Friday, September 29, 2006
Bill's post generated a significant amount of heat for its one paragraph on issues of race/ gender/ ethnicity/ class and research agendas. I want to ask about the paragraph before that one, though, which began:
Agendas, I have to think, can really be developed only after close work with an already-established scholar who can mentor the candidate. While I don’t have a PhD, I would think the model is of a PhD student who works closely with an advisor after a period of close reading of advanced materials.
I'm not sure I agree about the two central points Bill's making here. First, on the assumption that PhD programs work through close mentoring relationships -- it can happen that way, but in my experience it doesn't have to, and often is better if it doesn't. Some of the best dissertation advisors have numerous students whose committees they are overseeing at any one time, as well as other drains on their time (such as their own work). In some fields, a PhD student may coauthor work with an advisor or ride on an advisor's grant, but a successful graduate student and future academic must begin, fairly early on, working independently both to develop a research agenda and complete her or his work. An overly close mentoring relationship can sometimes get in the way of both of those things. Mentees who become acolytes of their dissertation advisors may, as a result, enjoy some initial success riding the coattails of their mentors, but their inability to strike out on their own by doing creative, independent work is likely to sink or stall their intellectual development. They probably won't really enjoy their academic careers, either.
Second, as to the mentoring relationship in law schools, it is obviously less close than in PhD programs . . .
. . . although that too can differ from school to school (at a major academic-producing school like Yale, for example, there are so many students vying for faculty time that close mentoring becomes quite difficult, especially given the short length of a JD education and the classroom demands of a student's first year). But I think the same dynamic holds with respect to mentoring: too much is not a good thing. If "mentoring" becomes a form of "do work like mine," that might bring some short-term gains -- such as, e.g., research assistant positions (which aren't necessarily good things for wannabe academics) and, especially, the implicit or explicit promise of an excellent clerkship recommendation and, later, "picking up the phone" for the candidate when she goes on the job market. But it may also come at the long-term expense of developing one's own research agenda.
To be a successful academic long-term requires really wanting to strike out on your own. If a mentoring relationship achieves that, great -- but what a wannabe academic needs more than that is models for scholarly work and support in striking out on her own. That, to me, is what a good PhD program can do a better job of providing than a law school can. But it's not really mentoring, in the traditional sense. Much of what happens in graduate school occurs in lonely moments of reading, writing, or performing research (if that requires something other than reading and writing). Law schools can do this as well, and, goodness knows, plenty of current law professors, and entire generations of them in the past, have produced stellar scholarship without the benefit of a formal PhD program. But training for independent research is not the default mode of education in JD programs as it is in PhD programs.
The short version of my point is this: The research part of an academic's life is an independent endeavor that requires skills that no amount of mentoring can necessarily help develop. Too much or the wrong kind of mentoring can inhibit the development of those skills. I think this makes an academic's life fundamentally different from a lawyer's career, where mentoring can actually provide significantly more assistance. Working closely with a supportive and patient law firm partner or clerking for a wonderful judge can be an incredibly important step in a young attorney's development. That kind of mentoring -- whether it comes from a partner, judge, or professor -- is likely to have much less effect in the development of a young legal academic.
Happy Anniversary, Mr. Chief Justice
As noted by How Appealing, today is the first anniversary of Chief Justice Roberts's swearing-in. Congratulations!
In Defense of the Research Agenda
Although many of Bill's points against the research agenda are worth considering (though I confess that I'm with Kate (!) about the suggestion that it has gendered/class/racial effects), let me say something in defense of the research agenda: It forces candidates to think seriously about how their work contributes to larger conversations and problems in the legal academy. The point of making a candidate submit a research agenda from my perspective is to see if the candidate can articulate how their work is of interest beyond the narrow subject matter of any particular article, whose focus may be extremely circumscribed. Of course, the agenda also helps assess whether a candidate has any real ideas beyond the particular article on which they happen to be working -- and the statement requires candidates to do more than put on a line on their resume listing "works-in-progress" or "forthcoming" with parentheticals. I think it is reasonable to require of candidates that they show some inclination to think broadly about their subject matter and that they think in a real way beyond the particular project on which they are working during a given hiring season. Even if the candidate thinks she is bullshitting, there is much that one can learn from how candidates speak about their work and their plans.
I don't think anyone is suggesting that the agenda is a binding statement of what the candidate needs to do upon being hired. Rather, the agenda gives an appointments committee a flavor of the sorts of problems and concerns that drive the candidate's research, gives the committee a sense of likely areas of teaching and writing in the future, and gives the committee a sense of whether the candidate is a fox or a hedgehog. That gives committees very useful information that the FAR form, previous publications, and a resume does not.
Research Canons: Feminist Legal Theory
Our next subject matter for the research canons project is Feminist Legal Theory. (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.) Please comment on the books and articles that are essential to a new academic in the field.
Research Canons: Election Law
Our next subject matter for the research canons project is Election Law. (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.) Please comment on the books and articles that are essential to a new academic in the field.
Self-Help, Satire, and the Meat Market (Part 3 of ?)
Scene: The dread corridors of the Wardman Park, where Marion Peach is pacing back and forth, jittery from caffeine
Time: The morning of the dread hiring conference
What possessed me to schedule three interviews back-to-back for this afternoon?
Well, actually I had no choice in the matter... That’s all the times the schools had left for me.
I’m going to have only five minutes to run back and forth between the ornate, old part of the hotel, to the newly constructed tower. Luckily, I’ve been reading “How to be Assertive Without Being Aggressive.” But in this instance, well, I think something a little more passive-aggressive is in order. You other candidates will think that I’m pressing the “open door” button, and it’s somehow not working, but in reality I’m pressing “door close” all the way. Ha, ha!
Finally, Family Ties on SSRN!
No, not screenplays with your favorite episodes of Tina Yothers. Rather, at long last, I'm happy to announce that Ethan, Jennifer Collins (law, Wake Forest), and I have posted on SSRN a draft of our paper about the intersection of the criminal justice system and the family. Here's the link. Download it and make us feel better. The paper, whose title we changed from earlier drafts, is now entitled: Criminal Justice and the Challenge of Family Ties. Short is the new long, right? So we dropped the colon. Here's the abstract:
This Article asks two basic questions: when does, and when should, the state use the criminal justice apparatus to accommodate family ties, responsibilities, and interests? We address these questions by first revealing a variety of laws that together form a string of family ties subsidies and benefits pervading the criminal justice system. Notwithstanding our recognition of the important role family plays in securing the conditions for human flourishing, we then explain the basis for erecting a 'Spartan' presumption against these family ties subsidies and benefits within the criminal justice system. We delineate the scope and rationale for the presumption and under what circumstances it might be overcome.
You still haven't downloaded it? Ok, here are some of our
crazier more provocative claims and findings.
First, did you know that in fourteen states you could harbor a fugitive without penalty--as long as that person is a family member? We think that's a bad idea and we'll tell you why.
Second, we think the evidentiary privileges for spouses and family members in the criminal justice system should be eliminated. Full stop. Read the paper, and we'll tell you why.
Third, we explain why sentencing discounts for people on account of family ties and responsibilities should be eliminated. We argue that such discounts are wrong, illiberal, and bad policy, and that in the case of the "irreplaceable caregiver," time-delayed sentencing should be used instead where possible. "What's time-delayed sentencing?" you ask. Read the paper and we'll explain...
