The twenty-two law reviews you should follow on Twitter

While you could follow a pretty sizeable list of law reviews I've maintained on Twitter, there are a handful of law reviews that rise above the rest.

Last year, I listed the sixteen law reviews to follow on Twitter. I've modified the criteria slightly and updated it. I've mentioned that I find Twitter one of the best places to stumble upon scholarship and engage in a first layer of discussion about new ideas.

In my view, it's actually shocking how challenging it is to find recently journal content. Many journals don't maintain a Twitter feed, much less a decent web site--most lack an RSS, are updated infrequently at best, and often include stock art (because, apparently, law reviews are into stock art?). Given scarce resources that law schools have today, one might expect schools to find ways of maximizing the value from their investments in their journals.

(Also, some advice you're welcome to ignore if you're developing a Twitter handle. Avoid symbols like underscores in your name. Eschew the "U" for your university if possible. Abbreviate LRev and LJ if you can. You want as concise a title to ensure maximum ability for people to communicate a message in 140 characters when mentioning your username. And you want it to be clear who you are: too brief a nickname for your law school may not communicate much about your brand to the casual Twitter follower.)

Alas, I'll settle for the occasional tweet on the subject. I looked at the flagship law reviews at the 105 law schools with a U.S. News & World Report peer score of 2.2 or higher.  If I found their Twitter accounts, I included them. I then examined how many tweets they had, how many followers they had, and when their last tweet (not a retweet) took place. I then created a benchmark, a slightly stricter standard than last year (as another year has passed!): the law reviews "worth following" are those with at least 150 tweets, at least 150 followers, and at least one tweet (not a retweet or direct reply) in the last 30 days. I thought that would be a pretty minimal standard for level of engagement and recency of engagement. This 150/150/30 standard reduces the list to 22 accounts worth following:

Harvard Law Review

Stanford Law Review

Yale Law Journal

Columbia Law Review

Chicago Law Review

NYU Law Review

California Law Review

Michigan Law Review

Penn Law Review

Texas Law Review

UCLA Law Review

George Washington Law Review

Boston University Law Review

Iowa Law Review

Ohio State Law Journal

Florida Law Review

Illinois Law Review

Washington Law Review

Connecticut Law Review

Case Western Reserve Law Review

St. Louis University Law Journal

Syracuse Law Review

It's fairly notable, I think, that half of the schools on this list have a top-20 peer reputation score and that every single one of the top 9 schools in peer reputation make the list. Indeed, follower count is highly correlated with peer score (0.57)!

Below is the complete list of these journals, with 150/150/30 law reviews highlighted. If you see a journal not listed, tweet me about it @derektmuller.

