Join law reviews and journals nationwide in completing the brief survey found here. Now in its third year, this survey aims to follow patterns of gender and minority diversity among law review membership and leadership at ABA-accredited law schools nationwide.

In 2011 and 2012, the New York Law School Law Review published its law review diversity reports examining female and minority student representation among law review membership and leadership nationwide. The reports are based on research conducted in collaboration with Ms. JD and include results based on surveys of the flagship, general interest law review or journal at ABA-approved law schools.

2011-2012 Law Review Diversity Report
By the New York Law School Law Review
The 2011-2012 Law Review Diversity Report analyzed results from a survey of law reviews at all ABA-approved law schools—including results from law reviews at schools ranked in the Top 50 by U.S. News & World Report (the “Top 50 Sample”); ranked outside of the Top 50 (the “NYLS Sample”); and in a “Combined Sample” of all responding law reviews.  The results showed, among other things, a relationship between faculty divesity and law review diversity.

• For the full report, click here.

2010-2011 Law Review Diversity Report
By the New York Law School Law Review
In 2011, NYLS’s 2010-2011 Law Review Diversity Report expanded upon Ms. JD’s 2010 report on law reviews in the Top 50 by reporting the results of an NYLS survey of two limited samples of law reviews outside of the Top 50, based on criteria other than the U.S. News rankings: the percentage of women and minorities who are members of a law school’s full-time faculty.

• Read the full report here.

Reports by Ms. JD
Ms. JD published its Women on Law Review: Gender Diversity Reports in August 2010 and October 2012, examining female membership and leadership on the law reviews at law schools ranked in the Top 50 by U.S. News & World Report only. Ms. JD found that, although the percentage of female students on those law reviews (44.3%) and in leadership positions (46.2%) was in line with the percentage of women awarded law degrees during the same time period (45.7% in 2008), the representation of women in the editor-in-chief (“EIC”) position was “disproportionately low” at just 33%.

• Read the full 2010 and 2012 Ms. JD reports.

To make sure your law review or journal receives the 2012-2013 survey or for more information about how your law review can get involved, email survey@nylslawreview.com.

Digitization, Digital Texts, and the Traditional Mission of Libraries

Caleb Crain*

I’m here to play the role of Luddite. I’m going to talk about how the digitization of texts can slow and even harm research, which I believe is the traditional mission of libraries.

The eBook Copyright Page Is Broken

E.S. Hellman*

The process of digitizing a printed book involves much more than the conversion of ink on paper to bits in a file. Functional aspects of the book must be mapped to digital equivalents. Thus we have tables of contents and indices that turn into hyperlinks and spine files, and page numbers that turn into location anchors and progress indicators. One aspect of the printed book that has not received careful study is the copyright page. A cursory review of copyright pages reveals that almost nothing has been done to make them functional in the digital environment. The ink turns into text, but it’s dead text that quickly rots and may produce a stink.

Copyright Social Justice and the Digital Gutenberg Moment

Lateef Mtima*

Throughout the twentieth century, commoditization interests predominated in American copyright law and policy, often to the detriment of the public interest.[i] The commercial value of expressive output was typically prioritized over its importance to cultural progress.  Consequently, as developments in digital information technology presented new applications for expressive works, these advances were more often assessed as threats to entrenched copyright business models and interests, rather than as revolutionary opportunities to fulfill copyright’s mandate to promote the progress of the arts and sciences.

Collective Licensing for the Future:
Rights Aggregation and Licensing 

By Lois F. Wasoff* and Roy S. Kaufman**

The problem we are here to discuss is not really a new one. It has assumed rather critical importance in recent years . . . partly because we are in the “information age,” in which there has been a growth of information posing problems for users and producers of that information; and party because of the inclusion of newer technologies . . . . [1]

 Peter Phillips*

            Employment discrimination claims are “disproportionately susceptible” to dismissal on summary judgment¹ and such motions have been on the rise.²  Professor Nancy Gertner proposes that summary judgment decisions are being influenced by the “loser’s rule,” causing the number of employment law cases decided in the summary judgment phase to reach ever higher levels.³ The “loser’s rule” applies when an area of law develops based only on “losing” cases: a disproportionately higher number of plaintiff-loser cases are addressed in reported judicial opinions than plaintiff-winner cases and therefore the only case law for judges to follow in deciding summary judgment motions are the “losers.”⁴  This essay discusses the need to eliminate the loser’s rule in order to preserve the integrity of the judicial system by enabling justice for employment law plaintiffs and encouraging a robust system of case law for employment law claims by requiring lengthy decisions in both grants and denials of summary judgment motions for employment claims.

