Friday, August 17, 2018

And They Are Back!

It is official.  The 1Ls are in the building.  Looking nervous; excited; ready for battle?!?! 

Yesterday, I was part of our professor panel for 1L orientation.  As people were discussing the difficulties of law school, I remembered something a friend of mine told me while she was the vice-principal of a middle school.  She explained to me that when a student is really learning, they are often uncomfortable.  Growth is challenging and often causes some discomfort, but it is important to lean into the experience.  Discomfort isn’t necessarily something to avoid, because it can be the beginning of an extraordinarily rewarding experience. 

That sentiment, while particularly relevant to students, is just as important, I think, for scholars.  There are easy projects, and there are hard projects.  There are a number of reasons to do both, but I must say the ones I have found the most rewarding were the projects that had me waking up in the middle of the night trying to figure out a piece of the puzzle.   I tend to work on a few projects at a time, which allows me to remain “productive,” while I really mull over the hard stuff.  The hard projects can (and have and will) take years, but when you finally figure it out, boy is it worth the effort. 

Here is to a year full of fun, learning, discomfort, and growth for all involved!

Posted by Veronica Root on August 17, 2018 at 11:07 AM | Permalink | Comments (0)

Thursday, August 16, 2018

Number of FAR Forms in First Distribution Over Time - 2018

The first distribution of the FAR AALS forms came out this week. Here are the number of FAR forms in the first distribution for each year since 2009.

FAR Forms Over Time.20180816

(All information obtained from various blog posts, blog comments, and Facebook postings over the years and not independently verified. If you have more accurate information, please post it in the comments and I will update accordingly.)

First posted August 16, 2018.

Posted by Sarah Lawsky on August 16, 2018 at 12:30 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (19)

Masterpiece Cakeshop redux

Jack Phillips of Masterpiece Cakeshop has filed a federal civil action against the members of the Colorado Civil Rights Commission, challenging the constitutionality of a new threatened enforcement of the state's public-accommodations law. This case arises from his refusal to sell a cake with a blue exterior and pink interior to a lawyer (clearly doing this as a test case) celebrating her birthday and her male-to-female transition. The lawyer complained to the Civil Rights Commission; the Director of the Commission found probable cause to believe a violation occurred (sex and transgender status) and order edthe parties to mediation, but Phillips instead filed suit. Some thoughts after the jump.

Continue reading "Masterpiece Cakeshop redux"

Posted by Howard Wasserman on August 16, 2018 at 11:04 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman | Permalink | Comments (12)

More Angsting about Angsting

So ... I entered a piece in the law review submission free-for-all.  It has caused me to reflect further on this system that generally causes academic jaws to drop in every other discipline when you describe it. Being at this stage of my career (see Further Reflections on the End of Ambition) where placements tend to be a matter of bucket list check-off and pure ego, my heart really does go out to those whose angst is related to getting or retaining a job. I thought "ctr" (the Appointments Chair at a T50 school) offered some wise counsel in the comments, consistent with the data, about not getting too hung up on the relative rankings of the schools in which you place your pieces.

I do not discount the angst.  I recently went through the five stages of law review submission grief.

Denial:  [Imagine thought balloon if this were a cartoon] "Oh wow, I've been called now by the fourth different Very Highly Ranked Flagship Law Review that Has Never Published Anything Written by Anybody Who Has Ever Been on Our Faculty to do a peer review of a submission.  I must be thought of as having scholarly chops well above the station otherwise indicated by the faculty letterhead on which I am obliged to submit my own work."

Bargaining:  "Dear Senior Articles Editor for Very Highly Ranked Flagship Law Review that Has Never Published Anything Written by Anybody Who Has Ever Been on Our Faculty:  I was flattered when you asked me several months ago to be an unpaid peer reviewer for the article submitted by [deleted] and was happy to turn around thoughtful comments in fewer than 24 hours because you were on an expedite deadline.  I did point out at the time the irony of your calling me for a review when all of my submissions to your journal have been rejected within hours, if not minutes, of their submission. Nevertheless, I did do it for you in the appointed time.  As you may recall, you commented on my comments as 'fascinating,' 'insightful,' and 'extremely helpful to our board's consideration.'  I now have a new piece ready for submission, and am willing to give it to you for an exclusive review for two weeks."

