Friday, November 20, 2009
Ouch
The University of California has put faculty and staff on furloughs amounting to an average 8 per cent pay cut, and yesterday voted to raise student by 32 per cent.
That's a huge increase. It's worth noting that, even after the increase, UC tuition will still be a bargain at $10,302 -- my own university charges a whopping $41,610 for undergraduates -- but still, a 32 percent increase in any price has to cause some severe sticker shock.
Professors have a funny relationship with tuition. On the one hand, I am stunned by the tuition my law school charges -- $42,205 -- and I feel we should at least show some restraint in increasing it. On the other hand, it pays my salary. My school doesn't have that big an endowment, so we are primarily tuition-dependent. If we want to restrain tuition increases, we have to restrain my salary too. So I'm caught in a conflict of interest.
Professors also have a funny relationship with furloughs. Thankfully, we don't have any at my school, but I wonder how professors at state schools are managing. An 8 per cent furlough presumably means that they're being instructed to take about 20 days off a year. (Apparently the actual number ranges from 11 to 26, with higher-salary employees expected to take more.) But given the way professors work, days off are pretty meaningless. We already have considerable control over our time -- apart from time when we're required to be in class, we work as much as we want to and take days off when we want to. I hasten to add that for most of us, including me, that ends up meaning working almost all the time, but the point is that getting extra time off doesn't take the sting out of a furlough. It's not like getting unpaid vacation time, it's just unpaid work time.
Of course, the life of a professor is so good that it's churlish to complain that furlough days probably won't actually get taken. I'm not expecting any sympathy with the fact that we already have so much flexibility that it's meaningless to give us more. But still, an 8 per cent pay cut has to hurt. My sympathies go out to the UC students and faculty.
Posted by Jonathan Siegel on November 20, 2009 at 12:38 PM in Life of Law Schools | Permalink | Comments (2) | TrackBack (0)
Hope v. Fear
Could there be any better index of the relative strength of hope and fear in a polity than spending on universities and prisons? For the American "states", who have no armies, universities and prisons are the most concentrated and material manifestations of state sovereignty itself (other than the cluster of buildings that stand in their capitals, usually ignored by the public). In California fear had an early lead as San Quentin prison opened in 1851, just two years after statehood, and well ahead of the University of California which was chartered in 1868.
Continue reading "Hope v. Fear"
Posted by Jonathan Simon on November 20, 2009 at 11:22 AM in Jonathan Simon | Permalink | Comments (0) | TrackBack (0)
Best Practices for Appointments Committees
Though it's been a few years since I had to go on the meat market, I'm still pretty keen to make the process for newbies as relatively painless as possible, and this blog has been one way to try to facilitate that goal. I know a number of my perma-prawf colleagues are either veterans of or currently sitting on their schools' appointments committees (appcomm); the same is true for many guest writers and readers of the blog. To that end, I'd like to draw on the collective wisdom of folks here to compile a set of best practices for appointments committees for law school hiring, and to get the ball rolling, I've offered some thoughts below.
In no particular order, I can think of 12, some of which are drawn from the queries/complaints in the job market threads we've been running on the blog. They can be found below, after the jump.
Continue reading "Best Practices for Appointments Committees"
Posted by Dan Markel on November 20, 2009 at 10:36 AM in Dan Markel, Getting a Job on the Law Teaching Market | Permalink | Comments (6) | TrackBack (0)
For Whom Do We Teach?
As the semester winds down and preparation for next semester gears up, I've had some thoughts about topic selection for my courses. For example, this year I cut "Defenses I" from the course - it was a survey of three really interesting defenses: reverse doctrine of equivalents, experimental use, and laches. They should all be really important defenses but for reasons I won't get into here, they just aren't. So, do I focus on what I wish the law would be, or do I focus on the topics that students are likely to encounter? In a perfect world, I would do both, but patent law is just too broad to do so in a 3 (or 4, or 5) credit course. This year, I decided to focus on the more likely defense: inequitable conduct.
I face the same issue as I plan for cyberlaw - many ask me if I teach any international aspects in class. Despite the growing importance of international e-commerce and social networking, I've made the judgment call that my students are far more likely to encounter the domestic "bread and butter" issues that I choose to cover. Unfortunately, this leaves little room in the course to address international issues, which are really interesting and potentially important. Indeed, cyberlaw is even more complex for me, as I often have several students from the engineering school's computer forensics program - the issues those students will face are different still from the typical lawyer's issues.
So, how do we decide these trade-offs?
Continue reading "For Whom Do We Teach?"
Posted by Michael Risch on November 20, 2009 at 10:29 AM in Life of Law Schools | Permalink | Comments (0) | TrackBack (0)
Work Email: "I Always Feel Like ... Somebody's Watching Me"
No, this post is not about the singer Rockwell or that annoying Geico
commercial, but about whether you should just assume that your boss
monitors your email.
A new Wall Street Journal article suggests that is what exactly may be happening, but now there is some push back from employees and their advocates:
Big Brother is watching. That is the message corporations routinely send their employees about using email.
But recent cases have shown that employees sometimes have more privacy rights than they might expect when it comes to the corporate email server. Legal experts say that courts in some instances are showing more consideration for employees who feel their employer has violated their privacy electronically . . .In past years, courts showed sympathy for corporations that monitored personal email accounts accessed over corporate computer networks. Generally, judges treated corporate computers, and anything on them, as company property.
Now, courts are increasingly taking into account whether employers have explicitly described how email is monitored to their employees.
That was what happened in a case earlier this year in New Jersey, when an appeals court ruled that an employee of a home health-care company had a reasonable expectation that email sent on a personal account wouldn't be read.
To be honest, I don't think this a new trend at all (though it makes a nice theme in a WSJ story). Since I was practicing management side employment law back in the late 90s, we would advise clients routinely that they had to have clear language in their employee handbooks that employees had no expectation of privacy in their computers, internet browsing, or emails.
Nothing new, but still a good practice for employers to follow if they want to avoid this type of lawsuit.
Hat Tip: Joe Seiner
Paul Secunda
Posted by laborprof lpb on November 20, 2009 at 09:59 AM in Employment and Labor Law | Permalink | Comments (0) | TrackBack (0)
Law School Hiring Thread, 2009-10, Thread Three: The Next Phase
This thread will be moved to the front every ten days or so.
Please add comments to this thread, not Threads One or Two (where comments are now closed).
This thread is for both law professors and people who are on the market this coming year for becoming a law professor. We invite those on the market and those who are prawfs to leave comments (anonymously if they prefer) regarding:
a) whether they have received a callback from a law school and/or accepted it and
b) whether they have received an offer from a law school and/or accepted it; feel free to also leave details about the offer or info about teaching loads, research leaves, etc.
Law professors may also choose to provide information that is relevant to the entry-level or the lateral market.
Bear in mind: if you don't want your contact information displayed, please just enter in anon@anon.edu or something like that as an email address.
