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Italian Uniform Legal Citation System September 16, 2008

Posted by edublawg in Law Reviews, Legal Writing.
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The world now has a new Uniform System of Citation, along with the Bluebook and OSCOLA (Oxford Standard of Citation for Legal Authorities).

Jacopo Busnach Ravenna, a member of the ILSU Working Paper Series Editorial Board, has written a short - yet fairly comprehensive - citation guide for Italian lawyers. The name of the Italian Uniform Legal Citation System is “LexIndex - Regole per una Corretta Citazione Giuridica” [Lexindex - Rules for a Correct Legal Citation].

It may be downloaded here, and it is distributed under Creative Commons License 2.5 Attribution, Non-Commercial, Share-Alike.

More Good Ideas: Further Info on the Connecticut Intellectual Property Notes August 26, 2008

Posted by edublawg in Law Reviews, Legal Writing.
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Prof. Steven Wilf, the faculty advisor in charge of the Connecticut Intellectual Property Notes (hereinafter IP Notes) - which I reported about in my last post - has kindly provided all Edublawg readers with additional information on the nature and purpose of the IP Notes, which I am summarizing below.

The Connecticut Intellectual Property Notes was conceived as a “seamless e-journal.” In particular, it was intended to cater for the situation in which a senior partner in a law firm has a novel or grey-area IP problem. Yet, since she has figured out how to cabin the problem without resolving the issue, she can no longer charge billable hours to a client (though she still wants to figure out the issue more fully). In this context, law students play the part of unpaid law firm associates who can be assigned to the task: the student provides a memo for the partner, and they both collaborate on a short article with shared attribution.
The fact that it is a firm partner choosing the topic ensures that other lawyers are probably facing similar issues, which accounts for the “seamless” nature of the publication: authors and audience are the same.

Additionally, articles appearing on the IP Notes are usually shorter in length than ordinary law review pieces. A more manageable size, along with the possible greater timeliness of published pieces (which should be enabled by the peculiar topic selection mechanism outlined above), both contribute to creating a resource with the potential of being immediately useful to the legal community and, in particular, to legal practitioners.

As for the educational and professional aspects, through the IP Notes, the law partner with years of legal writing experience does the editing and exercises quality control. Finally, the relationship which inevitably builds between law partner and student might also extend beyond the immediate writing of the article, thereby providing the student with valuable professional opportunities.

At this time, students do not receive credit for their work on the IP Notes. It has been a pure “labor of love”. However, since students have competing demands on their time, the IP Notes might eventually have to move to a system of granting credits in a way that more closely resembles a traditional law journal institutional structure. Nevertheless, Prof. Wilf’s aim is to create a board for the journal which includes both practicing lawyers and student members.

Finally, there are plans to initiate US student/non-US student collaborations. This, of course, will mean that topics will need to be chosen in a different fashion and that a different editing mechanism will have to be put in place. In fact, Prof. Wilf believes that US students, who are often less well exposed to comparative law issues than their European counterparts, would truly benefit from working with a student from abroad on international legal issues. In turn,  a European student (so far, only Europe & Israel have been thought of as possible collaboration venues) would sharpen his/her legal English writing skills.

Good Ideas: Connecticut Intellectual Property Notes August 19, 2008

Posted by edublawg in Law Reviews, Legal Writing.
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One point I particularly enjoyed in the interview with Eric S. Nguyen, was when he said (although in slightly more nuanced terms) that the law review editing experience is a poor proxy for having students write their own scholarship.

Now, aside from seminars or summer writing fellowships (the latter, in particular, could really be a challenge to implement for lower-tier law school), are there other ways “ordinary” schools could spur students to write their own papers, but to do so in a supervised manner, so as to help them really polish their research skills and legal writing style?

A possible answer I found in the Connecticut Intellectual Property Notes (hereinafter IP Notes). I came across this kind of initiative while browsing the University of Connecticut School of Law’s website, after a paper of mine had been accepted by the Connecticut Journal of International Law.

Essentially, the IP Notes are an e-publication of the University of Connecticut School of Law, supervised by Prof. Steven Wilf.  However, differently from other publications, this journal is not only edited, but also entirely written by students. In particular, member students write short, practitioner-oriented pieces, subsequently cite check and format them, and finally publish these articles on the IP Notes website. What’s interesting, however, is that each student author is “backed up” by a practitioner advisor, that provides the newbie legal writer with  - I am guessing - substantial feedback regarding the content and novelty of the piece.

I was not able to learn how participating students are selected, and whether they are actually free of choosing whatever topic (within the boundaries of IP law) they wish. But these, after all, are secondary aspects. The big novelty still lays in the great opportunity inherent in a note-only journal where students are not just left to themselves, but are formally assigned a supervisor to guide them through the process.

Of course, I am not hoping that all student-edited law reviews turn into note-only journals, the access to which being restricted only to students belonging to the issuing law school. Instead, I believe that, along with ordinary law reviews, law schools could also implement experiences like the IP Notes, which seem to be very close to Working Paper Series. After all, students receive feedback on their writing and (although I’m not sure this is the case with the IP Notes) could eventually re-publish better and polished works elsewhere.

