.  Maybe you'd like to do so as well and help prove Jeff rightish - or is it wrongish?

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Orin Kerr reports on the generally increasing number of citations to the Volokh Conspiracy in Westlaw's JLR (that's its journals and law reviews) database.  The massive and cranky team of right-wingers had 69 such citations in 2006 and 43 so far in 2007-denominated journals, more of which will likely be added to the database.  How does the younger, more specialized, and dare I say kinder and gentler Glom stack up?

By my count, we've had 17 cites in 2007 and 20 cites in 2006.  Which is about exactly where the conspirators were during their first two years of existence (they had 14 in 2004 and 22 in 2005).  The Glom cites were to a wide variety of posts as well - the regular ones, the virtual workshops, and sometimes even to the comments left on posts.

Of course, if Orin used my methodology ((conglomerate /5 (blog weblog)) theconglomerate! theconglomerate.org! www.theconglomerate.org! in JLR), he might get himself a few, but not many, more hits.

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Well, my two week guest stint has come to an end.  First, I want to thank Gordon, Lisa, Christine, Vic, David, and Fred for having me on the Glom.  Second, I also want to express my gratitude to all the readers out there (especially those who leave comments J).  This was my first attempt at blogging, and it’s really been an honor and lot of fun. 

Hopefully, the posts of the past couple of weeks generate more conversations.  I hope others who may be interested in similar themes will get in touch with me and share their work.  Much of my scholarship deals with the connection between corporate and nonprofit issues.  For example my most recent article, Incorporation Choice, Uniformity, and the Reform of Nonprofit State Law, explores issues related to nonprofit incorporation.   

Here’s the abstract:

This Article explores the significance of private lawmaking initiatives in the reform process of nonprofit state law, with specific consideration to recent and on-going projects led by the American Bar Association, American Law Institute, and National Conference of Commissioners on Uniform State Laws. The paper documents and explains how various institutional dynamics, ingrained habits, and other factors unique to the tax-exempt sector, most notably the choices of nonprofit organizations regarding where to incorporate, effect the ways in which nonprofit law is developed. To that end, the Article presents empirical findings revealing that nonprofits are far less likely than for-profit corporations to opt for out-of-state incorporation. This, in turn, makes nonprofit entities less able than their for-profit counterparts to shape the legal regime governing their activities and thus heightens the influence of private lawmaking projects in the charitable sector.

I welcome comments and new ideas.  Once again, many thanks.

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Somewhat late to the party, I'll point our good readership to 02138's takedown of Harvard professors with predilections for research assistants.  (02138 is the glossy magazine on all things Harvard; it is slick and fun and showed up in the mail one day.)  It names the professors you expect to be named - you'll have to click through to see who - describes how they leverage student work into finished publications, and in the end comes out against the practice - although it is not clear whether 02138 is annoyed by professors passing the academic work of students off as their own, or celebrity professors ceasing to care much about academic work at all.  The piece ends with a paean to John Rawls and Michael Walzer, who wrote their big think books on their own.

I've never been as obsessed with this sort "plagiarism" as some, at least as it is practiced today.  It's a terribly underdefined gotcha claim, often made by untrustworthy axe-grinders or naive goody-goodies, and, as best as I can tell, designed to suppress speech.  Richard Posner thinks it is overblown.  And the market doesn't care: popular writers like Doris Kearns Goodwin and Stephen Ambrose still sell fine, and economists, the best paid of the social scientists, probably aren't transcribing all those million points of data, writing the computer program necessary to turn the data into something useable, and running the regressions themselves, at least not in every case.  Moreover, I'm a lawyer, and since Ted Olson doesn't draft his briefs, nor, I assume, Stephen Breyer his opinions, I don't know if I'm bothered about who wrote what sentence of which article.  From the 02138 piece: "The law school itself is particularly known for this practice, probably because lawyers are used to having paralegals and clerks who do significant research and writing."

I will say that the team production model of academia must, in the end, benefit the haves over the have-nots.  Every school, I assume, has bright, capable, and responsible researchers.  But only a very few offer the combination of researchers who are gunning for academic positions themselves and the resources to hire teams of coders, supervisors, and experts along the way - an insight I attribute to Kate Litvak.  So please, please, please, don't accuse me of lifting it.

UPDATE: Here's Inside Higher Ed on a survey of economists and economics journal editors on plagiarism; the journal editors are less bothered by hypothetical failures to attribute than are rank and file economists.  HT: Marginal Revolution.

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Brian Leiter's law faculty citation analysis is meeting plenty of resistance, to which Brian ably responds. As usual, Paul Caron has all of the links, including a link to a paper that Paul and Bernie Black wrote about using SSRN to rank law schools. According to Paul and Bernie, "citation counts are a respectable proxy for article quality, and correlate reasonably well with other measures." But, of course, "citation counts have limitations," which Paul summarizes in some handy bullet points on his blog. In looking at Brian's rankings in the area of business law, the most obvious "limitation" -- if you want to think of it that way -- is the following:

Dynamism. Cumulative citation counts favor more senior faculty and emphasize older work that accumulates citations over time.