We will continue our spreadsheet approach: All information should still come in through the comments. Our generous aggregator will continue to use a spreadsheet to aggregate the information (we have started a new spreadsheet for callbacks and offers, which appears below). As before, only the aggregator will be able to edit the spreadsheet, but when the aggregator edits the spreadsheet, those changes will be reflected in the embedded version below.
As always, please be patient with the aggregator, who will try to update this spreadsheet once a day, but may have a job, and perhaps may even be on the market.
The first thread is here; the second thread (where you can still get the AALS call spreadsheet) is here.
Posted by Dan Markel on November 20, 2009 at 08:50 AM | Permalink | Comments (415) | TrackBack (0)
Thursday, November 19, 2009
Widespread Employer Under-Reporting to OSHA
So finds a new astonishing and disturbing report released by the GAO this past Monday and reported on by the New York Times:
Employers and workers routinely underreport work-related injuries and illnesses, calling into question the accuracy of nationwide data that the Occupational Safety and Health Administration compiles each year, the Government Accountability Office said Monday.
The report, by the G.A.O., the auditing arm of Congress, said many employers did not report workplace injuries and illnesses for fear of increasing their workers’ compensation costs or hurting their chances of winning contracts.
The report also said workers did not report job-related injuries because they feared being fired or disciplined and worried that their co-workers might lose rewards, like bonuses or steak dinners, as part of safety-based incentive programs . . . .According to the G.A.O. report, 67 percent of the 1,187 occupational health practitioners surveyed had reported observing worker fear of disciplinary action for reporting an injury or illness, and 46 percent said this fear had some impact on the accuracy of employers’ injury and illness records.
It goes without saying that it is hard for OSHA inspectors to do their jobs if they are faced with this type of lying/gamesmanship. It also shows that previous reports that injuries in the workplace were declining during the conservative Bush era are a bunch of hogwash.
OSHA inspectors will now have to start with the presumption that employers may be holding back the truth as far as injuries and illnesses in the workplace and will have to interview individual employees to get information on what is really going on in the workplace: "In response to the report, which examined OSHA’s audits from 2005 to 2007, the safety administration said it would adopt the accountability office’s recommendations, which include requiring inspectors to interview employees during all audits to check the accuracy of employer-provided injury data."
And you wonder why regulation of the workplace is necessary? Because many employers (not all) cannot be trusted.
Hat Tip: Josh Pollack
Paul Secunda
Posted by laborprof lpb on November 19, 2009 at 10:19 PM in Employment and Labor Law | Permalink | Comments (1) | TrackBack (0)
The Joy of Casebooks
Marc's posting about legal textbooks resonates with me at this particular time because I'm hustling, with my co-authors, to finish the second edition of our First Amendment casebook. It's tough work, but exceptionally rewarding, and I find it unfortunate that writing casebooks seems to have fallen out of favor in the legal academy. The close case analysis that it requires, at least in a precedent-heavy area like the First Amendment, teaches one the law in a way that I think is unmatched by any other experience a law professor is likely to have, including writing other types of legal scholarship. Deciding how to organize the material, choosing and ordering the relevant cases, and, most of all, editing them can force you out of your own mindset into that of the judges; I can't think of a better way to learn what they are doing. Of course, not all casebooks are written that way. Some -- many, perhaps -- reflect the idiosyncrasies or agendas of their authors. But books that attempt, to the extent possible, to simply present the doctrine on its own terms offer their authors a wonderful learning experience.
This shouldn't be surprising. I tell my students, just like I was told when I was in law school, that the best way to learn is not simply to read someone else's outline, but to write your own. Writing the kind of casebook I describe above is, in essence, writing an outline about that area of law, with the editorial decisions you have to make constantly forcing you to consider what matters in the case and what turns out to be the foundation for the later cases. If that all sounds kind of conventional, it's still a lawyer's stock-in-trade. If done with care, it can be immensely rewarding. I hope newer professors -- and more senior ones -- will find a new appreciation for the experience.
Posted by Bill Araiza on November 19, 2009 at 11:08 AM | Permalink | Comments (2) | TrackBack (0)
Hear the Health Bill
Don't want to wade through the Senate's new 2,074 page health bill? Wait a few days and you can hear the whole thing online. It should be available at hearthebill.org , a website started in September by a group a voiceover professionals to lend their voice to health legislation -- literally. While we wait for the audio files to be posted, you can listen to the entire House bill as well.
Morning drive alternative to NPR?
Posted by Noah Sachs on November 19, 2009 at 11:08 AM | Permalink | Comments (0) | TrackBack (0)
Are (Catholic) law schools wise stewards of their students' debt?
On the assumption that a cross-post is better than no post at all, I offer this short contribution from Mirror of Justice regarding Rick's concern about the move toward more practical/technical legal education. (Note to self: November is a bad month for hiring chairs to volunteer for Prawfs duty.)
I agree with Rick that the legal profession's academic woes should not nececessarily reduce our commitment to the law as a humane discipline. However, I do believe that all law schools -- Catholic law schools in particular, I would hope -- should use this time as an impetus to think carefully about the concept of stewardship as it applies to legal education. It seems that Catholic law schools have largely been indistinguishable on this front, simply following the crowd in asking how much the market can bear in terms of tuition hikes, reduced teaching loads, swanky new centers, and the chase for LSAT/GPA profile rather than asking whether they are being wise stewards of their students' (not-yet-existent) financial resources. So I applaud a school like Washington & Lee for making an effort to connect their students more directly with the work they will do as lawyers. I am concerned about the pressure that places on other important aspects of the curriculum, especially the interdisciplinary aspects of the curriculum, but I applaud them for thinking seriously about whether the current model of legal education is in keeping with students' long-term interests.
To be clear, I am among those chasing the crowd -- I love reduced teaching loads, swanky new centers, and a class with an impressive LSAT/GPA profile. So I'm not exactly sure if and how law schools should look different -- after all, a higher US News ranking allows me to bask in some reflected glory is in our students' long-term employment interest -- but when we think about new expensive initiatives, we should ask whether the initiative justifies increasing our students' debt load. One of the unfortunate results of the great rankings chase is that the students with the less rosy job prospects are subsidizing the education of the students with the rosier job prospects. Those same students are also paying my salary. So is it important that law students have the opportunity to learn and reflect on the insights that Rawls or Maritain have for law, politics, and citizenship? Absolutely. Should a Catholic law school be making "splashy" hires by letting a big name carry a three-credit-per-decade teaching load consisting only of their seminar, "Things Rawls and Maritain Might Say to Each Other if They Were in My Kitchen?" Probably not. Further, I'm not sure if Catholic law schools can justify relying on the market as an indicator that their tuition rates are in keeping with their students' long-term interests. There appears to be a bottomless reservoir of young people willing to incur huge debts for a degree that does not always make economic sense. Leading figures within the Catholic intellectual tradition have generally been unafraid to tell people when they're making decisions that are detrimental to their long-term flourishing. Catholic law schools, it seems to me, should pay attention to our students' long-term flourishing even when -- especially when -- they're willing to pay any price for a law degree.
