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The Official Podcast for the Minnesota Law Review - https://journals.law.umn.edu/mlr
[music]
Speaker 1: Hello, and welcome to Experto Crede, a podcast where we explore the legal scholarship published annually by the Minnesota Law Review, and the experiences of authors, staffers, and editors who put it all together. I'm your host, Lucy Chin, lead online editor for Volume 108. Today I'm joined by three of my MLR colleagues, Earl Lin, Ryan Liston, and Evan Dale, for a discussion on the student note-writing process. Welcome to you all. Thanks for being here.
This episode will provide an opportunity for Evan, Earl, and Ryan to not only talk about the notes that each of them have written over the past year, but also the experiences that they've gained this year as editors in the note and comment department. Today, you all are here for a double discussion of sorts. We're going to start by spending a bit of time discussing the notes that each of you wrote as staffers last year, and which are being published in Volume 108. Then we're going to talk a bit more generally about the note-writing process and the role of student scholarship within legal academia.
That's a lot to cover, but maybe let's start at the very beginning with each of your individual notes. Evan published a note in Issue 1 entitled, Help Me Sue a Gun Manufacturer: A State Legislator's Guide to the Protection of Lawful Commerce in Arms Act and the Predicate Exception. Ryan published a note in Issue 2 entitled, The Press Clause Needs Teeth: The Case for Strengthening Constitutional Press Protections at Protests.
Earl published a note also available in Issue 2 entitled, Sidestepping the Escherian Stairwell: Explicit Establishment as a Method for Circumventing Qualified Immunity's Constitutional Stagnation. These notes were all incredibly interesting to read, and cover an incredibly broad spectrum of legal issues. I'm wondering if you could start by telling us a bit about your note, what the note covers, and how you became interested in your topic in the first place. Ryan, let's start with you.
Ryan Liston: Perfect. My note looks at the First Amendment's press clause, which essentially establishes that in the United States we have this thing called freedom of the press. I really got interested in the topic through journalism school. That was one of my undergraduate degrees. We spend a lot of time, I think, in journalism school talking about the values of the press and how it helps secure a representative democracy, ensure that government is not corrupt, and that government is acting transparently. That's all great. Those are all great values.
When you really dig down into it, the press clause independently does not do a whole lot. The press are entitled to very important constitutional protections under the First Amendment. Most of those are a combination of the free press clause and the free speech clause. They usually are dealing with things related to publishing information or immediately pre-publication, such as not allowing the government to review content before it's published, or stop content before it's published from coming out. In terms of actually protecting the news gathering processes that journalists are engaged in, the press clause really doesn't do a whole lot.
It's not as strong as you might imagine it to be. My note looks at the current state of the press clause going through relevant case law, touching on the really critical First Amendment cases that have both established the protections that the press needs, but also that have missed the mark, in my opinion, or not gone as far as is necessary to protect news gathering. Then I make the case that under my preferred view of the press clause, the press really ought to be protected when they're covering protests. We saw that in a very clear way in 2020, especially with all the protests for Black Lives Matter and against police brutality.
That really showed the press's key functions coming together of informing the public on what's going on while also holding the government accountable. At those protests, oftentimes the law enforcement would end up arresting journalists, making them disperse the area, enforcing curfews against journalists. There's really no constitutional standard saying they can't do that. Jurisdiction to jurisdiction, there might be different rules, but I think that's a gap in the process.
I think there really is an opportunity there where the press clause could be built out to actually protect news gathering. In the specific context of protests, it would basically manifest in the way that law enforcement wouldn't be able to force journalists to disperse under dispersal orders. They wouldn't be able to enforce curfews against journalists as well, because they're there to report on what's happening with the protests, as well as what law enforcement are doing. That's really the high strokes of what my note is about.
Lucy: Evan?
Evan Dale: As you mentioned, my note discusses the Protection of Lawful Commerce and Arms Act, which is a federal law that grants a level of civil protections to the gun industry. PLCAA, as it's referred to, was passed in 2005 as a result of what we see now as the early uptick in gun violence in the modern epidemic that we are currently living through, but after Columbine and after a rash of shootings throughout the country. The purpose of PLCAA was to protect, as the title suggests, the gun industry from this rising tide of litigation, victims who are harmed by firearms, suing firearm manufacturers and dealers that potentially could put them out of business.