Peer score	Journal	Tweets	Followers	Last tweet (not RT)
4.8	@HarvLRev	650	15.8K	May 15, 2015
4.8	@StanLRev	414	4202	May 29, 2015
4.8	@YaleLJournal	657	6335	May 15, 2015
4.6	@ColumLRev	288	2901	May 12, 2015
4.6	@UChiLRev	265	3409	May 15, 2015
4.5	@nyulawreview	1281	4946	May 2, 2015
4.4	@CalifLRev	342	2164	May 21, 2015
4.4	@michlawreview	161	1465	May 31, 2015
4.4	@PennLawReview	331	1945	May 25, 2015
4.3	@VirginiaLawRev	16	328	May 18, 2015
4.2	@Cornell_Law_Rev	1	613	July 21, 2010
4.2	@DukeLawJournal	30	899	April 15, 2015
4.1	@GeorgetownLJ	71	744	May 13, 2015
4.1	@NULRev	136	615	May 30, 2015
4.0	@TexasLRev	410	1609	May 19, 2015
3.9	@UCLALawReview	150	1864	May 7, 2015
3.8	Vanderbilt
3.5	@emorylawjournal	54	110	May 20, 2015
3.5	@SCalLRev	5	69	May 9, 2013
3.5	Washington (St. Louis)
3.4	@GWLawReview	405	379	May 30, 2015
3.4	@MinnesotaLawRev	37	394	March 31, 2015
3.4	@NotreDameLawRev	20	303	May 12, 2015
3.4	North Carolina
3.3	@BULawReview	527	1003	May 11, 2015
3.3	@UCDavisLawRev	92	334	May 29, 2015
3.3	Wisconsin
3.2	@AlaLawReview	31	477	March 1, 2015
3.2	@BCLawReview	343	1165	April 27, 2015
3.2	@fordhamlrev	355	1638	March 6, 2015
3.2	@IowaLawReview	232	939	May 14, 2015
3.2	@OhioStateLJ	392	1130	May 25, 2015
3.2	Indiana (Bloomington)
3.2	William & Mary
3.1	@GaLRev	9	171	May 12, 2015
3.1	@HastingsLJ	117	358	May 3, 2015
3.1	@UFLawReview	203	558	May 22, 2015
3.1	@UIllLRev	204	879	May 5, 2015
3.1	@WashLawReview	127	1065	May 21, 2015
3.1	@WLU_LawReview	247	137	May 14, 2015
3.1	Colorado
3.0	@arizlrev	31	197	April 2, 2013
3.0	@TulaneLawReview	40	546	March 6, 2015
3.0	@WFULawReview	764	542	April 24, 2015
3.0	Arizona State
3.0	Irvine
2.9	BYU
2.9	Florida State
2.9	Maryland
2.8	@AmULRev	335	821	March 26, 2015
2.8	@ConnLRev	668	816	May 31, 2015
2.8	@UtahLawReview	0	3	n/a
2.7	@CardozoLRev	53	765	May 14, 2015
2.7	@denverlawreview	101	506	April 28, 2015
2.7	@geomasonlrev	82	143	May 17, 2015
2.7	@UMLawReview	97	671	April 28, 2015
2.6	@OregonLawReview	7	340	April 7, 2015
2.6	@PeppLawReview	595	671	April 17, 2015
2.6	@PittLawReview	0	10	n/a
2.6	@ukanlrev	98	467	September 25, 2014
2.6	Missouri (Columbia)
2.6	San Diego
2.6	SMU
2.6	Temple
2.6	Tennessee
2.5	@Brook_L_Rev	0	26	n/a
2.5	@CaseWResLRev	813	731	May 27, 2015
2.5	@GSULawReview	0	14	n/a
2.5	@KYLawJournal	17	131	March 20, 2012
2.5	@LLSlawreview	0	1	n/a
2.5	Chicago-Kent
2.5	Houston
2.5	Richmond
2.4	@LUCLawJournal	169	120	May 21, 2014
2.4	@NebLRev	161	119	May 31, 2015
2.4	@RutgersLJ	12	457	May 2, 2014
2.4	@RutgersLRev	63	580	April 3, 2015
2.4	Baylor
2.4	Hawaii
2.4	Indiana (Indianapolis)
2.4	Lewis & Clark
2.4	New Mexico
2.4	Oklahoma
2.4	Santa Clara
2.3	@arklawrev	156	1726	February 17, 2014
2.3	@HULawJournal	430	567	January 9, 2015
2.3	@MichStLRev	318	584	April 23, 2015
2.3	@NevLawJournal	54	82	November 17, 2014
2.3	@nuljournal	40	286	May 25, 2015
2.3	@SCLawReview	317	738	February 20, 2015
2.3	@SHULawReview	22	163	January 28, 2014
2.3	@VillanovaLawRev	40	112	March 19, 2015
2.3	Cincinnati
2.3	Marquette
2.3	Mississippi
2.2	@lalawreview	74	664	April 13, 2015
2.2	@MaineLawReview	92	463	May 26, 2015
2.2	@pennstatim	27	132	September 18, 2013
2.2	@SLULawJournal	560	455	May 14, 2015
2.2	@SULawRev	23	34	March 6, 2015
2.2	@SyracuseLRev	330	295	May 8, 2015
2.2	@UMKCLawReview	2	60	April 20, 2015
2.2	DePaul
2.2	St. John's
2.2	SUNY (Buffalo)

Why Kentucky may bar Rand Paul from running for president and the Senate simultaneously

This is the fourth in a series of posts about my forthcoming article, Scrutinizing Federal Electoral Qualifications, 90 Indiana Law Journal (forthcoming), available on SSRN. Comments, critiques, and feedback are welcome.

Senator Rand Paul may want to run for President of the United States in 2016. But he is also very likely interested in running for the United States Senate in 2016, too--just in case the president thing doesn't work out for him. But his home state of Kentucky has a law that prohibits him from running for both offices at the same time--a law of some difficulty for the potential Paul campaign. Is it constitutional?

