Brian Leiter's Law School Reports

Rostron & Levit's guide to submitting to law reviews updated

Their message follows:

Dear Colleagues,

We  just updated our charts about law journal submissions, expedites, and rankings from different sources for the Spring 2020 submission season covering the 203 main journals of each law school. 

We have created hyperlinks for each law review to take you directly to the law review’s submissions page. Again the chart includes as much information as possible about what law reviews are not accepting submissions right now and what months they say they’ll resume accepting submissions. 

There has been some change in law reviews’ submission preferences:  Now 74 schools prefer or require Scholastica as the exclusive avenue for submissions (15 more say Scholastica or email), 42 law journals prefer direct emails, and 10 law reviews prefer or require submission through ExpressO (19 more say ExpressO or email), with 13 accepting articles submitted through either ExpressO or Scholastica, and 22 accepting through ExpressO, Scholastica, or email. Seven schools now have their own online web portals.  Four schools have an all-symposia format. (This adds up to more than 203, because several of the schools with an all-symposia format welcome symposia proposals.

The first chart contains information about each journal’s preferences about methods for submitting articles (e.g., e-mail, ExpressO, Scholastica, or regular mail), as well as special formatting requirements and how to request an expedited review.  The second chart contains rankings information from U.S. News and World Report  (overall, peer, lawyers and judges), as well as data from Washington & Lee’s law review website (citation count, impact factor, and combined ratings).

Information for Submitting Articles to Law Reviews and Journals:  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1019029 

We would welcome your forwarding of this link to anyone you think might be interested.   We appreciate any feedback you might have.

Happy writing!

All the best,

Allen and Nancy

Professor Allen Rostron

Associate Dean for Students and William R. Jacques Constitutional Law Scholar and Professor of Law

rostrona@umkc.edu

Professor Nancy Levit
Associate Dean for Faculty and Curators' Distinguished Professor and Edward D. Ellison Professor of Law

levitn@umkc.edu     

UMKC School of Law
500 E. 52nd St.

Does membership in the Federalist Society or American Constitutional Society undermine the appearance of judicial impartiality? (Michael Simkovic)

A draft judicial ethics advisory opinion would discourage judges and their clerks and staff attorneys from being members of either the conservative/libertarian Federalist Society or the liberal/progressive American Constitutional Society because of concerns that membership in such overtly ideological / political organizations could create an appearance of partisanship that could undermine perceptions of judicial impartiality.  The rules would permit speaking at or attending Fed. Soc. or ACS events.  The ABA Journal and Bloomberg covered the story.

The draft was intended for comment by members of the judiciary only, but was leaked to the conservative National Review, which opposes the draft advisory opinion.  The Federalist Society has four times as much money as ACS and is generally perceived to be more active and effective than the ACS.  Thus a rule banning membership in both organizations would likely hurt conservatives more than liberals.

The National Review accuses the American Bar Association, which does not have an explicitly ideological or political mission, of being a "liberal" organization and argues that if membership in Fed. Soc. is banned, then membership in the ABA should also be banned.  The ABA has previously responded to accusations of political partisanship by arguing that cherry picked examples of ostensible support for liberal positions overlook ABA activities that could be construed as conservative, such as ABA positions on corporate taxation.

Conservatives have previously claimed liberal bias by corporate owned media, elite universities, climate scientists, engineers, medical doctors, teachers, Youtube, Facebook and Google, the Pope, the Federal Reserve, country music, coffee shops, the military and the CIA.

Law professors are more religious than scientists, but it probably doesn’t matter much (Michael Simkovic)

At Taxprof blog, Paul Caron (Dean, Pepperdine) covers a study by James Lindgren (Northwestern) about the religious beliefs and practices of law professors.  Lindgren compares law professors to the overall U.S. population and finds that law professors are more likely to express doubts about the existence of God. 

This study is part of a line of research from Lindgren and others which compares law professors to the general population or the median member of congress on dimensions like religious or political views.  In my view, these comparison groups are uninformative and inappropriate for some of the uses to which they have been put.  For example, some argue for hiring preferences for faculty members with certain supposedly under-represented ideological views. 

