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Friday, August 18, 2006

Branding Redux

Apropos of the earlier discussion on law firm branding, the National Law Journal reports that the firm now known as DLA Piper Rudnick Gray Cary "is expected to announce in September that it is taking a new,  shorter name to strengthen its international brand. . . ."

One of the managing partners is a good friend, and I am willing to pass suggestions on to him.   I'm thinking maybe something made up and techno, like Altria (old Philip Morris) or AXA.  Right now, I'm leaning to Intimidex over UniLex.   Wait, wait, how about IntimiLex?

Posted by Jeff Lipshaw on August 18, 2006 at 05:51 AM in Corporate, Lipshaw | Permalink | Comments (2) | TrackBack

Thursday, August 17, 2006

Classroom Simulations and Other Such Animals

I just came back from our end-of-orientation reception – thanks to all the sweet students who kept mistaking me for their new section 1L friend. I wish…What I really am is a very new prawf who has yet a lot to learn about running her classes. For example, with all the debates about whether the Socratic method is effective or not, there is little discussion about the spectrum of alternatives. One notable exception is Denver law professor Roberto Corrada. Roberto teaches labor and employment law and writes among other things about teaching and learning. In the classroom, he is an innovative teacher and he has won awards not only at his law school but nation wide for his creative approach to the instruction of law. In 2000, he was selected as national Carnegie scholar for his active and collaborative learning efforts in his labor law classroom. Roberto is currently working on a book called, Transforming Law Learning: A Prescription for the 21st Century. A month ago, I heard Roberto give a presentation about his labor law class. It sounded wonderful, if you do it right. First day of class, Roberto tells the students that he is their employer and they are to think about whether they want to unionize or not, but they will in any case have to negotiate with him, some way or another, all the terms of the course. The students will have to reach decisions, through their bargaining with him, about anything from the format of the exam, the grading system, attendance, participation, course materials. He then proceeds to act like a typical employer, making their life hard, preventing them from actually organizing using all kinds of anti-labor strategies, and changes the rules on them after they reach an understanding. If they strike, he locks them out, he replaces them with other students---you get the picture – they do it all, and they really learn labor law from it! They have to prepare all the documents, they have to submit their requirements, they have to cite the relevant rules and cases, and when industrial conflict erupts the dean serves as the NLRB decision maker. All of this sounds great in the context of labor law, and labor law as the study of collective bargaining really lends itself well to such grand experiments. In the context of courses in negotiations, simulations seem to me an obvious choice as well. But I am interested in thinking about taking something of this approach, probably on a smaller scale at first, and extending it to other courses. I would love to hear suggestions about similar creative approaches to classroom learning that people have successfully (and perhaps unsuccessfully) used in their areas of teaching.

Posted by Orly Lobel on August 17, 2006 at 09:38 PM | Permalink | Comments (3) | TrackBack

"How Are You?" and Other Questions to Which Short Answers Are Best

The 1Ls are here.  In the spirit of Edward Levi's An Introduction to Legal Reasoning (which I read in the summer of 1976 and did not understand), we need now to reason our way from the base case of what do students and professors call each other verbally to other forms of communication and signaling.

The 1Ls are all wearing name tags, and they are moving from orientation session to orientation session.  (I remember only one assembly in which the then president of the Stanford student body introduced us to the school by saying "you're probably only here because you didn't get into Harvard.")  The faculty, as far as I can tell, are not wearing name tags.  But I am going to a new student mixer sponsored by the SBA at a bar tonight, and I will probably wear a name tag.  Unlike many of my colleagues, there is no danger that I will be mistaken for a typical student, but older people do go back to law school now and then.  So I think the name tag will say:  "Prof. Jeff Lipshaw."   It is possible, however, that two non-verbal signals would give me away.  One, I am wearing the uniform:  tape-striped Polo long-sleeve oxford cloth button-down and khaki chinos WITH tie (albeit the ugly pink flower garden one that my children hate*) .  Two, my name tag will be on my right lapel, not my left, indicating subtly that I am either a member of a power elite or a professional glad-hander (when you wear it this way and extend your right hand to shake hands, the name tag is more easily visible to the other person). 

Students are also e-mailing.  How do you "sign" the e-mail?  I am presently opting for the deliberately ambiguous:  "Best, JML."  (Belle Lettre wrote something about this from the student standpoint, but I cannot find it quickly enough.)

The other issue is how to answer the question "so, where are you visiting from?"  (Ten extra points to anyone who was to ask "Whence are you visiting?" but twenty points taken off for "From whence are you visiting?")  I have concluded that while "Indiana" is a half-truth in at least four or five ways** (but not one regulated by the SEC, or, as far as I know, the AALS), and despite my earlier moralizing to the contrary, it's the best one, socially speaking, unless you really want to know the whole long boring self-indulgent story.  And despite my own self-regard or ability as a raconteur, nobody does.

*Including my daughter Arielle who is a paralegal at a major New York law firm - and this is completely irrelevant to the point, but she called me last night after a gin and tonic (hers, not mine), and I think, if I understood her correctly, wanted me to mention her in the blog - done.

** State or university?  If university, Indianapolis or Bloomington?  If Indianapolis, adjunct or regular faculty?

Posted by Jeff Lipshaw on August 17, 2006 at 03:14 PM in Life of Law Schools, Lipshaw | Permalink | Comments (3) | TrackBack

Avoiding the Textbooker

Now that Paul Horwitz and I have once and for all put to bed how we professors should refer to our students (OK, not really, but the comments to both posts surely brought the debate to a new and unexpected level!), I want to ask my fellow professors-in-arms whether they have ever come face-to-face with the dreaded "textbooker."

Now the textbooker is not a monster, and not even one person, but a series of individuals who form a never-ending parade of people who come to my office at least 3-4 times a semester asking me quite simply: "Do you have any text books you want to sell?"  My answer is invariably no and I want to tell you why that is.

I didn't BUY the darn things.  They were sent to me in unceasing, mass quantities by legal publishers from around the country (I mean who knew that they were that many civil procedure case books on the market?).   My ethical quandary is: How can you accept money for books that you never bought?  The whole thing just strikes me as a tad unethical.   Yet, at the same time, I realize that if I were to sell my books to the textbooker, then my students might have more used books to buy at non-astronomical prices.

So what do I do with the inevitable pile of casebooks, supplements, and treatises that pile up in my office every year?   I  give what I can to our law library so they can stock extra copies on the shelves for students and I recycle the out-of-date, no longer current publications (especially supplements).

What will you do the next time the textbooker comes calling?

Posted by Workplace Prof on August 17, 2006 at 02:34 PM in Life of Law Schools | Permalink | Comments (21) | TrackBack

Butler on Graduation Displays and Race

Over at BlackProf, Paul Butler has a provocative post about his perception that there has been an increase in rambunctious displays from audience members at law school graduations (and, he might have added, from the graduates themselves).  Butler writes: "I have seen these demonstrations from a diverse group of families.  The ostentatious displays have, however, seemed disproportionate[ly high] for African-Americans and Asians."  Butler is not crazy about such displays, although not for racially related reasons (the "loud cheering . . . awakens me from my light nap" -- I suspect profs who have sat through enough graduation ceremonies can relate).  And he is cautious in framing his observation, noting that his perception may be wrong and eschewing any attempt at explanation.  Still, it's an interesting post, with interesting comments so far (and none, so far as I can tell, from the usual BlackProf trolls), and I thought it was worth linking to because, in some sense, it seems related to my discussion about formality vs. informality in addressing law students.

I'll largely take the cowardly, link-without-commenting approach here.  But let me ask a couple of questions, drawn from the comments to Butler's post, without suggesting any answers (or, indeed, without suggesting that mine are the best or only questions one could ask).  Are Butler's observations correct?  Do these displays correlate to race -- or do they actually correlate better to class?  Are they most likely to be expected, and welcomed, if many of the most exuberant families are those who are seeing the first professional graduate in their family or wider community, especially if those individuals overcame significant hurdles to get where they are? 

If the exuberant displays were absolutely untethered from questions of race and we could take that factor out of the equation, would we welcome or deplore them?  Are they a welcome display of joy, or can they shade into a degree of lack of decorum that we may reasonably consider inappropriate?  In terms of my last post, do they bring a welcome outburst of individualism and humanity to a cold formal ceremony?  Or is there a place for expectations that we solemnize at least some occasions, and enforce that sense of solemnity through norms of disapproval?  (Most people would point to, say, a funeral as an occasion that demands some solemnity, but of course not everyone would agree, or at least not all would agree that one size fits all with respect to how we solemnize an occasion, as any good wake or New Orleans funeral would suggest.)  And, as my parenthetical suggests, are there relevant regional differences at work here as well? 

And, with respect to race, is (as a commenter on Prof. Butler's post suggested) the presumption against undue exuberance at these graduation ceremonies a racialized phenomenon?  Does it enforce a "normative decorum" that derives from a white status quo?  Does graduation exuberance, conversely, "usher in a new reality, one of non-white reference and a nominal step towards a presumption of equitable humanity?"  Or does such an observation, in turn, essentialize a particular behavior in terms of race?  Does it ignore an equally long tradition of prizing highly mannered norms of public dignity and formality in the African-American and other communities?

As I said, I have no answers.  I am not unsympathetic to those who would like to see applause largely held till the end, inasmuch as these ceremonies are already long and it's nice if everyone gets an exuberant round of applause.  At the same time, I also find intuitively attractive the commenter who writes that he finds such displays "far from tawdry and nothing short of beautiful. Indeed, few things are more beautiful to me."      

Posted by Paul Horwitz on August 17, 2006 at 11:39 AM in Life of Law Schools | Permalink | Comments (0) | TrackBack

Wednesday, August 16, 2006

Call Me Madam (Or, in My Case, "Professor")

I've very much enjoyed the comments on the "To Sir, With Love" post.  I appreciate that the bulk of them so far favor first names over last names in professor-student conversation.  Still, let me gingerly weigh in with a defense of the traditional "Mr. Hahhhht" approach (to quote Prof. Kingsfield).  I don't have strong feelings about this, but I go with last names and I think there is something to be said for this approach.

I agree that the argument that last names help to to erase the thought from some whippersnapper's head that he is a peer of the almighty law professor is not terribly attractive.  But I don't think that's the only reason some profs (or prawfs, or etc. etc.) adopt this practice. 

To use an inexact analogy (and don't waste too much time attacking it; it's only an inexact analogy and I don't want to make too much of it), why do we call judges "Your Honor" rather than, say, "Chip" or "Madison?"  In a few cases, of course (although not as many as you might think!), it's because their names aren't Chip or Madison.  And the threat of contempt may be a factor for some timorous lawyers.  But a broader reason is that adding a level of formality and impersonality to the process is a means of signaling one's respect for it.  It's a means of dignifying the proceedings.  Depersonalizing the courtroom -- in both directions, both when lawyers address judges and vice versa -- is also a way of signaling, not just to the audience but to ourselves, that we are all engaged in a shared and important enterprise, and that the enterprise is what counts, not the particular personalities who happen to be engaged in argument at this particular moment.

Something similar occurs when a student calls me "Professor" and I call the students "Mr. Huffnagel" or "Ms. Ortiz."  We are reminding each other that we are engaged in a shared process, and that the point of this process is not just education, but professionalization.  If, as I think it does (or can, anyway), the use of last names gives a special air to the proceedings, if it makes students and professors alike remember that they are engaged in a serious enterprise with reasonably high stakes, and one that will ultimately link us together as participants in a profession that is more important and more lasting than its individual members, that can be a good thing.  For that reason, I actually quite like it when I see students addressing each other as "Ms. Snoottley" or "Mr. Jeeves," more so than when they are addressing me or vice versa.  It suggests that they are making the first steps toward trying on a professional persona, and that they understand that they are engaging in a clash of arguments, not personalities.   

One more observation and then the usual caveats.  First, it seems to me that the use of last names is a healthy balance to the injection of consumerist values into the law school, along with pretty well every other aspect of modern life, and of the growth of a style of consumerism that encourages familiarity in every transaction.  ("Hi, Paul.  I'm Sarah, and I'll be servicing your car today.  As long as you're here, let me tell you about my family troubles!")  Don't get me wrong; I think consumer values have a place here, and I'm a fan of some of the things the Pos has written in response to writers like Mary Ann Glendon about both law schools and law firms.  But I still attach some importance to the concept of a profession and the notion of professionalism, and those values can be eroded in subtle ways by the incursion into the law schools of a more consumer-oriented culture.  As healthy and democratizing as that can be, at law school as elsewhere, that "distance" that has been decried in the comments to the earlier post can also be a valuable reminder that we -- students and professor alike -- are engaged in an important undertaking in the law schools, and that it ought to be taken seriously.  Without wanting to engage in more mystification of the law, I think it is useful to remind students (and not all of them need to be reminded, to be sure) that this is not just "Undergrad: The Sequel"; that they are actually joining a profession. 

I don't have strong feelings about this.  Many professors, I'm sure, can impart the same sensibility while using first names; and others would disagree with my stress on the special nature of a professional education.  More power to them.  I would also add that I am describing my ideal of the use of last names.  Some professors may use last names precisely to exalt themselves and debase their students, and I obviously am not encouraging that; using a student's last name should be a sign of respect, not contempt.  Rather, when done right, the use of last names for students, and of the usual honorifics for the teachers (although, if I could, I would like my students to stop calling me "Professor," which seems stuffy, and go instead with "Your Worship," or perhaps "El Duderino"), can be a reminder to professor and student alike that we are embarked on a shared project of some importance that is worth treating with some dignity.  Those who have seen me traipsing around campus on non-teaching days in my shorts and my Porcupine Tree concert T may find it hard to credit, but that's how I feel about the enterprise and, in my formal interactions at least, that's why sticking with "Mr. Hahhht..." works for me.

