Thursday, August 25, 2016

More on the University Chicago letter

A few additional points to Rick's post, on the letter from the University of Chicago on trigger warnings and safe spaces.

First, as I said in a comment on Rick's post, I always have understood trigger warnings as featuring an opt-out on top of the warning: "This is what this material is like and if you need to absent yourself from this material, you may." Consider this example of a content warning, from Angus Johnston, a history prof CUNY who took to Twitter to criticize UC:

Continue reading "More on the University Chicago letter"

Posted by Howard Wasserman on August 25, 2016 at 09:46 PM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

The University of Chicago letter regarding "free exchange of ideas"

You can see here (and all over the interwebs) a letter from the Dean of Students at the University of Chicago to that university's incoming first-year students.  I wonder, have any law schools sent similar letters (or, letters covering the same issues) to incoming first-year law students?  Should they?  If so, what should they say?

For my own part, I do talk to students in Criminal Law, at several points during the semester, about the fact that the cases and materials we'll be reading do sometimes involve very difficult facts and that the materials and the questions they raise could very well be, for a variety of reasons, painful to read.  I urge respectful conversation and argument, but also invite students to speak with me if they have any concerns about talking in class about particular materials or about attending class on a particular day.  This kind of thing doesn't strike me as a "trigger warning," but maybe I'm misunderstanding what is meant, in the Chicago letter or generally, by that term.

Posted by Rick Garnett on August 25, 2016 at 04:22 PM in Rick Garnett | Permalink | Comments (3)

A Clearinghouse for Questions, 2016-2017

In this comment thread to this post, you can ask questions about the law teaching market, and professors or others can weigh in.

Both questions and answers can be anonymous, but I will delete pure nastiness, irrelevance, and misinformation. If you see something that you know to be wrong, please feel free to let me know via email, sarah*dot*lawsky*at*law*dot*northwestern*dot*edu.

We have a different thread in which candidates or professors can report callbacks, offers, and acceptances. That thread should be used only for information relevant to hiring, not for questions or comments on the process. This is the thread for questions.

You may want to take a look at the many questions and answers in the threads from 2014-2015 and 2015-2016.

Here is a link to the last page of comments.

Originally posted August 25, 2016.

Posted by Sarah Lawsky on August 25, 2016 at 09:00 AM | Permalink | Comments (5)

Law School Hiring, 2016-2017, Thread One

Those on the market are invited to leave comments on this thread regarding whether they have received:

(a) a first round interview at a school (including the subject areas the school mentioned, if any, as being of particular interest, and whether the interview offer was accepted);

(b)  a callback from a law school and/or accepted it; or

(c) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.

Law professors may also choose to provide information that is relevant to the entry-level market.  

Four miscellaneous things:

1. If you don't want your contact information displayed, enter anon@anon.edu or something like that as an email address.

2. There is a  separate thread, "A Clearinghouse for Questions," for general questions or comments about the teaching market. Please do not use the thread below for general questions or comments. (Such comments will be deleted, not out of hostility or in a judgy way, just to keep this thread focused.)

3. There's quite a cache of materials relevant to the law job market under the archive categories Getting a Job on the Law Teaching Market and Entry Level Hiring Report.

4. Finally, in each of the previous years, someone who is on the market has volunteered to aggregate the information on a spreadsheet. If you would like to volunteer, please contact me directly at sarah *dot* lawsky *at* law *dot* northwestern *dot* edu, and I will get you set up.

Here is a link to the last page of comments.

Originally posted August 25, 2016.

Posted by Sarah Lawsky on August 25, 2016 at 09:00 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (6)

Wednesday, August 24, 2016

Sound Symbolism, Trademarks, and Consumer Experience

A recent tweet from Ed Timberlake brought a new study to my attention. According to the authors of the study, beer tastes better when paired with the right music. (It also works with chocolate, among other foods). Possible applications include pairing a six-pack of beer with an mp3 for a curated listening experience.

