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The Other Market
Get PDFThe hiring market for tenure-track non–legal writing positions is a world unto itself with its own lingo (i.e., “meat market” and “FAR form”), its own unwritten rules (i.e., “Do not have two first-year courses in your preferred teaching package.”), and carefully calibrated expectations for candidates and schools with respect to the process and timing of hiring. These norms and expectations are disseminated to the participants in this market through a relatively well-established set of feeder fellowships, visiting assistant professor programs, elite law schools, blogs, and academic literature on the subject.
But there is another market that goes on every year with much less fanfare—the market for positions teaching legal writing. In fact, it is likely that every year law schools fill more legal writing positions than positions teaching any other subject. Moreover, the hiring market for legal writing positions is far more heterogeneous than the market for non–legal writing positions. The positions themselves vary widely in their job security, governing status, job responsibilities, and writing expectations. And, the hiring processes also vary widely in terms of timing, application requirements, interviewing process, and decision-making mechanisms. Yet, unlike the non–legal writing market, there is little available to guide would-be applicants through this daunting process.
This Essay aims to not only fill that gap but also provide a critical appraisal of the state of the legal writing hiring process and suggest some areas where law schools and the legal writing community can improve. This Essay was born out of my own personal experience with the legal writing hiring process as a candidate over the last few years but is also informed by a survey of legal writing programs that have recently conducted candidate searches. This Essay examines the kinds of candidates legal writing programs look for, when jobs are posted and filled, and the various approaches that schools take to the interviewing and hiring process. It then proposes some suggestions for improving the process with an eye toward broadening the pool of candidates, elevating the status of legal writing in the profession, and improving the quality of teachers that schools ultimately hire
Causation and Incentives with Updating Courts
No full textThis paper examines the negligence standard in the presence of intervening causal factors. The court observes the evidence and assigns a probability to the intervening factor in the course of evaluating the injurer’s negligence. The court must, under the law, put a substantial weight on the facts in estimating the intervention probability. We allow the court to also put some weight on its own prior. Under such an adaptive approach to assessing negligence, incentives for care are affected by the court’s inference process in addition to the usual factors. Courts can generate efficient incentives for care through the choice of prior
Commentary on Desert Palace v. Costa
No full textChapter 2 demonstrates how the US Supreme Court could have used the feminist technique of storytelling by rewriting Desert Palace v. Costa from the perspective of the plaintiff, who received a jury verdict in her favor in the district court. The feminist judgment corrects the Supreme Court’s willingness to allow the defendant to write the plaintiff’s story by detailing the egregious facts in the case that shed light on the gendered treatment she suffered – treatment that included repeated severely hostile behaviors among her coworkers and differential treatment by her supervisors. The rewritten opinion gives the reader a significantly different view of the case from that offered by the original opinion. The rewritten opinion demonstrates that the feminist method of storytelling illuminates the ways in which the facts occurred in the real world, and in doing so creates a counterbalance to the supposedly “neutral” and “objective” view that the Court originally presented
Brief of the Boston University Center for Antiracist Research as Amicus Curiae in Support of Petitioner in Larry Thompson v. Police Officer Pagiel Clark, Shield #28472; Police Officer Paul Montefusco, Shield #10580; Police Officer Phillip Romano, Shield #6295; Police Officer Gerard Bouwmans, Shield #2102, Respondents
Get PDFINTEREST OF AMICUS CURIAE
The Boston University Center for Antiracist Research (the “Center”) is a nonpartisan, nonprofit university-based research institution that convenes researchers, scholars, and policy experts across disciplines to find novel and practical ways to understand, explain, and solve seemingly intractable problems of racial injustice and inequity. The Center’s interest in this case arises from its expertise in researching and understanding the harms of policies, practices, and actions that produce and sustain racial inequities, and in advancing antiracist alternatives that promote racial equity.
