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Heidi Bond and Denise Brogan are discussing the etiquette of law student blogging. They've got some common sense tips: Assume that your professors and classmates are reading your blog; remember that you're in public; remember that your employer, professor, classmate, neighbor, family, and so forth may be reading.

In my experience, blogging as an attorney is much the same. I don't blog about my employer. I don't keep my employment identity hidden, but I generally don't discuss it. I certainly wouldn't ever discuss cases I'm working on, clients, or other attorneys. I sometimes write posts that "engage" other blogs (um, such as this one). If I do this, I assume that the other blogger is going to be reading my post.

Criticism of public figures is a little different. After all, George W. Bush or John Kerry don't read all of the many blog entries about them that are generated daily. But just because George Bush isn't reading the blog doesn't mean that a George Bush supporter isn't. And that supporter may be my co-worker, or boss, or a law clerk of the judge who is hearing my case. And so, even when discussing public figures, I try to be as circumspect as possible.

One other thing I've learned is that group blogs present their own potential concerns. Co-bloggers are likely to become associated as a group. Readers of Crescat Sententia are likely to start to associate the entire group with Nabokov, Neruda, and scrabble. These associations may or may not be what a group member wants. I sometimes find myself doing "damage control" if a co-blogger takes a position very different from my own, or potentially harmful to me. When my co-blogger Adam at my other blog writes negatively about gay marriage, I typically sign up weigh in on the other side, if nothing else to make clear that his views on that politically charged topic are not the same as my own. When Tutissima co-blogger Chad wrote negatively about law reviews (the very week I sent out my draft!) it belatedly occurred to me that his post might be viewed by law review editors as reflecting my own views Match Makers, and I hurriedly wrote an explanation of how useful I've found the law review editing process to be. (It was a sincere explanation, but a topic I might otherwise have left for another day).

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Recently, Brian Leiter criticized the Fourth Circuit, writing that:

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Now, I'm not so presumptuous as to label Leiter "moronially biased or ignorant." But I must admit, his post has made me curious, and so I would like to make a few comments about my understanding of Leiter's post, which I find not entirely convincing.

To begin with, Leiter's argument is apparently not merely that Fourth Circuit judges are bad, but that the existence of a particular procedural tool -- the en banc panel -- allows the Fourth Circuit majority to flout the rule of law. The clear implication of Leiter's argument ("The process is complete . . . en banc panels are then convened . . . the rule of law is, for many purposes, effectively abolished in states like Virginia and North Carolina as a result") is that the rule of law would not be abolished if the en banc procedure were not used. That's a surprisingly serious charge to make about a procedural device like en banc panels.

An initial question must be what Leiter means by the rule of law. After all, the rule of law is a term which different people tend to use very differently. We can see all manner of targets decried as against the rule of law: Punitive damage awards, police brutality, gay marriage, judicial appointments, jury nullification, election procedures -- practically every hot-button topic on either side of the political divide. This suggests that the concept of the rule of law, as used in political discourse, has different definitions for different people. And since rule of law has a number of different potential meanings, it is fair to ask in what sense Leiter is using the phrase when he argues that the rule of law is abolished in the Fourth Circuit. (It is a very common rhetorical tactic to accuse one's opponent of attacking the rule of law. The use of this phrase by so many different people, to suggest apparently so many different things, may stem from the fact that "rule of law" is one of a few concepts which continues to be held in high esteem by every political stripe.)

Fortunately, Leiter has answered that already. In his reply to a criticism, Leiter elaborates somewhat on the rule of law issues he sees in the Fourth Circuit, writing that,

Results that are politically unpalatable to the majority on the Circuit [are] regularly subjected to en banc review and reversal. Such a procedure is not part of the "rule of law" ideal on any known conception, since one part of that ideal is neutral decision-making, that is, decision-making in accordance with public and pre-existing procedures that are neutral as to results, among other things. If, however, every time a randomly-constituted 3-judge panel produces a result politically unacceptable to the circuit majority, en banc review and reversal results, then the procedures are not neutral in one of the senses central to the ideal of the rule of law.

Leiter's focus is thus on neutrality of decisionmakers, prospectiveness, and indifference to results. These fit in with classic conceptions of the rule of law such as Fuller's or Aristotle's.

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Indeed, en banc panels may be viewed as required to enforce the rule of law. In the absence of en banc panels, three-judge "outlier" panels may themselves be able to violate the rule of law. (Particularly if they are composed of judges who would be inclined to do this anyway). Leiter appears to be arguing that en banc panels are a bad development for the rule of law, at least in the Fourth Circuit. But it is not clear that any alternatives would be more favorable. Is Leiter suggesting that all three-judge panel decisions be allowed to stand -- plain old abolition of en banc panels -- and that that change would somehow reinstitute the rule of law? That seems like a hard claim to sustain. If the problems that Leiter fears exist, then abolition of en banc panels could produce better results in some cases. However, any abolition of en banc panels would certainly be a two-edged sword. It is not immediately evident that whatever gains to the rule of law might be achieved by preventing en banc panels from overruling correct panel decisions would not be outweighed by losses to the rule of law, caused by the absence of en banc ability to overrule panel decisions that are themselves against the rule of law. In particular, whichever of the judges who currently wish to destroy the rule of law -- apparently a majority -- might be emboldened to issue panel decisions contrary to the rule of law.

