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Articles by Zak Kramer
Inside a culture shift that raised the bar for Elon Law
In my first few weeks as dean at Elon Law, I kept hearing versions of the same thing. A student told me, “It’s okay if I fail the bar. I’ll just take it again.” Said another: “The bar doesn’t define me.” Then I heard one remark they were just going to “take it to see what it’s like” and pass the second time. I understood what they meant. But they were wrong. If you want to be a lawyer, the bar exam matters. A lot. And none of these students lacked talent.
Managing Our Microbial Mark: Lessons We Can Learn About Pay for Performance From Ebola's Arrival at Our Shores
« Rotations | Main Sunday, February 01, 2015 Managing Our Microbial Mark: Lessons We Can Learn About Pay for Performance From Ebola's Arrival at Our Shores It has been a privilege to join you here this past month. I close out my month as a guest with some thoughts from my current research on pay for performance, coming soon to my SSRN page. If you've seen any of the data on the apparent ebbing of the Ebola virus outbreak in west Africa, you know that the news is good.
PrawfsBlawg: Rotations
« How to Find and Build a Scholarly Community | Main Sunday, February 01, 2015 Rotations Welcome to February. And welcome to our February guest bloggers--Jennifer Bard (Texas Tech), Michael Coenen (LSU), Andrea Freeman (Hawaii), Seema Mohapatra (Barry), and John Pfaff (Fordham). And thanks to our January guests for some great stuff--Dan Filler, Paul Gowder, Ann Marciarille, and Eugene Mazos. Some of them will be sticking around through the weekend and the early part of the month.
How to Find (and Build) a Scholarly Community
« Standing’s Lujan-ification | Main Saturday, January 31, 2015 How to Find (and Build) a Scholarly Community So imagine this: You are new to the legal academy, and you are trying to find a scholarly community. Or, you have just formed such a community but want to make it stronger. Where do you begin? What steps do you take? I am not an expert in this endeavor, but this past week I spoke to some of you who are. And I would like to share some of your ideas and advice here.
Standing’s Lujan-ification
« LBJ and the Supreme Court | Main Saturday, January 31, 2015 Standing’s Lujan-ification Standing doctrine has been in flux in recent decades, and one aspect of that change has to do with the rise of the tripartite constitutional standing test that is now most closely associated with Lujan v. Defenders of Wildlife (1992). This post outlines the rise of the tripartite test over the last half-century and begins to explore its implications.
LBJ and the Supreme Court
« In Defense of Students, OR: Student “Quality,” Student Engagement, Incentives, and the Fundamental Attribution Error | Main Friday, January 30, 2015 LBJ and the Supreme Court This is a couple days old, but I will second Gerard Magliocca's recommendation of KC Johnson's post on LBJ's conversations about the nomination of Abe Fortas as Chief Justice; the post includes audio links to excerpts of the Johnson White House tapes along with transcripts and some commentary.
In Defense of Students, OR: Student “Quality,” Student Engagement, Incentives, and the Fundamental Attribution Error
« Open Thread: How do we Stop the Madness? | Main Friday, January 30, 2015 In Defense of Students, OR: Student “Quality,” Student Engagement, Incentives, and the Fundamental Attribution Error This is probably my last non-game theory post, and I haven’t picked any really good fights all month! That clearly won’t do.
Open Thread: How do we Stop the Madness?
« Game theory post 6 of N: the anxiety of rationality | Main Thursday, January 29, 2015 Open Thread: How do we Stop the Madness? By "the madness," I mean this. Opaque "submission seasons" and letterhead biases and footnote fetishes and massively multiple submissions (I kinda want to start an MMORPG called "World of Lawcraft," all about getting law review articles published) and all the other crazy pathologies of law review publishing.
Game theory post 6 of N: the anxiety of rationality
« Photo Safaris | Main Thursday, January 29, 2015 Game theory post 6 of N: the anxiety of rationality The first five posts have pretty much laid out the basics of functional day-to-day game theory. (Well, I still need to do an information sets post. Don't let me leave without doing one!) Together, they amount to sort of the “street law” of the game theory world---the stuff a non-specialist actually tends to use on a regular basis.
