Yearly Archives: 2009

Winter Break

Jotwell is taking a short winter break. Posting will resume early in January.

I am tremendously grateful to our authors and readers who together have made Jotwell’s launch such a great success. Thank you for reading, and for your support.

Democratizing Online Life via Cultural Infrastructure

Anthony Varona, Toward a Broadband Public Interest Standard, 61 Admin. L. Rev. 1 (2009), available at SSRN.

I was recently reading Bob Garfield’s book The Chaos Scenario, which describes the accelerating deterioration of old business models for mainstream media.  Garfield’s weekly podcast/radio show, On the Media, has meticulously documented the problems journalists, musicians, and news programs are encountering as content converges onto broadband-based intermediaries.  In the face of all these dramatic changes, what are legal scholars adding to the debate?

In cyber- and media law scholarship, Anthony Varona deserves special notice for integrating the two fields in his recent article “Toward a Broadband Public Interest Standard.”  Varona tries to revive an old and oft-neglected standard for broadcasting—the public interest—for the digital age.  In areas  where scholarship too often degenerates into arid formalism, libertarian rejectionism, and toothless jeremiads, Varona is a breath of fresh air.  He has articulated both a comprehensive justification for better broadband regulation and a method of achieving it.  The article is both a rigorous intervention into extant debates on network neutrality and importantly demonstrates (and helps remedy) the partiality and ideological character of many of those debates. Continue reading "Democratizing Online Life via Cultural Infrastructure"

Parallel Play: The Disconnect Between Criminal Procedure and Criminology Revisited

Eric J. Miller, Putting the Practice into Theory, 7 Ohio St. J. Crim. L. 31 (2009).

Susan Bandes

Susan Bandes

Criminal procedure and criminology have developed along oddly parallel tracks. Criminal procedure is rights-based and court-centric.  It cares about policing and crime control not as subjects in their own right, but as objects of constitutional limitation.  The field implicates the regulation of police behavior, but has traditionally paid little attention to police attitudes or police organizational culture.  It implicates crime control, but has paid little attention to the social, political and cultural context in which the criminal process unfolds.  This focus seems increasingly myopic.  Most of the promising innovations in police reform and crime control have little to do with judicial enforcement of constitutional rights. Continue reading "Parallel Play: The Disconnect Between Criminal Procedure and Criminology Revisited"

Taking the Literary Turn

Elliott Visconsi, Lines of Equity: Literature and the Origins of Law in Later Stuart England (Cornell University Press: 2008).

This is a book about the fictionalization of the origins of law in later Stuart England.  My focus is on crucial literary texts such as John Milton’s Paradise Lost and John Dryden’s Indian Emperour, works devoted to demanding of the audience a set of structured interpretive deliberations about the first principles of government, the charismatic utterance of law, and the transition from savagery to civility.  At the heart of such an intellectual program is the norm and practice of equity….  Equity is a moral principle (equal justice, fairness), an interpretive method (summoning the original intention or spirit of a law in order to judge fully particular acts or events), and a gesture of sovereign mercy (relaxing the rigorous letter of the law in order to ensure justice).  For the writers I study, equity is habit of thought that may be cultivated through fictional methods.  …  I take as given the claim … that in the later Stuart period, serious literary texts are a crucial language for the public constitution of the legal norms and conceptions of sovereignty, subjecthood, and political authority.  Moreover, I share the view that literary texts are often the most effective and lasting language for explaining and legitimating legal regimes.  (1-2)

This is a book I like a lot in part because of who – professionally – Elliott Visconsi is.  He wrote the book while an assistant professor of English.  Lines of Equity is careful tenure track work.  Visconsi announces right at the beginning (“I take as given”) that he is working within a field already mapped (naming and footnoting his predecessors in the passage I delete.)  And he was also an assistant professor of English at Yale – making his way, therefore, within one of the most established, celebrated, central English departments in American academia.  There is nothing radical, it appears – or not much – in Visconsi’s project.  Constitutional thinking is, apparently, a pretty much accepted starting point for exploring the organization and power of literary works. Professor Visconsi cheerfully announces on his Yale webpage that he will “spend a year studying US and comparative constitutional law at Yale Law School courtesy of a Mellon Foundation New Directions Fellowship.  The major focus of my current research touches on the cultural and legal history of the separation of church and state….” Continue reading "Taking the Literary Turn"

Tax Policies, Public Opinions

Andrea Louise Campbell, What Americans Think of Taxes, in The New Fiscal Sociology:  Taxation in Comparative and Historical Perspective (Isaac William Martin ET AL. eds., 2009).

Before reading Andrea Campbell’s recent book chapter, I relied mainly on two reference points for a mental framework of public opinion relating to taxes:  Donald Duck and Pat Soldano.  The famous Disney cartoon shorts from the 1940s aimed to convince a patriotic public that mass income taxes would help “Beat the Axis,” thus smoothing the transition from a class-based income tax.   Lobbyist and anti-estate tax crusader Pat Soldano, as Michael Graetz and Ian Shapiro tell it in their book Death by a Thousand Cuts, helped persuade America that repealing the estate tax would save hardworking family farms and businesses from the clutches of the federal government, making passage of the 2001 estate tax bill possible.   In my mental model, Donald Duck stood for effective pro-tax government propaganda.  Pat Soldano represented successful grassroots cultivation of anti-tax popular sentiment with the power to hold policymakers hostage, leaving them mainly with the escape hatch of debt financing.  But how did we get from Donald to Pat?