Practically, what the law does is essentially if you are a manufacturer, as I focus on, or a seller of a firearm, if the firearm you make or sell is involved in a violent crime or used in harming someone, those companies would be protected from a lawsuit. If a victim files a lawsuit against a gun manufacturer in this case, the court has a discretion to just dismiss the suit outright, essentially giving them a level of immunity from these types of lawsuits. However, there are a number of exceptions within PLCAA that do allow a lawsuit to proceed against one of these companies.
One of them is, as I focus on, the predicate exception, which allows both the federal government and state legislators to essentially create laws that, should those laws be violated by a gun company, a gun manufacturer, that would be a predicate crime or a predicate lawbreaking violation that would allow that lawsuit to proceed against the gun manufacturer. I actually do two things in my note.
The first is analyze within the predicate exception jurisprudence, a California law that actually went into effect at the beginning of 2024 in California, which is a bounty hunter-style law built to resemble the Texas's SB8 law that in the abortion context, essentially deputized anyone within the state of Texas to sue someone that they suspected was complicit in facilitating an abortion. This law essentially does the same thing but in the gun context, where if a gun is sold or is used in a specific set of contexts, anyone is free to sue the person involved for a specific bounty.
I argue that California law would survive the PLCAA's immunity protections. Then I go on also to provide what I put as a framework for state legislatures who are interested in passing laws that would allow victims of gun violence to circumvent PLCAA. There are a number of tips that I provide analyzing the statutory language of those laws that have been passed recently for that purpose, for other state legislators to use when crafting laws of their own. That's a bit of an overview.
Lucy: Awesome. Thanks. Earl, your turn.
Earl Lin: First off, thanks for having us here, Lucy. I guess to give a little look behind the veil on our brand new studio, which is really, really-- My note is about qualified immunity. In that respect, I think there are some thematic overlaps with what Ryan and Evan wrote about talking, with regard to Evan's note about immunity for certain legal actors, and with Ryan's talking about, accountability function for government, holding government actors accountable, which I guess is the flip side of immunity and especially qualified immunity coming much more to the forefront of the public consciousness following the murder of George Floyd and the uprisings and protests following that.
My note looks specifically at how to get around what Fifth Circuit Judge Don Willett has called the Escherian stairwell in the vein of MC Escher where it's this endless loop. To take it a step back, the way that qualified-- qualified immunity is a protection for all sorts of government actors. We hear about it most typically in the context of police officers who have been alleged to have violated someone's constitutional rights. That's the main context I'm looking at, but it applies to all sorts of government actors. Basically qualified immunity, it protects government actors from not just liability, but from suits altogether, so having to go through things like discovery or trial.
Prior to 2009, the way that qualified immunity works would be somebody sues, say, a police officer for using excessive force, and under a Supreme Court case called Saucier v Katz, the court would have to look first at whether there the allegations showed on their face that the officer had violated someone's constitutional rights and then whether that violation of rights was clearly established by law. That would be, was there some legal circumstance that was similar enough that the officer would be on notice that what they were doing violated someone's constitutional rights?
Then in 2009, there was another Supreme Court case called Pearson v Callahan, which freed courts up from having to do this rigid two-step analysis where first it's a constitutional analysis, and then it's the clearly established law analysis, and told courts whichever one is more efficient, just do that. If you can make the qualified immunity determination on just one prong, that's fine. Even though in the Pearson decision, the Supreme Court told courts don't just skip ahead to the clearly established law prong of the analysis because that could cause stagnation of the constitutional law, that's precisely what courts, including the Supreme Court itself, proceeded to do.
In some ways that makes a lot of sense. There's the doctrine of constitutional avoidance where courts shouldn't reach constitutional questions if they can decide a case on another basis. In some ways, it's pretty foreseeable that that would happen. The end result of that is that you get stuck on what Judge Willett called this Escherian stairwell, where you have a series of facts come up before a court. The court says, it's not clearly established, so we have to grant qualified immunity, kicks the case out. Then another case with the same or similar circumstances comes up no clearly established law.
We have to kick it out, and that law never becomes clearly established. Obviously that has really big consequences for accountability, for civil rights, for people's trust in the court system and in law enforcement and other government actors. How do we deal with this? Is what my note is looking at. Especially in a pragmatic way, because obviously you could try and get the Supreme Court to deal with it, but the Supreme Court doesn't want to deal with qualified immunity. You could get Congress to legislate about it, but Congress is pretty dysfunctional.