PrawfsBlawg: Photo Safaris
« Primed for Change | Main Thursday, January 29, 2015 Photo Safaris The following post is from John Sprankling (Pacific-McGeorge) and is sponsored by West Academic. Pictures are powerful tools. As Ivan Turgenev observed in his 1862 novel Fathers and Sons, “[a] picture shows me at a glance what it takes dozens of pages of a book to expound.” Learning theorists have long understood the pedagogical value of images.
Primed for Change
« If you say so | Main Wednesday, January 28, 2015 Primed for Change It is hard to believe that it was just about a year ago that I blogged here about Prime Health Care's transition from a bit player to a major player in acute care hospital ownership. A lot can happen in twelve months, especially when you are on an acquisition binge. Prime, you may recall, specializes in the acquisition and turnaround of financially troubled acute care hospitals.
PrawfsBlawg: If you say so
« Alternative Paradigms for Regulating Campaign Finance | Main | Primed for Change » Wednesday, January 28, 2015 If you say so Judge Callie Granade of the Southern District of Alabama has clarified her order holding that Alabama's marriage-equality ban violates the Fourteenth Amendment.
Alternative Paradigms for Regulating Campaign Finance
« #Not all convictions | Main Wednesday, January 28, 2015 Alternative Paradigms for Regulating Campaign Finance Many Americans believe that there is too much money in politics. But what should be done about it? As far as the Supreme Court is concerned, not much. Currently, the Court accepts only one justification for placing limits on campaign contributions, and that is to prevent corruption or the appearance of corruption.
#Not all convictions
« Extending Unequal Second Amendment Rights | Main Wednesday, January 28, 2015 #Not all convictions Sadly, the only lessons anyone will learn about campus sexual assault from the convictions of two former Vanderbilt football players is 1) Don't be so stupid (or arrogant) as to record and share your criminal activity and 2) You cannot get away with as much when you are not the star quarterback at a championship-contending football factory.
Extending Unequal Second Amendment Rights
« Dispatch from the Eastern Seaboard: we're not all dead. | Main Tuesday, January 27, 2015 Extending Unequal Second Amendment Rights Stories like this one - a 62 year old African-American man is tackled to the ground in a Tampa Wal-Mart after a white man saw him bringing a (legal) firearm into the store - have me wondering how to think about the idea of extending Second Amendment rights in a world where we can pretty well predict, ex ante, that they will not be equally available to all citizens.
Dispatch from the Eastern Seaboard: we're not all dead.
« Nursing Homes as Guardians of Their Debtor Patients | Main Tuesday, January 27, 2015 Dispatch from the Eastern Seaboard: we're not all dead. As many of you know, I am a Californian who teaches at the University of Iowa and is spending this year in Princeton. This has, as you might expect, given me an odd perspective on weather disasters (other than just hating 'em), and the people who suffer them. East coast: weather service predicts apocalypse. New York City shuts down. Citizens enraged.
Nursing Homes as Guardians of Their Debtor Patients
« Game theory post 5 of N: the joy and madness of repeated games | Main Monday, January 26, 2015 Nursing Homes as Guardians of Their Debtor Patients If you saw today's New York Times article on New York nursing homes seeking guardianship over residents in order to collect outstanding debt, under Article 81 of the Mental Hygiene Law, you may also have questions.
Game theory post 5 of N: the joy and madness of repeated games
« Epilogue: Moral Panics and Body Cameras | Main Monday, January 26, 2015 Game theory post 5 of N: the joy and madness of repeated games One thing about strategic interactions is that humans tend to repeat them. For example, participants in a market may engage in trades over and over, neighbors may make the same decisions with respect to borders, common resources, etc.
Epilogue: Moral Panics and Body Cameras
« Submission angsting: Spring 2015 | Main Monday, January 26, 2015 Epilogue: Moral Panics and Body Cameras Almost immediately after my essay on body cameras was published in Wash. U. L. Rev. Commentaries in November, stuff blew up--the Michael Brown non-indictment, the Ferguson and national protests, the Eric Garner non-indictment, and the protests from that.
Submission angsting: Spring 2015
« Why Study Athenian Law? | Main Monday, January 26, 2015 Submission angsting: Spring 2015 The submission window is just about to open and we await Redyip's semi-annual return-- some journals already have announced they are accepting submissions. So let the angsting commence. If you are an author or law review editor and want to share information about your submission experience to the law reviews, this is the place to do it. If you have questions about the process, this is the place to do it.
