James Elkins of West Virginia University College of Law has edited Lawyer Poets and That World We Call Law (Pleasure Boat Studio, 2013), an anthology of poems about the practice of law. Professor Elkins has been the longtime editor of Legal Studies Forum. Contributors to the anthology include Lee Wm. Atkinson, Richard Bank, Michael Blumenthal, Ace Boggess, David Bristol, Lee Warner Brooks, MC Bruce, Laura Chalar, James Clarke, Martin Espada, Rachel Contreni Flynn, Katya Giritsky, Howard Gofreed, Nancy A. Henry, Susan Holahan, Paul Homer, Lawrence Joseph, Kenneth King, John Charles Kleefeld, Richard Krech, Bruce Laxalt, David Leightty, John Levy, Greg McBride, James McKenna, Betsy McKenzie, Joyce Meyers, Jesse Mountjoy, Tim Nolan, Simon Perchik, Carl Reisman, Charles Reynard, Steven M. Richman, Lee Robinson, Kristen Roedell, Barbara B. Rollins, Lawrence Russ, Michael Sowder, Ann Tweedy, Charles Williams, Kathleen Winter, and Warren Wolfson.
Archive for the ‘Writing’ Category
Service in St. Paul’s
In Arts & Letters, Creative Writing, Creativity, Humanities, Literature, Poetry, Writing on November 6, 2013 at 8:45 am
This poem originally appeared in The Echo.
Service in St. Paul’s
—London, 2003
Acrophobia turned
upside down:
fear floating away,
gravity deciding
to suddenly
give up.
There’s a dome
overhead, a glowing
Jesus over the altar,
and too much space
to pray
comfortably.
Imagination
among the scaffolding,
eye to eye with Joseph,
now falling facing up:
heaven does
not seem so high.
Is Hacking the Future of Scholarship?
In Arts & Letters, Communication, Humanities, Information Design, Law, Legal Research & Writing, Scholarship, Writing on October 16, 2013 at 7:45 amThis article appeared here in Pacific Standard.
Most attorneys are familiar with e-discovery, a method for obtaining computer and electronic information during litigation. E-discovery has been around a long time. It has grown more complex and controversial, however, with the rise of new technologies and the growing awareness that just about anything you do online or with your devices can be made available to the public. Emails, search histories, voicemails, instant messages, text messages, call history, music playlists, private Facebook conversations (not just wall posts)—if relevant to a lawsuit, these and other latent evidence, for better or worse, can be exposed, even if you think they’ve been hidden or discarded.
Anyone who has conducted or been involved with e-discovery realizes how much personal, privileged, and confidential information is stored on our devices. When you “delete” files and documents from your computer, they do not go away. They remain embedded in the hard drive; they may become difficult to find, but they’re there. Odds are, someone can access them. Even encrypted files can be traced back to the very encryption keys that created them.
E-discovery has been used to uncover registries and cache data showing that murderers had been planning their crimes, spouses had been cheating, perverts had been downloading illegal images, and employees had been stealing or compromising sensitive company data or destroying intellectual property. Computer forensics were even used to reveal medical documents from Dr. Conrad Murray’s computer during the so-called “Michael Jackson death trial.”
Computer forensics can teach you a lot about a person: the websites he visits, the people he chats with, the rough drafts he abandons, the videos he watches, the advertisements he clicks, the magazines he reads, the news networks he prefers, the places he shops, the profiles he views, the songs he listens to, and so on. It is fair to say that given a laptop hard drive, a forensic expert could nearly piece together an individual’s personality and perhaps come to know more about that person—secret fetishes, guilty pleasures, and criminal activities—than his friends and family do.
In light of this potential access to people’s most private activities, one wonders how long it will be until academics turn to computer forensics for research purposes. This is already being done in scientific and technology fields, which is not surprising because the subject matter is the machine and not the human, but imagine what it would mean for the humanities? If Jefferson had used a computer, perhaps we would know the details of his relationship with Sally Hemings. If we could get ahold of Shakespeare’s iPad, we could learn whether he wrote all those plays by himself. By analyzing da Vinci’s browsing history, we might know which images he studied and which people he interacted with before and during his work on the Mona Lisa—and thus might discover her identity.
There are, of course, government safeguards in place to prevent the abuse of, and unauthorized access to, computer and electronic data: the Wiretap Act, the Pen Registers and Trap and Trace Devices Statute, and the Stored Wired and Electronic Communication Act come to mind. Not just anyone can access everything on another person’s computer, at least not without some form of authorization. But what if researchers could obtain authorization to mine computer and electronic data for the personal and sensitive information of historical figures? What if computer forensics could be used in controlled settings and with the consent of the individual whose electronic data are being analyzed?