Drawing upon my earlier analyses, the answer is yes--because it is a condition on running for president, and not a condition on running for Senate.

Kentucky cannot add to the qualifications to candidates for office in the Senate. That much is obvious from the Supreme Court's decision in U.S. Term Limits v. Thornton. It could not condition running for Senate on refusing to run for president.

One might argue that this is merely a ballot access rule. After all, Mr. Paul could not run for the Senate unless he filed paperwork, or obtained a certain number of signatures to get on the ballot or won a qualifying primary election, or something like that. The line occasionally blurs. "Sore loser" laws--laws that prohibit candidates who lose a primary election from running for federal office in the general election--have been held as permissible regulations, not additional qualifications. "Resign to run" statutes--laws that require a state official to resign office before running for federal office--have been upheld as restrictions on conditions on state offices, not as additional qualifications for federal office. Perhaps it's the case that the state has a more permissive regulatory interest in making sure someone is not running for two offices when he can only fill one. But that's a nuanced claim, and one that, I think, would take time before I felt comfortable settling on one side.

But the other side is different--a condition on running for President might be that one cannot also be on the ballot for the Senate.

Under the Constitution, the state legislature may direct the "manner" of selecting presidential electors. It may select electors itself, or it may permit the people to vote. But, perhaps, it may cabin the discretion of the people in how they vote--perhaps by excluding certain candidates it does not wish the people to vote for. Akhil Amar, for instance, in his book America's Unwritten Constitution, posits that prior to the Nineteenth Amendment, which guaranteed women the right to vote, states could have excluded women from running for the office of president--but that the "unwritten" Nineteenth Amendment now would prohibit.

It might be, then, that U.S. Term Limits does not extend to presidential candidates. Indeed, the state is only selecting the manner of appointing presidential electors; how those presidential electors act is another level of review. It might simply prohibit a candidate's name from being listed on the ballot, but, in the case of presidential elections, the final decision is left with the presidential electors. And Kentucky has no law (that I found) that would require electors to vote for the named candidates. In a sense, then, the candidates names on the ballot are mere proxies for a slate of presidential electors and, perhaps, the state legislatures possess the latitude to decide how to condition the appearance of candidates of the ballot.

The best possible defenses of the law, then, are that it is a reasonable ballot access provision, not a "qualification"; and, further, even in the event it is something closer to a "qualification," it is within the discretion of the legislature to decide the manner of the selection of presidential electors, and that may include cabining the discretion of the voters with a requirement that a candidate for President cannot be listed for another office.

But, it's a heavily gray area without obvious answers. We'll see if the Kentucky legislature arises at a novel solution to avoid a judicial intervention into this political thicket.

Wigmore critiques judges for failing to read legal scholarship

Following up on a couple of recent critiques of the legal academy, here's what John Henry Wigmore had to say about legal scholarship in his treatise on evidence, written in 1915, in which he laments the shortcomings of judicial opinions (available via Google Books):

1. A first shortcoming to be noted is the lack of acquaintance with legal science. By “legal science” is meant all that is above, between, and behind the particular rules and precedents,—the system of legal knowledge,— that which distinguishes the architect from the carpenter. In an administrator of the law, one's equipment as a scientist may be in general denoted by one's attainments in (a) legal history, (b) legal philosophy and jurisprudence, (c) sound discrimination of the best sources of knowledge.

(a) Acquaintance with legal history is almost totally lacking. There are now ample modern sources for a knowledge of the history of the great principles of our law. They are unknown to our judges. The citations of Pollock and Maitland’s History since its appearance in 1895 could be numbered on the fingers of both hands. There exist now plenteous other standard authorities. But whenever there is an expounding of history, Blackstone suffices. For the judiciary's purposes, the world stopped still with him.

(b) The philosophy and jurisprudence of the law are unknown. Austin, Salmond, Holland, Amos, Sidgwick, Spencer, Terry, Gray, might as well not have written. To be sure, Anglo-American legal science itself has, until very recently, covered formally but a part of the field, chiefly the so-called analytical jurisprudence; but even this has suffered “the long divorce of steel” from the law, so far as judicial opinions reveal.

