Thursday, March 23, 2017

JOTWELL: Campos on Glover on claims as property

The new Courts Law essay is from Sergio Campos, reviewing J. Maria Glover's A Regulatory Theory of Legal Claims (Vand. L. Rev.), which considers the implications of understanding legal claims as property.

Posted by Howard Wasserman on March 23, 2017 at 10:16 AM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Wednesday, March 22, 2017

Judging Judge Gorsuch on the Separation of Powers

Judge Gorsuch's views on the Chevron doctrine, which directs reviewing courts to defer to agency constructions of ambiguous statutes, have received a lot of attention, and for good reason:  They are well-articulated, interesting, and controversial.  "There's an elephant in the room with us today," Judge Gorsuch quipped in his concurring opinion in Gutierrez-Brizuela v. Lynch, and he seems ready to play the elephant hunter on behalf of the separation of powers.

The separation of powers, however, is much more than the Chevron standard of review.  As my colleague Leah Litman points out at Take Care, Judge Gorsuch's views on agency structure are also a measure of his understanding of the separation of powers.  For example, she asks, will Judge Gorsuch respect the existing conventions of agency independence?  There's reason to think, Litman explains, that Gorsuch might increase presidential power on that score.

Also worth considering, I'd briefly add, are Judge Gorsuch's views on access to courts.  Does the separation of powers mean, for instance, that standing doctrine should restrict regulatory beneficiaries' access to judicial review of administrative action?   On the question of constitutional litigation's role in our polity in general, Gorsuch has been forthright.  In "Liberals'N'Lawsuits," Gorsuch wrote that "overweening addiction to the courtroom as the place to debate social policy is bad for the country and bad for the judiciary," while also noting "that constitutional lawsuits have secured critical civil-rights victories."  He echoed the latter sentiment during his confirmation hearing, also adding that "[t]he problem lies on both sides of the aisle."  It's safe to assume that the Supreme Court's pattern of tightening up access to courts would persist with a Justice Gorsuch on the bench.   

Continue reading "Judging Judge Gorsuch on the Separation of Powers"

Posted by Seth Davis on March 22, 2017 at 03:15 PM | Permalink | Comments (0)

Priming Public Opinion on the Federal Courts

I wanted to pull up a chair to the blog posts last month by Richard Primus and Rick Hills about the decreasing public regard for the federal courts reported in a recent poll.  I do not question these results, but I want to explain them a little.  If it is indeed true that these findings are unprecedented, my hypothesis would be that it is more of a change on the supply side of public opinion than the demand side of public opinion.  Americans were always willing to distrust their federal courts, they just needed someone to prime them to do so. 

Public support for the federal courts has always been taken as too durable and inevitable and not contextual and fragile enough by law professors.  Just like public attitudes towards other issues, attitudes towards the federal courts can be primed by elite political actors perceived as otherwise sympathetic to one’s worldview.  Donald Braman and I have written of our skepticism that the political science data always does demonstrate meaningful support for the federal courts because so much of that data has no prime or signal affixing practical stakes to judicial actions.  There are many good empirical articles on this, led by this one by Tom S. Clark and Jonathan C. Kastellec, this one by Stephen P. Nicholson and Thomas G. Hansford, and this one by Stephen P. Nicholson.  The gist is that citizens are particularly ill-informed about the federal courts, and thus particularly susceptible to change their sentiments based on cues from sources they trust, like elite co-partisans.

The results demonstrating so-called “diffuse support” for the Supreme Court are often (not always, it is important to note) therefore a manifestation of the presence of social desirability bias and the absence of a countervailing source cue. Many respondents think they should like the federal courts and think they should believe that courts should be powerful.  When asked questions about their support for the federal courts, they will report deep support (although even this support has dropped recently).  When an elite co-partisan steps in to prime them to think otherwise, then social desirability bias is overwhelmed by a reliable signal directing them how to think about federal courts. 