Consent, to me, is crucial: It is not controversial to turn up information on a person if he voluntarily authorized you to go snooping, never mind that you might turn up something he did not expect you to find. But under what circumstances could computer forensics be employed on a non-consensual basis? And what sort of integrity does computer or electronic information require and deserve? Is extracting data from a person’s laptop akin to drilling through a precious fresco to search for lost paintings, to excavating tombs for evidence that might challenge the foundations of organized religion and modern civilization, or to exhuming the bodies of dead presidents? Surely not. But why not?
We have been combing through letters by our dead predecessors for some time. Even these, however, were meant for transmission and had, to that end, intended audiences. E-discovery, by contrast, provides access to things never meant to be received, let alone preserved or recorded. It is the tool that comes closest to revealing what an individual actually thinks, not just what he says he thinks, or for that matter, how and why he says he thinks it. Imagine retracing the Internet browsing history of President Obama, Billy Graham, Kenneth Branagh, Martha Nussbaum, Salmon Rushdie, Nancy Pelosi, Richard Dawkins, Toni Morrison, Ai Weiwei, or Harold Bloom. Imagine reading the private emails of Bruno Latour, Ron Paul, Pope Francis, Noam Chomsky, Lady Gaga, Roger Scruton, Paul Krugman, Justice Scalia, or Queen Elizabeth II. What would you find out about your favorite novelists, poets, musicians, politicians, theologians, academics, actors, pastors, judges, and playwrights if you could expose what they did when no one else was around, when no audience was anticipated, or when they believed that the details of their activity were limited to their person?
This is another reason why computer and electronic data mining is not like sifting through the notes and letters of a deceased person: having written the notes and letters, a person is aware of their content and can, before death, destroy or revise what might appear unseemly or counter to the legacy he wants to promote. Computer and electronic data, however, contain information that the person probably doesn’t know exists.
More information is good; it helps us to understand our universe and the people in it. The tracking and amassing of computer and electronic data are inevitable; the extent and details of their operation, however, cannot yet be known. We should embrace—although we don’t have to celebrate—the technologies that enable us to produce this wealth of knowledge previously unattainable to scholars, even if they mean, in the end, that our heroes, idols, and mentors are demystified, their flaws and prejudices and conceits brought to light.
The question is, when will we have crossed the line? How much snooping goes too far and breaches standards of decency and respect? It is one thing for a person to leave behind a will that says, in essence, “Here’s my computer. Do what you want with it. Find anything you can and tell your narrative however you wish.” It is quite another thing for a person never to consent to such a search and then to pass away and have his computer scanned for revealing or incriminating data.
It’s hard to say what crosses the line because it’s hard to know where the line should be drawn. As Justice Potter Stewart said of hard-core pornography, “I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it.” Once scholars begin—and the day is coming—hacking devices to find out more about influential people, the courts and the academic community will be faced with privacy decisions to make. We will have to ask if computer and electronic data are substantially similar to private correspondence such as letters, to balance the need for information with the desire for privacy, to define what information is “private” or “public,” and to honor the requests of those savvy enough to anticipate the consequences of this coming age of research.
Amid this ambiguity, one thing will be certain: Soon we can all join with Princess Margaret in proclaiming, “I have as much privacy as a goldfish in a bowl.” That is good and bad news.
The Law Review Model as a Check against Bias?
In Academia, Arts & Letters, Essays, Humanities, Law, Scholarship, Writing on October 9, 2013 at 7:45 amA version of this essay appeared in Academic Questions.
Could peer-reviewed humanities journals benefit by having student editors, as is the practice for law reviews? Are student editors valuable because they are less likely than peer reviewers to be biased against certain contributors and viewpoints? I begin with a qualifier: What I am about to say is based on research, anecdotes, and experience rather than empirical data that I have compiled on my own. I do not know for sure whether student editors are more or less biased than professional academics, and I hesitate to displace concerns for expertise and experience with anxiety about editorial bias. There may be situations in which students can make meaningful contributions to reviewing and editing scholarship—and to scholarship itself—but to establish them as scholarly peers is, I think, a distortion and probably a disservice to them and their fields.
Student editors of and contributors to law reviews may seem to be the notable exception, but legal scholarship is different from humanities scholarship in ways I address below, and law reviews suffer from biases similar to those endemic to peer-reviewed journals. Nevertheless, law review submission and editing probably have less systemic bias than peer-reviewed journals, but not because students edit them. Rather, law review submission and editing make it more difficult for bias to occur. The system, not the students, facilitates editorial neutrality.