Campbell, a political scientist at MIT, gives a more comprehensive, empirical picture of the evolution of American public opinion on taxation.  She uses two data sources:  Gallup and other poll data, starting in 1939, and political communication such as presidential campaign speeches.  Her work suggests that “the dawn of mass taxation came with surprising calm,” with data such as 1943 Gallup poll results showing that 78 percent of respondents thought their annual federal income tax due was “fair.”  Campbell also traces increased public resistance to taxes starting in the late 1960s.  As she acknowledges, many developments contributed to this shift to anti-tax sentiment, including decreasing real after-tax income and growing public disapproval of government spending, for example on Vietnam and on social programs associated with racial divides.  She offers empirics to illustrate the trend, such as coded political speech data demonstrating a generally upward trend in the frequency with which taxes were mentioned starting in 1968.  The data extends to 2000 and later, and she includes an analysis of the increased correlation between a belief that one’s taxes are too high and a decision to vote for a Republican candidate for President in the 1990s, when other factors are held constant. Continue reading "Tax Policies, Public Opinions"

Exposing Criminal Procedure’s Hidden History

David Alan Sklansky, One Train May Hide Another: Katz, Stonewall, and the Secret Subtext of Criminal Procedure, 41 U.C. Davis L. Rev. 875 (2008).
Jack Chin

Jack Chin

David Alan Sklansky offers fascinating new insights into an old chestnut, Katz v. United States, 389 U.S. 347 (1967).  Katz is a worthy subject, because its rejection of the “trespass” test for searches in favor of the “reasonable expectation of privacy” framework apparently heralded a new scope for the Fourth Amendment.   The specific holding of Katz, that wiretapping constituted a search, overruled prior law and survives today.  Yet, as the cases after Katz developed, from open fields to wired informants, the results of the new test were the same as the old test.

Together, the great criminal procedure cases of the Warren Court read like a parade of vice straight out of Guys and Dolls: The possession of dirty paperbacks at issue in Mapp v. Ohio, 367 U.S. 643 (1961), the incipient stick-up artists of Terry v. Ohio, 392 U.S. 1 (1968), the Chinese opium dealers in Wong Sun v. United States, 371 U.S. 471 (1963), the bookmaker in Spinelli v. United States, 393 U.S. 410 (1969), and the L.A. bookie in Katz itself.  Sklansky proposes that with Katz, at least, this image is wrong; Katz was not only about bets and telephone booths.  The secret subtext of Katz was protection of gay men from police surveillance in public restroom stalls.  Sklansky advances a powerful circumstantial case that both pre-Katz jurisprudence involving gay men and the cultural context of “morals” policing of males might well have influenced the Court’s decision. Continue reading "Exposing Criminal Procedure’s Hidden History"

Why Exactly Are Jackson Pollock’s Paintings Shielded by the First Amendment?

Randall Bezanson, Art and Freedom of Speech (Urbana: University of Illinois Press, 2009). (Online Table of Contents.)

Suppose a suburban city council enacted an ordinance barring the display of any Alexander Calder stabiles or Jeff Koons “sculptures” in any place visible by the public, believing that Calders and Koonses are just ugly. I suspect that most people who know something about the Constitution would think that the city’s ordinance is an obvious violation of the First Amendment’s protection of freedom of speech. After all, we have it on the highest authority that the First Amendment “unquestionably shield[s]” Jackson Pollock’s paintings: If Pollock, a fortiori Koons, whose sculptures at least look like something.

People should check their wallets whenever the Supreme Court takes some proposition as unquestionable. Randall Bezanson shows why. Every route that you might take to explain why non-representational art is covered by the First Amendment leads to mind-bending problems, and rather rapidly places some other unquestionable proposition about free speech under pretty severe pressure. (Here “covered by the First Amendment” means something like “the First Amendment is relevant to assessing the constitutionality of regulation,” and should be distinguished from “protected by the First Amendment,” which means “can’t be regulated consistent with the First Amendment.”) What follows are some quite rambling thoughts provoked by reading Bezanson’s book. Continue reading "Why Exactly Are Jackson Pollock’s Paintings Shielded by the First Amendment?"

Call for Papers

Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.

Although critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. Please see the Jotwell Mission Statement for more details. Continue reading "Call for Papers"

Jotwell Mission Statement

The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.

We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree. Continue reading "Jotwell Mission Statement"

Better (or Worse?) Risk Management Through Technology

Kenneth A. Bamberger, Technologies of Compliance: Risk and Regulation in a Digital Age, 88 Tex. L. Rev. (forthcoming 2010), available at SSRN.

