Saturday, March 17, 2018

Legal Ed's Futures: No. 23

Law Schools Teaching Non-Lawyers

I was recently asked to chair the search for a new Dean for the Business School.  It was a fascinating process, and I was struck by the diversity of programming and expansive way in which many business schools think about education.  Executive programs.  Part time programs.  Partnerships with business and industry. 

This experience enriched an important question I had been thinking about and building structures around as a new Dean: should the “futures” of legal education include an expanded focus on legal education for individuals who are not – and will likely never become – US lawyers?  In some circumstances, this move may have the potential to help law schools financially.  But for this post, let’s put that aside – assume that such a change would be at least revenue-neutral, to focus the real discussion on whether it’s a good idea.

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Posted by Dan Rodriguez on March 17, 2018 at 11:11 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Thursday, March 15, 2018

Legal Ed's Futures: No. 22 (guest post)

In Legal Ed’s Futures #14, Dan Hunter makes the “modest proposal” of allowing universities to offer a Bachelor of Laws (LLB) degree leading to the practice of law. My experience with this in a wide variety of other countries and cultures indicates that such reform might be much easier than one might first imagine.

Many proposed law school reforms, such as shortening the JD to 2 years, or replacing the third year with an externship, face considerable headwinds from existing faculty (and law school finances) for whom such reforms would threaten job and financial stability. Such reforms also would face headwinds from existing lawyers who would perceive the reforms as threatening their own status, prestige, and income. However, similar challenges to an LLB program are far from insurmountable.

From an institutional perspective, my experience in countries with LLBs is that the number of students in such programs exceeds by several factors the number of students in traditional J.D. or J.D.-equivalent programs. Many if not most LLB students do not intend to take the bar exam, but see the LLB as preparation for a job in civil service, middle management, or public advocacy. For universities with or without existing law schools, the LLB market is a huge potential untapped revenue stream. For universities with a law school, the LLB is an ideal feeder program -- and it provides advantages of scale because JD and LLB students can sometimes be enrolled in the same course.

From a faculty perspective, the exponential expansion in law student enrollment would commensurately expand teaching opportunities. One possible rub would be stratification – in prestige, teaching load, class size, research expectations/opportunities – between faculty teaching in the LLB program versus faculty teaching in the JD program. However, again, this problem is hardly insurmountable. At universities with both JD and LLB programs, teaching and research responsibilities could be spread equitably, or could be divided based in part on expertise or qualifications (however defined) or seniority.

From the perspective of existing JD graduates, one would expect much short-term wailing and gnashing of teeth as JD-holders complain that the market is about to be flooded with unqualified new entrants. Within a few short years, however, I expect that the market will become self-correcting via job-qualification stratification. Similarly, Career Services offices will need to plan proactively to help facilitate demand for a new degree for which the job market is not currently accustomed.

Megan Carpenter, Kellye Testy, Deborah Merritt, and others writing on this thread of Legal Ed’s Futures all have made the basic (and very accurate) point that legal education has priced itself (in both pecuniary and opportunity costs) out of all but the most lucrative markets, to the detriment of society generally. Permitting an LLB as Dan suggests would go a long way toward righting that ship.

Rick Bales (Ohio Northern)

Posted by Dan Rodriguez on March 15, 2018 at 10:41 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 21

At the outset, I will confess to two biases that likely color my view of the futures of legal education.  First, I am a former deputy managing director of the ABA Section of Legal Education, and so am prone to see many of the opportunities and challenges facing legal education through a regulatory prism.  Second, I am pessimistic about the futures of legal education, at least in the short and medium terms.  Change will come, but I believe it is likely to entail the demise of many of the existing structures, and so will be resisted fiercely and for as long as possible.  On the bright side, this dire outlook should help to reinforce Mike Madison’s premise that the need for change in legal education is urgent.

Symposium contributions so far have assumed but not explicitly detailed what I think most of us would agree are the two biggest problems facing most of our students: (1) the exorbitant cost of legal education, and the associated debt burdens; and (2) too many graduates chasing too few entry-level law jobs.  (I will not repeat the numbers here, but for those who are interested, I have collected and presented the relevant data in a paper to be published in the Journal of Legal Education, a draft of which is available on SSRN:  Add to this a rankings system that dominates student decisions about where to go to law school, and thus seemingly compels schools to pursue admissions, financial aid, faculty hiring, spending, and curriculum policies that preserve the status quo and make legal education an engine of wealth inequality.  At the same time, there is an appalling access to justice gap for millions and millions of people who cannot afford lawyers or obtain publicly subsidized legal services.