Seriously, this paper was a lot of fun to write with Ethan and Jennifer, and I'm taking it on the road this coming month, presenting it at Miami, BC Law, and Osgoode Hall in Toronto. It doesn't come out until the summer, so we'd really love your feedback and comments. Many thanks.
Posted by Dan Markel on September 29, 2006 at 12:54 AM in Article Spotlight, Constitutional thoughts, Criminal Law, Dan Markel, Ethan Leib, Law and Politics, Legal Theory | Permalink | Comments (0) | TrackBack
Research Agendas and Entry-Level Candidates
One thing I’ve seen more and more of in recent appointments seasons – to the point of becoming almost a standard part of a candidate’s file – is a research agenda. I must confess to having a bit of apprehension about this development. Full disclosure: I didn’t have anything like a research agenda when I went on the market in 1994, beyond a couple of ideas I had stumbled across in the course of clerking and adjunct teaching. So it might be that my unease is nothing but the first manifestation of becoming a dinosaur. OK, not exactly the first – I never stole music on Napster – but let’s say the first career-related manifestation.
Still, I wonder how much good these agendas really do, and whether they have the potential to do some mischief. Of course their benefits (at least theoretically) are clear: they indicate the degree to which the candidate has thought about the direction she wants her scholarship to take, provide a roadmap for the candidate’s first several years of writing, and thereby provide faculties with some degree of comfort that they’re not going to end up with a junior faculty member who just isn’t writing. And of course they help the candidate’s writing coalesce around a core idea, so she develops a deep expertise in a given area. If the agenda is sophisticated enough, it can also make it easier for the candidate eventually to make a real contribution to legal scholarship, so that the candidate-turned-scholar ends up saying things are significant, and not just saying things that make her an expert or get her published.
Let’s start with an obvious problem that doesn’t go to the actual usefulness of agendas: they work against those who get the law-teaching bug late.
Agendas, I have to think, can really be developed only after close work with an already-established scholar who can mentor the candidate. While I don’t have a PhD, I would think the model is of a PhD student who works closely with an advisor after a period of close reading of advanced materials. (Indeed, my sense is that the prevalence of research agendas is a symptom of the legal academy’s move toward a more liberal arts and less professional focus.) A student who goes to school thinking he wants to become a partner in a firm or a D.A., and only discovers in his second or even third year that he might want to teach, simply has less time to take Professor Mentor’s seminar, and then another, and then do an independent study with her and then spend time working out the path his interests are taking him. Frankly, I’m not even sure a student can do this if they start on day 1 at law school, unless perhaps their undergraduate work (or advanced work in another field) already got them started. The only other option is for the candidate to work with a mentor once she gets into practice. That’s certainly possible, but given the modern reality of law practice, I suspect it’s unusual.
My intuition is that these observations, if true, have significant class, ethnicity and gender bias effects. Most law students have some conception of what it means to be a lawyer; surely at some point they stopped and thought about what kind of law they wanted, or could expect, to do after graduation. But I suspect a lot of students – many, although of course not all, poorer students, people of color and possibly women – don’t have the same connection with academics, and take longer to start imagining themselves as professors. I make no pretensions to having empirical data to back this up, but having been involved in appointments decisions for a dozen years now (and intensively for half a dozen of those years), I do have a sense that, for whatever reason, these effects exist.
I also have some concerns about agendas on their own merits. One relatively minor concern is that agendas, if not carefully thought out, can lead down blind alleys. Normally that’s not only not a problem, but an inevitable and productive part of scholarship – you try one path, find it unworkable, and then go down another instead. But if a candidate feels committed to her agenda, could it amount to a straightjacket that keeps her banging her head against the wall and getting the same bad result? Frankly, I kind of doubt this. But if it’s true that many (most?) agendas end up being substantially revised once the candidate settles down and starts to write, it’s fair to ask what they really add to a candidate’s attractiveness (more on this later in the post).
More generally, though, I do wonder about the quality of research agendas. Unless
the agenda is the product of more than the standard three years of law
school (of which at least one is usually taken up with required courses
that cover pretty basic ground), I wonder if it can keep its promise of
providing a coherent core idea that will organize the candidate’s
scholarship. I have to confess that I’ve not
re-reviewed the research agendas of candidates we’ve hired, to see how
closely their current work corresponds to where they said it would go. (Blogging is great; you can just spout off without having to worry about footnotes.) My
guess, though (and again it’s just a guess) is that my junior
colleagues are writing in areas they had planned to, but not in exact
conformance with what they said. Did they really need a multi-page agenda to explain the basic ideas they wanted to consider in their scholarship?
So, do agendas have any use? As I suggested in my post a couple of days ago, providing a research agenda makes a candidate less risky; even if an agenda ends up being significantly amended or even abandoned, at least it indicates some thought about future scholarship and probably helps those first one or two crucial articles get written. But I do wonder if they’ve gotten far more detailed and elaborate than needed to provide that basic impetus. And of course, they may have class/ethinicity/gender effects. But because they do have at least some benefits, we’re now back to the IBM problem I flagged in the last post: all other things being equal, nobody ever got blamed for choosing the candidate with the multi-year agenda. And the system grinds on.
Thursday, September 28, 2006
Copyright misuse and Grokster's progeny
In a very technical sense, the proprietors of peer-to-peer applications didn’t lose when the Supreme Court decided MGM v. Grokster last year. Rather, the Court merely announced legal theories on which the P2P companies were very likely to lose, and then remanded the copyright infringement suit to the district court for proceedings consistent with its holding. Grokster itself simply settled after the opinion came down, but StreamCast, another defendant in the matter and the company that marketed the P2P app Morpheus, contested the content industries’ motion for summary judgment. Yesterday, the Central District of California issued a thorough but largely unsurprising denouement to Grokster, entering summary judgment against StreamCast on the copyright inducement theory that the Court outlined a year earlier.
Among the various procedural means StreamCast deployed to fight the result was asking for additional discovery regarding, among other things, its copyright misuse claim. The district court dismissed this argument on a laches theory, but in so doing they discussed the substance of the issue and thus made their opinion a bit more interesting. Copyright misuse is a recently revived doctrine that flows from the equitable principle that prevents property owners from prevailing in cases where they’ve abused their ownership rights; it’s an intellectual property variant of the unclean hands doctrine. The effect isn’t to invalidate the copyright, but rather to preclude its enforcement so long as the misuse is ongoing.
Yesterday’s Grokster decision reviews the handful of federal cases to have addressed this issue and concludes that “the misuse defense applies when a copyright holder leverages its copyright to restrain creative activity.” The district court’s terse formulation of the defense raises a lot of interesting questions about its substantive contours and its functional underpinnings.
First, the district court rightly rejected StreamCast’s overly broad conception of the misuse defense as arising in the presence of “any use of copyright in violation of public policy.” If a defendant in an infringement suit could escape liability merely by invoking some open-ended notion of public policy, the exclusive rights afforded copyright owners in Title 17 would just about cease to exist. The district court’s alternative formulation is that it’s not enough to allege just any public policy violation, but that “the misuse defense applies only if a copyright is leveraged to undermine the Constitution’s goal of promoting invention and creative expression.”
From a conceptualist standpoint, there’s appeal in the position that the rights afforded copyright owners can sweep no more broadly than the Constitution authorizes. The intellectual property clause constrains Congress’s ability to create exclusive rights in intangible goods, so it’s hard to imagine how there could be judicial authority to enforce statutory ownership rights that Congress couldn’t have created in the first place.