Continue reading "Priming Public Opinion on the Federal Courts"

Posted by David Fontana on March 22, 2017 at 12:58 AM | Permalink | Comments (2)

Tuesday, March 21, 2017

Journalism, law, and asking questions

This piece, arguing that reporters undermine their checking function by asking complex, multi-part questions or burying a single question in a long lead-up, is spot-on. And the comparison to what we try to do in law school and law is apt. Effective cross-examination involves single, pointed questions. The same for effective questioning during oral argument--part of why Justice Breyer's questions are so incomprehensible and impossible to wade through is all the crap surrounding the question--which is usually just "respond to what I just rambled about for 3 transcript pages." It also what effective classroom teachers do, guiding the discussion with singular pointed and precise questions.

The result in journalism and law is the same: If the question is memorable because so beautifully and intricately phrased, the answer will not be memorable--because it will not have gotten a meaningful answer or even any answer, at the least not the one the questioner was hoping for.

Update: Needless to say, this also would make confirmation hearings far more bearable.

Posted by Howard Wasserman on March 21, 2017 at 04:14 PM in Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (1)

Whose money is it, anyway?

A manager's amendment to AHCA was submitted on Monday, containing several changes designed to get conservative and Freedom Caucus members on board. Under the new legislation, people will not be able to roll unused tax credits into health savings accounts. This change was made as a sop to anti-choice activists, who argued (as far as I can tell) that allowing tax credits to be placed in individual's HSAs would be for government funds to, potentially, be used for abortions. This is on top of a provision that prohibits tax credits from being used to purchase insurance plans that cover abortion.

But in Arizona Christian School Tuition Org. v. Winn, the Court rejected Establishment Clause taxpayer standing in a challenge to a state scheme of giving tax credits to individuals in the precise amount of their contributions to organizations that gave scholarships to students attending religious private schools. The linchpin of the Court's analysis was that the tax credit was not an expenditure of government funds, because the money never passed into government hands--it was money that the government never collected because it lowered that individual's tax bill (for whatever reason). There was no Flast standing to challenge what amounted to charitable expenditures by private individuals.

But doesn't it follow that these restrictions on the use of tax credits are imposing restrictions on the use of private funds (in a way that arguably constitutes an undue burden). The government is lowering the tax bill for individuals, but then limiting how that individual can spend their own money.

What am I missing?

Posted by Howard Wasserman on March 21, 2017 at 10:57 AM in Howard Wasserman, Law and Politics | Permalink | Comments (3)

Conservative Credentialism

One of the questions that the conservative legal movement faced several decades ago—like any opposition movement does at first—is whether to use exit, voice and/or loyalty to obtain power.  Professional movements that operate in opposition face a unique version of this question.  Credentials communicating technical merit are crucial in public discourse in evaluating the merits of professionals. Steven Teles’s fantastic book on the conservative legal movement puts the question as one of fight or flight: should conservative lawyers seek to generate credentials for their messages and messengers within the existing professional framework, or should they seek to create an alternative framework to credential their messages and messengers?

It is certainly the case that the flight option has been important to understanding the direction of the conservative legal movement.  Organizations like the Olin Foundation and the Federalist Society attempted to create an alternative credentialing mechanism—but still very much operate within the existing structure of the legal profession.  These organizations supported scholarship, for instance, that was not being supported as much or at all before, but it is still largely scholarship by law professors for law reviews.

One reason why the nomination of the Neil Gorsuch is interesting to me is how dramatically he represents the promise of the fight option.  The fight option permits those in the minority within a profession—in this case conservatives within a liberal-dominated elite legal profession—to persuade opponents over the course of a career by building networks with many high-status ideological opponents.  Gorsuch is the product of a private school in the Washington metropolitan area, Columbia, Oxford, Harvard law school, and then a relatively bipartisan Washington law firm (certainly one not as ideologically identified as other law firms).  At each stop, he built relationships with prominent progressive voices.  These friends and colleagues then vouched for him in prominent ways.  Their support—contrary to ideological type, a rarity these days—has become a major means of legitimating the technical (as opposed to, say, ideological) excellence of Gorsuch.  Many Trump Administration officials (including Vice President Mike Pence) and Gorsuch supporters have been citing the support of “even Democratic lawyers” as a means of proving Gorsuch’s technical legal aptitude.  Gorsuch was introduced by former Obama Administration Acting Solicitor General Neal Katyal at today’s hearings, and was supported by many prominent progressive Supreme Court lawyers and law professors.