My note looks at a few instances where federal courts of appeals have looked at a case and said, we have to give this defendant in front of US qualified immunity because the law wasn't clearly established. These facts are so egregious that we want to explicitly establish going forward that this is not okay. Even though this officer gets qualified immunity, officers in the future will not. I think that's a really ready-to-go off-the-shelf solution where courts don't have to look to the Supreme Court, don't have to look to Congress, and can try and plug this loophole that causes this constitutional stagnation.
Lucy: Amazing. I guess before jumping into my next question, I just want to pause and say I'm so impressed and excited for the notes and also just proud that you all are my MLR colleagues because the way that you've talked about your research is really thoughtful and really comprehensive. I think you have all produced pieces that will be super beneficial for the legal community. To that end though, these questions that you're confronting in your pieces are really big, really complicated issues;protection for journalists, gun violence prevention, qualified immunity.
These aren't easy or straightforward legal questions. I'm wondering if you can talk a little bit about what the writing process was like and how you went from this large legal doctrine or area of interest to a more focused note where you're actually making particularized discrete recommendations for a reader who's picking up this piece and maybe doesn't need to know everything about gun violence prevention or everything about the world of qualified immunity, even though those are really big multifaceted issues. Maybe we could start with Evan. If you all just want to have a bit of a conversation about it, that would be great.
Evan: Sure. I think this also gets to your first question a bit, which is the motivation for writing these specific notes. I spent my 1L summer in a local prosecutor's office doing both gun prosecutions, but also alternatives to gun prosecutions. I think something you see a lot in the lower levels of the criminal justice system is just how prevalent guns are. They are everywhere. That is just this crux that brings so many people in and keeps so many people into the criminal justice system. I knew when I was going into the note-writing process, I was interested in analyzing what that meant or why we see guns so frequently in all of our communities everywhere.
Ended up stumbling, I think, in many ways into this specific topic. I thought that what was really interesting about it is, one, it's a little shocking to the ear to hear that gun companies are given a level of protection and not just by maybe their individual states, but by the federal government. The federal government has stepped in and said, we are choosing sides essentially in this policy battle on behalf of gun companies and against victims of gun violence, which in 2024 is pretty astonishing. What's probably typical for any note topic is how in over your skis you are at the beginning and how much of sorting through all the content on an issue is just really daunting and hard.
It also goes to show how impressive we all are on MLR, and as law students, I don't think it's unique to us, but how quickly it does take to learn and how quickly we all have learned the really nuts and bolts of our individual topics. What I think was unique about my topic specifically is there's not a lot of academic literature on the topic. There was a bit of constructing it from whole cloth in the sense of I really relied on a series of interviews with practitioners who had experience litigating these exact types of cases. It was from those conversations that I really began to flush out what it actually meant to--
How this law operates in the real world, how to read the cases in light of the real-world practitioners' experience that they all have, and also begins to piece together how this is a really dynamic topic. As I mentioned, there's been a number of state legislatures who have begun acting specifically in this vein to grant essentially victims an avenue through PLCAA to begin suing gun manufacturers specifically. A lot of it is relying on the great editors of Minnesota Law Review 107, but also just realizing that there is a bit of a chase that comes with a note topic that takes taking whatever avenues are available to you to become an expert in your own right.
Earl: I had a pretty good idea of what I wanted to write about coming into the note-writing process, because prior to law school, I worked for a public interest organization that did impact litigation oftentimes around qualified immunity. I was pretty familiar with the topic, and in fact, one of the case studies that I highlight in my note was a case that I worked on as a paralegal. That was what inspired me to write this topic actually when the decision for that case came down. On the one hand, it was disappointing because we were representing the plaintiff and we lost, but there was this interesting wrinkle in the decision about, going forwards, this should be considered clearly established.
To speak to what Evan was saying, I think also qualified immunity is something that the more average people learn about, the more it's a little bit shocking what it protects. Working at this organization before law school, I remember, I want to say this was maybe in 2019, very early on in the political calendar, there was a Democratic primary debate where Julian Castro said the words "qualified immunity" on stage and it was mind-blowing for everyone in my organization. I remember coming into the office the next day and we were all-- it was almost like a party.