(c) There is no discrimination in the use of the expository authorities. Such a discrimination is the mark of a sound legal education and a correct scholarly standard. But, in the judicial opinions, the superficial products of hasty hack-writers, callow compilers, and anonymous editors, are given equal consideration with the weightiest names of true science. Obviously, any printed pages bound in law-buckram and well advertised or gratuitously presented constitute authority fit to guide the Courts.

Note, however, that it must be bound: for if it is in periodical form, it is ignored. For ten and twenty years past there have been at the service of the profession some half a dozen legal periodicals, publishing the weightiest critiques of current legal problems. There is nothing in judicial opinion to show that these articles have ever been read; apparently their great labor and acute skill have been wasted on the judges.[n.1] The article by Louis Brandeis and S. D. Warren on “The Right of Privacy” (published in the Harvard Law Review some twenty-five years ago) is the most notable of the rare exceptions discoverable.

[n.1]: And when occasionally they are read, and used, they are studiously not cited. A notable example of this was recently related to the writer, by one who had it directly from a chief justice.

New Harvard Law Review pieces on campaign finance and McCutcheon

The Harvard Law Review has recently published two pieces examining the effect of McCutcheon v. FEC (PDF).

The Practical Consequences of McCutcheon, by Robert K. Kelner, chair of the Eleciton and Political Law practice at Covington & Burling, concludes that little will change as a result of McCutcheon due to pragmatic difficulties organizing super joint fundraising committees and the few individuals who were previously limited by the biennial contribution limits.

And After McCutcheon, by Jonathan S. Berkon & Marc E. Elias, both at Perkins Coie, concludes that political parties will have slightly more power and control after McCutcheon, as party committees will be able to pursue additional contributions from key donors (an argument echoing a point raised by Rick Pildes immediately after the case).

I commend both pieces to you--brief, thoughtful pieces from practitioners with important points.

The sixteen law reviews you should follow on Twitter

Last year at PrawfsBlawg, I blogged about a Twitter census of law reviews. I've maintained a Twitter list of law reviews. But I thought I'd do a little analysis of these law reviews.

Twitter remains one of the easiest places for me to find and aggregate journal content. I use Feedly extensively for blogs and other RSS-friendly places, but I've found that many law reviews lack an RSS, or the process of inputting them all one at a time to be laborious. Concurring Opinions continues to host law review tables of contents (which I find one of the most valuable contributions to legal blogging), but, as boards turn over year after year, few still use the service. Sadly, it's almost as if law reviews don't want people easily finding and reading what they publish.

I looked at the flagship law reviews at the 108 law schools with a U.S. News & World Report peer score of 2.2 or higher. If I found their Twitter accounts, I included them. I then examined how many tweets they had, how many followers they had, and when their last tweet (not a retweet) took place.

As it is, there are only 64 of these journals that even have a Twitter account. And that includes accounts that have as few as zero tweets.

So I then created a benchmark: the law reviews worth following are those with at least 100 tweets, at least 100 followers, and at least one tweet in the last 30 days. I thought that would be a pretty minimal standard for level of engagement and recency of engagement. This 100/100/30 standard reduces the list to 16 accounts worth following:

Yale Law Journal

Harvard Law Review

Columbia Law Review

Chicago Law Review

NYU Law Review

California Law Review

Michigan Law Review

Penn Law Review

Texas Law Review

Iowa Law Review

Ohio State Law Journal

Fordham Law Review

Washington Law Review

American Law Review

Pepperdine Law Review

UALR Law Review

A majority are "top 15" law reviews, which shows that the higher-quality schools tend to have a more active and engaged social media presence. Indeed, the Penn Law Review has been praised for its social media presence.Alas, law review editorial boards turn over annually, and so many of these accounts have fallen into disuse, including one I've praised before.

Below is the complete list, with 100/100/30 law reviews highlighted. If you see a journal not listed, tweet me about it @derektmuller.