Continue reading "Conservative Credentialism"

Posted by David Fontana on March 21, 2017 at 04:59 AM | Permalink | Comments (9)

Monday, March 20, 2017

The Legal Academy Becomes More Like the Rest of the Academy, Part XVIIII

Via TaxProf Blog and the ABA Journal comes the news that the ABA's Council of the Section of Legal Education and Admissions to the Bar has proposed a rule change to the current ABA standard requiring that more than half of all credit hours offered by accredited law schools be taught by full-time, and hence generally "academic," faculty. The proposal would reduce the required number to one third. Some observations:

1) Interesting! We can expect some good healthy debate and controversy on this one, as well as a fair number of extremely flowery and high-minded statements.

2) None of the sources cited or linked to above offer a discussion of the reasons for the change. Perhaps there was lengthy and thoughtful policy discussion. It seems to me, however, that the reality is that whatever discussions took place were ultimately secondary to the pressure of events on the ground. This is a proposal driven by real or perceived economic necessity, and a desire to legitimate changes that either are already happening--or that might need to happen if law schools are to remain afloat while cutting to the bone. (Whether they should all remain afloat is a separate question.) 

3) On the whole and as an initial matter, I favor the proposal. In a now-ancient book review of Brian Tamanaha's Failing Law Schools, I wrote approvingly of Tamanaha's proposal that we "pare down ABA accreditation requirements that force law schools into a single educational model," so that some schools can maintain the traditional and more "elite" model while others offer a "cheaper and more practically oriented model." Under this approach, "[s]tudents interested in the latter model [would] not be forced to pay for the former," in the sense of having to meet the requirements of, and thus pay for, the elite model whether they want to or not. I noted the high-minded statements that appeared then opposing such a change, and doubtless will reappear in the current discussion, but disagreed with them. For reasons of institutional diversity, among others, I favor the possibility of different models and am not much disturbed by the objection--I would call it a description, really, instead of an objection--that it would lead to a "two-tiered" system. Among other things, I wrote that the objections gave insufficient recognition to "the reality that we already have a two-tier system, albeit one whose pretenses of uniformity drive up the costs across the board." Nor was it clear to me why "a less academically driven legal education would be a 'second-rate' one," as the opponents of such a change argued. For many students and schools, it might be the better education. 

I am still so minded. The usual tendency, at least until 2008 and still to a substantial extent, is for every school to want to be and look like Yale or Harvard, no matter how little sense that makes for particular schools in particular places. (I am reminded of Tom Wolfe's description of Yale architecture students puckishly drawing illustrations of the then-chic "Yale box" appearing on the moon, on the farm, and in other unusual and inapt places.) This is partly a function of law schools' absurd credentialism, lack of imagination, and hierarchy-reproducing tendencies when it comes to hiring and the highly limited backgrounds and cultures from which most law professors spring, and partly a function of their attention to US News rankings and general desire for elite status (for the schools and, just as important, for the faculty themselves). As I wrote then, whatever their deepest wishes, many law schools have already bowed to reality and departed from some of these norms. The proposed rule change gives them more liberty to do so, without requiring it. If some law schools adopt a more practice-driven approach and rely more on practitioners to achieve it, while others are or can afford to emulate the model of a few elite schools, so much the better for institutional diversity and student choice.

4) Schools that take advantage of this model and adopt a more adjunct/practitioner-oriented faculty model, with a smaller academic faculty core and a larger store of adjuncts, will still face the need to do what too few have done: to think creatively and comprehensively about how to turn this congeries of commuters into an actual law school community. They must think about ways to bring those commuters into the school more often, make them a larger part of the intellectual and daily life of the school rather than an afterthought, include them in faculty life and discussion and decision-making, and give them a sense of being members and stakeholders of the law school community. It's a difficult but necessary task to undertake. One assumes that there are various ways to achieve this, and they need not all look the same. 

