A Proposal for a New Federal Clerkship Hiring Plan (When The Current One Collapses)

Jack Goldsmith writes on Twitter about the latest iteration of the federal clerkship hiring plan, which was supposed to involve a widespread pact among judges not to hire students until the summer after their 2L year. Many judges did not agree to follow the plan, but among those who did, it seemed like there might be a stable equilibrium.

Not so, Jack argues. When 2Ls apply this summer, he says, they will discover that “many on-plan judges went ahead and filled some (and for some judges all) of the 2021 clerkship slots with other students (3Ls, grads, etc.)” This includes, says Jack, some of the judges who organized the plan in the first place. (Read the whole thread for more.)

If all of this is true, and I trust Jack very much, though I don’t have direct testimony myself, it will make the plan seem quite unfair and it seems unlikely to be sustainable. This would mark a much faster collapse than the last round of the clerkship hiring plan.

On the other hand, some off-plan judges are hiring students as soon as the January and February of their 1L year. And off-plan clerkships generally leak out by word of mouth, with students and professors relying on personal relationships and networks to find out who might be hiring when.

If and when the plan collapses, I have a proposal for a new plan, which I mentioned parenthetically in an old blog post. This new plan would impose a modest restriction on clerkship hiring in order to have a fairer and more efficient competition for these positions.

1. Judges can hire law clerks any time they like, and law clerks can apply any time they like.

2. All judges agree to publicly post, on Oscar or the equivalent, when they are hiring law clerks and how many positions they are trying to fill. They also agree to post when the clerkships are full.

That’s it. You could embellish this plan with some of the other rules like the rule that applicants must get at least 48 hours to decide, or with a rule that the posted positions must be kept open for X days, but I see those as best practices that need not be part of the core plan for it to succeed.

Cartels are hard to organize, and incomplete cartels are destined to fail. That is the lesson of the previous two clerkship plans. And worse, the current clerkship plan has generated a significant loss in transparency, as those who circumvent it feel various pressures to go outside of the usual channels. It may be time to focus on transparency, and forget the strange dream of the cartel.

Other Reasons for Look-See Visits?

Usually when Adam and I blog about the same thing we disagree. But not here. I share Adam’s view that the costs of the semester long visit system exceed its benefits. I also applaud Adam for following the wisdom that one can’t eliminate an institutional as irrational or unjustified without first trying hard to understand why people adopted it. And I agree that one big contributor is the way a law school faculty pools together a lot of different kind of researchers into one voting body.

But here are a few additional hypotheses:

The visit as costly signal. Many law school professors want things — money, time, status — from their home institutions and sometimes they need bargaining power to get it. Getting an offer from a competing school gives them bargaining power, but it can waste the time, energy, and political capital of faculty at the competing school. Making people visit is a way of making sure they are seriously interested and worth spending the time to evaluate them and build a coalition to hire them. Again, I’m not convinced these costs are worth it, especially given how unevenly they are borne. But I hear it as a reason for requiring the visit.

Is there any reason this would be more true in law schools than other academic departments? Maybe. Given the breadth of law schools and even of positions within each field, it seems plausible to me that there would be more fluidity in the lateral market and more opportunities for fake expressions of interest. But I’m just guessing.

We need the teaching. Teaching law students is at the center of a mission of a law school. The set of canonical courses is relatively large. And unlike other departments, law schools can’t or don’t require on non-professor lawyers or on graduate students to cover a lot of these courses. So one way to staff these courses is with visiting faculty from other schools. And yet to induce these faculty to visit, one sometimes must offer them more than just money; one must dangle the possibility of a lateral offer, even if only a rare few visitors get it. I can think of some major law schools that seem to staff their courses in this way.

Do we have objective standards? Finally, I think Adam may be unduly optimistic in imagining that even the constitutional law faculty or the tax faculty at most law schools can agree among themselves about who is doing objectively excellent work in the field. Differences in areas of study and in basic methodology run deep in law, and I’ve known schools where the two faculty experts on a given subject were almost completely unable to agree that any other person was excellent. Maybe the personal factors and collegiality that can be judged on a visit provide a way for people who disagree on methodology to agree on a candidate nonetheless.

I’m not sure how much work each of these hypotheses are doing, if any, but they can help us through the kinds of transparency and institutional culture that may be necessary to improve law school hiring and move away from semester-long visits.

Look-See Visits are About Coalition Building

One month ago, Tess Wilkinson-Ryan wrote an essay explaining the high costs that “look-see” visits place on law professors. (For anyone not familiar, look-see visits are the practice of requiring a professor from another school — e.g. Penn — to visit for a semester — e.g. teach contracts at Stanford for the fall — so the faculty can get a good look at the professor as a colleague before offering them a job.) Tess’s fantastic essay sparked debate across the legal academy — in tweets, blog posts, and, anecdotally, in repeated conversations — about whether it was time to stop requiring visits before making lateral offers.

As many have persuasively argued, the personal costs of visits born by the candidates are extremely high, the information visits provide about how the candidate will be as a colleague is noisy, and insisting on visits likely disproportionately limits the mobility of certain candidates (e.g. women, people will small children, people with limited resources or support networks, etc). For these reasons, I am in favor of eliminating the strong norm of requiring semester long visits.