If I can close on a provocative note, I wonder whether this discussion is totally fungible without regard to the nature of the law school.  Some schools educate students who are predominantly children of lawyers and other professionals.  Others educate students many of whom will be the first professionals in their family, and indeed within their wider circle of acquaintance.  Those students are far from casual about being law students; they understand that this is something new and special and don't treat it casually.  But are professors whose students more closely fit the latter profile more likely to take the last-name route?  Do they think it is especially important to inculcate those qualities of professionalism in those circumstances -- or to help share that sense of dignity and importance that these students, especially, are entitled to feel?    

Posted by Paul Horwitz on August 16, 2006 at 06:43 PM in Life of Law Schools | Permalink | Comments (15) | TrackBack

Note to Commenters

If you haven't noticed, duplicate comments have been showing up on TypePad blog sites.  Here's my theory.  Something is slow so that the comment hits the blog before TypePad confirms that to you.  If you are like me, when something is slow, you keep clicking "submit," and it posts the comment the same number times that you clicked.

Be patient.  All good things come to those who wait.

Posted by Jeff Lipshaw on August 16, 2006 at 03:13 PM in Blogging | Permalink | Comments (1) | TrackBack

The Continuum from Ethical to Criminal: The Option Backdating Controversy

There's been a flurry of commentary this morning provoked by a Wall Street Journal op-ed piece that is something of an apologetic for the option backdating controversy of recent weeks.  Larry Ribstein weighs in, if I have his argument right, not to say that the backdating, if it occurred, was right, but remedying it should not be a matter for the criminal law (versus SEC civil enforcement, assuming there is a cause of action for backdating).  Dale Oesterle over at Business Prof Blog (part of the Law Professor Blog Network) makes the deontic argument about respecting rules qua rules.

I have not read the op-ed piece (I'm relying on Larry summary) because finding a copy of today's WSJ quickly demonstrated another aspect of what here in New Orleans is referred to as "the post-Katrina world."  But the gist of it is this.  Let's assume that I am granted 100 stock options in a public company today at a $10 strike price, reflecting yesterday's closing price of $10 per share.  If the stock price rises to $20 in two years, I "exercise" by buying the stock at my option price, and either hold it, or more commonly, immediately sell it, and get proceeds of the difference between the market price ($20) and the strike price ($10) times 100 shares:  in this case, $1,000.  For tax purposes, that $1,000 is ordinary income to the recipient, but for a number of years there has been an underlying controversy how this income to the recipient should be reflected in the financial reporting of the company.  Historically, under generally accepted accounting principles (GAAP), option compensation as just described never shows up as an expense of the corporation.  Its cost is reflected, if at all, in the effect of dilution on all the existing shareholders when the new shares are issued, upon exercise, at less than the market value.   The exception to this was if you issued an option having a strike price BELOW the market price as of the day it was issued (or the closing price the night before).  In that case, the option cost had to be expensed on the company's income statement.  This reduced the current earnings of the company, something managers and Wall Street stock analysts do not like to see.  (I should note that while I am not an economist, I am sympathetic to an economist's reaction that in a transparent world of perfect information, none of this accounting treatment should make any difference to value.)

Despite my sometimes insufferable Kantianism, I am also sympathetic to the idea of letting  economic markets determine economic outcomes, like how much executives or baseball players or Jessica Simpson or Paris Hilton get paid.  But I worry when, during the course of normative argument,  the implicit utilitarianism that is the philosophical basis of most economics is not made explicit.  Again, I do not think Larry Ribstein is saying that backdating options is okay; I think he is making the point that it is not a matter for the criminal law.  But, below the fold are some moderately inchoate thoughts on this.

The WSJ article appears to construct the following apologetic:  (1) Companies wanted to recruit good new people by giving signing bonuses that were money or some form of recognized compensation equivalent.  (2)  Giving money would be reflected as a hit to earnings, but there existed a system by which you could give real value without it being so reflected:  stock options. (3)  The accounting rules would let you give a "strike price at market" option but that wouldn't give the company the benefit of having provided real value to the employee, particularly when you wanted to give the value now as a signing bonus.  (4)   If you gave a "strike price below the market" option that would accomplish the purpose of giving real value to the employee, but you would take an earnings hit, which is exactly what you didn't want in steps 1 and 2.  (5)  The accounting rule was silly, but it was clear.  (6) If the stock had been trading at $5 six months earlier, and you just made the agreement, as they say, "nunc pro tunc" (now for then), by putting a six month old date on the agreement, you accomplished both objectives.  (7)  Backdating was not clearly impermissible (though I wonder how often it spanned a tax or fiscal year).  (8) Using a questionable but not clearly impermissible technique to avoid a clear and undesirable  implication of the alternative is not such a big deal.

I think a lot of what passes for moral outrage or deontic analysis on this issue is really normative political argument about wealth distribution, and consistent with good old American populism, going after rich people is pretty easy.  I have no issue with the straight-up argument "I was freely offered what seems to be an outrageous amount of money for what I did, but it was all disclosed and above-board, I earned it, and I'm going to enjoy the benefits of it."  (What I think of the person will probably depend on the definition of "enjoy the benefits of it" - did he/she endow a fund for diabetes research or buy a 150 foot yacht? or, even better, both.)

But this technique (speaking as a former GC and as an academic ethicist) bothers the hell out of me.  The former GC can come up with all sorts of consequentialist reasons for not doing this.  (One of my epigrams has been:  "whenever I thought I was doing something extremely clever, it generally came around to kick me in the a__.") [NB:  when I speak as a former GC, it is spiced with mild profanity.]

The academic ethicist wonders again about the conflation of practical reason as between determining correct ends, and using what is also called "practical reason" to get the result I want (See Richard A. Posner, Economic Analysis of Law, 6th ed., at 3-28).  Larry Solum recently highlighted a paper on this subject by Pamela Hieronymi at UCLA.  Just yesterday, we had a discussion about whether one might just pay the parking tickets over the course of a year rather than pay the greater cost of a parking permit.  It seems to be there IS something more than rational calculation, and even if, to Larry Ribstein's point, it is not a matter of criminal law,  the absence of that something is reflected in legal and business minds that would let the practice go forward.   

Posted by Jeff Lipshaw on August 16, 2006 at 01:34 PM in Corporate, Current Affairs, Lipshaw | Permalink | Comments (8) | TrackBack

To Sir, with Love

So what do you call your students?

No, I don't mean what names you call them behind their backs (not that I do that).

I mean in class, what do you call them?  Since starting as a law school professor, I have always referred to  my students in all classes, large and small, by their first names.  And I continue this practice when seeing them around the law school or when visiting with them in my office.

Apparently, at least according to my colleagues at this law school, I am fairly alone in doing so.   Most others not only call on people in class as, "Ms. Smith and Mr. Brown," but converse with them that way in the hallways and their offices.   I am told surnames must be used to instill respect for us in our students and to encourage students not to look on us as their peers.  I have also been told that since students don't call you by your first name, it is not appropriate to address them in that manner.

I have to admit I find both this explanation and the practice all very odd.  Anyone else?  Mr. Lipshaw?  Mr. Vladeck?  Ms. Lobel?

Posted by Workplace Prof on August 16, 2006 at 11:32 AM in Life of Law Schools | Permalink | Comments (18) | TrackBack

Student Scholarship

I had an interesting conversation with a colleague yesterday about student scholarship.  Students have submitted papers to him that he believes could be developed into good law review articles, but he felt there were few institutional incentives for faculty members to put the extra effort into helping students get their work into print.  Because I don't teach seminars--perhaps a subject for a future post--I haven't been in my colleague's situation before or otherwise given much thought to student scholarship.  I'd be curious to hear what other law schools do to encourage students to write law review articles (not notes in their home journals, but articles submitted extramurally), and what role faculty members play in the process.  (I should note here that my colleague, despite his assessment of the incentive structure, has, in fact, encouraged his students to pursue publication.)

Another good question is whether students ought to be doing "academic" writing at all, that is, the sort of in-depth, analytical writing that self-consciously seeks to make an original contribution to the world of legal scholarship.  I have reservations about requiring students to attempt this sort of work.  Academic writing is a genre unto itself, with its own idiosyncratic conventions, and doing it well requires a considerable amount of time and effort.  In a professional training setting, like law school, isn't it better for student to devote their time and effort to honing skills with greater relevance to their future professional work?  Instead of writing law review articles, shouldn't students be practicing their brief-writing or contract-drafting?

While I am not keen on requiring students to do academic writing, I have no problem with providing support and counsel to students who independently wish to do that sort of work, and I think my colleague is right that law schools ought to encourage the best student scholars to seek publication.  Dissemination of good work is a service to the bench, bar, and scholarly community.  At least some of our students are capable of deriving important professional benefits from publication, especially, of course, those who are contemplating academic careers.  And student publications may also provide reputational benefits to the law school.

So, here is my curricular proposal: a seminar on academic publication.  As a prerequisite, students must have already written a good research paper that lays a seviceable foundation for a law review article.  A short classroom component of the seminar would cover the basic stylistic conventions of law review articles and the mechanics of submission.  The professor would then provide individualized feedback on a series of drafts until the article is suitable for submission, which the law school would subsidize.  (The grade would be based on the number of SSRN downloads--just kidding!)  The course would address the incentives problem observed by my colleague, as both the faculty member and the students would get credit for the work.  Are there other schools already doing this?

Posted by Michael O'Hear on August 16, 2006 at 10:09 AM in Teaching Law | Permalink | Comments (12) | TrackBack

Conglomerate Book Club: In the Shadow of the Law

The Conglomerate is kicking off the first edition of its book club, an online chat about books of legal interest.  They're discussing the novel from guest Prawf Kim Roosevelt -- In the Shadow of the Law, now in paperback!  Commenters include Glom regulars Vic Fleischer, Christine Hurt, and Gordon Smith, along with guest blogger David Zaring.  If you've read Shadow, you might want to stop by and add your own comments to the mix.

The Glom is also starting its own Bookshelf -- an online repository of recommended reading.  Thus far there are twelve books .  I'm not familiar with Ning, the application that Gordon used to set up the 'shelf.  But it looks like another intriguing new development from the Glom folks, who have pioneered a number of fresh applications for the blawging universe.

Posted by Matt Bodie on August 16, 2006 at 09:10 AM in Books | Permalink | Comments (0) | TrackBack

Tuesday, August 15, 2006

Bernstein on "Comparative Advantage and Media Criticism"

Recent readers of the Volokh Conspiracy may have noticed that David Bernstein has posted a fair amount about the fracas in Lebanon.  (Note the wry understatement.)  In particular, he has written a good deal about errors in coverage of the conflict by the so-called "MSM."  Today, he writes that some commenters have asked why he and some of his colleagues have spent so much time on this issue rather than write about other aspects of the conflict.  I don't think he needs to justify himself; the topic is perfectly legitimate, and bloggers aren't required to write only about the most important aspects of some given topic.  But the answer he gives is interesting.  Here's some of it:

Speaking for myself, the most important reason is comparative advantage. I'm not a military strategist. I don't have sources in the Israeli government, or in any government for that matter. My Hebrew is adequate for basic conversational purposes but otherwise limited, my Arabic non-existent. Spending tons of bytes giving you my personal "insights" into the war would be a waste of my time and yours.

If you don't think that the question of whether elements of the media have been serving, sometimes intentionally, sometimes not, as Party of God propaganda agents, I'm not going to try to persuade you in this post. But if we (rightly)assume that it's a very important issue, it's one regarding which bloggers have a comparative advantage.

Picking out inaccurate, biased, fraudulent, or staged media (MSM or new media) reports is something that anyone with some patience and determination can do.

I don't have much of a quarrel with his point that spotting errrors is "something that anyone with some patience and determination can do," although the point actually needs some cleaning up on at least two counts.  First, that is only true if the error is of a kind that does not require the specialized knowledge that Bernstein has already disclaimed.  Second, even if the sentence is true in cases not involving specialized knowledge, Bernstein has hardly shown that this is something as to which bloggers have a comparative advantage.  It seems to me our only advantage is that we have access to a means of distribution.

My more serious quarrel with his post, however, is that there is a difference between ferreting out errors in media coverage and demonstrating that "elements of the media" have been serving as "propaganda agents" for Hezbollah (or for anyone else, for that matter).  And the difference turns on the very same thing that leads Bernstein to disclaim his "comparative advantage" in a number of other areas: specialized knowledge.*  Understanding and critiquing the media in a meaningful way, beyond simply pointing out factual errors, requires specialized knowledge of a host of topics, just as much as informed criticism on other issues may require specialized knowledge of military strategy, government, or the Hebrew language. 

Among other things, someone usefully engaging the question of how well the "MSM" has covered the conflict in Lebanon, let alone why they have failed to do so well at times, might want to understand something about the mechanics of the newsgathering process, the resources available in newsgathering and their limitations, the mechanics of editing, the role of media ethics, and so on.  And such a would-be media critic would not want to base his critique on a construction as capacious, and of such questionable descriptive value, as the "MSM"; rather, he might think about the differing capacities, professional norms, and incentives that apply to different forms of news media, and even to different publications within particular kinds of news medium.

[More after the jump]

One can see how this kind of specialized knowledge about the media might be relevant to actual attempts at media criticism in two recent posts from the VC.  One, by Bernstein himself, asked whether "mainstream media outlets have a policy against publishing 'staged' photos that appear to be spontaneous."  This is a question to which there is an answer (actually, several, depending on how you define your terms), which can actually be supplied by people with knowledge about and experience working in the "mainstream media."  (And was, in the comments to his post.) 

A similar example from VC, although on a different topic, comes from a recent post by James Lindgren, complaining (with justification, I think) about a recent NY Times article on stand-your-ground laws.  Lindgren writes:

Almost as misleading is the quotation in opposition to the law of comments by "Paul A. Logli, president of the National District Attorneys Association." (NDAA). Of course the NDAA opposes any law change that makes it harder to convict defendants – whether the change is justified or not. For instance, the NDAA vehemently opposes the Miranda rule, the 4th Amendment exclusionary rule, and any law change that would make it harder to impose the death penalty. But the Times vehemently supports those things editorially. So you can be sure that any supposed neutral news article it carried about those subjects would be full of quotes from law professors who agree with the Times, not to mention the National Legal Aid and Defender Association, i.e., criminal lawyers and public defenders. Did you see anything like that in this article?