Why Study Athenian Law?
« The process of marriage equality, once again | Main Monday, January 26, 2015 Why Study Athenian Law? Let’s have a break from game theory. As some of you may know, I have a research program in ancient Athenian law. I’ve published one big article on the subject, have a book chapter forthcoming, have another paper or two or three in the hopper, and draw on it to understand other things on an appallingly regular basis, even when I write about things like constitutional law and jurisprudence.
The process of marriage equality, once again
« Law School Centers: The Good, the Not-So-Bad, and the Largely Unknown | Main Sunday, January 25, 2015 The process of marriage equality, once again This time in Alabama (H/T: Josh Blackman), with the pushback coming from the state's probate judges, who are empowered under state law to issue marriage licenses.
Law School Centers: The Good, the Not-So-Bad, and the Largely Unknown
« Game theory post 4 of N: extensive form games, a deep dive | Main Saturday, January 24, 2015 Law School Centers: The Good, the Not-So-Bad, and the Largely Unknown I teach at a law school that does not have any centers. When I arrived, I noticed this and tried to change it.
Game theory post 4 of N: extensive form games, a deep dive
« JOTWELL: Leong on Rush on geographic diversity | Main Saturday, January 24, 2015 Game theory post 4 of N: extensive form games, a deep dive How about some Saturday game theory over brunch? The one-round strategic form games of the previous post are the simplest possible presentation of some actual game theory. Now I want to put on my political scientist hat and dig into a slightly less simple, but much beloved, game.
JOTWELL: Leong on Rush on geographic diversity
« Game theory post 3 of N: some classic (one-shot, strategic form) games | Main Friday, January 23, 2015 JOTWELL: Leong on Rush on geographic diversity The new Courts Law essay comes from Nancy Leong (Denver), reviewing Sharon E. Rush's Federalism, Diversity, Bias, and Article III (Missouri L. Rev.), which explores the role of geographic diversity in the federal judiciary.
Game theory post 3 of N: some classic (one-shot, strategic form) games
« Sutter Health vs. Blue Shield: War of the Gargantuas | Main Friday, January 23, 2015 Game theory post 3 of N: some classic (one-shot, strategic form) games There are a number of classic textbook games that are highly useful, primarily because if you know them well, you can often see real-world situations that have similar payoff structures; doing so, you have a pretty good initial guess at what will happen in those situations. Accordingly, I'll collect some here.
Sutter Health vs. Blue Shield: War of the Gargantuas
« When Agencies Don’t Appear on the SG’s Briefs | Main Thursday, January 22, 2015 Sutter Health vs. Blue Shield: War of the Gargantuas When I think about calls for increased consumer activation in health insurance selection, I think about how much I like the ideas of increased health insurance literacy, price transparency, and the promotion of competition in health care markets.
When Agencies Don’t Appear on the SG’s Briefs
« Game theory post #2 of ????: Basic Concepts | Main Thursday, January 22, 2015 When Agencies Don’t Appear on the SG’s Briefs When the Solicitor General files briefs in the Supreme Court, the briefs always bear the names of other lawyers from the Department of Justice. In special cases, however, officials from other agencies sometimes sign on, too.
Game theory post #2 of ????: Basic Concepts
« MDL consolidation and appealability | Main Thursday, January 22, 2015 Game theory post #2 of ????: Basic Concepts This is the second post in an indefinite series of game theory for law professors. In this one, I'll describe some basic concepts---the rudimentary language of game theory as a vocabulary list. This page, incidentally, has even simpler definitions of some of the concepts described here, as well as a few concrete examples. Let us begin, however, by fixing an idea of our task in mind.
MDL consolidation and appealability
" The Leaker Whistleblower | Main SCOTUS on Wednesday decided Gelboim v. Bank of America, holding that a district court order dismissing the sole claim in a single-claim action, consolidated with other actions for pretrial proceedings in multidistrict litigation, was a final and appealable order, even if claims remained in other actions included in the MDL.
The Leaker Whistleblower
« Acoustic Separation and Immigration Reform | Main Wednesday, January 21, 2015 The Leaker Whistleblower Today, the Supreme Court in a 7-2 decision by Chief Justice Roberts affirmed a Federal Circuit decision that government whistleblowers are protected under the Federal Whistleblowe Act unless their disclosures are explicitly prohibited by another statute.