The Second Circuit’s interpretation of the so-called “favorable termination rule,” which imposes an “indications-of-innocence” standard, is precisely the type of policy the Center is concerned about because it produces, maintains, and exacerbates racial inequities. The indications-of-innocence standard ignores how police officers disproportionately and routinely target Black, Indigenous, and other People of Color (BIPOC) with false criminal charges to cover up their abuses of power or to retaliate against BIPOC who assert their constitutional rights. Most importantly, the standard enables police officers who pursue false charges to escape accountability for such misconduct when prosecutors decide to dismiss false charges against innocent defendants who never had an opportunity to prove their innocence
Fun with Reverse Ejusdem Generis
Get PDFIn the canon of statutory construction canons, perhaps no canon is more canonical than the canon known as ejusdem generis. This canon, which translates as “of the same kind,” states that when a statute includes a list of terms and a catch-all phrase, the set of items covered by the catch-all phrase is limited to the same kind or type of items that are in the list. The canon of ejusdem generis has a long and storied history in the law, has been used by judges in countless cases, and has been the subject of a large body of scholarly commentary over the years. Unlike its more famous cousin, the canon of statutory construction known as “reverse ejusdem generis” is far less well known and understood. This canon states that when a statute includes a list of terms and a catch-all phrase, the terms in the list are limited to those that are consistent with the catch-all phrase. Unlike ejusdem generis, the canon of reverse ejusdem generis has not been the subject of an enormous body of scholarly commentary over the years. Indeed, it has been the subject of absolutely no scholarly commentary at all./= / \u3e/= / \u3eUntil now. For the first time in the history of the world, this Article provides a description of the canon, providing historical examples from cases involving such disparate topics as piracy, intoxicating beverages, and hazardous sludge. The Article then analyzes the canon, explaining the linguistic variables that make the canon more or less relevant in any given case. In particular, the Article argues that the more precise the catch-all term in a statute, the more likely the canon should apply to guide the statute’s interpretation. Finally, the Article looks in-depth at the landmark greenhouse gas decision of the Supreme Court in Massachusetts v. Environmental Protection Agency, which posed a reverse ejusdem generis issue even though no party or judge identified it as such. The Article argues that the failure to recognize that the statute posed a recurring interpretive problem rendered the treatment of the relevant statutory provision unsatisfying and unpersuasive. The Article concludes by arguing that courts, scholars, and litigants should recognize the existence of the reverse ejusdem generis canon and indeed call it by that name to ensure that future courts struggling with similar interpretive issues can more easily learn from earlier efforts and reach more informed conclusions
The Firm Administering the Coronavirus Rescue Considers Climate Risks in Its Ordinary Investments
No full textLast month the Federal Reserve tapped BlackRock, the world’s largest asset manager, to facilitate billions of dollars of purchases of securities authorized under the coronavirus economic rescue package. As the Fed has begun to implement its CARES Act–related stimulus efforts, though, it and BlackRock have sparked a partisan battle at the intersection of climate change and finance. Senate Republicans are worried that BlackRock could take climate change–related financial risks into account in making its securities purchase recommendations, as the firm has pledged to do when shaping its own investment strategies. Concerned that this approach would block fossil fuel energy and airline companies from their share of the financial rescue, Republicans are seeking to bar BlackRock from considering these risks in CARES Act purchasing. If BlackRock is going to make the best decisions for American taxpayers, it must be allowed to assess these climate risks as it does for other clients
Evidence Supporting the Value of Surgical Procedures: Can We Do Better?
Get PDFThere is an acknowledged need for higher-quality evidence to quantify the benefit of surgical procedures, yet not enough has been done to improve the evidence base. This lack of evidence can prevent fully informed decision-making, lead to unnecessary or even harmful treatment, and contribute to wasteful expenditures of scare health care resources. Barriers to evidence generation include not only the long-recognized technical difficulties and ethical challenges of conducting randomized surgical trials, but also legal challenges that limit incentives to conduct surgical research as well as market-based challenges that make it difficult for those funding surgical research to recoup investment costs. These legal and market dynamics differ substantially from those surrounding new drug or device development. Nevertheless, obstacles could be overcome and overall expenditures could be reduced if a share of federal health care agency budgets were reallocated to generating randomized trial data, standardizing outcome measures, and conducting observational studies analogous to those that have been facilitated for drugs via the Food and Drug Administration’s Sentinel Initiative. Until better quality evidence is available, ethical principles require adequate disclosure of the limited evidence base supporting current surgical procedures
The State Qui Tam to Enforce Employment Law
Get PDFThis Article examines the states\u27 response to Epic Systems v. Lewis, which held enforceable under the Federal Arbitration Act (FAA) mandatory arbitration agreements that require employees to waive their participation in collective and class actions in employment contracts. Recent evidence shows that mandatory arbitration can erode access to justice for and deterrence of employment law claims. States in response are considering qui tam statutes, which assign the state interests in penalties for employment law violations to private enforcers in return for a bounty, to substitute for the loss of class action enforcement after Epic Systems.