That's inherent in counting citations, which typically start to appear in large numbers only years after an article is published. Of course, this is why Steve Bainbridge can crow about being the only person under 50 among the top 20 most cited faculty in business law.

But this "limitation" is also the strength of citation counts. At least in business law, Brian's rankings capture (mostly) scholars who have been productive for a long period of time. I see no one-hit wonders on the list. If you want a ranking of what's hot, try the SSRN rankings.

Finally, I was intrigued by Mary Dudziak's criticisms (here and here) of the rankings on the Legal History Blog. The gist of her criticisms is this: "The study is confined to the Westlaw JLR database which only includes legal publications." This objection intrigued me because it was one of the oft-voiced complaints about citation counts at Wisconsin, where many of the faculty produce interdisciplinary scholarship. Brian's response is both simple and persuasive: my rankings don't measure the effect of scholarship on disciplines outside of law. I would add something that Brian doesn't say (at least in this response): if you want to measure interdisciplinary impact, create your own rankings!

Last I heard, this suggestion was not lost on the folks in Wisconsin. Such a ranking would be a welcome addition to the rankings universe.

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Jack Chin surveys the number of published articles with footnotes explaining "need cite."  Seems kinda embarrassing, I know.  But rather than bad editing, perhaps the hundred-odd articles might be better thought of as humble paeans to the necessarily incomplete nature of published scholarship.  Do we not all, at some point, need a cite?  Which I'm sure will make the former editors of the Northwestern and Virginia law reviews (go ahead! run your own searches!) feel a lot better.

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Paul Caron has all the relevant links:

I am delighted that the papers from our symposium on Bloggership:  How Blogs Are Transforming Legal Scholarship, held on April 28, 2006 at Harvard Law School, have finally been published in 84 Wash. U. L. Rev. 1025-1261 (2006).  (It is, of course, ironic that a symposium on how blogs are transforming legal scholarship is finally published over 18 months after the event and after the papers were first posted online.)

Among the papers is a very short essay by me entitled, Bit By Bit: A Case Study of Bloggership, 84 Wash. U. L. Rev. 1135 (2006) and one by Christine (with Tung Yin of Iowa and The Yin Blog) entitled, Blogging While Untenured and Other Extreme Sports, 84 Wash. U. L. Rev. 1235 (2006). 

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Richard Posner pines for the good old days: "Law professors used to identify primarily with the legal profession and secondarily with the university. The sequence has been reversed."

In this short tribute to Bernie Meltzer, Posner praises the careful doctrinalist:

The messy work product of the judges and legislators requires a good deal of tidying up, of synthesis, analysis, restatement, and critique. These are intellectually demanding tasks, requiring vast knowledge and the ability (not only brains and knowledge and judgment, but also Sitzfleisch) to organize dispersed, fragmentary, prolix, and rebarbative materials. These are tasks that lack the theoretical breadth or ambition of scholarship in more typically academic fields. Yet they are of inestimable importance to the legal system and of greater social value than much esoteric interdisciplinary legal scholarship.

If you hadn't noticed, Posner is a contrarian.

Via Orin.

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My remarks on the Nance-Steinberg study are here.

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Bill Henderson at ELS Blog is hosting a forum on law journal submissions and a recent paper that has gotten a lot of blogospheric attention:  The Law Review Article Selection Process:  Results From a National Study by Jason Nance and Dylan Steinberg, two recent Articles Editors at the U. of Pennsylvania Law Review.  Bill asked me to jump in the forum tomorrow (after the experts chime in on methodology, etc.) with some inexpert but hopefully provocative comments.  So check it out today and come back tomorrow!

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Larry Solum uses the announcement of the Journal of Legal Analysis as a springboard for discussing peer-reviewed journals in law. It is a great post and well worth reading. I was particularly interested in the fact that Larry places the onus on existing institutions to develop a critical mass of "generalist peer-reviewed publications." Two questions for Larry (or anyone else who cares to respond):

1. Why do we need "generalist peer-reviewed publications"? General law reviews are dinosaurs, and replicating that publication model in the peer-reviewed world doesn't make sense. Running a generalist peer-reviewed publication would require a much larger collection of editors and reviewers than a specialty peer-reviewed publication, without any obvious offsetting gains. Disciplinary law journals -- such as Legal Theory, Law & Philosophy, Journal of Empirical Legal Studies, Journal of Law & Economics, American Journal of Legal History -- have thrived, and I suspect that their success rests in (large?) part on the fact that they have a coherent approach that makes administration manageable.

As advanced disciplinary training and the desire for credibility in other disciplines increases among law professors, I expect the demand for peer-reviewed publications to increase. And I see no reason that these publications must be organized around non-legal disciplines. They could be organized doctrinally (like most existing specialty law reviews) or by real-world phenomena (e.g., law and entrepreneurship). But I see no rationale for a critical mass of generalist peer-reviewed publications.