Walking, Walking, Walking Away . . . Loss of Commercial Reputation Upon Failed Negotiations August 13, 2008

Posted by edublawg in Negotiation, Social Networks.
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The reason for the presence of a post on “Loss of Commercial Reputation Upon Failed Negotiations” on Edublawg, which might not be immediately apparent to all readers, lays in my interest in social networks, and in the possible repercussions such a (relatively) novel understanding of human relations may have on the shape of the law.

I am, in fact, performing some research on liability for failed negotiations, and the case I am particularly focusing on is that of efficient breach of negotiations, arising when a party finds a better deal elsewhere, therefore deciding not to enter a contract with the original partner.

In this respect, I am trying to bipartite any expenses incurred prior to the execution of a contract into reputation-oriented and relation-specific ones. The former being those generating information valuable within the relevant social network, thereby contributing to a party’s reputation inside it; whereas the latter being those whose returns may be perceived chiefly inside the relationship with the negotiating partner, without yielding any “external” benefits in terms of reputation.

Now, the challenge is to establish whether reputation may really be regarded as a source of possible future revenues (social capital) for the negotiating parties, and of revenues independent of the success or failure of the negotiation. If so, it might then be possible to infer that no liability would then be justified for expenses whose returns consisted chiefly in the enhancement of a party’s commercial reputation in the relevant social network (since such returns - for uncertain they may be - would be unaffected by the outcome of negotiations). In sum, these returns would prevent one from defining reputation-related expenses as “losses”.

This, however, brings to surface another problem. The only way through which reputation-related information on one of the two parties may “exit” the boundaries of their relationship and enter the wider social network is, essentially, through the other party.

If, however, negotiations have an unsuccessful outcome, what guarantees us that  any positive feedback generated in the earlier stages of negotiation will actually be passed onto others, and not be “absorbed” by the ultimate negotiation breakdown?

The task is a daunting one. However, while browsing on Amazon looking for a book on the topic, I think I actually found a possible argument in favour of my thesis.

Have you ever noticed how every book review on Amazon is often followed by subsequent comments from other customers, regarding the helpfulness or the overall quality of the review? Feedback (such as the book reviews on Amazon) is indeed important in helping people choose. However, people do not just look for any feedback. First of all, they might try to hear several opinions. Additionally, and this is the point I want to make, even as regards negative feedback, people are not just influenced by any negative comment. Instead, they want to know if something can be good or bad for them: not all negative feedback will, actually, hamper a party’s “social capital” within the relevant social network, but only that negative feedback which conveys (negative) information on those aspects of the party’s behavior that may be relevant for a great majority of that party’s possible customers.

What does this mean? Well, think of a prolonged two-party negotiation. The longer negotiations proceed, the likelier it is that any disagreement will concern some specific aspects of performance, rather than generic grounds (which, by hypothesis, are those that would instead draw most other people to or away from the concerned party and, hence, those with a greater weight on reputation). Hence, any negative feedback coming from partners in negotiations failed at an advanced stage might actually concern aspects that might be mostly irrelevant  to the great majority of other customers.

The latter, instead, will want to know some other information on a seller’s overall reliability, and - in turn - they will judge feedback they receive from others according to this scale of usefulness (this, as a matter of fact, seems to me what customer comments do with respect to the reviews posted on Amazon). The more generic the negative feedback will be, the greater its impact. The more specific, the lower its actual bearing on reputation.

What, then, if the feedback-providing party “altered” any generic positive feedback it might actually provide on the other party, “overwhelmed” by the negotiation breakdown? Now, extracting the returns from reputation-oriented expenses might not so much be a matter of a single negative opinion, but of a series of them (because people will usually listen to more than one opinion). Therefore, an isolated negative feedback provider within a mass of positive feedback providers might not only remain unlistened, but she might further be perceived as an overall poor person whom to request feedback to and, hence, be damaged in its own “social capital”.

Hence, despite the negotiation breakdown, a party’s consistent investments in reputation might actually find their way to the greater social network, and they might do so in a manner as “free” from bias as possible.

For now, of course, this remains just speculation. Feel free to post any comments you feel might provide useful insights, or add useful elements to the discussion.

Another View of the Cathedral: A Talk With Eric S. Nguyen August 9, 2008

Posted by edublawg in ILSU Working Paper Series, Interdisciplinarity, Law Reviews, Legal Writing.
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Prof. Eugene Volokh warns about the danger, when discussing any given issue, of getting “tunnel vision”, i.e. of focusing only on some specific aspect of the problem, while losing sight of the bigger picture. The antidote, he says, is a “test suite”, which can very roughly be thought of as an attempt to put an idea into a wider perspective, testing its soundness and feasibility against a broader analytical framework.

This is what I felt the need to do, with respect to my views on interdisciplinarity, law reviews and legal education in general. After all, I thought, I am not even part of the American Law School system that I attempt to write about.