This connection between hearing and taste reminded me of another line of research I recently mined for my article, Are Trademarks Ever Fanciful? (105 Georgetown L.J., forthcoming 2017). Trademark law presumes that when a word is coined for use as a trademark (like XEROX for photocopiers or SWIFFER for dust mops) the word can't carry any product signifying meaning, so it must be inherently source signifying. That presumption about coined words is not entirely true. In fact, there is a significant body of research into sound symbolism that indicates many sounds carry meaning independent of the words to which they belong. This is true for consonants and vowels, and true even if the word at issue is a nonsense word (like XEROX or SWIFFER).

Courts haven't realized that sounds convey meaning in this way. This is unsurprising because most consumers don't realize it either. But marketers know, and they spend a significant amount of time trying to craft marks that take advantage of sound symbols. In light of this research, the presumption that a fanciful (coined) mark is entitled to instant and broad protection may require some rethinking.

I'm excited to hear your observations about sound symbols and trademarks, or your favorite food/beverage and music pairings, in the comments below.

Posted by Jake Linford on August 24, 2016 at 11:35 AM in Food and Drink, Intellectual Property, Music, Science | Permalink | Comments (4)

Hear, hear--Blogging Edition

An argument for more blogs and blogging and the limits of Twitter.

Update: One more on where blogs have gone over their fifteen years of life.

Posted by Howard Wasserman on August 24, 2016 at 09:31 AM in Blogging, Howard Wasserman | Permalink | Comments (0)

Tuesday, August 23, 2016

Inside the agency class action

A quick flag for a new article from Michael Sant’Ambrogio (Michigan State) & past-guest Adam Zimmerman (Loyola-LA), Inside the Agency Class Action. This piece builds on some posts Adam wrote here, as well as some reports by the Administrative Conference of the US that Sergio Campos wrote about for JOTWELL.

Posted by Howard Wasserman on August 23, 2016 at 04:28 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

University of Alabama School of Law: Hiring Notices

We have several potential openings at the University of Alabama School of Law this year, in both the "doctrinal" and "clinical" areas, and my colleagues have asked me to post notices for them. Here goes:

1) THE UNIVERSITY OF ALABAMA SCHOOL OF LAW seeks to fill entry-level/junior-lateral tenure-track positions for the 2017-2018 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship; junior-lateral candidates should have an established record of excellent teaching and distinguished scholarship. Although positions are not necessarily limited by subject, applications from those who study and teach commercial law (including contracts and sales) or torts (including products liability) are especially welcome; business law, family law, and insurance law are also areas of interest. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods (including quantitative or qualitative empiricism, formal mode ling, or historical or philosophical analysis). The University of Alabama embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community. Salary, benefits, and research support will be nationally competitive. All applications are confidential to the extent permitted by state and federal law, and interested applicants should apply at facultyjobs.ua.edu; the positions remain open until filled. Questions should be directed to Professor Heather Elliott, Chair of the Faculty Appointments Committee (facappts@law.ua.edu). The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, age, genetic information, disability, or protected veteran status, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under federal law from discrimination on several bases. Follow this link to find out more: “EEO is the Law” www1.eeoc.gov/employers/upload/eeoc_self_print_poster.pdf.      

2) Assistant/Associate Professor--Director Elder Law Clinic:

The University of Alabama seeks applicants for the position of Director for its Elder Law Clinic. The Director oversees and/or conducts all phases of legal advocacy for clinic clients, teaches and supervises clinic students, and manages law clinic staff. The position is for an appointment as assistant or associate professor of clinical legal instruction, with opportunity for promotion and security of position. MINIMUM QUALIFICATIONS: a J.D. degree from an ABA accredited law school, a distinguished academic record, and experience as a clinical teacher or practicing lawyer. Candidates must be licensed to practice law in Alabama or become licensed no later that one year after accepting the position. We seek applications from entry-level and lateral candidates with demonstrated potential for outstanding law practice, clinical education and scholarly achievement.    SALARY and RANK: will be commensurate with experience. Apply  online at http://facultyjobs.ua.edu
 
The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, age, genetic information, disability, or protected veteran status, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under federal law from discrimination on several bases. Follow this link to find out more:http://www1.eeoc.gov/employers/upload/eeoc_self_print_poster.pdf
 
Requests for reasonable accommodation during the application/interview process should be made to Associate Dean Thomas Ksobiech at (205) 348-4509 or tksobiech@law.ua.edu. The position will remain open until filled. Please refer questions about the hiring process to Professor Jenny Carroll, Chair of the Clinical Appointments Committee for the 2016-2017 academic year, at ClinicSearch@law.ua.edu.
 