The global financial crisis raises profound questions about how financial markets and the participants in those markets should be regulated. The scale of the crisis has meant that issues which are normally discussed only by technical experts now are the subject of public debate. However, much of this public debate (and even some academic debate) about the future of financial regulation seems to assume that introducing a few new national and transnational institutions and changing a few rules can make a significant difference. For this reason, Kenneth Bamberger’s article, Technologies of Compliance: Risk and Regulation in a Digital Age, forthcoming in the Texas Law Review, is essential reading. The article shows that it is necessary to think about the ways in which private and obscure technologies of compliance risk distorting financial regulation.

Over the last few years, and somewhat ironically given the crisis, financial regulation has evolved to emphasize risk management by financial firms. Regulators have identified many varieties of interconnected risks which financial firms should manage. But although the crisis illustrates weaknesses in how financial firms have in fact managed the risks involved in their businesses, risk management as a focus of regulation is clearly here to stay. The G20, most recently in the Leaders’ Statement from the Pittsburgh Summit, and the Basel Committee (for example in its revisions to the Basel II market risk framework) continue to emphasize the idea of risk management as a core component of financial regulation. Policy makers are advocating the development of more sophisticated domestic and transnational institutions for the management of systemic risk. Continue reading "Better (or Worse?) Risk Management Through Technology"

Europe’s Competition Regulators Force its Bar Associations to Reform

Laurel S. Terry, The European Commission Project Regarding Competition in Professional Services, 29 Nw. J. Int’l L. & Bus. (forthcoming 2009), available at SSRN.

I have a personal reason for reviewing Laurel S. Terry’s account of the European Commission’s recent investigation into the European professional services market. As a former senior writer on The European Lawyer magazine, I was a first-hand witness to many of the events described in her paper, including the 2003 Brussels conference she mentions.

The main purposes of Professor Terry’s paper is to describe an ongoing EU initiative, which has the stated aim of making Europe’s professions– including its legal professions–more efficient and competitive. In all likelihood, the end result of the events described in Terry’s paper will be that many of Europe’s bar associations will be forced to liberalize their regulatory frameworks. What is more, she believes that, in an increasingly globalized world, other countries may decide to follow Europe’s lead. She fears such countries may decide to conduct their own investigations into their professional services markets, using a similar methodology to that employed by the EU. Continue reading "Europe’s Competition Regulators Force its Bar Associations to Reform"

The Fact of the Matter

Frederick Schauer, Facts and the First Amendment, 57 UCLA L. Rev. —- (forthcoming, 2010).   Available at SSRN.

“Facts,” the songwriter David Byrne once observed, “all come with points of view.” Americans, Frederick Schauer adds, credit any number of “facts” with points of view. President Obama is not “President” Obama, but a constitutionally ineligible interloper born in Kenya. President Bush was hardly surprised by the 9/11 attacks, given that his government either staged them or had advance warning of them. And so on. The same phenomenon is observable across the world. There surely are “facts” about the conduct of the Israeli military and Hezbollah in Lebanon, or the proper treatment for AIDS in South Africa, but they are hedged round with points of view, some sensible and some lunatic. That there is a fact of the matter Schauer does not doubt; but there is today, he says, an apparent “increasing and unfortunate acceptance of factual falsity in public communication.”

What will be more surprising to many is that facts are so poorly accounted for in First Amendment law. The First Amendment and its jurisprudence and scholarship are startlingly reticent on questions of factuality and falsity. This is the subject of Schauer’s recent Melville B. Nimmer Memorial Lecture, Facts and the First Amendment, delivered this past October at UCLA Law School. (Or so I assume!) Schauer does not seek to fill in all the gaps and provide a detailed First Amendment theory of facts. Instead, he argues that the First Amendment’s inability to deal directly with these concerns is a symptom of its “smallness” – of the extent to which many of the questions that are seemingly central to the law of free speech lie outside its boundaries and in the realm of “politics, economics, and sociology” whose dimensions “are far more important than the legal and constitutional ones.” Continue reading "The Fact of the Matter"

Trademark Use on the Loose

Mark P. McKenna, Trademark Use and the Problem of Source, 2009 U. Ill. L. Rev. 101 (2009).

Not all uses of a trademark constitute trademark use. It is this proposition that brings consternation and confusion to courts and legal scholars alike. Mark McKenna looked into this abyss, the abyss looked back at him, and neither liked what they saw: a pitched but ultimately unhelpful ongoing debate about the “trademark use” doctrine. And so he sought to shrink this chasm with insightful analysis.

The abstract for Mark P. McKenna’s recent article Trademark Use and the Problem of Source is as follows: Continue reading "Trademark Use on the Loose"

Third Parties to the Rescue

Michael Risch, Virtual Third Parties, 25 Santa Clara Computer & High Tech. L.J. 416 (2009).

Michael Risch’s Virtual Third Parties, 25 Santa Clara Computer & High Tech. L.J. 416 (2009) tips the scales at a mere eleven pages—but it punches far above its weight class. He gives a clear and straightforward reading of third-party beneficiary doctrine in contract law to put a new spin on old problems of online power.