Lindgren might be right that any "supposedly neutral news article" written on those topics in the Times would be larded with quotes from folks who support Miranda or oppose the death penalty.  But if that is so, the reason is likely to have little or nothing to do with the fact that "the Times vehemently supports those things editorially."  The news and editorial pages of newspapers are quite distinct in their operation, as any reporter (or any reader of the Wall Street Journal) could tell you.  And this is a point that, at least for most major American newspapers, is true not just on paper but in practice; having worked for one of those major papers, I can tell you that I rarely read that paper's editorials and wouldn't have cared what they had to say on a topic on which I was reporting.  Nor would my editors have cared.  I'm not defending the Times here.  Maybe its writers and/or editors are biased on the topics Lindgren writes about (and maybe not).  But not for the reason Lindgren offers.

It's a long post, but let me make a couple of things clear.  I'm not carrying a brief here for the "mainstream media," let alone for their coverage of the Lebanese conflict.  Bernstein has pointed out some serious failings in their coverage (and so have many of the self-same "mainstream media," as some of Bernstein's other posts point out).  Nor am I saying he shouldn't engage in media criticism.  In particular, if that criticism consists of pointing out factual errors of the kind that don't require specialized knowledge, bloggers are perfectly qualified to do so (although no more so than anyone else), and should.  My simple point is that, if his or anyone else's media criticism consists of more than just pointing out errors -- if it goes to questions of being biased or a propagandist -- then surely the same point applies here that Bernstein thinks applies to military strategy or government.  Some specialized knowledge is useful to meaningfully address these questions, and I see no reason to think that bloggers enjoy any comparative knowledge here.  Bloggers regularly attack the "MSM," but beyond ferreting out specific errors, they don't necessarily do so all that well.

* It could be (a thought that occurred to me later on rereading Bernstein's post, hence the add-on footnote here) that Bernstein is simply saying he's better at criticizing the media than at, say, discussing questions of "government."  He might be right, although the statement is not that meaningful: I'm better qualifed to discuss Russian literature than I am to discuss astrophysics, but I'm not especially well qualified to do either.  But even on this reading, is he right?  Is it true that he is far more qualified to discuss the MSM as "propagandists" than he is to discuss questions of government?  I think he may be overassuming his expertise where the media are concerned, compared to his views of his expertise on other issues.  I certainly think that many bloggers do likewise. 

Posted by Paul Horwitz on August 15, 2006 at 07:05 PM in Current Affairs | Permalink | Comments (0) | TrackBack

Awkward Endings at Semester's End

As I continue to prep for classes, I am somewhat comforted by the thought that inevitably even the longest semester draws to a close.  And thinking on that last day of class, I remember that I always seem to face a quandary on that day: do I just teach a normal substantive class or do I try to sum up to some degree the whole semester?

Interestingly, the different choice of endings has led to diametrically opposed reactions from the students.  Here's what I mean: when I end class with a normal class, I say something like: "And that is how the general duty clause of OSHA operates.  Any questions?  Great, well I hope you enjoyed the class, and good luck on your exam next Wednesday."   The students shrug and then immediately leave the classroom without further ado.

On the other hand, when I have attempted to sum up the major themes of the class in the last 15-20 minutes of lecture and Dead Poet Society-like  urge  them to seize the day (here you should have images of me (maniacally laughing) being carried off on the shoulders of my students who are running through a beautiful field), I usually get a round of applause (not thunderous mind you, but polite).

Have others had similar experiences with the end of classes - that is applause versus students just walking out? (of course, the lack of applause can certainly be related to such things as irrelavant as quality of teaching, but put that aside for a second since all readers of Prawfs are certainly top-notch professors in their own right).  And is there a connection between student response to the end of the last class and the way one decides to adjourn for the semester?

Posted by Workplace Prof on August 15, 2006 at 11:16 AM in Life of Law Schools | Permalink | Comments (16) | TrackBack

Branding and Law Firms

Over at Conglomerate, Gordon Smith has posted a comment on Vic Fleischer's case study on the branding effect in the MasterCard IPO and similar thesis on the Google IPO.  Gordon asked why farmers organize into coops and suggests that it has as much to do with branding (say, as "organic" farms) as with governance.

It's a fascinating subject, and the following comment has all the hallmarks of a blog post - quick, anecdotal, and wholly ignorant of most real scholarship on the topic.  But I want to offer two not-so-hypothetical hypotheticals about law firm branding.

1.  My first appearance in court was three or four days after the swearing in ceremony in November, 1979.  A partner asked me to cover THE NEXT DAY a hearing in the Ann Arbor District Court (the court for matters less than $10,000) on a motion to dismiss a complaint in which the pathetic plaintiff had sued the wrong one of our scumbag client's multiple corporate entities.  And the sorry thing was that suing the right one wasn't going to help because the statute of limitations had run (assume no fraud here, just slickness competing against incompetence).   The brief had been filed; I spent  four or five hours prepping,  and I slept maybe three hours (complete with all the classic stress dreams, like taking a final in a math class I had forgotten to attend), worrying about the hearing.   I have mentioned before that when I was twenty-five I looked like I was about eighteen, but when I walked into the courtroom, and said "May it please the court (I don't think  lawyers usually used that form of address in the Ann Arbor District Court), Jeff Lipshaw of  Dykema, Gossett, Spencer, Goodnow & Trigg appearing for defendant Global Scumbags, Inc." there was , to my mind, a palpable reaction from judge and opposing lawyer that could not have been attributable to my person.  DGSG&T (now known merely as Dykema "A Law Firm Unlike Any Other") was the 800-pound gorilla in Michigan, and the brand had to put a patina over anything I was saying.

2.  Many years later, when I was buying services, firms like Dykema and its equivalents in other non-financial center cities (other examples of the type would be firms like Reed Smith in Pittsburgh or Bryan Cave in St. Louis or Dorsey & Whitney in Minneapolis or Baker & Daniels in Indianapolis or Preston Gates in Seattle - not firms necessarily that bid for our work - but of equivalent size and reputation) would market for deals that inevitably ended up in Wall Street firms (and, by the way, not in any New York City firm, but in a select group of NYC firms).   If you merely looked at the bona fides of the individual lawyers put forward - schools, academic records, deal experience - there was no real basis for explaining to them why it was that we were willing to spend double the amount per hour to hire, say, Skadden or Weil or Wachtell, to do the deal.  You could make actual value related arguments, but I don't think they were ever really supportable.  To my mind it had to be the brand.

Indeed, both as a law firm partner and as a buyer of services, I made the argument to those fine firms that there were areas in which the brand was perfectly fine.  For example, there is no branding reason why you could not establish a national center for ERISA or partnership tax in St. Louis.  But for bet-the-company M&A work, the firms were wasting their precious marketing dollars competing against the goliaths of the industry.

Posted by Jeff Lipshaw on August 15, 2006 at 10:38 AM in Article Spotlight, Corporate, Lipshaw | Permalink | Comments (0) | TrackBack

Monday, August 14, 2006

To Sympose or Not to Sympose

Since I've gotten such helpful responses to my earlier posts, and since such a high percentage of this blog's readership seems to be law professors (fits with the title, I guess), here's another question: what do people think about the relative merits of symposium contributions vs. conventional articles?  I've been told that a symposium piece isn't considered as significant in terms of placement for tenure reviews.  I'm less interested in that issue because, leaving aside the merit of considering placement in the process of tenure review, my tenure file will be closed before I have the chance to submit anything else.  (Though such thoughts might be useful for junior professors who are reading.)  I'm wondering more whether there's any distinction that academics make when they're working as academics--when you hear of an article, or come across it in your research, does it make any difference that it's part of a symposium?  Does it make you less likely to read it than you would be otherwise if it's in a prestigious journal--and/or more likely if it's in a less prestigious one?  And how valuable do you think that the experience of participating in symposia--traveling and presenting papers--is?

Posted by Kim Roosevelt on August 14, 2006 at 02:02 PM | Permalink | Comments (7) | TrackBack

A Seemingly Innocent Explanation or Why Can't Labor and Employment Law Just Be on the Bar Exam?

Rant  time.

A year never goes by without a law student I like stopping by my office at the beginning of the semester and saying something like:  "Hi, Professor Secunda.  Wish I had you this semester [OK, so I'm making this part up a little], but I'm only taking classes that will help me pass the bar exam."

This exchange never ceases to get my goat, especially in a state with a 90% bar passage rate.  My usual response (at least to those in the top 50%-75% of the class) is that you do not need a 14-week class in Secured Transactions, Family Law, Tax Law, etc., in order to pass the bar.  Generally, that is what BarBri is for (of course, I go on to say, if you are otherwise interested in taking any of these courses because you are planning to practice in the area or are intellectually curious, by all means, but don't take it just because it is on the bar).

Actually, there is some joy  in Mudville.  I believe Pennsylvania just became the first state to include employment discrimination law on their bar exam.   Thankfully for most, neither labor law nor ERISA is likely to be tested anytime soon.   

Posted by Workplace Prof on August 14, 2006 at 11:40 AM in Life of Law Schools | Permalink | Comments (3) | TrackBack

Sunday, August 13, 2006

Course Preparation and the 800-Pound Gorilla in the Room

OK, so Jeff Lipshaw has clearly set  a torrid pace for guest bloggers on Prawfs.  Geesh, he made me feel guilty for not posting yesterday (I mean the guy is driving across country and apparently blogging as he's changing lanes).   And to think I really liked the guy when I met him in Baltimore in July.

In any event, and keeping with the spirit of discoursing on course preparation for the upcoming fall semester (alas, I am not lucky enough to teach Secured Transactions like Jeff), I will let everyone in on my prep situation. 

In a word: ERISA.  Yes, I am one those masochistic people who actually went into their Associate Dean's office and offered to teach employee benefits.  Unlike Article 9, ERISA does not only not make sense when you get to thorny little issues, but it is also maddeningly complex at a global level.

Things just got a lot more hectic though for employee benefits people.  I give you the 907-page Pension Protection Act (PPA) about to be signed into law by the President.  In short, I don't know how I am going to incorporate this new statutory bad-boy into the already confusing ERISA framework.

Everything from minimum funding of pension plans to automatic enrollments in 401(k) plans have been altered to a degree that will keep ERISA attorneys busy and rich for many years to come (to students, I refer to my employee benefits law class as "the guaranteed future employment in law" class.  Thinking back to Kim Roosevelt's recent post, however, the students in their evaluations of the class do not seem to appreciate the gift I am giving them).

So, I am interested in hearing whether other people are dealing with anything similar as they prepare for their classes this semester.    Any other 900-page statutory gorillas out there? 

At least for my other class, Labor Law, it really has now just come down to a situation which Stephen Colbert sums up best when he concludes: "It's time for management and labor to put aside their differences and come together as management to exploit labor."

Posted by Workplace Prof on August 13, 2006 at 11:25 AM in Workplace Law | Permalink | Comments (3) | TrackBack

A Quinquagenarian* Wonders...

The "The Way We Live Now" essay by Christopher Caldwell in this morning's New York Times Sunday Magazine raises an issue of discrimination that morphs together snippets of constitutionality, statutory and moral analysis, and I'm not sure to a sound conclusion. 

The subject is "age qualified" communities, not the kind in which I think my wife and I would want to live, even as empty-nesters (liking the diversity of organically developed neighborhoods), but to many of my superannuated peers, ones that might be to their liking.   The issue is the exception in the Fair Housing Act of 1988 (as amended):  the statutory prohibition on discriminating against families with children has an exception for developments in which 80 percent of the households have a person 55 or older, and the development must be billed as a "senior community" or "retirement community."

The author argues:

"I just want to be with people like me" is the argument made in favor of every kind of segregation.  It was not an unreasonable-sounding argument even when it was made by Alabamans and Boy Scouts and club men.  But it wasn't a winning argument either.  What explains our sudden readiness to make moral exceptions when children are the ones excluded?

Seems to me three different standards are conflated here.  To the constitutional scholars out there, has age ever been a suspect classification?  Clearly Congress has the power to pass legislation that bars discrimination that does not rise to a constitutional level.  And I'm not sure why the exclusion of children from a privately operated community that does not seek to take on the hallmarks of government deserves moral opprobrium.  I love my nieces and nephews of younger siblings, but "been there, done that" already, and I'm always happy that they go home with their parents.

Am I missing something?  I promise not to discriminate against vicenarians and tricenarians.


Posted by Jeff Lipshaw on August 13, 2006 at 10:23 AM in Constitutional thoughts, Culture, Current Affairs, Lipshaw | Permalink | Comments (1) | TrackBack

Saturday, August 12, 2006

Talmudic Simplicity and the Law

The last post about the surface simplicity and underlying complexity of Article 9 reminded me of one of my last forays as a litigator before my first mid-life crisis in which I came to terms with how much I despised litigation and bolted into the corporate group.  Some say it was because I somehow managed to lose two cases it was seemingly impossible to lose (the latter was one in which I somehow managed to lose a stipulated motion, but that's a story for another time). 

In 1989, my partner Don Young and I tried a tremendously interesting case in the federal district court in Detroit.  We represented an outfit known as the Michigan Property & Casualty Guaranty Association.  This was a creature of state insurance regulation, and existed to deal with the effects of insurer insolvency (akin to but not exactly like what the FDIC would do if a bank went belly up).  In short, if there were an insurance company insolvency, the staff of this little association would estimate the claims that needed to be paid, and the solvent insurance companies would be assessed pro-rata by how much insurance premium they wrote in Michigan.