3) Assistant/Associate Professor--Director Domestic Violence Law Clinic:
 
The University of Alabama seeks applicants for the position of Director for its Domestic Violence Law Clinic. The Director oversees and/or conducts all phases of legal advocacy for clinic clients, teaches and supervises clinic students, and manages law clinic staff. The position is for an appointment as assistant or associate professor of clinical legal instruction, with opportunity for promotion and security of position. MINIMUM QUALIFICATIONS: a J.D. degree from an ABA accredited law school, a distinguished academic record, and experience as a clinical teacher or practicing lawyer. Candidates must be licensed to practice law in Alabama or become licensed no later that one year after accepting the position. We seek applications from entry-level and lateral candidates with demonstrated potential for outstanding law practice, clinical education and scholarly achievement.    SALARY and RANK: will be commensurate with experience. Apply  online at http://facultyjobs.ua.edu
 
The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, age, genetic information, disability, or protected veteran status, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under federal law from discrimination on several bases. Follow this link to find out more:http://www1.eeoc.gov/employers/upload/eeoc_self_print_poster.pdf
 
Requests for reasonable accommodation during the application/interview process should be made to Associate Dean Thomas Ksobiech at (205) 348-4509 or tksobiech@law.ua.edu. The position will remain open until filled. Please refer questions about the hiring process to Professor Jenny Carroll, Chair of the Clinical Appointments Committee for the 2016-2017 academic year, at ClinicSearch@law.ua.edu.
 
Comments are closed but contact info can be found in the notices above. 

Posted by Paul Horwitz on August 23, 2016 at 04:12 PM in Paul Horwitz | Permalink | Comments (0)

The Night Of (Updated)

I have been enjoying HBO's The Night Of, despite my general distaste for legal fiction. The acting and writing have been great and the show has presented a unique tone.

Some comments (with spoilers, for those of you who are not caught up) after the jump.

Continue reading "The Night Of (Updated)"

Posted by Howard Wasserman on August 23, 2016 at 12:03 PM in Culture, Howard Wasserman | Permalink | Comments (1)

Monday, August 22, 2016

Research Assistants and Comment Letters

In the best case scenario, both faculty and students benefit from research assistant positions.  From the faculty perspective, I want to take on a research assistant if it will allow me to accomplish more than I would alone.  If I could do the work by myself in less time, an assistant may be more of a burden than a benefit.  From the student's perspective, the relationship also needs to yield some benefit, perhaps a letter of recommendation or a more polished writing sample than they would have produced otherwise.  Finding the right assistant and mix of tasks to delegate makes the process work.

Putting a research assistant in charge of drafting a short comment letter under their own name on pending agency rule-making has worked well for me and allowed the assistant to get some genuine ownership over a project.  Because the comment letter will be publicly filed, the assistant has a strong interest in producing quality work and researching the area.  It also creates a unique writing sample that gives the student something to talk about when searching for a position.  On some occasions, students have reported that their interviews focused around their comment letter.  It may also help get students in the door by allowing them to demonstrate genuine interest in an area.  After talking about how we've used comment letters in the past at the Transactional Law Conference, Nicole Iannarone and I put together a small piece talking about our experiences working with students on comment letters.  Of course, it's not always roses.  If an assistant isn't up to the task, you've got to spike the project to prevent them from filing a bad letter.

Supporting a research assistant through comment letter process yields some benefits for faculty as well.  It helps to set the tone for what good work should look like.  The assistant may also work harder for you on other projects that don't advance their career in the same way because you've taken some time to invest in a project that helps them. Plus, it keeps your eye on the other comment letters being filed and may give you insights you wouldn't have had otherwise.  When you ask them to look at related issues to support your research, the project has built some foundation to allow them to do better work.  On the whole, I've had good experiences with it.  Are there other projects that work well to generate the same kind of engagement?