Risch’s subject is virtual worlds, where the immense technical power of the world’s provider is so well-recognized that it has its own shorthand name: the “God Problem.” If Blizzard wants to exile you from World of Warcraft, confiscate everything you own in-world, or stick your avatar in the stocks, their control over the servers lets them do it with a few keystrokes. Your avatar’s arms are never going to be long enough to box with a game god whose software controls arm length. Continue reading "Third Parties to the Rescue"

The Economic Roots of Domestic Violence

Deborah Weissman, The Personal is Politicaland Economic: Rethinking Domestic Violence, 2007 B.Y.U. L. Rev. 387 (2007).
Donna Coker

Donna Coker

Deborah Weissman has made an important contribution to the debate in domestic violence and criminal justice scholarship regarding the current focus on criminal justice system responses to domestic violence. Her article seems particularly timely in light of the current   economic crisis.

A number of legal scholars have criticized US domestic violence policy for its singular focus on criminal law narratives and criminal justice responses. This focus obscures the social and economic forces that increase the incidence of domestic violence and that magnify women’s   vulnerability to violence. Further, mandatory arrest and no drop prosecution policies enacted in many jurisdictions have negative secondary effects for some victims and, in the case of unemployed batterers, may actually increase recidivism rates. Continue reading "The Economic Roots of Domestic Violence"

Welcome to Jotwell

Welcome to Jotwell: The Journal of Things We Like (Lots). Here you will find leading academics and practitioners providing short reviews of recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience.

Jotwell is a special type of law review housed on a set of inter-linked blogs. As a law review, Jotwell has only one mission: to bring to readers’ attention great recent scholarship related to the law. As a blog we invite your comments, and hope that some of our reviews will spark a conversation.

On the Jotwell main page you should expect new content once or twice a week, although as we add more sections contributions may become more frequent. Each of the subject-specific sections will have something new at least once a month. In any case, every time a new review appears in any of the subject-specific sections, an excerpt with a link to the full text will also appear here on our front page at http://jotwell.com.

There are three ways to read Jotwell.

  1. You can visit this page, the main Jotwell site, which aggregates all the sections; or you can sample just the sections you like, choosing from the list in the right column.
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Please send your comments and suggestions, and do feel free to comment on the articles as well. We hope you will make Jotwell part of your regular reading and that you will find things you like (lots).

Patent Crisis?/Judicial Solution?

Dan L. Burk & Mark A. Lemley, The Patent Crisis and How the Courts Can Solve It (2009).

Is there a crisis in the patent system, and if so, what should be done about it?  Two recent books respond to cries of alarm emanating from some in the patent system, and each makes a large contribution to the understanding of this system:  James Bessen & Michael J. Meurer, Patent Failure:  How Judges, Bureaucrats, and Lawyers Put Innovators at Risk (2008) and Dan L. Burk & Mark A. Lemley, The Patent Crisis and How the Courts Can Solve It (2009).  Both books proceed from, or demonstrate, a core empirical premise: those inside the patent system experience its effects quite differently depending on their industrial setting and technical field of innovative endeavor. Both books are well worth reading, but the space here allows only for a few comments on Burk and Lemley’s more recent contribution.

Reprising, updating, and extending arguments made in prior works, Burk and Lemley set out to persuade the reader of three propositions: (1) the tradition of a one-size-fits-all approach to patent law is out of step with the diverse needs of today’s innovators in wide range of industries; (2) the response to diversity should be to retain a single Patent Act rather than to provide industry-specific legislation; but (3) the federal courts should use the flexibilities embedded in that single Patent Act to tailor its application to account for industry diversity. Continue reading "Patent Crisis?/Judicial Solution?"

Tax Havens in Context

Craig M. Boise & Andrew Morriss, Change, Dependency, and Regime Plasticity in Offshore Financial Intermediation: The Saga of the Netherlands Antilles (Univ. Ill. Law & Econ. Research Paper No. LE08-020). Available at SSRN.
Allison Christians

Allison Christians

Craig Boise and Andrew Morriss have produced a fascinating account of the emergence and role of the offshore financial sector with this case study of the Netherlands Antilles—once a powerhouse, now struggling to stay alive in the global economy.  With places like the Antilles again in the political and media spotlight, cast in their now-familiar role as renegades in international society, I have long thought we were overdue for an account that carefully considers the view from these countries and provides the context we critically need to understand the dynamics between tax competition and economic development.  This article may well be the most accessible account of the complicated history that shaped U.S. policy toward a growing number of tiny islands with tiny populations and limited opportunities for economic vitality.

It is certainly the most thorough and thoughtful analysis I have encountered on the topic of why “tax havens” exist.  Boise and Morriss bring us on a lively tour through the history of the Antilles and its complicated relationship with the United States.  They use first-hand accounts and historical research to build a narrative that is decidedly different than the story usually told by those who emphasize the need for crackdown when cooperation cannot yield a mutually beneficial result.  For instance, it may surprise readers to learn that the rise of the Antilles as an offshore financial center occurred not as opportunistic banditry but as the result of a serendipitous confluence of factors, all of which served goals other than facilitating tax evasion.  You will have to read the paper to find out how the Antilles met a dire need for asset protection during World War II, and how it facilitated American access to the Eurobond markets at a time when the United States depended heavily on foreign borrowing for its economic success.  You will also need to read this paper to see why the crackdown on places like the Antilles will likely be as futile as it is harmful to the populations whose livelihood depends on their ability to facilitate transactions in the global economy. Continue reading "Tax Havens in Context"