5) In at least some ways, what happens in the law schools follows what happens in the larger academy, but at a distance--sometimes a great distance. Thus, years after the standard graduate-school model of generating future faculty became the norm for most academic departments, in the past ten or more years law schools have drawn increasingly, when hiring, on fellows and fellowships, which are essentially an echo of or proxy for the graduate-school model. This model creates and seeks out a store of future faculty who are professionalized and acculturated as academics rather than practitioners or amateurs, and who have long since signaled their willingness to forego legal-professional status and income in favor of becoming academics. (We still see arguments that law faculty are foregoing what would otherwise be high-income jobs that would readily be accessible to them. That might be true at the outset of their legal careers, after they have graduated and clerked and perhaps spent a couple of years in practice. By the time they have devoted years to academic study and status, however, they have long since made it more difficult to move into the world of practice, for better and worse. This might justify lower salaries for academic law school faculty members, although that's a question for the market to answer, not for abstract and non-empirical arguments about what these individuals "could" do if they wished.) That makes them surer hiring bets, at least as "academic" faculty, for multiple reasons: they have already published, they already talk the talk of the academy, and they have already made clear their long-term intentions to remain faculty members rather than abandoning the academy for professional work or retiring from practice without contributing greatly to "academic" work.  

This new proposal similarly recapitulates the larger changes that have been written about  and debated so much in the wider academy: namely, the part-timing or adjunctification of the university. Some of the rea$on$ for doing so are no doubt the same, and we can expect some of the same arguments--very real ones, I should acknowledge--to arise here: arguments about the potential for abuse and mistreatment, lack of quality control, corporatization of the university, and so on. I think we should think of this as a partial recapitulation of what has happened elsewhere in the university. But we should not treat the two phenomena as identical, by any means. There is a difference between relying heavily on adjuncts with Ph.D's to teach, say, English Literature, and relying heavily on practicing physicians to provide clinical and practical education to medical students. An adjunct literature professor is generally just a literature professor without job protection; a practicing physician serving as a clinical professor of medicine has another job and set of skills that both maintain his or her independence and provide something distinctive of value to the medical school and its students. Law practitioner adjuncts are closer to the latter analogy than to the former. Not all of the arguments against the mass use of adjuncts elsewhere in the academy will fit in the law school context, and they should not just be parroted here thoughtlessly. But of course we should discuss and think through the implications of changing our model.

* * * 

I should note that I am surely an "academic" faculty member, and some of what I say above is hardly in my own interests. I am happy to try to maintain my own salary and other perquisites, and--although slowed recently and to my own profound guilt by illness--I like being an "academic" academic, want to contribute to the academic and scholarly life of my school and the larger community, and think this life has intellectual value and the capacity to contribute to our intellectual tradition, although I resist making overblown arguments about its immediate or "real-world" value. (I am not averse to changing things up, however, and certainly think there ought to be room for rethinking how each faculty member shapes his or her career. Perhaps sabbaticals should be given more frequently but with the caveat that every other sabbatical must be spent volunteering or practicing as a lawyer; or perhaps the obligation to do something of the kind could be tied to the reduced course loads most of us enjoy. No matter how ethereal some of us have become in our work, we might find work as clerks or runners or junior assistants to state legislators; even spending every day for a year sitting in a courtroom and watching arraignments and pleas would be of some value in enriching our perspective.) I just don't think my own interests, or those of other "academic" legal faculty, are especially important factors or relevant to the analysis.   

        

Posted by Paul Horwitz on March 20, 2017 at 10:29 AM in Paul Horwitz | Permalink | Comments (0)

New Poll on the Supreme Court

C-SPAN and PBS have posted the results of their poll on the Supreme Court.  Rather than just an update of old numbers about support for the Supreme Court (more on that in another post), this poll has some interesting new questions too.

  • Donald Braman and I have written about the limitations of polling that asks questions about the Supreme Court without practical stakes of Court decisions attached to those questions. This poll does what almost every poll about the Supreme Court does: ask generic questions without stakes attached.  There is a social desirability bias leading respondents to state that they follow what the government is doing and that it matters, but there are reasons to doubt whether people actually follow the Supreme Court.  While asking a question about President Donald J. Trump and then telling respondents about his immigration actions might not change the results that much, asking a question about the Supreme Court and telling respondents about recent decisions could change results.  Some examples from this poll: 65 percent of respondents report that “very often” or “somewhat often” they follow news stories about the Court.  90 percent say the Court has “an impact on my everyday life as a citizen.” These numbers seem hard to believe, particularly given other results within the poll (only 43 percent can identify a Justice).
  • I wrote an essay for a symposium hosted by The Yale Law Journal to mark the fifth anniversary of Justice Sonia Sotomayor’s confirmation to the Supreme Court. I wrote about Justice Sotomayor as “The People’s Justice,” a Justice with the unique ability to—and desire to—communicate to a broader cross-section of the public.  Based on her public appearances, others seemed to agree that Justice Sotomayor was doing this.  In the three years since then, the “Notorious R.B.G.” has emerged as a major meme of public discussion about the Supreme Court.  Justice Ginsburg now appears to be more well-known than Justice Sotomayor (and more well-known than Justice Clarence Thomas, always as well-known as any other member of the Court).