 

 

Posted by Benjamin P. Edwards on August 22, 2016 at 01:13 PM | Permalink | Comments (2)

Saturday, August 20, 2016

Baseline Hell and the Religion Clauses

Perhaps because religions have a special interest in the diabolical, the fires of baseline hell seem to burn particularly hot in the context the Religion clauses. As I noted years ago, "baseline hell" refers to the futility of arguing about whether some burden is the imposition of a "penalty" or the withholding of a special "benefit" in the absence of a theory of distributive justice. As a salient recent example of baseline hell, one need look no further than the recent debates over whether employers' immunities' from the so-called Contraception Mandate impose a "harm" on employees or protect employers from the constitutional "harm" of being dragooned into violating their conscience. The answer, of course, is "both or either, depending on how one defines the relevant baselines." The contestants nevertheless draw on ideas of "harm"" and "coercion" as if these bare words will settle their fight absent a consensus about how to measure baselines -- a consensus in short supply, especially in the weird twilight zone between the public and private that is the "private" workplace.

Consider, for instance, Mark Gedicks' and Rebecca van Tassell's argument that, because RFRA as construed by Hobby Lobby deprives female employees of a statutory benefit, it "harms" them and thereby constitutes an unconstitutional accommodation of regulation. Gedicks' and Van Tassell's argument turns on a particular choice of status quo baselines under which loss of a statutory right that existed before judicial enforcement of the religious accommodation constitutes a "harm" forbidden by the Establishment clause. One does not need to be an ultra-Crit to see that status quo baselines are not the only criterion available by which to assess whether a loss is a "harm." Why not instead use a predictive baseline that asks whether the entitlement conditioned by a religious accommodation would exist at all absent that accommodation? (Einer Elhauge has a nice recent formulation of predictive baselines that one could use to fine-tune the analysis). Such an inquiry would require one to ask whether the Mikulski Amendment that forms the statutory basis for ACA's Contraception Mandate would have been enacted had it carved out an exception to RFRA for contraception and other medical procedures that might offend employers' religious scruples. Given that the Mikulski Amendment was silent about contraception and RFRA, it is difficult to say for sure, but the firestorm of controversy over the Stupak-Pitt Amendment suggests that critical Blue Dog votes might have jumped ship had ACA expressly attempted to waive RFRA entitlements, dooming the entire legislation. (Indeed, the prospect of such ship-jumping might explain the Mikulski Amendment's coyness about mentioning contraception and focusing instead on "preventative tests" like mammograms).

There is a perfectly plausible argument, in short, that, far from depriving female employees of an employment benefit, the preservation of RFRA's protection for employers was the necessary price for the ACA's passage. If so, where's the "harm" from a limit on a statutory right that exist only because that limit was not repealed? I do not endorse either predictive baselines in general or their particular application to ACA and RFRA. I note only that trying to distinguish between permissible and forbidden accommodations by invoking notions like "harm" invites a Critical response for which I see no easy rejoinder. As I argue elsewhere, the same complaints can be registered against the Eisgruber-Sager "Equal Liberty" baseline (defining religious entitlements by what "relevantly similar" non-religious actors receive) or the Laycock "Substantive Neutrality" baseline (defining religious neutrality by whether a religious exemption increases the attractiveness of the religion to non-believers more than the absence of that exemption deters religious practice).

Welcome to Baseline Hell! I would suggest that route to the exit door is some form of decentralization that sends these baseline fights to subnational governments -- but that's a subject for a different post.

Posted by Rick Hills on August 20, 2016 at 03:57 AM | Permalink | Comments (21)

Friday, August 19, 2016

More Retirement Plan Lawsuits

An increasing number of universities may soon be facing lawsuits alleging retirement plan mismanagement. Since my last post, the list of universities currently facing lawsuits has grown to include Columbia, Cornell, Northwestern University, Yale, M.I.T., NYU, Emory, Johns Hopkins, Vanderbilt, the University of Pennsylvania, Duke, and the University of Southern California.  The lawsuits often allege that plans contained overpriced options that consistently performed below benchmarks.  