Depression:  "Dear Professor:  Thank you for submitting your article to the Very Highly Ranked Flagship Law Review.  Even though I found it fascinating and insightful, I am afraid that we will not be able to consider it for inclusion.  We wish you the best of luck in your placement of the article.  We hope, however, that you consider the Very Highly Ranked Flagship Law Review for future submissions."

Anger:  "Ungrateful little shits."

Acceptance:  American Samoa Journal of Bible Studies and Blockchain Technology.

[I promise more serious advice in a future post.]

Posted by Jeff Lipshaw on August 16, 2018 at 10:45 AM in Getting a Job on the Law Teaching Market, Life of Law Schools, Lipshaw, Teaching Law | Permalink | Comments (2)

Wednesday, August 15, 2018

Hiring: University of Utah: Professor and Director of Clinical Programs

The University of Utah S.J. Quinney College of Law is seeking a visionary leader to serve as Professor and Director of Clinical Programs beginning in the academic year 2019-2020. This individual will join the College as a full-time tenure-line or career-line faculty member. Rank and compensation will be commensurate with qualifications and experience. Tenure-line candidates would be expected to satisfy the same standards for research, teaching, and service as other tenure-line faculty members. Relevant qualifications may include a record of success or potential as a clinical director, clinical instructor, or law professor, excellence in academics or practice, or strong scholarly distinction or promise in any relevant field.

Continue reading "Hiring: University of Utah: Professor and Director of Clinical Programs"

Posted by Howard Wasserman on August 15, 2018 at 08:31 AM in Teaching Law | Permalink | Comments (0)

Tuesday, August 14, 2018

An interesting pedagogical observation

I have an an opportunity for an interesting pedagogical experiment this semester. My 15-person Fed Courts class has 4 men and 11 women, an unusual imbalance even for a school like FIU that has more women than men. I am curious to see whether men nevertheless dominate the conversation. The four men seemed quicker to volunteer during the first class. It will be interesting to see how it plays out over the semester. I also must be conscious of waiting for hands to go up and ensuring some balance between raw numbers and hesitancy. There are panels in the class, so that will mix things up somewhat. Still, it will be interesting to watch a strange balance play out.

Posted by Howard Wasserman on August 14, 2018 at 10:40 AM in Howard Wasserman, Teaching Law | Permalink | Comments (3)

JOTWELL: Vladeck on Caruco on CAAF as court of last resort

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing Rodrigo M. Caruco (Maj., USAF), In Order to Form a More Perfect Court: Quantitative Measure of the Military's Highest Court's Success as a Court of Last Resort (Vt. L. Rev.), which considers how the Court of Appeals for the Armed Forces operates as a court of last resort and what can be done to improve its functioning.

Posted by Howard Wasserman on August 14, 2018 at 10:28 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Monday, August 13, 2018

Notre Dame Law School hiring a Director of Trial Advocacy Program

More info here.  Take a look and/or spread the word!

Posted by Rick Garnett on August 13, 2018 at 03:28 PM | Permalink | Comments (0)

Submission Angsting and the Availability Heuristic

Slide1I have not participated in the bi-annual feeding frenzy known as the student-edited law review submission season in several years.  I may this year, plus I'm blogging, so it's hard not to read the comments on "submission angsting" post (NB: autocorrect kept changing it to "submission ingesting" which I think is clever.)

This is a curmudgeonly but data-based contribution in aid of the reduction of angst. I vaguely recall posting something like this eleven or twelve years ago, no doubt when many young law professors or aspiring law professors were still in high school.  I direct it to those of you readers angsting significantly between, say, placements in law reviews at school ranked 65 versus school ranked 75.  Or some such similar consideration.