People were like, someone talked about qualified immunity. Then you fast forward from that what, six, seven months, and after George Floyd was murdered and people were protesting in the streets suddenly with signs that said abolish qualified immunity. To be in that space of that time was really exciting, and to see how for regular people, and I saw this with some of the editors who were working on my note, and some of the just comments they would leave as they were reading through it, to see people become more familiar with this topic and how it really fails to hold government actors accountable oftentimes when they do some pretty egregious things.
In the case where explicit establishment is used, like something that's so egregious that the court says we really want to step in and say, going forward, this is not okay. To see people outside of this niche legal community learn more about this topic and be radicalized, if you will, about it was a really interesting process as well. To see people feeling the same way that people have been working on this issue for years felt about it and to see the public have that awakening was-- in some ways, it gives you a lot of hope for the political future of the country and where the law might go to address this. That's one of the things I'm hoping my note can provide a tool in the toolbox to try and do that.
Ryan: That's very awesome to hear both of Earl and Evan's processes. I think there's a lot of parallels between how I approach my note and Earl's. Before getting into that, thank you, Lucy, for all the compliments on our notes. I do want to say for the listener that Lucy has a note that is going to be published here soon as well. That is a fascinating read. I read through it for one of its rounds of edits, looking at the 988 hotline and crisis response. Just for the listener, I should say, check out Lucy's note when that's published as well.
Earl: [crosstalk] super important societal issue too.
Evan: Will one of us be guest hosting? [crosstalk]
Lucy: Yes. You're going to interview me. It's okay. That's fine.
Ryan: She'll just do it--
Earl: She'll interview herself.
Ryan: Exactly.
Lucy: A one woman show of sorts.
Ryan: To go back to the note-writing process, the winnowing process. I felt like the brainstorming process was actually difficult. I had these general buckets of interests. For me, it was the figuring out how to narrow it down that was a little bit difficult. I definitely, out of all my-- we had to pitch three topics. I only did one on press-related issues. The other two were interests of mine that weren't as established. Having been in journalism for a long time, I started doing journalism in high school and did it all through college. Like I said, got a got a journalism degree in undergrad.
Press issues just are something I know a lot about, I feel connected to. I see the value in them a lot, and the value of a free press and society and needing folks who are watching the government, acting as the watchdogs and exposing government corruption, exposing government wrongdoing, and even just keeping us informed in general, from a more maybe mundane day-to-day perspective, it's still important for us to know what's going on. For me, it was like Earl said, there was the murder of George Floyd and all of the ensuing protests, uprisings in 2020.
There, many people were at those protests. People were watching them on their TVs. Within that was this microcosm of tension between journalists and the government that's always been in our society because they have countervailing roles, not necessarily opposite roles in society. Ideally, the government is serving its people and wants to be a good democracy. The, journalists are there to hold them accountable and make sure they're actually doing what they're saying they're doing.
To see it so poignantly at issue in these protests with police, again, forcing journalists to disperse, forcing them to go back home during curfews, but also pepper spraying them, targeting them with other law enforcement tactics that were more forceful, handling them poorly, and then essentially charging them with not super concrete crimes, things like that. It just put my interests at a really fine point where I was like, I'm interested in expanding press clause protections, looking at how the free press clause can actually, as my notes title suggests, be given some teeth to do something to protect the news gathering process.
Right now in the last several years with protests being such a ubiquitous thing, we've seen the press serving an important role while at the same time not really being protected from law enforcement overreach, and law enforcement pushing them out of the picture when they're trying to bring this information, this important story to the public's eyes. For me, it was really taking that general interest and the circumstances, the world, pushing it to a point where I saw how I could apply it to a real world issue. It's especially important for Minnesota Law Review to cover it since all of these major protests and the murder of George Floyd happened here in Minneapolis. It fit really well with our audience as well.
Lucy: A thread that I'm hearing throughout all of your comments about this is that you had a particular personal experience or exposure to the topic that ended up becoming your note, or it was particularly timely or relevant to the world that we live in today. We'll revisit this, but it feels exciting. This was my experience with my note too. It feels exciting that you're able, as an author of a note, to dive into something that has deep personal interest or comes from a place of personal experience. It's not just a paper that you're turning in for a class or something that you have to grasp at straws to get excited about.