           The loser’s rule functions by advancing an area of law through the written dispositions of the “loser” cases. In particular, when a defendant employer presents a motion for summary judgment  to a judge, the judge has two options: (1) grant the motion or (2) dismiss the motion. If the judge dismisses the summary judgment motion, some opinions may be only a paragraph or two long and simply state there are genuine issues of material fact.⁵ Accordingly, these opinions are brief and without a developed discussion and consequently are rarely even published, not to mention cited. Alternatively, if a judge grants the defendant-employer’s motion for summary judgment, the judge often writes a lengthy opinion as to why there is not a genuine issue of material fact that must be determined by a jury.⁶ Yet for every summary judgment “win” for employer-defendants, which thereby gives the plaintiff employee a “loss,” there is yet another opinion describing why a plaintiff’s claim should be dismissed, as a result creating a rich case law history of “losers” for plaintiffs.⁷
This loser’s rule scenario is a self-perpetuating theory.  The case law becomes saturated with lengthy opinions explaining the reasons for denying plaintiffs’ summary judgment motions⁸; creates an impression that employees’ employment law claims are illegitimate and likely should be dismissed; and perpetuates the stigma that employment law cases are brought by undeserving plaintiffs rather than by unfortunate victims.⁹ These opinions are the most read by practitioners and available for citation by circuits.¹⁰
Our court system is purposefully designed to hear both sides of a dispute and to provide a fair and equitable decision for the parties and for future courts to follow.¹¹ Yet this quantity of loser’s rule decisions will perpetuate a legal history favoring one side: the defendant-employers.  With the loser’s rule in place, the judicial system is inherently inequitable.

           This essay suggests that one way to lessen the influence of the loser’s rule and balance justice is to require judges to write comparably substantive opinions when denying defendant-employers’ motions for summary judgment motion. With this requirement, the flood of loser’s rule opinions will end and summary judgment rulings will inform legal advocates on both sides of a dispute regarding how the case law is developing and the reasoning behind the courts’ decisions.

           Although this could place an added burden on the courts and on judges, this burden is necessary in the interest of justice to dispel the stigma that the “loser’s rule” has created for plaintiffs bringing employment discrimination claims. Demonstrating that the plaintiff’s claim merited a discussion, even when it should be dismissed summarily as a matter of law, can eliminate this stigma. 

 Michael Lengel 

           U.S. Supreme Courts are “ghosts of presidents’ past.”¹  At New York Law School’s Supreme Court Narratives: Law, History, and Journalism symposium,² Professor Akhil Reed Amar spoke of structural tensions inherent in the working relationships between a sitting President, limited to one or two terms, and the Supreme Court he inherits, where the Justices are appointed for life.  These relationships are made all the more dramatic when a newly elected “change agent”³ President must deal with “ghosts” left behind by a former administration.⁴ 

           The focus of the symposium was to honor New York Law School Dean and Professor Emeritus James F. Simon for his body of work, which included his 2012 book, FDR and Chief Justice Hughes: The President, the Supreme Court, and the Epic Battle Over the New Deal.⁵  Simon’s book details the lives of, and eventual battle between, Chief Justice Hughes, appointed by Herbert Hoover, and President Franklin Delano Roosevelt (FDR), who had replaced President Hoover in Depression-era America.  In 1935, the Chief Justice and FDR feuded over FDR’s New Deal policies, but Professor Amar reminded us of just how relevant the FDR/Hughes conflict is today: the flubbed swearing-in ceremony of the “change agent” President Obama (replacing two-term President George W. Bush), conducted by Chief Justice Roberts (appointed by President Bush), was simply the tip of the iceberg.⁶  The first salvo in the President/Supreme Court’s modern battle might very well have been the modern Court’s decision regarding the health care reform bill. That battle between presiding Chief Justice Roberts and President Obama’s campaign promise of health care reform is reminiscent of FDR’s campaign promise to restart the American economy after the Great Depression with financial reforms. FDR packaged these reforms under his New Deal legislations. 

           In October 1929, as President Herbert Hoover began his only term, “the bottom fell out of the stock market.”⁷ America “confronted . . . an emergency more serious than war.”⁸  During the 1932 presidential campaign, FDR criticized the Hoover administration and included the Supreme Court under Chief Justice Hughes in his description of the “Four Horsemen of Republican leadership: Destruction, Delay, Deceit, Despair.”⁹  With FDR’s election, the Democrats regained power for the first time in twelve years,¹⁰ and within the first 100 days of the President’s term, the Congress had passed every single one of FDR’s New Deal legislations.¹¹ The Supreme Court would change that.