Paul Caron over at Tax Prof Blog does us the community service every year of re-ranking the schools by their "peer assessment" number, which ranges from 1.1 at the low end to 4.8 at the top.  I am assuming for this exercise that the peer assessment is meaningful even though I have my doubts.

My doubts stem largely from the likelihood that so much of this is determined by the availability heuristic, the term coined by Tversky and Kahneman for a mental strategy in which people make judgments about probability, frequency, or extremity based on the ease with which and the amount of information that can be brought to mind.  Hence, we bias our judgments based on available information.

Having said that, here goes.  One of the most available pieces of information is the linear ranking in US News.  It's really available.  It's available to the people who send in their votes for peer ranking and it's available to authors trying to place their articles.  What is not so available (thank you Paul) because you have to pay to get it isn't just the re-ranking by peer assessment but the actual peer score.

The histogram above shows the peer assessment scores from the 2019 US News law school ranking by the number of schools at each peer score from 1.1 to 4.8.  You can draw your own conclusions, but I think trying to thin-slice differences between scores close to each other is kind of silly.  It's pretty clear that whatever peer assessment means, the top 17 are in their own world.  As between 18 and 50, yeah, maybe there's difference between 18 and 50, but I wouldn't get too worked about about the difference between 30 and 40.  That effect is even more dramatic in the 50-100 range.  The point is that the rankings are linear, but the actual data sits on a curve.  So the differences between linear rankings mean different things at different levels.  (I'm pretty sure re-grouping the data in other significant categories like entering LSAT score would yield similar results.)

It's why I find it, what?, sad? odd? unthoughtful? when schools get lauded or dinged for moving eight or ten places one way or another between about 50 and 125.  Yes, the data are meaningful when you jump from 105 to 18 or vice versa.  But not when you "sank" from 50 to 62.

Okay, that's it.  Back to our regularly scheduled blogging.

UPDATE:  I'm going to close the comments here.  If this merits any discussion, it probably ought to occur at the angsting post.  

Posted by Jeff Lipshaw on August 13, 2018 at 03:12 PM in Getting a Job on the Law Teaching Market, Life of Law Schools, Lipshaw | Permalink | Comments (0)

Sunday, August 12, 2018

Every snowflake is different

How is this complaint about NFL player protests from the head of the Broward County PBA different from the complaints from liberals (on- and off-campus) who are derided as "snowflakes" for objecting to Richard Spencer, Milo Yiannapoulos, Chick Fil-A, et al. The PBA is calling on members to boycott and not do business with the team. It is demanding that the Dolphins no-platform the players, calling on an entity to deny a speaker the opportunity to present his message. And the complaint is that the speaker's message is a "slap in the face" to the complainer, who is offended by the speech. There is no practical difference between the two situations.

Posted by Howard Wasserman on August 12, 2018 at 02:44 PM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (8)

Further Reflections on the End of Ambition

6a00d8341c6a7953ef022ad3a3f7af200bAlmost exactly three years ago, on the last day of my guest-blogging month, I posted a piece entitled The End of Ambition.  Sometimes I go back to what I wrote long ago and cringe (I was tempted to link the piece that most makes me cringe, but nah) but this one I like.  It started as a contemplation of what it's like to face the end of your career and turned into a broader assessment of what it means to grow up, to be an adult (something we've recently explored in connection with law students).

Well, here we go again, except now I'm 1000000 (Aside #1: as my friend Raffael Cavallaro said, "there are 10 kinds of people in the world, those who understand binary and those who don't") and looking pretty good for 1000000. (Aside #2: if horses ruled the world, "digital" really would mean "binary".)  But when you hit 1000001, you hit the normal age for filing for Social Security, and at 10000110 you have maxed out on the value of deferring your benefits.  (For those of you who have many years yet before this becomes an issue, it involves the uncomfortable evaluation of how long past 10000110 you and/or your surviving partner think you will make it.  The longer the period, the more sense it makes to defer.)