These are all topics that arose from real deep, genuine interest. I think that's really exciting. Another question that one might confront in the process of writing a note, and as you're winnowing down to that very particular legal topic or legal question, is who the target audience for your note is. I think across academic writing, there's the sense that it's for other academics or for professors, or for your CV. Those can all be true. Can you talk a little bit about, as you were writing your note, who you were writing for, if you had a particular audience in mind, and what you hope that audience takes away when they read your note upon publication?
Earl: I probably have the most narrow, specific audience. The tool I suggest, this explicit establishment, can really only be used by federal courts of appeals judges, that intermediate level of appeals between the trial courts and the Supreme Court. Who knows if any federal courts of appeals judges will ever read it? My pitch is, if you are a federal appellate judge, take a look. Check out explicit establishment. If you are clerking or going to be clerking for a federal courts of appeals judge, put this tool in your tool belt.
I have maybe the most narrow audience in terms of at least a specific tool that I'm using. That being said, as I mentioned, I've gotten lots of comments from people who have read my note who just learning more about qualified immunity has changed their views a lot. I suppose there's a narrow, specific audience I'm trying to target, but also a broader audience who hopefully benefits from some of the background to that, hey, use this specific tool.
Ryan: I would say I also have a multifaceted audience, because there might be some sort of enterprising federal courts that see a way to take the First Amendment free press clause and interpret it in a way that would advance the goals of my note. Ultimately, it comes down to the Supreme Court, which is a daunting task. At the same time, the Supreme Court is the body that we have in this nation that reads and interprets the Constitution and what it means. For a nationwide free press clause standard to be established, it would have to be done at the Supreme Court level.
That's one of the problems I identify in my note is that at the moment, jurisdiction to jurisdiction, if you're a journalist, you're getting different protections and/or no protections in the protest context. That is just a, I think, too haphazard system when, to me, it's really clear that the press should just be protected at protests. Unless they're doing something independently illegal, the law enforcement shouldn't be looking to target them. My broader audience is press advocates, media advocates, journalists themselves. I could see potentially journalism students reading this.
Because I think that some of my especially case law analysis is helpful just to understand the contours of the free press clause, the free speech clause in the context of the press, as well as what I didn't mention earlier, which is these differing interpretations of the press clause. While I see the press clause as something that should be used to cover news gathering and the functions of journalism, there are several interpretations that disagree with that. One in particular I find a little amusing, which is that the press clause is referring to the printing press as a technology and people's access to use the printing press.
Much narrower and more specific interpretation than I would favor that actually has some level of support to it, and so I felt the need to bring that in. For students, that could be helpful just to understand the different views out there. While ultimately I do hope the Supreme Court adopts my interpretation of the press clause and provides some of those protections at protests for journalists, I think potentially lower courts could play a role.
I also think advocates can start to push in that direction, especially as we see how protest journalism right now is just-- it hasn't been as hot spot as it was in 2020, obviously, but I don't think we've seen the last of it. I think that it'll flare up again. There will be journalists covering protests again, and there will be law enforcement targeting them again. The sooner we can have some solutions, the better.
Lucy: Court of Appeals judges, if you're listening to this, and Supreme Court, if you're listening to this, read Ryan Liston's note.
Ryan: John Roberts is listening. At Chief Justice.
Evan: I think I'll echo--
Earl: Tag him when you [unintelligible 00:31:51]
Evan: I echo a lot of what Ryan and Earl have already said, but I think there were two audiences in mind. As the title of my note suggests, I would love for any state legislators out there to pick up the article and read it, and it'd be great. CC Minnesota State Legislature would be primed to do exactly the type of thing that I'm suggesting in my piece. I think the other was a lot more in how I was intending to write, just sentence by sentence structure, was just to a more general public audience. I felt like it was important to write in a way that if someone who had no legal background, they could still pick it up and read it and understand what was happening.
There's just a nice part of accessibility that I think all legal academia could adopt in part of that. Especially on an issue like gun violence where potentially the millions of victims of gun violence might just stumble upon an article like this and they themselves might want the opportunity to educate themselves and feel like they have a good sense of what's happening, why things are the way that they are. To me, speaking to that generalized audience, I thought was important. Also, I think there's a bit of an overlap with an actual, set of state legislatures that they themselves may not all be lawyers and need to understand the base level of some of this legal doctrine. Add them to the list.
Lucy: Of people who will send this back to you.