Law professors should not be judged by their ideological beliefs, but by their academic rigor. Law professors should not be compared to the general U.S. population or members of congress, but rather to scientists. Like scientists, law professors are much more highly educated than the general population, have higher incomes,¹ and have opted into a career where they are expected to advance knowledge, often by relying on data collection and analysis based on scientific principles of causal inference.  Even non-empiricists are taught and teach that legal adjudication depends on application of legal rules and standards to facts and evidence, not on faith. (Brian Leiter notes that law professors are also more religious than philosophers).

Many law professors are also likely more familiar with other cultures where religion plays a smaller role than in the U.S., such as Western Europe and much of East Asia, because of conference and personal travel and because of interactions within the U.S. with international students and scholars.  For a high-income country, the U.S. is unusually devout, more closely resembling Cyprus or Poland than the UK or Japan.

Pew research finds that 41 percent of scientists do not believe in God or a Higher Power, and an additional 18 percent do not believe in God.  Thus 59 percent of scientists report that they do not believe in God.  By contrast according to Lindgren’s study, only 24 percent of law professors report that they do not believe in God.  Law professors are therefore approximately 2.5 times as religious as scientists. This is in spite of the fact that law professors are disproportionately trained in the North East of the United States, a region that is on average both more economically developed than much of the rest of the country¹--in the sense of having higher per-capita income and higher life expectancy--and also less religiously devout. 

But it is not clear that law professors' relatively high level of religiosity makes much of a difference.  Outside of some narrow subjects that are mostly confined to a few days of a Constitutional Law classes, most subjects taught in law school have very little to do with religious belief. For example, it is unclear how a religious conception of basis or capital gains or the business judgement rule would differ from a secular one in a way that would be pedagogically or legally materially relevant. Moreover, even when covering religiously sensitive topics, in my experience most law professors have the empathy and poise to fairly and respectfully describe views and perspectives other than their own.

The potential benefits of religion and spirituality (see footnote below) may suggest that universities--even non-religiously-affiliated universities--should make pastoral and counseling services and faith-based affinity groups readily available to students, faculty, and staff who might benefit from them, but do not suggest a reason to specifically favor religious faculty in appointments decisions.

¹Belief in God is inversely correlated with income and education, i.e., as income and education level increase, the percent of the population group that believes in God declines.  This does not necessarily mean that education or high incomes cause people to become less religious (although some studies find evidence of this, with others finding that church attendance increases with education and income), nor does it mean that religious beliefs are an impediment to academic or worldly success (although some studies find that religiosity or spirituality may reduce income while also helping to protect against or treat clinical depression).

Surprisingly large number of law professors believe in God and are religious compared to other highly educated academics

That isn't the takeaway emphasized by the Blog Emperor or the study's author, but it's surely what must leap out at any person knowledgeable about the academy.  For example, more than 50% of law professors generally believe in God or a "higher power" (21% are absolutely certain that God exists), while only 24% are atheists.   By contrast, 73% of academic philosophers are atheists (CORRECTED:  I linked to the wrong data first time around).  Similarly, 92% of the members of the National Academy of Sciences (NAS) are atheists.  Admittedly, NAS members are the most distinguished and accomplished scientists, so a fairer comparison would be something like religious belief among the most elite and distinguished legal academics.  Would that approach the 92% figure?  An interesting question!

Consumer Reports: Leaked White House plan to slow progress on fuel economy standards will hurt consumers' health and finances (Michael Simkovic)

From Consumer Reports:

"A Trump administration plan to lower automotive mileage targets for future model years that could be approved in a matter of weeks would result in hundreds of dollars in [annual] added costs for consumers, according to a new U.S. Senate analysis. . . .

 

The proposed regulation, called the Safe Affordable Fuel-Efficient Vehicles Rule, will determine not only how much consumers pay for cars and fuel in the future but also how much carbon dioxide will be emitted by personal vehicles. Transportation (air travel as well as autos and trucks) is now the largest source of greenhouse gas emissions in the U.S., outstripping factories and all other sources.

 

The intent of creating future fuel-efficiency targets is to reduce greenhouse gases, but consumers also stand to gain if vehicles are more efficient because they will spend less money to fill up their gas tanks.