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Posted by Dan Rodriguez on March 15, 2018 at 09:25 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Wednesday, March 14, 2018

(Edited)The Next Hanna/Erie issue for SCOTUS (redux)

Three years ago, I flagged a circuit split that I thought my draw SCOTUS' attention--on whether state anti-SLAPP statutes apply in federal court. Three circuits say yes, the D.C. Circuit sahys no. The Tenth Circuit this week joined the D.C. Circuit on the "no" side. Plus, the court divided on whether the denial of a SLAPP motion is subject to immediate review under the collateral order doctrine. SCOTUS has been interested in possible overuse of C/O/D, taking one case and poised to address in another until possible settlement delayed argument.

Another reason to take this is that the Tenth Circuit analysis bears no resemblance to how courts are supposed to approach Erie/Hanna questions (and how the other courts in this split have analyzed the question). The analysis begins and ends with the conclusion that a SLAPP statute is procedural. The discussion of whether there is a controlling federal statute and of Hanna and the "twin aims" of Erie is relegated to a footnote at the end of the opinion, described as the analysis for "more nuanced cases" that leads to the same result but is unnecessary in this case.

Posted by Howard Wasserman on March 14, 2018 at 10:22 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (0)

The President as Fiduciary

Jed Shugerman and I have an op-ed in today’s Washington Post, highlighting why the president’s pardon power and removal authority might be constrained by the fiduciary principles of his oath and his office.  If you have used up your free articles from WaPo this month: Download The Constitution could stop Trump from ..

Posted by Ethan Leib on March 14, 2018 at 03:58 PM | Permalink | Comments (0)

Legal Ed's Futures: No. 20 (guest post)

New Interdisciplinary Horizons

We are in an interdisciplinary moment, and not just the Law & Econ or Berkeley Jurisprudence and Social Policy sense.  So many of the concerns we feel for the future of legal education – and for the future of practice writ large – are directly related to the work our colleagues are doing down the street, in computer sciences, math, engineering, and other departments.  If the old interdisciplinary tool was often critique – how should we understand law  in light of economics, political science or sociology – the new one has great potential to be actionable collaboration.  I’d love to see my colleagues working with those computer scientists producing analytical tools that search web comments for common linguistic strands – the better to identify individuals who present genuine threats to society.  I’d like to see them working with the folks in engineering as they develop cybersecurity interventions that intercept data at an early point before it can do its damage.  I’d like to see my law faculty colleagues working with the AI experts, the driverless car folks, the pharma researchers creating digital pills that send an “I’m here” signal to a smartphone app when they hit the digestive track.  Of course I know that a few legal scholars have made this move – but truly, very few.

There is so much to be gained by growing this part of our research capacity.  Our faculty quite literally could work on the cutting edge of the law.  They’ll have the potential of making a real difference in how we think about, and regulate, the immersion of new tech into society.  They’ll be more relevant for their students.  And that’s only the beginning.

Amazingly enough, there is even scaffolding for this future – in the form of the same grants our colleagues receive for their research.  Many of the granting organizations and institutes have already expressed a keen interest in interdisciplinary teams – and law faculty are a logical fit.  I take Dan Hunter’s concern about lawyers and law students seriously – many lawyers got into the business precisely because we weren’t meant to code.   But on these interdisciplinary teams, law faculty won’t have to do the technical work.  They’ll just have to understand it enough to offer thoughtful interventions.  They can use their cognate PhD if they have one, bringing in insights from economics, sociology or political science.  But this interdisciplinary work is really open to all comers because, in many cases, the skills required here are awfully similar to those of a sophisticated litigator. 

All of which is to offer up my call for a new kind of interdisciplinarity – not to displace the law/social science combinations we know well, but to supplement them.  If we’re looking to build bridges to the future, what better place to turn than to the folks right down the street who are building much of that future this very moment.

Dan Filler (Drexel)

Posted by Dan Rodriguez on March 14, 2018 at 11:41 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 19

Artificial Intelligence and Platforms

About a thousand years ago I used to do research in artificial intelligence and law. It was kinda cool back in those times, at least for a while, and then, all of a sudden, it was wasn’t. At the time the perception was that AI applications didn’t really live up to their promise, certainly not to the point where they could be called “intelligent.” So, the hype cycle moved on to newer, more interesting computer science areas like agent-based systems, cloud computing, and big data.

Having lived through the last twenty years of what is often called the “AI winter”, it’s remarkable how often nowadays that I get asked to talk about the impact of AI on legal education and legal practice. This is almost entirely due to the remarkable advances that have been made in one technology, deep neural networks. Gideon Lewis-Krause gives a nice history of this technology here:

Deep neural networks (aka convolutional neural nets) have made good on the promise that one day machines could actually learn. The areas where we see this most obviously are in machine vision and speech, and the headline applications of this are, of course, self-driving cars, voice recognition systems, speech production, and game playing. Other advances in semantic representation and analysis have tied neural networks to data systems like the web or music databases; giving us the miracle of Pixel2 earphones able to do translations on the fly, or having Alexa play Tom Waits when I say, “Play some music that I like.”