2. Why do we need to rely on existing institutions for the creation of peer-reviewed journals? Larry has a straightforward answer to this question: collective action problems. Larry observes that such problems generally are overcome by professional associations, and the most striking feature of legal scholarship is the absence of candidate institutions:

In any other discipline, one might look to the professional association of scholars.  But there is no professional association for legal scholars!!!!!  Five exclamation points really are not sufficient when noting this dismal fact.  Let me try again: there is no professional association for legal scholars!!!!!  What about the AALS?, you might ask.  Well, the AALS is not the "Association of American Legal Scholars," on the model of the American Philosophical Association or the American Political Science Association.  The AALS is the American Association of Law Schools--it is the trade group for law schools and not the scholarly association for scholars who study the law.  So, the AALS publishes the Journal of Legal Education--a journal about legal pedagogy!!!!!  Don't expect the AALS to address what is obviously the most significant institutional problem with the legal academy in a serious way.

Perhaps our problem is the absence of professional associations? Anyway, given the absence of professional associations, Larry turns to law schools:

Nonetheless, there is surely some hope that Harvard's initiative will get the ball rolling.  Why not Yale, Stanford, Chicago, NYU, and Columbia, next?  And then Penn, Texas, Michigan, and Berkley?  (Obviously, the order here is totally arbitrary.  For all I know Michigan is the most likely "second mover.")  It might happen.  It could happen.  Stranger things have happened!

This makes sense if you are pursuing a critical mass of generalist peer-reviewed publications, but if you believe, as I do, that specialty peer-reviewed publications are the winning horse, then a group of legal scholars who have an interest in a particular field would suffice. See, e.g., the handful of law journals at bepress.

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Legal academics love to talk about law reviews. We trade stories, we share conventional wisdom, and, of course, we write law review articles about them. Mostly these exchanges are based on contradictory anecdotes (often from our own experiences as law review editors) and disputed folk wisdom. Jason Nance and Dylan Steinberg do not purport to answer all of our questions, but with their new paper -- based on survey results of law review editors -- they "hope that the introduction of significant empirical data into the debate can refocus the conversation about how best to structure the changing world of legal scholarship."

Their focus is article selection, and they begin with a bill of particulars drawn from the extensive literature on law reviews:

• "Student editors, much of whose time is spent enforcing the rules of the Bluebook, are overly influenced by the number and complexity of an author's footnotes."
• Quoting James Lindgren: "law review editors respond positively to the padding that weights down most law review articles, accepting long articles more readily than short articles."
• Quoting Carl Tobias: "Articles Editors' attentions are too likely to be swayed by 'hot, trendy or cute topics.'"
• Citing Richard Posner: "although law students are trained in doctrinal analysis and are likely competent to select and edit articles that engage in it, the current trend toward interdisciplinary and theoretical articles leaves law reviews ill-equipped to perform their appointed tasks."
• "It appears to be generally assumed that, to a significant degree, Articles Editors use an author’s credentials as a proxy for the quality of her scholarship."

To test the selection process, the authors sent a survey instrument to approximately 400 law reviews. They asked Articles Editors "to consider the influence of 57 possible factors that they might consider during the process of deciding whether to make an offer of publication." The authors received responses from 191 editors at 164 journals. The top ten positive influences on selection are predictable:

1. The author is highly influential in her respective field.
2. The article fills a gap in the literature.
3. The topic would interest the general legal public.
4. The author has published frequently in highly ranked law reviews.
5. The author is employed at a highly ranked law school.
6. The article provides enough background explanation so that one not familiar with the particular field can understand the relevant issues.
7. The topic has been discussed in the news in the past year.
8. The author has a large number of previous publications.
9. Articles on similar topics have not been published in your journal recently.
10. The author has practice experience related to the manuscript submitted.

Notice how many of the top factors are attempts to certify the quality of the manuscript by means other than actually reviewing the manuscript (1, 4, 5, 8, 10). "Quality" in this world is measured by the attention an article brings to the journal, and Nance and Steinberg insightfully observe that "all of the top five positive factors are concerned, to a greater or lesser degree, with publishing articles that are likely to be read and cited frequently."

The factors included in the survey were influenced by a "panel of experts" comprised of current and former Articles Editors for the University of Pennsylvania Law Review and several faculty members at the University of Pennsylvania Law School. I find it striking that Nance and Steinberg did not include "quality of analysis," "quality of writing," "thoroughness of research," or similar factors among the options. Perhaps these factors would have a strong positive influence on all law review editors. Or, at least, all law review editors would rate the factors that way.

Finally, given my practice of not Bluebooking submissions, I was chagrined to see the following among the factors generating the highest negatives:

• The citations do not conform to your journal's citation format.
• Parentheticals are generally missing from the footnotes.
• The article contains several missing footnotes.
• Many citations do not include specific page numbers of the sources the author cites (pincites or jumpcites).
• The article contains numerous typographical and grammatical errors.