Some faculty have even started reaching out to Jerry Schlicter, the attorney behind the suits, for assistance reviewing their retirement plans.  One interesting contention is that universities that provide faculty with the option to select between different retirement plan providers may breach their duties by not consolidating and using the larger asset pool to negotiate lower fees:   

Some suits also allege that universities cost employees by using multiple companies as retirement plan providers, or record keepers. An institution can negotiate lower fees by consolidating to one record keeper, increasing its bargaining power, the suits argue.

From a practical perspective, having multiple 403(b) plan providers or record keepers unlikely to yield any worthwhile benefit.  It also seems that giving more "choices" in this context may drive increased costs for all faculty.  

Posted by Benjamin P. Edwards on August 19, 2016 at 12:09 PM | Permalink | Comments (0)

On reaching "adulthood" in law teaching

Our new first-years are being "oriented" today, and it hit me that this is the 18th time that's happened since I started law teaching.  So, I guess that means I get to vote, or get drafted, or rent a car (but not drink) in law-teaching land.  (It also hit me that I've been teaching longer than some of the new undergraduates who are moving in this weekend have been alive, but that's too much to take in . . ..)  I'm not sure what this milestone means with respect to, for example, the conversation about what students should call professors (I'm pulling for "eminencia"!) -- but I'm pretty sure it means that all "Seinfeld" references (and, who are we kidding?, "Sopranos" references too) have to be shelved.

Have a great semester, everyone!

Posted by Rick Garnett on August 19, 2016 at 10:08 AM in Rick Garnett | Permalink | Comments (5)

Thursday, August 18, 2016

Number of FAR Forms in First Distribution Over Time - 2016

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.20160818

(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.)

Edited 8/18/16, 10:06p, to correct number to 382 forms.

Posted by Sarah Lawsky on August 18, 2016 at 01:09 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (22)

Advice (and Myths) for 1Ls

I was recently asked to give the faculty welcome to our new 1L students at the University of Utah. I used my time to give them some general advice and perspective about law school. I made them laugh a little, hopefully calmed their nerves, and none of them walked out. So I consider it a success.

If I had had more time, I would have shared some more specific advice that I don’t think is shared very often. I think often law students approach other law students for advice. That is great, but why not us, Prawfs? After all we have not only gone through law school (and done well there), but we have interacted with law students every semester and watched what works and what doesn’t.

So below I share some “myths” of 1L year that I think are commonly heard but misguided, intermixed with some advice.

Law School Myths:

  1. Brief every case for every class carefully for the entire first semester or year.

I disagree. I think briefing cases may be helpful for the first few weeks of law school in understanding how to read a case. But in law school—just like in undergrad—preparing well for class is about listening to the questions your professor asks and being prepared with those answers. Different professors focus on different things in class and it is best to read and try to understand the material and then try to learn what your professor is most interested in when he or she calls on you in class. Rather than spending a lot of time perfecting the reading each day, spend time at the end of each week trying to figure out what legal principles came out of the week and practice applying them.

  1. Join every student group and a journal and moot court and trial advocacy (the more the better) and stick with them throughout law school.

Both of these are really terrible pieces of advice. I think student leadership, journals, moot court, and trial advocacy can all be really great experiences in law school. In fact, some of the best. But I see way too many students becoming over-extended and trying to do ALL of the above. Somewhere they learned that for instance if you do one year of trial advocacy, and then focus on law review for the rest of law school, that that means you are a quitter. I disagree again. I think employers are not the least bit disappointed to see a law student who is focused. It is great to just excel at one thing in law school—whether it be law review, moot court or trial advocacy. The key with these extra activities is the commitment and excellence—so quality, not quantity, is most important.