Although it’s impossible to know exactly how these advances will affect law, we can get a decent view of which areas of legal practice will be affected by focusing on how the technology works. By extension, we can get a decent sense of how we should be re-thinking legal education.

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Posted by Dan Rodriguez on March 14, 2018 at 10:09 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Tuesday, March 13, 2018

Legal Ed's Futures: No. 18

The Technology Community Needs Legal Expertise as Much as the Legal Community Needs Technology

in his invitation, Mike mentions the possibility of a computer program ultimately being able to compose a legal memo or brief. Mike’s considered reflections on the future development of legal technology are a refreshing break from the usual hype about robot lawyers. I’d like to go a bit further, expressing more skepticism about technological determinism in the legal field.

Three years ago, when I was co-authoring the essay Four Futures of Legal Automation, there was a wave of articles and books predicting that the professions were about to be automated. A fair amount of the hype came from software vendors looking to profit by overclaiming for their own products and denigrating the work of current attorneys. A trade press eager for ad revenue from such vendors quickly hopped on the bandwagon. As Riika Koulu, Lila Kallio, and Jenni Hakkarainen have observed, there has been “a severe lack of unbiased information available on the consequences of digital shift for the practice and study of law.”

At this point, however, the discourse is more reasoned. It’s becoming clearer that lawyers and coders are complements, not substitutes. Two articles in particular have carefully debunked the usual case for rapid automation of law. As Eric L. Talley observes, “the underlying evolutionary process that characterizes legal doctrine and precedent is irreducibly dynamic and complex – traits that are poorly adapted to pure algorithmic decision-making.” Dana Remus and Frank Levy “estimate that automation has an impact on the demand for lawyers’ time that while measurable, is far less significant than popular accounts suggest.”

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Posted by Dan Rodriguez on March 13, 2018 at 04:00 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Too clever by a cent

A student shared this story about a plaintiff who sued Southwest Airlines in Missouri state court for the "amount of $74,999.99 and nothing more." The author praises the plaintiff and his lawyer for their cleverness and creativity in keeping the case exactly one cent below the jurisdictional threshold to keep the case in state court. (According to the author, Southwest recently ceased providing service to Branson, so the plaintiff may benefit from the local controversy if the case remains in Taney County, MO, rather than moving 50 miles to the nearest federal court).

If the attorney's goal was to show off his cleverness in keeping the case in state court and his mastery of federal jurisdiction, however, he failed--by one cent. Section 1332 requires that the amount in controversy "exceeds $ 75,000." The federal jurisdictional minimum is $ 75,000.01 and the maximum amount to keep the case in state court is "$ 75,000 and nothing more," not $74,999.99.

I make sure to point this out in class, using the example of a complaint that pleads "the amount in controversy is $ 75,000" would not establish jurisdiction. It is nice to have a specific, erroneous, example to work with. It also shows the students that this stuff matters, at least to how the lawyer is perceived--if you are going to make a big show of cutting under the jurisdictional amount by one cent, make sure you get it right.

Posted by Howard Wasserman on March 13, 2018 at 01:31 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (26)

Legal Ed's Futures: No. 17 (guest post)


I argued in an earlier post that Richard and Daniel Susskind’s predictions in The Future of the Professions: How Technology Will Transform the Work of Human Experts are likely to be pretty close to the mark.  In that post, I left open the question of how law schools should respond to this emerging new reality.  I argue below that we should adapt by updating the law school curriculum to ensure that our graduates are better prepared for professional success in the coming decades.

How many lawyers?

The Susskinds’ forecast raises one obvious preliminary question for legal educators that is unrelated to the curriculum: if automation is poised to displace a portion of the work currently performed by lawyers, how many students should law schools be admitting?

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Posted by Dan Rodriguez on March 13, 2018 at 09:29 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 16

The viewpoints and suggestions offered in this symposium are wonderful for their breadth and thoughtfulness, not to mention passion and immediacy.  Legal education has stewards from literally all over the globe earnestly interested in protecting if not expanding the rule of law, the delivery of legal services, and the education of new generations of lawyers dedicated to a nation aspiring to equal justice under law.  It is unfortunate then that our collective narrative is not more widely shared and internalized by a new generation who might be lawyers.  

We all know the story well – for a half century interest in attending law school increased, as reflected in more and more applications, culminating in just over 600,000 applications for admission in the fall 2010 … but then KABOOM.  The fall off was rapid and dramatic so that, in this case, a picture truly is worth a thousand words.  Here is a depiction of law school 1L enrollment over the last roughly half century:

Those 600,000 applications yielded over 50,000 1L students and then – BUST.  The enrollment growth of almost a half century disappeared in only five years so that by the fall of 2015, 1L enrollment was back to early 1970’s levels.  Ouch.  The modest bump in applications that we currently see this academic year does not mitigate some generally held impressions that we are not likely to return to 2010 any time soon, especially considering demographic predictions for high school and college graduation rates over the next 25 years. 