One of the neat twists of the statute was something called the "net worth" exception.  If you were an insured with a worthless policy, but your net worth exceeded an amount determined by a statutory formula, you had to bear the loss yourself, and were not entitled to reimbursement from the association.  The Association denied coverage for a large supermarket chain in the Detroit area (known as Farmer Jack's), and got sued in federal court on the grounds that the net worth provision violated the equal protection clause of the 14th Amendment.

To find out what happened, continue below the fold.

As any first year constitutional law student knows, this is a case that never should have gone to trial, and that is the point of Talmudic simplicity.  In socio-economic legislation, not invoking a discrete and insular class under footnote 14 of the Carolene Products case (yes, Bill Cohen, I still remember it!), the test is whether the legislature had any conceivable rational basis, whether or not articulated, for the disparate treatment under the statute.  Nevertheless, the court denied our motion for summary judgment (which as I recall made the point that the Michigan legislature could have concluded (a) that wealthy insureds could bear the loss, or (b) that wealthy insureds would have known to assess carefully the credit rating and financial wherewithal of their insurers).  We proceeded to a six day trial in which the plaintiffs put on experts to say the statute was irrational because net worth didn't have anything to do with anything, and we rebutted with our own experts, figuring that, given the standard, all we had to do to win was not try the case in Esperanto.

I may have been the first lawyer ever to begin a closing argument with the Talmudic story of those great rival rabbis of the early Common Era, Hillel and  Shammai, and the skeptic.  As the story goes, the skeptic first went to the irascible Shammai, and asked "can you teach me the Law while I stand on one foot?"  Shammai, consistent with his personality, applied one foot to the skeptic's tuchas, and booted him out the door.  So the skeptic went to the wise and gentle Hillel, and asked the same question.  Hillel responded, "Of course.   All of the law is simply this:  what is hateful to you, do not do unto another.  All the rest is commentary.  Now go and study."

The point was to say to the judge: it's very simple; it's all in the standard of review, and I need not say anything more about the evidence for the statute to be upheld (I did say more, but it would have been a gutsy thing to sit down right then).

To come back to the theme from the beginning, you cannot lose a rational basis case like this.  But I did.  I wondered later if I lost her in the story of Hillel and Shammai, but, no, she just didn't understand the standard of review.   To find out how it all came out in the end, see Borman's, Inc. v. Mich. Prop. & Cas. Guar. Ass'n, 925 F.2d 160 (6th Cir. 1991).

Posted by Jeff Lipshaw on August 12, 2006 at 07:51 PM in Constitutional thoughts, Lipshaw | Permalink | Comments (4) | TrackBack

Rubenfeld's "Interpretation of Murder"

Today's New York Times features an article about publishers' high hopes for the forthcoming novel by Yale's Jed Rubenfeld, "The Interpretation of Murder."  Kudos to Professor Rubenfeld.  Like many bloggers, I've received a copy of the novel and look forward to reading it.  It's not a "law" novel, like Kim's; instead, it's a murder mystery that draws on the early days of Freud and Freudian theory.  The question I have, based on my recent post about his words in a recent issue of the Yale Law Journal, is whether we'll ever have occasion to read these words: "I do not know Michiko Kakutani, or her writings...."

Posted by Paul Horwitz on August 12, 2006 at 04:03 PM in Books | Permalink | Comments (6) | TrackBack

Here's to Article 9 (Tastes Great! More Filing!)

I did not plan five minutes ago on starting this post this way, but if you can't be random and spontaneous on a blog post, where can you be?  But as I intend before I'm done to reflect on teaching Article 9, perhaps some random spontaneity will entertain those readers for whom the mere mention of the UCC has the same effect as hypoglycemia.  What prompted this was the observation that when you click on "Create a Post" for PrawfsBlawg in TypePad, the motto "Where Intellectual Honesty Has (Almost Always) Trumped Partisanship Since 2005" appears just before the window in which you compose (as I am now doing).  As most of the substantive discussion on this blog swirls around mighty and controversial issues of constitutional and criminal law, that seems to me to a prudent, if not intended, benefit of TypePad.  It reminds the author to be civil even when consumed by passion. 

This post, however,  started as an ode to Article 9 (the revised version, please), particularly when compared to Article 2.  The thought flashed through my mind whether my siding with Article 9 over Article 2 would constitute partisanship.    And while I have not consumed any alcoholic beverages since downing a Sierra Pale Ale in Indianapolis almost a week ago, I had an image of one of those  Miller Beer commercials with Dick Butkus and Bubba Smith, in which a bunch of law professors are sitting in a bar (Karl Llewellyn?  Richard Craswell?  Charles Fried?) passionately screaming at each other:  " Works Great! Less Efficient!"  But that's just me.

The intellectually honest part of this has to do with the fact that prepping for Secured Transactions has caused me to dig into Article 9 for the first time.  I taught Sales last year, and had been fairly steeped over the years in Article 2 (for example, I have a 2-207 flow chart that would make you plotz).  Article 9, it turns out, is conceptually easy in the big, big picture (attachment, perfection, priority, enforcement, bankruptcy) but full of knotty little problems in the execution.  More importantly, Article 2 was  a creation of the legal realists, who wanted the law to track the way transactions really worked with the idea perhaps that would be more efficient.  In my humble opinion, it manages to be neither realistic nor efficient.  All those "reasonables" and "seasonables" and "trade usages" and "courses of dealing."  Article 9, on the other hand, makes no bones about its arbitrariness.  You pays your money and you takes your chances.  And because it is newly created system laid on top of existing practices (versus Article 2 which attempts to incorporate existing practices, see Lisa Bernstein on this topic), it has, for the most part, like it or not, an internal logic.

Larry Ponoroff, a old pro at this, tells me it was better in the halcyon days before the most recent revision.  I don't know, but if you wanted to trade me Article 2 for Article 9, you'd have to throw in Ronald Coase, Guido Calabresi, and a legal positivist to be named later.

Posted by Jeff Lipshaw on August 12, 2006 at 03:45 PM in Legal Theory, Lipshaw | Permalink | Comments (4) | TrackBack

More on SSRN: What Is "Quality"?

Last week, I asked, “What role, if any, should SSRN download counts play in evaluating the quality of a legal scholar’s work product?”  I am grateful for the many thoughtful comments, which seemed to range from the virulently opposed to the tepidly supportive.  In reading the comments, it occurred to me that there is an important antecedent question to mine: quite apart from the difficulties of measuring it, what exactly does “quality” mean when we are talking about legal scholarship?

Scattered through the comments, I noticed a number of words that seemed to be used as synonyms of “quality”: impact, influence, merit, etc.  Let me hazard my own definition: quality is usefulness—usefulness in helping others (lawyers, lawmakers, students, other scholars, etc.) to better understand and improve the functioning of legal institutions and legal doctrines.  Quality, in this sense, would be a function of originality, rigor, sophistication, clarity, persuasiveness, and perhaps a few other considerations.  (And I agree with the suggestion in Orly’s comment that marketing may have a role to play here, too; a piece can hardly be useful if no one reads it.)

Eric Goldman, in his comment, asserts that “there really is no substitute for carefully reading someone's scholarship.” I quite agree, but the problem is that my expertise (like that of just about everyone besides Richard Posner) is limited. In assessing pieces outside my field for qualities like originality and sophistication, I don’t feel a whole lot more qualified than those law review editors—whom it seems that no one really trusts to do a good job of separating the wheat from the chaff. Hence the interest in finding numerical measures of quality to help supplement the “careful[] reading.”

Download counts are a measure of eyeballs, that is, how many people have looked at a piece. While not everyone who looks at a piece will find it useful, it does not seem implausible that there would be some rough correlation between the number of people who look at a piece and the number who actually use it. That said, for the many good reasons listed in the comments, the correlation seems so rough (at least at the present) that download counts don’t inspire much confidence as a supplement to careful reading.

“Anony” has more faith in citation counts. At least as a raw number, I’m not sure I agree. As “Very Anon LawProf” points out, “[C]itation counts don't distinguished between perfunctory cites in literature regurgitating footnotes (who cares about those?) as opposed to sensitive discussions relying on a particular work.” The answer seems to be a more nuanced, qualitative review of citations. But this sort of review, coupled with Goldman’s careful reading, entails serious transaction costs. Given the sorts of decisions we are talking about here—hiring, promoting, tenuring—the costs are clearly worth it, but, still, I can appreciate the appeal of a simple numerical shortcut.

Posted by Michael O'Hear on August 12, 2006 at 02:07 PM in Life of Law Schools | Permalink | Comments (5) | TrackBack

Friday, August 11, 2006

One or Two Semester First Year Classes?

About a year or so ago, our curriculum committee considered briefly (but never decided) the issue of whether we should do away with 1L classes that span the entire school year.  Currently, torts and contracts do this, while half of civil procedure (jurisdiction) is taught during the first year with the other half (Rules) being taught as an upper level elective.   Similarly, Con Law I (structure, federalism, and 14th Amdt) is taught as a required course in the first year, while Con Law II (mainly 1st Amdt) is taught as a second year elective.

This is all very interesting to me because I had probably one of the most unorthodox 1L curricular experiences around.   Some moons ago, I attended Georgetown University Law Center and was enrolled (along with fellow law prof/classmates Nancy Hogshead-Makar and Erica Hashimoto) in an experimental (some said crunchy) curriculum in which we had course titles like "Property in Time," "Process," "Government Processes," "Legal Justice," "First Year Seminar," and, my personal favorite, "Democracy & Coercion" (can you guess what that was about?).  In addition, we had a combined con-tort class called "Bargain, Exchange, & Liability" which was 5 credits and lasted the entire year.

In any event, here's my question for everyone (brought up by one of the commentators to my previous post on summer school for 1Ls):  should the majority of 1L classes be one semester affairs or do two semester classes still have a place in the curriculum?  One of the issues that will inevitably have to be dealt with in deciding this question is what material will be cut when you reduce contracts and torts from 6 credits to 4.   Also, is it better to make classes like civ pro and con law required 4 credit 1L courses with more advance topics in these areas being left to upper level study?  Finally, by teaching 1L classes in one semester (so less overall credits), isn't it a good thing that you would thereby free up as many as 6 credits for first year electives in legal theory (CLS, L&E, CRT, etc.) and  so-called perspective courses?

Through comments, I like to get a sense of not only how people would like to see the first year curriculum structured, but how schools are actually doing things presently.

BTW, FWIW, Democracy & Coercion was a wonderful criminal procedure/con law class taught by Mike Seidman.

Posted by Workplace Prof on August 11, 2006 at 05:39 PM in Life of Law Schools | Permalink | Comments (4) | TrackBack

The Siren Call of Chemerinsky

My faculty mailbox groaned today (not literally -- figuratively) with the brand spankin' new third edition of Erwin Chemerinsky's treatise on constitutional law.  Congratulations are in order to Professor Chemerinsky on its publication.  My constitutional law students find it an indispensible guide to the subject, and I too find it useful when I am approaching a subject area to dip into Chemerinsky, who does a nice job of bringing structure to various subfields within this massive subject and reminds me of the ways in which I am going to want to set up subsequent cases as I move through the material.  Chemerinsky also does a nice job of laying out the pros and cons of a particular doctrinal line before getting to the nitty-gritty.  I'm sure it's a big seller and a popular guide for law students everywhere.

But is it too popular?  I don't mean to denigrate the book, which is useful, as I've said, and pretty fair-minded.  But I wonder whether students don't over-rely on this book.  Like most professors, I teach constitutional law in my own way, and it's something of a teeth-gnashing moment to read an exam that closely tracks Chemerinsky's outline of a legal doctrine in ways that depart from my own description of that doctrine in class.  Students should recognize that Chemerinsky's book is most useful as a general roadmap, not a substitute for their own obligation to read the cases and reach their own conclusions about what the doctrine means.  If they substitute his thinking for their own (or, worse still, if they substitute his thinking for the crumbs of genius I let fall from the podium), they will lose some of the pleasure of learning this involving subject.  Moreover, although I do think Chemerinsky is fair-minded, one detects at least a hint of a thumb on the scales in favor of his own view of the doctrine at times, and I would prefer it if students didn't let him have the last word on these debates.

At the end of the day, I always recommend that students looking for a good guide to the area take a look at this treatise, and many of them do.  (I introduced Chemerinsky a couple of years back at a symposium at Southwestern, and said I felt at times as if he were the co-teacher of my course.)  But I also caution them to use it cautiously -- to use the treatise primarily as a guide to help orient them as they read the cases, and not a substitute for their own thoughts about constitutional law.  Yet, every year, I know some students will insist on overusing the treatise.  I wonder whether other constitutional law professors have encountered the same phenomenon, and whether they offer similar words of advice to their students.  (And not just constitutional law professors!  I seem to recall a run on copies of Chemerinsky's federal jurisdiction treatise when I was taking federal courts at Columbia a lifetime ago.) 

For that matter, I wonder whether Chemerinsky encounters this problem!  Does he stand up before his classes at Duke and say, "By all means, read my treatise.  But take it with a grain of salt....?"

Posted by Paul Horwitz on August 11, 2006 at 05:38 PM in Books | Permalink | Comments (6) | TrackBack

Students as Customers

Thanks for the comments on the previous post.  Although I could have just responded in the comments, I think I have enough to say to warrant a new post (applying the same standards as when one has enough to warrant a new article).

Last time I posed the question as a choice between pleasing students and educating them, which probably wasn't right, in that it suggests that the answer is obviously "educating."  I could also have said, what's the right balance between treating students as rational consumers whose preferences should be satisfied and treating them as some other kind of people (children, maybe) whose preferences we can discount or seek to change.  Obviously the answer is going to be different depending on the specific preference we're talking about, so let me get a little more concrete.  I've been thinking about various different student comments that I've gotten in evaluations, and how I respond to them, and I'm wondering whether I have a coherent position.  So I'd be interested in hearing what people think.  Here are the comments (these are actual comments, paraphrased and condensed) and my thoughts.

