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September|October 2005

Elsewhere

Tenure-track law students, prolix law professors, spendthrift juries, and forgetful judges. These and other characters from the nation's law reviews.

A MARKET OF PROFESSORS

For this back-to-school edition of Elsewhere, it seemed appropriate to give some advice to law students, particularly those who aspire to careers in academia. In a forthcoming essay in the Washington and Lee Law Review, Sara K. Stadler takes a stab at predicting the hottest areas of study in the coming years—the specialties that no hiring committee will be able to resist.

Using techniques adapted from stock analysis, "The Bulls and Bears of Law Teaching" sets out to determine which areas of law will be in demand. To do so, Stadler looks to trends in law review publishing, examining the subjects of articles published by students and faculty in the Harvard Law Review. She counts the number of articles written by law professors on a given subject, and then compares it to the number of student notes on the same subject. Stadler posits that subjects with far more student articles than faculty articles are those subjects where schools are likely to do the most future hiring. She also charted disparities between student and faculty interest in subjects over time, scrutinizing these charts to detect trends in the "market" for various subjects. Subjects that aspiring professors would be wise to study she labels "buys." Those where supply already outstrips demand she calls "sells."

The results are somewhat surprising. It turns out that student interest far exceeds that of faculty in the fun areas of bankruptcy, tax, and labor law (all "strong buys"). The seemingly sexier subjects of cyberlaw, jurisprudence, and environmental law are all rated as "strong sells."

Stadler's study is far from perfect. Her methodology fails to consider, for example, that law students may want to study subjects that they don't choose to write about (like constitutional law, often a registration favorite, which she codes a strong sell). Plus, looking at law review literature wasn't the most rigorous way of gauging supply and demand. As she admits, she chose her method because it was the least amount of work, and this essay is not, she points out, a "tenure article." Probably a good thing: Student interest in the subject was so low, she writes in a footnote, that no one responded to a job posting for an assistant to help her with her research at Emory Law School where she teaches. If her take on hiring practices is right, Emory isn't going to be tenuring anyone in this area of interest anytime soon. Washington and Lee Law Review, Volume 63, Number 1

TOO-LONG

In a recent issue of this magazine, Seventh Circuit judge Richard Posner published an article called "Against the Law Reviews." His essay mercilessly thrashed the law review system, its editors, and many of its articles: "The result of the system of scholarly publication in law is that too many articles are too long, too dull, and too heavily annotated, and that many interdisciplinary articles are published that have no merit at all."

Far be it for Elsewhere to bite the hand that feeds it by endorsing such views, but Posner does have a point about articles being too long. Earlier this year, the Harvard Law Review conducted a survey of about 800 professors on what they thought of reading, and writing for, the journal. When the results came in, the review learned that nearly 90 percent of respondents found law review articles to be too long; apparently, everyone likes writing them but no one enjoys reading them.

The Harvard Law Review has yet to publish the results of the rest of its survey (stay tuned to find out what percentage of professors read the journal for "general interest" purposes), but it was quick to act on the response to the length referendum. In conjunction with the law reviews at 10 other schools, the Harvard Law Review issued a public statement expressing a preference for shorter articles, and apologizing for their "role in contributing to this unfortunate trend in legal scholarship." (The first volume of the Harvard Law Review, published in 1887, was only 408 pages; last year's volume required eight books and weighed in at a total of 2,932 pages.) The review also instituted a firm policy on word counts: It would grant preference for articles shorter than 25,000 words and would publish articles longer than 35,000 words—a book, basically—only in "extraordinary circumstances." Authors who had already submitted too-long articles were invited to revise and resubmit them. "We are aware that we are abruptly introducing a constraint to which the legal academy is unaccustomed," the law review's president wrote in a letter to its contributors. "Not surprisingly, then, we anticipate growing pains."