But changing this norm requires a major shift in the legal academy’s practices. It is thus worth first asking why law schools developed this norm in the firm place. Notably, social science departments and other professional schools largely do not require look see visits. So why do law schools? The answer is that unique features of law schools make them necessary to build coalitions willing to vote for candidates.

Law schools have faculties with a diverse range of educational backgrounds, methodological commitments, and subject matter expertise. A single law school faculty may include moral philosophers, legal historians, applied micro-economists, and even a few lawyers. But unlike business schools or public policy schools, we are not divided into defined “groups”. Although business schools may have economists and phycologists on the faculty, the finance group will decide on the best person to hire to teach finance and the marketing group will decide on the best person to hire teach marketing.

The fact that law faculties don’t operate this way is relevant for two reasons.

First, it is more difficult for us to judge the research record of lateral candidates in different fields. If the constitutional law “group” at a school were asked whether to make a lateral offer to a professor at another school, they could likely form consensus without a long visit being necessary. This is because they can read and understand the candidate’s research and trust their own judgements about its quality.

But many people on a law faculty will be expected to cast a vote on the candidate despite having no way of directly judging the quality of their research. Moreover, they can’t just rely on the candidate’s publication record to tell them anything about the quality of the work. Business school professors can assume that a paper in the Journal of Finance is good because it went through a demanding peer review process, but there is no reason to make a similar assumption about a paper published in a leading student-edited law review.

Second, professors do not always directly benefit from the research done by colleagues that are not in their area. For instance, a tax scholar benefits from having other tax people around to give knowledgable feedback on their research or to expose them to new methods. A constitutional law scholar, however, might not care about those aspects of having a tax scholar as a colleague.

But that doesn’t mean that a constitutional law scholar is indifferent to which tax scholars are their colleagues. They are just looking for different things. Things like whether the tax scholar will go out of their way to offer feedback when they can on constitutional law research, pull their weight in institutional service, be fun to have around for lunches and dinners, and generally be a pleasant presence in the building (or, at very least, not be a jerk).

Both of these problems — difficulty assessing scholarship and looking for qualities beyond research — are ameliorated by visits. Even if I cannot read a constitutional law paper and know if it makes an important contribution, I can get a sense of whether a constitutional law scholar is a smart and curious person after being around them for a while. And even if I don’t care about research on constitutional interpretation, I can figure out if the constitutional scholar will be fun to have at meals. In other words, the visit is needed to build a coalition of people outside the lateral candidates area willing to support them.

So, how law professors be convinced to vote for people outside their area without the visit to win them over? The answer is that we should rethink short visits (whether a few days or a few weeks) to focus on exposing candidates to people outside their field. For instance, schedule a potential lateral candidate in tax to visit on a day they can attend a law and philosophy workshop and participate in the discussion, send the tax scholar to dinner with the criminal law scholars, and in general, focus a lot more on scheduling meals than office interviews.

Finally, beyond trying to recreate these kind of cross-subject interactions, we should also just all learn to trust the judgment of our colleagues with relevant academic expertise more instead of demanding that lateral candidates takes months out of their lives to charm us.

Veto Players and Compliance with International Law

One of the first projects I worked on was a paper with Rachel Brewster investigating when the United States complies with cases it loses at the World Trade Organization. We argued that the United States was likely to comply with adverse decisions when the executive could unilaterally take actions to bring actions American policy into compliance; but that compliance was unlikely to occur when it required coordination with other branches of government.

We built a dataset of the 37 WTO cases the United States had lost, figured out what happened after the loss (which was not as straightforward as I thought it would be), and then tested our argument with some basic regressions. We found evidence consistent with our claim, but it was extremely tough to say much definitive with such a small sample.

Which is why I was excited to see a paper just published in the International Studies Quarterly that looked at the universe of cases filed at the WTO. Lauren Peritz’s new paper is a massive improvement on what we did in essentially every conceivable way. But I was excited to see that the argument we made held up. Here is the abstract of Lauren’s paper:

When do international institutions promote economic cooperation among countries? The World Trade Organization (WTO) is central to the multilateral trade regime and a benchmark for international dispute resolution. Yet it remains unclear whether it has been effective in restoring trade cooperation. This article uses WTO disputes to examine the impact of domestic politics in the defendant country on compliance with adverse legal rulings. I build a novel data set on compliance. Using the method of synthetic case control, I estimate the effect of adverse rulings on trade flows between disputant countries using product level time-series trade data. I infer the defendant complied if trade flows increased after the dispute, relative to estimated levels that would have occurred in the absence of the ruling. The results show domestic political divisions—measured by veto players—hinder compliance.

That said, although Lauren’s paper is now the definitive work on the topic, my paper on WTO compliance will always be particularly important to me. Rachel asked if I would be interested in collaborating on research while I was still a law student, which then set off a chain of events that directly led me to land at Chicago. Short version: Rachel was a former Bigelow fellow, and after we worked together, she implored her former Chicago colleagues to interview me for the Bigelow while I was still on the fence about applying for fellowships. So I’m glad the idea we worked on together holds up with dramatically better data (also, thanks again Rachel!).