What prompted the re-reflection is being on this blog extensively at the same time the "submission angsting" and "hiring committee" posts have gone up, and my recent pontifications (sparked by Kaci Bishop's article) on fear and failure.  What I want to do here, from the perspective of one who has achieve the ripe old age of 10 to the 110th power, is link fear and failure to ambition.  My thesis here is that there is a continuum of ambition from the macro to the micro, and our brains don't do a great job of making that clear, hence causing our nervous system to spit out fear of failure juice in many of the wrong places. 

Continue reading "Further Reflections on the End of Ambition"

Posted by Jeff Lipshaw on August 12, 2018 at 10:56 AM in Blogging, Deliberation and voices, Lipshaw | Permalink | Comments (1)

Saturday, August 11, 2018

Flag protests and public employees

The assumption among supporters of protesting NFL players and critics of the NFL is that the league is trampling on the players' free-speech rights, that the players have a free-speech right to protest the anthem, save for the absence of state action. But the assumption is that if there were state action, the First Amendment would protect the players. Let's push on that question, with a hypothetical to which I genuinely do not know the answer:

The head of a government agency or office (it does not matter what level of government or what office) has decreed that the workday shall begin every day at 8:30 a.m. by everyone in the office standing before the flag with hands over hearts, recite the Pledge of Allegiance, and sing America, the Beautiful. The director explains that this symbolic reaffirmation of America reminds public officers of their obligations to the Constitution and to the public they serve in performing their jobs. Must an objecting employer, who believes that America's criminal-justice policies are discriminatory, participate in this ritual?

There are several doctrinal paths competing for attention here.

Continue reading "Flag protests and public employees"

Posted by Howard Wasserman on August 11, 2018 at 11:41 AM in First Amendment, Howard Wasserman, Law and Politics, Sports | Permalink | Comments (3)

What SEALS Looks Like for a Compliance Scholar

The past three days were a whirlwind of fun, intellectual engagement, productive conversations, getting caught in a monsoon with friends while in business casual attire, and more at the SEALS annual meeting.

The first time I attended SEALS, I was invited to be in a discussion group on the topic of compliance.  Since then, if I have attended SEALS it has been most often to participate in a group discussing various white collars matters.  This year, however, my white collar friends focused on insider trading, which isn’t part of my current research agenda, so I thought I would forego the conference.  But I received some other interesting invitations, and the conference was fantastic as usual.

On Wednesday, I participated in a Sexual Harassment Law discussion group.  I’ve been testing out some methods for facilitating interdisciplinary work (more on that later), and the topic my Notre Dame colleagues and I have been focusing on is sexual harassment within organizations.  This discussion group gave me an opportunity to discuss the two potential theses we have identified, and I received excellent suggestions from the group both during and after the session.  On Thursday, I participated in a discussion group focused on The Ethics of Legal Education.  This was definitely more of an opportunity to learn, as my own contribution was quite nominal, but there is very good work being done by my professional responsibility colleagues.  I’m looking forward to reading some new books on the subject.  On Friday, I participated in a Corporate Governance discussion group where I presented a paper I’m currently working on, and again I received helpful comments.  The real benefit, however, of the discussion group model is the opportunity to hear what others are working on.  It allows you to think about new ideas and expand your knowledge base.  I have really come to love the model.

When I told someone what discussion groups I was participating in, I realized from his reaction that my mix of groups might look odd to some.  But for me, this is what my compliance research does.  It allows me to straddle a few scholarly areas in an effort to focus on the more precise research question of identifying mechanisms that will lead to the creation of inclusive, compliant, and ethical environments within organizations.  