This movement in abridgment was applauded in a recent issue of the Green Bag, the eclectic, occasionally eccentric grab bag of a journal that has long kept its average article below the 25,000-word mark. Robert C. Berring opens his (brief) article with the exclamation that the Harvard Law Review's news "rocked [his] world." Berring establishes himself as a connoisseur of law review-bashing like Posner's ("A tapestry of criticism has dogged the academic law review for years, leading commentators into mixing metaphors and calling for reform"), and seems persuaded that shortening articles will cure them of all their ills. We agree that the 11 law reviews are onto something, but fear that, frankly, an article like "Public Regulation of Private Enforcement: The Case for Expanding the Role of Administrative Agencies" would feel as long at 25,000 words as it did at 50,000. For those of you in the "general interest" camp, we still recommend our digests over most of the originals. Ours are typically around 250 words—though this one's a bit longer. The Green Bag, Volume 8, Number 3; Virginia Law Review, Volume 91, Number 1

TORTS 1, TORT REFORM 0

When tort reformers talk about rising jury awards, they usually direct their ire at so-called noneconomic damages, the "pain and suffering" awards that can drive up total damages totals and that are, in the minds of their enemies at least, unmoored from actual, quantifiable loss. Since 2000, eight states, swept up in the tort reform movement, have moved to cap noneconomic damages. And when President George W. Bush proposed a federal medical malpractice damage cap in 2004, his proposal called for limiting noneconomic damages as well.

A new study by Catherine M. Sharkey suggests that tort reformers should postpone the victory parade. She has found that when noneconomic damages are capped, juries simply find another way to give generously to plaintiffs. In malpractice cases, they do this by inflating the amount of money they award in the form of economic damages, which compensate plaintiffs for medical costs, lost wages, and other missed opportunities. Economic damages seem like they should reflect a mathematical calculation, but juries seem to have no difficulty boosting economic awards when noneconomic awards are capped. Sharkey's data, which examine medical malpractice cases across the country, show that when states cap noneconomic damages, overall damage amounts don't go down.

Sharkey acknowledges that she can't fully explain this phenomenon, but she offers several persuasive possibilities.

She thinks that in states with caps on the books, lawyers may be changing their court strategies in order to convince juries to increase economic rewards. Lawyers may also be changing the way they select cases, focusing more on plaintiffs who were high earners and therefore likely to be awarded a higher payout for lost wages. Either way, her paper suggests that the kind of tort reform championed by many just doesn't work, at least not if the goal is lowering total damages and keeping insurance premiums down. New York University Law Review, Volume 80, Number 2

(OVER)CORRECTION

Last issue, Elsewhere reported that human beings are unable to deliberately forget information. Please forget we said that. The paper we reviewed suggested that judges are not able to ignore information that has been introduced at trial but is subsequently ruled inadmissible. A new paper, in the Georgetown Law Journal, suggests that judges may be all too good at forgetting.

"Overcorrection" posits that when people are told one thing and later learn that it may be false, they tend to believe that the opposite of the original fact is true. Got that? The theory is probably easier to grasp through an example. In one study cited in the paper, subjects were presented with a job applicant with two positive recommendations and one negative one. When subjects were told that the negative letter was written by someone untrustworthy, more subjects chose to hire the candidate than did subjects in a control group that never saw the negative letter. The paper presents several such studies, some of which have direct bearing on the legal system. In a mock murder trial, a detective gave incriminating testimony, but when jurors were told to ignore it, they voted to acquit more often than jurors who had never heard the detective.

But in the last edition of Elsewhere, we learned that judges presented with inadmissible information on a rape victim's active sexual history voted to acquit the defendant more often than a control group that didn't see the data. So who's right? Alas, Ehud Guttel, the author of "Overcorrection," doesn't address that question. Despite their seemingly divergent results, however, the papers share the same conclusion. Using judges to decide admissibility and juries to decide guilt or innocence will lead to the best outcomes. Prescreening bad evidence reduces the need to deliberately forget and the temptation to overcorrect—whichever phenomenon actually exists. Georgetown Law Journal, Volume 93, Number 1; University of Pennsylvania Law Review, Volume 153, Number 4

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