1) "The professor assumes that we know much more than we actually do."  This is a pretty easy one, I think--it identifies what I know is a weakness in my teaching style, and if a significant number of people are saying it, then I need to do a better job of laying the groundwork.

2) "The old cases are boring and irrelevant."  I have a harder time with this.  It's from a constitutional law class, and I think it's actually very important to have a sense of a) where particular constitutional doctrines come from (for instance, to understand the Section 5 discussion in Morrison, I think you really need to read The Civil Rights Cases and understand something about the historical context of that decision) and b) how the Court's approach to constitutional interpretation and its relationship to other branches has changed over time.  I use the Brest, Levinson, Balkin, Amar & Siegel casebook for that reason, and I've been structuring my syllabus historically rather than doctrinally--that is, I teach eras of constitutional thought, examining different doctrines within each era, rather than taking a particular doctrinal topic and working through its entire history.  So I think this is a better approach in terms of giving the students value, but they really don't seem to like it.  I have been phasing out the older cases and next year I think I'll abandon the historical approach entirely.  I feel a little bad about this, because I think that what I will be offering instead is not as valuable to students.  On the other hand, the amount of resistance in the comments suggested that many people were tuning out and not getting what I was trying to give them.

3) "People lose respect for you and stop doing the reading when you let them skip class and pass when they're unprepared."  This is one that I feel fairly comfortable ignoring, primarily I think because it's asking me to do something different with respect to other students, rather than the commentator.   I'm a little surprised by it, though, because I assumed that students would appreciate it if I respected their judgment about whether they had more important things to do than read for or attend a particular class.  But if it's true (which I'm certainly not sure of), do I have a pedagogical obligation to try to change the students' judgments and priorities?   Which leads to the fourth example ...

4) "This was a good class for people who were interested in the material, but the instructor didn't do much to stimulate interest among people who weren't interested already."   I know the easy answer here is that the best professor will satisfy the interest of people who are motivated while simultaneously motivating the people who aren't.  But suppose that there's at least some tradeoff.  How should we balance serving people who want we're offering against changing the minds of those who don't want it?  My first reaction to the comment was that my job is to teach people who want to learn, and people who don't want to learn the law might profitably ask themselves what they're doing in law school.  I thought that was in line with respecting students' decisions about whether to go to class or do the reading, which I feel is the right position.  But a friend recently suggested to me that it was instead a self-serving cop-out, so I'm trying to think more about it.

Responding to comments on the prior post:

Jim: thanks.

Alice: generally, I agree.  What I'm trying to think about here is under what circumstances we should say "Even though students would prefer practice X, I will not give it to them because it conflicts with my idea of Y."  Or circumstances in which we shouldn't say that.  That's what my examples are trying to explore.

Paul and C.E.: We do have senior faculty sit in on junior faculty classes, which I think is  a good idea both in terms of giving immediate feedback and in terms of providing a different source to use when evaluating faculty teaching quality for tenure decisions. 

On the teaching/scholarship relation, I have serious doubts that scholarship contributes to teaching.  I think there might well be a correlation, in that intellectually active professors will publish more and teach better.  But in my experience, students like it the least when I try to talk about something I've been working on recently, because that's the sort of thing that's hardest for them to understand.  This might well be different in advanced classes than first-year ones, and I'm sure it's possible to do a better job than I do, but I do think that exposure to cutting-edge scholarship is about the last thing most students want from most law school classes. 

On the teaching/scholarship balance, my sense is that at "elite schools" scholarship is considered significantly more important, although there's an understanding that the first year of teaching is enormously time-consuming and an expectation that one won't be doing much scholarship the first year.

Posted by Kim Roosevelt on August 11, 2006 at 05:04 PM in Teaching Law | Permalink | Comments (5) | TrackBack

Participation and Exam Policy

One of the things I did not do well last year (see here) was to have the appearance of structure in (or is it command of?) the teaching process.  I am sympathetic to the students' feeling of being lost if the method is foreign, the conclusions are unclear, the professor is somewhat random, and the subject matter is the application of law to something about which they have little experience (contracts, business, negotiations, etc.)   It seems to me there is a better chance of engagement in the micro if there is at least some sense (a) of the macro structure, and (b) that the professor has a clue what the macro structure is.  The appearance of structure, it seems to me, includes the substantive as well as the procedural.  I had already posted on TWEN a full semester syllabus, but today I posted the "on call" list - divided each class into five groups of about eight to ten students, and gave the dates on which they would be on call.

As to exam policy, I am considering saying that anything in the readings or in class discussion is fair game for the exam (mainly to encourage rather than demand attendance), but it occurred to me what I might get is verbatim note-taking (either by hand or on laptop) than participation.  I'd be interested in reactions to that.  (The blind grade system here accommodates a factor for attendance based on a pre-announced policy that is applied on a blind basis, but it means you have to take roll or use a sign-in sheet, and I still don't like that idea.)   

N.B.:  Both of my classes are upper level this semester, so I worry more about it.  1Ls are too scared not to attend, and they seem to want to participate.

Posted by Jeff Lipshaw on August 11, 2006 at 04:54 PM in Lipshaw, Teaching Law | Permalink | Comments (1) | TrackBack

So Much to Do, So Little Time

It's interesting to read the other posts about allocation of time as between teaching and scholarship. From the cocoon of my home office over the summer, it was hard to see how you couldn't have time to do everything.  It's only taken a day back in the saddle to recall that it's not an issue of teaching versus scholarship; it's teaching and scholarship versus everything else.

Got in early this morning; opened up Warren and Walt on Secured Transactions.  Warren and Walt on Secured Transaction is still sitting unread in the same spot seven hours later.  In the meantime we've had the good (meeting new colleagues and law school staff; tremendously helpful staff), the bureacratic  (Westlaw somehow discontinued my password in the last two days), and the Up the Down Staircase (we have iPrint, and I printed to an HP4100 printer in the library but it turns out there are about a half dozen HP4100 printers in the library, so we were all scurrying around looking for the documents).  So it's 3:30 p.m. now, and as everybody knows, I am a morning person and go braindead in the late afternoon.  At which point writing a blog entry or organizing my bookshelves or renewing my bar association membership is more up my intellectual alley.

Every person here is sympathetic to a wanderer because everybody was a wanderer just a year ago.  The stories on the local news this morning were about schools reopening.  There's an organization called the Louisiana Recovery Authority that is helping people find new homes.  People are tremendously upbeat and enthusiastic.  Last night, I shopped at the Whole Foods Market on Magazine Street, which was jammed, but it had just rained so every time I stepped outside my glasses steamed up.  You never know when you are going to learn something new, though.  I mentioned that to Dean Ponoroff and he showed me the trick to keep it from happening.

Posted by Jeff Lipshaw on August 11, 2006 at 04:52 PM in Life of Law Schools, Lipshaw | Permalink | Comments (0) | TrackBack

Chernow's Hamilton

I (finally) finished Ron Chernow's widely praised biography of Alexander Hamilton.  With the Emperor Joseph II-type caveat that 731 pages is, well, a lot -- I thought the book was fabulous.  Bottom line:  I'm way bullish on Hamilton and Washington these days, and down on Jefferson and his like-minded Virginians.  Not an entirely comfortable position for someone who is a fan of the Lopez enumerated-powers revival! (if there was one).

One quote, from Chapter Thirty-Two, "Reign of Witches":  "The period of John Adams' presidency declined into a time of political savagery wtih few parallels in American history, a season of paranoid in which the two parties surrendered all trust in each other. . . .  The indiscriminate use of pejorative labels -- 'Jacobins' for Republicans, 'Anglomen' for Federalists -- reflected the rancorously unfair emotions."  Not much new under the sun, I guess.

I was also interested to learn, given my interest in the problem of "political divisiveness along religious lines," that Jefferson complained, in a 1798 letter, that "party animosities have raised a wall of separation between those who differ in political sentiments."  Four years before the letter to the Danbury Baptists!

Posted by Rick Garnett on August 11, 2006 at 04:45 PM in Constitutional thoughts | Permalink | Comments (2) | TrackBack

Thursday, August 10, 2006

What Should Teachers Maximize?

Thanks for having me back here.  I followed the conversation about the relationship between teaching evaluations and scholarly productivity with great interest, but it made me wonder about a topic that seemed to receive relatively minor attention.  Should our goal as teachers be to get high numerical student evaluations?  This isn't quite the same question as whether student evaluations are accurate measures of teaching quality, though it's not a very interesting question if you think they are perfect measures.  What I'm wondering is, how should one make the tradeoff between maximizing student satisfaction and maximizing (what one believes is) the value delivered to students, assuming that one thinks there's a divergence.

I could actually say more about why I think there's a divergence, and maybe I will later, but I don't immediately want this to be about my particular views.  I will admit, though, that I come to this as someone who gets below-average numerical scores, and also that I think there are ways I could raise my scores that would simultaneously reduce the value I'm delivering to students.   I might just be deluded about that and/or not a very good teacher, which is one reason I don't want to start out by saying exactly why I think this, but assume, if possible, that such situations do exist (even if I'm not necessarily one).  What's the appropriate attitude to take about the relative importance of pleasing students vs. educating them?

Posted by Kim Roosevelt on August 10, 2006 at 07:59 PM in Teaching Law | Permalink | Comments (4) | TrackBack

And Even More Advice for New Law Students

I just got back from a wonderful two days with my family at Devil's Lake State Park in central Wisconsin.  While enjoying the view from one of the bluffs overlooking the lake, I was reminded of the exchange here last week on advice for new law students (http://prawfsblawg.blogs.com/prawfsblawg/2006/08/more_advice_for.html).  To the terrific advice compiled by others, I would add this: every once in a while, take a break from the intense human environment of law school and simply go for a walk in the woods.  From the days when I was a student at Yale, I recall several occasions on which my wife pulled me away from my books and dragged me to Sleeping Giant State Park in Hamden, Connecticut.  A couple of hours at the park never failed to lift my spirits and ease my law student anxieties.  If other folks have suggestions of places to take a walk in the woods in close proximity to other law schools, feel free to share those ideas by way of a response; collecting this information will perhaps be of service to some soon-to-be 1Ls.

Posted by Michael O'Hear on August 10, 2006 at 06:34 PM in Life of Law Schools | Permalink | Comments (4) | TrackBack

Visiting Professor Arrives

Somewhere on I-59 south of Hattiesburg, you notice a couple of things, like freeway signs that are missing pieces or, in one case over on the northbound side, the sign is bent over at a funny angle.  My wife asked me on the cell phone if the trees were blown over, and maybe they were, but I couldn't tell.  The thing that struck me when I crossed the state line into Louisiana was that the grass in the median was freshly mown.

I-59 becomes I-10 West and it sneaks up on you, but all the sudden you are on a causeway crossing Lake Pontchartrain.  I'm from Michigan, so I'm used to being on and around lakes, but on boats.  This is the sensation of being on a boat out in, say Grand Traverse Bay, seeing the Leelanau shoreline several miles on one side of you and the Lower Peninsula mainland several miles on the other, but you are driving your car.

When Alene and I came down to visit in April, we arrived late at night and took a cab directly to the hotel in the Garden District.  For two delightful days (70 degrees and no humidity in NOLA) we walked the length and breadth of Uptown, the Garden District, the CBD, and the French Quarter.  Depending on where we were, the signs of Katrina were lesser or greater.  Tulane runs north and south in a narrow wedge of the crescent; at the time, the areas toward the north end of the campus, like the baseball stadium, were still wrecked.  Calhoun Street borders Tulane to the east, and north of Freret Street, almost all the houses were being repaired.  But, by and large, it didn't seem all that bad.  Joggers were out running on the street car tracks on St. Charles (the street car wasn't running); there was a big girls' soccer field day on the levee in Audubon Park; people were sitting in coffee shops and going to restaurants.  There was a lot of construction going on (blue tarps on the roofs) in the Uptown areas that did not flood, but it looked a lot like our old neighborhood outside Detroit (Birmingham, Michigan) where there seemed to be no limit to high and tight you could build in a fifty foot frontage on a quaint street.  When we left, the cab took us through some neighborhoods north of Claiborne Avenue, and the driver pointed out the water marks four or five feet up the doorways.

All of this is to say that you have to come into New Orleans from the east on I-10 to appreciate what happened.  But anything I say about it would be trite.

I am sitting comfortably in my office, books unpacked and shelved, pictures hung in the couple spots where the former tenant left the hooks, tschotchkes arranged (my great philosopher finger puppets, the dancing rabbi, Fearless Leader from Rocky and Bullwinkle, Kung Fu Chipmunk, and the Wake Forest dartboard set on which I inscribed "Lipshaw's Handy Grading System").  Patrick from IT has been down and we seem to be all set.  I have my faculty handbook to read, and lists of the forty souls in Secured Transactions and fifty-three in Business Enterprises who have, by what fate, been entrusted to my teaching.  At Tulane, the faculty is spread into office suites throughout the building, interspersed with the classrooms.  I have just paced it off, and it is about twelve paces from my desk to the room where I will teach Secured Transactions.   For some reason, that seems  cozy.

Perhaps the sensation is the result of having driven a long way in two days, or the discombobulation of a person who likes his routines (give me a Starbucks, a gym, and access to broadband, and I'm a happy camper), but New Orleans was an exotic place before Katrina, and is more so now.   There is an additional sensation, and the best comparison I have is to the close proximity of war and normality that you experience in Israel.  A friend's son is starting medical school in Tel Aviv and, while he was evacuted from his Ulpan (intense language study) in Haifa, he reports life pretty much goes on as normal to the south.  I visited Israel during the Intifada, and was driven back from Jerusalem to Tel Aviv on the freeway that cuts just south of Ramallah.  Life went on in Jerusalem and Tel Aviv, but at an intersection along the freeway, you could see Ramallah several miles away.  Life seems normal here, but it's only a couple miles to the still wrecked and still deserted upscale mall, the streets and streets of boarded and abandoned houses, and the neighborhoods with the white FEMA trailers in the front yards.