Continue reading "New Poll on the Supreme Court"

Posted by David Fontana on March 20, 2017 at 06:21 AM | Permalink | Comments (0)

Saturday, March 18, 2017

Can Federal Protection from Takings Endanger Property Rights? The Right to Subdivide in Murr v. Wisconsin

On Monday, the U.S. Supreme Court will hear arguments in Murr v. Wisconsin, a beautifully crisp "denominator" case. The Murr children inherited adjacent lots next to the St. Croix River. One lot had a small cabin near the waterfront; the other was vacant. The Murrs would like to build on the vacant lot, but the county imposed a minimum lot size on the area in 1976 rendering the lot unbuildable. Is this minimum-lot size a deprivation of all beneficial use of the property under Lucas. Or is the "property" in question defined by the two lots combined, one of which contains a cabin?

The Cato Institute's brief argues that "[t]he Court should adopt a bright-line rule against aggregating separate parcels under common ownership," because "[s]uch a rule would add much-needed clarity to the Penn Central test by simplifying the analysis." Wisconsin by contrast argues that the Murr kids' property rights are qualified by Wisconsin's lot merger rule, which provides that adjacent lots forfeit their rights to be developed as non-conforming uses when they are brought under common ownership. The Murrs' parents transferred both of the lots to their children in the 1990s, thereby losing their non-conforming use. The Murr case, therefore, elegantly presents an instance of the central theme of takings doctrine: Which aspects of state law ought to define "property" under the Fifth Amendment? Plenty of people have written on the legal merits of this question. (Ilya Somin has, for instance, written a sharp amicus brief ).

I want to focus on another issue entirely: Do the Murr's, Ilya's and the Cato Institute's positions actually undermine the security of private property? By elevating one aspect of state property law -- lot lines -- over all others, their broad reading of Takings doctrine would give state and local governments enormous incentives to make subdivision of large parcels very difficult. After all, one risks a Lucas taking by allowing a farmer to split up a lot that later turns out to have wetlands or erosion-prone areas on it. The predictable reaction of state and local governments, therefore, will be to make lot splits even more difficult than they already are -- perhaps forbidding them altogether. If this is the upshot of the Murrs' victory, few property owners will thank them.

Continue reading "Can Federal Protection from Takings Endanger Property Rights? The Right to Subdivide in Murr v. Wisconsin"

Posted by Rick Hills on March 18, 2017 at 07:24 PM | Permalink | Comments (1)

Friday, March 17, 2017

Legislative Underwrites

My newest paper with Jim Brudney on when legislatures undertake to endorse rather than reject statutory interpretation decisions in the courts is now available for download from SSRN.  It is forthcoming in the Virginia Law Review.  An abstract follows:

This article introduces a widespread but virtually unacknowledged practice in Congress and state legislatures. Not only do legislatures override judicial decisions as part of an interbranch dialogue when they disagree with judicial rulings and doctrine; they also underwrite judicial decisions when they agree with those rulings. For all the literature on the adversarial communication evidenced through legislative overriding, there is not a single paper devoted to legislative underwrites that reflect more collaborative dimensions of the interbranch dialogue. This article begins to fill that void, and in so doing it frames practical and theoretical lessons for legislative, judicial, and scholarly audiences.

More specifically, the article defines the contours of an underwrite and identifies the diversity of underwrite initiatives in Congress and state legislatures. It then normatively evaluates costs and benefits that might flow from a more self-conscious approach to underwrites, analyzing these pros and cons as they operate at pragmatic, doctrinal, and conceptual levels. It also examines certain vulnerabilities to the practice that may limit the scope and meaning of underwrites as applied by “downstream” statutory interpreters. Finally, the article explores the interplay between underwrites and key interpretive doctrines that invoke legislative silence—notably, statutory stare decisis and the re-enactment rule. In that connection, it suggests certain doctrinal and institutional settings in which underwrites may be especially valuable.