Nance and Steinberg offer this interpretation:

It is clear that, while they are selecting articles for the quality of their scholarship, Articles Editors also have an eye on the difficulty of preparing an article for publication. Six of the ten most important negative factors are directly related to the expected difficulty of the editing process. It is interesting, however, that grammatical and typographical errors, undoubtedly the easiest errors to address during editing, have the strongest negative impact on an article’s chances for selection. This probably represents an underlying concern that a poorly proofread article may have been hastily put together and may not represent excellent research or scholarship.

This article has a lot more fodder for discussion, and it's fun reading for those of us who play the law review game.

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Einer Elhauge fired the opening salvo on doctrinalism in a guest post at Volokh Conspiracy:

The one odd exception is Constitutional Law, where doctrinalism still appears to be alive and kicking. I suppose the reason for its exceptional status is that we have nine old persons on the Supreme Court who seem persuaded by doctrinal arguments and have immense power to impose results on the rest of us through constitutional decisions, however poor their underlying policy analysis.

But for the rest of us, the seriousness with which many constitutional scholars still take the task of parsing the precise language of Supreme Court cases that were largely written by law clerks is fairly astonishing and more than a little quaint. Thus, we have the oddity that the marquee legal subject, constitutional law, is also the least intellectually respected among law professors because it is the most doctrinal. 

This drew responses from Larry Tribe and Jack Balkin at Balkinization. Balkin's post especially is worth reading. He turns Elhauge upside down:

So the really interesting question is not whether "narrow doctrinalism" is dead. It is whether you can get a great law teaching job these days professing no interest whatsoever in doctrinal elaboration, doctrinal reform, doctrinal justification or doctrinal history. Even at Yale, which has long had a reputation for not caring much about law at all, this simply isn't the case.

In the end, the main point of conflict here is over the definition of "doctrinalism." Tribe, Balkin, and Orin Kerr argue that Elhauge's definition of "doctrinalism" is so narrow that it excludes most legal scholarship.

"Yes, that was my point – it is dead," replies Elhauge.

But later, in the comments to his reply, Elhauge observes, "[Doctrinalism] is still quite present today, including in many top law reviews, which is part of what sends a confusing signal. It is just disfavored when appointments are made at top law schools nowadays." (It appears that Elhauge is getting a lesson in the perils of blogging. Writing posts and comments seems so easy ...)

In the end, Elhauge offers a more modest claim:

Rather than getting hung up in definitions of doctrinalism, perhaps it is clearer to simply say that today work has to be seriously interdisciplinary, and that the degree of seriousness required has been increasing.

Well, now. That wasn't so controversial after all, was it? Indeed, the point is so obvious that it hardly seems worth the trouble of blogging.

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I just finished writing my exam for this semester. Writing a good exam takes time, but it is time well spent. The alternative involves working out problems during grading, and that is no fun.

Recalling my law school experience, my exams most closely resemble Frank Easterbrook's. Judge Easterbrook told our antitrust class that he wasn't interested in a discussion of all of the wrong ways to approach the facts. He wanted us to solve the problem. Fully but concisely.

My ideal law school exam presents the "next case." The questions are focused. No rambling, multi-page travelogues. But the facts are challenging. Very challenging. When I achieve the ideal, the best answers are succinct, but full of little nuggets of insight. I generally despise grading, but I love reading exam answers like that. In a class of 70 students, I will find two or three.

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We do a lot of hand-wringing about student-edited law reviews in the legal academy, so I thought Robert Higg's perspective on peer-reviewed journals, while not entirely novel, was worth quoting because he makes his points with flair:

Peer review, on which lay people place great weight, varies from important, where the editors and the referees are competent and responsible, to a complete farce, where they are not. As a rule, not surprisingly, the process operates somewhere in the middle, being more than a joke but less than the nearly flawless system of Olympian scrutiny that outsiders imagine it to be. Any journal editor who desires, for whatever reason, to knock down a submission can easily do so by choosing referees he knows full well will knock it down; likewise, he can easily obtain favorable referee reports. As I have always counseled young people whose work was rejected, seemingly on improper or insufficient grounds, the system is a crap shoot. Personal vendettas, ideological conflicts, professional jealousies, methodological disagreements, sheer self-promotion and a great deal of plain incompetence and irresponsibility are no strangers to the scientific world; indeed, that world is rife with these all-too-human attributes. In no event can peer review ensure that research is correct in its procedures or its conclusions. The history of every science is a chronicle of one mistake after another. In some sciences these mistakes are largely weeded out in the course of time; in others they persist for extended periods; and in some sciences, such as economics, actual scientific retrogression may continue for generations under the misguided belief that it is really progress.
...
Researchers who employ unorthodox methods or theoretical frameworks have great difficulty under modern conditions in getting their findings published in the "best" journals or, at times, in any scientific journal. Scientific innovators or creative eccentrics always strike the great mass of practitioners as nut cases―until it becomes impossible to deny their findings, a time that often comes only after one generation's professional ring-masters have died off. Science is an odd undertaking: everybody strives to make the next breakthrough, yet when someone does, he is often greeted as if he were carrying the ebola virus. Too many people have too much invested in the reigning ideas; for those people an acknowledgment of their own idea's bankruptcy is tantamount to an admission that they have wasted their lives. Often, perhaps to avoid cognitive dissonance, they never admit that their ideas were wrong. Most important, as a rule, in science as elsewhere, to get along, you must go along.