  1. Study, study, study all day, e’ry day.

Really bad and unsustainable advice. The law semester is around 4 months long. If you are maintaining a “study all day until night ” attitude for this entire time, you will certainly burn out for the time it all really matters. One thing that law students forget is that you have a few grades in law school and usually they come with your final exam (though some professors will have a midterm or a couple papers). The majority of your grade though, will typically come with your final exam, so why not keep a regular study routine through the semester (which I think should include some weekend outline time—maybe a couple of hours) and then step it up during the last few weeks before finals? And yes, during the last three weeks before finals, I think it is stupid not to study, study, study, all day, e’ry day. This is the period where I am really confused when my law students plan weekend trips, take the day to ski or plan student parties. Nope. If you had saved some stamina you should have gotten that fun stuff over with early in the semester and freed your social calendar for studying the last 3-4 weeks of the semester.

  1. Take all of the classes you think sound interesting.

I got this advice and took it to the bank. Very bad idea. Instead of taking some really important bar classes (evidence, criminal procedure, securities, wills and trusts), I chose to take the classes that interested me during law school. I really enjoyed law school and had a great time but I had huge gaps in my knowledge when it came to taking the bar and even with my pro bono work after the bar. The “core” law school classes are core for a reason. Look at the list your law school provides you and try to take at least some of those classes. Honestly, if you barely squeaked into law school and have a low LSAT score (not that anyone else knows that now), I would take as many of the bar classes as you can. You will need every advantage you can get to pass the bar.

  1. Find the easiest professors and take all of their classes

I don’t think this is advice anyone actually tells law students (at least not publicly) but I think they often do it anyway. It is a bad idea. Take classes that challenge you. Take as many writing or drafting classes as you can. Learn corporate finance and intellectual property law and securities regulations. You are paying a lot of money to get a professional degree, which indicates that you have some important skills. Why sell yourself short? Be wise in your selection of non-core classes.

As usual, I would love to hear your thoughts. Do you agree that these are myths? Any other myths or advice for 1Ls?

Posted by Shima Baradaran Baughman on August 18, 2016 at 12:17 PM | Permalink | Comments (6)

Wednesday, August 17, 2016

JOTWELL: Steinberg on lawyers and strategic expertise

The new Courts Law essay comes from guest contributor Jessica Steinberg (George Washington), reviewing Colleen F. Shanahan, Anna E. Carpenter & Alyx Mark, Lawyers, Power, and Strategic Expertise (Denv. L. Rev.) (forthcoming), an empirical study of when and why having counsel matters in civil litigation.

Posted by Howard Wasserman on August 17, 2016 at 04:43 PM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

More sports rules and perverse incentives

Good stories in Slate and NY Mag about the zero-tolerance false-start rules in Olympic track, under which a racer is disqualified if he false-starts. This is the third version of the Olympic rule. Pre-2003, each runner was allowed one false start and was disqualified only on the second. In 2003, the rule was changed to give the entire field one false start, with a DQ imposed on whoever does the second false start. The current rule was enacted in 2010, making this the second Olympic games under that rule; we have seen two DQs this week, although not by any favorites. Usain Bolt wass DQ'd under the rule at the 2011 World Championships, the only Olympic or world championship final he has lost since 2008. French hurdler Wilhem Belocian was DQd earlier this week and was seen falling to the track in tears, but he had qualified seventh out of eight runners.

The 2010 rule change was designed, at least in part, to eliminate perverse incentives. Slower runners would intentionally false start, using up the "freebie" for the field. This forced faster starters and runners to be a bit more cautious, and thus to hesitate just a bit off the blocks, lest they pick up that second false start that would disqualify them. The new rule eliminates the intentional false start by eliminating the benefit, and thus the incentive, for the slower runner to do this.

Continue reading "More sports rules and perverse incentives"

Posted by Howard Wasserman on August 17, 2016 at 04:31 PM in Howard Wasserman, Sports | Permalink | Comments (0)

Tuesday, August 16, 2016

A call to action for civil justice reform

The following is by Linda Sandstrom Simard (Suffolk Law), who was a member of the Civil Justice Improvements Committee discussed in the post. These comments represent her own thoughts and opinions, not those of the Committee.

