Feb 14, 2013

Scholastica Updates Demographic Feature – only California and NYU Request Information

Following my previous reports, an EIC of a journal writes to tell me that they requested that Scholastica no longer ask for the demographic information for submissions to their journal, and Scholastica pretty much complied (as much as feasible). As it stands now, NYU and California still ask for this information.

Just a quick update. Scholastica has made the change we requested.It’s a little complicated because of the way their interface works–authors first select the journals they want to submit to and then are asked to provide information (name, manuscript title, and–before tonight–diversity info).
As you know by now, there are two journals that have explicitly stated that they want that information–Cal and NYU. If an author’s list includes either of those journals, they’ll still be asked for optional diversity info, with an attached note making clear which journals are asking for that info. If, on the other hand, an author submits only to Iowa, they will no longer see that box at all–we don’t want that info and don’t want Scholastica asking authors for it on our behalf. In fact, authors can submit to as many Scholastica journals as they want and not see that box–as long as they don’t include Cal or NYU on their lists.
It’s not a perfect solution, but I hope it shifts the focus to where (in my opinion, at least) it should have been from the start–on the journals who ask for that information and incorporate it in their selection decisions, not on the service that conveys that request.

In other words, the demographic information is not requested unless NYU and California are selected. If one of those two are selected, you receive an additional warning above the box concerning the Demographic information that reads:

Optional Demographic Information

You are seeing this section because you are submitting to California Law Review and New York University Law Review.

This journal allows authors to provide optional demographic data. Any answers will be shared only with California Law Review.


Interestingly, Boston College and U.C. Davis were on that list. To their credit, they are no longer on the list.

But added to the list is NYU.

Some journals hosted on Scholastica request optional demographic information (e.g. race, gender, sexual orientation, etc.) from authors when they submit a manuscript. Optional demographic data collected in the manuscript submission form will be made available to journal editors only, and optional demographic data will be stored with the manuscript submitted to that journal. Journals which do not request optional demographic information at the time of submission will not have access to this data. Authors are not required to submit optional demographic information in order to submit a manuscript to a journal on Scholastica. The choice to request this data is made explicitly by the journal, and use of the data is entirely the responsibility of the journal collecting the data. Scholastica will store the data on the journal’s behalf and allow journals to collect and analyze data, but Scholastica will not sell, trade, or transfer an individual’s personal information to any third party or entity.

Journals who allow authors to submit demographic information:

  • California Law Review
  • New York University Law Review

I’m glad Scholastica updated the feature so quickly. I’m also glad U.C. Davis and Boston College dropped off the list. Curious why NYU joined. But not surprising that Cal remains.

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Feb 14, 2013

New Article: “Popular Constitutionalism and the Affordable Care Act”

I uploaded to SSRN my new essay, titled “Popular Constitutionalism and the Affordable Care Act.” This article is part of a Symposium Issue of Public Affairs Quarterly. Here is the abstract:

The challenge to the Affordable Care Act was waged on two fronts. The first front was the constitutionalist front. Challengers claimed that it was unprecedented for Congress to compel people to engage in commerce, and purchase health insurance. However, the second front in this battle is much less appreciated. Underneath these constitutionalist positions were popular constitutionalist social movements.

This essay, part of a symposium issue of Public Affairs Quarterly, analyzes the movement through the lens of popular constitutionalism, from its conception, to its growth, to its strengthening counter-movement, and finally to its inevitable conclusion at the Supreme Court of the United States.

First, I explore notions of popular constitutionalism, and how the will of the people impacts how the courts construe our most fundamental laws. Second, I trace how the argument against the Affordable Care Act evolved from a simple idea to a popular constitutionalist movement, brewed by groups such as the Tea Party. Third, I discuss how a progressive countermovement formed to combat the challengers, and aimed to maintain the status quo of constitutional law. I conclude by considering how the courts received these competing social movements.

The dynamics of popular constitutionalism were fully unleashed in NIFB v. Sebelius. Not only was this case unprecedented, but the challenge to it was also unprecedented.

I presented an early version of this  paper at the Medical Humanities Symposium in September (the video is here).

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Feb 14, 2013

SCOTUS Fashion: A Ginsburg Sandwich with a Side of Jabot

WaPo reports that during the State of the Union, Justice Ginsburg, who was sitting between Kennedy and Breyer kept dozing off. The two justices attempted to prop her up. A Ginsburg sandwich!