(Leiter does not offer any alternative to the en banc system, and it is not clear that he can do so. His singling out of the Fourth Circuit might suggest that en banc need be removed only from that circuit, but that solution has obvious rule of law problems itself.)

Leiter also shows little confidence in the existing safeguards that are meant to protect the rule of law. To state the obvious, the Fourth Circuit cannot do anything that the Supreme Court does not allow it to do. To the extent that the circuit is flouting the rule of law, it is the responsibility of the Supreme Court to rein it in. Similarly, the safeguard of impeachment is present. If a judge is flouting the rule of law, he or she may be removed from office through impeachment.

Leiter's charge, therefore -- that "the rule of law is, for many purposes, effectively abolished in states like Virginia and North Carolina" -- is then an indictment not only of the Fourth Circuit judges, but also of both the Supreme Court and the legislature. For the Fourth Circuit to truly abolish the rule of law in Virginia and North Carolina, it needs the acquiescence of the Supreme Court and Congress. Leiter's assertion is beginning to require ever-greater numbers of moving parts. And the more serious and complicated that the charge becomes, the more it begins to raise questions about the validity of the original claim. Leiter must be aware that readers are likely to apply Occam's razor, and they may ask questions, such as:

Which is more likely: The existence of a majority of Fourth Circuit judges determined to abolish the rule of law, an acquiescent Supreme Court, and an indifferent Congress; or the possibility that the Fourth Circuit has not really abolished the rule of law as most people understand that term?

It is impossible to tell from Leiter's brief discussion which decision or decisions he considers as going against the rule of law. It might be helpful in discussing his claim (Fourth Circuit abolition of rule of law) if he were to state which cases have caused his concern. Is he relying on prior scholarship, such as that of Arthur Hellman, in asserting this claim?

As it stands, I'm not convinced of Leiter's assertion. However, to be fair, I’ve given it a lot more attention here than he did when making it in passing. It seems entirely possible that a case can be made for Leiter’s assertion, but so far, he has not made that case. I’m naturally a skeptic of claims that I perceive as excessively broad-ranging or conspiratorial -- "all [Bush appointees / Clinton appointees, etc] are bad"; "the courts are controlled by the [left / right]"; "the media is controlled by the [left / right]" -- and so I’m naturally inclined to be skeptical of such claims. But I agree with Leiter that if the rule of law has indeed been abolished in the Fourth Circuit, that abolition is a terrible development. And as with most claims, I'm open to being convinced of the point, if he can substantiate his claim.

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This is of course a potentially valid concern. If cases are being decided based on political expediency, that is a very bad development. The veracity of this concern ultimately depends on what procedures were used in individual cases, and I'm not in a position to judge one way or the other, since I can't claim to have any evidence either way.

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In the comments to Chad's post, I offered a critique of some of his points, in particular his discussion of the relevance and importance of lesser-known journals. I wanted to follow up that discussion by offering my experiences and observations on another issue Chad discusses. He writes:

Is there even a "revise and resubmit" process in law review editing? My outsider's perspective is just that the law review says they'll take it, and you either agree or disagree to publish with them (you disagree if someone better has also accepted it). Changes can be made after this, but they aren't substantive; they are mostly stylistic.

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I've been on both sides here. As an articles editor, I sent out a detailed (20-30 pages) read of the articles I edited. It included broad points, suggestions for revision, and line edits. This was after we accepted a piece, but before we started the real editing and cite-checking. It was my experience that the comments and suggestions from that read often ended up in the piece.

Not every journal gives a 20 page read of an author's article, but nearly all journals provide feedback, and it can be very valuable. My experience on the author side has been varied. When I published my slavery takings piece with American, one of the first things I received after the offer was a long list of suggestions, comments, and potential revisions from Bill Kamens, the editor in chief. That list was great -- almost every one of his suggestions was incorporated into the article, and I added his name to the "acknowledgements" footnote.

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As an author, I'm thrilled to get strong, detailed, thoughtful edits. I realize that I don't have the time to sit around and envision every possible addition or loose end. Editors have brought ideas to my attention -- important ideas -- that I might never have realized without their feedback. Law review publishing works best, I believe, when it is a collaborative effort between the author and the editor.