This summer the Conference of Chief Justices (“CCJ”), an association comprised of the chief justices of all of the state supreme courts, strongly endorsed the Call to Action and Recommendations of the Civil Justice Improvements Committee. Talk of civil justice reform is ubiquitous, but the CCJ endorsement of these Recommendations offers more than a glimmer of hope that key stakeholders in state courts around the country are ready to take serious action. The Report offers a comprehensive view of civil litigation in state courts and concludes that our legal system is too often not living up to the promise of a just, speedy, and inexpensive resolution of civil cases. The Report makes a series of evidence-based recommendations that seek to protect access to justice and restore faith in the civil justice system.  

Following is a brief description of the Report and my thoughts on the likelihood that the Report will engender reform.

Continue reading "A call to action for civil justice reform"

Posted by Howard Wasserman on August 16, 2016 at 06:30 PM in Civil Procedure, Howard Wasserman | Permalink | Comments (1)

What Should Students Call Professors?

A decision that many of us make early on (or sometimes change later) in teaching is what to have students call us: “Professor X,” or our first name, or by some sort of nickname. Or this may organically evolve. I’ve gone from being called Professor Baradaran to most often, “Shima” in the last 6 years, but not by choice. I introduce myself every year in class as “Professor Baughman” pronounce it and sign all of my emails “Prof. B”, but still somehow, I am referred to as “Shima” by a large number of students. I understand that I went from one hard to pronounce last name (Baradaran) to another (Baughman) when I got married, but I don’t think that’s the problem here. I’ve spoken to several colleagues and they have experienced frustration with this nonconsensual first-name calling as well. I believe that students call me by my first name because there is a growing movement by professors to allow students to call them by their first name, both in undergrad and in law school.

I wonder what percentage of law professors encourage or allow students to call them by their first name and whether this is a good move. I tend to think that it is not a good development. Here are a couple reasons why:

  1. Call one professor “Frank”, call them all “Frank.” Some of us prawfs want to keep work life separate from casual life and having a title at work, helps us do that. Some of us feel like we have earned the title of Professor, and feel cool when our students call us that. Others are young (or look young), and the title of Professor may be the only separation they have to distinguish them from their students. Whatever it is, I think that this should be an individual choice that the professor makes. Maybe this can be avoided if professors who like to be called by their first names, warn students that they should not assume that other professors like this and to always ask in advance.
  1. The Classic Slippery Slope Argument. As far as I understand it, some law firms and definitely judicial chambers are places where judges or partners may not like to assume that interns or new associates or clerks treat them casually. I worry that calling professors by their first name in law school, may lead to false expectation that this is how it is in the legal profession. I actually think the legal profession is one of the few remaining professions where there is a sense of formality in our practice of law. We have to address judges by a certain title (or they will correct you at oral argument), we have to carefully include exact language, color, and formatting on briefs or they are rejected, addressing of opposing counsel and often clients often has to do this by their full name and title. And I believe an awkward situation may arise where a student may call his judge by her first name and it may be seen as a sign of disrespect (And unfortunately, serving on the Judicial Clerkship Committee I have heard these horror stories actually happening). Are we communicating these norms to our students? I worry about this given the growing casual nature of law teaching.
  1. Casual Nature of Law School. I have noticed in my time teaching that students are getting more casual at law school every year. Where in my first year of teaching, hardly anyone entered the classroom late, brought snacks to eat during class, or wore sweatpants or pajamas to class, these are now regular occurrences. Students have called me on my cell phone regularly (I’m not sure how they have obtained this number) and two students asked me if I could Skype their study group before one of my finals since they had a few extra questions and email responses just didn’t suffice. I regularly am asked if I can review a student’s 40+ page outline to see if there are any mistakes. These are requests I would never have made in law school even if I was paid a large amount of money. I worry that students have an extremely casual view of their professors and calling them by their first names may be exacerbating what I think is an already bigger issue of casual Millennials and respect.