 

The Trump administration has argued that the previous targets for model years 2021-26, put in place under President Barack Obama, are too difficult for the auto industry to meet and would ultimately lead to higher vehicle prices, which in turn would reduce car sales and keep consumers in older, less safe cars.

 

Shannon Baker-Branstetter, manager of cars and energy policy at Consumer Reports, says the evidence suggests that automakers have more than enough affordable technology to meet the Obama targets. Since 2017, when the current fuel-economy improvement program began, vehicles have become safer and more reliable, as well as more efficient, she says.

 

According to the CR analysis, Consumers, under the Trump administration plan, would spend an average of about $3,200 more per vehicle on fuel over the lifetime of their vehicles. Cumulatively, all American consumers would lose about $300 billion, according to the CR analysis. . . .

 

The administration plan to lower fuel-economy targets has been challenged by California and other states that want to fight climate change and reduce air pollution.

 

The auto industry has been split on the Trump administration’s approach. Companies such as General Motors and Toyota have backed the federal government in a lawsuit that would change the rules so that California and other states cannot have their own clean-air rules. Ford, Honda, and two other automakers haven’t joined that suit and instead negotiated a deal with California to produce more efficient vehicles." 

 

Jeff Plungis, Fuel Economy Rollback Plan Would Cost Consumers, Analysis Says, Consumer Reports, Jan. 23, 2020

An open letter regarding a controversial tenure decision at USC Law

The letter is here, and includes many prominent signatories (the letter is accepting more signatories as well).  The case concerns Shmuel Leshem, who was denied tenure in 2013; the controversy concerns the solicitation and use of confidential journal referee reports as part of the tenure process.  I would agree, for the reasons given in the letter, that that is not a proper use of such referee reports.  I do not know what role they played in the adverse tenure decision at USC, but the fact that they were even solicited and considered is surprising.

A preview of what Hein citation rankings might look like (courtesy of Ted Sichelman)

Recently, Professors Paul Heald (Illinois) and Ted Sichelman (San Diego) released law school faculty rankings that combined SSRN downloads and HeinOnline citations (here). (I'm skeptical about the value of SSRN rankings, as I've noted many times in the past:  e.g., here and here).  In their study, Heald and Sichelman included Hein-only rankings, combining both historical (all-time) and recent (2016) citations. In order to get a better estimate of recent scholarly impact, plus to get an initial view of what the US News citation rankings will look like, Professor Sichelman has kindly provided me rankings just based on Hein citations over a 5-year period (2012-2016).

Total scores were calculated based on 2 x mean + median (like the Sisk et al. methodology). Although U.S. News has not decided on its ultimate approach, it appears likely it will use a similar metric. Additionally, like US News plans to do, Professor Sichelman has included pre-tenure faculty. 

Some differences between Heald & Sichelman's data (which Professor Sichelman used to construct the rankings below) and US News are the following:   (1) Heald & Sichelman used spring 2016 faculty whereas US News will use fall 2019 faculty; (2) about two-thirds of the schools responded to Heald & Sichelman's requests for faculty name variants, whereas presumably a much higher fraction responded to US News's requests (those schools not responding effectively reduce their citation counts); and (3) Hein will use a slightly different citation identification methodology for the US News rankings than Heald & Sichelman's. All of these differences will lead to some shifts in the US News rankings from what appears below.

But given the high correlation (about 0.90) between Heald & Sichelman's Hein-only rankings and the Sisk et al. rankings (which do not include pre-tenure faculty and use Westlaw, which counts books, treatises, and non-law publications, unlike Hein), the rankings below should be roughly similar to the 2020 US News citation rankings. Of course, there are likely to be some notable shifts for a subset of schools.  I expect Irvine (#7 below, which has since lost both Chemerinsky and Fisk to Berkeley) will drop out of the top ten (but will probably remain in the top 15) while UC Berkeley (#15 below, which added Chemerinsky, as well as highly-cited Orin Kerr [Kerr was at George Washington for purposes of this study]) will move into the top ten.