Whether the district court’s approach imposes a meaningful practical limit though is another question. The effect of an owner’s use of a copyrighted work on the “progress of science” always remains up in the air. The brief but eventful life of widespread, free music swapping via P2P applications certainly cut into record companies’ profits, but I’m not sure if there was a concomitant decline in the number or quality of artists seeking to make popular music. More importantly, the notion that copyright misuse defenses should be evaluated primarily for consistency with the intellectual property clause’s purposive language doesn’t seem much of a practical improvement over the standard proposed by StreamCast.
The district court’s opinion itself suggests one alternative. In reviewing the handful of copyright misuse cases, the court identifies a common concern: that owners will leverage their exclusive rights over a work to extract value from the ideas that the work embodies. This might recommend a definition of copyright misuse that looks to a statutory, rather than a constitutional, standard. The familiar notion that copyright owners own only the expression of ideas present in a fixed work (and not the ideas themselves) finds its expression not in the intellectual property clause of the Constitution but in section 102(b) of the Copyright Act. Courts might more easily be able to determine whether an exercise of an owner’s exclusive rights violates an explicitly defined statutory limit than the “progress of science.”
Another question raised by the district court’s decision is whether a conceptualist approach makes sense at all. Consider the instrumentalist alternative: just let owners craft their own licensing terms, and then let the free market work its magic. An idealized account along these lines would expect users to reject overly restrictive licenses, or at least to demand that they be priced so cheaply that owners would be required to proffer less restrictive terms (at higher cost) in order to turn a profit.
Pushing back against this expectation, though, is the exclusive nature of intellectual property rights. If there were an unlimited suite of alternatives to copyrighted work for users, then it might make sense to apply the efficient-markets assumption. But the copyright “monopoly” prevents anyone but content owners from trading in a protected work, and invests those owners with disproportionate economic leverage—hence the heavy influence of antitrust principles on intellectual property misuse doctrine.
The confluence of these fields may also explain why StreamCast tried to confuse the issue by cobbling together a copyright misuse defense by gesturing generally at the content industries’ market power. The district court rightly saw through this attempt to broadly equate misuse with any antitrust violation, and made the sensible move of demanding that there be a close nexus between the plaintiff’s copyright use and their anticompetitive behavior. How to define this nexus, though, remains a tricky issue.
New Jersey's Optional Election Law Statutes
Rick Hasen's Election Law Blog notes that a reprise of the notorious 2002 Forrester-Torricelli debacle is in the works. Apparently Senator Robert Menendez, the hand-picked successor to now-Governor Corzine who has faced allegations of corruption, may drop out of this fall's race and New Jersey Democrats will seek to replace him on the ballot. Republicans, of course, want to forbid any such replacement, because Republicans have a decent chance (even in New Jersey) if their Democratic opponent is a candidate who is thought to be corrupt and has declared his intention not to run for the office.
The Republicans would appear to have the law on their side, as the relevant statute (NJS 19:13-20) states, "In the event of a vacancy, howsoever caused, among candidates nominated at a primary election for the general election, which vacancy shall occur not later than the 51st day before the general election, or in the event of inability to select a candidate because of a tie vote at such primary, a candidate shall be selected in the following manner . . . A selection made pursuant to this section shall be made not later than the 48th day preceding the date of the general election . . ." The implication, as I read it, is that vacancies shall not be filled at all unless "occur[ring] not later than the 51st day before the general election," as there is no statutory provision governing vacancies that occur between day 50 and the election.
Appearances, however, can be deceiving. In what surely ranks as one of the worst judicial decisions of the millennium, the New Jersey Supreme Court decided in New Jersey Democratic Party, Inc. v. Samson, 814 A.2d 1028 (N.J.), cert. denied 537 U.S. 1083 (2002), that replacements were allowed within 48 days before the election as long as there was time to print new ballots and run the election "in an orderly manner." As a result of the decision, Frank Lautenberg replaced Torricelli and defeated Forrester in the general election. The decision, said the court, was motivated in part because of the strong public interest in giving voters a choice of candidates. The court's idea of a "choice," however, was contestable (and at any rate should not have overcome the clear implication of the statutory language): Apparently the court believed there should be a Democratic and (presumably) a Republican nominee -- third party choices were deemed insufficient.
Is the Analogy to the Alien and Sedition Acts Too Generous?
For a variety of reasons, I have, until now, been keeping rather mum on the debate over the Military Commission Act of 2006. In light of today's New York Times editorial, one of the strongest and harshest I've ever read in _any_ paper, let alone the paper of record, and in light of this morning's 51-48 defeat of the Specter Amendment in the U.S. Senate, I think the time has come to say something.
The problem is, I don't know what to say. Yes, the bill has all kinds of horribles hidden (some in plain view) within its text. But I'm a federal courts geek. And so, whereas there's lots to say about the various substantive issues -- the authorization of military commisssions, the definition of "enemy combatant," the evisceration of Geneva Convention rights -- to me, there's just nothing that stacks up to Congress's continuing attempt to oust the federal courts of jurisdiction to decide some of the most basic and fundamental questions that our legal system has ever confronted. And the MCA, in its current form, would preclude federal jurisdiction over virtually any habeas petition filed by a non-citizen detainee in the war on terrorism. That is, Congress is, for lack of a better word, too scared that the courts might just take issue with such a blatant assault on long-held, well-established conceptions both of individual rights and limitations on governmental power. And so, in one fell swoop, Congress is showing its arrogance all while arrogating what may well be the most important check in our system of checks and balances -- the countermajoritarian role of the courts in checking the excesses of the political branches.
The Alien and Sedition Acts of 1798, which provided the epigraph for today's Times editorial, were simply bad policy. But the MCA is far worse, because it denies to the courts the opportunity to decide whether it is unconstitutionally bad policy. If the courts are to be such bit players in our system, why raise such a huff over nominees to the federal bench?
Because I simply don't know what to say anymore, I'll just quote somebody else: Justice Frank Murphy, dissenting in In re Yamashita:
While peoples in other lands may not share our beliefs as to due process and the dignity of the individual, we are not free to give effect to our emotions in reckless disregard of the rights of others. We live under the Constitution, which is the embodiment of all the high hopes and aspirations of the new world. And it is applicable in both war and peace. We must act accordingly. Indeed, an uncurbed spirt of revenge and retribution, masked in formal legal procedure for purposes of dealing with a fallen enemy commander, can do more lasting harm than all of the atrocities giving rise to that spirit. The people's faith in the fairness and objectiveness of the law can be seriously undercut by that spirit. The fires of nationalism can be further kindled. And the hearts of all mankind can be embittered and filled with hatred, leaving forlorn and impoverished the noble ideal of malice toward none and charity to all.
This morning's Times editorial concluded by calling the MCA "a tyrannical law that will be ranked with the low points in American democracy, our generation’s version of the Alien and Sedition Acts." I fear, given the damage it may well do to the proper separation of powers, that such a conslusion is overly optimistic. The substantive provisions of the Act may well be constitutional, but that should be for the courts, and not for the political branches, to decide.
Comparing state court clerkships versus federal court clerkships
I'm curious what readers think about the relative merits of state court clerkships versus federal court clerkships, particularly with regard to careers in academia. How, for example, does a federal district court clerkship compare against a state supreme court clerkship?
(I realize that there are other factors that may weigh in, such as whether one is interested in practicing law in the state of the state supreme court; whether one is interested in trial level litigation as opposed to appellate litigation; whether one likes one judge better than the other; and so on. But let's put those aside, and focus just on the question of which is more prestigious for the purposes of the Faculty Appointments Register form.)