Race and the Criminal Justice System

The empirical evidence that race influences outcomes in the criminal justice system is overwhelming. Study after study finds evidence that people’s race changes the way they are treated by police, prosecutors, judges, and juries. Most researchers in this area are not only no longer shocked by clear evidence that people are treated differently because of their race—they are instead bored because there is already so much evidence on the subject.

The huge amount of scholarship on race and criminal justice also makes it difficult to find new novel ways to research it. But I just came across a new approach: leveraging the fact that police officers are dispatched to automobile crashes independently of the drivers race to explore the role of race on traffic citations. Here’s the abstract of the paper Jeremy Smith—an economics professor at UC Santa Cruz—wrote using this research design:

Nonrandom selection into police encounters typically complicates evaluations of law enforcement discrimination. This study overcomes selection concerns by examining automobile crash investigations, for which officer dispatch is demonstrably independent of drivers’ race. I find State Police officers issue significantly more traffic citations to drivers whose race differs from their own. This bias is evident for both moving and nonmoving violations, the latter indicating a preference for discriminatory leniency towards same-race individuals. I show this treatment is unmitigated by socioeconomic factors: officers cite other-race drivers more frequently regardless of their age, gender, vehicle value, or characteristics of the local community.

H/T to my colleague Austin Wright’s twitter feed for tipping me off to this paper.

Diversity and Law Reviews

Earlier this month, the Financial Times reported a depressing piece of news about diversity in the legal profession: less than 20 percent of equity partners at major law firms are women. But last week, there was some good news about gender diversity in the law: the editor-in-chiefs of the top 16 law reviews are currently all women.

This kind of development happens because there are countless amazing women attending law school, but it likely also happens because most law reviews have adopted a range of informal and formal policies to increase the gender and racial diversity of their members. In that last two years, however, some of these diversity policies have been challenged in court. Among other things, the lawsuits have claimed that diversity policies decrease the quality of the scholarship that the law reviews publish.

This claim has no empirical support. Jonathan Masur, Kyle Rozema, and I decided to actually study whether the adoption of law review diversity policies changes the rate at which law review articles are cited (which, although flawed, is the standard measure of research quality in academia). We pre-committed ourself to a research design before seeing all the data, used a range of statistical techniques, and we didn’t find any evidence that the adoption of diversity policies produces a drop off in article quality.

So the news that the leading law reviews are now led by women makes me hopefully that the legal profession can make progress increasing diversity overall, and it does not make me remotely worried that we’ll have to sacrifice quality to do so.

Things We Liked This Week

1. Frank Easterbrook’s opinion in Jorge Baez-Sanchez v. Barr calling out the Board of Immigration Appeals — part of the Department of Justice — for thinking it can ignore the judgment of a federal court (“The Board seemed to think that we had issued an advisory opinion, and that faced with a conflict between our views and those of the Attorney General it should follow the later. Yet it should not be necessary to remind the Board, all of whose members are lawyers, that the “judicial Power” under Article III of the Constitution is one to make conclusive decisions, not subject to disapproval or revision by another branch of government.”).

2. Recent public debate by economists on the role of caste in India’s economics growth. Check out Arpit Gupta’s twitter thread and Tyler Cowen’s podcast with Abhijit Banerjee that discusses the topic.

3. This interview with our colleague Geof Stone on free speech at Chicago — in the National Review. (“This university is a famously — you might even say notoriously — serious place. Yet Stone is well aware of conditions elsewhere.”)

4. The Reconstruction Amendments: Essential Documents, Volumes One and Two. Edited by Kurt Lash, forthcoming from the University of Chicago Press, and now available for pre-order. Potentially a game-changer for teaching constitutional history.

Life in a Bangalore Slum

Ashrayanagar (or “the place of shelter” when roughly translated from Kannada). A slum in the Peenya Industrial Area of northern Bengaluru.

For the last several years, Anup Malani and I have been conducting ethnographic research in Indian slums. We hired a team of researchers, developed field sites in slums in cities across India, conducted interviews, spent time in the communities, and tried to understand how they work.

We set a goal for the project that, in addition to producing academic research, we would try to raise awareness about the how policy choices made by local, state, and federal government impact some of India’s most vulnerable citizens. I’ll be writing a lot more about those efforts in the new few months, but we just published a photo essay about one of our field sites as part of that process.*

The photo essay describes life in a community in Bangalore called Ashrayangar. Like many slums, the community emerged, in part, because local political leaders were eager for labor and the votes. But almost 20 years later, life in the slum is still defined by constant political contestation between community leaders and government officials over everything from getting clean water to avoiding demolition.

We’re profiling the community in depth in a documentary that we’ll be putting out later this year, but for now, go check out our photo essay to learn more.

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* The photo essay is a collaboration with two of our team members: Lakshmee Sharma and Shafali Sharma. I want to extend my sincere thanks to Lakshmee and Shafali for making this photo essay happen, and to Lakshmee for spending much of the last two years immersing herself in Ashrayanagar.

Precedent and Discretion

This blog has been quiet, at least for my part, because some of my core job duties like grading and article-writing had to take precedence over blogging. But with some deadlines behind me, I now have time to share a short paper for the Supreme Court Review I recently posted on SSRN.