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Posted by Dan Rodriguez on March 13, 2018 at 09:22 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Monday, March 12, 2018

Legal Ed's Futures: No. 15

Education for Justice

In the first post of this symposium, Frank Pasquale invites us to “think more about the real barriers to access to justice.” He points to numerous obstacles that lie largely outside the control of legal educators: laws that favor large companies, lack of funding for public defenders, and low wages for public interest lawyers. I agree with Frank that these laws and conditions are real—and that they greatly constrain access to justice.

But Frank and I seem to part ways when it comes to the role of legal education in addressing these problems. He dismisses law school clinics and academic scholarship as fairly ineffectual counterpoints to the power of the corporation-driven, carceral state. I agree that clinics and scholars often are Davids confronting Goliath but, like the Biblical David, they sometimes win. More important, Frank overlooks the ways in which our traditional curriculum strengthens the Goliaths of the world. To put it bluntly: If law schools refuse to teach the skills that lawyers need to practice effectively, relying upon employers to teach those skills, who will be better equipped for battle? The lawyers who work for wealthy corporations and government? Or the ones who work for consumers, employees, small businesses, criminal defendants, and all of the other “David” clients?

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Posted by Dan Rodriguez on March 12, 2018 at 03:57 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Futures of Legal Ed

We are one week into the March symposium on "the futures of legal education" and I hope that the various posts are generating interest and motivating thoughts among readers of this blog.  In the vein, I would like to urge you to send along posts with your own reflections.  I will not edit for content, but only for spelling.

The posts thus far been have eclectic and wide-ranging, but we would surely benefit from an even more diverse set of reflections and also of backgrounds.  I hope you will consider engaging actively with this big topic and I look forward to your posts.  You can send to me at


Posted by Dan Rodriguez on March 12, 2018 at 09:03 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 14

Modest Proposal #1

My first couple of posts have been about how we’re doing things at my school to deal with innovation and technology. I want to shift the focus and start to address the observation I made in my first post about how the institutional form of the law school is a path dependent accident. Specifically, I want to start looking at the structural inefficiencies of law schools, and how the path dependency has led to a mismatch between the social need for legal knowledge and the way we deliver it.

I want to make a number of modest proposals. These are “modest” in a somewhat-Swiftian sense: although I’m not advocating eating babies, these proposals are going to strike many as implausible, if not impossible. They all seek to change the value proposition for students attending law school, by making it cheaper and/or different.

Modest proposal #1:

A smart provost at a college/university that doesn’t have a law school should propose to the ABA that their university should be allowed to offer a Bachelor of Laws (LLB) leading to the practice of law. [1]

This idea seems so obvious, I feel that there must be a slew of reasons why it isn’t being done all across the States. The JD is a relatively recent phenomenon ( and I seem to recall reading that the main reason for the shift from the LLB to the JD in the late sixties was that entry in a grad degree guaranteed a Vietnam War draft deferral. My recollection here may well be wrong—I’m traveling at the moment, and don’t have access to the work I recall reading it in. Even if I’m wrong, it doesn’t change the fundamental point that although the regulators/accreditors may currently require a JD to be bar-eligible, there are good reasons to think that now may be the time to consider reintroducing the LLB to US legal education.

First off, the ABA/AALS/State Bar Associations are rightly concerned about the cost of law degrees, and they need to be seen to be doing something here. The fundamental problem with the JD degree isn’t (I think) the sticker cost, or the cost of delivery, or even its relevance to the legal service market—it’s the fact that it adds three unnecessary years to the value proposition for the higher educational journey of a law grad. It generally takes a minimum of seven years of instruction to be eligible to sit the bar exam, of which four years is utterly unrelated to law. It’s great that college grads with a BA in poly sci or economics or a BS majoring in biology have other skills and knowledge, and certainly it’s true that the college experience is a worthwhile rite of generational passage. But in an era when law grads can expect to carry anything from $100k to $300k in debt, we clearly need a better answer than “well, those four years of college weren’t a complete waste of time, Jenny did learn about sunk costs...”

The second reason that I think that this can work, is that it’s been working for ages in other jurisdictions. Essentially every other common law country makes do with the LLB, and these countries seem to have pretty decent legal systems and functional legal education systems. Places like South Africa, Hong Kong, Singapore, Malaysia, and Australia only require students to graduate with a 4 year LLB from an accredited school, before they can undertake the local equivalent of the bar exam. The UK is even more permissive, although its approach is too complicated to explain here. Australian law schools have, over the last ten years, introduced the JD, and begun to charge US prices for the privilege. But this is just because of the peculiar funding system for higher ed in Australia, which means that the schools with JDs can charge three times as much for essentially the same degree as the LLB.