Other Rights

Kurt T. Lash, A Textual-Historical Theory of the Ninth Amendment, 60 Stanford Law Review 895 (2008).
Pat Gudridge

Pat Gudridge

Kurt Lash starts with a well-known, seemingly minimalist reading of the Ninth Amendment’s content, maybe James Madison’s own.  Whatever rights we conclude the text of the United States Constitution recognizes are not the only rights extant – however originating – and constitutional interpretation should proceed consistently, acknowledge somehow these other rights.  “Other rights,” Lash thinks, include collective rights of self-government – the power of people, institutionalized in various ways, to decide for themselves the substance of the particular rights and duties organizing their legal relationships.  The Ninth and Tenth Amendments therefore appear to overlap, not just because of the accident of their identical concluding references to “the people,” but because, read together, they describe a joint specification of proper approaches to reading the remainder of the United States Constitution itself: specifications (“enumerations”) of rights and powers should be read as limited – their text should be read restrictively – in order to leave space for “other rights,” including the specifying power to define or not define particular rights and duties.  This last proposition, Lash asserts, applies to the Fourteenth Amendment in the same way that it does to any other federal constitutional specification of rights.  It may be that this amendment in several ways restricts the ability of state governments and peoples to define individual rights and duties, but it does not deny the primary ability of governments and peoples to engage in rights defining exercises, and therefore the restrictions that the Amendment sets should be read in as limited a way as possible in order not to render meaningless the possibility of continuing self-government.

This account of the Ninth Amendment and its implications may or may not fit well with the thinking of the drafters or ratifiers of the Amendment, the companion Tenth Amendment, and the Fourteenth Amendment.   Randy Barnett and Kurt Lash debate the matter in an exchange published in the same issue of the Stanford Law Review in which Lash’s principal discussion appears.  For present purposes, however, the key fact is the remarkably forceful bias that the juxtaposition of Lash’s Ninth Amendment and Tenth Amendments generates: not just suggestive of much of the signal jurisprudence of the late-Rehnquist Supreme Court; not just suggestive of an account of the motivation – the preoccupation with the idea of limitation – evident on the face of the Supreme Court decisions like Lochner and Hammer v. Dagenhart; but also (seemingly – Lash himself does not push his argument very far in this direction) a point of departure for a defense of the Court’s famous Fourteenth Amendment limiting opinions in its Slaughterhouse and Civil Rights decisions. Continue reading "Other Rights"

Financial Reeducation

Anna Gelpern, Financial Crisis Containment, 41 Conn. L. Rev. 1051 (2009).  Available at SSRN.

The financial crisis caught many unawares, and not just in their pocketbooks.  Those of us who do corporate law had been operating for ever so long under a paradigm favoring market control of corporate actors.  In so doing we familiarized ourselves with the financial economics of market success.  Market failure did not escape our view, however.  Between the standard objections to law and economics, the tech bubble of the late 1990s, and emerging literatures on behavioral influences on stock prices and pricing under heterogeneous expectations, we spent plenty of time writing about it and debating it.  But matters like total or near-total economic collapse and prudential regulation occupied the desks of only a handful of people – specialists on structured finance like Steve Schwarcz and banking experts like Pat McCoy, Dan Tarullo, and Arthur Wilmarth.  Lehman and TARP meant that the rest of us had some catching up to do, especially those of us who purport to know about finance.

Since last fall I have read a stack of papers and books about financial crisis, theoretical and historical.  Some of this has been old material, old here meaning publication before the fall of 2008, and some of it has been new.  But for the aforementioned colleagues, it has been the work of economists. Continue reading "Financial Reeducation"

Eclectic Decision Theory

Itzhak Gilboa, Questions in Decision Theory (August 2009).

Itzhak Gilboa is a prominent economist who has made large contributions to decision theory, including the theory of decisionmaking under uncertainty (as opposed to risk) and the use of case-based or analogical strategies of reasoning, both of which are important topics for legal theory.  In this unpublished paper, Gilboa offers a relatively informal and accessible overview of conceptual and empirical problems in and with decision theory.  Gilboa writes as a sympathetic and informed critic from within, rather than a hostile critic from without, which gives his analysis all the more weight.

Gilboa provides an introduction to five theoretical questions currently troubling the field: the status and nature of the rationality assumption, the meaning of “probability” and the limits of the Bayesian approach to probability, the meaning of “utility” and the relationship(s) between utility and notions such as well-being and happiness, the choice between rules and analogies as strategies of reasoning, and the problem of group decisionmaking, including the key question whether and when groups make better or worse decisions than the individuals who constitute them (“the wisdom of crowds” versus “the madness of crowds”).  All five sections are highly illuminating, but I will discuss only one, which is Gilboa’s treatment of probability and uncertainty.  The issues are central for legal and political decisionmaking, in which information costs are high and experiments – natural or otherwise – are usually unthinkable, so that certainty is rare. Continue reading "Eclectic Decision Theory"

Historians of the Singular: Lawyers, Judges, and the Work of Factual Construction