Posted by Veronica Root on August 11, 2018 at 08:16 AM | Permalink | Comments (0)

Now returning: NFL games, player protests, and presidential tweets

As if on cue, Thursday's NFL preseason games included several players kneeling, standing with a raised fist, or remaining in the locker room during the national anthem. The President responded on Friday with a tweet 1) criticizing the players for being unable to define what they are outraged about, 2) urging them"be happy, be cool" because they make millions doing what they love, 3) urging them to find another way to protest, and 4) commanding "stand proudly or be suspended without pay." (capitalization, etc., corrected).

The first point is untrue because the small handful of players who protest have been very clear and explicit that they are protesting police violence and the criminal-justice system. As this piece points out, the President recognized that in a June statement asking players to talk to him about people they believe were treated unfairly by the criminal justice system so he could pardon them. I derided that statement as incoherent; I should have added not serious.

The second point skates close to the line of saying that rich people should not be allowed to complain. This is ironic coming from a rich man who ascended to the presidency by complaining. So what is it about these wealthy people that should cause them to lose the right to complain? I cannot put my finger on it.

The fourth point brings us back to that state action argument: When a public official continually talks about a specific private dispute and urges a private actor to take some action, do we get to some point where that encouragement becomes overwhelming or coercive? Is it a question of quantity and specificity--how often and how specific? Does it change when it is the President doing the urging? (By the way, hat tip to Rishi Batra (Texas Tech) for suggesting that specificity might matter during our SEALS discussion).

The third point is interesting and touches on something we discussed in the Thursday panel. During pregame warm-ups on Thursday, several Eagles players  wore t-shirts displaying various statistics about people of color and children in prison, one of the issues about which players have been protesting. Throughout this protest debacle, the NFL has been compared unfavorably with the NBA in terms of support for player protests, although the NBA has and enforces a rule requiring players to be on the court and standing at attention during the anthem. So why is the NBA not criticized, by the press or its players, for doing what the NFL is trying to do? Some of it is the perception of incompetence of NFL Commissioner Roger Goodell and the expressly plantation mentality of some owners.

But one possible reason (H/T to dre cummings of Arkansas-Little Rock for this point) is that NBA players have worn message t-shirts and otherwise expressed themselves during their highly visible pre-game warm-ups.* NBA players have an at-the-game, high-profile, many-people-watching forum to express their political messages, therefore less need to use the anthem as a protest vehicle. NFL warm-ups are not watched in the same way and not as intimate, and players have not tried to take extensive advantage of the alternative forum. Perhaps if they do and can, it will remove pressure on the anthem as a necessary expressive moment.**

[*] Prominent examples include LeBron James and others wearing t-shirts reading "I Can't Breathe." WNBA players have made extensive use of this forum.

[**] Or, the NFL being what it is, the league will shoot itself in the foot by issuing a diktat about players having to wear team gear during all on-field warm-ups.

Posted by Howard Wasserman on August 11, 2018 at 07:52 AM in Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Friday, August 10, 2018

Boardroom scene in "Succession"

A question for the Corp/Bus Orgs folks out there: What did people think of the boardroom scene in Episode 6 of Succession, showing a motion for a vote of no confidence against the CEO* and the rules of order and machinations going before and after it. Worth showing in class as an example of corporate governance and democracy?

[*] Purportedly based on the real-life move against Michael Eisner at Disney.

Posted by Howard Wasserman on August 10, 2018 at 02:53 PM in Culture, Howard Wasserman, Teaching Law | Permalink | Comments (2)

Reminder: Hiring Committees

A reminder that you can announce information regarding your hiring committee either in the comments to the hiring committee post, or by sending me an email directly, at sarah *dot* lawsky *at* law *dot* northwestern *dot* edu. The FAR forms have just been submitted and will be available to committees next week, so this is a good time to contribute information about your hiring committee.

Additionally, I've made two small tweaks on the spreadsheet.

First, there's now a column with links to websites that announce positions or websites that candidates must use to apply. (Enough posts were including this information that it made sense to include this on the spreadsheet as well.)