There are several factors about this system that preclude bias. Because editors are students in their second and third year of law school, editorial turnover is rapid. Every year a law review has a new editorial team composed of students with varied interests and priorities. What interested a journal last year will be different this year. Therefore, law reviews are not likely to have uniform, long-lasting standards for what and whom to publish—at least not with regard to ideology, political persuasion, or worldview.
Law review editors are chosen based on grades and a write-on competition, not because they are likeminded or pursuing similar interests. Therefore, law reviews are bound to have more ideological and topical diversity than peer-reviewed journals, which are premised upon mutual interest, and many of which betray the academic side of cronyism: friends and friends of friends become editors of peer-reviewed journals notwithstanding a record of scholarship. The composition of law review editorial boards is, by contrast, based upon merit determined through heated competition.
Once on board, law review student editors continue to compete with one another, seeking higher ranks within editorial hierarchies.[1] Being the editor-in-chief or senior articles editor improves one’s résumé and looks better to potential employers than being, say, the notes editor. Voting or evaluations of academic performance establish the hierarchies. Moreover, each year only a few student articles are published, so editors are competing with one another to secure that special place for their writing.[2] Finally, student editors usually receive grades for their performance on law review. The result of all of this competition is that law review editors are less able than peer reviewers to facilitate ideological uniformity or to become complacent in their duties—and law reviews will exhibit greater ideological diversity and publish more quickly and efficiently than peer-reviewed journals.
Because of the ample funding available to law schools, scores of specialized journals have proliferated to rival the more traditional law reviews. Many specialized law reviews were designed to compensate for alleged bias. There are journals devoted to women’s issues, racial issues, law and literature, law and society, critical legal studies, and so on. There are also journals aimed principally at conservatives: Harvard Journal of Law and Public Policy, Texas Review of Law & Politics, and Georgetown Journal of Law & Public Policy, to name three. Specialized journals give students and scholars a forum for the likeminded. On the other hand, such journals call for specialization, which students are unlikely to possess.[3]
For these reasons, I believe that bias is less prevalent among law reviews than among peer-reviewed journals. Part of the difficulty in determining bias, however, is that data collection depends upon the compliance of law review editors, who receive and weed through thousands of submissions per submission period and have neither the time nor the energy to compile and report data about each submission. Moreover, these editors, perhaps in preparation for likely careers as attorneys, are often required to maintain strict confidentiality regarding authors and submissions, thereby making “outside” studies of law reviews extremely difficult to conduct.
And then there is the problem of writing about bias at all: everyone can find bias in the system. I suspect that institutionalized bias against conservative legal scholars exists, but nonconservatives also complain about bias. Minna J. Kotkin has suggested that law reviews are biased against female submitters.[4] Rachel J. Anderson has suggested that law reviews are biased against “dissent scholarship,” which, she says, includes “civil rights scholarship, critical legal studies, critical race theory, feminist theory, public choice theory, queer theory, various ‘law ands’ scholarship that employs quantitative or humanistic methodologies, and other scholarship that, at one point in time or another, is not aligned with ideologies or methodologies that the reader values or considers legitimate.”[5] Finally, Jordan Leibman and James White discovered bias favoring authors with credentials, publication records, or experience.[6]
Law student bias seems, from my perspective, more likely to be weighted toward credentials and reputation rather than political persuasion.[7] An established professor with an endowed chair is therefore more likely to receive a publication offer from a law review than an unknown, young, or adjunct professor; and the name recognition of an author—regardless of personal politics—is more likely to guarantee that author a publication slot in a law review. One downside to this is that student editors will accept half-written or ill-formed articles simply because the author is, for want of a better word, renowned. It is common in these situations for students to then ghostwrite vast portions of the article for the author. Another more obvious downside is that professors from select institutions and with certain reputations will be published over authors who have submitted better scholarship. This is the primary reason why I advocate for a hybrid law review/peer review approach to editing.[8]
I’ve mentioned that legal scholarship differs from humanities scholarship. What makes it different is its attention to doctrinal matters, i.e., to the application of law to facts or the clarifying of legal principles and canons. After their first year of law school, students are equipped to study these sorts of matters. They are not unlike lawyers who approach a legal issue for the first time and must learn to analyze the applicable law in light of the given facts. Although the breadth and scope of legal scholarship have changed to reduce the amount of doctrinal scholarship produced and to incorporate interdisciplinary studies, doctrinal scholarship remains the traditional standard and the conventional norm.