Gregory J. O’Meara, S.J., The Name is the Same, But the Facts Have been Changed to Protect the Attorneys: Strickland, Judicial Discretion, and Appellate Decision-Making, 42 Val. U. L. Rev. 687 (2008).   (BePress Draft Version; SSRN draft version)
Jonathan Simon

Jonathan Simon

Gregory J. O’Meara, S.J., an Assistant Professor at Marquette University Law School, has written a breakthrough article on role of fact interpretation in the judicial construction of criminal law rules that is likely to escape the attention of many criminal law teachers and practitioners who would benefit from it.   On the surface it purports to be a careful doctrinal analysis of the Supreme Court’s hidden expansion of the ineffective assistance of counsel doctrine, in defiance of the Anti-Terrorism and Effective Death Penalty Act’s (AEDPA), 28 U.S.C. Sec. 2254(d)  (2008), prohibition on even the Supreme Court using Habeas cases to make new legal rules.   From Strickland v. Washington, 466 U.S. 668 (1984), to the most recent cases, Wiggins v. Smith, 539 U.S. 510 (2003); Rompilla v. Beard, 545 U.S. 374 (2005), O’Meara shows that the Court continues to express loyalty to the logic of the Strickland rule.   However, when the analysis is extended to the facts of recent cases, O’Meara shows convincingly that the Court has found relevant facts explicitly treated as irrelevant in Strickland.  Readers who get a bit farther in discover that the article is also a rather copious introduction to the late continental philosopher and theorist of narrative, Paul Ricoeur.   Unfortunately, neither of these highly technical subjects is likely to attract the general teacher or practitioner of criminal law, but this is precisely who should read the article.

Indeed, the discussion of AEDPA, as important as it is for capital lawyers, is really only a case study of a very important argument about the role of factual construction in legal change.   Drawing on the work of Anthony Amsterdam and Jerome Brunner, Minding the Law (2000),  O’Meara sets out to convince lawyers of something many practitioners appreciate but which law students (and teachers) strenuously resist, i.e., the idea that facts rather than law are primary craft of legal advocacy (or judicial construction).   As O’Meara compelling demonstrates with the Strickland line of cases is that rigid controls on law leave judges free to change norms by expanding their vision of relevant facts.   There are parallels with Mark Kelman’s classic article Interpretive Construction in the Substantive Criminal Law, 33 Stan. L. Rev. 591 (1982).   Kelman identified a number of techniques by which courts routinely rework facts, for example, time framing which stretches or shrinks the time frame in which the defendant’s actions are considered.   In this article, O’Meara reaches into the formidable and largely legally unplumbed depths of the late philosopher Paul Ricoeur, to develop a systematic analysis of how facts get changed.   Ricoeur analyzes the work of non-fiction writers as a three stage process.   The first stage is one of “documentation” in which a factual archive established.   The second stage is one of explanation, in which certain facts from this archive are selected.   In this process, a key dimension is the “scale” in which facts are framed.   Since scale in narrative can be subtle (unlike in architecture or engineering), narratives can be significantly shifted by resetting the scale (or density) with which facts are explained.   The third phase, that of narration, is where the scaled array of facts are connected with a set of “because” clauses which weave a causal story into them.   While many legal scholars influenced by Robert Cover have attended to the importance of narration, few have noticed the earlier work of scale setting which largely determines the range of causal explanations that will seem relevant.   By bringing out this missing dimension of narrative work, O’Meara has advanced a systematic understanding of fact exegesis in law. Continue reading "Historians of the Singular: Lawyers, Judges, and the Work of Factual Construction"

Straight Talk About Game Gods

Joshua A.T. Fairfield, The God Paradox, 89 B. U. L. Rev. 1017 (2009).

Joshua Fairfield’s The God Paradox takes an unambiguous normative proposition—that operators of online networks should operate those networks in ways that mirror common carrier principles—and justifies that proposition in unmistakably pragmatic terms:  Doing so may or may not make users of those networks better off, and may or may not make society better off.  But it will clearly make the operators themselves better off, because reducing their control over user behavior is likely to reduce their risks of liability.  That’s the “paradox.”  Indirectly, that approach will benefit users and society.

The article situates its “less control means less risk of liability” argument in the context of multiplayer online videogames and other virtual worlds, which are operated by firms that refer to themselves, in context, as “game gods”:  both formally and functionally, the operators claim the power to monitor and control all aspects of individual user or player experience, including both online behavior and communication with other users.  In part “game gods” justify this power in terms of maintaining the artistic and competitive integrity of the game environments.  That justification is not addressed in this article.  In part the “gods” justify this power in terms of self-interest:  Control reduces liability.  Maintaining an acceptably low risk of liability is essential to maintaining the gods’ incentive to supply the game environments. Continue reading "Straight Talk About Game Gods"

An Invitation to a Global Discussion on the Legal Profession

An invitation from the Legal Profession Section Editors
Tanina Rostain

John Flood and Tanina Rostain

As legal profession scholars have observed, law practice is being reinvented at an ever-accelerating speed the world over.  Legal services are being routinized, commoditized, outsourced, disaggregated, reassembled, computerized, and unbundled—among associates, law firm partners, solo practitioners, contract lawyers, paralegals, law consultants, temporary law workers, websites, and online shared platforms.  In the corporate realm, multinational companies demand that their lawyers be available to provide services 24/7 in every corner of the globe.  In the meantime, lawyers representing individuals, non-profits, and NGOs increasingly use new technologies and transnational resources and strategies to develop more effective and efficient models of service delivery.  Despite this rapid pace of change, many lawyer regulatory regimes lag behind and continue to hew to a model of regulation tied to geographical jurisdiction and domestic legal norms.