Posted by Rob Vischer on November 19, 2009 at 10:56 AM | Permalink | Comments (1) | TrackBack (0)
Fifth Avenue Freeze-Out
The Second Circuit has upheld a NYC permit regulation that prohibits all parades on Fifth Avenue (15th to 114th Streets) "unless the parade was held at that location prior to the promulgation of these rules"[2001]. The case, which was decided by a two-judge panel (then-judge Sotomayor was the third judge on the original panel), is International Action Center v. City of New York. The city's permit scheme does allow for the issuance of special permits for Fifth Avenue and other locations, for "celebrations organized by the City honoring the armed forces; sports achievements or championships; [and] world leaders and extraordinary achievements of historic significance." Absent a special permit, however, Fifth Avenue can host no more than the fifteen annual "grandfathered" parades.
The court held that the Fifth Avenue Rule is a content-neutral time, place, and manner regulation, which was justified by the usual concerns (traffic congestion, public order) and by the "over-saturation" of parades, particularly in midtown Manhattan. I don't question the court's reasoning or its disposition under current First Amendment standards (which I, like others, have criticized). The rule prohibits all "new" parades, regardless of content. Under the permissive intermediate scrutiny standard, it is justified with reference to the concerns stated above. The court found that the 100-block ban was sufficiently "narrowly tailored" and that other streets, although not "perfect substitutes," were available for parades.
The rote application of time, place, and manner standards obscures a couple of important concerns. The first is that the Fifth Avenue Rule privileges a select few organizations, those that managed to hold annual parades prior to 2001. These are primarily cultural parades or events. Yes, new events may qualify for permits on other streets. But as the court acknowledged, Fifth Avenue is a unique venue. It is arguably the most famous parade route in the city. Under the Fifth Avenue Rule, this traditional public forum will primarily host cultural events such as the Columbus Day, St. Patrick's Day, and Norwegian-American 17th of May parades. While it may not be "content-based," the Rule privileges cultural inscription over political and other types of public displays (particularly those that are spontanous). Why should "historic" parades receive an exclusive use permit for this venue? Why not a lottery, or some other system that does not simply ban all post-2001 events? The second concern is the level of discretion built into New York City's permit regulations. City officials have disregarded the Fifth Avenue Rule on certain occasions. And then there is the "special permit" regulation. What exactly constitutes a "sports achievement"? A Knicks winning streak? What are "extraordinary achievements of historic significance"?
Most will probably not be disturbed by the Rule. After all, who doesn't like Norwegian-Americans? But this disposition is of a piece with others that have limited political contention and public displays in some sacred venues. In New York City itself, protests on the Great Lawn have been limited to 55,000 persons out of concern for the condition of the lawn. Numerous public "beautification" projects are slicing up other historically significant public forums. And restrictive permit requirements have been proposed in recent years in response to public displays like the Critical Mass bike protests. The language of time, place, and manner -- "content-neutrality," "significant" government interests, "narrow tailoring," and "adequate alternative channels" -- typically fails to capture, much less halt, this erosion.
Posted by Tim Zick on November 19, 2009 at 10:11 AM in First Amendment | Permalink | Comments (3) | TrackBack (0)
Wednesday, November 18, 2009
Voting your preferences in faculty governance contexts
Say your faculty has only one appointment slot to fill and you see six candidates for call-backs. Imagine that five of the candidates are appointment-worthy but you can only afford to pay one of them because of budget constraints, so the faculty must order its preferences for extending the one offer you have to give. How does your faculty aggregate its votes? Have you considered this question recently? I'd be curious what other faculties do: Do you use a "Borda count," essentially having all candidates rank each option and award points accordingly (with the lowest point total being the favorite who gets the offer first)? Do you use a system calibrated to assess preference intensity, like a cumulative voting system, so that the dean knows just how much of the farm to give away to the top choice before going to the second best? Do you use a Condorcet voting system? Each of these systems furnishes slightly different sorts of information and has different pathologies, so the context matters, of course. But I wonder if your faculty gives the voting system much thought and what they've come up with to deal with these scenarios. Is the faculty explained the system in use so that they understand carefully how strategic voting may or may not impact the ultimate decision made and how the aggregation mechanism may be conveying somewhat different information than the simple view that all these methods clearly pick out "the faculty's favorite candidate" all the time?
Posted by Ethan Leib on November 18, 2009 at 11:29 PM | Permalink | Comments (0) | TrackBack (0)
Should Law Students Get a “Cross-Platform” Text on Legal Reasoning -- Good for Many Different Substantive Courses?
Here’s a more longer, more elaborate version of the question: Right now, in most law schools, students have to buy a new, subject-specific casebook for each class. One for Contracts, one for Torts, another one for Evidence, yet another one for Constitutional Law, and so on. I’m not suggesting that this will change in the immediate future, although it certainly would be nice for law students to have a single text book -- or eReader -- which, like Harry Potter’s “Room of Requirement,” would appear and morph into whatever casebook they needed on any particular occasion.
But does it also make sense for law students to have an additional text or texts that they keep as they move from one substantive class to another -- a text on the legal reasoning and argumentation skills that transcend substantive boundaries? After all, not everything a student learns in Torts, Contracts will be specific to those subject areas. They’ll also (hopefully) learn how to spot issues in a complex fact pattern, how to analogize and distinguish cases, interpret a particular holding broadly or narrowly, or synthesize a legal rule from a line of cases. In fact, these general skills of legal reasoning and argumentation will often be just as crucial for doing well on a final exam as knowing the blackletter law covered in the course. So why shouldn’t law school faculty -- in addition to selecting individual subject-a specific casebook for each classes -- also choose one or two legal reasoning texts that students obtain when they start law school, and that professors in different classes can refer to as they help students refine legal reasoning and argumentation skills, and apply them in a new area of law?
Posted by Marc Blitz on November 18, 2009 at 09:03 PM in Teaching Law | Permalink | Comments (7) | TrackBack (0)
Two and a half cheers for Judge Sykes
Others have linked already to the Seventh Circuit's decision (per Judge Sykes) in United States v. Skoien, but it really bears close reading by anybody interested in substantive Second Amendment doctrine. The court determines that intermediate scrutiny applies, and then sends the whole case back to the district court for a second try, with a bit of a nudge:
Intermediate scrutiny tolerates laws that are somewhat overinclusive. See, e.g., Fox, 492 U.S. at 480; Anheuser-Busch, Inc. v. Schmoke, 101 F.3d 325, 327-28 (4th Cir. 1996) (recognizing that intermediate scrutiny in the commercial-speech context allows some latitude between the regulation and the governmental objective). How much is too much is hard to say; it depends on the scope and reach of the law and how much room it leaves for the exercise of the right. See Fox, 492 U.S. at 481 (noting “the difficulty of establishing with precision the point at which restrictions become more extensive than their objective requires”). We note that § 922(g)(9) is overinclusive on several fronts: The firearms prohibition exists indefinitely; it contains no exceptions nor any basis for potential restoration of gun rights; and it does not require an individualized finding of risk that the domestic-violence misdemeanant might use a gun in a future offense. On the other hand, the statutory definition of “misdemeanor crime of domestic violence” limits the applicability of § 922(g)(9)’s firearms disability to those who actually used or attempted to use physical force or threatened the use of a deadly weapon in a domestic disturbance. See 18 U.S.C. § 921(a)(33)(A)(ii). The statute thus targets a specific class of violent offender; only those who have already used or attempted to use force or have threatened the use of a deadly weapon against a domestic victim are banned from possessing firearms.