1	Yale
2	Harvard
3	Chicago
4	NYU
5	Stanford
6	Columbia
7	UC Irvine
8	Penn
9	Vanderbilt
10	Duke
11	UCLA
12	Cornell
13	George Washington
14	Northwestern
15	UC Berkeley
16	Virginia
17	Georgetown
18	Minnesota
19	Michigan
20	Texas
21	UC Davis
22	Washington University, St. Louis
23	Boston University
24	Illinois
25	Fordham
26	St. Thomas (Minnesota)
27	Cardozo
28	George Mason
29	Florida State
30	Emory
31	William & Mary
32	University of Arizona
33	Wake Forest
34	Notre Dame
35	Maryland
36	Utah
37	Brooklyn
38	Colorado
39	Case Western
40	Iowa
41	Washington & Lee
42	San Diego
43	Ohio State
44	Indiana/Bloomington
45	Alabama
46	San Francisco
47	University of Florida
48	Southern California
49	North Carolina
50	University of Georgia

 

David versus Goliath: Law professor sues New York Times Company over misleading and allegedly defamatory headline (Michael Simkovic)

Professor Lawrence Lessig recently sued The New York Times Company for defamation for incorrectly suggesting in a headline and lede that Lessig advocated soliciting donations from a convicted sex offender.

The New York Times wrote: "A Harvard Professor Doubles Down: If You Take Epstein’s Money, Do It in Secret . . . It is hard to defend soliciting donations from the convicted sex offender Jeffrey Epstein. But Lawrence Lessig, a Harvard Law professor, has been trying."

What Lessig actually said was more nuanced and subtle and had more to do with not being too quick to scapegoat fundraisers when donors turned out to have done disreputable things.

Read Lessig's complaint here.  From the complaint:

"Defendants published their headline and lede despite their both being the exact opposite of what Lessig had written and despite being told expressly by Lessig pre-publication that they were contrary to what he had written.  When Lessig brought the matter to Defendants attention post-publication, they refused to remove or edit their headline or lede to reflect the truth. . . . Defendant's publication destroyed [Lessig's efforts to spearhead a national dialogue dedicated to developing best standards for accepting and retaining donations from individuals and corporations who engage in wrongdoing] and has harmed Lessig's reputation more generally.

Defendant's actions here are part of a growing journalistic culture of click-baiting. . . . Defendants are fully aware that many, if not most, readers never read past the clickbait...The use of this tactic represents a uniquely troubling media practice as it relates to the harm to and destruction of the reputation of the target of the clickbait."

Although the full New York Times article provides more detail about Lessig's position, the headline and lede were anything but subtle or nuanced, essentially taking a few of Lessig's comments out of context and mischaracterizing them for shock value and humor at the expense of Lessig's reputation.  As Lessig's complaint notes, the headline and lede are all many people read.

Social media comments in response to the NY Times article suggest that Lessig would also defend wife beating and pedophilia.  In response to the NY Times article, a New York Times editor also cancelled publication of an article profiling Lessig's work on institutional ethics.

Lessig's account of suing the Times is available here.

Lessig writes:

"I know that journalism is hard, and deadlines are short. So I when I asked the Times to correct these two false and defamatory statements, I fully expected they would . . .  I was astonished when they not only refused to fix the mistake, but doubled down on the absurdity of their justifications. . . .

The incentives of journalism in the Internet age are clear—drive eyeballs to your articles, so you can drive advertising revenue to your bottom line. That creates an obvious incentive to tabloid-ize the headlines. Flashy and fun is harmless. False and defamatory is not. . .

A suit like this might complement the incentives for truth."

Lessig's assessment is consistent with how The New York Times Company describes its own business.  Its annual report extensively discusses risks of declining readership and revenue, tracking consumer tastes, and keeping up with competition.  It barely mentions the risk of defamation suits.  Even consumer privacy protections, which impact advertising revenue, seem to be a greater concern. 

Judging from its own explanation of its business to its investors, the NY Times is far more concerned with "engagement", "popularity", "ease of use", "monetization", "pricing", "marketing", "selling", "return on investment", "profitability", "visibility" and "brand strength," "consumer demands", "interesting", "relevant", and "differentiated content" than it is with factually accurate coverage.  The only explicit concerns for "accuracy" and "fairness" mentioned are whether the NY Times' financial statements accurately reflect its financial position to its investors and comport with "fair value" accounting.  

The New York Times does note that it is important that its coverage be perceived by readers as "trustworthy" and "high-quality" but its leadership doesn't seem to be overly concerned if its news coverage is actually fair or accurate.