Introducing an undergraduate law degree would cut three years of tuition off the cost of becoming a lawyer, without (it seems to me) affecting in any way the quality of lawyers it graduated or the integrity of the legal profession. Three times the average annual cost of college is a pretty significant amount of money that grads would save. We could expect a range of useful flow-on effects. Numerous underprivileged students to consider law school when they otherwise would dismiss the thought. With lower college/law school loan repayments, the cost of delivery of some legal services could well come down because grads wouldn’t be loading in their loan costs into their client bills . Etc etc.

Of course, in this era of closing law schools it would be a brave provost who suggests opening such a radical law school (or any law school). And there is still the small matter of the regulators like the ABA and AALS, who are going to be pretty seriously hard to convince to this way of thinking. But, actually, I think that these two problems are actually the best reasons for trying this. Disrupting the current status quo in US schools would be really easy, and the new program would be able to grab market share much, much faster than if the legal education system were functioning well. And there is some evidence that some regulators would be open to this, as we are already seeing a number of law schools getting ABA variances for things that would have been inconceivable just a few years ago.

This entry is already too long, so I’ll outline my next modest proposal in another post…


Dan Hunter (Swinburne, Australia)


[1] I suggest that this should happen at a university that doesn’t have a law school because this proposal is almost impossible to imagine at a university with a law school that offers the JD. The channel conflict and professorial agitation at an existing law school would almost certainly make this a non-starter.

Posted by Dan Rodriguez on March 12, 2018 at 08:56 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

JOTWELL: Tidmarsh on Avraham and Hubbard on procedural flexibility

The new Courts Law essay comes from Jay Tidmarsh (Notre Dame), reviewing Ronen Avraham and William Hubbard, Procedural Flexibility in Three Dimensions (unpublished draft, coming to SSRN soon), proposing markets in procedural entitlements (such as depositions or words in briefs). It is a fascinating idea and Avraham and Hubbard were gracious in allowing Jay to read and review an early draft. The piece should be on SSRN soon; we will add a link when it does.

Posted by Howard Wasserman on March 12, 2018 at 08:52 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Write Drunk, Edit Sober

That's Hemingway and its the quote I've had on my office door for the past eight years. I don't drink, but I do write drunk. And I edit both drunk and sober - until something great floats to the surface (which is tricky because, well, shit floats, gold sinks, as we say in Hebrew). This week I am speaking to my students in my two writing seminars about good article writing. They've all selected promising research topics and now they need to turn in first drafts (also per Hemingway: all first drafts are shitty). In preparation for what we'll be talking about, in addition to assigning them as always Eugene Volokh's Legal Academic Writing as a reference book, I pulled up some note files of mine which I had prepared for past years. I found a list of 22 pieces of advice from writers I admire which I gave the students as handouts - and which I might print out again this week. I thought I'd post them here as well. My favorites are #3, #5, #8, #9, #13, and #21. And all this advice does generally translate to legal writing, including #22. Of course, #2 makes me laugh because law review writing is especially prone. 

"Write drunk; edit sober." -Ernest Hemingway [1920x1080]

  1. The first draft of everything is shit. -Ernest Hemingway
  2. Never use jargon words like reconceptualize, demassification, attitudinally, judgmentally. They are hallmarks of a pretentious ass. -David Ogilvy

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Posted by Orly Lobel on March 12, 2018 at 01:11 AM in Books, Culture, Life of Law Schools, Orly Lobel | Permalink | Comments (9)

Sunday, March 11, 2018

May States Discriminate Against Federal Personnel by Selectively Withholding or Regulating State Property? A Reply to Ilya Somin

Ilya Somin has a thoughtful response to my earlier post about California's recent legislation imposing special duties or limits on people or facilities who assist the feds in implementing immigration law. I argued that the Supremacy clause normally prohibits states from undermining federal policy by discriminating against federal officials. Ilya replies that there is no such "anti-discrimination" principle implied by the Supremacy clause. As he puts it,

There is nothing to that effect in the text of the Constitution. The Supremacy Clause only requires the states (and others) to obey federal law. It does not require them to help enforce it or to give the federal government the same services and assistance available to private parties or to state and local officials. (emphasis added).
I emphasize that last sentence, not only because it highlights Ilya's and my disagreement but also because it shows how our dispute exists in Baseline Hell -- the place where disputants grasp at straws like the "direct" versus "indirect" distinction to distinguish invasions of rights from mere refusals to deal. Ilya takes the position that, just so long as state law does not "directly seize federal assets," state law can freely discriminate against federal officers enforcing federal law, even when the state law has the purpose and effect of impeding federal law enforcement. Precedent and common sense, however, suggest that this position cannot be right.

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Posted by Rick Hills on March 11, 2018 at 01:19 AM | Permalink | Comments (5)

Saturday, March 10, 2018

Legal Ed's Futures: No. 13

I am excited to (however belatedly) join the conversation to which Professor Madison’s postings have so thoughtfully invited all of us.