The paper is called Precedent and Discretion, and addresses some emerging theories of precedent on the Supreme Court. Here’s the abstract:

Supreme Court precedent is a topic of perennial prominence. The Court overruled or severely limited multiple precedents last year, just as it did the year before that. Because of our widely-repeated norm of stare decisis, every overruling is criticized. Scholars have then debated whether the Court needs a stronger norm of stare decisis, so that it overrules fewer cases.

This focus is misguided. Rather than worrying about which cases will be cast aside, we should pay more attention to those precedents that are left standing in place. Many of the Court’s questionable precedents nonetheless go unquestioned. The real problem is not that the Court overrules too much, but that it overrules without a theory that explains why it overrules so little.

At last, it seems such theories may be coming. Last term, Justice Thomas (in Gamble v United States) and Justice Alito (in Gundy v United States) each attempted to explain some of their decisions to reject and adhere to precedent. These explanations deserve serious scholarly scrutiny, which they have not yet received.

Unfortunately, these interventions do not solve, and indeed they exacerbate, the problem. What they propose is neither a regime of adherence to precedent, nor a regime without precedent, but rather a regime in which individual Justices have substantial discretion whether to adhere to precedent or not. This turns precedent from a tool to constrain discretion into a tool to expand discretion, and ultimately into a tool to evade more fundamental legal principles.

Part I describes the state of stare decisis in the Court today. Part II discusses Justice Thomas’s theory that precedent must be overruled when it is “demonstrably erroneous.” Part III describes Justice Alito’s theory that precedents ought not be overruled on the basis of “halfway originalism.” Part IV explains why discretionary precedent—of which these theories are examples—are worse than no precedent at all.

Things We Liked This Week

1. This new paper by Julian Mortensen and Nick Bagley purporting to refute the non-delegation doctrine, and this response by Ilan Wurman.

2. The resignation of the President of the Romance Writers of America. (It’s a long story, but you can try to get caught up with this story or by scrolling Courtney Milan’s Twitter feed.)

3. The new LaMP Blog. LaMP is new organization started by leading migration experts dedicated to the idea that “labor mobility that allows workers from poorer countries to access job opportunities in rich countries has the potential of creating billions in income gains to workers, sending countries and receiving countries.” The blog’s first post by Lant Pritchett details the truly alarming trend of dramatically increasing retirement age populations relative to working age populations in all the world’s advanced economies. The ratios are already unprecedented, and are going to get much worse.

4. This essay by Tess Wilkinson-Ryan on “visits” in law school hiring. (We might have more on this later.)

Research as Consumption

The only thing bad about Will’s recent post, Unhelpful Tips for Junior Scholars, is the title. The advice is all helpful. And in addition to giving a lot of great tips that junior scholars should follow, Will also hit on my main piece of advice for people deciding which junior scholars to hire: focus on people that view research as consumption.

Let me explain why this so important. The mission of academic departments is the production and dissemination of knowledge. Even after tenure, you can force people to disseminate knowledge (e.g. teach). But it’s hard to force someone to produce it (e.g. research). This problem is true in all academic departments, but it’s exacerbated by several structural features of law schools: tenure clocks are short and denial rates are low; salary ranges are compressed; and there are non-research, legal related opportunities for faculty to spend their time on that will provide them with money, prestige, and stimulation.

So although it’s critical to hire people that are going to continue to be active researchers and help produce knowledge, it’s hard to compel them to do it for very long. The solution is to focus on hiring scholars that love research and would be doing it regardless of the professional rewards. The kind of people that love nothing more than a day alone in their office, that fantasize about starting new projects, and that love learning about other new research because they find it interesting. These are the people that are worth betting on as being future great scholars when making massive long-run investments in their hiring.

But identifying people that love research isn’t just important because its a good characteristic to focus on when predicting that individual’s own future scholarly output. Having people that love research around is massively important for peer effects. I’m pretty sure there is research on this point, but it’s definitely been my experience anecdotally.

When someone is an active researcher, there are things they’re learning about that few other people in the world know. So, over a meal, I can almost always learn something novel from someone that has a lot of active research interests. Often, the things I learn make me want to start new projects or help me improve current ones. And being around great, productive researchers makes me think I need to push harder to produce good scholarship.

But when I’m at a meal with an academic that is not actively engrossed by the researcher process, I find that that dinner conversations slide toward whatever is currently being covered on the landing page of the NY Times or the TV that people are watching. This might make for a fun evening, but it never does much to improve my projects. And it makes me think I should read more news and watch more TV.

Unhelpful Tips for Junior Scholars

On Twitter, somebody asked for my tips for young scholars. There’s no particular reason to think my tips are reliable (google “survivorship bias”) and it may not be possible to implement these, but these really are what I think are the most important.

1. Have lots of ideas. Many of them can be bad, probably most (see #3 below), but you need these or this whole thing is going to be miserable. Which brings us to ..

2. Enjoy writing about them. Some people find working on research independently enjoyable and fun; others regard it as work that is necessary to get other things they regard as enjoyable and fun (like paychecks or promotions or power). You will be much more successful if you are in the first category, which Adam likes to call “research as consumption.”