I can see how someone who wants to teach, say, first year criminal law might be drawn to a state supreme court over a district court. And perhaps the same would be true for someone with teaching interests in contracts, property, or torts -- though I seem to recall lots of contracts cases from my clerkships, thanks to 28 USC s 1332 (diversity of citizenship).
But absent any teaching subject matter draws, does the federal district court necessarily carry more weight? Should it?
Research Canons: Education Law
Our next subject matter for the research canons project is Education Law. (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.) Please comment on the books and articles that are essential to a new academic in the field.
Research Canons: Energy Law
Our next subject matter for the research canons project is Energy Law. (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.) Please comment on the books and articles that are essential to a new academic in the field. It might be interesting to discuss what other fields are the primary contributors to energy law: ad law, property, etc.
Is "independence" the new "activism"?
There has been a lot of comment, in both the dead-tree and blogospheric media, about Justice O'Connor's recent opinion piece on "judicial independence." (She has addressed this topic often, in speeches and appearances, since her retirement.) She writes:
Directing anger toward judges enjoys a long -- if not exactly venerable -- tradition in our nation. President Thomas Jefferson, for instance, was a particularly spirited antagonist of judges appointed by the Federalists. Moreover, President Franklin D. Roosevelt sought to increase the number of Supreme Court justices because the court invalidated several pieces of New Deal legislation. And I can distinctly remember seeing lawns and highways across the country that featured signs demanding the impeachment of Chief Justice Earl Warren.
But while scorn for certain judges is not an altogether new phenomenon, the breadth and intensity of rage currently being leveled at the judiciary may be unmatched in American history. The ubiquitous "activist judges" who "legislate from the bench" have become central villains on today's domestic political landscape. Elected officials routinely score cheap points by railing against the "elitist judges," who are purported to be of touch with ordinary citizens and their values. Several jeremiads are published every year warning of the dangers of judicial supremacy and judicial tyranny. Though these attacks generally emit more heat than light, using judges as punching bags presents a grave threat to the independent judiciary.
Now, count me in as being all for "judicial independence." That said, I was struck by the claim that complaints about "activist" judges who "legislate from the bench" are themselves threats, or the precursors to threats, to "judicial independence." Then, reading Larry Solum's post on Kermit Roosevelt's new book, "The Myth of Judicial Activism" (which sounds fascinating), I wondered if "judicial independence" is, or is becoming, the new "judicial activism"? Which is to say, does "judicial independence," as currently deployed in our public conversations, really have any content, or is it -- like "judicial activism" -- more a place-holder for other, unspoken, objections to arguments or decisions? Thoughts?
Wednesday, September 27, 2006
Specialization in law school faculties
In a comment on one of Paul's typically adroit and artful posts, Kevin Heller made a comment that went in a somewhat different direction -- and one worth responding to a separate post, I think, to benefit those who don't check the comments. In brief, Kevin asserted both from personal preference and as advice to those on the market that there are frequently excellent reasons, besides geography, to choose a "lower ranked" school over one that's higher ranked: the faculty at the former might have more and better people doing work that shares a methodological or theoretical approach to yours, or that is in the same doctrinal or policy area. In addition to the advantage of creating a stronger community of interest that will aid your own development, it might indeed be better for promotion and tenure purposes to be at a place where senior faculty really support your work if your particular commitments would be an outlier at the "higher ranked" school.
This raises a bunch of really interesting issues. First, I don't think you see this kind of specialization as much in law schools as in graduate or even undergraduate programs. George Mason's methodological and political commitments, for example, are so striking because it's so rare in law schools to commit to that degree, while many graduate programs sell themselves based on the single or limited number of approaches that their key faculty offer. Law schools tend to be generalist institutions that offer the same general variety of courses -- frequently because they have to under accreditation requirements -- and that are composed of a typically motley crew of faculty members hired over the course of several generations. And over those generations and appointments seasons, those hires have served either a variety of curricular needs or are based on some notion of a "best athlete" available at the time -- an athlete whose quality and work are likely to be defined based on that which is prevalent on the law hiring market and in the larger world of academia at the time they're hired. As a result, specialization is more difficult to achieve. I also think there's also much less interest on the demand side, among students and alumni, than in grad and undergrad programs. (I have mixed feelings about special programs and institutes and the like within law schools, but that's a whole nother set of issues.)
Second, I think this goes to some of the oddities of the law hiring process we've discussed on this blawg in the past couple of weeks. If law school faculties tend not to be focused, they have a difficult time sorting candidates whose work has a particular focus. How can a faculty with a small number of legal [fill in the blank: economists, cognitive psychologists, humanists, etc.] decide the merits between different candidates within that specialty, muche less choose between, say, candidates for a torts slot that each claim to do work in different fields of law-and-[blank]? One way to do so is to lean on other credentials that speak little, or not at all, to the candidate's value as a law-and scholar: law school, clerkship, law review placement of the article they just published.
But to return to Kevin's comment:
I agree with him, to a point. Legal academia's generalism is a weakness, certainly -- it allows all kinds of mediocre work to pass through the cracks, and it means that every loud-mouthed legal academic can feel empowered to stand up in the middle of the talk and deliver what he (gender chosen intentionally) considers the absolutely cutting critique that instead demonstrates his own ignorance of a field. And there's real value in finding in a home institution a core group of like-minded souls who can read your work and challenge it on its own terms, and with whom you can converse regularly.
But generalism can be a strength, too. Narrowly focused graduate programs can produce brilliant work, yes, but they can also become echo-chambers, and opting into a lively but narrowly-focused community can also fence out those who might bring an important external challenge. To me, the ideal law school would be one where there are a few people whose work is like mine, but lots of really interesting and open and brilliant people whose work and whose politics are somewhat and even completely different from mine. As a student, law school felt like a much more diverse and varied world than graduate school did, and I liked that; I think law school faculties, at least as an ideal, can provide the same thing precisely because of their tendency towards generalism.
One can try to develop a community of friends and colleagues across the country (and, thanks to Kevin, halfway around the world) with whom you can share work and get insightful commentary. It's much more difficult to build that kind of network among people working in different fields and from different perspectives. Having those folks in your home institutions is really great and really important, too.
Self-Help, Satire, and the Meet Market (Part 2 of ?)
(This post is a continuation of the satire, which started here, discussing the relevance of self-help books to the process of seeking an academic job).
"The Rules," having nothing to do with the cathedral.
Don’t talk to a hiring chair first. Don’t ever go dutch on a callback. Always end phone calls first.
Scene: Marion Peach’s office at Anonymous Law Firm.
Time: Two weeks before the hiring conference.
It’s a few weeks before the AALS meet market, and my “dance card” is nowhere near full. I’m not certain why I’m not more popular. Maybe I could have sacrificed sleep for six months and written two more articles. Worse yet, I think that the partners are on to me already, so I have to make this academic option work out.
Why do I think that they’re on to me? Well, they know I went to more than one pro bono training last month. And there’s nothing that says “I’m looking to keep my options open / leave the firm / become an academic” than attending too many pro bono trainings. Those who really want to make partner are busy billing “real” clients “real” billable hours.
Maybe if I had more of a niche, then my phone would be ringing off the hook. Maybe if I changed my form to say that I’d love to teach some oddball subject, like, say Roman law, or secured transactions, I’d get more attention. Better yet, the secured transactions of ancient Rome. Hey, I could learn Italian. Bellissimo! Oh, they spoke Latin? That's okay. I already speak Latin. Ix nay on the talian-ay.