Commenting on this, Peter Klein speculates about a better world:

The challenge is to design an institution that minimizes both Type I error and Type II error, taking into account the costs of each (presumably the costs of the former — missing an important breakthrough — are higher than the costs of the latter, which are largely wasted trees, electrons, and time, though the lower overall signal-to-noise ratio increases the chance that a published breakthrough will be overlooked).

No one in her right mind would design the law review system from scratch, but if you are worried only about error costs, it doesn't fare badly in comparison to peer review. Law reviews address the potential for Type I errors by allowing for placement of almost everything somewhere. Usually quite fast, too. The absence of standards and the availability of multiple submissions are effective lubricants.

The notion of a "Type II errors" in a world of universal placement makes sense only if the source of the placement matters. As I have noted here, "the problem with the notion that placement is a proxy for quality is that law reviews don't have standards for publication that might distinguish articles in one journal from articles in another. Nevertheless, most of us tend to make some quality judgments based on the placement of an article."

Proceeding from that point, I think most legal academics would agree that Type II errors are numerous. And for the sake of argument, I am willing to concede that Type II errors are more numerous than in peer-reviewed journals. But, as Peter notes, the costs associated with Type II errors may be low. Noise? Yes, lots of it. But most of us do not rely heavily on the placement signal anyway, preferring to sort directly using electronic search mechanisms. So I am positing that the costs associated with Type II errors are fairly small.

So there you have it. Very few Type I errors and a large number of inexpensive Type II errors. Could be worse.

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Inspired by Virginia Postrel, Tyler Cowen is wondering about the functions of book reviews. He concludes:

I use book reviews as I would use ads for books and blurbs for books. I just want the bottom line.  I would be happier if newspapers published many more one-paragraph book reviews, but with very clear and definite evaluations.  Entertainment Weekly does just this, although I find their taste in books unreliable.  Nonetheless I am not alone in my preference, and I believe that few people read long book reviews.

Many law reviews publish occasional book reviews. Michigan Law Review has an annual survey of books, which is most noted among law professors for being an easier way than general submission to get "Mich. L. Rev." on your cv. The book reviews that find a place in law reviews typically are short compared with the articles published in law reviews, but long by most other standards. And heavily footnoted.

I have mixed feelings about these book reviews. I don't read them as a matter of course, as some people read the NYT Book Review, and I can't remember ever finding a book through one of these book reviews. (Increasingly, I find new books by reading blog reviews.) I occasionally read reviews -- when they relate to my research -- but I would have read those works had they been published as a general article, too.

I have never written a book review for law review publication, but I have been tempted from time to time, simply because a book provoked some fruitful reflections. In the end, however, I usually incorporate those reflections in an article or content myself with a blog post.

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AALS SECTION ON BUSINESS ASSOCIATIONS
Call for Papers
JANUARY 2008 ANNUAL MEETING

The AALS Section on Business Associations will meet during the AALS Annual Meeting in New York City, from 2:00 pm – 5:00 pm on Thursday, January 3, 2008.

The topic for this year’s session is "Corporate Law in Global Markets." The globalization of markets for capital, products, and managers has cast a bright spotlight on domestic legal regimes, including U.S. corporate governance laws. In the first half of the session, a roundtable discussion among scholars from the U.S. and Europe will explore the international competition of corporate governance laws.

The second half of the session will feature paper presentations based on submissions made in response to this Call for Papers. While possible topics include regulatory competition, the Executive Committee of the Section encourages submissions on other aspects of comparative corporate governance; the implications of reincorporation of U.S. corporations; the regulation of multinational corporations; inter-jurisdictional litigation and enforcement; the role of stock exchanges; and the like.

If you are interested in presenting a paper, please submit a summary of no more than three double-spaced pages (e-mail preferred) before Friday, August 17, 2007. In addition to the summary, you may also submit a complete draft of your paper. Direct your submission to:

Professor D. Gordon Smith
dgsmith@gmail.com

Prior to May 31, 2007
University of Wisconsin Law School
975 Bascom Mall
Madison, WI 53706

After May 31, 2007
J. Reuben Clark Law School
Brigham Young University
P.O. Box 28000
Provo, UT  84602

Papers will be selected after review by members of the Executive Committee of the Section on Business Associations, including:

Richard Booth (Maryland/Villanova)
William Bratton (Georgetown)
Eric Chiappinelli (Seattle)
John Coates (Harvard)
Deborah DeMott (Duke, past Chair)
Therese Maynard (Loyola)
Marlene O’Connor (Stetson)
Frank Partnoy (San Diego, Chair-elect)
Larry Ribstein (Illinois)
David Skeel (Penn)
Gordon Smith (Wisconsin/BYU, Chair)
Guhan Subramanian (Harvard)
Cynthia Williams (Illinois)

Authors of accepted papers will be notified by Friday, September 28, 2007. Please feel to free pass this Call for Papers along to any colleagues who may be interested.