I am not, but Eric is.

I came to know Eric through the Harvard Law School news feed (indeed, not a common way of making acquaintances) which, on July 14, 2008, contained a report going along these lines: “Eric Nguyen publishes paper in leading bankruptcy law journal.” The news was, in fact, about a law student having published a paper, entitled “Parents in Financial Crisis: Fighting to Keep the Family Home,” in the American Bankruptcy Law Journal (a leading peer-reviewed publication in the field), containing an empirical analysis of people in bankruptcy. A quick Google search further led me to an SSRN account with several papers, two of which are co-authored (one with a U.S. Senator, the other one with a fellow student), and to an Editor profile at the Harvard Journal of International Law.

Eric appeared to have experience with law reviews - from both an editor’s and an author’s perspective and with both peer-reviewed and student-edited journals - as well as with the interdisciplinary perspective in legal scholarship, given the ample command of statistical analysis that was apparent from his bankruptcy paper. In sum, these are the reasons that have spurred me to contact Eric to arrange what turned out to be an almost two-hour-long telephone interview, in the course of which I have discovered a thoughtful, friendly and open-minded person. In two words, Eric Nguyen.

An (almost) 24-year-old Bostoner (although originally from Pennsylvania), Eric holds an undergraduate degree in Government from Harvard College and is about to begin his third year at Harvard Law School, preparing for a career in the government or in legal academia. Finally, and most importantly, he seems to have a natural inclination for producing quality scholarly articles.

It is from here that question time set off:
 

[The Birth of a Scholarly Paper]

Edublawg: Law students generally find it very hard to even publish on student-edited journals. With “Parents in Financial Crisis: Fighting to Keep the Family Home,” however, you have managed to move beyond that step, and have your work appear in a peer-reviewed journal. This clearly speaks for the quality of your contribution. But how did you manage to come up with a truly innovative article, to the point of convincing subject specialists to publish your piece?

EN: I’ve been very interested in the assumptions Congress relies upon when it makes decisions. One of my professors, Prof. Elizabeth Warren, has done a lot of research to show that Congress may have a flawed assumption about the typical bankruptcy debtor. It has passed more stringent laws to keep the overspenders and irresponsible gamers out of the system. But it hasn’t recognized that the typical debtor is actually in the middle class, may be in debt because of a serious medical crisis, and very often has children. If Congress knew that, they might pass different laws. So, I had this interest in taking an empirical look at bankruptcy. Then, in the U.S., we’ve seen a housing crisis lead to millions of home foreclosures. It made me wonder: Are parents with children the people most hurt by the housing crisis because they want to keep their children in the same schools and safe neighborhoods? By looking at bankruptcy data, I could figure that out. It turns out they are - and that might convince Congress that they should provide greater homeownership relief to parents.

Prof. Warren not only helped me devise those research questions which I later focused on, but she also gave me to access the Consumer Bankruptcy Project, a thorough database on bankruptcy proceedings which she has started keeping since the ‘80s that provides a wealth of important information for empirically-oriented studies.

Edublawg: So, I take it that receiving faculty assistance was a determining factor in the success of your research endeavor.

EN: Absolutely. Prof. Warren was really instrumental. I had the seed of an idea, but she really helped me ask the right questions and challenged my own assumptions. We started out on opposite sides of the issue politically. She convinced me to keep an open mind and just follow the numbers where they led. Of course, she and several other professors gave me access to their enormous dataset from the Consumer Bankruptcy Project, a really amazing project that has collected data on bankruptcy since the 1980s. It’s been invaluable for empirical studies in the field.

I had a lot of help from friends, too. The funny thing about law school is how skeptical everyone becomes of everything. It was really helpful to have that constant questioning throughout the process.

Edublawg: Speaking of your friends, it seems that you are one of those people that not only possess the ability to come up with innovative ideas, but also to involve others in your research endeavors. I am referring, in particular, to the paper you co-authored with your fellow student Douglas Brayley.

EN: It’s been great to work with another author, especially when you have different strengths.

For instance, in the paper you just mentioned [note: "Good Business: A Market-Based Argument for Law Firm Diversity"], Doug really had a much better understanding of how law firms work, how they’ve evolved over time, what their trends have been. He took a legal profession class. He has a better intuitive feel for what goes on at a firm. I was better with the statistics - although, even there, Doug pointed out some number problems that we’re still working on! He could say, that’s not how a firm works, something must be wrong with your numbers. I’d say, well, that’s not how firms work, the numbers don’t support it.

The same kind of thing happened with my other co-authored paper, written with Sen. Specter. [note: "Representation Without Intimidation: Securing Workers' Right to Choose Under the National Labor Relations Act"]. I had read a lot of relevant cases, but the Senator and his staff had a really intuitive feel for how agencies actually make decisions. We could be checks on each other.

Edublawg: Going back to your bankruptcy paper, I find it surprising how a law student would decide to engage in empirical work, rather than “sticking” with a more traditional note or comment.