These statutes can increase deterrence and access to justice, and do not implicate the FAA so long as the claim belongs to the state. But the Supreme Court\u27s FAA jurisprudence evinces a hostility to statutes that permit an end run around class action waivers. It is an open question at what point a qui tam statute requires waiver under the FAA for insufficiently distinguishing between the private and public interests in enforcement. Current due process protections do not sufficiently protect against this threat, or the interests of states and the affected employees.
This Article offers the safeguard of agency oversight, often required by state nondelegation doctrine, to protect state qui tam statutes from FAA preemption by constraining qui tam claims to those that serve a distinct, public interest. Meaningful public agency oversight over the resolution of qui tam claims would protect the interests of the states and enable agencies to protect the interests of aggrieved employees. States can also reduce incentives for misuse of qui tam enforcement that harms the interests of aggrieved employees by extending qui tam enforcement to nonprofit public interest corporations as representative organizations
Tear Gas + Water Hoses + Dispersal Orders: The Fourth Amendment Endorses Brutality in Protest Policing
Get PDFThirty years ago, in Graham v. Connor, the Supreme Court determined that excessive-force claims against police should proceed via the Fourth Amendment, which theoretically protects an individual against unreasonable seizures. However, the Court showed extreme deference to law enforcement’s use of force by using a permissive reasonableness analysis that bestows on police great leeway to make quick split-second decisions in tense and rapidly evolving circumstances. The result is a test that, from its inception, has been too forgiving of police violence and misconduct. This lax reasonableness standard, along with qualified immunity principles, has shielded police from § 1983 civil rights litigation in excessive-force cases. However, the obstacles to relief are worse when the victim is not an individual in a regular street encounter but rather an activist during a protest—particularly an activist of color. This Essay explores this phenomenon through the lens of the Dundon v. Kirchmeier litigation that stemmed from the 2016 police assault on indigenous protestors opposing the Dakota Access Pipeline. The encounter left 200 activists injured after law enforcement blasted them overnight with tear gas, special impact munitions, and fire hoses to remove them from the area. In refusing to enjoin the police’s use of these weapons against water protectors, the judge questioned whether the Fourth Amendment even protected activists since police sought to disperse them, instead of arrest them. The judge then reasoned that even if the Fourth Amendment applied, the police use of force was reasonable considering the volatility of the crowd despite information that the plaintiffs themselves were peaceful—thus attributing the conduct of the entire group to the plaintiffs and erroneously amplifying the threat to law enforcement. Both lines of reasoning threaten the safety of protestors. The first removes from Fourth Amendment protection the emblematic protest scenario where police use force to disperse protestors. The second turns the Constitution on its head, foregoing traditional Fourth Amendment analysis, which inquires whether the government intrusion is reasonable in light of the individual’s actions, not the actions of the whole group in proximity to the individual. This is most dangerous to activists of color who are most likely to be perceived as threatening by police and to be the subject of their ire
Public Carry and Public Health: Good Cause as a Good Solution
No full textA heavily armed man, Dmitriy Andreychenko, walks into his local Walmart, and was eventually taken out in handcuffs. Another heavily armed man, Patrick Crusius, walked into his local Walmart and left under the same restraints. But only one, Crusius, had the intent to kill and left twenty-three dead and many others injured. Andreychenko was a “law-abiding citizen” with no intent to harm anyone and believed he was merely exercising his Second Amendment right to carry firearms in public. But in these seemingly identical scenarios, the public is powerless to determine an armed individual’s true intentions. The public cannot—and the law should not ask them to—make split second assessments of who is a threat and who is not. Instead, “good cause” requirements to carry firearms in public, which generally means providing a demonstrable need beyond self-defense interests, may provide a necessary balance between the rights of individuals who have reason to fear for their safety and the public’s fear of the growing gun violence crisis in this country