Over the course of forthcoming posts, I hope to variously engage implications of the world’s growing complexity for the future of legal education; the need for experimentalism in legal education; the importance of law, regulation, and even “legal reasoning” for an ever-widening universe of non-lawyer professionals; the potential benefits of re-thinking the targets of faculty governance, and the place of leadership education in law schools – among other things.  Along the way, I may even try to make the case that we stand on the precipice of a “Golden Age” of legal education.

For the moment, though, let me offer two introductory points:

First, as my talk of a golden age for legal education suggests, I am deeply optimistic about our future.  There is much work to be done, and no assurance of success.  And only those prepared to innovate – sometimes in big ways – are likely to succeed.  For those that are prepared to do so, though, the fundamentals are not merely sound, but very promising.

Professor Madison’s postings, with what he himself describes as their “occasionally grim tone,” might be read to the contrary.  In point of fact, as he likewise highlights in his concluding paragraph, he too is “optimistic about the future.”  And for the same reason:  “I also believe that our collective power to shape our own futures – and that of law and the legal system – is immense.”

Which points to my second introductory offering: 

In his postings, Professor Madison invites us (all) to a kind of “distributed collaboration” model of shaping the future of legal education (and law and the legal system more generally).  As with Wikipedia, Linux, and other settings in which the wisdom of groups serves to generate value, he suggests in Part IV that “[i]f done well, imaginatively and carefully, then extending, distilling and combining conversations [regarding law and legal education] should lead not only to conceptual frameworks for action but also to actionable guidance itself, drawn from multiple perspectives and looking to multiple audiences.”

We have a tendency, as lawyers and perhaps especially as law professors, to reify the value of individual insight and expertise.  And hence to offer our analyses, views, and recommendations as finished products to be either embraced (ordinarily) or rejected (rarely, if ever).  Against that backdrop, Professor Madison’s invitation might offer the opportunity not only to achieve greater insight as to the future of legal education (as well as the “actionable guidance” he describes), but perhaps also to rethink the way we think as lawyers.  And thereby the value that we bring to our social, economic, and political life.  And perhaps even our future.

Robert Ahdieh (Emory)

Posted by Dan Rodriguez on March 10, 2018 at 10:22 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Friday, March 09, 2018

Legal Ed's Futures: No. 12

Outrunning Niels

A range of commentators in this symposium have identified tech as an important driving force in the changes in legal education. It’s not hard to see that if we’re to make law school more relevant to our students, and if we are serious about making our graduates capable of operating in a fast-changing legal services marketplace, we clearly need to do something about the technology gap in law school education. But what should we do?

One response is to teach law students how to code. Two approaches to this have emerged in law schools. The first—exemplified by the excellent subject called “Computer Programming for Lawyers” run by Paul Ohm at Georgetown (—is a kind-of standard comp sci “Intro to Programming 101” class, but with a legal tinge. (Not just regular expressions, but regular expressions in legal search, etc) This approach is useful in imparting some new knowledge to law students, gives them a tiny bit of coding skill, and maybe changes their relationship with their computer a little. This approach has utility, I think, in the same way that a really good “Law & Literature” class has utility, providing the student with a bit of diversity of outlook and a welcome break from all those endless rules and cases that they have to study in their black letter classes.

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Posted by Dan Rodriguez on March 9, 2018 at 09:28 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

A quick word on the speech controversy at Lewis & Clark

A quick thought on the students at Lewis & Clark Law School protesting Christina Sommers earlier this week. I confess to knowing nothing about Sommers or why she generated such anger from the students. I was surprised by the heat the event generated--the discussion on the ConLawProf listserv became quite stark. People may have been a bit surprised to see this happening at a law school (recall Heather Gerken's argument last summer that the nature of legal education affects how students go about protesting). There was some discussion of whether the protesters' actions warranted school code-of-conduct charges, which must be reported to the Bar and can create longer-term professional headaches than they would for undergrads.

Having watched the several videos, it appears there were two groups of protesters, inside and outside the room and the building. So this case illustrates the vision of counter-speech and heckling I have been trying to formulate. The latter group was engaged in protected activity. Although they made noise and made it more difficult for Sommers to be heard, they were not interfering with her use of a reserved space in which one speaker had priority right. It appears they were in an otherwise public outdoor space (although I do not know the details or rules about spaces at L&C); if so, their speech in that space should receive equal footing with Sommers' speech in the classroom.

Posted by Howard Wasserman on March 9, 2018 at 12:32 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

Thursday, March 08, 2018

The Immigration Nexus: Law, Politics, and Constitutional Identity (Updated)

I am in Portland today for the 2018 Spring Symposium of Lewis & Clark Law Review, The Immigration Nexus: Law, Politics, and Constitutional Identity. I will be talking about universal injunctions (and the paper will undergo significant organizational changes in the next draft, as I incorporate helpful reader comments and a different focus that I discovered in preparing my talk) and Amanda Frost will present her paper in support of them (we actually are close on a lot of the underlying issues).