EN: I had a great opportunity in college to work with two political science professors - Profs. Jeffry Frieden and Beth Simmons - who stressed the importance of empirical work. I found that they could weave qualitative and quantitative evidence together to tell a compelling story. I actually wish I’d done more quantitative work then.

Maybe more importantly, one reason I came to law school is because I saw that law professors could keep one foot in the “real world.” They were testifying before Congress, advising politicians, being asked to comment to the media. I think people might be more convinced when you’ve got some data to back up your point, and I wanted to try my hand at that. I’ve become more and more convinced that empirical work has to become a more integral part of legal academia. Like I was saying before, courts come up with doctrines and Congress passes laws based on assumptions that often really can be empirically tested. Legal academics have a responsibility to test them, not just to frame broader theoretical questions.

I think your blog posting about Sen. Obama’s view of the legal profession touched on this. I saw that he said that lawyers have a special responsibility towards the general public. Part of that might be advocating for the underrepresented or for rights-protection. And part of it is to make sure that the government addresses real-world challenges responsibly and responsively. If there’s a housing crisis, the government should know how it affects people. If there’s a proposed labor law, the government should know its effects. I remember reading Judge Kozinski saying that the legal academics would be more influential if they addressed courts and legislatures and not just each other. I think that’s probably right. After all, it’s courts and legislatures who make such important decisions that affect us every day.

[Interdisciplinarity in Legal Scholarship]

Edublawg: You have brought up the topic of interdisciplinarity in legal scholarship. Do you think that’s where the future is headed to?

EN: I think so. I know that law schools are increasingly hiring J.D.-Ph.D.’s whose doctoral training in a subject other than law gives them a bigger toolkit to use to see how the world works. After all, it’s hard to write about Law & Psychology if you only have a superficial understanding of psychology. And you’re more likely to write about Law & Psychology if you’ve got a doctorate in psychology.

I think this could really change the feel of legal academia. Who knows, I’m just a student! But it seems like it would encourage law professors to draw on the insights from a much broader range of fields - and for those fields to draw on the law.

Edublawg: Would that be enough to enact an interdisciplinary turn? True, many American J.D.s have an undergraduate training in more quantitatively-oriented subjects, such as Math, Political Science or Economics. However, we mustn’t forget the great number of English majors that yearly make it into law school. How about them? Will they be able to understand legal scholarship that is interdisciplinary in nature?

Secondly, don’t you think that, as long as everyone is not able to understand what everyone else is saying, there might always be a risk that interdisciplinarity translates into a general opacity of legal discourse?

To put it differently, don’t you feel the danger that current interdisciplinary hype might just make the legal community overly receptive to any ideas (however poorly argued) provided they were supported by a few equations?

EN: That’s a real problem that probably has no easy fix. The audience for a legal paper is probably less able to evaluate empirical evidence, or is at least less comfortable with statistics. Scholarship from economics or political science might be less accessible to the legal academy than legal scholarship is to economists or political scientists. That might change as professors become more interdisciplinary. As for students, I think it’s an argument for colleges to strongly encourage basic economics, statistics, and political science-just as they require basic liberal arts courses. It can’t all be done by law schools, but I think they are at least trying to do their part.

Edublawg: What do you mean?

EN: Well, for example, I can take a seminar on Law and Economics, Law and Psychology, Environmental Policy, or do an independent writing project on any of those subjects. People can cross-register at other schools and take stats, economics, bioethics, and a lot of other courses, too.

Edublawg: Don’t you feel, however, that to gain a true, deep understanding of a non-legal subject, law schools should offer undergraduate-level courses at a graduate level? For instance, how could an English major really understand any paper about Law and Economics, without first having learnt some basic mathematics, such as Calculus?

EN: Well, yes, as I said, the problem can’t be solved by a law school alone. I should say, first, that it’s perhaps not necessary to do higher-level math to appreciate some core insights of law and economics, just as three years of law school aren’t necessary to appreciate the debate between originalists and evolving constitutionalists. I should also say, law school wouldn’t be nearly as rewarding if everyone had a degree in economics. The law is about how rules shape human behavior, and it’s better to have people who studied biology, education, English, government - really anything that broadens the perspectives we get.

But to the extent that some non-legal coursework is required to understand new legal scholarship, law schools should encourage cross-registration. I think, again, it’s also an argument for undergraduate schools emphasizing cross-disciplinary work. For my pre-law advisees - I am a pre-law advisor at Mather House [note: a student residence at Harvard University] - I try to explain how different courses might be useful to what they’d like to do in law school.

Also, some law schools are further thinking of providing two-year J.D. programs . . .

Edublawg: Are you talking about Northwestern?

EN: Exactly.

Edublawg: Would you favor such a form of more concentrated legal education?

EN: Well, I’m not sure about compressing everything into two years. I think it would be good to give students flexibility with at least a third of their time in law school - to give them time to write, to take classes in other fields, to take a more in-depth class on a subject they like. Harvard has really allowed that to happen. So, I think that flexibility might be more important than cutting down the time.