3. Fail fast. You need to start working on ideas to see if they are good ones, but you also need to abandon them if they are not. You’ll be a better scholar if you can get to the question whether to abandon them faster, rather than spending a year on a bad project, thus either wasting a lot of time or forcing you to delude yourself and deceive your readers into pretending it’s a good project.

4. Have faith in your good ideas. A corollary of #3. Once you’ve decided an idea is worth pursuing, don’t try to dress it up as some other idea that you think is more important or more marketable or more interesting. Les Green put this point very well in a discussion of “bullshit” dissertation titles, such as (the made-up example): Agency, Structure, and Power: The Milk-Marketing Board of Ruritania, 2007-2009:

   “Never allow doctoral students to use subtitles. Either there is good reason to study three years of decisions of the Milk-Marketing Board or there isn’t. . . . If there is, they should have the courage of their convictions and make the subject their title. If there isn’t, do not allow them to waste their intellectual careers on trivia and then package it up in a bullshit title.”

5. Say no. You shouldn’t say no to everything. You want to engage with others, both for their benefit and for yours. But if your research is successful you will have more invitations than you can accept. And time is scarce, so you can’t afford to give all of yours away. To implement this rule, I highly recommend the wise advice of Sarah Lawsky to have a “no buddy,” a trusted professional friend who reviews all of your new commitments before you accept them, and who has the power and duty to say “no” most of the time. Which brings us to….

6. Have friends you can trust. You can have ideas and enjoy writing about them on your own. But to decide which ideas to abandon and which requests for your time you can meet, you need advice, and the best advice comes from people who know you well and whose judgment you can trust. You want to share drafts or sketches or ideas early enough that it’s not too late to abandon them. You want people who know what you are good at and not so good at. In other words, you need friends.

I call this advice unhelpful because I don’t know what to say about how to do some of these things if you don’t already. But I think they are what successful junior scholars truly need.

This Year's Writing, Adam Edition

Like Will, I also thought this year got away from me. But every year gets away from me. (Overcommitting and then feeling constantly behind is my number one productivity tip.) Also like Will, I published four papers during 2019. But a difference is that all four of my published papers were co-authored empirical articles in peer-reviewed law and economics journals.

The first paper explored the influence that law clerks have on voting at the Supreme Court. In Legal Rasputins? Law Clerk Influence on Voting at the U.S. Supreme Court (Journal of Law, Economics, & Organization), we collected data on the identities and political ideologies of law clerks going back to 1960.[1] We then were able to use the timing of the Supreme Court clerk hiring process to identify that clerks exert modest effects on the votes of the judges’ they work for. But we found that the clerks exert substantial influence in cases that are high-profile, legally significant, or close decisions.

The other three papers all were on comparative antitrust law, and leveraged a series of major datasets that Anu Bradford and I assembled over the last five years or so. We also launched a new website to host the data and associated research. It’s got a lot of great new data for download, so check it out at http://comparativecompetitionlaw.org/.

In Competition Gone Global: Introducing the Comparative Competition Law and Enforcement Datasets (Journal of Empirical Legal Studies), we introduce the two major datasets that we assembled for this project.[2] One of the datasets codes the contents of 700 competition laws adopted by 130 countries and regional organizations since the beginning of competition law, and the other dataset provides information on the resources and enforcement activities of 112 antitrust agencies dating back to 1990. We use the data to illustrate some previously under explored trends in antitrust law, like how Russia has used competition law in a fundamentally different way than other countries.

In Trade Openness and Antitrust Law (Journal of Law and Economics), we use our data to explore a long-running debate in economics.[3] We spent years on this paper, and wanting to write it was one of the reasons we decided to spend years collecting antitrust data. So I’ll just share the whole abstract:

Openness to international trade and adoption of antitrust laws can both curb anticompetitive behavior. But scholars have long debated the relationship between the two. Some argue that greater trade openness makes antitrust unnecessary, while others contend that antitrust laws are still needed to realize the benefits of trade liberalization. Data limitations have made this debate largely theoretical to date. We study the relationship between trade and antitrust empirically using new data on antitrust laws and enforcement activities. We find that trade openness and stringency of antitrust laws are positively correlated from 1950 to 2010 overall, but the positive correlation disappears in the early 1990s as a large number of new countries adopt antitrust laws. However, we find a positive correlation between trade openness and antitrust enforcement resources and activities for both early and late adopters of antitrust regimes during this period.

In The Global Dominance of European Competition Law Over American Antitrust Law (Journal of Empirical Legal Studies), we looked at the diffusion of specific antitrust rules around the world during the post-war period.[4] We show that countries used to follow the American model when they adopted antirust now, but that now countries overwhelmingly follow the European model.

I also published a few short comments and op-eds, and spent a lot of time on projects that I’ll be blogging about in the new year.

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[1] This paper was co-authored with Adam Bonica, Jacob Goldin, Kyle Rozema, and Maya Sen.

[2] This paper was co-authored with Anu Bradford, Christopher Megaw, and Nathaniel Sokol.

[3] This paper was co-authored with Anu Bradford.