Video of the Event is here.

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Posted by Howard Wasserman on March 8, 2018 at 11:50 PM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Baseline Hell in the Sunshine State: Can California Subject Federal Immigration Agencies to “Special Burdens”?

Suppose that a state law’s restrictions on private persons or its own officials and facilities apply only when those persons, officials, or facilities assist the federal government. Does such a law constitute “discrimination” against the feds that violates the Supremacy clause? If the answer is “always yes,” the state autonomy protected by Printz v. United States could become a dead letter. If the answer is “always no,” then the feds’ immunity from subnational governments’ attacks becomes a dead letter. Between these two answers is “a darkling plain/ Swept with confused alarms of struggle and flight,/Where ignorant armies clash by night.” It is a place I call Baseline Hell.

This infernal battlefield is nicely illustrated by the United States’ lawsuit against California alleging that new state laws violate the Supremacy Clause by imposing discriminatory burdens on facilities and people who help implement immigration law.

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Posted by Rick Hills on March 8, 2018 at 11:43 PM | Permalink | Comments (5)

Happy International Women's Day and the Future of Pay Equity

I am trying to not blog or be online much at all this week with the goal of getting a good mid-semester spring leap on several of my new research projects. International Women's Day is a good exception though* - and this is an optimistic year for all of us law professors working to promote gender equality.

#metoo has certainly brought momentum to both the public debates and legislative/administrative efforts to create better work environments for all. And my latest book argues that law, including IP, contract law and antitrust laws, can be reformed in ways that would empower expression and disruption of dominant, too often problematic, images and messages that pervade our markets, including concepts of girlhood and womanhood. I've also argued here that by focusing on sexual harassment we should not lose sight of some of the most important aspects of employment discrimination, that are (alas I know this because I teach and write and consult about employment law) less sexy, literally and figuratively. 

I am writing a new law review article tentatively titled Flipping Transparency on its Head: The Future of Pay Equity. And I am honored to be named the keynote speaker in the annual upcoming Pay Equity Day celebration this April at the Lawyer's Club of San Diego. The talk, and this post, will definitely help shape the project. Pay equity, including equitable pay and promotion across non-identical positions, is perhaps the most difficult issue to tackle in the field of gender work discrimination and the contemporary gender pay gaps are even more pronounced when we examine the salaries of women of color. My article a very very (very) drafty draft though I will be happy to circulate some version soon enough, but my general argument is that the underlying logic of a successful pay equity reform will be to flip transparency structures on their head. The reality is that we've had pay equity laws on the books for decades, both federal and state prohibition on pay discrimination. And yet, the gaps persist and basically every economic study agrees that while some gaps can be explained by seemingly "private choices" (a problematic notion in itself) such as education levels, stereotypically gendered careers, and hours and years in the job market, there is a component of the gap that simply cannot be explained away and points to direct discrimination. The new path for pay equity is to look at what happens at the negotiation table and the information that circulates in the job market, including both intra- and inter-firm speech. Several new state laws/bills, some just passed and are taking effect this year (California, NY, Mass., Maryland), prohibit employers from asking prospective employees about their previous salaries and, at the same time, prohibit employers from preventing employees from sharing their salaries with others. The Paycheck Fairness Act which has been introduced in Congress for many years now, most recently in 2017, would also protect employees from being retaliated against when they reveal their pay to others. In the article I draw on the robust research (including my own) on judgement and decision-making and behavioral law to understand how information is exchanged, understood and used in market relations. I also look at NDAs, something that I have been studying extensively in relation to talent mobility and innovation (also see here and here and here), and propose a notice requirement about the ability to discuss pay similar to the NDA whistleblowing exception notice requirement adopted by Congress when it enacted in 2016 the Defend Trade Secrets Act (I've written about this new provision here). My goal is to add meat and layers to the new wisdom of flipping transparency and point out the promises as well as the challenges of current reforms.

Now is the perfect time in the writing to learn from your reactions, thoughts and related works – and so I'm looking forward!

*wow I'm reminded that blogging is super helpful to articulating new projects – I knew there was an exception to my rule about an online detox for my mid-semester jump-start writing week! We prawfs always find the good loopholes [and point out the bad ones]!

Image result for pay equity


Posted by Orly Lobel on March 8, 2018 at 05:15 PM | Permalink | Comments (5)

Legal Ed's Futures: No. 11

Across the discipline of legal education and across law schools, and without the blessing of appointed and delegated leaders, legal educators should act on their power to define, advance, and implement their own visions of law and legal education, in ways that make the changing conditions of the legal profession and its existing institutions relevant but not determinative.

--Mike Madison

In this post, I am conscious of not wanting to author a diatribe in the style of the Unabomber manifesto (read: “The Industrial Revolution and its consequences have been a disaster for the human race.”).  Instead, I’ll offer a more tempered version:  The tradition of legal education and its consequences have created a crisis for civil society.