[Legal Writing]

Edublawg: So far, we have been talking of the contents of your article, also with reference to its interdisciplinary focus. How about the style? How did you master the techniques necessary for good legal writing?

EN: Well, I remember my first paper in college. I didn’t do well at all. I went to see the professor, who later became my thesis advisor, telling me how it was too “high-schoolish.” I was so upset, but he was right. I think I picked up better style by reading more. Political science articles are much more concise than law review articles, so I’d get in the habit of writing more concisely. I wish I could do that in this interview! It also helped just to read good fiction writers. I’m still trying to improve.

Edublawg: How about your graduate training? Don’t you have legal writing courses as well?

EN: We do, but I don’t think it’s that useful for scholarly writing. We get good training at writing briefs, but that takes a different skill.

Edublawg: On a more general level, what were the biggest challenges you found while writing you paper?

EN: Probably the time constraints. Writing a paper during the year is just very difficult when you’ve got so much other reading and coursework.

Another problem is how steep the learning curve is when you want to make a new contribution to a field. First, you might not know much about the substance. So you’ve got to read lots to learn about the topic. Second, you don’t know what’s already been written. So you’ve got to read lots to make sure your idea is new. And law review articles are so long, it takes a while. It’s made me realize that it’s a lot easier to write about subjects you’ve studied in class. That way, you’re at least somewhat familiar with the subject and have already done some reading on what’s out there.

Edublawg: You have spoken about contacting a faculty advisor for doing your scholarship. Are there other ways in which student scholarship is encouraged at Harvard Law School?

EN: Yes. First of all, we’ve got a lot of seminars with mandatory or optional paper options. It’s actually in one of those seminars that I started working on the bankruptcy paper with Prof. Warren. I think Dean Kagan has helped, too. We now have Summer Academic Writing Fellowships that give students a chance to write with a faculty advisor over the summer. We also have a lot of opportunities to work on journals. My experience has been that that’s largely about cite-checking and formatting, but the Law Review might have better writing opportunities. Those seminar and summer options give people a much better chance to think through ideas and write on their own.

Edublawg: In my post on Obama and interdisciplinarity in legal education, I also mentioned the fact that, in my view, top-tier law schools such as Harvard, Yale or Chicago do not specifically prepare their graduates to become a certain type of legal professional (e.g. a prosecutor, or an attorney). Instead, they do - in my view - strive to offer students as broad as possible a framework, providing them with the intellectual stature of true “social scientists,” in order to ultimately make them decide how and where to place their legal education at work within society. What you have just told me about the attention devoted to student scholarship does support this belief. Do you think this is actually true, or is it just an outsider’s impression?

EN: I definitely think that’s right. I don’t feel like we’ve ever been pushed to choose corporate law, public interest, government, or academia. The law school has been very clear that they want to provide us with the tools to be successful in any practice of law. Harvard now has “Upper-Level Programs of Study” to help guide people. There’s really good advising for anything we’d like to do, from picking a law firm to getting on the teaching market.

[Law Reviews: Student-Edited vs Peer-Reviewed]

Edublawg: You mentioned earlier Law Review membership . . . what can you tell me about your experience as an Editor at the Harvard Journal of International Law? How does that work?

EN: Well, the journal has a Submissions Committee that reviews submissions and checks to make sure the articles haven’t been preempted. They write memos about promising articles and send them to the Editorial Board for a vote. The Board often gets input from a professor on the strengths and weaknesses of the articles.

Edublawg: How long does that process take to complete?

EN: I haven’t worked on Submissions, but my impression is that it depends on whether we have already filled our volume or not. It could range from a few weeks to several months.

Edublawg: And is the review process actually blind?

EN: Well, in some sense I would say it is.

Edublawg: What do you mean?

EN: When the Editorial Board votes, no one knows who wrote the article. Of course, the articles are often not sent redacted, so the initial submissions readers are going to see who wrote it, who’s in the first footnote, all of those superficial proxies for quality. Those factors might be more persuasive because we’re just 2Ls [note: second-year law students] trying to figure out if these narrow scholarly ideas are actually insightful and helpful to advance the field.

Edublawg: I see. And how would you compare this process with that adopted by a peer-reviewed journal?

EN: First of all, peer-reviewed journals almost always require exclusive submission.

Edublawg: And your credentials. How much do they matter?

EN: Being a student has never mattered when I’ve submitted to a peer-reviewed journal. I think the editors there probably have a better idea whether an idea contributes something to their field or not, regardless of who came up with it.

Edublawg: How about feedback? I am not aware of a single student-edited law review providing any feedback. Is it different with peer-reviewed journals?

EN: I think it’s a lot better in the peer-review process, particularly if your article is rejected. As you said, student-edited law reviews provide little feedback unless they accept the piece. I’ve only had one article published in a political science journal, but my experience was really good. The peer reviewers sent back five or more pages of comments and critiques. One paper I wrote was rejected by a busy peer-review journal, and even then, they sent a lot of comments on how to improve the paper. That was really helpful. It’s also nice to know that you’re “close” to a good paper rather than miles away.

