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By Dave Hoffman

Why Is Privatized Procedure So Rare?

For some time, I’ve been mulling over how closely parties can tailor the rules of civil procedure to their own purposes. That is: are parties actually writing enforceable contract terms which state that if they sue each other, the ordinary procedural rules won’t apply . For example, they might contract to be able to take 5 depositions in a case instead of the default 10. Or they might dispose of the rules of hearsay.  The literature here arguably started with the Scott/Triantis piece, Anticipating Litigation in Contract Design, and has gotten new momentum from Bone, Kapeliuk/Klement, Dodge, and Drahozal/Rutledge. My contribution ended up being slightly more empirical than I’d expected — though I guess this won’t surprise any of our long-time readers.  In Why Is Privatized Procedure [...]

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Affirmative Action for Law Scholarship

There are several issues in this unfolding story about Scholastica, law review submissions, and “diversity” preferences. Let’s break them out.

I’m shocked!  Shocked!:  Over at Prawfs, Professor Mannheimer and various anonymous commentators think that Orin, Josh and I are naive.  Everyone knows that law reviews routinely take race, gender and sexual orientation into account when choosing between articles.  Indeed, Josh got an email from a former editor at the California Law Review saying that the practice “is nothing new and not exactly a secret.” Well, shucks. I guess I’m the sucker here.  Even if this had crossed my mind, I would have naively thought that law faculties would never permit law student boards to make decisions about articles based on race, gender and sexual orientation without clearly thinking through [...]

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Scholastica & Law Review Selection

As several commentators noted (most in private emails, because they are afraid of negative consequences in the submission market), a very disturbing aspect of Scholastica’s new submission process is that it appears to facilitate and encourage law reviews to use sexual orientation, race, and gender in selection decisions.  Josh Blackman has investigated, and written a very useful follow-up post which I hope you all will read.

My own view is that whatever the merits of law reviews giving “plus” points to authors are less prestigious schools, providing plus points on account of race, gender, and sexual orientation is a terrible, terrible idea, especially if the plus points are awarded in an opaque manner by a largely unsupervised student board at an instrumentality of the state. Scholastica [...]

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Against Scholastica

Like many of you, I’ve an article out in the Spring submission season. (More on that in a separate post later.) Let the agonizing begin! Seriously, where’s the thread?

This year, in addition to ExpressO, email, website submission, Redyip, and printed copies, we’ve a new way to deliver our articles to their ultimate masters: Scholastica. You may have learned about Scholastica when your favorite law review wrote you to inform you that they were exclusively taking submissions through that system, or when your associate dean told you that the institution would prefer not to pay pay more per submission than ExpressO for a substantially similar service.

Here are some key things you might not know:

As far as I can tell only two of the top fifty journals – [...]

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Pick up the Phone!

From Redstone Federal Credit Union’s credit card agreement:

“Collection. If your Account should become past due, or otherwise in default, you will accept telephone calls from us regarding collection of your Account. You understand that the calls may be automatically dialed and a recorded message may be played. You agree that such calls shall not be “unsolicited” calls for the purpose of state or federal law.”

Translation: screening us is breach of contract!

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