[4] This paper was co-authored with Anu Bradford, Katerina Linos, and Alex Weaver.

This Year's Writings

I confess that this year felt like it got away from me, but looking back I am surprised to discover that I published four articles in 2019.

Two of them were pieces on originalist theory co-authored with Steve Sachs: Grounding Originalism, in the Originalism 3.0 edition of the Northwestern Law Review, and Originalism and the Law of the Past in the special originalism issue of the peer-reviewed Law and History Review.

I also published two solo-authored pieces. I recently blogged about the most recent one, The Unconstitutionality of Hugo Black (Texas Law Review).

The other, which I published at the start of the year was an article in the Stanford Law Review called Constitutional Liquidation. Liquidation is something I’ve been working on since I before I officially became a law professor — it’s an attempt to reconstruct a profound aspect of James Madison’s theory of constitutional law, as well as to provide a theory of constitutional precedent: that the practice of the government (not necessarily the courts) can “liquidate” the meaning of ambiguous parts of the Constitution when it is sufficiently deliberate, widespread, and settled. Here’s the abstract:

James Madison wrote that the Constitution’s meaning could be “liquidated” and settled by practice. But the term “liquidation” is not widely known, and its precise meaning is not understood. This Article attempts to rediscover the concept of constitutional liquidation, and thereby provide a way to ground and understand the role of historical practice in constitutional law.
Constitutional liquidation had three key elements. First, there had to be a textual indeterminacy. Clear provisions could not be liquidated, because practice could “expound” the Constitution, but could not “alter” it. Second, there had to be a course of deliberate practice. This required repeated decisions that reflected constitutional reasoning. Third, that course of practice had to result in a constitutional settlement. This settlement was marked by two related ideas: acquiescence by the dissenting side, and “the public sanction” – a real or imputed popular ratification.
While this Article does not provide a full account of liquidation’s legal status at or after the Founding, liquidation is deeply connected to shared constitutional values. It provides a structured way for understanding the practice of departmentalism. It is analogous to Founding-era precedent, and could provide a salutary improvement over the modern doctrine of stare decisis. It is consistent with the core arguments for adhering to tradition. And it is less susceptible to some of the key criticisms against the more capacious use of historical practice.

Besides these articles, I also finally published a short chapter, The Court or the Constitution? in a festschrift for the great Professor Larry Alexander. It’s a short piece, but I’m especially proud of the fact that the chapter merited this comment in James Allan’s review of the festschrift:

As for Baude, let me just say that it is very seldom indeed that I read someone get the better of an argument with Larry Alexander. In my view Baude does just that in his chapter, even after considering Alexander’s reply. Both are a treat, but Baude’s claim that Alexander cannot have both the cake of judicial supremacy while also eating the truth of originalism, convinced me, and I recommend the exchange to all readers.

Finally, I also co-authored two amicus briefs to the Supreme Court, arguing that they should grant certiorari to decide whether to reconsider the doctrine of qualified immunity. (Something I published an article about last year.) One, in a case called Doe v. Woodard, was denied this summer. The other, in a case called Baxter v. Bracey, has been repeatedly rescheduled and is still waiting for the Court to decide whether to grant it.

Things We Liked This Week

1. Longform Best of 2019. It’s a fantastic list of long form magazine articles from the past year that are perfect for reading over winter break.

2. The Spy. A six-part mini-series on Netflix staring Sacha Baron Cohen about the life of Israeli spy Eli Cohen.

3. Agnes Callard on recommendation letters.

4. Tropical islands. Posting will be relatively light between now and the start of the quarter, though we have a couple things in the queue.

Published: The Unconstitutionality of Justice Black

My latest article was just published in the Texas Law Review, and it is called “The Unconstitutionality of Justice Black.” I originally gave it the accurate but completely uninteresting title “Ex Parte Levitt,” the name of the too-widely-forgotten case that inspired the article.

The article is about the constitutional controversy over the appointment of Justice Black. The day that Black was sworn in to the Supreme Court in 1937, an apparent crank tried to orally argue that Black was an unconstitutional usurper. The Court dismissed the case on procedural grounds.

But it turns out that the crank was correct, and might not really have been a crank. Justice Black was unconstitutionally appointed, and while the suit might have had some procedural problems, they weren’t exactly the problems that the Court thought they were.

The piece also discusses the aftermath of the litigation. As you may know, Justice Black sat on the bench for many decades. But during all that time, the Court never actually ruled on the lawfulness of Justice Black’s appointment. Instead, after a while everybody just took it for granted anyway.

As I’ve blogged before elsewhere, I’m generally a fan of Justice Black’s work, so I feel a little sheepish about publishing the piece. But I’ve become convinced that his appointment was unconstitutional. You can read the whole thing (only 30 pages) if you want to see why.

Things We Liked This Week

1. Five Minute Fifth, a new newsletter about the Fifth Circuit from Raffi Melkonian.

2. The two “emergency” podcasts that Trade Talks (@trade__talks) put up over the weekend to explain the announced US-China Phase One deal and the deal House Democrats struck with Trump Administration to revise the USMCA.