Edublawg: Why do you think student-edited law reviews do not provide any feedback?

EN: Well, they probably have to reject many more papers because of simultaneous submissions. It’s really too bad because students often provide the best - most skeptical - feedback. What I have written would be a lot worse off if my friends hadn’t taken the time to really read them substantively. They’re also not afraid to tell me when an idea is really dumb. They are law students, after all. Peer reviewers might have better insights about the “big picture” and where your article fits in to what’s already out there.

Edublawg: In a recent paper on student-edited law reviews in Europe, I - along with a fellow student - proposed the adoption of a two-tiered structure of legal publication. In Europe, that would be necessary in order to integrate student-edited publications with existing peer-reviewed journals. In the US, instead, such a system could still work by having, say, only 100 student-edited law reviews left, and transforming second- and third-tier law reviews into student-edited working paper series. That way, the burden on actual law reviews could be reduced, by having authors first try and publish on a working paper series in order to receive feedback, and have only the best working papers published in an actual law review. Do you think such a system could ultimately benefit the quality of legal scholarship?

EN: I’m not sure if the idea is practical, but I think it would be great. After all, it’s what happens - as far as I know - in every field other than law. In political science, for example, there are many working paper series, but only a handful of top journals where scholars are really trying to get published. It seems like it would be useful to use working papers and conference presentations to work out ideas before submitting them. I guess after you’ve written 40,000 words, though, people just want the darn thing published one way or another.

[ILSU Working Paper Series]

Edublawg: Speaking of student-edited working paper series, I would like to ask you one last question regarding one of my favorite topics here at Edublawg; namely, the ILSU Working Paper Series. Seeing how you have had plenty of opportunities to receive feedback from professors and other law students, I am getting doubtful that people like you could ever be interested in submitting a paper for consideration. All the more so if - for the time being - it were only students to provide feedback.

EN: I think getting feedback is almost always helpful. If you get useful pointers, you follow them. If not, you stick with what you have. I’d be happy to get feedback from participants in the ILSU Working Paper Series. The trick to making it successful might be to get a virtuous cycle started: Enough people submit and get feedback, and the series becomes more attractive. The more attractive it becomes, the more people will want to submit.

Edublawg: Eric, it couldn’t have been more helpful to have a chat with you this afternoon. Thank you also on behalf of all Edublawg readers.

EN: Thank you.

Article Watch: Web 2.0 and User Generated Content August 3, 2008

Posted by edublawg in Article Watch.
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I have recently come across the following article by George Carlisle and Jackie Scerri, with a very promising title: Web 2.0 and User-Generated Content: legal challenges in the new frontier, published on the Journal of Information, Law and Technology.

Here is the abstract:

The advent of Web 2.0 has enabled a host of new services and possibilities on the Internet. Among many new possibilities, users can easily upload online content that can be accessed, viewed and downloaded by other users around the globe. This has resulted in an explosive growth of User-Generated Content (UGC) which although creating exciting opportunities for users, presents many challenges, especially related to law and regulation. This paper discusses Web 2.0, UGC and the legal /regulatory challenges that have arisen in this new ‘frontier’ characterised by having a liberating democratic ethos (on one hand) but also sometimes tainted with illegal activity and disregard for accepted norms. Citing various researched case studies and legal cases, the paper highlights possible ‘dangers’ where traditional legal rules may be inadequate to address certain types of online activity, and discusses many of the legal challenges which this new frontier brings. These challenges are widespread and relate to intellectual property, liability, defamation, pornography, hate speech, privacy, confidentiality and jurisdiction among others. The paper also discusses the role of intermediaries (web hosts and service providers) and whether they can aid in effectively policing the new Web 2.0 frontier. Finally the paper attempts to discuss possible solutions for the way forward.

Student-Edited Law Reviews in Europe August 2, 2008

Posted by edublawg in Article Watch, ILSU Working Paper Series, Law Reviews.
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Yes. Student-Edited law reviews exist also in Europe, and the earliest ones actually have for nearly a decade!

I, along with colleague and friend Federico Longobardi, have authored a paper, now available in pre-print format on the ILSU Working Paper Series, that contains both a survey of  existing law reviews in Europe, as well as a discussion on the role that such type of publications may have in a context heavily dominated by faculty-edited journals, compared to the U.S.

In particular, we propose a two-tiered system where law reviews neither aim to replace peer-reviewed journals (which are instead useful in that they provide a highly authoritative and select forum) nor are they relegated in a subordinate sphere, publishing only works by students and for students, outside of mainstream scholarship.

Instead, we envisage a form of mutual cooperation between the two types of publications, in order to foster quality improvement of (mostly) non-faculty-authored scholarship - for which it may be harder to beat the competition and get through to a broader audience  - thereby opening up the legal marketplace of ideas, and simultaneously offering European law students a great opportunity for personal and professional growth, which - until recently - only their American peers could brag about. 