In recent years, the field of the legal profession has benefitted from a proliferation of research by scholars seeking to understand the many changing dimensions of the legal profession.  Researchers have drawn on a broad range of social science disciplines, methodological approaches, and multilingual proficiencies to investigate legal practice(s) in a wide variety of geographic settings. Continue reading "An Invitation to a Global Discussion on the Legal Profession"

Meet the Editors

Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section.  In addition, each Section Editor will write at least one contribution (“jot”) per year.  Questions about contributing to a section ought usually to be addressed to the section editors.


Professor Alison Christians
University of Wisconsin School of Law Continue reading "Meet the Editors"

Meet the Editors

Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (“jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.


Professor A. Michael Froomkin
University of Miami School of Law Continue reading "Meet the Editors"

Meet the Editors

Section Editor

The Section Editors choose the Contributing Editors and exercise editorial control over their section.  In addition, each Section Editor will write at least one contribution (”jot”) per year.  Questions about contributing to a section ought usually to be addressed to the section editors.


Professor Patrick O. Gudridge
Associate Dean
University of Miami School of Law Continue reading "Meet the Editors"

Meet the Editors

Cyberlaw Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (”jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.


Professor James Grimmelmann
New York Law School Continue reading "Meet the Editors"

Meet the Editors

Legal Profession Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section. In addition, each Section Editor will write at least one contribution (”jot”) per year. Questions about contributing to a section ought usually to be addressed to the section editors.


Professor John Flood
University of Westminster School of Law Continue reading "Meet the Editors"

Meet the Editors

Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section.  In addition, each Section Editor will write at least one contribution (”jot”) per year.  Questions about contributing to a section ought usually to be addressed to the section editors.


Professor Caroline M. Bradley
University of Miami School of Law Continue reading "Meet the Editors"

Meet the Editors

Section Editors

The Section Editors choose the Contributing Editors and exercise editorial control over their section.  In addition, each Section Editor will write at least one contribution (”jot”) per year.  Questions about contributing to a section ought usually to be addressed to the section editors.


Professor Pam Samuelson
Director of the Berkeley Center for Law & Technology, Richard M. Sherman Distinguished Professor of Law and Information at the University of California Berkley School of Law, Boalt Hall Continue reading "Meet the Editors"

Call For Papers

Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.

Although critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. First-time contributors may wish to consult the Jotwell Mission Statement for more information about what Jotwell seeks, and what it seeks to achieve. Continue reading "Call For Papers"

Call For Papers

Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.

Although critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. First-time contributors may wish to consult the Jotwell Mission Statement for more information about what Jotwell seeks, and what it seeks to achieve. Continue reading "Call For Papers"

Call For Papers

Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.

Although critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. First-time contributors may wish to consult the Jotwell Mission Statement for more information about what Jotwell seeks, and what it seeks to achieve. Continue reading "Call For Papers"

Call For Papers

Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.

Although critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. First-time contributors may wish to consult the Jotwell Mission Statement for more information about what Jotwell seeks, and what it seeks to achieve. Continue reading "Call For Papers"

Call For Papers

Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.

Although critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. Please see the Jotwell Mission Statement for more details. Continue reading "Call For Papers"

Call For Papers

Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.

Although critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. First-time contributors may wish to consult the Jotwell Mission Statement for more information about what Jotwell seeks, and what it seeks to achieve.

Reviews need not be written in a particularly formal manner. Contributors should feel free to write in a manner that will be understandable to scholars, practitioners, and even non-lawyers.

Ordinarily, a Jotwell contribution will

  • be between 500-1000 words;
  • focus on one work, ideally a recent article, but a discussion of a recent book is also welcome;
  • begin with a hyperlink to the original work — in order to make the conversation as inclusive as possible, there is a strong preference for reviews to focus on scholarly works that can be found online without using a subscription service such as Westlaw or Lexis. That said, reviews of articles that are not freely available online, and also of very recent books, are also welcome.

Initially, Jotwell particularly seeks contributions relating to:

We intend to add more sections in the coming months.

References

Authors are responsible for the content and cite-checking of their own articles. Jotwell editors and staff may make editorial suggestions, and may alter the formatting to conform to the house style, but the author remains the final authority on content appearing under his or her name.

  • Please keep citations to a minimum.
  • Please include a hyperlink, if possible, to any works referenced.
  • Textual citations are preferred. Endnotes, with hyperlinks, are allowed if your HTML skills extend that far.
  • Authors are welcome to follow The Bluebook: A Uniform System of Citation (18th ed. 2005), or the The Redbook: A Manual on Legal Style (2d Ed.) or indeed to adopt any other citation form which makes it easy to find the work cited.