Peer score	Journal	Tweets	Followers	Last tweet (not RT)
4.8	@YaleLJournal	525	3400	May 6, 2014
4.8	@HarvLRev	476	11.9K	April 18, 2014
4.7	@StanLRev	246	2673	January 15, 2014
4.6	@ColumLRev	140	967	May 12, 2014
4.6	@UChiLRev	204	1759	May 15, 2014
4.4	@nyulawreview	946	2789	May 4, 2014
4.4	@CalifLRev	237	1129	May 12, 2014
4.4	@michlawreview	125	837	May 19, 2014
4.3	@PennLawReview	225	830	May 8, 2014
4.3	@VirginiaLawRev	12	137	April 9, 2014
4.2	@DukeLawJournal	9	554	April 7, 2014
4.1	@NULRev	56	145	May 16, 2014
4.1	@Cornell_Law_Rev	1	496	July 21, 2010
4.1	@GeorgetownLJ	14	313	October 29, 2013
4.0	@TexasLRev	239	962	May 16, 2014
3.9	@UCLALawReview	99	1217	April 30, 2014
3.8	Vanderbilt
3.6	Washington (St. Louis)
3.5	@MinnesotaLawRev	21	58	May 11, 2014
3.5	@SCalLRev	5	48	May 9, 2013
3.5	North Carolina
3.4	Emory
3.4	George Washington
3.4	@NotreDameLawRev	10	80	April 16, 2014
3.4	@UCDavisLawRev	32	137	October 5, 2012
3.3	@BULawReview	493	599	February 28, 2014
3.3	Wisconsin
3.2	William & Mary
3.2	@IowaLawReview	186	658	May 17, 2014
3.2	Indiana (Bloomington)
3.2	@OhioStateLJ	154	552	May 12, 2014
3.2	@BCLawReview	258	711	April 1, 2014
3.2	@fordhamlrev	232	929	May 13, 2014
3.2	Washington & Lee
3.1	@AlaLawReview	2	150	January 11, 2013
3.1	@WashLawReview	106	508	May 16, 2014
3.1	@GaLRev	3	60	February 13, 2014
3.1	@WFULawReview	238	228	April 11, 2014
3.1	@arizlrev	31	167	April 2, 2013
3.1	@UIllLRev	78	451	May 16, 2014
3.1	@UFLawReview	125	306	October 28, 2013
3.1	@HastingsLJ	43	139	April 22, 2014
3.0	Arizona State
3.0	Colorado
3.0	@TulaneLawReview	39	362	May 2, 2014
2.9	BYU
2.9	Florida State
2.9	Maryland
2.8	Utah
2.8	@ConnLRev	28	434	March 18, 2014
2.8	@CardozoLRev	50	603	April 29, 2014
2.8	@AmULRev	115	392	April 29, 2014
2.7	George Mason
2.7	@TempleLawReview	27	81	December 17, 2012
2.7	@UMLawReview	13	345	February 14, 2014
2.7	San Diego
2.7	@OregonLawReview	5	172	March 12, 2012
2.6	SMU
2.6	@PeppLawReview	579	452	May 14, 2014
2.6	Houston
2.6	@CaseWResLRev	799	539	March 26, 2014
2.6	@denverlawreview	19	196	May 17, 2014
2.6	@ukanlrev	96	405	May 2, 2014
2.6	Tennessee
2.6	@PittLawReview	0	2	n/a
2.6	Loyola (Los Angeles)
2.5	Richmond
2.5	Nebraska
2.5	@KYLawJournal	17	111	March 20, 2012
2.5	Oklahoma
2.5	Georgia State
2.5	Missouri (Columbia)
2.5	@LUCLawJournal	167	86	April 22, 2014
2.5	Chicago-Kent
2.5	Brooklyn
2.4	Baylor
2.4	@pennstatim	27	125	September 18, 2013
2.4	Lewis & Clark
2.4	New Mexico
2.4	Cincinnati
2.4	@RutgersLJ	12	412	May 2, 2014
2.4	@RutgersLRev	49	427	May 15, 2014
2.4	Indiana (Indianapolis)
2.4	Marquette
2.4	Hawaii
2.4	Santa Clara
2.3	@arklawrev	156	1680	February 17, 2014
2.3	@SHULawReview	22	113	January 28, 2014
2.3	@NevLawJournal	18	27	April 8, 2014
2.3	@MichStLRev	202	373	April 11, 2014
2.3	Seattle
2.3	@nuljournal	28	200	May 5, 2014
2.3	@SCLawReview	305	536	April 11, 2014
2.3	@VillanovaLawRev	1	33	April 14, 2014
2.3	SUNY (Buffalo)
2.3	Catholic
2.3	@SyracuseLRev	20	75	May 7, 2014
2.3	DePaul
2.2	@lalawreview	40	308	April 30, 2014
2.2	Louisville
2.2	Mississippi
2.2	@UMKCLawReview	0	3	n/a
2.2	@GonzagaLawRev	75	78	May 16, 2014
2.2	St. John's
2.2	@UALRLawReview	210	338	April 23, 2014
2.2	@MaineLawReview	65	247	May 19, 2014
2.2	Hofstra
2.2	@HULawJournal	331	295	April 9, 2014