Perhaps if I invented my own field of legal studies, and wrote a book about it, that would help me on the market. And I still have two weeks before the hiring conference in which to do that! Who needs sleep? Think, Marion, think. I don’t know, after another late night at the firm, it’s all I can do to keep my eyes open. Oh, goodness, where does the time go? Now I’ve lost even more billable time to daydreaming. Let me look at my watch to see when I stopped billing. I’m so tired it’s like everything is melting into each other. It’s like my watch is melting like in one of those Salvador Dali paintings.
Wait! That’s it. It’s so crazy it just might work. I’ll use the Dali as an extended metaphor for the fatuousness of the billable hour. Surrealism and the Law! It will have all of its own terms. How about “melting schema”? Or “transcendent time?” I like it. What does it mean? Who cares? I’ll invent some definitions. The most important thing is that I use a lot of big words to describe it. Words like “abject,” “problematize,” and “hegemonic.” Hooray! I’ve got a real research agenda now.
Oh dear. The rules say I can’t call anyone about this.
Paris Hilton Gets Sloshed After Being Compared to Judge Kozinski
Can this be mere coincidence? Take a look at the two developments here and here. Compliments to Above the Law. One can only speculate on what Judge Kozinski has done upon hearing that he has been compared to Miss Hilton.
Measuring Judicial Greatness
My innocuous attempt to wish Justice Scalia a happy anniversary for his twenty years of service on the Supreme Court has provoked the predictable apoplexy from a few people who object to anything the slightest bit complimentary about the Justice. Some raise the interesting question whether a judge's influence on the law is something to be celebrated apart from a normative analysis of whether that influence has been good.
Certainly there have been attempts to rate the Justices (as well as, for example, Presidents) without regard to ideology, though such attempts never meet completely with success. One fairly recent ranking, which I take from Mike Comiskey's Seeking Justices, asked survey respondents to rate Justices "on their overall performance as Supreme Court justices, using such criteria as the quality of their legal reasoning, their 'learnedness' in the law, their ability to communicate their decisions clearly, and their leadership within the Court . . . putting aside, as far as you can, any consideration of whether you usually agree or disagree with their rulings."
Can we improve on this? Should it matter to a Justice's reputation whether the study and practice of law have changed as a result of his or her service? (More after the jump.)
My sense of the periodic ratings of presidents is that they favor those chief executives that hold a vision of strong executive power. Presidents who don't take action because they don't think it is their job to take action will be devalued in a survey that conflates action with greatness.
If I am right that there is such a bias in those surveys toward active presidents, certainly the bias is even more pernicious in evaluating the judiciary. If we think it is appropriate to recognize judicial restraintists as "great," should we forego any consideration of the Justice's influence? Should influence within the Court be treated any differently from influence on outsiders, or would an attempt to reward "leadership" inappropriately make one's reputation turn on the susceptibility of the rest of the Court to being led? Should we see success at lobbying colleagues as a good (even if it means compromising, for which Justice Brennan is notorious, though he is by no means the only exmaple), or is such lobbying beneath the proper function of a judge?
I am still more conflicted about the idea of rating judges based on the wisdom of the theories they use to interpret the law. On the one hand it seems artificial to ignore a consideration that bears so heavily on most people's assessment of public officials. On the other hand, if historical greatness turned on the substantive wisdom of decisions, the only people we considered great would agree with us. Talent and dedication, rather than philosophy, seem to be what most surveys of this type try to capture. To do otherwise would be "to demean Lee for not being Grant." Scalia, Originalism: The Lesser Evil, 57 U. Cin. L. Rev. 849, 850 (1989). How should we measure judicial greatness?
"Hot" Candidates and "Hot" Schools -- The Self-Replication Problem: Third in a Series
Thanks to Bill Araiza for a very interesting post about hiring. I want to tie Bill's post together with Mark Fenster's earlier post about meat market ethics, in a continuing exploration of the thoughts on credentials, gatekeepers, hierarchies, and so on that I've already started offering here.
Bill writes about a particular kind of replication problem: not that faculties try to hire younger clones of themselves, but that schools typically hire "non-risky candidates," by which he means candidates "that have all the right standard credentials." The Moneylaw folks, and others, have argued that these are not necessarily the most non-risky candidates, in that there are better proxies for future scholarly productivity. But the broad point is that schools favor a fairly standard set of credentials when looking at hiring candidates. (This ultimately is a replication problem, I think, because even if faculties try to hire better versions of themselves, they are still trying to hire better versions along dimensions that are roughly similar, if glitzier. See also Shubha's comment to Bill's post.) And in his post, Mark writes about the responsibilities that "hot" candidates -- meaning those who have the "'right credentials'" -- have to their suitors. That is, if you're a top 20-looking candidate, do you have an obligation not to mislead "Law School #75" about your actual willingness to take a job there.
Mark's question carries with it the implication, one that he neither agrees nor disagrees with but that is entirely common-sensical, that Top-20 Candidate is unlikely to be seriously interested in "Law School #75." Let's use this to think about Bill's discussion, but from the prospect's view rather than the hiring committee's perspective. Viewed in this light, candidates' own choices, their own assumptions that they ought to prefer school #20 to school #75, create a self-replication problem: candidates with strong conventional credentials are likely to flock to schools that have correspondingly strongly credentialed faculties, and avoid schools that are either just plain lower-ranked or that, in some cases, are lower ranked not because they are weak schools but because their credentials are less conventional.
In one sense, we might look at this as not being a "problem" at all. If you're a hotshot candidate, why not go to a hotshot school? This is all just the market sorting itself out. I think that's often enough true, and that there are many strongly credentialed schools and candidates whose performances, and not just their resumes, are very strong, so that the bargain looks like a good one from either side of the divide. But all this assumes that both the candidates and the schools are actually making informed choices.
I think there are good reasons to question this assumption. The law schools' fixation with credentials is not just a matter of prudence or efficiency, or of a carefully considered view that the conventional credentials really are good proxies for future potential. It is also a confession that many faculties and faculty members find it painfully difficult to make qualitative judgments about quality in the legal academy; a symptom of the broader insecurity of the legal academy about its status and legitimacy; and, not least, a capitulation to a variety of market forces, including but not limited to US News. And many faculty applicants are even more incapable of making any qualitative judgments about various faculties, even more insecure, and thus even more likely to rely on rankings and other conventional credentials when choosing among potential employers. This is doubly true because law schools tend to hire only graduates of a very few select law schools, and these individuals are already both fully acculturated into the credentialist worldview, and unlikely to know much, or think much, of schools outside the list of usual suspects.
This leads me to suggest two things. First, in thinking about the degree to which law faculties are unduly credentialist in their outlook when hiring -- and, more to the point, clumsily credentialist -- we should not put all the blame on the law schools. It takes two to tango, and faculty candidates also contribute to these issues. Second, we should question the assumption that Top 20 Candidate ought to want to teach at School #20, and certainly ought not want to teach at School #75. Faculty candidates who are making a genuinely qualitiative judgment, not only about the quality of a law school but about what kinds of qualities they are looking for in a law school, should not be so quick to assume that the US News rankings tell them all they need to know in evaluating those schools that come calling for them. There are a variety of ways in which a school far lower down the chain might actually offer strengths that are well-suited to that particular candidate: not only geographic location, but strong junior faculty members, strong focuses in particular subject areas, good links to strong faculties elsewhere in the university, particular teaching packages or financial inducements, and particular kinds of students.