3. In Service of the Republic: The Art and Science of Economic Policy, a new book (primarily focused on India) arguing that countries with low state capacity should be “libertarian by necessity” and only focus on fulfilling functions it is absolutely essential the government does.

4. How deep, audacious 3-pointers are taking over the NBA.

Craft Beer and Law Blogging

Last year, Daniel Hemel and I co-taught a seminar on the “Law and Economics of Craft Beer.” The class was as amazing as it sounds. We drank great beer, met with people working in the industry, and learned about the bonkers three-tier system that’s been used to regulate alcohol distribution in the United States since prohibition. (We thought we were innovators starting this class; it turns out there was already a text book and blog about the law of craft beer.)

During the seminar sessions, multiple brewers told our class that a common mistake in their industry is confusing initial surges in demand for signs of a trend. When a new beer hits the market for the first time, hipsters — and law professors masquerading as hipsters — are excited to try it. This initial surge in demand can exhaust the initial supply, which makes getting to try the new beer even more exciting.

When this happens, many small breweries have made the mistake of making capital intensive investments to expand their capacity shortly after they’ve opened. But by the time the brewery has the capacity to meet a large demand, the need for the excess capacity evaporates because there is a new exciting beer to try.

Since we launched this blog one month ago, we’ve gotten 7,500 unique visitors. I’ve never had a blog before, so I’m not sure if that’s a lot or a little. And I’m also not sure if that’s all just an initial surge. But I am excited that people have been reading, and I’ll try to talk Will out of his plans to buy bigger fermentation tanks.

Reforming the Academic Publication Process Should be a First Order Priority

Anup Malani and I hosted a conference last week in New Delhi on finding ways to “Improve the Lives of India’s Urban Poor.” One of the presenters at the conference, Neelanjan Sircar, motivated his presentation with the above slide illustrating India’s disturbingly low female labor force participation (FLFP). As India has gotten richer, women have dropped out of the labor force at a rate higher than other South Asian countries. Neelanjan persuasively argued that understanding the drivers of this trend has massive welfare consequences, and given the size of India, is a question of first order importance.

Of course, a conference on urban poverty in India, FLFP isn’t the only problem of first order importance that came up. After all, India is facing dire consequences caused by climate change; there are frequent cases of violence against women and religious minorities; and there are still hundreds of millions of people in extreme poverty.

But here’s the most persuasive argument I heard last week about what problem should be the highest priority for researchers to tackle: making the academic publication process more efficient. Anup was the person that made this argument, and he was primarily talking about the peer review process in social science. Here’s the case he made.

Right now it frequently takes years for a paper to make it through the peer review process in political science, economics, or law & economics. Although this process sometimes makes the paper better, often it is just years of lateral moves. For instance, if you submit to Journal A, a reviewer may suggest to switch piece of evidence X with piece of evidence Y. If you’re rejected from Journal A, it’s reasonable to take a few months making the changes that the reviewers suggested before you submit to Journal B. After you get the referee reports back from Journal B months later, it’s all too common for a different reviewer to say it makes no sense to use piece of evidence Y instead of X. And then the process repeats.

The result is that authors spend years making tweaks on the same paper instead of starting new projects. If you believe that there is social value to the production of knowledge, this inefficient process is a massive social loss. But it may be the most important problem for academia to tackle, because whatever you think is the most important questions for researchers to study, they could be doing dramatically more of it if we could speed up the peer review process and allow them to move on to new projects. Think Neelanjan is right that FLFP in the developing world is a high priority problem to address? Fix the publication system so that researchers like Neelanjan can write twice as many papers instead of spending their time tweaking existing ones.

This brings me to the AALS proposals to reform the law review publication process that Will blogged about yesterday. The big advantage of the law review publication process is its speed. Established authors can submit their papers to dozens of law reviews in February and know with an extremely high degree of confidence that one of the journals will accept their paper by April. It would be a shame for any law review reform to give up this advantage over peer reviewed journals (although, making the process a month or two longer wouldn’t be a huge deal).

But the big drawback with the law review process is that the editors making publication decisions do not have any expertise in the subject matter of the articles specifically, or a good sense of what makes for a good article more generally. Peer reviewed journals typically don’t let second year graduate students review papers, and those students spend their time taking seminars where academic articles are read and debated. The view that a second year law student could assess the relative merits of papers after a year and a half of classes where they mostly read appellate cases is simply not credible.

The result is that law review placement is not a meaningful signal of article quality. It’s true that articles in the “Prestigious Law Journal” might be better on average than the “Low Ranked Journal”, but there is so much noise in the placement that it’s tough to look at a law professors list of publications and know much of anything other than how frequently they like to submit papers.

This creates its own kind of inefficiencies. It is most difficult for lower placed professors to successfully lateral when they do not have the advantage of their articles having a shot at top journals through blind peer review. The result is that the law professors that are best at producing research have difficultly moving to schools with better resources that would, in turn, allow them to produce more scholarship. Like the peer review process, the law review process is thus unnecessarily reducing the production of knowledge.

The only way to fix this problem is to introduce some form of peer review. Which is why it is nice to see the AALS proposals include a section on a possible peer review pool. Many of their ideas are sensible. But I would go further.