Evan: Or judges, Supreme Court and--
Lucy: The state legislators across the country. It's exciting to hear you all describe this. Because I think another theme that has risen up in this answer that you all have given is that notes are in themselves a form of advocacy. You're not just writing it to answer a dry legal question again, but really advance a particular goal or make folks aware of a need for advocacy. It feels exciting, again, to just note that there are many possible ways notes can be used beyond just publication for legal scholarship purposes.
Pivoting a little bit, I'm curious to hear how your note, the process of writing your note, the research you did, has impacted your law school experience and perhaps informed your broader legal interest or goals. What did this all mean for you over the past year and a half that you've been working on this baby that you've now got out in the world?
Ryan: Quite frankly, for me, the note-writing process has been my favorite part of law school. I really enjoyed it. I got to dig deep into an area of law that I really am interested in that I think is important and really a crucial facet of our society, looking at the press and how it's impacted by the law. I think I've had an interest in media law pre law school. It was pretty firmly established. I hope to eventually end up working maybe in that space. That would be great. A lot of those jobs are concentrated on the coasts. As you might imagine, those are where the bigger news organizations and media hubs are.
I'm very much a Midwestern and middle of the country body. If we could maybe pull some of that work to the center of the nation, that would be great. I know that that's developing now, especially with news being a little bit more decentralized. It is actually something I see that could be growing in the near future. If I could work on media law issues post-grad, that would be phenomenal. I'm doing a little bit of that with actually a law firm that I'm working with this semester. Getting my feet in it a little bit, which is good. I loved the note-writing process, even though it was stressful at times, and even though it meant I was up till, 3:00 AM some days, it really was such a fulfilling and rewarding process.
Evan: I was going to say, I think the three of us are very biased towards the note-writing process.
Lucy: We'll get to that bias in a second.
Evan: I agree a lot with what Ryan said. I think what's unique about the note-writing process as a whole, it is your first time and maybe your only time in law school where you really get to make it your own. You get to make your own arguments. You get to pick your own topic and you get to get out what you put in on a project. It's a lot of self-directed learning, self-directed writing, self-directed research and editing. That's just a really fun and unique process, at least personally, as someone who never had any type of independent research project in maybe undergrad.
This has been the sole time I've had the opportunity to do something like this. I think it does teach you a lot about how you work, how you think, how you write, what values you have, whether it be in the topics you pick or how you frame or present issues. You just have a lot of autonomy in a project like this. It does teach you a lot about how you adapt to the circumstances at hand. I agree, it's hard. It's really hard, but I think that's what makes it rewarding ultimately in the end. To the long-term goals of something like this, I don't know if I have a future in gun violence prevention. It's very important work and obviously, unfortunately, a hot topic, and will continue to be a really active area of the law, I'm sure.
To me, part of the reason I framed this along the lines of speaking to state legislatures is I see a lot of value in the law and the legal academic space in speaking directly to policy issues. There is an aversion, in some ways, of the law as seeing politics as a dirty word in some ways. The more that those two arms can speak to each other, the better. I think it begins to see how the law actually can be impacted by and impact policymaking in both ways. Hopefully something like this, anyone who reads it, I think that hopefully they can have an appreciation or how legal academic can speak to policymaking.
Earl: I just want to echo what Ryan and Evan said about the note-writing process being challenging, but that also making it very rewarding. Especially looping back to something we were talking about earlier, these not just being purely academic pieces, but having some advocacy behind them too. I'd had the opportunity undergrad to do an honors thesis. That was another big independent research project, but this one was one that has real advocacy behind it as well.
Then just in terms of my personal journey, as I mentioned, I came into law school being pretty familiar with this field and this topic. I told myself, I'll come into law school open-minded. I'll try all different kinds of classes. Maybe I'll fall in love with a different area of the law. Then I wrote this note, which was incredibly rewarding. Between that and some of the stuff I've done in some clinic work, I think I've just done the opposite and pigeonholed myself into a specific subject. It's something that I love and I'm really passionate about. In some ways, I'm not too upset about that.
Lucy: That's exciting. Again, this is a theme of our conversation, the note as more than just a writing project, exposing you to areas of law that perhaps you were unfamiliar with, or becoming even more of an expert in an area that you had some background on. Evan mentioned that there is some bias in the room. Just to not hide the ball any longer, the three folks I'm talking to today are also editors, 3L editors on the note and comment department. Evan is the lead note and comment editor for Volume 108. Ryan and Earl are both on the editing team for the note and comment department.