But, trying to see this from the other side, the argument for having students call prawfs by their first name, I can understand. Prawfs want students to feel comfortable (especially possibly some nervous 1Ls) and feel that being on a first name basis provides that. This is also on trend with law schools having more mixers between students and professors and inviting students over to professors’ homes for social events to allow more natural interaction. For some it may be an equity thing—I call you by your first name to call on you, so you can call me by my first name. Finally, I totally understand the argument that these are professional students who have often worked in the business world and professors don’t need to artificially place themselves in a superior position to them.

Still, though, I believe the arguments against what I see as a new development among prawfs are stronger. What do you all think? Also, do you think this is a bigger problem for female professors? Minorities? Or younger professors? Or is it pretty universal?

Posted by Shima Baradaran Baughman on August 16, 2016 at 04:18 PM | Permalink | Comments (72)

Trinity Lutheran Church v. Pauley and the Case for Decentralizing Religious and Secular Accommodations

As I argue in a book chapter, I am a fan of decentralizing to subnational governments disputes over what I call “RADDs” – that is, “reasonable and deep disagreements.” A RADD is potent and divisive cocktail created by mixing two explosive ingredients – first, a reasonable dispute over a baseline of entitlement and, second, an intense conviction that the dispute touches on one’s identity as a member of an ethnocultural group. I believe that it is prudent to decentralize fights over RADDs because the absence of any common baselines – that is, the absence of a social and legal consensus defining who owns what -- make RADDs simultaneously irresolvable and viciously divisive. Because each side believes that it is playing defense against an invading enemy intent on cultural hegemony, battles over RADDs are treated by contestants as existential threats, inspiring an endless culture war in which the contestants generate acrimony that poisons ordinary politics. To defuse such battles, one can lower the stakes by delegating the resolution of RADDs to subnational governments in a way that allows each side’s reasonable view to prevail in some subnational jurisdictions. Federalism is the Westphalian solution to our Thirty Years (and counting) Culture Wars.

If you share my taste for defusing RADDs with a decentralizing fix, then there is no more important precedent than Locke v. Davey, the SCOTUS’s 2004 precedent that permitted but did not require Washington State to exclude a student seeking a devotional theology degree from receiving funding from the State’s otherwise-inclusive scholarship aid program. Locke is the federalism complement to Zelman v. Simmons-Harris, in which the Court permitted but did not require parents to use otherwise-available state-funded vouchers at religious schools. Both cases expand the scope of states’ power to define what one might call “secular accommodations” – that is, the accommodation of one’s desire not to be forced to contribute one’s tax dollars to the support of someone else’s religion. Zelman allows states to dispense with such accommodations; Locke allows states to provide such accommodations. The Court’s allowing both such approaches could be understood as a meta-accommodation that allows different jurisdictions’ rival views about secular accommodations to co-exist. I suggest that such a meta-accommodation through federalism best shows equal concern and respect for the RADD over whether or not a religious school should be prohibited from receiving, or entitled to receive, state aid. There are equally reasonable legal and political traditions in favor of both positions. Why not let each rule the roost somewhere?

Trinity Lutheran Church v. Pauley, a Free Exercise case to be argued before SCOTUS in the upcoming term, threatens to undo Locke. (With a 4-4 Court, the threat is admittedly weak). At issue in Trinity is Missouri’s state constitutional provision providing that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, section or denomination of religion.” Trinity Lutheran Church runs a school that wants assistance from an otherwise secular and neutral state funding program to re-surface its playground with ground-up tires. That state constitutional limit has been held to bar the aid, singling out a religious institution for a limit on state aid from which secular institutions are free.

Rick Garnett, my co-blogger and friend, would have the Court eat away at Locke by enforcing a nationally uniform rule of neutrality barring Missouri from discriminating against religious institutions in paving playgrounds with tires unless such discrimination is required by the Establishment clause. After the jump, I will argue why I think that this bid to resolve the RADDs with a nationally uniform rule cannot end well for either side.

Continue reading "Trinity Lutheran Church v. Pauley and the Case for Decentralizing Religious and Secular Accommodations"

Posted by Rick Hills on August 16, 2016 at 04:01 AM | Permalink | Comments (21)