I'm not entirely sure that intermediate scrutiny, rather than strict, should apply, and I'm not entirely sure the government is entitled to a remand having failed to make their case the first time around, but the opinion makes a plausible case, and I can see why this seemed like the most practical way to resolve the case.
A few additional thoughts:
1: This is a very long opinion for Judge Sykes. When I opened the PDF file and saw that it was 27 pages, I just assumed that there was a dissent.
2: I wouldn't be too quick to rely on the fact that the statute applies only "to those who actually used or attempted to use physical force or threatened the use of a deadly weapon . . . ." Several circuits have held that the statute's reference to the use of "physical force" includes not just batteries, but any unauthorized physical contact, even if it is neither violent nor injurious. (The issue is pending at the Supreme Court this term.)
3: I think the federal statutes most likely to face a successful Second Amendment challenger are 922(g)(9) or perhaps 922(g)(1), which applies to people merely under felony indictment. Any Supreme Court resolution of that issue might modify the Heller dictum about felon-in-possession laws, opening the door to allowing as-applied challenges for non-violent felonies (as history and logic seem to dictate).
4: Are some of the gun-rights groups successfully coordinating with the federal public defenders and appointed criminal-defense bar? If not, they should be.
Posted by Will Baude on November 18, 2009 at 06:18 PM | Permalink | Comments (0) | TrackBack (0)
Yes, Virginia, There is Law in Cyberspace
One annoying feature of Internet law is "Internet exceptionalism" -- the assumption that everything must be different if it's on the Internet. For example, as CNN reports, Courtney Love is being sued for sending a defamatory tweet out on Twitter (she accused a clothing designer of being a drug dealer). CNN claims that the suit confronts "new and unaddressed areas of American law."
Hardly. Look, there have always been lots of different ways of spreading defamatory messages. The Marquess of Queensbury left his calling card with a porter for delivery to Oscar Wilde, and wrote on the card, "To Oscar Wilde posing as a somdomite [sic]." Because the Marquess wrote this allegation down, because the porter saw it, it was a public libel. The law deals with such things.
The Internet is exciting and new, but there is nothing "new and unaddressed" about the notion of being responsible for written defamatory statements. The statements can be in books, newspapers, letters, on calling cards, or, yes, on the Internet. Accusing someone of commiting a crime is libel per se. "I only did it on the Internet" is no defense. Let's stop imagining that everything must be different in cyberspace.
Posted by Jonathan Siegel on November 18, 2009 at 12:56 PM | Permalink | Comments (3) | TrackBack (0)
"Legally Binding" versus "Politically Binding" Climate Deal
The big news out of the APEC meeting in Singapore last weekend was the lowering of expectations for the upcoming climate change summit in Copenhagen. APEC leaders, including President Obama, endorsed the proposal by Danish Prime Minister Lars Lokke Rasmussen for a “politically binding” agreement on major principles that would be finalized as a “legally binding” treaty in 2010.
Then, speaking yesterday in China, President Obama said the aim should not be “a partial accord or a political declaration” but rather “an accord that covers all of the issues in the negotiations and one that has immediate operational effect.”
Do these semantic distinctions make a difference? Bloggers have jumped all over the
phrase “politically binding,” arguing that it is meaningless and a sell-out
worth no more than a politician’s promise. It seems to refer to a document that would not be a
formal treaty open for signature at the conference, but rather a short
statement of agreement on several core issues. Such a statement would not have “immediate operational
effect” in a legal sense, but perhaps President Obama is suggesting that
countries should immediately and voluntarily implement the commitments made at
Copenhagen, prior to negotiating a formal treaty.
Continue reading ""Legally Binding" versus "Politically Binding" Climate Deal"
Posted by Noah Sachs on November 18, 2009 at 11:44 AM | Permalink | Comments (0) | TrackBack (0)
Haunted by Recidivists: Double Homicide in Berkeley Linked to Oakland Parolee
Virtually everyone who studies prison agrees that states currently incarcerate too many people, too indiscriminately, and generally for too long. California is the poster child for this problem, with huge budget deficits and federal court orders to both reduce its prison population and improve the quality of medical care in its prisons. But just when the fiscal and legal problems of the state seem to open the policy window for a discussion of reforming the system, a series of crimes come to public attention that remind everyone of the chief boogeyman that has haunted American justice at least since the end of the 19th century, the violent criminal who keeps coming out of prison and committing more crimes.
Continue reading "Haunted by Recidivists: Double Homicide in Berkeley Linked to Oakland Parolee"
Posted by Jonathan Simon on November 18, 2009 at 11:18 AM in Jonathan Simon | Permalink | Comments (0) | TrackBack (0)
Republic of Legal Letters
What might legal academia become? The question is complicated and admits of many compossible answers. Dean John Garvey last year suggested just such a plurality of orientations ("models" is too rigid, I think), and it is fair to say that there are very different views in circulation about the direction that legal academia might take -- more "practical" or "responsive" to the stresses that economic difficulties have placed on the practice of law, or more interdisciplinary, or less so, or more "student-centered," and so on. So to ask the question is really to ask what might be a path of becoming, and any credible response, especially from a rookie like me, must be modest enough to hope that the path proposed will perhaps have only partial appeal.
Here is a direction, then, inspired by a delightful book by Anthony Grafton called, "Worlds Made by Words: Scholarship in the Modern West." Grafton's series of historical portraits is a pastiche of what he calls, "The Republic of Letters," an association or fellowship of intellectuals extending through time and bound together by the written word and the sociality that comes with the perpetual exchange of ideas across generations. The Republic of Letters, Grafton writes, "reached its natural end in the late eighteenth century, but the life of scholarship did not." Can there be, today, a Republic of Legal Letters? Can it be an orientation for legal academia -- a path of becoming? It already is.
Continue reading "Republic of Legal Letters"
Posted by Marc DeGirolami on November 18, 2009 at 11:15 AM | Permalink | Comments (0) | TrackBack (0)
Monday, November 16, 2009
Free Speech and Civil Liability
Dan Solove and Neil Richards have just published a terrific article, Rethinking Free Speech and Civil Liability, 109 Columbia Law Review 1650 (2009) (SSRN version here). My response to the article has been posted at the Columbia Law Review Sidebar site.