Acoustic Separation and Immigration Reform
« Experimental Game Theory Series #1 of ??? | Main | The Leaker Whistleblower » Wednesday, January 21, 2015 Acoustic Separation and Immigration Reform In Decisions Rules and Conduct Rules: Acoustic Separation in Criminal Law, Meir Dan-Cohen talked about the partial acoustic separation between criminal rules as understood by the public and criminal rules as understood by the courts imposing sanctions.
Experimental Game Theory Series #1 of ???
« Some thoughts on Holt v. Hobbs | Main Wednesday, January 21, 2015 Experimental Game Theory Series #1 of ??? I'd like to try an experiment: methodological propaganda/skillsharing in a series of blog posts. I had originally planned a fairly large number of these and essentially an internet course in basic game theory, but then the 20th of the month snuck up on me, and there's very little chance the whole thing gets out before my blogging residency (such as it is) runs out.
Some thoughts on Holt v. Hobbs
« Decision in Holt v. Hobbs | Main Tuesday, January 20, 2015 Some thoughts on Holt v. Hobbs Like Paul, I say "congrats" to Doug Laycock for the win in Hobbs. And, while waiting for Paul's as-per-usual detailed and thoughtful take on the case, I gathered a few quick thoughts of my own: First, it seems to me that the opinion by Justice Alito is exceptionally well crafted. It should win a Green Bag award or something. It touches the necessary bases and stops. The language is clear and functional.
Decision in Holt v. Hobbs
« Henry Manne, R.I.P. | Main Tuesday, January 20, 2015 Decision in Holt v. Hobbs The result in this RLUIPA case was unsurprising: The petitioner won unanimously. Justice Alito wrote (again) for the Court, in an opinion holding that "The Department [of Prisons]’s grooming policy violates RLUIPA insofar as it prevents petitioner from growing a 1⁄2-inch beard in accordance with his religious beliefs." Justices Ginsburg and Sotomayor filed short concurrences, solo in Sotomayor's case.
Henry Manne, R.I.P.
« Joachim Prinz, American Jews, and the Civil Rights Movement | Main Tuesday, January 20, 2015 Henry Manne, R.I.P. Henry Manne passed away over the weekend. Thoughts and condolences to Geoff and the rest of his family. I expect you will be hearing much more about Manne's contributions to law, law & economics, the market for corporate control, insider trading, and legal education. We here at SLU Law, where he began his academic career, are happy to claim some small association with his legacy.
Joachim Prinz, American Jews, and the Civil Rights Movement
« The Sleeper Case of the Supreme Court's October 2014 Term? | Main Tuesday, January 20, 2015 Joachim Prinz, American Jews, and the Civil Rights Movement This article is a few years old, but I came across it, appropriately, on MLK Day. It is about Joachim Prinz, the most prominent Jewish leader in the Civil Rights Movement and the only Jewish leader to speak at the March on Washington (he spoke just before King).
The Sleeper Case of the Supreme Court's October 2014 Term
« Thurgood Marshall and the limits of the judicial role | Main Tuesday, January 20, 2015 The Sleeper Case of the Supreme Court's October 2014 Term Over at SCOTUSblog, Will Baude has posted a helpful (and helpfully concise) preview of the oral argument that will take place before the Supreme Court later this morning in Armstrong v.
Thurgood Marshall and the limits of the judicial role
« Bedside Collections Visits in the Emergency Room | Main Monday, January 19, 2015 Thurgood Marshall and the limits of the judicial role Mike Dorf poses an interesting question: Why is Thurgood Marshall never in the conversation about civil rights icon--it is only MLK, with Macolm X as the only possible alternative. Mike offers three reasons, which all seem plausible. I want to consider a fourth option--the limits of the judicial role.
Bedside Collections Visits in the Emergency Room
« Justice Rehnquist, Religious Freedom, and the Constitution | Main Monday, January 19, 2015 Bedside Collections Visits in the Emergency Room Should acute care hospitals be prohibited from attempting to collect health insurance co-pays and other forms of co-insurance bedside in the emergency room?