I think the highly competitive nature of the teaching market is already teaching this particular lesson. Full many a "hot" candidate limits his or her serious consideration to the top 30 or so schools, only to fail to receive an offer from any of them -- or, on some occasions I'm sure, he or she winds up at a prestigious school, but unhappy. And full many a school below the top 30 has attracted some superbly credentialed people, who have been very happy with their choice. But these lessons don't sink home all that easily, and are worth emphasizing. If we are to move beyond replication and self-replication, we should recognize that Top 20 Candidate might not just be unethical to string School #75 along; he or she might also be foolishly ignoring what might actually be a far better choice of law school.
Canons of Legal Thought and Methodology: Structuring a Law Grad Doctoral Seminar
This Fall, the Graduate program at Harvard Law School introduced for the first time a first year doctoral Seminar in Legal Theory and Methodology. The idea is to provide students who are just beginning their dissertation work foundations in canons of legal thought. The structure, organization and content of the seminar has generated quite a bit of debate among graduate students and participating faculty. (A copy of the syllabus is available here, and is reprinted below.)
The seminar creators describe the selection of the readings as following: “The law is one, and perhaps the primary, terrain where two main projects of modern social thought intersect: 1) the positive (descriptive-interpretive-explanatory-predictive) enterprise of the social sciences (sociology, anthropology, history, social psychology, political science and economics) of understanding, explaining, and/or predicting social phenomena; and 2) the normative enterprise of ethical and political philosophy of evaluating (justifying or criticizing) and/or prescribing social action. This conception of law and legal scholarship is, of course, one among many possibilities. In particular, it is in some tension with rival perspectives that focus in varying ways on the internal form, autonomy, or systematicity of law. Among the major approaches of this sort would be analytical jurisprudence or “philosophy of law,” law as aesthetics/humanities, and internalist-doctrinal legal scholarship. The themes and readings would, no doubt, have been considerably different if one of the perspectives guiding these approaches had been adopted. The readings are structured around the following premise: In the early twentieth century, a group of American legal scholars, economists, and philosophers (respectively, Legal Realists, Institutional Economists, and Pragmatists) developed three major challenges to contemporary assumptions about law:
(1) A critique of legal reasoning that pointed out various circularities in common moves of legal reasoning and showed the existence of numerous “gaps, conflicts and ambiguities” when non-circular moves were applied to the formal legal materials (precedents, statutes, constitutional provisions, higher-order concepts, and general policies) that were available to, and formally cited by, judges and other legal reasoners when confronting a fact pattern in a case or legal question (the two critiques, of circularity and of gaps, conflicts, ambiguities, are sometimes referred to as strong and weak “abuse of deduction” critiques);
(2) A critique of many conceptual or formal propositions (not just of law “on the books,” but also “arm-chair” philosophy and abstract economics) as a-contextual, and inadequate in light of empirical knowledge; and
(3) A social theory that combined the first two sets of critiques with insights into the socio-legal shaping of the “private sphere” to culminate in a critique of the following distinctions central to liberal political, economic, and philosophical thought: public/private, state/market, and act/omission (as well as, some have argued, kernels of methodological critiques of strong observer/participant, fact/value and observation/theory distinctions).
The guiding idea for the seminar is that American legal thought today can be seen as responding, in various ways (1) to the insights and challenges of the Legal Realists on the one hand, and (2) to parallel or divergent developments in various adjacent disciplines (key disciplines being neoclassical, behavioral, and new institutional economics, post-positivist analytical philosophy, liberal political philosophy, critical theory, and intellectual history), on the other. Thus, each of the various “schools” of legal thought that remain relatively dominant today can be seen to involve:
(1) A theory of law, understood here primarily in the senses either of:
a. an analytical (conceptual and perhaps empirical) theory of what is “law”; or
b. a theory of how judges do and should decide cases, meaning therefore both
i. a positive-interpretive account of legal reasoning; and
ii. a normative theory of legal argument and decision, one usually backing into a political philosophy (that typically centers on analysis of the office of the judiciary in an at least formally democratic society, and thus that also implies a sociology);
(2) A background social theory that addresses two different questions:
a. an account of what are the significant social stakes of legal decisions and norms; and
b. a more general social-theoretical framing of the interplay between individual agency (of both the authors and subjects of law) and social contexts.
Below is the Proposed Syllabus. I would be interested in hearing reactions to its content and structure.
I. Setting the Stage: the Legal-Realist Critiques of Legal Reasoning & of the Public/Private Distinction
Class one: an historical-sociological overview of the intellectual/legal-theoretical aspects of the key themes of Legal Realism
Class two: an analytical exploration of the key reasoning/analytics of Legal Realism
1a. The Critique of Legal Reasoning as Under-determinate
Holmes, Privilege, Malice & Intent (1894) (c.f. opinion in Vegelahn 1896)
Holmes, The Path of the Law (1897) (c.f. dissent in Lochner 1905)
Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning (1913)
Felix Cohen, Transcendental Nonsense and the Functional Approach (1935)
Karl Llewellyn, Leeways of Precedents in The Common Law Tradition (1960)
Karl Llewellyn, Canons on Statutes in The Common Law Tradition (1960)
1b. The Law-in-Action Critique of Law-on-Books
Holmes, The Common Law (1881) (excerpt)
Brandeis brief in Muller v. Oregon (1908)
Roscoe Pound, Liberty of Contract (1909)
Roscoe Pound, Law in Books and Law in Action (1910)
Walter W. Cook, Scientific Method and the Law (1927)
Karl Llewellyn, A Realistic Jurisprudence – The Next Step (1930)
Fuller and Purdue, The Reliance Interest in Contract Damages (1936-1937)
2. The Critique of the Public/Private Distinction
Robert Hale, Coercion and Distribution in a Supposedly Non-Coercive State (1923)
Robert Hale, Bargaining, Duress and Liberty (1943)
Morris Cohen, Property and Sovereignty (1927)
II.Another Stage: Analytical Jurisprudence or the “Philosophy of Law” and Its Relation to Legal Realism and to Social Theory
3a. Philosophy of Law: the “What is (the “Nature” of) Law” debate
HLA Hart, The Concept of Law (1961) (excerpts)
Joseph Raz, The Authority of Law (1979) (excerpts)
Or_____, Practical Reason and Norms (1994) (excerpts)
John Finnis, Natural Law and Natural Rights (1980) (excerpts)
Dworkin’s “Third” theory:
Ronald Dworkin, Law’s Empire(1986) (excerpts)
3b. The Relationship of Analytical Jurisprudence to Legal Realism and to Social Theory
Brian Leiter, Realism, Hard Positivism, and the Limits of Conceptual Analysis (1998)