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Suja Thomas (Cincinnati) now has a series of papers defending the role of the jury.  (See "Why Summary Judgment is Unconstitutional.")  Her latest, "The PSLRA's Seventh Amendment Problem," discusses whether the heightened pleading requirements effectively harm the right to a jury.  This paper should be interesting to those of us who may be familiar with the PSLRA, but not with that whole trial or constitution thingy.

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Years ago, when I was practicing at Houston, Vinson & Elkins had the practice of sending around a list of associates and their billable hours, in rank order.  These sheets were called the "hero sheets," and at the less-sexy, less-hip Baker Botts, we were just glad we didn't have them.  I have no idea if V&E still does this or if any other firms followed suit, but it just seemed unsavory to me, although sometimes I myself wanted to scream in the halls, "Has anyone noticed how many hours I billed this month?"  (As an aside, I found other ways to signal my assiduousness.  Others kept clothes in their office to change into should the wind up in the office for more than 24 hours.  Not me.  I wanted people to notice!)

Now, Matt Bodie at Prawfsblawg wants to compile a list of articles that were accepted during this spring submission season.  Although Matt acknowledges that SSRN and Bepress do a good job of disseminating information regarding new scholarship, Matt thinks that a round-up, similar to an entry-level hiring roundup or lateral hiring roundup, is a good idea.  Apparently, he already has had people emailing him information and will start posting next week.  My question is whether this round-up has substantive, informational value or is it merely a hero sheet?

Obviously, lists of billable hours give no new substantive value to the reader beyond a method to rank associates against each other.  Lists of new scholarship, with links to papers, do.  I keep up on goings on in my field (and among my friends) by reading through the SSRN emails that I get with listings of new papers.  Matt's list could also provide this value to those who don't subscribe to SSRN.  Matt's list will also tell you where the paper will ultimately be published (which SSRN listings also do if known at the time), and some may think this information adds value.  Depending on how arbitrary you believe the submission process to be, you may think that the publication information gives the reader some sort of certification value, so you can sort through the publications and allocate your scarce reading time more wisely.  However, Matt's list wants to communicate only certain kinds of certification value and substantive value.  Only articles that went into the submission process will be listed.  Not essays or book reviews, or even full-length articles solicited by a law journal in connection with a symposium.  So even if you had a ground-breaking article that was solicited by [name your prestigious law review], that article is not relevant to the list either for substantive or certification purposes.  So basically, it is sort of a hero sheet -- here are the winners of this season's submission lottery!

Before readers start suspecting sour grapes, I will disclose that I sent out The Undercivilization of Corporate Law this season and recently accepted a placement that makes me very happy indeed.  I know that my co-bloggers who submitted were even more successful!  However, readers may accuse me of another bias.  Perhaps there are scholars out there who are very proud of their placements, and rightfully so, and would like to sing the news from the rooftops.  I have a rooftop; it's called Conglomerate.  I can toot my own horn any time.  Why should I disdain others for doing the same thing by submitting to Matt's list?  I don't.  I'll probably go ahead and submit my info to Matt also, just to show that I still like Matt and that I understand the value to nonbloggers of being on the list.  I just want us to recognize that the list is our very own hero sheet.

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The Yale Law Journal has the Pocket Part, Harvard Law Review has The Forum, Michigan Law Review has First Impressions, Northwestern University Law Review has Colloquy, Texas Law Review has See Also, Virginia Law Review has In Brief, and University of Pennsylvania Law Review has PENNumbra. What is happening here?

When the Yale Law Journal introduced the Pocket Part, the editors described the site as "provid[ing] a forum for discussion and up-to-date additional information on articles." Nice idea. Not revolutionary, but nice. Harvard followed suit with The Forum, which consists of Responses (capital "R") to Articles (capital "A") published in the Harvard Law Review. Texas also recently embraced this model.

While HLR and Texas have remained true to that focused mission, the editors of the Yale Pocket Part have strayed, turning Pocket Part into an alternate publication outlet, with essays on a wide variety of issues unrelated to the content of the Yale Law Journal. For example, U.S. District Court Judge Lee Rosenthal (Hi, Lee!) wrote a freestanding series on electronic discovery (start here), and the Pocket Part sometimes has a series of essays on recent judicial decisions or a bit of navel gazing. Presently the site contains a Call for Papers on cyber bullying.

Other online journals also are combining responses to articles in the printed journal with freestanding content. Penn established PENNumbra to serve as a "link between legal academia and the 'blogosphere.'" The site features "brief scholarly responses to ... articles, and online debates on topics of current interest."