Justice Rehnquist, Religious Freedom, and the Constitution
« Sponsored posts, explained | Main Sunday, January 18, 2015 Justice Rehnquist, Religious Freedom, and the Constitution I've posted on SSRN a paper of mine called "Chief Justice Rehnquist, Religious Freedom, and the Constitution." I wrote it a few years ago, but it's now going to be published in a forthcoming West Academic Press volume called The Constitutional Legacy of William H. Rehnquist.
Sponsored posts, explained
« The Little Legal Academy and the Big Idea Book | Main Sunday, January 18, 2015 Sponsored posts, explained You may have noticed a recent "sponsored post" on our feed, and there were some questions from our valued readers about it. We're happy to provide some information. We were pleased to reach a sponsorship agreement with West in spring 2014. Occasional sponsored posts, written by prominent law professors, are part of that new relationship, and have appeared intermittently since last spring.
The Little Legal Academy and the Big Idea Book
« An Interesting Quote from the Supreme Court of Canada on Religious Institutionalism and Pluralism | Main Saturday, January 17, 2015 The Little Legal Academy and the Big Idea Book Why does law insist on remaining an article field? In law schools, many professors never aspire to write books. Perhaps worse, many don’t have a book idea in them. In my view, our lack of emphasis on books--and especially on "big idea" books--is detrimental.
An Interesting Quote from the Supreme Court of Canada on Religious Institutionalism and Pluralism
« SCOTUS Repeaters | Main Saturday, January 17, 2015 An Interesting Quote from the Supreme Court of Canada on Religious Institutionalism and Pluralism The Supreme Court of Canada yesterday issued its opinion in Mounted Police Association of Ontario v. Canada. The subject is freedom of association in the context of collective bargaining.
SCOTUS Repeaters
« Fair Grading in a World of Curves? Concepts and an Algorithm... | Main Friday, January 16, 2015 SCOTUS Repeaters Few cases ever reach the Supreme Court, but some get there twice. Recent examples include Bond v. United States (decided 2011 & 2014) and Zivotofsky v. Clinton/Kerry (2012 & pending). The Court may soon add another example: Horne v. Department of Agriculture, decided the first go-round in 2012. What to make of these “SCOTUS repeaters”?
Fair Grading in a World of Curves? Concepts and an Algorithm...
« Sponsored Post from West Academic: Addressing Psychological Distress with Your Students | Main Thursday, January 15, 2015 Fair Grading in a World of Curves? Concepts and an Algorithm... One of the First World Problems of the prawfessoriat is that law school courses tend have mandatory curves, but, of course, student performance never exactly matches those curves, and so some tweaking is required.
Sponsored Post from West Academic: Addressing Psychological Distress with Your Students
« A Further Typology of Draft Readers | Main Thursday, January 15, 2015 Sponsored Post from West Academic: Addressing Psychological Distress with Your Students The following post is from Andrew McClurg (Memphis) and is sponsored by West Academic. My students appear to be happy and content. When I arrive at class, they’re chattering and laughing. Same thing when I see them in the halls or student lounge. On Facebook, they show that, despite the workload, law students find plenty of time to socialize.
A Further Typology of Draft Readers
« Chasing the Dragon in the Shadow of the OX | Main Thursday, January 15, 2015 A Further Typology of Draft Readers I enjoyed Eugene Mazo's post below on different kinds of readers of colleagues' manuscript drafts. In the comments, I added one more category of reader/commenter: "The Bikini, whose advice is always: 'This is really two pieces.'" That was a joke, but not a joke.
Chasing the Dragon in the Shadow of the OX
« The influence of the Justices' religious beliefs | Main Thursday, January 15, 2015 Chasing the Dragon in the Shadow of the OX The numbers are in and it is official: deaths from heroin overdoses in much of the United States have doubled in the past two years. Whether the heroin was injected or smoked ("chasing the dragon"), there is some evidence that, in many places, heroin has increased in both availability and purity in the same time period. How to explain this?
The influence of the Justices' religious beliefs
« Lubet on Chronic Fatigue Syndrome | Main Wednesday, January 14, 2015 The influence of the Justices' religious beliefs There is posted at the Moment website a symposium on the topic "Do the Religious Beliefs of Supreme Court Justices Influence Their Decisions?" The participants are prominent journalists and writers about the Supreme Court, including (not naming all, but just the first three listed!) Tony Mauro, Lyle Denniston, and Robert Barnes.
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