What Chief Judge Kozinski got (mostly) right in a presidential qualification case

This is the third in a series of posts about my forthcoming article, Scrutinizing Federal Electoral Qualifications, 90 Indiana Law Journal (forthcoming), available on SSRN. Comments, critiques, and feedback are welcome.

After identifying the problem of evaluating federal qualifications and examining Congress's role in the process, what's left for states to do? Enter the case of Peta Lindsay.

In 2012, she was 27 years old. She sought the nomination from the Peace and Freedom Party to run for president. California discovered that she was not eligible and excluded her from the ballot. The Ninth Circuit, in an opinion by Chief Judge Kozinski, found today that she could be excluded from the ballot. (The PDF of the opinion is here.)

The opinion is mostly right in this regard: assuming the power for a state to exclude a candidate from the ballot exists, what standard applies to reviewing that power? The First Amendment doesn't really guarantee you a slot on the ballot if you're not eligible; the Equal Protection Clause can't really help if there's a meaningful basis to distinguish between eligible and ineligible candidates, which the Constitution clearly anticipates; and the Twentieth Amendment does not demand that the Constitution vests exclusive authority to resolve presidential disputes (alluded to earlier here).

But, that all makes two important assumptions: the state does have the power to exclude a candidate from the ballot, and it has done so in this case.

As to the first, the question is more direct. The state legislature may "direct" the "manner" of appointment of electors. It may certainly decide to restrict the appointment of electors to only "eligible" candidates, and it may channel that decision-making process accordingly. The power given to Congress is not absolute (which, the Ninth Circuit emphasized, is emphatically the case with the Twentieth Amendment claim). In fact, as the selection of presidential electors is reserved to state legislatures, there is an even greater case that the power remains in the states.

As to the second, the question is more complicated. What state statute authorizes the Secretary of State to make inquiries into the eligibility of candidates? The closest statute the California Secretary of State cited was California Government Code § 12172.5, which provides,

(a) . . . The Secretary of State shall see that elections are efficiently conducted and that state election laws are enforced. The Secretary of State may require elections officers to make reports concerning elections in their jurisdictions.

...

(d) The Secretary of State may adopt regulations to assure the uniform application and administration of state election laws.

That's hardly the stuff of a directive from the state legislature to the elections officer to evaluate a candidate's qualifications.

That's not to say that it's unprecedented: in Cleaver v. Jordan, a 1968 dispute (discussed in a 2010 dispute, Keyes v. Bowen), California courts allowed the Secretary of State to exclude a thirty-three-year-old presidential candidate from the ballot.

But it is to say that courts--particularly federal courts--should be careful in treading upon the state legislature's directives to its executive officers as to how to conduct presidential elections. There was some discussion about the interpretation of the state statute at oral argument, but that all disappeared in the Ninth Circuit's opinion.

The only suggestion otherwise took place on reference to California Election Code § 6720, which says that a candidate "shall" be placed when she is one advocated for office under the Peace and Freedom Party. The court flatly rejects any exercise of supplemental jurisdiction over this issue, noting, "it has no bearing on this lawsuit, which is based entirely on federal law."

And perhaps that is the right outcome, to a point. States are left with administering the presidential ballot; it is left to state courts to wrestle with the interpretations of state laws. But even then, a court must still assume that the state is vested with the power to exclude; it is no answer to point to another provision that might compel a place on the ballot and kick that issue back to a state.

It is on this, then, that the Ninth Circuit got the Peta Lindsay dispute (mostly) right. But this assumption of the power of states to evaluate the qualifications presidential candidates remains, again, unaddressed, and merely assumed, in a judicial opinion--and it's an assumption my latest Article seeks to highlight.