Posted by Ethan Leib on March 17, 2017 at 02:46 PM | Permalink | Comments (0)

Thursday, March 16, 2017

A Teachable Moment

Thank you to Howard and to the PrawfsBlawg community for the opportunity to blog this month.  This semester I'm teaching Administrative Law in what amounts to an ongoing teachable moment for that subject. 

My fellow blogger, David Fontana, recently discussed the topic of law professor neutrality in our political moment.  I'd like to ask a related, but different, question:  What are techniques to bring this teachable moment into the classroom?  For some, I recognize, this question may seem the wrong one to ask.  For instance, bringing the day's headlines into class will raise the questions about neutrality that David posed.  It also raises questions about responsibility to students, some of whom may be directly affected by the latest action of the Administration.

Still, I've seen several benefits this semester from teaching Administrative Law through the lens of our teachable moment.  First, it helps students connect with difficult and sometimes abstract material.  Second, it helps students understand not only the promise of the rule of (administrative) law, but also its limits.  Third, it responds to students' own demands.  Fourth - and this last point is focused on Administrative Law - it has helped me tell a story that focuses students on presidential administration, a story that might not otherwise be apparent from many of the canonical cases. 

Continue reading "A Teachable Moment"

Posted by Seth Davis on March 16, 2017 at 06:48 PM | Permalink | Comments (5)

Blaming Dissents in Gant and Lightfoot

The Supreme Court sometimes abandons longstanding or widespread readings of its own precedents by blaming a dissenting opinion. “Our previous majority was fairly clear,” the Court effectively says, “except that the dissent in the relevant case cast a spell over readers, leading them astray.” This practice of blaming dissents is both interesting and consequential, appearing for example in Gant as well as the recent decision in Lightfoot.

Continue reading "Blaming Dissents in Gant and Lightfoot"

Posted by Richard M. Re on March 16, 2017 at 01:35 PM | Permalink | Comments (9)

Entry Level Hiring: The 2017 Report - Call for Information

Time once again for the entry level hiring report.

I will gather the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

The information will be aggregated on this spreadsheet (which is reproduced below and which you can view and download by clicking on this link); scroll across to see all of the information we will be aggregating.

Please leave the information in the comments, and, to protect those on the job market, please sign the comment with your real name. (Ideally, the reporting person would be either the hired individual or someone from the hiring committee at the hiring school.) If you would like to email information instead of posting it, please send it to Sarah Lawsky at sarah *dot* lawsky *at* law *dot* northwestern *dot* edu. Remember: you can't edit the spreadsheet yourself. To get your information into the spreadsheet, you must either post in the comments or email me.

I will also gather the names of schools that are doing no entry-level hiring this year (that's the second tab on the spreadsheet), so if you know for sure that your school is not doing entry-level hiring, please post that in the comments or email me.

If you see any errors, or if I have incorporated your information into the spreadsheet but you are not yet ready to make it public, please don't hesitate to email me, and I will take care of the problem as soon as I can.

Clarifications:

The list does not include people who were full-time non-tenure track clinicians who are now moving to a tenure track job at a different school, as these don't seem like true entry-level hires to me. This is the situation where a person is at a school that does not provide tenure to clinicians, and then moves to a school that does provide tenure to clinicians.

The list does include people who had a non-professor job in a law school and then moved to a professor job that was tenure track. Thus a person may have worked at a law school for many years, but still be considered an entry level hire. To indicate this situation, I will put their previous job at a law school in the "fellowship" category, and note "non-TT to TT" in the "Notes" category. This is not to indicate that this isn't an entry-level hire, but rather to give information about the nature of the item listed as a fellowship. (I.e., not a temporary position, as fellowships usually are.)

Other links:

This report follows in the tradition of Larry Solum's excellent work over many years.

2016 initial post, 2016 spreadsheet, 2016 report (with graphs). 

2015 initial post, 2015 spreadsheet, 2015 report (with graphs).

2014 initial post, 2014 spreadsheet, 2014 report (with graphs).

2013 initial post, 2013 spreadsheet, 2013 report (with graphs).

2012 initial post, 2012 spreadsheet, 2012 report (with graphs).