           FDR’s fixes for the nation’s economy were summarily struck down as unconstitutional by Hughes’s Court on the now infamous “Black Monday.”¹² FDR’s reaction to the court’s reversal of the legislature’s work was incendiary:  “We thought we were solving [the nation’s economic woes], and now it has been thrown right straight in our faces and we have been relegated to the horse-and-buggy definition of interstate commerce.”¹³

            Critics of FDR were concerned with what appeared to be his “dictatorial ambitions,”¹⁴ evidenced by taking economic power away from the states and centralizing control. In retaliation, FDR threatened unprecedented action: he would lift the “Dead Hand” of the Supreme Court in order to give “the people of today the right to deal with today’s vital issues.”¹⁵   FDR threatened first a Court-packing scheme and then a federal statute to “check the Court’s power.”¹⁶  In private conversation, he even threatened to “carry out the will of Congress through the offices of the United States Marshals and ignore the Court.”¹⁷  He did not succeed. 

             In 2012, although problems with the economy were still at the forefront, a vital issue arrived before the Supreme Court: President Obama’s national health care reform, the Patient Protection and Affordable Care Act.¹⁸  The parallels Amar draws to FDR and Chief Justice Hughes are instructional, as there was much speculation as to whether the Roberts Court would overturn the Affordable Care Act. Based upon the history between these two leaders, it was, in fact, a great surprise that Chief Justice Roberts cast the Court’s deciding vote in favor of PPACA’s constitutionality. One reason for the surprise: Illinois Senator Barack Obama voted against the Chief Justice’s appointment.¹⁹ 

            In a stunning upset to conservatives, and perhaps as testament to Justice Roberts’ “formidable skills,” the Supreme Court in 2012, in a five-to-four ruling, narrowly voted in favor of upholding the constitutionality of the Affordable Care Act.  

           The Court did not act as Professor Amar’s “ghosts of presidents’ past”; it did not, as predicted, rule against health care reform act. But new hotbed issues, long brewing, will be brought before the Court in 2013.  Decisions are due for, among other issues, challenges to the Voting Rights Act of 1965, a federal challenge to recognize same-sex marriage, and the taking of blood samples from DUI suspects under Fourth Amendment stop and seizure laws.²⁰  While 2012 may be remembered for “one case,” namely, the health care reform act, 2013 “will be remembered for several.”²¹  The focus: “[e]very decision of the new term will be scrutinized for signs of whether Chief Justice Roberts, who had been a reliable member of the court’s conservative wing, has moved toward the ideological center of the court.”²²

           Not all ghosts of past presidents have yet been exorcised.

Leah D. Braukman*

           Merriam-Webster defines a fact as “a piece of information presented as having objective reality.”  However, Professor Ann McGinley says that no fact is truly impartial, especially in the context of employment discrimination cases. At the Trial by Jury or Trial by Motion? Summary Judgment, Iqbal, and Employment Discrimination symposium at New York Law School, McGinley discussed the sociopsychological theory that explains this concept: “naïve realism.” 

           Under the theory of “naïve realism,” people are aware that cultural identities influence how others view facts, but are blind to how their own cultural identities affect their view of facts.  According to McGinley, judges also suffer from naïve realism in that they are unaware that they might be swayed by their own cultural identity in their decisions to grant summary judgment in employment discrimination cases.

           A person’s cultural identity can include his or her race, ethnicity, gender, sexuality, religious beliefs, and political affiliations.  During her presentation entitled “Summary Judgment on Equal Pay Claims,” Professor Deborah Thompson Eisenberg cited statistical differences in the percentage of summary judgments granted in favor of defendants in a survey of 500 Equal Pay Act cases based on the political affiliation of the President who appointed the deciding judge and the judge’s gender.¹  With regard to political affiliation, Republican-appointed judges grant summary judgment in 67% of Equal Pay Act claims, while Democratic-appointed judges grant summary judgment in 72% of claims.  With regard to gender, female judges tend to grant summary judgment 65% of claims, while male judges will grant summary judgment approximately 70% of claims.  According to Eisenberg, although the difference in percentage in each cultural identity subset appears minimal—a mere 5%—even a slight difference bearing on the outcome of a case at the summary judgment stage of litigation is significant.  Such statistical evidence indicates that judges are just as likely as anyone else to be affected by their own cultural identities. 