I realize that not every author feels this way. We all knew about the horror stories of authors who refused any edits (and some particularly arrogant authors who would berate editors for even suggesting any change). I can't imagine having that kind of hubris. I don't know everything about any given subject, including the ones I write about. And so, for me, intelligent edits and suggestions are always welcome, and something that I look forward to.

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Something in Eugene Volokh's (link) reply to Kaimi's post raised my eyebrows, viz., that nonlaw profs. will submit their articles to 50-100 journals, at least! Several observations on this point.

First, I note an asymmetry between law and philosophy publishing. There simply aren't more than 50 decent philosophy journals. There may be 100 philosophy journals out there, but many are niche journals and many are ones nobody has heard of, which means that getting published in them won't help your tenure bid.

This makes me wonder whether a law prof. helps his tenure chances by getting a lot of articles published in law reviews like the "University of Southern North Dakota Journal of International Relations." My sense is that 30-40 articles published even in minor journals like these looks impressive - even though the article quality might be very poor. 30-40 articles published in obscure philosophy journals, for me, is underwhelming -- even evidence of lack of discipline. I'd rather see one article from Ethics. Something like this may be true also in law (e.g., you'd rather have one article in the Harvard Law Review), but quantity seems to matter much, much more in law, even quantity in non-top 50 journals.

Second, a gripe with law reviews I've made in the past - there are simply too many of them. One can hardly be faulted for a deep skepticism about whether we need that many law reviews, because after the top 50 or so, there must be a steep falloff in quality. After the top 50, the function of law reviews is (I hazard to guess) probably more about getting student editors experience rather than publishing quality work, or even useful work.

Do individuals even subscribe to non top 10 law reviews? Or do these reviews only have institutional subscribers, and are the articles only read (if ever) if they show up on a stray Lexis-Nexis or Westlaw search?

Third, the fact that one can make "multiple submissions," i.e., submit to many law reviews at the same time and then "bargain up" to get published in the best one, I think has something to do with the generally poor quality of many law articles. In philosophy journals, its almost taken for granted that you will be asked to "revise and resubmit" your article: the outright acceptance rates at philosophy journals is quite low. You submit an article to Ethics, say, and the two (professional) readers give you back substantive comments, in the light of which you're asked to seriously re-work your essay and then send it back to them.

Because quality of journal matters more in philosophy, you are well-advised to revise and resubmit, if eventual publication looks possible. Besides, if you try to submit the same article to a lower-tier journal, you still have to wait for them to get back to you. You can't submit to Ethics and Nous, and if Ethics says "yes" and Nous says "no," you just go with Nous. You can only go to Nous after you've waited for the answer from Ethics. That is, you have to promise to a journal that, at this point, you are giving the article only to them and will wait to submit it to other journals only after you've heard back from them.

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Lawyers, is this right?

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I'm embarking on the grueling process of preparing to send out submissions to law reviews again, and this year, I'm planning on outsourcing some of the work to ExpressO. ExpressO is a relatively new service that will send paper and electronic submissions to journals I designate. It looks like a money saver and a time saver; it's also an easy process -- I just check a few boxes, and my journal list is all set. However, I have one major complaint: ExpressO's list of journals (despite its length, over 400 journals total) is deceptively incomplete.

To its credit, ExpressO notes the possibility that its list may be incomplete. The website's FAQ states:

Q: The law review I would like to send my paper to is not on your list. What do I do? A: Please tell us the name of this review, and we may be able to have it added. In the meantime, submit your paper to that particular review on your own.

That's all well and good, but a key question is unanswered: Which major journals aren't on the list? (Aside: I know, everyone's list of major or significant journals differs slightly).

Well, a potential list of significant journals not currently on the ExpressO list (as compiled by me; others may differ on their definition of a significant journal) is:

Alabama Law Review
Cardozo Law Review
Connecticut Law Review
George Mason Law Review
Georgia Law Review
North Carolina Law Review
Notre Dame Law Review
Ohio State Law Journal
Tennessee Law Review
U.C. Davis Law Review
University of Colorado Law Review
University of Miami Law Review
Washington Law Review

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So, I'm happy to use ExpressO for submissions to the journals that they list. But I'm also glad that I checked that list myself, against previous submissions lists I had used, and noted some of these gaps. I'll be supplementing my ExpressO submission with some manual submissions to journals, and I expect that other authors will be doing the same.

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My father, a twenty-year Army veteran, e-mailed me about the previous post on insurance scams sold to troops:

Insurance sales are among the least of the problems. There are many more types of sales that get the the young GI to buy on a payment plan, and even though they never use the service they still have to pay the full amount month after month. I can think of gym plans that hit not only service men but also young people starting college. How about the photo plans where you prepay to get film and pitchers developed, and few people ever end up using it because it costs almost as much to mail it in as it does to have it done down the street. Then there were the various record and CD plans that keep sending CDs and billing troops. And of course the credit cards that charge 28%.