Law students have the facility to edit doctrinal scholarship, but not to edit interdisciplinary articles.[9] This point is not necessarily to advance my argument about bias being less inherent in law review editing; rather, it is to circle back to my initial position that inexperienced and inexpert students should not be empowered to make major editorial decisions or to control the editing. As I have suggested, student editors are biased, just as professional peer reviewers are biased—the problem is that students are less prepared and qualified to make sound editorial judgments. If what is needed is an editorial system that diminishes bias, then student editors are not the solution. Law review editing, however, provides a clarifying model for offsetting widespread bias.
It would be difficult if not impossible to implement law review editing among humanities peer-reviewed journals for the disappointing reason that law reviews enjoy ample funding from institutions, alumni, and the legal profession whereas humanities journals struggle to budget and fight for funding. Therefore, I will not venture to say that peer-reviewed journals ought to do something about their bias problems by mimicking law review editing. Such a solution would not be practical. But by pointing out the benefits of law review editing—i.e., the result of less bias due to such factors as competition and turnover in editorial positions—I hope that more creative minds than mine will discover ways to reform peer-reviewed journals to minimize bias.
[1]I consider editor selection flawed for some of the reasons Christian C. Day describes in “The Case for Professionally-Edited Law Reviews,” Ohio Northern University Law Review 33 (2007): 570–74.
[2]How this competition works differs from journal to journal. In some cases, the students select which student articles to publish based on an elaborate voting process supposedly tied to blind review and authorial anonymity. In other cases, faculty decide.
[3]“Many scholars feel that student editors of law review articles, while they were perhaps once competent to evaluate the merit of scholarly articles owing to the much narrower range of topics, have for the last few decades had great difficulty grappling with nondoctrinal scholarship (that is, scholarship dealing with the intersection of law and other disciplines). The authors of law journal articles now increasingly draw from areas such as economics, gender studies, literary theory, sociology, mathematics, philosophy, political theory, and so on, making the enterprise much too difficult for a group of generally young people, who are not only not specialists, but have barely entered the field of law.” Nancy McCormack, “Peer Review and Legal Publishing: What Law Librarians Need to Know about Open, Single-Blind, and Double-Blind Reviewing,” Law Library Journal 101, no. 1 (Winter 2009): 61–62.
[4]Minna J. Kotkin, “Of Authorship and Audacity: An Empirical Study of Gender Disparity and Privilege in the ‘Top Ten’ Law Reviews,” Women’s Rights Law Reporter 35 (Spring 2009).
[5]Rachel J. Anderson, “From Imperial Scholar to Imperial Student: Minimizing Bias in Article Evaluation by Law Reviews,” Hastings Women’s Law Journal 20, no. 2 (2009): 206.
[6]Jordan H. Leibman and James P. White, “How the Student-Edited Law Journals Make Their Publication Decisions,” Journal of Legal Education 39, no. 3 (September 1989): 396, 404.
[7]Many others share this view: “It appears to be generally assumed that, to a significant degree, Articles Editors use an author’s credentials as a proxy for the quality of her scholarship.” Jason P. Nance and Dylan J. Steinberg, “The Law Review Article Selection Process: Results from a National Study,” Albany Law Review 71, no. 2 (2008): 571.
[8]See my Spring 2013 Academic Questions article, “The Law Review Approach: What the Humanities Can Learn.” I am not alone on this score. Day suggests that “this bias can be defeated by blind submissions or having faculty members read the abstracts and articles of blind-submitted articles where the quality is unknown. The names and other identifying information should be obscured, which is common in other disciplines. This is easy to do with electronic submissions. It should be the rule in law reviews, at least at the initial stage of article selection.” “Case for Law Reviews,” 577.
[9]Hence Richard Posner’s suggestion that law reviews “should give serious consideration to having every plausible submission of a nondoctrinal piece refereed anonymously by one or preferably two scholars who specialize in the field to which the submission purports to contribute.” “The Future of the Student-Edited Law Review,” Stanford Law Review 47 (Summer 1995): 1136.
Pantry, 1982
In Arts & Letters, Creative Writing, Humanities, Poetry, Writing on July 24, 2013 at 8:45 am
A box of cereal, stale, ants running
Up the side, two brown bananas that
He says cleanse the pores
(If rubbed thoroughly),
An unwrapped chocolate bar
And a plethora of cans, unopened:
In a locked pantry, Little Maddy sits
Plucking the stems
Off Granny-Smiths. Just ten more
Minutes. Maddy, weary, wondering
Just when daddy would come home.
Time: the pantry is unlocked
And out comes light
And apples and, lastly, Maddy.
Daddy reaches
For the two rotting bananas,
Notes can upon unopened can,
Unwraps the chocolate bar,
Smears chocolate on his fingers,
Stops, thinks how unlikely it is
For apples to lose their stems.