           Understanding the theory of “naïve realism” can provide lawyers and law students with valuable insight into why a particular judge might have ruled a certain way or might rule a certain way in the future.  In employment discrimination cases, such insight can be game-changing.  When strategizing how to move forward in the litigation process, a plaintiff’s lawyer might alter his or her strategy if he or she believes that the judge, influenced by his or her cultural identity, is likely to grant summary judgment in favor of the employer.  For example, according to Eisenberg, if the plaintiff in an Equal Pay Act claim is a sports coach, a law enforcement officer, an insurance worker, or an accounting clerk, odds are the judge will grant the defendant’s summary judgment motion.   

            However, this also begs the question: Even if this theory could guide attorneys, is this behavior by judges proper or should it be something they actively seek to avoid?  For example, according to Professor McGinley, when judges rule that no reasonable jury could disagree with their decision, they appear dismissive and smug.  Additionally, they also might appear to be favoring or even prejudiced against certain cultural groups.  To that end, Professor McGinley refers to an article published in 2009, in which Yale Law School Professor Dan Kahan recommends that judges should avoid granting summary judgment when they can imagine that a significant subcommunity would disagree with the judge’s factual findings.  In his article, Kahan also suggests that judges are “uniquely equipped” to thwart the perception problem and can do so by exercising judicial humility.  Professor Kahan argues that this does not mean that a judge cannot make a decision that favors a particular cultural style; rather, the judge should attempt to legitimize the outcome of a case in a way that avoids the appearance of cultural bias by considering how a significant subcommunity would perceive the case.         

           “Naïve realism” sways cases of all kinds—civil and criminal alike.  It also affects judges in every level of the court system.  With this in mind, it’s crucial that lawyers take this theory into account when preparing for trial, and that judges work actively to combat the issue—especially in the summary judgment phase of employment discrimination cases.

Mike Brancheau^*

            At a glance, Chief Justice John Roberts and President Barack Obama, two of the most authoritative figures in the United States, may appear to have a great deal in common. Each has relatively strong ties to the Midwest: John Roberts grew up in Indiana where he excelled in both athletics and academics during high school,¹ while Barack Obama began his early career in law and politics as a community organizer and law professor in Chicago, Illinois. Each man went on to graduate magna cum laude from Harvard Law School. And each endured a meteoric rise to great levels of professional success at very young ages: Roberts was a mere fifty years old when nominated and confirmed as Chief Justice of the Supreme Court and Obama was elected President of the United States at the age of forty-seven. Despite having many things in common, however, Obama and Roberts’s political and ideological differences have placed a heavy burden on their relationship.

           From the beginning, their relationship could be characterized as, at best, strained. In 2005, Obama, then a junior Senator from Illinois, voted against the confirmation of Roberts as Chief Justice of the Supreme Court. Despite claiming that he had “no doubt in [his] mind” that Roberts was qualified to sit as a Justice of the U.S. Supreme Court, Obama felt that Roberts would often use his skills “on behalf of the strong in opposition of the weak,” and therefore opposed Roberts’ confirmation.

           Despite Obama’s resistance, Roberts was confirmed as Chief Justice in late September 2005.² As presiding Chief Justice, Roberts had the honor of swearing in Barack Obama, the winner of the 2008 election, as President of the United States. In a bizarre blunder, and perhaps a bad omen, Chief Justice Roberts mixed up the words of the oath, forcing Obama to retake the oath the following day to prevent any constitutional questions that might arise as to the legitimacy of his presidency.

           The two powerful leaders would clash in the beginning of 2010. In Citizens United v. Federal Election Commission, Chief Justice Roberts voted with the majority in holding that a statute limiting independent corporate expenditures for electioneering communications violated the First Amendment.³ Citizens United represented a significant conservative shift in the profile of the Supreme Court under Chief Justice Roberts. The decision was strongly criticized by President Obama, who chastised the Supreme Court Justices in his 2010 State of the Union Address for reversing “a century of law” that, in Obama’s view, would “open the floodgates for special interest . . . to spend without limitations in our elections.”

           In 2010, President Obama and Chief Justice Roberts’s opposing viewpoints were tested yet again when President Obama’s healthcare plan, the Patient Protection and Affordable Care Act, was signed into law. The controversial Act, infamously labeled “Obamacare,” sparked heated discussions over whether the government had the power to require private individuals to purchase healthcare. At the center of these debates were President Obama and Chief Justice Roberts.

           In the summer of 2012, the Supreme Court determined the constitutionality of “Obamacare.” As the deciding fifth vote and author of the majority opinion, Roberts seemed to begrudgingly hold that the individual mandate to buy health insurance was constitutional under Congress’ taxing powers. Roberts, while recognizing the restraint on his judicial powers, pointedly expressed his disagreement with Obama’s policies by noting that “it is not [the Court’s] job to protect the people from the consequences of their political choices.”