Scholarship highlight: Ganesh Sitaraman, Contracting Around Citizens United

The Columbia Law Review just published this Essay by Ganesh Sitaraman, Assistant Professor of Law, Vanderbilt Law School, available as a PDF. Here is the abstract:

The Supreme Court's decision in Citizens United v. FEC is widely considered a major roadblock for campaign finance reform, and particularly for limiting third party spending in federal elections. In response to the decision, commentators, scholars, and activists have outlined a wide range of legislative and regulatory proposals to limit the influence of third party spending, including constitutional amendments, public financing programs, and expanded disclosure rules. To date, however, they have not considered the possibility that third party spending can be restrained by self-enforcing private contract between the opposing campaigns. This Essay argues that private ordering, rather than public action, is an additional approach for limiting third party campaign spending. It explains the design of a contract between opposing campaigns that is self-enforcing and restricts third party spending; identifies the conditions under which such a contract is likely to be offered and accepted; shows how political dynamics push third parties and campaigns to adhere to the contract's spending restrictions; and discusses possible loopholes and challenges. While private ordering through a self-enforcing contract might seem like wishful thinking, precisely this kind of contract, "The People's Pledge," succeeded in keeping out third party spending on television, radio, and internet advertising in the most expensive Senate race in history, the 2012 Brown-Warren race in Massachusetts. Since then, this kind of contract has been adopted in two other federal congressional races and debated and offered in a wide range of other races. In the context of political gridlock in Congress, the emergence of a private ordering option to achieve campaign finance reform goals is significant. This Essay analyzes the conditions under which private ordering, rather than public law reform, can limit third party spending in elections. It draws on examples, particularly that of the original "People's Pledge," to illustrate the general parameters of these contracts, and it considers the implications of these contracts for election law and policy.

Does it even matter if Ted Cruz is a "natural born citizen"?

This is the first in a series of posts about my forthcoming article, Scrutinizing Federal Electoral Qualifications, 90 Indiana Law Journal (forthcoming), available on SSRN. Comments, critiques, and feedback are welcome.

Senator Ted Cruz is an American. But he was born to a Cuban father and an American mother in Calgary, Alberta, Canada. He may run for president one day. But the office of president is limited to "natural born citizens." Is Mr. Cruz one?

Questions about the qualifications of presidential candidates are nothing new--but they certainly reached new frenzied heights as conspiracy theorists wondered whether Barack Obama was born in Indonesia or Kenya, and had manufactured a fraudulent (or concealed a nonexistent) Hawaiian birth certificate. They persisted for John McCain, too, as he was born in the American-controlled Panama Canal Zone. They lingered for Dick Cheney, who prior to moving to Wyoming resided in Texas, George W. Bush's home state, which would have precluded Texan presidential electors from voting for both candidates. And they've lingered for many other prospective candidates.

And although these election disputes seem like distant memories, they are still being litigated today--and their results could impact future hopefuls like Mr. Cruz. Indeed, the Alaska Supreme Court, in an unpublished decision Lamb v. Obama, and the Alabama Supreme Court, in McInnish v. Bennett, both addressed these issues in March; the Ninth Circuit heard oral argument in Peace & Freedom Party v. Bowen on these issues in February.

Litigants bring these questions on the merits. A candidate is included on the ballot whom a litigant believes is not qualified and should be excluded; or an election official excludes a candidate on the ballot because she believes the candidate is not qualified and the candidate sues to obtain ballot access. And most of the public debates on this issue arise on the merits of whether a candidate is or is not qualified.

But there is a predicate question: can the litigant even sue in court? This question is asked less regularly, but there are usually barriers to justiciability, particularly standing, in federal court, which means that courts often don't even answer the question on the merits.

But there's a predicate question even to this inquiry. What power do states have in evaluating the qualifications of candidates for federal office? And if they have power, where does it come from? If states have no power to evaluate qualifications for federal office, then courts need not even adjudicate these questions. In that sense, it may not "matter" whether Mr. Cruz is a "natural born citizen" for purposes of ballot access (sorry for the provocative headline); it may be simply a question reserved to other parties. Or, if states do have some power to scrutinize qualifications, is that a constitutional question or a statutory question? And what are the contours of their power?

My forthcoming article addresses these questions. Courts have been inconsistent in their approach. Sometimes, they refuse to answer the question and argue that scrutiny of qualifications is a question left to Congress or other political actors. At other times, they approve the inclusion or exclusion on the ballot, concluding that the state had the power to scrutinize qualifications.