My view is that the New York Times should be liable for foreseeable interpretations of its headlines and ledes which are misleading and cause damage to the reputations of those it chooses to write about. People's lives should not be play-things for powerful journalists and editors to casually toy with with impunity.

Actually caring about facts--and internalizing the harmful consequences of misreporting them--might lead to less exciting articles, and maybe even lower readership.  But the cartoonish fictionalized version of reality that some newspapers attempt to pass off as critical information is in reality little more than a sadistic form of entertainment--character assassination as sport.  Worse than entertainment which acknowledges that it is fictional, exaggerated "news" uses real people as its sensationalized villains and callously hurts them in the process.

But the law is so friendly to corporate media defendants that the NY Times might emerge unscathed. The New York Times seems intent on relying on favorable legal standards, writing: 

"''We plan to defend against the claim vigorously. . . .' It is unclear whether Lessig is a 'public figure' who must show the Times acted with actual malice in publishing its article."

It's not every day a modestly paid teacher uses his own limited resources to sue a financially and politically powerful corporation, when the legal deck is stacked against him.  The New York Times company has a $5.5 billion dollar market capitalization and 150 million readers. NYT's annual revenues are close to 5000 times Lessig's salary. 

The New York Times can retaliate by simply "disappearing" Lessig from its coverage and thereby lowering his scholarly profile.  Other media organizations are likely to take the NY Times side, both because of licensing relationships with the NY Times, and out of professional courtesy lest they encourage defamation suits against themselves in the future. Numerous studies find that media organizations slant their coverage to favor the financial interests of their owners. (Indeed competing news organizations have collaborated on political and legal efforts to water down defamation law).

Professor Lessig's courage and fortitude are very unusual.  Studies find that although sources often believe news articles are inaccurate, sources are afraid to ask for corrections for fear of retaliation.  Many people or organizations mistreated by media organizations roll over, cower, or buy advertising in the hope of currying more favorable coverage in the future.  Multiple studies find that media organizations provide more positive coverage of their advertisers. 

After being bullied by The New York Times, most people would hide or turn over their lunch money.  But Lessig is actually trying to hold The New York Times accountable.

Van Horn discusses the legacy of corporate funding for the "Chicago School" of law & economics (Michael Simkovic)

Pro-market, a blog at the Stigler Center at the University of Chicago Booth School of Business, recently published a retrospective by Robert Van Horn discussing the early financial and intellectual ties between the Chicago school of law and economics and powerful corporate interests, and the controversy such ties engendered.  The University of Chicago's work on anti-trust law is often credited with facilitating a waive of M&A, permissive review, and the rise of large corporations and reduced government efforts to regulate them.

It should  be noted that the fact that corporations funded scholarship which supported free-market policies that were in corporate interests does not by itself mean that the scholarship or policies were per se flawed or contrary to social welfare--the answer to that question ultimately turns on the substantive merits. Nor should a scholar changing his views in response to contradictory empirical evidence be attributed to nefarious motives.

It may, however, suggest that certain ideas and perspectives are more heavily funded than others. In a match that is intellectually close to even, or perhaps even where one sides views may more closely reflect reality, funding may tip the balance.

Robert Van Horn, Corporations and the Rise of the Chicago Law and Economics Movement, Pro-Market, January 15, 2020:

 

"From its birth in 1946 onward, corporations made possible and crucially supported the rise of the Chicago law and economics movement. Aaron Director, who at one point had advocated for curbing corporate power and vigorously enforcing antitrust law, spearheaded the effort to create a [more corporate friendly]“new liberalism.”. . .

[Chicago Professors] Wallis, Aaron Director, and Milton Friedman all gave lectures on the topic of “Conservative Economics” to businessmen. 

In the months that followed their lectures, businesses sent numerous laudatory letters. The Volker Fund, the Foundation for Economic Education, the Rockefeller Building, the Chamber of Commerce, Wealth Incorporated (NYC), and others requested copies of their lectures. Unsolicited copies were mailed to corporations, such as Standard Oil of Indiana, and periodicals such as The Wall Street Journal, which published an abridged version of Wallis’s lecture. Presently appreciative letters arrived in response to the mass mailing. General Motors, Sunkist, and Kellogg were among those that expressed gratitude, and some corporations requested to know more about “conservative economics.” 