The notion that these online journals fill a gap between traditional law reviews and legal blogs is catching on. When the Virginia Law Review announced the creation of In Brief earlier this year, the press release stated:

Attempting to balance the speed with which a blog can disseminate information and the academic weight that a traditional article carries, [Virginia Law Review's Technology Development Editor Chris Yeung] says that In Brief is designed to publish "more polished ideas at a quicker speed." Moreover, [Jim Zucker, Virginia Law Review's Editor-in-Chief] admits that publications like Virginia Law Review "can't compete with blogs" while also maintaining the degree of quality for which the legal community values them. Rather, he contends that a more balanced approach is the wiser course.

Northwestern University Law Review took a slightly different path, touting Colloquy as the "first scholarly weblog to be operated by a major law review." According to the editors this "new format will allow scholars to publish their thoughts within days of an emerging legal development." As a blog, it is fairly low on content, featuring only a few posts per month. Some of the posts are freestanding essays, others are part of an exchange, and others are responses to articles in the law review. (My initial reaction is the that blog format works less well for this sort of thing than the other formats, which are organized more coherently by subject matter rather than by date.)

The Michigan Law Review seems to have gone further than any other journal in creating an entirely separate product. The website for the online journal states:

First Impressions, an online companion to the Review, features op-ed length articles by academics and practitioners in order to fill the gap between the blogosphere and the traditional law review article. This extension of our printed pages aims to provide a forum for quicker dissemination of the legal community's first impressions of recent changes in the law.

Thus far, the Michigan journal consists of a series of online symposia that are unrelated to the content of the printed journal.

Over the years, I have encountered many professors who have expressed the desire to produce short-form legal scholarship. An essay, perhaps, or even something more modest. Such scholarship could be inspired by a longer piece in a law review or by a recent judicial opinion, statute, or regulation. Traditional law reviews have not been very hospitable to such work. In my view, legal blogs have succeeded in part because the academy has a substantial number of people who are willing to produce short-form legal scholarship and the demand for such work is (relatively) large.

Enter the "online companions" to traditional law reviews. How do they add value? In my view, the primary value added by these new publications is not their timeliness or their supposed "polish," but that they (1) link thoughtful responses to long-form legal scholarship, and (2) act as a gathering place for a variety of pieces of short-form legal scholarship on the same topic (online symposia). In short, the law reviews have an organizational advantage over individual bloggers, who organize via cross-linking, which is often haphazard.

Where is all of this headed? Here is an interesting tidbit from the Virginia press release: "counterparts at the nations' other leading law reviews are almost uniformly planning the near-term launch of an online companion to their print journals."

So we should expect more offerings in online publishing from student-edited law reviews. Soon. I suspect that someone will create an index of online publications, further formalizing these outlets. While the new online journals will not put legal bloggers out of business, many more law professors will be able to satisfy the occasional impulse to produce short-form legal scholarship without turning to blogging. As a result, I expect the development of legal blogs to plateau. (Actually, that may be happening already.)

UPDATE: Christine pointed me to the Concurring Opinions Law Review Forum, which reminds me of another aspect of this issue. In announcing the project, Dan Solove observed, "A wide readership for a website depends upon having daily content. Law review forums produce content sporadically throughout the year at intervals that are not regular enough to attract a significant readership." Exactly right. While law reviews have an organizational advantage over individual bloggers, blogs have the advantage of creating communities of readers.

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Before I move from this office, I would like to transfer some of my reprints. After reading Scott Moss' lament about the quality of the AALS lists, I have decided on a different tack: seek a favor. Does anyone out there have a high-quality, up-to-date mailing list for corporations professors that you would be willing to share with me? I promise eternal gratitude.

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I finally submitted my essay to the American Criminal Law Review from the Georgetown Business Ethics Institute March 15, 2007 Conference "Corporate Criminality:  Legal, Ethical and Managerial Implications."  The essay, "Of Breaches of the Peace, Home Invasions and Securities Fraud," is now available on SSRN.  Here is the abstract:

In some quarters of academia, commentators have criticized the lengthy prison sentences meted out to corporate officers convicted of violating federal laws pertaining to white collar crimes. These sentences, made more harsh by amendments to the Federal Sentencing Guidelines pursuant to the Sarbanes-Oxley Act of 2002, are seen as disproportionate to the harms created by the acts and inconsistent with the punishments given for violent crimes under state law. For example, the former President of Enron, Inc., Jeffrey Skilling, was sentenced to over twenty-four years in federal prison, just over the minimum sentence calculated by the Guidelines, for violating securities laws; however, in his home state of Texas, to face a mimimum of twenty-four years in prison, a murderer would have to kill five individuals without provocation or passion. This disparity, although not unique in comparing state crimes to other federal crimes, such as drug possession and distribution, poses the question: Is Jeff Skilling worse than a serial killer? This Essay comes to the unsettling conclusion that the harsher punishments now available for corporate crime, particularly securities crime, are neither disproportionate or inconsistent with state law crimes after examining the values that society places on the interests protected by such punishments.