Or _____, Legal Realism and Legal Positivism Reconsidered, Ethics (2001)
_____, Naturalism and Naturalized Jurisprudence (1998)
Brian Tamanaha, Realistic Socio-Legal Theory (1997) (chs. 2, 4-5)
Or________, A General Jurisprudence of Law and Society (2001) (chs. 2, 6)
III.The Role of Courts in a Liberal Democracy after Realism
Constitutional Rights Adjudication & Liberal Political Theory
4a. Legal Theory: Defenses of Rights-Based Adjudication
Analytical debate (is it possible?):
Ronald Dworkin, Hard Cases (1975)
Or _____, Law’s Empire (1986)
Mark Tushnet, Following the Rules Laid-Down: A Critique of Interpretivism and
Neutral Principles (1983)
Normative debate (is it desirable?):
John Hart Ely, Democracy and Distrust (1980)
Laurence Tribe, Puzzling Persistence of Process-Based Constitutional Theories (1980)
Mark Tushnet, Dia-Tribe (1980)
Ronald Dworkin, Freedom’s Law (1997)
Jeremy Waldron, The Core Case Against Judicial Review (2006)
4b. Background Political Philosophy: Rights and Liberal Justice
John Rawls, A Theory of Justice (1971)
Ronald Dworkin, Taking Rights Seriously (1978)
4c. Background Political Philosophy: Liberal Rights and Republican Democracy
Frank Michelman, Law’s Republic (1987)
Jurgen Habermas, Between Facts and Norms (1996)
Public Law Litigation as Institutional Reform
5a. Legal Theory: Judges as Social Reformers
Lewis Sargentich, Complex Enforcement (1978)
Charles F. Sabel and William H. Simon, Destabilization Rights: How Public Law
Litigation Succeeds (2004)
5b. Background Social Theory: Institutional Imagination through Escalating Routine Conflicts into Context-Transforming Opportunities
Roberto Unger, False Necessity (1987)
Or_______, Critical Legal Studies Movement (1982)
IV.Private Ordering and the Rule of Law after Realism
Law and Economics: Efficiency/Welfare as Solution to Common Law Under-determinacy
6a. Positive Analysis: Legal-Institutional Analytics
Ronald Coase, The Problem of Social Cost (1960)
Guido Calabresi & Douglas Melamed, One View of the Cathedral (1971-1972)
Richard Posner, Economic Analysis of Law ( 2002) (chs. 1 and 2)
(Summary: Polinsky & Shavell, Economic Analysis of Law, Palgrave (2006))
(Critique: Kennedy, Law & Economics From Perspective of CLS, Palgrave (1998))
6b. Positive Analysis: Economic Theory
Louis Kaplow & Steven Shavell, Microeconomics (2004)
Mainstream neoclassical theory of individuals:
Gary Becker, The Economic Approach to Human Behavior (1976) (ch. 1)
Mark Kelman, Choice and Utility, Wisconsin L. Rev. (1979)
Mainstream behavioral theory of individuals:
Jolls, Sunstein and Thaler, Behavioral Approach to Law and Economics (1998)
Rejoinders by Richard Posner and Mark Kelman in same issue of Stan. L. Rev.
(See generally: Cass Sunstein, ed. Behavioral Law and Economics (2000))
Mainstream theory of institutions:
Oliver Williamson, The New Institutional Economics, J. Econ. Lit. (2001)
Geoffrey Hodgson, The Approach of Institutional Economics, J. Econ. Lit. (1998)
6b. Normative Analysis: Prescriptive Theories of Adjudication & Legal Policy
Richard Posner, The Ethical and Political Basis of the Efficiency Norm in
Common Law Adjudication, Hofstra Law Review (1980)
C. Edwin Baker, Starting Points in the Economic Analysis of Law (1980)
Ronald Dworkin, Is Wealth a Value? (1980)
Mario Rizzo, The Mirage of Efficiency (1980)
(See generally: 1980 Hofstra Law Review Symposium)
Guido Calabresi, The Pointlessness of Pareto (1991)
Kaplow and Shavell, Why Legal System is Less Efficient than Income Tax (1994)
Kaplow and Shavell, Fairness versus Welfare: Notes on the Pareto Principle,
Preferences and Distributive Justice (2003)
(See critiques by Joe Singer, Arthur Ripstein, Richard Fallon)
Critical Legal Studies: Common Law as Legitimation, Distribution, and/or Denial
7a. Law as Ideological Legitimation/Apology
Robert Gordon, New Approaches to Legal Theory (1982)
Or____, Unfreezing Legal Reality: Critical Approaches to Law (1987)
7b. Legal Reasoning as Anti-Modernist Denial
Duncan Kennedy, Form and Substance in Private Law Adjudication (1976)
7c. The Distributive Stakes of Private Law
Duncan Kennedy, Freedom and Constraint: A Critical Phenomenology (1986)
Duncan Kennedy, The Stakes of Law, or Hale and Foucault! (1991)
7d. Critiques of CLS Indeterminacy Claims1
Lawrence Solum, On the Indeterminacy Crisis: Critiquing Critical Dogma (1987)
Jules Coleman & Brian Leiter, Determinacy, Objectivity and Authority (1993-4)
V.Law and Society: Studies of Law and Other Social Norms in Action
8a. Limits of Formal Law: Supplements, Substitutes & Replacements of Legal Normativity
Stewart McCauley, Non-Contractual Relations in Business: A Preliminary Study (1963)
Sally Engle Merry, Legal Pluralism (1988)
Robert Ellickson, Order Without Law: How Neighbors Settle Disputes (1991)
Gerald Rosenberg, The Hollow Hope (1991)
8b. Law in Action: The Social Effects of Legal Normativity
Marc Galanter, Why the “Haves” Come Out Ahead: Speculations on the Limits of Legal
Change (1974) (See also 1999 Law & Society Review Symposium)
Lewis Kornhauser & Robert Mnookin, Bargaining in the Shadow of the Law (1979)
Sally Engle Merry, Everyday Understandings of the Law in Working Class America
Patrick Ewick & Susan Silbey, The Common Place of Law: Stories from Everyday Life
Laura Edelman, A Law and Society Approach to Economic Rationality (2004)
8c. Issues of Theory and Method
Lawrence Friedman, The Law and Society Movement (1986)
Austin Sarat & Susan Silbey, Critical Traditions in Law and Society Research (1987)
David Trubek & John Esser, “Critical Empiricism” in American Legal Studies (1989)
Micheal Heise, The Importance of Being Empirical (1999)
VI.Legal History: Moving beyond Pre-Realist “Lawyers’ History”
Classes eleven and twelve: discussions of methodology with examples from the history of property law
9. Methodological Overviews
Robert Gordon, Critical Legal Histories (1984) (legal history as social history)
William W. Fisher, Texts and Contexts (1997) (legal history as intellectual history)
10. Competing Approaches: The Case of Property
Social histories of property:
Lawrence Friedman, A History of American Law (1973)
Douglass C. North and R.P. Thomas, The Rise of the Western World: A New
Economic History (1973)
Morton Horwitz, The Transformation of American Law, 1780-1860 (1977)
Intellectual histories of property:
Charlie Donahue, The Future of the Concept of Property Predicted from its Past
Kenneth J. Vandevelde, The New Property of the Nineteenth Century: The
Development of the Modern Concept of Property (1980)
Gregory Alexander, Commodity and Propriety (1997)
Synthesis of social and intellectual history:
Morton Horwitz, The Progressive Transformation in the Conception of Property
in Transformation of American Law, 1870-1960 (1992)
1 Other options here include some variation on the following more comprehensive review of this debate: (1) Response to legal realists’ critique of legal reasoning by Hart (Concept of Law);
(2) Inadequacy of this response as discussed by Altman (Dworkin, Realism & CLS) and Leiter (Legal Realism & Legal Positivism Reconsidered);
(3) Response to legal realists’ critique by Hart & Sacks (Legal Process) and Dworkin (Hard Cases) through ratcheting up to principles and policies (rather than texts, rules, and concepts);
(4) CLS response to Legal Process and Dworkin in Kennedy (Form & Substance) and Tushnet (Following Rules Laid Down);
(5) Dworkin’s response in Law’s Empire;
(6) Non-Dworkinian/non-ratcheting response to CLS interpretation of realism by Solum and Coleman & Leiter (needed in light of inadequacy of Hartian response to legal realism); and
(7) Mature statement of CLS position by Kennedy (Freedom & Constraint) and Tushnet (Defending the Indeterminacy Thesis).