I'll look at what qualifications are, and who has the power to examine qualifications for federal office--for Congress, and for president. I'll then figure out what role, if any, states have in scrutinizing those qualifications, and how courts should approach those questions of scrutiny.

Why aren't more journals like the Case Western Reserve Law Review?

What is the purpose of a Law Review?

It's 2013, but consulting the first issue of the Harvard Law Review (1 Harv. L. Rev. 35 (1887)) may prove instructive.

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In many ways, the purposes of law reviews have not changed in 126 years. There is less an emphasis on "news" from the law school, but from symposia to student scholarship there is a school-centered emphasis in the scholarship published. The journal seeks to assist the profession as a whole (although its success achieving this point is certainly debatable). And it hopes to provide scholarship of "permanent value."

And while the purposes (as a general matter) have not changed, neither have the means. Apart from the thickness or a journal, the frequency of publication, the length of articles, the quantity of citations, and so on, law reviews look pretty much the same. They communicate to a generalist audience with a general subject matter. They are published at a few intervals each year, in print, with a lengthy editing process. They are printed, and circulated, and the process resumes.

The bulk of student editors' work is focused on citations. While the original Bluebook manual for citations, published in 1926, did "not pretend" to be exhaustive, the latest manual spans over 500 pages, is updated every few years, and consumes the overwhelming portion of students' attention. And students have just a year in charge of the journal: they accept positions in the early spring of their second year; they hit the ground running in article selection and editing; and, in one year, they turn over their duties to another set of students who begin again. Institutional memory is limited. Rewards for innovation appear few, as the process rewards catching up and meeting short-term goals in a one-year term over long-term investments beyond one's limited term.

But the Case Western Reserve Law Review has introduced a number of innovations to share scholarship and scholarly ideas in a variety of formats, and it has reconsidered some of the traditional means of scholarship in very good ways.

It has renovated its typography and publication format. It created a font, Legal Modern, [update: it is a "a repackaged distribution of Computer Modern for lawyers, not a new design"] designed for optimization both in print and on electronic media. It includes, among other things, "true" small caps. The old wide page margins were abolished in favor of very narrow margins, a recognition that reading an article in PDF on an electronic reader like a Kindle or iPad would improve. The old printed format had different headers on even and odd pages, assuming one viewed pages two at a time; the new format assumes single-page headers.

The law review hosts a podcast, Below the Line (available on iTunes), in which a recent author and two other scholars in the field discuss the author's recent work. It produces an organic and often lively discussion of the recent scholarship, and it provides an alternative outlet for learning about the work.

Its Twitter account is active, with a sense of humor and a high level of engagement. It accepts submissions via Twitter. It launched a Twitter symposium, first "Terrorism and Miranda," then on the Court's decision in Myriad, in which it retweeted law professors' thoughts on the matter and noted the "organic and lively" discussion that took place. And it's sponsoring a Lego Supreme Court giveaway for those who review a recent article published in the Law Review. It's more than simply a feed repeating the titles of articles: the social media is used as a different kind of presence.

(Let me offer a small word about letterhead bias and Twitter. The Cornell Law Review has a single tweet from 2010 and has over 400 followers. The Duke Law Journal has no tweets and over 350 followers. In contrast, the Case Western Reserve Law Review has interesting and unique content, an engaging and interactive presence, but boasts just over 250 followers. It's staggering to me that such a disparity exists.)

When I asked the Law Review about the barriers to innovation given a limited institutional memory, I was told that the enthusiasm from the previous editorial boards helps drive future boards to take the innovations and develop them. The ideas have been communicated to the new staff members at a very early stage with the hopes that they will take the inheritance and continue to improve upon the foundation created.

And what about the print edition itself? Well, the Law Review is going to preserve that form for a while longer, but I may have some words on it in a post to come. 

Why aren't more law reviews doing it?  Admittedly, institutional memory is a significant problem, as are the seemingly pressing short-term goals. But with vision and a staff that buys in, positive changes can occur. 

So take note, law reviews, about the changes that the Case Western Reserve Law Review has begun--and keep an eye out for future changes.  This is the way to operate a law review.

Special thanks to Volume 64 Publisher Elizabeth Horan for taking the time to discuss the Case Western Reserve Law Review with me.