Donna Meredith Reviews “Keep No Secrets,” by Julie Compton
In Arts & Letters, Books, Fiction, Humanities, Law, Law-and-Literature, Novels, Writing on July 17, 2013 at 8:45 amDonna Meredith is a freelance writer living in Tallahassee, Florida. She taught English, journalism, and TV production in public high schools in West Virginia and Georgia for 29 years. Donna earned a BA in Education with a double major in English and Journalism from Fairmont State College, an MS in Journalism from West Virginia University, and an EdS in English from Nova Southeastern University. She has also participated in fiction writing workshops at Florida State University and served as a newsletter editor for the Florida State Attorney General’s Office. The Glass Madonna was her first novel. It won first place for unpublished women’s fiction in the Royal Palm Literary Awards, sponsored by the Florida Writers Association, and runner up in the Gulf Coast novel writing contest. Her second novel, The Color of Lies, won the gold medal for adult fiction in 2012 from the Florida Publishers Association and also first place in unpublished women’s fiction from the Florida Writers Association. Her latest book is nonfiction, Magic in the Mountains, the amazing story of how a determined and talented woman revived the ancient art of cameo glass in the twentieth century in West Virginia. She is currently working on a series of environmental thrillers featuring a female hydrogeologist as the lead character.
Above: Julie Compton
The following review is appearing simultaneously in Southern Literary Review.
Keep No Secrets, Julie Compton’s powerful sequel to Tell No Lies, is guaranteed to keep readers turning pages into the wee hours of the morning. Both of Compton’s courtroom thrillers are set in St. Louis, Missouri, where she grew up.
Like Jodi Picoult’s best works, Compton’s novels sizzle with all the trust, betrayal, love, and forgiveness family relationships entail—especially when you expose their private conflicts in a public courtroom. Her books seem to pose this question: how well can you know even those people closest to you?
Read Tell No Lies first. Though the sequel provides enough backstory to be a great read on its own, without understanding the first book you’d miss the riveting psychological development of the primary characters, all of whom star in the sequel as well.
In Tell No Lies, idealistic lawyer Jack Hilliard leaves behind a lucrative private practice to run for district attorney. The plot centers around a high-profile murder case. Jack is easy to like because he tries so hard to do the right thing. But there wouldn’t be a story if he were perfect. He yields to one temptation, which hurls his life on a downward spiral that nearly ends his marriage and his career.
The final plot twist leaves you wondering if Jack has been manipulated. Compton is that rare author who trusts her readers’ intelligence. She allows us to figure things out for ourselves, to experience the same doubts as Jack Hilliard. It makes the novel more like our own lives, where we can’t always tell what people’s motives are or know when they are lying.
Keep No Secrets begins four and a half years after the events of Tell No Lies. During that time, Jack Hilliard has worked arduously to repair the damage caused by his mistakes—and has largely succeeded. Until the night he finds his teenage son Michael having sex with his girlfriend. They are drunk. Being a white knight kind of guy, Jack gives the girl a ride home. In an effort to win back his son’s love and respect, Jack doesn’t tell his wife about Michael’s transgressions. That car ride sets off an unforeseeable chain of events that threaten to wreck Jack’s career and marriage once again.
Think that’s enough dirt to dump on a nice guy like Jack? Not a chance. The already untenable situation deteriorates further when Jenny Dodson, the woman involved in his earlier downfall, reappears after all these years, asking for his help. He can’t say no, but he vows to keep his wife truthfully informed of everything that happens. He does. Sort of. “The lies aren’t what he says; they’re what he doesn’t say”—this is a refrain Compton artfully employs several times.
This novel deals with social issues like the impact of adultery and sexual assault on families. Most readers are going to put themselves in the various characters’ situations and ask themselves if they would have behaved differently. Would we lie to protect a loved one? What if you knew something that would put the one you love in jail or in danger? Would you tell the truth? What if not telling keeps an innocent person imprisoned? How far should we trust the legal system? If a spouse gave us reason to doubt, could we forgive and trust again? When is it time to give a marriage another chance—and when is it time to walk away?
Compton’s novels are as fine as any courtroom thrillers out there. Though her use of present tense can be a bit distracting, the well-plotted series sparkles with psychologically complex characters.
For both undergraduate work and law school, Compton attended Washington University in Missouri. She began her legal career there, but last practiced in Wilmington, Delaware, as a trial attorney for the U.S. Department of Justice. She now lives near Orlando with her husband and two daughters and writes full-time. She is also the author of Rescuing Olivia, a novel of suspense, romance, and family drama.
Below: Donna Meredith






