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By Dave Hoffman

PLF Noses Around the California Law Review

Via Josh Blackman comes this news:

“The Pacific Legal Foundation has sent requests under the California Public Records Act (the equivalent of FOIA) to the University of California Berkeley and University of California Davis, seeking information about how they use race and gender in making decisions about what articles to publish. You can download the requests here: [UC Davis PRA request; UC Berkeley PRA request.] The letters were sent to the Dean of the law schools, and carbon copied to the Editor in Chief and the Faculty Adviser.”

The PLF demands a response by March 2, which seems like an awfully short time, not least because the students involved on the board have important work to do, like reading this.

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What is the Point of Symposia?

Over at the Faculty Lounge, the estimable Michelle Meyer argues that it’s possibly inconsistent to take account of race, gender, and sexual orientation in symposia invitations but not to do so when selecting articles in law reviews.  Her post is thoughtful and well-written, though I believe it rests on a false premise.  Go over there and read it and then come back to find out which one.

Michelle largely responds to an anonymous commentator, who wrote:

“I know you don’t direct this question to me but to Dave, but let me chime in. I see them as analytically different. I think diversity is very important in symposia, and I agree that editors should seek a wide group of people taking of demographic facts there. The [...]

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Dodge v. Wholefoods?

Like many corporate law teachers, I have mixed views about the old chestnut of Dodge v. Ford.  On the one hand, it’s very quotable. On the other, shareholder wealth maximization is a normative goal, not a rule with teeth.  Still you go to war with the data you have.

Now we’ve more data – useful for an exam fact pattern, at least!  An alert student (thanks, C.M) found this choice quote in a recent interview of Wholefoods CEO John Mackey:

“JOHN MACKEY: I think that Whole Foods does have higher purposes. We take them very seriously. We don’t exist primarily to maximize profits.

We’re fulfilling the mission that we set for ourselves of helping people to live healthier lives, to hopefully reverse this obesity [...]

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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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