            In November of 2012, the people chose to live with the “consequences of their political decisions” by reelecting President Obama. With issues such as gay marriage, affirmative action, and the Voting Rights Act on the Supreme Court’s horizon, the next four years will undoubtedly provide the country—as well as scholars and legal writers like Professor James Simon, whose writings on the relationships between former Presidents and Chief Justices were celebrated during the Supreme Court Narratives symposium—with another chapter for the storied relationship between President Obama and Chief Justice Roberts.

Registration for this event is now closed. Click here for CLE information.

8:30 a.m. – 5:30 p.m., followed by a wine and cheese reception.  Breakfast and lunch will be provided.

This symposium explored solutions to contemporary global problems from the perspective of international law and policy.  Distinguished scholars from across the United States and overseas discussed pressing problems in areas of international law including environmental law, investment and trade law, the use of force, and human rights.  Each presentation was followed by a response from one or more commentators.  W. Michael Reisman, the Myres S. McDougal Professor of International Law at Yale Law School, delivered the luncheon keynote address. Featured scholars also included Robert Howse (New York University School of Law), Ruti Teitel (New York Law School), and Dr. Tai-Heng Cheng (Quinn Emanuel Urquhart & Sullivan, LLP, New York Law School).

This event was sponsored by the Institute for Global Law, Justice & Policy at New York Law School, the American Society of International Law and the New York Law School Law Review.

Selected papers presented at the symposium will be published in a forthcoming issue of the New York Law School Law Review.

For more information contact the Law Review at 212-431-2109 or law_review@nyls.edu.

Symposium co-sponsors

Women in the Legal Profession: Leadership from Law School to Practice

Monday, March 18, 2013, 6:30-8:30pm

A videorecording of this event is available here.

Panel Discussion and Networking Reception
This program featured a discussion about the ways in which women can identify and pursue leadership opportunities in the legal profession—beginning in law school and continuing as they transition into law practice and throughout their careers. Panelists addressed peer networking in law school; making the transition from law student leader to new attorney; and the role of mentors and sponsors in one’s professional development, including how to cultivate and maintain those relationships both at law school and in law practice.  The program was aimed at law students, recent law school grads, and new attorneys.
A wine and cheese networking reception sponsored by
Debevoise & Plimpton LLP  followed the program.

Where
New York Law School,  Events Center
185 West Broadway, New York, NY

RSVP
We are no longer accepting registrations for this event.

Speakers
Deborah Archer, Associate Dean for Academic Affairs and Professor of Law, New York Law School
Judith Archer, Partner, Fulbright & Jaworski L.L.P.
Hon. Margo K. Brodie (Moderator), U.S. District Court Judge, Eastern District of New York
Kaitlin Jaxheimer ’13, Editor-in-Chief, New York Law School Law Review
Jessica Kasman, Associate, Debevoise & Plimpton LLP
Rhonda McLean, Deputy General Counsel, Time, Inc.

Sponsoring Organizations:
This event was made possible by the generous support of Debevoise & Plimpton LLP and was hosted by the New York City Bar Association Committee on Women in the Profession (Angela T. Rella, Chair) and the New York Law School Law Review.

For further information, please contact the New York Law School Law Review at law_review@nyls.edu or 212-431-2109.

Recordings of the panel and keynote remarks are available under Program.

Exploring Civil Society through the Writings of Dr. Seuss™ examined aspects of civil society reflected in a selection of Dr. Seuss books, including tolerance, punishment, equality, civil and human rights, land use and property rights, and corporate responsibility, with the help of a cross-disciplinary group of scholars from law, humanities, and philosophy who are recognized leaders in these fields. Each of the panels addressed these topics as they relate to a specific Dr. Seuss title. The keynote address was given by Donald E. Pease, Professor of English and the Ted and Helen Geisel Third Century Professor in the Humanities at Dartmouth College and author of Theodor Seuss Geisel (Oxford University Press 2010). 

Registration included continental breakfast, lunch, and a Seuss-themed wine and cheese reception following the program.  CLE credit was available.  Selected papers presented at the symposium will be published in a forthcoming issue of the New York Law School Law Review.  To pre-order a copy of the issue, click here (publication expected in Spring 2014).

This event was co-sponsored by the Racial Justice Project at New York Law School and the New York Law School Law Review, and organized by Professor Richard Chused and Professor Tamara Belinfanti of New York Law School.

For more information contact the Law Review at 212-431-2109 or law_review@nyls.edu.

Dr. Seuss Enterprises, L.P. is not affiliated with this event in any way.