Posted by Jeff Lipshaw on August 10, 2006 at 06:28 PM in Life of Law Schools, Lipshaw | Permalink | Comments (1) | TrackBack

To Have a Research Agenda, or Not to Have a Research Agenda: That is the Question

While at the SEALS Conference this past July, I had the pleasure of sitting in on a panel entitled: "Promoting Scholarship Within a Faculty."    Parham Williams (Chapman) moderated an excellent discussion of the topic by Paul Marcus (William & Mary), Susan Carle (American), Nancy Levit (UMKC), and Stephen Ellman (NYLS).  Each had some very creative and insightful ideas on how to promote more scholarly production and interaction on law school faculties.

One of the questions that came up after the formal presentations was whether or not it was a good idea for senior faculty to impress upon junior faculty the need to develop a fairly rigid research agenda at the beginning of their careers.  Initially, a number of both older and younger law professors spoke in favor of this approach as a way of inducing young scholars to engage in frequent research and writing and as a way of having these scholars quickly develop an area of expertise.

I then spoke and gave my contrarian view that research agendas should not be foisted upon any faculty and to do so was not only harmful to creative scholarship, but was actually counter to what we should be striving for as legal scholars.

For one thing, such agendas needlessly make the process of research and writing unnecessarily boring.  After all, who wants to be tied down and creatively suffocated by having to write about the same issues time again and for years on end?  Not  me.   This is not to say that I don't identify myself as a labor and employment law specialist, but if I had to write about employment discrimination disparate impact theory from five different angles (with apologies to Charlie Sullivan), I might do myself harm.

Maybe more fundamentally, I think having a research agenda is counter to how I see the role of a legal scholar.  In my mind, we  are  problem solvers.  I read or learn about a problem in society and I attempt to write articles that provide workable, original solutions to those problems.  To me, this practical orientation of the legal scholar is what separates us from our social science brethren and why it is essential that we should be able to move as we see fit from research topic to research topic without being wed to some larger agenda just because we're worried about not being identified as  the expert in one niche area.   Or as another person in the audience who agreed with me put it: "There should be  a move to require that scholarship actually accomplish something other than the professional advancement of the authors."

I know this take on research agendas is somewhat controversial (and I am not saying that there aren't those out there who profit from following a fairly strict research agenda), but by and large we should not insist on them.    This approach has served me well, and I can only imagine that already stressed out beginning law teachers would be much more productive scholars if they did not feel that the selection of their first piece of scholarship was so deathly important because of the number of similar papers that would thereafter have to follow.

Posted by Workplace Prof on August 10, 2006 at 02:49 PM in Life of Law Schools | Permalink | Comments (6) | TrackBack

Wednesday, August 09, 2006

Welcome (Back)

We're thrilled to welcome back novelist and law professor Kim Roosevelt from Penn's law school.  He's blogged with us, with Balkinization, and with Is That Legal? -- and we're very happy he'll be with us for a little while again.  His novel just came out in paperback; get yourself a copy.

Posted by Ethan Leib on August 9, 2006 at 11:16 PM in Blogging | Permalink | Comments (0) | TrackBack

The Train Pulls Out of Kankakee...

Less than twenty-four hours but more than six hundred miles since I told Dan Markel that I would just as soon not do blog posts that are purely personal rumination, I feel obliged to say something about the longest solo drive I have ever made in my life.   I am now safely down for the night in a Holiday Inn Express somewhere in Mississippi, having left Indianapolis at 7:00 a.m. today.   In no particular order of importance:

1.  If tonight I'm staying in a Holiday Inn Express, then tomorrow when I arrive I should wait until Dean Ponoroff is out of the office and then slip into his chair.  When somebody walks in and asks, "are you the dean?" I can reply, "no but I stayed in a. . . ."

2.  My son and I went to see Talladega Nights:  The Legend of Ricky Bobby a couple days ago.  When I arrived here, I could not bring myself to eat dinner at the Applebee's.

3.  This is the first time I have ever stepped foot in Alabama or Mississippi.  The model of the Saturn 1-B at the Alabama welcome center near Huntsville is cool.  I wasn't so sure about the three sided pillar just across from it that says:  "Alabama:  we dare to defend our rights."  (For the record, I have Hawaii, Alaska, Washington, Oregon, Idaho, North Dakota and South Dakota to go.)

4.  Pilot truck stops have the best coffee.  The one outside of Louisville also had fresh bananas.

Posted by Jeff Lipshaw on August 9, 2006 at 07:55 PM in Blogging, Culture, Lipshaw, Odd World | Permalink | Comments (3) | TrackBack

The University of Mississippi College of Law, Starkville, Mississippi

As a Mississippi law professor, one of the things that happens to me when I'm at one of those speed schmoozing gigs, i.e., academic conferences (and, BTW, no one has anything on Dan Markel when it comes to schmoozing) is that the following conversation inevitably occurs:

Random  Person (squinting at my mid-section to read my name tag):  Oh, hi. You're  Paul Secunda.  Nice to finally meet  you.  I see you're at Mississippi.  You're colleagues with Mike  McCann and Greg Bowman, right?

Me:   I know them and quite like them, but they are at a different law school in the     State of Mississippi, Mississippi College.  I am at Ole Miss Law School.

Random Person (confused now):   Ole Miss?  Isn't that really just Mississippi State?

Me (speaking without having to think):   Um....no, Mississippi State does not have a law school.  Ole Miss is the University of Mississippi.

Random Person (by now feigning interest):  So you're in Hattiesburg?

Me (ready to move on):  No, Oxford.  Near Memphis.  Southern Miss is in Hattiesburg.

Random Person (really ready to schmooze with someone else now):  Well, anyway, nice  meeting you.  Please say hello to Mike and Greg for me.

Now, I want to make clear from the outset that I have nothing against Mississippi College, a fine, private institution in Jackson, MS, and, in fact, I count many of their faculty among my friends.  The problem is simply this:  I don't teach there.

So to set the record straight for once and for all (and just in case anyone cares):  I am at the University of Mississippi School of Law (also called Ole Miss Law School), a public law school  in Oxford, MS (about an hour south of Memphis, TN and two hours north of Jackson).   And I generally do not sit on white rocking chairs on verandas sipping mint juleps (though I'm not saying I never have).

Finally, I am not colleagues with fellow bloggers Mike McCann or Greg Bowman, though I did have a delightful dinner with them at the SEALS conference where we drank red wine out of chicken pitchers (don't ask).

All clear?  Fabulous.

Posted by Workplace Prof on August 9, 2006 at 04:16 PM in Life of Law Schools | Permalink | Comments (4) | TrackBack

Another Milestone in the Quest to Replace Humans with Robots

Meet Rong Cheng, the new Chinese robot that now serves as a receptionist and tour guide in various public institutions in China. Programmed to respond to over 1000 voice recognition commands, she will be on the market next year and her creators hope she will replace receptionists in lobbies and offices around the world. The gender of receptionists is of course slower to be replaced than their actual humanity.


Posted by Orly Lobel on August 9, 2006 at 02:35 PM | Permalink | Comments (1) | TrackBack

Larry Alexander on Compelled Speech

Larry Solum has put the spotlight on a new paper by Larry Alexander of USD, Compelled Speech.  It begins, arrestingly enough, on an autobiographical note, with Alexander asking why, as a lapsed Jew with a devoutly Catholic wife, he is willing to sing along at Christmas Mass when carols are sung, but remains silent when the Nicene Creed is recited.  (I'm sure my MoJ friends will find this an interesting question, but it's no less interesting for those of us who are also lapsed Jews with devoutly Catholic wives!)  He uses this question to examine whether and why "governmentally compelled speech is problematic."  He suggests, after going through a number of possible explanations, that "[t]he harm in compelled speech remains elusive, at least for me."

A couple of thoughts about Alexander's paper, admittedly rushed and tentative thoughts.  First, it's a shame his brief analysis of the caselaw includes neither of the two most recent cases raising these questions: the Johanns case from last Term, and this Term's Solomon Amendment decision.  For more, especially on Johanns, I recommend Robert Post's recent Supreme Court Review article on the case.

Second, Alexander nicely suggests problems with a number of arguments that might be advanced in objection to compelled speech.  But in the particular instance he uses as his touchstone -- the willingness to sing Christmas carols and the refusal to recite the Nicene Creed -- he gives too little weight to the particular quality of an oath that is involved in the recitation of the Creed, as opposed to the fairly weightless quality of singing Christmas carols that, to many,  are so absorbed into our culture that they carry little religious weight.  He does address the possibility that "affirming what one does not believe may seem to some to be blasphemy meriting divine punishment," and writes that he is puzzled over the claim that God would be angry with those who are coerced into reciting such an oath, if they do so with the proper mental reservations. 

But oaths operate in both directions.  As Simon Greenleaf wrote in a 19th century treatise about the oath, it serves "not [just] to call the attention of God to man[,] but the attention of man to God – not to call on Him to punish the wrong-doer, but on man to remember that He will."  Reciting an oath like the Nicene Creed without believing it is not just, if at all, a way of securing divine punishment; it is a jarring way of calling one's own deeply held values to mind, and reminding oneself that falsely reciting a creed is a form of self-betrayal. 

I think Alexander is insufficiently mindful of this notion when he writes that he is equally puzzled by the idea that forced recitation of the Creed might be wrong because it "represents a loss of personal integrity," since the forced reciter "is not in his mind 'affirming' what he does not believe."  Even if the forced reciter is not "affirming" something he doesn't believe, he is, in a way that is very real for many individuals, being called to a critical moment of conscience, a moment of self-examination in which he is asked, publicly and at length, to offer propositions that he cannot agree to.  True, not everyone will experience a compelled oath in this way; some individuals, given enough coercion, will recite carols, creeds, and any other statements easily enough.  But however degraded the modern notion of the oath may be, there is still something about that moment of reciting an important enough oath that, for many of us, asks us fully to account for our own beliefs by confronting us with the beliefs of others.  Something of that flavor explains why, like Larry, I might be willing to sing a Christmas carol but would not recite the Nicene Creed.  And it explains why I find his discussion of reciting the Creed as a "performative" insufficient: reciting the Creed is not performative only in the sense of making a promise to others, but also as a promise to oneself.

Let me add shamelessly that I've written fairly extensively about the relationship between the oath and religious tests in this paper, which I'll promote yet again.

Finally, I find it curious that the paper addresses the wrong of compelled speech solely from the point of view of the person under compulsion.  One might also illuminate the question of compelled speech by considering it from the perspective of the entity that compels someone else to speak.  The paper offers some perfectly sound reasons why the state might sometimes compel its citizens to speak, but we might ask, under what circumstances does or should the state itself feel uneasy about compelling others to speak?  To put it in terms of Larry's Christmas example, under what circumstances would the Church not want Larry to recite the Nicene Creed, or at least not want to compel him to do so?

I'll leave things on that question mark, since the paper does such a nice job of raising questions.  It's very short and typically, eminently, readable.  Enjoy.    

Posted by Paul Horwitz on August 9, 2006 at 12:38 PM in Article Spotlight | Permalink | Comments (7) | TrackBack


Just a quick note to welcome Paul Secunda to our ranks for the rest of August. Paul teaches employment law-related classes at Ole Miss, and is a regular contributor to the Workplace Prof Blog.  You can see his scholarship listed here.  Recently, I had the chance to hear Paul present his provocative (yet persuasive) article at SEALS, where it garnered distinction.  The paper is entitled: The (Neglected) Importance of Being Lawrence: The Constitutialization of Public Employee Rights to Decisional Non-Interference in Private Affairs, 40 U.C. Davis L. Rev. (forthcoming Fall 2006).  Welcome Paul!

Posted by Administrators on August 9, 2006 at 12:56 AM in Housekeeping | Permalink | Comments (6) | TrackBack

The Consultant's Four-Quadrant Matrix (or What You Might Think About When You Have Shpilkes* the Night Before You Hit the Road)

There is a trick to establishing oneself as a wildly successful management consultant, and I am pleased to offer a PrawfsBlawg exclusive on how it is done.   

Here's how it works.

1.  Identify two necessary,  mutually interdependent, yet conflicting attributes or values.
2.  Plot one attribute low to high on the x-axis, and one low to high on the y-axis.
3.  Draw a rectangle with the x-axis on the bottom and the y-axis on the left.
4.  Bisect the rectangle vertically and horizontally to create four quadrants as a matrix.
5.  Identify examples for each quadrant of people, organizations, or whatever it is on which you are consulting that, in your opinion, have the two attributes in the following combinations:  low-low, high-low, low-high, and high-high.
6.  Make it clear that the correct progression in the matrix is from low-low to high-high (i.e., southwest to northeast).
7.  Offer a list of ten things the group hiring you can do to move from low-low to high-high.
8.  Close to thunderous applause, find the bar, and hope they have one of those huge bowls of boiled cocktail shrimp.
9.  Mail your bill for $5,000 for the day's work.

A less cynical take on this below the fold.


In fact, when well done, these presentations are memorable, because the models are simple and there is a fundamental insight they elicit.  I listened to John Kotter of the Harvard Business School present his four-quadrant model on leadership and management to an executive conference when I was working for AlliedSignal.  Kotter's thesis is that management and leadership are just these kinds of necessary, mutually independent, and conflicting attributes of people and organizations.   Management consists of (1) planning and budgeting, (2) organizing and staffing, and (3) controlling and problem-solving.  The leadership analogs of these activities are (1) setting direction, (2) aligning people, and (3) motivating and inspiring.  This is a little dated, but when I listened (circa 1995), Kotter's examples were taken from the airline industry, and you can guess who stood where:

Low management - low leadership:   Eastern
Low management - high leadership:  People's Express
High management - low leadership:  United
High management - high leadership:  Southwest

The point is that leadership and management, particularly as they are found in individual styles, can be oil and water, but successful organizations need both.