I hope you enjoy the paper. Feel free to leave feedback either as a comment to this post, or by emailing me at: lrussi (AT) edublawg (DOT) com.

Obama’s call: interdisciplinarity in legal education July 27, 2008

Posted by edublawg in Interdisciplinarity.
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I have recently come across the following writing: Barack Obama, Foreword, 2 CHARLESTON L. REV. (2007).

In it, Senator Obama offers an illuminating definition of the role of jurists in contemporary society:

We [lawyers] are not merely technicians implementing faithfully the design of others. We are often relied on to be participants in the debate over rights and power; we are called on to be stewards of public order, justice and democracy; we are called on to be architects and catalysts both for making real the American Dream, and for protecting people from abuse around the globe. We are called on for our judgment and counsel, not just our ability to use the language to any advantage.

Actually, the reason I feel this piece of writing deserves attention from Edublawg, is that I think it introduces a wider audience to the type of lawyer I suspect being envisaged in places such as Harvard (where Obama earned his J.D.) and Chicago (where he was a Senior Lecturer for a number of years), assuming - as I shall - it were possible to admit the existence of a Harvard- or a Chicago-style lawyer.

Both Harvard and Chicago (along with Yale, Michigan, Berkeley, Penn and what else you have) are - in fact - home to faculty that enjoy a worldwide renown for seminal works in various fields; a renown which is typically due to the broader, interdisciplinary perspective within which such scholars managed to frame their diverse conclusions. Think, for instance, of the Law and Economics movement that, by leveraging the general conceptual apparatus of (transaction cost) economics has - up to know - managed to produce papers being echoed well beyond state or federal American boundaries.

In particular, I feel this kind of intellectual environment likely affects the way legal education is understood in the aforementioned places, and - in particular - on the idea of “lawyer” therein adopted.

In fact, the interdisciplinary turn in legal scholarship may have conclusively bridged the gap between the realm of “lawyers” and that of “social scientists”. In this respect, I feel lawyers could be considered  - in relation to economists or sociologists - as engineers are usually regarded in comparison to mathematicians or physicists: those that do the “dirty job” of turning into working structures the theoretical constructs developed within different intellectual disciplines. We do not merely “implement[] . . . the design of others”; instead, we (should) have the ability to draw from a broad set of ideas in order to originally devise those mechanisms that may best promote societal goals.

This, in theory. In practice, making well-rounded social scientists out of law students may prove far harder, because of the need to account for the necessary specialised education J.D. (or, to include the non-American world, law-degree) candidates are supposed to receive, which necessary constrains the room that can be left open for possible excursions in other fields.

In this respect, however, the American system of legal education is already quite well-placed, in comparison to other, different ones (such as the Italian one, for instance, which I belong to). American law students, in fact, usually do possess a previous background in a subject other than law, thanks to their previous undergraduate education. Hence, it seems, the problem is not so much one of subjects taught, but rather one of method.

As Michael Pierson (apparently a J.D. Candidate at Case Western) once pointed out, American law students do possess the background, but often lack the ability to step from the turf of multi-disciplinarity to that of inter-disciplinarity, the difference being that:

[M]uli-disciplinarity [sic], brings forth multiple fields’ methodologies and theories to solve a problem. Interdisciplinarity, on the other hand, adds a step to the analysis. it tasks the thinker to not only use multiple fields of thought, but also to try and synthesize those two fields. This idea of synthesis is central to the process of interdisciplinary thinking.

While, therefore, enough room for intellectual curiosity is already given to American law students as undergraduates, leaving them with the problem of reconciling their previous way of seeing the world with that typical of a lawyer, I wish to end this post of mine with a take-home conclusion for non-American lawyers (and law schools) and, in particular, for Italian ones. In fact, I feel our problem to be rather different, namely one of subjects.

European (and, as I am in a better position to say, Italian) legal education does - in my view - end up being excessively law-centered (with entire courses sometimes devoted to the further study of incredibly tiny sub-branches of previously-studied subjects). Do we really need all that?

I think not, particularly in view of the fact that this restricted focus also precludes virtually any European (or, I had better say, Italian) lawyer from gaining a truly deep understanding of the more advanced - but, unfortunately for us, interdisciplinary - theoretical works developed by what are usually American or Israeli scholars. My proposal, in this sense, would be to introduce several introductory-level courses in various subjects (mathematics, economics, sociology, political science) in order to at least provide students with a grasp of what is being said outside the “lawyers’ niche”, of how the very same problems are being tackled from completely different angles, leaving further excursions on “alien” grounds to individual curiosity. Non-law “minors” could even be created.

At any rate, such changes could probably be the correct way to strike a balance, in Europe (and particularly in Italy), between interdisciplinarity and the common saying “Alle Bildung ist Selbstbildung” [All Education is Self-Education], endowing individual students with a starting-level background to later individually step onto an interdisciplinary turf.