Which means that the three of you loved your note-writing process so much that you signed up to do it again and mentor 2L staffers on MLR. Just to pivot, and for the last couple of minutes of our conversation, I'm curious to hear a bit about what that transition has looked like. You're experiencing the note process again but from a bit of a different perspective. Maybe, Evan, I'll tee it up to you first to talk through, give us a broad scope of what the note-writing process looks like from an editing side of things, perhaps for someone who's listening to this that has never even conceived of a note before.
Evan: Sure. In many ways, the editing process is not a whole lot different in the timeline and the duties as even note writing to some degree. We are really the partners of the 2L staffers as they go on this journey of note writing from the earliest days of helping brainstorm potential topics, flushing those topics out, beginning to develop the research plan that sits beneath all of this argument and writing. Then really as the semesters turn from fall to spring, to being a partner in the type of line-by-line line editing, writing, structural organization, and also making sure that their arguments make sense and flow well, and are well-developed.
The biggest difference, and I'm curious if Earl and Ryan agree with me on this, it's shocking to be even one year out on the flip side of this, because now it feels so intuitive and it feels so easy, and it's hard in some ways almost to put yourself back in those shoes and realize not only do I not even understand what a note topic is, I've never read a law review article ever. I may never have even opened one up before you start your 2L year.
What is really great about that, and I think that's something that our entire department is really good at, is accessing some of those peer leadership skills and making sure that we're able to walk through well and in a supported way, the difficulties, as even Ryan alluded to early, of just getting your bearings on what this is, but also what it can look like. It's fun because in many ways, we're directing a learning process for a new class of 2Ls.
It's also really rewarding for us because we get to learn a lot about what staffers are writing about and get to provide substantive feedback to those articles that. I think I could speak for everyone that are going to be great and will be coming to publication next year. It's really rewarding. It's really interesting. It's really fun and makes us all probably better thinkers and writers being on the flip side of the note-writing process.
Lucy: The learning curve is steep, which you all experienced last year, but not insurmountable. What thoughts do you all have to add? How has the process been for you as editors, I guess, reflecting on your own writing and thinking, but also in supporting the 2L staffers that you've been working with?
Ryan: Earl, unless you wanted to jump in there, I saw a look and then I saw you look at me like, wow, how come he's answering right now?
Earl: Go ahead.
Ryan: No, I'm just kidding. It's been a great experience, I think, on both sides of the deal. As an editor, I really do like that collaborative process of helping those staffers take their brainstorm and their topics which, as they are, typically we're very broad in general, and filing them down to what we expect in the note and in the final product. It really is just so rewarding to see that idea become what it becomes in the full note. We just had their first full drafts come in. I was very impressed with my staffers' work. They've all done a great job.
They've all done diligent research and are really starting to fine-tune their arguments and get them down where they need to be and what we are looking for when we decide what gets published. I just think from my perspective, one of the things I've tried to emphasize with staffers is that at the end of the day it's your note and you want to be proud in what you do. You also want to make the argument you want to make.
It can feel intimidating sometimes, especially getting advice from faculty to just accept that and work it into your note, even if it might not be how you prefer it to be. I've tried to just push back on that idea a little bit. You are becoming an expert in whatever topic you're studying, and your ideas are good ideas. Just because someone has maybe a different take on it, remember, at the end of the day, it's your note. Whatever you want it to become is how you should attack it. Just make sure you're enjoying the process throughout.
Earl: To jump off of Ryan's point. I've been telling my students, we are the process experts, or I guess relatively having been through it once, but they are the subject matter experts. It's really, as much as we are helping them through the process, it's a two-way street. Because one of the reasons I wanted to be in the note and comment department is because last year when I was a staffer, I loved going to you, Lucy and Ryan, and Evan, and other people in our class and ask them what they're writing about. Because I think it's so fascinating and amazing what creative ideas and topics law students come up with to write about.
As much as I hope I've been helpful to my students, I have been amazed by and learned so much from them about topics that I would have not only never have thought of, but had no natural inclination to think about. It's been really fascinating and rewarding to see them come up with these really creative topics and really interesting topics, and to learn so much from them about, just in some of my students, everything from ways that we can use easements to tackle climate change to regulating feed additives for livestock, or how administrative courts work.