This Essay presumes that prohibitions and punishments of certain acts reflect the relative values that society places on an interest that is threatened by the targeted activity. For example, larceny historically was criminalized to protect the public peace from breaches arising from the wresting of possession of an object from another. In addition, enhanced penalties for robbery and burglary reflect society's interest not in property but in living free from fear of bodily injury, particular in the safety of one's own home or "castle." Today, however, society's greatest fear in most parts of the U.S. is not of random violence or home intrusion but of financial insecurity in the future. This Essay presents the argument that in our modern society, maintaining the integrity of the capital markets is the new “keeping of the peace” and that to today's modern worker, a retirement account is the “castle” that needs protection from invasion.

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When I saw the envelope from Vanderbilt Law School in my mailbox this morning, I assumed that the Vanderbilt Law Review was rejecting my article the old-fashioned way. Instead, I was surprised to receive a letter from my friend and co-author, Bob Thompson, informing me that my article The Exit Structure of Venture Capital was selected as one of the Best Corporate and Securities Articles of 2006. (Bob's letter tells me that the complete list is here, but it appears not to be posted, yet.)

Bob is one of my favorite people anywhere, and I know from my conversations with him that this survey an act of service on his part. But I never quite know what to make of the results. I have read some of the articles, and the ones I have read are good, but I have no idea whether they are the "best corporate and securities law" articles of the year.

This ranking reminds me of the reputational rankings in U.S. News. Last week, I criticized law school deans for "claim[ing] to be oppressed by the rankings and simultaneously celebrat[ing] them." While I have never claimed that Bob's survey was oppressive, I did once suggest that the results were "likely to be somewhat derivative of the law school rankings." So I will refrain from promoting this latest result too heavily, though I confess that I was pleased to get the letter.

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In late 2005 I participated in an excellent conference at the University of Maryland entitled Twilight in the Zone of Insolvency: Fiduciary Duty and Creditors of Troubled Companies. The proceedings of the conference have been transcribed and will be published in the Journal of Business & Technology Law, which is a nice addition to the roster of law journals.

In reviewing the transcript of my remarks, I found a transcription error that made me laugh out loud. What I said at the conference was this: "I am part of an interdisciplinary group called INSITE, which is the Initiative for Studies in Technology Entrepreneurship."

The transcription read: "I am part of an interdisciplinary group called Insight, which is the initiative for studying some technology on a cruise ship."

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Omar explains.

Kieran Healy checks in with a link to this interesting working paper.

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This afternoon I had a conversation with an aspiring lawprof about the relative merits of publishing in a certain specialty journal and various general law reviews. I seem to get these questions a lot, though I have no particular expertise. Then again, does anyone have a particular expertise in this? Sure, people can tell you all sorts of interesting facts about law review citations and rankings (see, e.g., here, here, and here), but if you are an aspiring academic, what you really want to know is whether your publication will catch the eye of a potential future employer/colleague.

The problem with the notion that placement is a proxy for quality is that law reviews don't have standards for publication that might distinguish articles in one journal from articles in another. Nevertheless, most of us tend to make some quality judgments based on the placement of an article. Why?

If you suspect that U.S. News must have something to do with it, you are probably right. Al Brophy has shown a high correlation between law school rankings and law review citations, and citation analysis is one method of ranking law reviews. As to the causal link between law school reputation and law review citations, Brophy writes, "as reputation increases, law reviews are able to have a greater choice of articles. And as citations increase, as faculty see articles cited more frequently, they may have increasing respect for the schools associated with them." (emphasis added)

There it is, bolded so you couldn't miss it. The answer to my question about why we make quality judgments based on the placement of an article is that highly ranked law reviews (i.e., law reviews at highly ranked law schools) have higher rejection rates. Or so we believe.

Quite apart from whether such a belief justifies the inference of quality, is it actually true that higher-ranked law reviews have higher rejection rates?

As far as I know, no one has gathered statistics on rejection rates. ExpressO ranks the Top 100 law reviews in terms of submissions through its service, but these rankings are somewhat skewed by the fact that several top law reviews do not accept ExpressO submissions. They also don't tell us how many articles were accepted at any of the law reviews.

Perhaps former law review editors can help shine some light on this question. If you have recent experience as a law review editor, please provide the following information in the comments: (1) the number of unsolicited submissions received by your law review during the editorial year, and (2) the number of offers made by your law review to authors of unsolicited submissions, and (3) the number of unsolicited submissions actually published. Obviously, this is informal, but I suspect that even a few responses would be quite enlightening.

UPDATE: This is one of those things that should go without saying, but just in case. The information that I requested won't be very helpful unless we know the name of the law review and the year to which the data applies. If you could provide that, too, I would be grateful.

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I am fond of listening to Recorded Books, but Mark Suchman blew my mind this morning by sending a recorded version of Contracts as Organizations. (You thought I had reached my limit plugging this piece, didn't you?) Here is the Introduction to the article, as performed by the computer voice at TextAloud.

I sure hope this sounds better to articles editors.

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Last week a friend sent me two sets of comments on Contracts as Organizations. My friend is an economist, and she has no truck with organizational theory. She concluded her second email with this sentence, "I am sorry to be negative about the last part of your article, but your article intellectually stimulated me a lot this evening and I am highly gr