Only then could we seriously try and produce lawyers that could also able to answer one such call, as that made by Obama to present and future generations of American jurists:

Today, at the beginning of the 21st century, we face new challenges that call upon lawyers and all leaders to  help guide the course of history. We face new security threats and new economic challenges. We must confront growing inequality in income, wealth, and skills, and we face global environmental risks that may be unprecedented in their scope and potential damage.

Will we manage to step up our game?

Dean’s FCKEditor: one-man WordPress plugin development and the establishment of a social network July 19, 2008

Posted by edublawg in Social Networks, WordPress.
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I have recently spent a fair amount of time browsing for a WYSIWYG Editor plugin to implement on the ILSU Wps website. While, in fact, tinyMCE is not all bad, it does sometimes display awkward behavior when switching from the Visual to the HTML view. Plus, it keeps messing up <p>, <div> and <br/> tags.

I ultimately opted for Dean’s FCKEditor WordPress Plugin, since it features an up-to-date version of the FCKEditor sotware, featuring a user-friendly interface to perform ordinary maintenance tasks (such as uploading images or files in a specific folder on your server) and displaying the ability not to mess up those tags which tinyMCE gives problems with.

However, my fear is that, since this plugin rests for now on the shoulders of one man (Dean Lee, whom I personally thank for giving birth to the plugin in the first place), it might one day cease to be regularly updated to future versions of FCKEditor and WordPress. After all, this is what (so it seems) happened to the Xinha4WP plugin, a WordPress implementation of the Xinha open source editor, which “died” at version 1.2 beta.

In my view, the problem with one-man plugins is not so much that users do not improve them: quite on the contrary, I am fairly sure that, as with all Open Source software, there exist scattered groups of people working on the plugin code. However, the problem is that all such ”tweaks” (which may often consist of important bug fixes) rarely get by to a larger audience, meaning that plugin-hackers keep their findings and changes to themselves, and might not - actually - even regard themselves as developers. This, however, chills any incentive towards the creation of a truly integrated social network of developers. In fact, the countless but de-centralized efforts of many ultimately do not go into the generation of newer and better versions of the plugin. Moreover, original developers might get bored of constantly receving bug reports and help requests from less tech-savvy users, and might ultimately decide to give up the regular updating of the plugin altogether (after all - I believe - one thing is developing, another is implementing, which sometimes requires personalized care and might therefore be annoying to individually perform for free). Newbie users will further get discouraged by a plugin that contains long-known-but-never-fixed bugs, and ultimately look somewhere else, or just bend their head, and submit to tinyMCE.

Hence, I believe that, if one truly believes that FCKEditor deserves to stay in - and keep up with - WordPress (which - in my view - might  become in the near future the CMS, for its incredible ease of use), the only way to keep this piece of software alive, and to have it survive the interests of its originator,  is to set up a developers’ website, where users familiar with the relevant code may submit and, most importantly, share bug fixes, to be ultimately integrated in newer versions. It is only by joining the decentralized efforts of many toward a single goal that it might be possible to achieve it, otherwise, they’ll just disperse.

 

 

Ideas for a “Law and Globalization” Call for Papers July 18, 2008

Posted by edublawg in ILSU Working Paper Series.
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Among other things, I am the Editor-in-Chief of the ILSU Working Paper Series, the world’s first student-edited legal working paper series, and Italy’s first ever student-edited legal publication venue.

Established during Spring 2008, the ILSU Working Paper Series shall launch its first worldwide Call for Papers in Autumn 2008. Not being organized as a traditional law review, accepted papers won’t be published in a dedicated symposium issue. Instead, they will be published along with all other unsolicited manuscripts, categorized by year and by subject, and with a distinctive tag associating and grouping them in a dedicated Call for Papers page.

Since we anticipate giving the Call for Papers as wide a circulation as possible, we also anticipate the possibility of receiving far more submissions than we would be able to thoroughly review (and provide detailed feedback on), according to our rigorous editorial policy. Hence, we thought that selecting a broad topic, encompassing many interrelated cutting-edge problems, may both allow us

  • to receive papers addressing pressing issues of our times and
  • to perform a preliminary selection based on the relevance of the topics addressed in each paper, with respect to the broader theme chosen for the Call for Papers.

Authors, in turn, could also know that, should their papers not make it after the first, preliminary screening, our decision in this sense would just be based on “taste” rather than on actual, structural defects in the arguments made in the submitted contributions, and may therefore rightly submit elsewhere.

Having said this, the purpose of this post is to try and gather the Blawgosphere’s impressions and thoughts on which facets of the law could be most relevant for a topic named ”Law and Globalization”. In particular, we would like to articulate it in several subtopics for different disciplinary areas, such as criminal law, contract law, tort law, international law and so on. Any ideas as to which problematic issues could each of these subtopics be addressed to would be very welcome; in this respect, please consider that the ILSU Working Paper Series is a general publication resource, which does not focus on a specific subject or, for that matter, which is not strictly bound - in the name of cross-border confrontation - to a specific jurisdiction. Please feel free to submit suggestions by posting comments, or by writing to: lrussi (AT) edublawg (DOT) com