Starting only a few minutes into the speech, Ginsburg began doing that telltale head nod-and-jerk motion. Even raucous applause and standing ovations at various points in the speech didn’t rouse her.

Justice Stephen Breyer, seated to Ginsburg’s left, valiantly gave her subtle nudges when she looked in danger of pitching over. And at one point, it looked like Breyer and Justice Anthony Kennedy, seated on her right, had wedged her in between them to keep her upright.

Look, where’s Ruth?



RBG was also rocking some serious bling, with a gold Jabot and black gloves.

Ginsburg, who was seated in the first row, arrived looking ready for a party — sporting a glamorous gold statement necklace over her black robe and a pair of what looked like black mesh gloves.

From the back


RBG, no stranger to bling, once wore this studded jabot on the bench.

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Feb 14, 2013

Thomas to Kagan: “It’s going to be a joy disagreeing with you for years to come.”

Justice Thomas spoke at Harvard Law School, and had these warm words to say about his most junior colleague:

 Former HLS Dean Elena Kagan ’86, for example, “is just a delight,” he said. And soon after she joined the Court he told her: “It’s going to be a joy disagreeing with you for years to come.”

“You make each other better,” he said, through this sort of engagement.

Minow noted that this Court is known as especially collegial, and Thomas is often cited as having much to do with that. “Then why don’t they vote with me?” he said with a chuckle. “They just kindly disagree.

Update: Thomas also spoke highly of Justice Breyer who makes him laugh–but said nothing about Sotomayor:

Of Justice Elena Kagan, a former Harvard dean and the court’s newest member, Thomas said he told her, “It’s going to be a joy disagreeing with you for years to come.” He called Justice Ruth Bader Ginsburg “delightful” and said his seatmate for the past 19 years, Justice Stephen Breyer, draws stick figures during arguments and makes Thomas laugh.

The famously silent justice – he has said nothing at arguments for seven years, except for a brief joke last month that was seemingly about Ivy League lawyers – said Breyer occasionally asks questions that Thomas has first whispered to him on the bench.

He didn’t say a word about Sotomayor.

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Feb 14, 2013

Prop1 Class 10 – Estates II: Life Estate

The lecture note are here. The live chat is here.

This diagram illustrates the life estate.


Here is Jessica Lide’s will:

April 19, 1972

I, Jessie Lide, being in sound mind declare this to be my last will and testament. I appoint my niece Sandra White Perry to be the executrix of my estate.
I wish Evelyn White to have my home to live in and not to be sold.
I also leave my personal property to Sandra White Perry. My house is not to be sold.

Jessie Lide (Underscoring by testatrix)

Here is a picture of Jessica Lide’s home. Jessica Lide is on the right, Sandra White is in the middle.


 Here is the current life expectancy table. If you were born in 1984, your life expectancy is 74.56

Here is the will from the Weedon case:

Second; I give and bequeath to my beloved wife, Anna Plaxico Weedon all of my property both real, personal and mixed during her natural life and upon her death to her children, ifshe has any, and in the event she dies without issue then at the death ofmy wife Anna Plaxico Weedon I give, bequeath and devise all of my property to my grandchildren, each grandchild sharing equally with the other.

Third; In this will I have not provided for my daughters, Mrs. Florence Baker and Mrs. Delette WeedonJones, the reason is, I have given them their share ofmy property and they have not looked after and tared for me,in the latter part ofmy life.

This drawing illustrates the livery of seisin.




William Penn performed the livery of seisin on October 27, 1682 upon his arrival in what is now New Castle, Delaware, but became part of Penn’s Woodlands (also known as Pennsylvania). There is a historical marker commemorating the event.

Near here October 27, 1682, William Penn first stepped on American soil. He proceeded to the fort and performed Livery of Seisin. “He took the key, thereof,…we did deliver unto him 1 turf with a twig upon it, a porringer with river water and soyle, in part of all.”

Here is a  photo of a statue of Penn holding a twig and turf.

This video illustrates the Livery of Seisin.

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Feb 14, 2013

Prop2 Class 10 – Title Insurance & Nusiance

The lecture notes are here. The live chat is here.

We will use this resource about the Coase Theorem in class (courtesy of Professor Frank Buckley at George Mason Law)

Here are a number of links about Title Insurance in Texas, which we will go over in class:

Here are the diagrams of the land from Del Webb.

In 1962:


In 1965:


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