For one, I would require any author that submits an article to write referee reports for three other articles. Only after the author writes three reviews, and their paper has been reviewed three times, would the article be released to journals. Additionally, I would only allow law reviews access to the pool of peer reviews if they commit to not publishing articles that have not gone through the peer review process. The list of journals that have made that commitment would be posted online, and sticklers like me would know to not take any ones placements seriously if they publish in journals that have not made the commitment.

The AALS proposal had a versions of both these ideas, but it did not make them requirements or a cornerstone of their plan. These requirements, combined with some of proposed reforms (for instance, the requirement to take the first placement offered) could help to improve the signal in article placement without having law schools take on all of the problems of full peer review models.

Do Law Journals Need Real Reform?

Brian Galle has posted a discussion draft of A Proposal for Law Journal Reform, which is a project of The AALS Section on Scholarship, Advisory Committee on Law Journal Reform. Here is the introduction:

No one is satisfied with today’s legal publishing. The long-standing tradition of simultaneous submission to student-edited journals has always involved tradeoffs, but the costs of that approach have grown dramatically over the last decade. Where once even top journals faced a relatively manageable task in identifying promising submissions, technological innovation now enables authors to easily submit to hundreds of journals with a few clicks. The result has been enormous practical and even ethical pressures on students and authors. Top journals receive more than 4,000 submissions annually. Selection outcomes are often driven not by merit but by insider knowledge, such as whether an author knows when journals are open to selecting articles or how to “expedite” publication offers to more-preferred journals. Increasingly, top journals are demanding exclusive submission windows, undermining one of the core strengths of the traditional structure. With few clear rules of the road, opportunities for gamesmanship on each “side” are prevalent, and may be mutually reinforcing.

While we believe that legal academia can and should agree on “best practices” to improve how authors and editors conduct themselves, we are realists. No set of idealized norms can succeed in the face of enormous structural pressures. Fundamental reforms are necessary.

Thus, the Section offers two possible paths for reform, each of which can be further tailored. In the simpler path, authors will submit to a small number of journals at a time, and must accept the first offer received. Journals will not extend offers during a “quiet period” of four weeks or so. A more ambitious path involves adoption of a two-round Shapley matching system, better known as the “med school” match. In that path, authors will rank a set of journals from which they would accept offers, and journals will rank those articles that meet their publication threshold. Both paths can be combined with a new peer review pool, as we describe, and additionally AALS Member Schools can adopt and encourage compliance with a set of complementary best practices for authors and editors.

Though we detail the strengths and potential weaknesses of these options in more detail below, we want to emphasize here their overwhelming advantage over the status quo: each would essentially eliminate expedited review. Expedited review is the root cause of nearly all the problems we and other stakeholders have identified with the current approach. It motivates mass submissions and other, even less fortunate, gaming behaviors. It turns many journals into screening editors for journals that are more preferred by authors, greatly increasing both their workloads and frustrations. The time pressures it imposes make meaningful peer review next to impossible. And it systematically rewards authors who are most expert at navigating the system.

An alternative, of course, would be to turn to the exclusive-submission model common in other academic disciplines. We believe that would be too radical a step. It would greatly extend time to acceptance for most authors without alleviating the crushing workload of top-journal editors. Further, many outstanding law journals — although not enough, in our view — already operate under the traditional exclusive-submission/peer-review model of the social sciences. We believe that preserving both paths is important for the discipline.

I know that law professors love to complain about law journals and the law journal process, and I know that my own experiences surely bias my assessment of the system, but my view is that law reviews are not that bad. (As I’ve written before, most law review articles are not good, but I’m not convinced this is anything other than an application of Sturgeon’s Law — “90% of everything is crap.”)

In particular, the proposal focuses on two problems with the current system. The first is that prestige/quality sorting is imperfect, so the best articles are not always published in the most prestigious journals. This is surely true, but I’m not sure how true it is. When I come across new articles I notice a pretty consistent correlation between better articles and better journals — it’s far from perfect, but I think there’s a marked correlation. And so the question is how much the correlation is likely to increase from these new systems. I don’t think we know that, especially if we don’t know what the current correlation coefficient is, or what the causes are.

The second problem is that law review editors have too many articles to read, and therefore spend too little time on most of the articles. I take this problem more seriously, since it (according to the proposal) reflects the consensus view of law review editors. But there are good reasons for the systems we have, and so it’s hard to come up with a superior one that is likely to get any traction.

That leads me to wonder if both of the proposed solutions are too ambitious, since they require a lot of journals and authors to buy into the new regime. What if, instead, we focused on disclosure and promise enforcement on the part of the authors? What if we simply required authors to disclose how many other journals they were currently submitting to? Journals could focus their efforts, if they wanted to, on the authors who were not broadly playing the field. And what if we also allowed authors to promise to accept an offer if they received it? Journals could focus their efforts on these sure-yield articles if they wanted to.

Allowing both of these options would effectively let authors and journals opt in to one of the AALS-proposed systems — in which authors submit only to a small batch of journals and promise to accept any of them. But it would also make it possible to make marginal moves towards that equilibrium without requiring everybody to move at once. And it would leave journals and authors free to make their own judgments, which would let us find out how strong the demand for the proposed equilibrium really is.