Another model came from a fellow by the name of Tom Connellan, who was affiliated with the University of Michigan Business School, and  specialized in consulting on customer service.   Tom was enamored with the intense focus on customer service one found in the Disney theme parks.  Tom's was actually a nine-quadrant matrix, with quality of product on one axis, and quality of service on the other.  What each box described was the customer's attitude toward the firm, and it went like this:

Low quality - low service:  Gone

Low quality - mediocre service:  Going
Mediocre quality - low service:  Going

High quality - low service:  Looking around
Mediocre quality - mediocre service:  Looking around
Low quality - high service:  Looking around

High quality - mediocre service:  Loyal
Mediocre quality - high service:  Loyal

High quality - high service:  An advocate

Just this morning, a friend and I were discussing her painting, and, on the spur of the moment, I did a four-quadrant matrix on "technique" and "passion" (get it?  artists can have high or low technique and high or low passion, and you want to avoid being a passionless hack in favor of being a passionate technician, but if you can't have both, you need one or the other).

This can be quite a parlor game, though I 've not yet figured out how to package it as the next Boggle or Trivial Pursuit.   Or make it a cultural icon like Six Degrees of Kevin Bacon.  I have thought about whether the model applies anywhere in legal academy, and if so, what's the point?  Teaching vs. scholarship?  Clinical vs. doctrinal?  Empirical vs. theoretical?  Does every professor need to strive for high on both axes?  Can you plot faculties as a whole from school to school?   And when you are done, does it mean anything?

Posted by Jeff Lipshaw on August 9, 2006 at 12:27 AM in Corporate, Lipshaw | Permalink | Comments (2) | TrackBack

Summer School for Entering 1Ls Worth Hassle for Anyone?

Dorothy, you're not in Kansas anymore. 

Well, actually to the extent that I am Dorothy (a stretch, granted) and to the extent that the larger blogosphere is one contiguous space  and, therefore, I am  still in the same blogosphere, I guess I still am in Kansas (although I am really in Mississippi).

Actually, what I mean to say really is that I (Paul Secunda, listed as my Typepad laborprof persona below) am excited about being a guest blogger here at PrawfsBlawg (thanks Dan and everyone else!).  I will  also continue to help keep things copasetic with Brother Bales at my regular gig, Workplace Prof Blog (had to get that plug in), but I look forward to focusing on some non-labor and employment issues during my stay here. 

All that nonsense out of the way, I want to bring up something that I was discussing with my colleagues today (you will soon see I am a world class procrastinator).  Here at the University of Mississippi School of Law (that's the one in Oxford, not Jackson; not that there is anything wrong with the one in Jackson (more on that later)), we have historically run a 1L summer law school program, in which entering law students can elect to take Civil Procedure I (here that would be Jurisdiction and Erie) and Criminal Law over an eight-week abbreviated semester.   Both classes are three credits and 2 of the three previous years I have taught the Civil Procedure course.

What this allows these overly-eager 1Ls to do is a number of things.  First, it permits them to start law school at a more leisurely pace by only starting with two classes as opposed to five in the fall (including LRW).  Second, it allows them to get their feet wet, see if they like the law school environment, and perhaps gives them a chance to see what some of their weaknesses might be as far as law school exam test taking.   Third, and perhaps most important to some, it allows 1Ls to have two upper level electives (approved by the faculty) during their otherwise monotonous first year with all the same people in their normal first year section classes (torts, contracts, property, etc.).  Fourth, depending on how many other additional classes these students take over intersession or the summer, they can sometimes graduate a semester earlier (so in December, rather than in May of their third year). 

The reason that I am beginning to think that this might not be such a great idea is because I wonder if such programs simultaneously makes things both more difficult for these students in some regards, while giving them an unfair advantage in other ways. 

On the more difficult front, and I am only speaking from a Civil Procedure perspective, I think it is hard  for these  students to grasp certain concepts if they are not taking certain other classes at the same time.  For instance, it is very difficult to explain the Erie doctrine to these  students when they have little  idea about the differences between federal and state law, let alone any inkling about what the common law is or what principles of federalism are all about.   I also worry that those students who score poorly on their first year summer exams will be unduly discouraged during their Fall semester classes and this might affect their performance unnecessarily down the line.  Also, there has been a historical lack of diversity in these summer school 1L classes as compared to the starting Fall semester classes and I believe this affects the quality of their law school experience.

On the other side of things, I wonder if this set up gives these students an unfair advantage since they can focus on two classes alone, will have less of a learning curve when it comes to beginning classes in the Fall, and they get the extra attention that comes with a small section class of about 20 students (whereas most students in the Fall will have classes of about 60 students). 

In any event, I am still up in the air on whether this 1L summer thing is a good idea (although from a purely selfish standpoint, I like the idea of making the extra income that comes from teaching this additional class).  I would be interested in hearing how many other schools have such programs and whether people are generally in favor, neutral, or opposed to such programs.

Posted by Workplace Prof on August 9, 2006 at 12:25 AM in Life of Law Schools | Permalink | Comments (3) | TrackBack

Tuesday, August 08, 2006

More from Tribe and Lederman on Signing Statements

For some reason the comments to my earlier post on Tribe and signing statements are not registering on the main page.  Larry Tribe and Marty Lederman have graciously commented on my post -- and here's what they have to say:

Ethan: Thanks very much the kind words about Larry's post, and for thoughtfully wading into this important debate. We'd like to focus our comment on only one (significant) aspect of your post.

Like many who discuss these matters, you appear to treat the "unconstitutional applications" problem as a minor and marginal exception, and thus you write as though the unconstitutional poison pill, lodged as a separate and typically severable provision of an omnibus measure, represents the paradigmatic occasion for the issuance of one of these veto-avoiding signing statements.

But, far from being a minor exception, the problem of unconstitutional applications of generally valid measures is ordinarily the whole ballgame. These signing statements are usually (not always, but usually) to the effect that "I'll apply this in almost all situations, but I can imagine some cases in which it'd be unconstitutional."

This is true even with respect to the signing statement on the McCain Amendment, for example. In that case, President Bush was basically saying that, even though he might not like the statute -- and even though he fought hard for a CIA exemption -- he will *generally* abide by the prohibition on, say, waterboarding and hypothermia . . . except that he reserves the right to use such techniques in extreme cases as called for by his view of the nation's security and of military necessity.

Would we really want a president to veto a law such as the appropriations provision in which the McCain Amendment appears just because he can conjure such constitutionally problematic applications? Isn't it *better* that he sign it, implement the other 99 percent of the provisions, apply the McCain Amendment almost always, but give everybody a head's up that in rare cases he won't consider himself to be bound by the attempt to tie his hands in this area?

To be sure, President Bush is wrong on the merits here, and in so many other areas; and in fact he isn't really telling us *when* he would refuse to enforce this restriction. But it's those facts that give rise to the real objections to what Bush is saying and doing -- not the fact that he signed rather than vetoing the legislation, and not the fact that, in signing it, he attached a statement indicating his insistence that he'll obey it but only up to some (unspecified) point.

Note that this describes virtually all omnibus legislation: It is almost always the case that the President can anticipate some possible applications, of some of the provisions, that would raise constitutional problems. The mere possibility that such applications might occur is hardly a reason for the President to veto the whole thing, even as a matter of good government policy -- and certainly doesn't create a constitutional obligation to use the veto. In these cases, the signing statement informs us in advance (or it should, anyway) how the President plans to deal with what he foresees as the possible constitutional dilemmas. It is hard for us to see how that is a bad thing, especially if the President has worked beforehand (as he should) to try to eliminate or amend those provisions that raise the possibility of constitutional problems.

This conversation just gets more interesting, I think.  Perhaps I can modify my position to accomodate this interesting analysis and draw upon the distinction (however tenuous it may be) between facial unconstitutionality and unconstitutionality as applied.  When the President foresees certain unconstitutional applications, signing statements are good and give us fair warning about what the Executive is thinking.  But in those potentially "marginal" cases where the President is making a claim through the statement about facial unconsitutionality (or a claim about the vast majority of applications), perhaps we should encourage the veto rather than a statement of refusal to enforce the law.  Using the McCain amendment just stacks the deck by focusing us on the substantive analysis you think central to this inquiry.  I don't deny that that is a worthy inquiry (and agree with you on the merits).  But it evades the more procedurally-focused analysis I was trying to get at.  If the McCain Amendment had been appended to the Patriot Act, say, perhaps those of our ideological persuasion would prefer a full veto.  But my point has nothing to do with political substance; it is a process point.

Posted by Ethan Leib on August 8, 2006 at 08:35 PM in Blogging | Permalink | Comments (0) | TrackBack

In Waikiki, Jusitce Kennedy Discusses the Rule of Law

Dahlia Lithwick covers today Justice Kennedy’s address at the ABA annual meeting:

"[Kennedy]  is charging the assembled attorneys to do the job of selling to a doubting world "the essentiality of the rule of law." "Make no mistake," he warns, "there's a jury that's out. In half the world, the verdict is not yet in. The commitment to accept the Western idea of democracy has not yet been made, and they are waiting for you to make the case." Referring to terrorism and violence and totalitarianism, he says, "The tide has gone out, and we are on the beach…

To that end, he assigns himself a seemingly impossible task: He wants to define "rule of law" so we can start to peddle the concept worldwide. It is not enough to sell the world on the U.S. Constitution, he says. That is merely a set of "negative commands." He is looking for a positive formulation for the rule of law. "

Posted by Orly Lobel on August 8, 2006 at 01:37 AM in Orly Lobel | Permalink | Comments (4) | TrackBack

Monday, August 07, 2006

On Tribe, On Signing Statements

An eloquent post is available at Balkinization by Larry Tribe on the signing statement/ABA controversy.  There is much to agree with in his analysis.

Yet, unlike myself, he dismisses out of hand the suggestion that it is problematic from a "line-item veto standpoint" for the President to sign bills while he simultaneously chooses not to enforce certain provisions on account of purported "unconstitutionality."  He simply thinks there is no evidence that the President is required to make a choice to veto an omnibus piece of legislation or enforce it in its entirety. 

In his first argument on the point, he claims that "the analogy to the plainly unconstitutional line item veto, of the sort the Supreme Court struck down in Clinton v. New York, fails entirely" because the signing statements have no legally operative effect, unlike a purported attempt to veto portions of a bill. 

But I think the analogy is relevant (for both a legal and policy analysis of the President's actions) not because the signing statements have any meaning in themselves (I agree they have none) but because the President's choice not to enforce the law plainly does have a legally operative effect.  And that effect can often be virtually indistinguishable from a line item veto.  (Of course, sometimes courts might enforce a provision over the President's instructions to his branch not to enforce the law -- but at least in many cases, the President's instructions to his branch not to enforce the law will leave other branches powerless.)  If the effects are the same, a functionalist analysis renders Clinton relevant -- and the policy implications of allowing the President to so selectively enforce the law remain worth questioning.  The issue isn't whether signing statements function as vetoes; it is whether allowing selective enforcement at the moment of enactment is essentially a line item veto.

Tribe's core argument is this:

Nothing in the Constitution's text, design, or history shows that a president's only legitimate options are either to veto an entire bill or to sign it and then enforce it in its entirety regardless of his good faith views as to the constitutional infirmities either of some part of the bill or of some distinct set of its possible applications. Anybody predicting that chaos will ensue unless presidents take their oaths to uphold and defend the Constitution to mean automatically obeying whatever an Act of Congress that they have signed into law tells them to do unless and until the Supreme Court relieves them of that obligation would need to explain why the nation hasn't long since been plunged into chaos by the fact that presidents have never taken so wholly juricentric (or parliamentary) a view of the constitutional universe -- a view that certainly isn't implied by the power of judicial review as recognized in Marbury v. Madison.

The only argument Tribe countenances here is the argument from "chaos."  But that isn't, I think, the most sensible argument for why it may be best to force the President to choose, when presented with a law, to enforce a law in its entirety or veto it.  One consideration may be the suggestion made by Will Baude here that "there is some sort of cognitive bias that allows people to convince themselves that things they dislike are also constitutionally forbidden."  "Then," he argues "you might reasonably fear that the power to not-execute unconstitutional laws will act in fact as the power to not-execute any disfavored law,"  leading to a broad and unconstitutional line-item veto.

Call me crazy, but it seems to me to enhance our democratic processes to ask the President to make a choice when signing: either he can accept Congress's deal or reject it, but he cannot unbundle that deal and enforce it selectively -- that is just the sort of effective repeal and cancellation condemned by Clinton

I appreciate that the President's finding of "unconstitutionality" is different from an everyday policy judgment and that the President takes an oath that suggests that he must do something about laws he takes to be unconsitutional.  But there is a structural argument from the document that what he must do is veto the whole shebang, not mess up the Presentment Clause.  This is the other half of the argument that an executive is constitutionally obligated to veto a law he thinks is unconstitutional.  I have sympathy with that argument -- and have sympathy with this other constitutional obligation to have your cake (sign the whole law) or eat it (veto it) but not both at once.  Neither of those constitutional obligations (or fabrications, as the case may be) are enforceable, of course.  But that doesn't make them any less real.

Aside from the structural reasons are the prudential/policy reasons I mentioned above: it is better for Congress to get another bite at the apple in constructing a deal they can live with.  We get annoyed at judges who upset the balance of legislative dealmaking (and Congress uses severability provisions to evidence its intentions about what should happen in the event of a ruling of unconstitutionality); the President shouldn't be above reproach here either. 

Of course there is some temporal awkwardness.  The President may change his mind or disapprove of unconstitutional applications.  I don't propose that good faith decisions of that nature be precluded or estopped.  But it doesn't follow from that flexibility that there is no obligation for the President to sign or veto and not to veto selectively.