Solove and Richards propose a new test for determining when the First Amendment applies to the imposition of civil liability, an issue that has confounded courts and commentators. The issue has not received nearly the attention it deserves. The First Amendment intersects with civil laibility in a variety of contexts, including contract (enforcement of confidentiality agreements, speech-restrictive housing covenants, and government contracts), tort (defamation, privacy, and public disclosure), and property (enforcement of civil trespass laws).
Solove and Richards claim that the key to the free speech-civil liability puzzle lies in the type of power the government is exercising. When the state, rather than the parties, defines the content of a mandatory social duty, they claim that the First Amendment applies. The essence of my brief response is that not all mandatory duties pose substantial First Amendment threats. Thus, the nature or character of the social duty is critical to determining whether the First Amendment is imperiled by the imposition of civil liability. I focus on examples from tort liability to make this point.
While I might draw some different boundaries than Solove and Richards, I find much to praise in their approach. Among other things, it avoids getting bogged down in the unhelpful state action doctrine, highlights a distinction between power-as-regulation and power-as-facilitation, reminds us that civil liability can be as dangerously suppressive as other forms of government regulation, and appropriately preserves ample space for speaker autonomy and choice. I enthusiastically recommend the article, in particular to those interested in First Amendment issues but also to anyone who teaches a course in torts, property, or contracts.
Posted by Tim Zick on November 16, 2009 at 09:34 PM in Daniel Solove, First Amendment | Permalink | Comments (2) | TrackBack (0)
Self-Promotion #5: Hodge Podge of Ideas
In this last post on self-promotion, I just want to throw out some more ideas about how you can obtain a better platform for you and your scholarly work. If others have ideas that have worked in their own careers, it would be great if you would add them to the comments of this post.
So, in no particular order, some further ideas on how to promote yourself within the larger legal academy:
1. Involvement in Law & Society or other organization with a subject matter focus (other organizations revolve around empirical studies and law & economics. The best thing about these conferences is that many of them are inter-disciplinary which means that you also will find outlets to collaborate with social scientists outside of the law. Law & Society for one has a great collaborative research network which permits one to navigate this rather larger conference by subject area.
Continue reading "Self-Promotion #5: Hodge Podge of Ideas"
Posted by laborprof lpb on November 16, 2009 at 07:05 PM in Life of Law Schools | Permalink | Comments (1) | TrackBack (0)
Herbert "Jack" Miller, R.I.P.
The summer after my third-year of law school, and then later for two years as an associate, I had the privilege and pleasure of working for an amazing lawyer, Jack Miller (founding partner of the D.C. law firm that become Miller, Cassidy, Larroca & Lewin). Jack passed away recently. My friend John Elwood has a great reflection about Jack up at the Volokh Conspiracy. Check it out. (Also worth reading is this interview, which the D.C. Bar published a few years ago.)Posted by Rick Garnett on November 16, 2009 at 05:09 PM in Rick Garnett | Permalink | Comments (0) | TrackBack (0)
Research Grants for Legal Scholars
Like many universities, my university is pushing to have more of its professors seek grant money to conduct research and support their positions. This is nothing new in social sciene, hard science, and engineering, but it has left some of us in the law school scratching our heads.
I am wondering whether a law school, where most of the faculty is not supported by research grants other than internal grants (e.g. summer money), can shift to a research grant oriented format.
More after the jump...
Continue reading "Research Grants for Legal Scholars"
Posted by Michael Risch on November 16, 2009 at 10:57 AM in Life of Law Schools | Permalink | Comments (1) | TrackBack (0)
Philosophers Without Gods (and the First Amendment)
Philosophers Without Gods: Meditations on Atheism and the Secular Life, a collection of essays on atheism by a number of leading philosophers, recently received some notice in legal circles, at least for those who were watching carefully, when Brian Leiter drew on one of the essays in the collection, Simon Blackburn's "Religion and Respect," in his provocative article Foundations of Religious Liberty: Toleration or Respect? It's an interesting collection and well worth your time if you're interested in these issues. Like most collections, of course, it is uneven. Some of the pieces strike me as very generous toward religion and religious experience. Some of them are highly critical of religion and religious belief but also extremely well-argued and raise important points. A few strike me as sounding a highly dogmatic note while criticizing religious dogmatism, or as either using a straw-man definition of religion or treating fundamentalism as the only form of religion. (A couple of papers argue more persuasively that fundamentalism is essential to religion properly understood. Whether they're right or not they at least acknowledge and deal seriously with this question; others just assume it.)
I could single out any number of articles in the collection that I think make serious arguments that anyone thinking about these issues ought to read, some of which argue strongly for atheism and others of which don't take a strong position for atheism but do raise important critical questions about religious belief. Perhaps unfairly, though, I want to focus on a passage that I found striking but quite wrong. It raises issues that Rick and others have recently talked about here on Prawfs.
The passage comes from Walter Sinnott-Armstrong's piece, "Overcoming Christianity." Writing about arguments for and against stem-cell research, Sinnott-Armstrong writes that the evidence of public discussion convinced him that "there were no non-religious reasons against stem-cell research." He asks a former government commission member whether the fact that government nevertheless opposed stem-cell research "conflict[s] with our Constitution's clauses on religion," and says: "His answer was clear: 'Yes.'"
With all due respect to Sinnott-Armstrong and the person who answered his question, I think the equally clear answer is "No." The fact that the government had or has not acted on stem-cell research does not violate the Religion Clauses, even if the reasons that individual government officials have for not acting are purely non-secular. (I leave aside the question whether there are any "secular" reasons in favor of stem-cell research, what it means to call those reasons "secular," and whether the underlying moral premises in favor of or against stem-cell research, whether secular or religious, are especially capable of meaningful public discussion.) I think this is a misunderstanding of the Religion Clauses and their role in public discussion, and as recent events show, not an infrequent one.
To the book's credit, a much more perspicuous point is made three essays later by James Tappenden, who writes: "When specific details of religious doctrines are appealed to as justification for public policy decisions, or more generally as the basis for the treatment of others, the claims should be evaluated with the same standards of evidence we use for other factual claims in the public domain." I think his use of the phrase "factual claims" is misleading here, or rather misses the point -- I would think that most such arguments rely on religiously based moral claims rather than factual claims about the details of religious doctrine. But I agree that just as it does not violate the Religion Clauses to have and make religious arguments for or against some public policy, so it does not violate them to hold those arguments up to public scrutiny and criticism. Religious arguments are no less entitled to play their part in public deliberation than any other form of argument, and they are not entitled to any greater respect than any other form of argument.
Posted by Paul Horwitz on November 16, 2009 at 10:52 AM in Paul Horwitz | Permalink | Comments (2) | TrackBack (0)
The Future of War
Yesterday, I heard a RadioLab show featuring a survey question that journalist and teacher John Horgan has been asking people: will humans ever permanently stop fighting wars?