2011 initial post, 2011 spreadsheet, 2011 report (with graphs).

All PrawfsBlawg entry level hiring report tagged posts.

Originally posted 3/16/17.

 

Posted by Sarah Lawsky on March 16, 2017 at 12:30 PM in Entry Level Hiring Report | Permalink | Comments (4)

Wednesday, March 15, 2017

Law Professor Neutrality in the Age of Trump

So much of what law professors do is cloaked in the language of neutrality.  It is not just Herbert Wechsler who was and is looking for neutral principles, but law professors in their pedagogical and scholarly roles.  But is this performative neutrality merely a function of the usual stakes of law professing and law being relatively low? The presidency of Donald J. Trump certainly raises the stakes of both, and calls for revisiting the role morality of the law professor, on at least two dimensions:

(1) Should we be teaching differently? My desire has always been to maintain as much of my pedagogical neutrality in my first-year constitutional law class as possible.  Other professors are different, revealing their priors and/or their perspectives more often and more vocally.  Should law professors be more willing to reveal their priors in their teaching? Is pretending to stay neutral a form of legitimation of Trump? By simply introducing an action of the Trump Administration, and presenting with a straight face their constitutional arguments defending it, are we legitimating these arguments as “on the wall” in a way that we should not to law students?

(2) Should we be writing differently? So much of legal scholarship is written as if an idea should be evaluated based on its universal and longitudinal merits.  Scholars tend—there are exceptions—not to describe their approach to originalism or living constitutionalism, for instance, as being justified primarily or exclusively because it helps or hurts conservatives or liberals, abortion or gun rights, and so on.  Along those lines, the concerns addressed in scholarship tend (again, there are exceptions) to be less immediate and more longitudinal.  An article is less often about how one case before the Supreme Court now should be decided, but rather more about how the Court should be deciding cases more generally.  The result is that current event proper nouns (e.g. Obama, Trump) are rarely foregrounded in legal scholarship.  Should this be different now, in at least three potential ways: (a) Should a criterion of any argument be whether it helps or hurts the Trump Presidency? Arguments for constraining power tend to wax and wane in the law reviews based on how much law professors like or dislike the president in office.  Should this be made more explicit? The newest idea to constrain power, in other words, is not just evaluated by looking at Federalist 51 but also by mentioning in the text of the article what it means for Trump in 2017.  (b) Is it more acceptable to state the priors of the scholar first because those priors might be under particular threat (“for progressives, this Article is appealing because”)?  (c) Given that basic principles are now being debated and challenged, is it important to state priors regarding basic principles because an argument that used to be universally appealing might now be presumed to be controversial (e.g. “for scholars who believe in the power of courts”)?

Posted by David Fontana on March 15, 2017 at 01:34 PM | Permalink | Comments (23)

Monday, March 13, 2017

Crowding Out Progressive Constitutional Law

The election of Donald J. Trump was devastating for any progressive vision of the Constitution.  With a conservative majority in place after Neil Gorsuch is (almost certainly) confirmed, the losses could mount for decades to come.  It was almost one year ago that Mark Tushnet posted about “defensive crouch” liberal constitutionalism, a crouch featuring “every liberal position asserted nervously.”  My argument in this post is that progressives have gone too far back into that crouch too quickly.  Being in political and/or judicial opposition does not mean one has to only play defense.  Opposition can entail offense too.

Constitutional law is dominated by Court-chasing scholarship, and that tends to be majority-chasing scholarship.  Scholars tend to write for or against a decision or approach adopted by a majority of the Court.  With the rise and rise of the powerful executive branch, scholars now are executive branch-chasing, writing for or against some new assertion of executive power made by the executive branch.  Again, the result is the same: the scholarly frame is what majorities are doing, and the opposition agenda is more focused on critique of majorities and only incidental introduction of alternatives.

Writing about what those in power do is an important thing to do.  Indeed, it might be the most important thing we do right now.  However, the focus on the majority in power is not usually so intense as to crowd out proposals for and consideration affirmative alternatives.  Major jurisprudential transformations are often developed when in the political and legal minority.

Continue reading "Crowding Out Progressive Constitutional Law"

Posted by David Fontana on March 13, 2017 at 03:10 PM | Permalink | Comments (7)