From the time of its birth in 1946, there has been a dynamic, mutually beneficial relationship between the Chicago law and economics movement and corporations. The close relationship between Chicago law and economics and the corporate world began when Aaron Director returned to the University of Chicago to lead the Free Market Study (1946-1953)—or the “Hayek Project,” as Henry Simons and Wilber Katz (then Dean of Chicago Law School) called it—and work in the Chicago Law School.

From 1946 throughout the 1950s, corporations made possible and crucially supported the rise of Chicago law and economics through funding and advice, and corporations praised scholarly publications of Chicago law and economics that championed a free market economy. They especially extolled those that challenged the status quo antitrust positions of many government officials and economists that undermined corporate power. 

The Free Market Study examined the legal foundations of capitalism and sought to create a reconstituted [libertarian] liberalism to countervail [progressive economics], giving birth to Chicago “neoliberal” ideas in the early 1950s. Milton Friedman self-referentially used the term “neoliberalism” in 1951. Reflecting later on why the Chicago Law School agreed to the “Hayek Project,” Director asserted: “It was…decided that Chicago was the only place that was likely to accept such a project, and it was also decided that the law school was the only part of the University of Chicago that would accept such a project.”

Once the Free Market Study got underway in the fall of 1946, its members convened regularly to debate how to reconstitute liberalism and create a competitive order and thereby counter collectivism. In a New York Times interview, Director indicated that one criterion for assessing the success of the Free Market Study was its ability to exert political pressure to engender policy change. . ..

[Chicago] saw antitrust law as a centerpiece of the investigation of the legal foundations of capitalism. . . .

From 1950 to 1952, in their effort to combat collectivism, Director and other members of the Hayek Project departed from the [anti-corporate concentration] work of [their Chicago mentor] Simons. For example, in 1951, Director claimed that very large corporations should no longer be considered a threat to competition, but should be considered another feature of a competitive market. The Free Market Study undertook some empirical studies geared toward countervailing collectivism and reinvigorating liberalism. For example, Warren Nutter’s work, The Extent of Enterprise Monopoly in the United States, 1899-1939 (1951), evaluated the extent of industrial monopoly in the United States. Nutter argued that there had been no significant increase in business monopoly since 1900.

Director noted that Nutter’s findings challenged the collectivist claim that the efficiency of large-scale industry would inevitably give rise to more and more business monopoly, thereby resulting in less and less competition and necessitating socialist economic planning. Since collectivists hinged their argument on the premise that industrial monopoly had been significantly increasing and since, as Director pointed out, widespread belief in the inevitability thesis gave rise to collectivist policies, Nutter’s investigation dealt a blow to collectivism. . . .

From their interactions with the Volker Fund, Director, Hayek, and Levi would have realized that to champion Simons would hinder their chances of obtaining resources from private corporations. In the late 1940s and early 1950s, many corporate leaders spoke disparagingly of economists who challenged big business. . . .

Director claimed that competitive forces would control corporations and ensure the markets in which they engaged would be competitive. . . . Just a few years earlier, Director had advocated for curbing corporate power, restraining the growth of business monopoly, and vigorously enforcing antitrust law."

 

UPDATE 1/24/2020: At Volokh Conspiracy, David Bernstein (George Mason) argues that Van Horn overstates the extent of corporate funding for law & economics and the importance of such funding to its early success.  Bernstein also notes that much of the funding for the law & economics program came from the Volker Fund, a non-profit or foundation that received donations from business leaders to promote free-market ideas, and that the funding therefore did not come directly from corporations.   

Van Horn's full article is available here. Van Horn claims that "The Volker Fund ... paid [Aaron] Director’s salary for seven years straight" and encouraged Chicago to grant him tenure. But Van Horn also acknowledges that much of the work produced at Chicago "contained sophisticated legal analysis and detailed applications of economic theory to legal issues. Most of the articles were published in top law reviews."  He also acknowledges that it contributed to the "creation of the Journal of Law and Economics, which has become a highly respected journal in economics and in law and economics today." 

Judge erases 200K+ in student loan debt for 2004 law school graduate

Interesting story.