Horgan believes the answer is yes, even though the great majority of his survey respondents disagree. I have to disagree too. It seems to me that the answer arises from a game theoretical approach.
The higher the percentage of humans who stop fighting wars, the more advantage, I would think, would accrue to those who are prepared to keep fighting them. If 95% of humanity gives up war, the remaining militaristic 5% would have a big edge.
Will the 95% forever keep a standing army big enough to deter fighting from the remaining 5%? And never use it? Hard to believe.
Posted by Jonathan Siegel on November 16, 2009 at 10:17 AM | Permalink | Comments (3) | TrackBack (0)
Horwitz on Schauer on Truth and the First Amendment
Rick has already noted Fred Schauer's interesting new paper, Facts and the First Amendment. My "review" of Schauer's paper is now up at the wonderful new site Jotwell. Here's some of what I have to say about it:
“Facts,” the songwriter David Byrne once observed, “all come with points of view.” Americans, Frederick Schauer adds, credit any number of “facts” with points of view. President Obama isnot “President” Obama, but a constitutionally ineligible interloper born in Kenya. President Bush was hardly surprised by the 9/11 attacks, given that his government either staged them or had advance warning of them. And so on. . . . What will be more surprising to many is that facts are so poorly accounted for in First Amendment law. The First Amendment and its jurisprudence and scholarship are startlingly reticent on questions of factuality and falsity. This is the subject of Schauer’s recent Melville B. Nimmer Memorial Lecture, Facts and the First Amendment, delivered this past October at UCLA Law School. . . . [Schauer] argues that the First Amendment’s inability to deal directly with these concerns is a symptom of its “smallness” – of the extent to which many of the questions that are seemingly central to the law of free speech lie outside its boundaries and in the realm of “politics, economics, and sociology” whose dimensions “are far more important than the legal and constitutional ones.”
* * * * By focusing on the question of the role of facts, as opposed to “Truth,” in the First Amendment, and on the surprisingly narrow boundaries of the First Amendment compared to the whole array of policy questions involving communication, Schauer has made a valuable contribution . . . .These issues are likely to gain increasing prominence later this year, when the Supreme Court hears a case about whether a federal statute limiting the kinds of advice that “debt-relief agencies,” including bankruptcy lawyers, can give their clients violates the First Amendment.
That does not mean Schauer’s arguments are complete or unshakeable. For one thing, it is itself a question of fact whether questions of fact and falsity actually pose an “increasing problem.” That there are salient recent examples of glaring falsehood, and that ignorance on basic questions persists in the population cannot be denied; but this does not tell us whether we are worse off today than we were 300 or 30 years ago. . . . Moreover, although Schauer is surely right that the First Amendment is only one corner of communications policy, communications policy itself might be seen as being well-served by the First Amendment, precisely because it (imperfectly) carves out areas of relative autonomy for institutions, like libraries and universities, that serve as (imperfect) mechanisms for the generation of demonstrable and verifiable facts. These institutions are not a “marketplace for ideas” in the traditional sense, but they may be laboratories from which empirically verifiable facts emerge. . . . . By not doing too much in these areas, the First Amendment may do more to address and encourage the development of demonstrable facts than Schauer is willing to concede. Nevertheless, Schauer’s paper eloquently and usefully places a spotlight on an important question that is all too often glossed over in the First Amendment literature.
Posted by Paul Horwitz on November 16, 2009 at 10:14 AM | Permalink | Comments (1) | TrackBack (0)
Models for Review Sessions
It's that time of year. I have considered the following options for conducting review sessions for the end of the semester for my students and identified potential "Pros and Cons." The options are not mutually exclusive. (Some are.)1. Hold NO review session.
Pros: No time investment. Avoids inadvertent leakage of exam material. Time can be used for writing.
Cons: Shifts questions to e-mail and leads to overflowing office hours. Optics are bad. Time saved probably used for surfing the internet anyway (you are only saving an hour.)
2. Hold a full-blown, "bring it on," review session.
Pros: Low time investment. Just the hour of time. Strong signal of accessibility.
Cons: Typically dominated by four students who want to talk about esoterica and three other students who want to test (show off) how prepared they are, Jeopardy! style. (Meaning they show off in the form of a question.)
3. Hold a virtual review session. (Invite questions by e-mail.)
Pros: This year, avoids an additional opportunity for mutual exposure to H1N1. You can react to questions on your time. The e-mails tend to come in anyway, so why not broadcast the queries and answers? It's a nice personal touch to help students (even when you have 150 in a semester like I do).
Cons: It never ends. You give out information asymmetrically very close to the exam. (Unless you set up a class bulletin board or blog.) Also, typing answers on the iPhone while driving is still legal in my state, but not advisable.
To do this and be fair, you must issue a sincere invitation or none at all. You have to ensure that the shy students feel safe contacting you.
4. Hold a "structured review." Solicit questions with a deadline 48 hours in advance of the session. Cull out the most frequently appearing questions and the most important. Prepare a lecture. Take questions only at the end.
Pros: Prevents core session from devolving into the Chorus of Irrelevant Questions or the Opera of Inappropriately Advanced Questions for This Forum. The core of the material is delivered in an organized way. The Chorus and Opera can be heard, but only at the end. Leave time for that music. It can be soothing for those who need it. Others can walk out if the Q&A is unhelpful.
Cons: Requires more prep work. Though it is not a great deal of work, it is not a walk-on endeavor. Hits the real, core questions on the nose.
Other approaches?
Continue reading "Models for Review Sessions"
Posted by David Friedman on November 16, 2009 at 12:59 AM | Permalink | Comments (6) | TrackBack (0)
Sunday, November 15, 2009
Caperton Capering
Bill A's post below alerted me to the final resolution of this case -- a 4-1 vote exactly the same way that the (now) recused judge voted the first time around. In the Supreme Court case, a 5-4 decision that seems to break down along the usual ideological fault lines (with Justice Kennedy writing for the majority), the Court held that the due process clause is violated when a judge hears a case where he...got a whole heap o' dough from one of the parties. The standard is, shall we say, flexible: where "the probability of actual bias on the part of the judge . . . is too high to be constitutionally tolerable." The Supreme Court evinced a highly particularistic mode of adjudication in this case -- the facts really mattered and it was, in Sunsteinian parlance, narrow and shallow in its approach.
Here's a question that's been rattling around about this case for me: if particularism is the order of the day for these sorts of cases, why shouldn't a prediction about the merits of the substantive claim at issue on appeal be a factor in deciding whether a judge ought to recuse?
Continue reading "Caperton Capering"
Posted by Marc DeGirolami on November 15, 2009 at 01:28 PM | Permalink | Comments (5) | TrackBack (0)
On "Reshaping the Federal Judiciary"
The New York Times's Charlie Savage has a very Savagesque story today discussing the relative paucity of judicial nominations that have either been made by President Obama or made it through the process. Savage describes this as "deflating the hopes of liberals that the White House would move quickly to reshape the federal judiciary after eight years of Republican appointments."