Those of us in legal education and the legal services industry have for 150 years made legal education a precious commodity.  Jointly and severally, we have isolated the construction, interpretation, and operation of law away from its subjects and objects.  And we have done so at our peril. 

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Posted by Dan Rodriguez on March 8, 2018 at 12:09 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 10

Growing The Scope Of What We Do

I am grateful for the opportunity to be part of this important conversation.  I especially appreciate the framing - initiating a dialogue as a predicate step for future developments in legal education.  In all our busy lives, I believe we are intensely interested and motivated to work hard on behalf of our students and the profession. But it is useful to force ourselves on occasion to break out of the necessary day-to-day effort on immediate outcomes and pause for a moment to set guideposts for the industry’s future.

What questions do we need to think about in assessing the “futures” of the legal profession?  To open, a few:

Is the profession changing? 

Sure – it has changed before, and will always change.  The harder question is if there are trends that demand particular attention.  Here, I think the answer is clearly yes.

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Posted by Dan Rodriguez on March 8, 2018 at 10:21 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 9

Let a Thousand (or at least a Hundred or More) Flowers Bloom!

This virtual symposium – and a great deal of writing about legal education – offers readers a lot of really good ideas about innovations in legal education, or extensions of nascent programs already in place somewhere. Indeed, maybe too many in one quite specific sense: It is unimaginable that any single law school will – or would be able to – adopt all or even more than a handful of the ideas.

That’s not a counsel of despair, though. Rather, it’s an argument in favor of institutional pluralism in legal education – an argument that conveniently dovetails with the observation that institutional pluralism exists and isn’t going to go away.

Institutional pluralism means that each law school will choose its own path. That path will be marked out in a complex process. A dynamic new dean will come in supporting some innovations. The dean will be supported by some members of the faculty, who see the institution as stagnating or failing to adapt to new market conditions, and opposed by others who see the specific innovations as inferior responses to new conditions than other innovations would be. The central university (“the provost”) will support the new dean or be skeptical about the initiatives. Alumni and students will weigh in, offering their views about which features of the old program should be preserved, which should be abandoned. And so on ….

Institutional leadership at the law school and university levels, faculty, student, and alumni “politics” – all will play out differently at different institutions, even at institutions with roughly the same location in the market for legal education. And of course that’s another feature of institutional pluralism: The market for legal education is segmented in ways that we all recognize but often fail to take into account when we discuss “legal education” tout court.

The inevitable effect is that good ideas will spread erratically and penetrate legal education incompletely. Some law schools will adopt some good ideas but reject others; others will take up ideas rejected elsewhere and ignore others adopted by their peers.

An optimistic social Darwinist or free-marketeer would say (hope?) that all will work out fine in the end. The ideas that turn out to work well will spread and those that don’t work will drop out of the competition. I’m not in either of those camps, in part because I think that the “environmental” conditions for legal education change too rapidly for evolutionary adaptation – a not terribly nimble process – to work well. Rather, we’re going to see repeated episodes of innovation, change, success and failure – not even cycles but simply episodes.

And, again, that’s either all to the good or a matter of indifference. All to the good because there’s a decent normative case for institutional pluralism (it would be bad were all law schools with religious affiliations to come to be indistinguishable from deeply secular law schools).[1] Or a matter of indifference because in an institutionally pluralist world, lots of people (law students, faculty members, those in the general society) will be able to get a lot of what they value from legal education even if no one gets everything she wants from any specific law school.

Mark Tushnet (Harvard)

[1] In an attempt to preempt some kinds of criticism (of the Association of American Law Schools among others), I note that the words “all” and “indistinguishable” carry a lot of weight in my formulation.

Posted by Dan Rodriguez on March 8, 2018 at 09:42 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Wednesday, March 07, 2018

Legal Ed's Futures: No. 8

Legal Education for a Changing Society


I am grateful to Dan Rodriguez for organizing and Mike Madison for inspiring this virtual symposium and including me. The very choice to make this symposium virtual embodies the important issue we will be reflecting on this month—how should legal education and scholarship evolve synergistically with our changing society?

As a first-year dean at a young law school within a public, land-grant Research 1 university (Penn State Law in University Park, PA), I am excited to have a chance to dialogue with this group of thought leaders and other thought leaders who join the conversation about the answers to this question.  I chose to become a dean because I hope to help us make progress on legal education for a changing society at my institution and beyond.

We are at a moment of profound social change in which technology, globalization and the need for cross-cutting knowledge are transforming the practice of law and the nature of legal services and information. It is crucial for law schools to acknowledge that change, and not simply respond, but lead in the face of it. Drawing from the themes of Mike’s posts and those so far, my first post will highlight four issues I would like to explore in more depth (among others) over the course of our conversation.

Continue reading "Legal Ed's Futures: No. 8"

Posted by Dan Rodriguez on March 7, 2018 at 03:31 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)