Posted by Ethan Leib on August 7, 2006 at 11:33 PM in Blogging | Permalink | Comments (2) | TrackBack

Sunday, August 06, 2006

The Use (and Misuse?) of SSRN

What role, if any, should SSRN download counts play in evaluating the quality of a legal scholar’s work product?  This is a question I’ve been pondering recently as a member of my law school’s Appointments Committee, which is engaged in a lateral hiring process.  In connection with the search, I’ve reviewed the scholarship of several potential candidates this summer, and I’ve been struck by the large disparities in download counts among scholars who otherwise seem quite similar based on other standard indicators of productivity, such as number of publications, prestige of placement, and Westlaw citation counts.  Indeed, there seem to me a surprising number of quite successful, prolific scholars who either lack an SSRN presence entirely, or whose download counts per article tend to be in the one or two dozen range.  Should this raise a red flag?  As someone who himself has only been on SSRN for a year and whose own download counts are also quite modest—tips, anyone?—I’m in no position to press the issue.  And, yes, I understand that download counts are manipulable, that different law schools provide different levels of support and encouragement for faculty members to develop a presence on SSRN, that some fields (e.g., intellectual property) have much larger audiences in the SSRN world than other fields, and that there may be generational issues at play here, too.  So, I don’t intend to give any particular weight to download counts in our search this year.  But, at some point in the future, I wonder if SSRN dissemination of scholarship will become so much the norm in the legal academy that it really will be fair to raise questions about a scholar who lacks any substantial presence on SSRN.  Is this a person who is out-of-touch with the world of contemporary legal scholarship in more substantive ways, too?  Is this a person who is unable to communicate his or her ideas effectively?  These questions may some day present themselves not only in lateral hiring, but also in promotion and tenure.  Or am I naive in supposing that this is a future reality?  Are download counts already being used in these sorts of evaluative ways at other institutions?

Posted by Michael O'Hear on August 6, 2006 at 09:39 PM in Life of Law Schools | Permalink | Comments (14) | TrackBack

Saturday, August 05, 2006

Professor-Student Wars and the Second-Person Standpoint

As we turn to a new school year, thoughts turn again to teaching and students, and that's reflected here in the various posts over the last couple days.  I read my co-guest blogger Michael O'Hear's most thoughtful post and the comments just before running out to get our dog's monthly fluoxetine fix at Costco ($6.30 for 30 pills - isn't America great?), and I've been thinking about it the whole time.

I want to begin with some anecdotal observations and link this back to some theoretical work I have admired.  Over twenty-five years intervened between when I stepped out of a law school class as a student and when I stepped back in as a teacher.  In 1979, Bill Gates was still just a couple years removed from dropping out of Harvard and hypertext was still a gleam in Tim Berners-Lee's eye; in 2005, laptops and wireless access in the classroom were an issue.   So even though I had experienced my own "Torture by Power Point" in the corporate world, squirming through hours on end of strategic and operational business reviews, I was not fully prepared for  re-immersion in the multi-media world of the new law school.  (Ask any of my Sales students about my attempt to introduce the Arabian Score v. Lasma Arabian race horse case in Doug Whaley's book with the theme music from Mister Ed.  It was a technological disaster.)

I've previously blogged on the subject of setting up mutually conflicting hypothetical imperatives as the basis for archetypal organizational disputes, and Michael's theme - it's not you, it's us - reminded me this is a nice case in point.  Remember that a hypothetical imperative is an "if - then" directive to action under which the validity of the directive in the "then" clause depends upon situation posed in the "if" clause (hence it is hypothetical).  "If you want to get into a good law school, then do well on your LSATs."   Directing somebody to do well on LSATS is absurd if the person doesn't want to get into law school.  This contrasts with a categorical imperative that, by definition, has no "if" clause; it is always true.  "Do unto others as you would have them do unto you." 

The basic hypothetical imperative works in organizations like this:  "if we want to be more successful and get along better, then you should stop  doing what you do, and interfering with me, and instead accommodate what I do in the way I am used to doing things."

Bear with me for a personal anecdote as illustration.  Faced with teaching a standard doctrinal class for the first time, believing myself to be an engaging sort of person, wanting very much to prove that I could be a professor as I remembered my professors,  and most of all, wanting to shed the  canard of "practitioner,"  I had a pretty clear vision what I wanted to do, and how I wanted to do it.  The idea of Power Point was, for some (entrenched?) reason, anathema.  Perhaps that I could not imagine Gerald Gunther, or Bill Cohen, or Bill Baxter, or John Kaplan standing in front of a Power Point outline.  I also came from a management philosophy heavily biased toward personal accountability and delegation (versus command-and-control).

The academic dean asked each professor teaching a IL class to give a practice exam question late in the term.  It was clear several weeks into the fall term that the students (a wonderful group by the way) were engaged in the usual first term struggle, panicked about what exams would be like, and struggling mightily with the concept of consideration in my class.  I put it to the class, and on overwhelming vote, agreed to give an early practice exam (sounds like what Orin does, but monitored by the LRW profs on a timed basis), based solely on the first sixty-one pages of reading and class discussion.  I did not grade them or even write a full model answer, but I did a pre-test extra session on how I approached exams, wrote and posted an outline of the model answer, conducted a special review session, and did a sign-up for appointments for anyone who wanted to spend thirty minutes while I looked over and reacted to the answer in real time. 

Apparently the student panic manifested itself in a consensus among at least some students that they wanted it as a take-home.   The exam was to take place from 4:00 p.m. to 5:00 p.m. on the same day as my class, which ended at 2:50 p.m.   The class started with a student asking "does it have to be a timed exam?  do you care if we do it as a take-home?"  My mode of going ballistic is probably a forced calm combined with somewhat snarky  sarcasm.  I said, "Are you a legally competent adult?  It's your decision.  I don't care whether you take it home or don't take it at all. There's no attendance taken and I won't know one way or the other.   But  [the LRW prof] and I aren't doing this for us; we are doing it for you.  Now, if you want to pass up the chance, after all this panic, and all the prep we've done, to find out what it's like to take an exam in the heat of a timed session, to feel the pressure of reading, assimilating, organizing and writing a coherent answer in fifty minute, that's your call.  I think you would be inordinately foolish, but I'm not going to decide for you."

So let's assess how professor and students (who, by the way, seem to like each other) are seeing themselves and the other right about now.  I see myself as  carrying on a noble tradition, designed to foster critical thinking and independence, particularly in the face of the world of gray areas and conflicting rules the students will face in their careers.  The students appear to be, in a word, molly-coddled.  The phrase that pops into my mind is "enabling behavior" as for addicts:  see what your soccer moms, television-shortened attention spans, and Power Point outlines have done.

I can't speak for all the students, but based on later discussion, I think there is some basis for this characterization of their concurrent reaction.  They see themselves as victimized by this bizarre language and culture they are being asked to absorb, in a teaching method by and large that is foreign to them, with no clear answers.  And it is coming, at least in my case, from a first-time professor who seems, for the sake of tormenting and confusing them, adamant in not providing a term-long syllabus by which they can anchor themselves, or giving a Power Point outline to organize where we are, or ever coming to a clean, crisp conclusion either at the beginning or end of class.  (As opposed to in the office, where the final line is often "why do I understand it in here but not in class?")

Each side's case can be put in the form of a hypothetical imperative:  if you want to [learn well] [teach well], then you should stop resisting doing things [my][our] way, listen to [me][us], and accommodate [my][our] way.  And this, if not resolved, just cycles.  (If you have any doubt, put into this format any one of your best fights with spouse, partner, significant other, parent, child.)

So there is something special in an insight like Michael's:  the problem is me, not you.  (I actually like that better than the first person plural because it enforces the idea of accountability.)  But I don't think the answer lies in attributing fault to the other (blame) or to oneself (mea culpa), because the problem is  mutual, mirror-image, and from the standpoint of each protagonist, absolutely clear.   Stepping back, the problem would not exist but for the fact that you and I each want a result, but are trying to impose our self-generated hypothetical imperatives on each other.

And now a diminishing returns warning.   I am far better at explanatory modeling of this dynamic than in proposing normative solutions.  As I mentioned in the entrenched interests post, the solution we tried at Great Lakes was deontological, and much of what you have read here was significantly influenced by that experience.  But that approach had its problems as well.  You walk a fine, fine line sounding like you are preaching interpersonal moral duties in the business world, and the approach may have strayed over the line not in its substance, but in its presentation.  Nor is a blog post the place to try for a more fulsome explication.  I'm convinced, however, that there are tremendous insights in the work around the second-person standpoint by Rob Kar (Loyola - Los Angeles), which in turn keys off insights from Stephen Darwall at Michigan.

That work focuses on second-person claims, something with which I continue to wrestle, because I think claims and demands are legal in nature, and law doesn't resolve this problem.  But in the interim, the best students, like Belle Lettre, try to get beyond their own angst, and try to figure out if there is some method in the madness being presented to them (to Orin's and Michael's point, it helps if it is done well).  And it struck me that the best teachers (maybe the ones who are doing it well) try to get beyond their own entrenched interest in doing it the way John Kaplan or Bill Baxter or Clark Byse did it (whether we loved it or hated it), and be thoughtful about what it all sounds and looks like to a student.

Posted by Jeff Lipshaw on August 5, 2006 at 06:36 PM in Life of Law Schools, Lipshaw, Teaching Law | Permalink | Comments (4) | TrackBack

Law schools and universities

An issue that, I gather, comes up a lot during faculty meetings and among law profs is the relationship between a law school and its university.  (Some law schools, of course, are stand-alones, and do not have a formal relationship with a university.)  How much control / oversight / supervisory power over a law school's fund-raising, hiring, spending, tenure-and-promotion practices, etc. should the university's administration have?  In which of these (or other) areas should the law school dean, administration, and / or faculty have relative independence?  What are the costs and benefits of relatively close, and relatively distant, relationships, respectively?  Any thoughts? 

Posted by Rick Garnett on August 5, 2006 at 01:19 PM in Life of Law Schools | Permalink | Comments (1) | TrackBack

More Advice for Law Students: It's Not You, It's Us

I like the advice to new law students from Orin and Brannon, but I would give a somewhat different twist to the “everyone feels lost” theme.  As I often tell first-years, they are dealing with a standard model of legal education that is poorly designed to facilitate their learning.  (With apologies to George Costanza, “it’s not you, it’s us.”)  The first semester of law school is not really about mastering any particular content, but acquiring certain essential lawyering skills: how to read a case, how to read a statute, how to reason analogically, how to construct a syllogism, etc.  Learning complex skills like these requires regular practice, preferably with individualized guidance and feedback from someone else who has already mastered the skills.  The standard first-year section in the large lecture hall, however, is incompatible with individualized teaching and encourages passivity by students.  Moreover, the hide-the-ball teaching methods that many of us picked up when we were students don’t help, either.  In the absence of any positive feedback, the feelings of being lost and inadequate can easily become self-perpetuating.  All of this, I think, lends greater urgency to Orin’s point about spending a little bit of time with professors outside the classroom.  Students, make sure you get some individualized feedback for yourself—the earlier in the semester, the better.  I would, for instance, ask a professor to read one of my case briefs in the first couple weeks of the semester.  This provides a nice opportunity for a focused conversation that is likely to include both some positive feedback and some tips for improvement.  (And prawfs, I think, should do their part by affirmatively encouraging first-years to submit a case brief for such informal feedback.)  In any event, being upfront with students about the deficiencies of the standard legal education model may not only save them from getting too down on themselves, but also help them to see what steps they can take to mitigate those deficiencies.

Posted by Michael O'Hear on August 5, 2006 at 11:06 AM in Life of Law Schools | Permalink | Comments (12) | TrackBack

Sinking A Forty Foot Putt on the 18th Green

As golfers know, it's what keeps you coming back, despite all the frustration on the first seventeen and four-fifths holes.  I was going to jump in with a no doubt useless insight on the "laptops in the classroom" debate, but instead I read this from Belle Lettre, and thought "encountering students like this  is the equivalent of the long putt in my teaching experience."  And written by someone less than half my age.  I wish I had been that wise.

But if the goal of being a professor is to teach and to impart knowledge and to guide the students through the process of learning, then there is much greater responsibility--even more responsibility than your students have--to be good, because in the being good, there is the doing of good. That good being, of course, the education of young minds and the profoundly transformative effect knowledge has on the young. Once you know something, you can never go back to your state of ignorance. And young people are really ignorant. I know this, because I am a young person. I have learned so much from my professors, and not merely blackletter law (actually, what is that?) I have learned legal history, philosophy, ethics, and once in a while, humor. Law professors have the enviable ability to teach facts, impart wisdom, and inspire their students (by example and oratory) to do "right." And that is the greatest good.

Posted by Jeff Lipshaw on August 5, 2006 at 06:18 AM in Culture, Life of Law Schools, Lipshaw, Teaching Law | Permalink | Comments (0) | TrackBack

Friday, August 04, 2006

Incoming Students (and Teachers?) - Listen Up...

Two legal blogs have posted today useful advice for the new law student. Orin Kerr tells us that it is normal to feel lost and suggests frequenting your professors’ office hours and asking lots of questions. Brannon Denning advises to treat law school like a job, and finishing up work, and then play, maintaining other interests and (my personal favorite) exercise.

Interestingly, most of this advice seems to me to apply to new (lost) prawfs as well...Good Luck incoming law school classes around the world!

Posted by Orly Lobel on August 4, 2006 at 07:43 PM | Permalink | Comments (0) | TrackBack

Would it Smell As Sweet By Any Other Name?

Here's another data point for Ethan: Providing a link to the use of the word "shit" in the online version of the New York Times?  No problem.  Using it in print?  Not so much.  Well, what if we just say it in French?  Sorry, but -- non.  (Scroll down to the second-last paragraph on page 1.)   

Posted by Paul Horwitz on August 4, 2006 at 11:34 AM in Article Spotlight | Permalink | Comments (1) | TrackBack