The story provides some useful facts concerning the ways in which recent and pending departures from the White House counsel's office may slow things down still further. The administration's response to the story -- that it is the number of confirmations and not nominations that matter, and that it is moving methodically and successfully on this front -- does not strike me as terribly persuasive. It is also the case, when we talk about judicial vacancies, that whether one views the number of vacancies as a crisis or as no big deal tends to depend on who is doing the nominating. I am mindful of the way that judicial vacancies changed in some eyes seemingly overnight from unexceptional to a "crisis" once the administration changed from Clinton to Bush.
Still, the story strikes me as a poor one. It reads very much like many such articles -- as serving primarily as a device for one faction in the Democratic Party to send a message to another faction, and an attempt to define the agenda to their advantage. (Such maneuvers are of course not limited to Democrats.) I understand one's perspective often drives how one views this story, and that many Republicans may feel that the Democrats are more aggressive in their judicial agenda than the Republicans when each occupy the White House. (I don't agree.) But the story does not seriously acknowledge the possibility either that the White House thinks that other issues on a very crowded political agenda are just more important than judicial nominations, or that it has something else in mind when it comes to restocking the federal judiciary than simply meeting staunch conservatives with staunch liberals -- that it actually likes judicial moderates for their own sakes. To the extent it acknowledges any of these things, it certainly does not acknowledge that the administration might have a point.
Both the strong right and the strong left seem to overestimate the importance of judges as opposed to other policy matters, and to assume that the reward for any party's victory should be the delegation of judicial picks to their wing of the party. In my view, the Republicans generally do proceed in this manner when in office, although again it may be my perspective talking. Either way, there is no reason we have to agree whole-heartedly with this position, as Savage seems to do. And we should certainly keep in mind the extent to which certain interest groups on both the left and the right lose their raison d'etre if they don't gain power in this area, and thus depend on these assumptions for their daily bread.
The orientation of these thinkers is evident in the story itself. From the left, Nan Aron argues in the story that it's wrong to think "Republican acrimony will be reduced" if the administration goes slower and lessens the visibility of nominations. From the right, Ed Whelan, who is very much on-message, tells Savage: "On judges as on so much else, this administration seems to be much less competent than both its supporters and critics expected." Both these statements only make sense if one assumes -- as both of these individuals do, and must if they are to maintain their influence -- that the primary goal of any administration should be to stock the judicial ranks with committed liberals or conservatives. But, of course, the administration may think it has better things to do, or that there are better ways to think of the judiciary than as a gameboard in the culture wars. It may even think that just because the Democrats take executive office, that does not have to mean that the left gets to run the judicial selection process. And why should it?
Posted by Paul Horwitz on November 15, 2009 at 10:41 AM in Paul Horwitz | Permalink | Comments (7) | TrackBack (0)
Saturday, November 14, 2009
Why McCain was right about health care reform: Tax subsidies for employer-provided health benefits & corporate feudalism
It is a familiar point that the keystone of America's corporate welfare state is the absurdity of employer-provided health care. The arrangement is absurd, because it ties health care to one's job, impeding the mobility of labor, forcing employers to delve into social controversies over (for instance) whether to provide same-sex health benefits, and leaving the unemployed, the under-employed, and those employed by small firms uninsured. We long ago got rid of most company towns on the theory that one's boss ought not to be one's landlord. Employers do not arrange meal plans for their workers. Employers do not buy our clothes for us or choose our kids' schools. Why, then, should they choose our insurance plan?
Like many absurdities that are difficult to eliminate, employer-provided health care is a product of pure accident: In 1943, the War Labor Board tried to assuage union demands for wage increases beyond the 15% hikes allowed by the Board's "Little Steel" formula by exempting fringe benefits of health insurance from wartime wage controls. The Board's theory at the time was that this concession would avoid wildcat strikes during wartime while keeping down inflation. But, along with the 1942 Revenue Act's provision exempting funds for employer-provided insurance from the excess profits tax, the WLB's decision created enormous incentives for employers to get into the health care business. No one at the time gave a thought to the idea that employers' controlling medical care might be a sort of corporate feudalism, tying workers' rights to social services to their jobs like a serf is tied to the lord's land. The corporate financing of health care had virtually no support from unions: Both the AFL and the CIO wanted health care to be funded by the feds. But the CIO's ability to win concessions on health benefits from big employers during the 1945-46 wave of strikes lulled unions into the complacent belief that they need not lobby hard for national health insurance because they could get the private version through collective bargaining.
With the flush '50s far behind us, this naivete now seems as quaint as flannel suits and fedoras. So when McCain campaigned on a platform of eliminating the tax exemption for employer-provided health benefits, I applauded the guy for courage and candor. And when Obama played the anti-tax card, denouncing taxation of health care benefits as "the largest middle-class tax increase in history," I cringed at his demagoguery. Of course, he had to back-pedal after he won, but the rhetoric haunts the debate: Unions are aggressively defending the tax exemption against the Senate's effort to kill the beast.
Is there any serious case for exempting employer-provided health benefits from taxation any more than any other in-kind benefit -- housing, food, clothing, transportation, etc? Or is this simply another instance of the immortality of every mistake that has lasted long enough to acquire a constituency?
Posted by Rick Hills on November 14, 2009 at 02:19 PM in Current Affairs | Permalink | Comments (13) | TrackBack (0)
Law and the Little Guy
In a comment to my earlier post on Kelo, Mike complained about the doctrinal protections available to officials (especially prosecutors) who commit major wrongs:
Some would say that the Court should not concern itself with the real-world impact of its cases. . . . You rarely see that such policy concerns for the "little guy." Why weren't the Justices in Kelo wondering whether forcing Ms. Kelo to surrender her home would be for naught? In Youngblood, why wasn't the Court concerned with the policy implications of a rule that allows prosecutors to throw away exculpatory evidence?
Now, I am also troubled by what seems to me to be the too-broad expansion of a certain class of official immunities, but I don't think it's true that the Court rarely allows "policy concerns for the 'little guy'" to shape doctrine. Of course it can be hard to tell, because somebody will always defend a case on the ground that it was correct even absent any policy concerns. There are a lot of cases where the little guy made out all right, and where his success seems to be at least partly related to his little-guy-ness.
For example, City of Willowbrook v. Olech (2001): Plaintiff may state an equal protection claim as a "class of one," if she has been unfairly picked on. (For some thoughts on the legacy of Olech see this old post by Dave Fagundes.)
Or Erickson v. Pardus (2007): Appeals court is summarily reversed for its treatment of a pro se prisoner's claim, with the reminder that pleadings "should be construed to do substantial justice," under Rule 8(f), and the comment that "The Court of Appeals’ departure from the liberal pleading standards set forth by Rule 8(a)(2) is even more pro-nounced in this particular case because petitioner has been proceeding, from the litigation’s outset, without counsel."