Second, there are now separate columns indicating whether committees are looking for entry-level candidates or lateral candidates. Providing the information in separate columns makes it easier for a candidate to focus on schools relevant to that particular candidate. Not all schools apply this information, but enough do that it makes sense to include it.

(I've closed comments on this post to drive comments to the hiring committee post.)

Posted by Sarah Lawsky on August 10, 2018 at 11:17 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Failure, It Turns Out, is an Option, and a Pretty Good One Sometimes

Image.ashxIn my last post, I promised to talk about fear not just in the horse but in the rider.  The point, of course, has to do with the relationship of fear to learning. Kaci Bishop's (North Carolina) recently posted article, Framing Failure in the Legal Classroom, provides a nice segue.  (H/T Paul Caron.) Failing, at least in the micro, is learning, and I agree with Professor Bishop's bottom line that academic and practicing lawyers tend not to be very good at connecting the subject and the predicate in those three words.

I have four very vivid memories of the subject of failure - in the abstract - coming up during my education and career.  I'm paraphrasing most of it.  The first was when I watched the moot court competition finals at Stanford.  The esteemed federal Third Circuit judge A. Leon Higginbotham was a member of the panel.  During the post-argument comments, he said something like "a well-prepared advocate can never lose; the client may not win, but the advocate never loses."  The second was when I was interviewing for my first job out of law school (the Dykema firm in Detroit).  One of the litigation partners said to me, "One of the things we have to do here is train people how to lose."  The third was when I left the firm to join the law department at what was then AlliedSignal (now Honeywell). One of the recruiting documents I received was the 1991 annual report, which contained CEO Larry Bossidy's first letter to shareholders (he had just come over from General Electric where he was second in command to Jack Welch).  The piece I remember most was about leadership and it went like this:  "Of course there will always have to be leaders who make the final decision, but the tyrant in the corner office, the guy with all the answers, need not apply here." (This much appealed to me because, in 13+ years at the law firm, both as associate and partner, I rarely felt that I had any answers to much of anything.)  The last was an interview with Steve Kerr, who had just been installed as GE's first Chief Learning Officer, on the tension between failure and Jack Welch's famous (or infamous) "stretch goals": namely, that if you set ambitious goals for people, you can't punish them if they fail to meet them.

At the risk of TMI, I'm sixty-four years old and still have the standard dreams about failure - for example, the one about missing the entire semester of a math class that met early on Tuesday mornings and now having to take the final.  I started as a litigator, and it became clear that it was easier to give Judge Higginbotham's advice (particularly if you were the judge) than to take it.  I took losing very personally.  Looking back, and then considering what I internalized as failure even in the deal-making or business context, I see it as an illusion (or delusion) of one's own ability to control circumstances.  You can't eliminate the fear; you have to learn to cabin it or manage it (and I think that is one of the points Professor Bishop is making).

I had a couple reactions that I'll talk about after the break.

Continue reading "Failure, It Turns Out, is an Option, and a Pretty Good One Sometimes"

Posted by Jeff Lipshaw on August 10, 2018 at 09:09 AM in Article Spotlight, Lipshaw, Teaching Law | Permalink | Comments (1)

Thursday, August 09, 2018

State action and NFL protests

This morning, I participated in a discussion group at SEALS on the NFL protests; other discussants were Todd Clark (UNC Central), dre cummings (Arkansas-Little Rock), Michael Green (Texas A&M), and Arnold Loewy (Texas Tech). For my piece, I threw out some arguments under which the NFL or its teams could be deemed to act under color of state law and thus become subject to First Amendment limitations. I do not believe the arguments are especially strong, but I flesh them out after the jump. I consider two circumstances: 1) the current one, in which the NFL is seeking to stop players from protesting. and 2) an Indiana proposal that would require teams to provide refunds to fans offended by players kneeling at Colts game (this was introduced in December 2017 and nothing has been done, so I doubt this remains a live possibility).

Continue reading "State action and NFL protests"

Posted by Howard Wasserman on August 9, 2018 at 11:39 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (10)