Technical

Jotwell publishes in HTML, which is a very simple text format and which does not lend itself to footnotes; textual citations are much preferred.

Contributors should email their article, in plain text, in HTML, or in a common wordprocessor format (Open Office, WordPerfect, or Word) to ed.jotwell@gmail.com and we will forward the article to the appropriate Section Editors. Or you may, if you prefer, contact the appropriate Section Editors directly.

Call For Papers

Jotwell: The Journal of Things We Like (Lots) seeks short reviews of (very) recent scholarship related to the law that the reviewer likes and thinks deserves a wide audience. The ideal Jotwell review will not merely celebrate scholarly achievement, but situate it in the context of other scholarship in a manner that explains to both specialists and non-specialists why the work is important.

Although critique is welcome, reviewers should choose the subjects they write about with an eye toward identifying and celebrating work that makes an original contribution, and that will be of interest to others. Please see the Jotwell Mission Statement for more details. Continue reading "Call For Papers"

Jotwell Mission Statement

The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.

We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree.

Most of us are able to keep abreast of our fields, but it is increasingly hard to know what we should be reading in related areas. It is nearly impossible to situate oneself in other fields that may be of interest but cannot be the major focus of our attention.

A small number of major law journals once served as the gatekeepers of legitimacy and, in so doing, signaled what was important. To be published in Harvard or Yale or other comparable journals was to enjoy an imprimatur that commanded attention; to read, or at least scan, those journals was due diligence that one was keeping up with developments in legal thinking and theory. The elite journals still have importance – something in Harvard is likely to get it and its author noticed. However, a focus on those few most-cited journals alone was never enough, and it certainly is not adequate today. Great articles appear in relatively obscure places. (And odd things sometimes find their way into major journals.) Plus, legal publishing has been both fragmented and democratized: specialty journals, faculty peer reviewed journals, interdisciplinary journals, all now play important roles in the intellectual ecology.

The Michigan Law Review publishes a useful annual review of new law books, but there’s nothing comparable for legal articles, some of which are almost as long as books (or are future books). Today, new intermediaries, notably subject-oriented legal blogs, provide useful if sometimes erratic notices and observations regarding the very latest scholarship. But there’s still a gap: other than asking the right person, there’s no easy and obvious way to find out what’s new, important, and interesting in most areas of the law.

Jotwell will help fill that gap. We will not be afraid to be laudatory, nor will we give points for scoring them. Rather, we will challenge ourselves and our colleagues to share their wisdom and be generous with their praise. We will be positive without apology.

Tell us what we ought to read!

How It Works

Jotwell will be organized in sections, each reflecting a subject area of legal specialization. Each section, with its own url of the form sectionname.jotwell.com, will be managed by a pair of Section Editors who will have independent editorial control over that section. The Section Editors will also be responsible for selecting a team of ten or more Contributing Editors. Each of these editors will commit to writing at least one Jotwell essay of 500-1000 words per year in which they identify and explain the significance of one or more significant recent works – preferably an article accessible online, but we won’t be doctrinaire about it. Our aim is to have at least one contribution appear in each section on a fixed day every month, although we won’t object to more. Section Editors will also be responsible for approving unsolicited essays for publication. Our initial sections will cover administrative law, constitutional law, corporate law, criminal law, cyberlaw, intellectual property law, legal profession, and tax law — and we intend to add new sections when there is interest in doing so.

For the legal omnivore, the ‘front page’ at Jotwell.com will contain the first part of every essay appearing elsewhere on the site. Links will take you to the full version in the individual sections. There, articles will be open to comments from readers.

The Details

Learn more about Jotwell:

Jotwell Mission Statement

The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.

We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree. Continue reading "Jotwell Mission Statement"

Jotwell Mission Statement

The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.

We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree. Continue reading "Jotwell Mission Statement"

Jotwell Mission Statement

The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.

We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree. Continue reading "Jotwell Mission Statement"

Jotwell Mission Statement

The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.

We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree. Continue reading "Jotwell Mission Statement"

Jotwell Mission Statement

The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.

We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree. Continue reading "Jotwell Mission Statement"

Jotwell Mission Statement

The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.

We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree. Continue reading "Jotwell Mission Statement"

Jotwell Mission Statement

The Journal of Things We Like (Lots)–JOTWELL–invites you to join us in filling a telling gap in legal scholarship by creating a space where legal academics will go to identify, celebrate, and discuss the best new legal scholarship. Currently there are about 350 law reviews in North America, not to mention relevant journals in related disciplines, foreign publications, and new online pre-print services such as SSRN and BePress. Never in legal publishing have so many written so much, and never has it been harder to figure out what to read, both inside and especially outside one’s own specialization. Perhaps if legal academics were more given to writing (and valuing) review essays, this problem would be less serious. But that is not, in the main, our style.

We in the legal academy value originality. We celebrate the new. And, whether we admit it or not, we also value incisiveness. An essay deconstructing, distinguishing, or even dismembering another’s theory is much more likely to be published, not to mention valued, than one which focuses mainly on praising the work of others. Books may be reviewed, but articles are responded to; and any writer of a response understands that his job is to do more than simply agree. Continue reading "Jotwell Mission Statement"