And lots of death-penalty cases, like Panetti v. Quarterman (2007) (prisoner given another chance to prove his incompetence to be executed) and Snyder v. Louisiana (2008) (capital defendant given the benefit of the doubt when the trial court might have made a factual finding adverse to him but wasn't clear). And Gall v. United States (2007), where a sympathetic drug dealer finally gets a break in a sentencing opinion. These are only a few examples that quickly come to mind, as it is said . . . .
Posted by Will Baude on November 14, 2009 at 01:41 PM | Permalink | Comments (0) | TrackBack (0)
Caperton Decision Reaffirmed
From How Appealing we learn that the West Virginia Supreme Court has reaffirmed its earlier decision in Caperton v. Massey Coal, the case in which the U.S. Supreme Court required the recusal of the Chief Justice of the state court for having taken a particularly large campaign contribution from one of the parties. The decision this time was 4-1 (it was 3-2 in the original decision that was appealed to the U.S. Supreme Court), apparently after the state court appointed a state court judge to sit in for the forcibly-recused Chief Justice.Posted by Bill Araiza on November 14, 2009 at 11:22 AM | Permalink | Comments (0) | TrackBack (0)
Friday, November 13, 2009
The Albatross of Self-Consciousness
Today concluded a conference at Seton Hall Law School entitled Religious Legal Theory: State of the Field, defly organized by Professors David Opderbeck, Angela Carmella, and John Coverdale. It was a wonderful chance for a whelp like me to see what wise souls coming from traditions ranging from Christianity to Judaism, to Hinduism, to Buddhism, to Islam, all thought was the locus of 'the action' in this budding area. Co-guest blogger Rob Vischer's talk was especially thought provoking (see his Mirror of Justice post for a recap) as was John Nagle's discussion of "spiritual harms." And (if I may be humored a little institutional plug) my colleague Mark Movsesian's exposition of the differences with which Muslims and Christians view the role of religious law within their respective faith traditions was ineffably lucid and insightful. Mark has an uncanny gift for making inordinately complex things crystal clear and deeply interesting.
There was some discussion at the conference about "Christian Legal Theory" -- whether it is a "movement" or a "school" and whether it ought to be those things (cf. Law and Economics and Critical Legal Studies). David Skeel described the scholar who is engaged in this sort of work as one whose normative project is influenced by Christian thought or traditions and who also engaged with secular scholarship. So I suppose a "religious legal scholar" would be one whose normative scholarship is similarly influenced by religious thought or traditions. This got me thinking in my own presentation: What is the nature of a religious legal theory anyway? What makes it a religious theory?
Continue reading "The Albatross of Self-Consciousness"
Posted by Marc DeGirolami on November 13, 2009 at 10:42 PM | Permalink | Comments (0) | TrackBack (0)
Self-Promotion #4: Faculty Exchanges and Workshops with Other Schools
One of the things that I have always done with my law review articles when they were in the process of being written is to share them with as many other scholars in my field (and especially with experts on the topic of the paper) to get their insights. I have been very fortunate to work with scholars at other law schools who have given of their time freely and in a selfless manner no matter how busy they have been. Indeed, I myself probably read and comment on about 5-10 law review articles a year from others which are about to be submitted for law review publication. I believe this is an exceptionally important thing for new scholars to do as they try to find their own voice. They need to gain the wisdom of those who have gone before them and these academic elders are usually very willing to help (so don't be shy!).
All that being said, engaging in these individual and sometimes reciprocal readings of one another's law review articles is probably not the most efficient way to promote yourself in the larger academy. In recent years, I have become a huge fan of the faculty exchanges and faculty workshops. It works differently at different schools, but the basic concept is for a school to send some of its scholars to other schools to workshop their papers in front of a different faculty and get their feedback. What is great is that you get to know a whole another group of law professors outside of your field and you get their fresh perspective about the merits of your paper. And because they are not your colleagues who might have to pass you in the law school everyday, they are more likely to hold forth and tell you honestly how they feel about your work. Of course, especially if you did a good job, this is yet another way to get known by a whole another group of law professors.
Continue reading "Self-Promotion #4: Faculty Exchanges and Workshops with Other Schools"
Posted by laborprof lpb on November 13, 2009 at 04:43 PM in Life of Law Schools | Permalink | Comments (0) | TrackBack (0)
The "Death of 'Big Law School'"?
"Above the Law" has collected some posts dealing with the blog-circulating suggestion that "problems with the Biglaw business model will have major effects on the law school business model." I'm confident that this suggestion is correct. And, what was said at the "WSJ Law Blog" might also be correct, as a predictive matter : "Perhaps the focus will be more on teaching students on how to draft interrogatories than on reading John Rawls. If we’re reading Gerding correctly, law school may become less fun, but perhaps more useful." Again -- maybe so.
A friend passed this prediction along to me, noting that this change "has been a long time coming," and here's what I wrote back:
In my own view, for what it’s worth, it would be very sad if the lesson that law schools took away from all this is that they should become more narrowly technical and practitioner-preparatory in their approach. In my view, law school needs to be *more* interdisciplinary, and the study of law needs to be approached *more* like a humane discipline, than they currently are. The world does not need, really, blinkered-but-efficient-and-proficient technicians; it does need, though, lawyer-citizen-leaders who are well read, ethically sensitive, public minded, and theoretically sophisticated. There are huge problems with the profession, I think, but the answer to those problems is not, it seems to me, for law schools to resign themselves to the relatively unambitious task of providing fodder for the current (or post-crash) law-firm machine; instead, we need to produce people who have the ability and intellectual resources to transform the profession and help the profession to be what it should be.
This sounds, I admit, abstract and Ivory-Tower-ish (almost a caricature of out-of-touch tenured academics' self-important musings), even elitist. I am uncomfortable with that. To be clear, I think *practicing* law is (or, at least, should be) both "fun" and "useful" (it has certainly be fun for me!). The disdain for everyday law practice that one sometimes encounters in the more rarified precincts of the academy is, at best, off-putting. My sense, though -- what I was trying to express in my note to my friend -- is that the *practice* of law, properly and richly understood, is . . . more (deeper, bigger, harder) than I think people give it credit for. It is absolutely the role of good law schools to produce good lawyers; I'm just suggesting that the problems with the structure of the profession have not shown that the way to produce good lawyers is to shrink our understanding of what it means to be a good lawyer. The big-firm model of legal-services delivery seems messed up and dysfunctional, no doubt. I'm pretty sure, though, it's not because students have been reading too much Rawls. (Well, maybe it is. But it's not because they have been reading too much Jacques Maritain or Thomas Aquinas. =-) ).
Posted by Rick Garnett on November 13, 2009 at 03:04 PM in Life of Law Schools | Permalink | Comments (16) | TrackBack (0)