Things that some of those I never even knew were things. I feel like hopefully I've been helpful to them, but I've learned so much from them too. Seeing them, when they were choosing topics, I told them, choose something that you're going to be willing to be passionate about for, and really dig into for the better part of a year, sometimes over a year if they're getting published. It's been so fun to see and to learn from them about those topics that they care a lot about and that they're willing to put that much work and effort into. If anything, I don't know, I almost feel like I'm getting the better end of the deal just learning all this stuff from the staffers I've been working with.
Ryan: Even to emphasize that, put a point on that, I think we'd all agree, there is only so much guidance we can provide to a staffer. It really does take the last conceptual leap on their own to both figure out exactly how a note is written and what it's structured like, but to take that leap of, this is what an issue could be and this is what an argument I could make.
It's stunning to think, when we were in that position last year, we almost didn't see it as that astonishing of a leap, but to see it on the flip side, you're just in awe, honestly, of how everyone, for a person is able to make that leap and to really understand and grasp what we're trying to do in this process. To me, I think that's the coolest part. What they come up with is its own so interesting, but just to see them able to do that, I think is really, really rewarding in its own way.
Lucy: That's so fun, and it's exciting. You all get to see it from both sides, so you have a particularly unique perspective reflecting on your own note process then, and what you ended up with. One more fun question to close out our time together.
Earl: Are you implying all the questions were fun questions?
Lucy: Yes. This is a particularly fun question. What is your favorite way to work through a late night writer's block, a challenging writing session? How did you get yourself through those challenging days of note drafting?
Evan: I'm always a fan of going for walks. Just practically speaking. What's hard about being a subject matter expert that you are trying to write for essentially a process expert or two is that it's really easy to put the blinders on. There is part of literally and figuratively stepping away from the computer and coming back to it with as much of a fresh perspective as you can, I think is really crucial. I didn't have too many late nights, I suppose. Part of it is just, once again, the more you can break it up and come to it anew, I think the more refined, the easier the process ends up being and ultimately having a better work product.
Earl: I may be the opposite. I'm very much a night owl and feel like, for me, I do my best thinking at night. It's something about the rest of the world is-- you're not getting emails, there aren't lots of news alerts happening or people texting you. There's something I find very meditative about that solitude at night of just me and my thoughts and getting into that flow state that people talk about. For me, I find putting on some atmospheric music at night and just getting into that zone where it's just me and my writing and my research. There was something very, like I said, not just rewarding, but meditative about that. I enjoy that process even if I don't enjoy it the next day when I have to be in class at 9:00 AM or something.
Ryan: I'd probably align a good bit with Earl on that one, in part because I do tend to be a night owl on my own terms, but I also have a daughter who's now three years old. For a lot of the note-writing process, it's like, my afternoons I'm basically spending time with my wife and daughter, and doing my duties as a father and all of that stuff. I would often be writing after my daughter went to bed into the night. I'm glad to hear Evan didn't have too many late nights. That's so great for him.
I really, really feel like that's awesome for him. I did have several nights where I was, like I mentioned, up till probably around 3:00 AM. Honestly, sometimes I didn't even really notice it because I would get into that flow state. We actually sent to all our staffers, at one point, some ideas around this topic. Earl's ambiance music was aligned with one of mine, which I actually listen a lot to the Stranger Things soundtrack while I would be doing my note writing. Very eerie, creepy sci-fi-sounding music in my head.
Lucy: To get you in the mood to write.
Ryan: Exactly. That was where I was at. I like getting in that flow state. It's very rewarding, and as Earl said, meditative.
Lucy: Great.
Earl: I think that one's the Tron Legacy soundtrack?
Ryan: That's another good one.
Lucy: Listen to the Stranger Things soundtrack, take a walk, then queue up Tron, and all of your writing woes will be solved. Cool. Thank you all so much for being here, for chatting about your notes, for talking about the process. I'm hopeful that we'll get some Court of Appeals judges excited about qualified immunity, and some state legislators excited about PLCAA, and Chief Justice John Roberts excited about the First Amendment and protections for journalists. I also hope that everyone who's listening to this got a little peek behind the curtain of what the note-writing process looks like. Thanks all.
[music]
Ryan: Thanks, Lucy.
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