An Industrial Era Water Reservoir Metaphor for the Data Misuses in the Information Age
Danielle Citron has posted an article "Reservoirs of Danger: The Evolution of Public and Private Law at the Dawn of the Information Age" forthcoming Southern California Law Review, 2007. In the article she argues that current risks of misappropriation of personal information over the internet should be compared to similar challenges in former eras, where water reservoirs had to be eventually controlled through a stronger private law tort system. Here is part of the abstract:
Public choice analysis suggests that a meaningful public law response to insecure databases is as unlikely now as it was in the early Industrial Age. The Industrial Age's experience can, however, help guide us to an appropriate private law remedy for the new risks and new types of harm of the early Information Age. Just as the Industrial Revolution's maturation tipped the balance in favor of early tort theorists arguing that America needed, and could afford, a Rylands solution, so too the Information Revolution's deep roots in American society and many strains of contemporary tort theory support strict liability for bursting cyber-reservoirs of personal data instead of a negligence regime overmatched by fast-changing technology. More broadly, the early Industrial Age offers valuable lessons for addressing other important Information Age problems.
Research Canons: Employment & Labor Law
Our next subject matter for the research canons project is Employment & Labor Law. (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.) Please comment on the books and articles that are essential to a new academic in the field.
Patrick O'Donnell has once again contributed his basic bibliography. The document can be downloaded here.
See also the discussion over at Workplace Prof Blog here.
State v. Fido
In 1750, in Vanvres, France, an unmarried couple was caught in flagrante delicto. Pursuant to the ecclesiastical law of the time, they were tried and convicted of fornication and sentenced to be hanged. The man, Jacques Ferron, went to the gallows, but community sentiment swelled on behalf of his partner. The townspeople swore an affidavit that they knew her to be “virtuous and well-behaved”, and the judge, moved by popular sentiment, pardoned her. Oh, and there’s one detail I left out: the female defendant was a donkey.
This story comes from one of easily the strangest, but also one of the most interesting, law books I’ve read recently: E.P. Evans’ The Criminal Prosecution and Capital Punishment of Animals. The monograph, originally published in 1906, is about just what its title suggests—the medieval and early modern practice of subjecting animals to criminal process. Evans catalogues numerous cases where the state brought criminal actions against pigs, cows, donkeys, vermin, and swarms of insects. The accused were typically jailed (in the company of human inmates), tried (complete with publicly appointed defense counsel), and if convicted, subjected to sanctions that ranged from a knock on the head to capital punishments (hanging at the gallows, burning at the stake, and even burial alive).
Evans makes no secret of his disdain for these practices, and it’s easy to read the volume as an example of the transition (of both criminal law and society’s treatment of animals) from the benighted medieval world to the humane and enlightened modern one. But for a few reasons, I think the real story is a bit more complicated.
The stories Evans relates might be taken to suggest that to the medieval mind, animals and humans alike possessed equivalent moral agency—after all, why punish in the absence of culpability? But a closer reading of the evidence suggests that this isn’t quite right. Scholastic philosophers—including Aquinas—wrestled with the conceptual issues raised by subjecting animals to penalties designed to regulate human society. Their solution relied on notions the modern mind would find familiar: an acknowledgment of animals’ limited sentience (after all, while not human neither are animals rocks or bacteria); and the need to incapacitate animals that placed humans in danger. And the notion of punishing animals is not entirely foreign in contemporary society, as anyone who has shouted “bad dog” at a miscreant pet can attest.
Nevertheless, something seems absurd and tragically unnecessary about the practice of publicly punishing animals for criminal acts (to say nothing of the practice of subjecting humans to the same treatment). If animals pose a danger to society and must be put down, fair enough, but why make a public spectacle of it? Evans locates this practice within the strikingly inhumane treatment of animals that prevailed in pre-modern Europe. There is certainly some evidence for this. The work of Robert Darnton and Mikhail Bakhtin on early modern popular culture each observe the prevalence of torturing animals as a form of entertainment during festivals. Darnton in particular notes the irony of this practice becoming particularly widespread during Enlightenment-era France.
Evans confidently asserts that animal treatment has improved since the illiberal practices that prevailed as recently as the early nineteenth century. But it’s worth pointing out that being subjected to criminal process wasn’t all bad for animals. Society’s greater sense of their agency entitled animals to legal process that occasionally resulted in clemency, such as the pardoned donkey in Ferron’s case or the French case of a sow and cow whose convictions of capital offenses were overturned on appeal. The idea that animals possess moral agency thus cuts in two directions. By contrast, the contemporary notion that animals are not persons under the law divests them entirely of any formal legal protections, save for those a local jurisdiction chooses to extent through anti-cruelty statutes. Modern state determinations that dangerous animals need to be put down are summary and unreviewable.
But things have to be better for animals nowadays, with at least a modicum of public-law protections, right? Probably, but it’s a closer call than Evans and others might assume. Many of the practices that prevailed in centuries past (publicly torturing animals as family entertainment, for example) wouldn’t wash today, thanks to both animal cruelty ordinances and public mores. But while we’ve grown squeamish about watching animals be tortured, we don’t seem to be particularly worried about the existence of the practice when it’s easily ignored. The onset of factory farming has probably enabled extreme animal suffering on a less visible but far more widespread scale than existed during the periods that Evans and others describe.
Despite this, though, I’d still guess that animals today are better off than they were in earlier eras, just as the quality of life for humans has seen massive progress since then. But while I loved reading the Evans monograph, I think there’s some danger in his assumption that the attitudes and practices it catalogs—however strange they may seem—are nothing more than absurd relics of long-gone, backward societies. These practices had thoughtful theoretical foundations based in the dominant ideas of the time and brought their own balance of social costs and benefits. And I suspect that in a few hundred years, legal historians may look at our own conceptual and practical approach to animal welfare (near-total denial of animals’ legal status, widespread toleration of extremely cruel farming techniques) with the same mixture of horror and amusement with which contemporary readers regard the practices described in Evans’ book.
Tuesday, September 26, 2006
More reflections on hiring
The hiring season seems to be occupying a lot of lawprof bloggers around now, and not surprisingly, given the hiring calendar. As I’m becoming more experienced in this area (having served on our appointments committee for six years now) I’ll begin my blogging stint with some observations on hiring, which I will continue over the course of the week. Apologies for the inevitable redundancies.
My main topic today is what I’ll call, for want of a better term, the IBM problem. With a market that is so deep in talent, it’s easy for most schools to focus on non-risky candidates, that is, those that have all the right standard credentials (a J.D. from a top-10 law school, a clerkship, etc.). Many decision-makers in the process have incentives to do this. Appointments committees will get less flack from their faculties about not doing a good enough filtering job and will have to do less of a sales job to avoid an embarrassing and potentially faction-based “no proceed” vote at the hiring meeting. The “institution builders” among the faculty will feel more comfortable that they haven’t chosen someone who might trigger a difficult and unpleasant tenure fight a few years down the line. Faculty obsessed with rankings, or whose own self-worth turns in part on the prestige of their institution, will feel good when the next “New Faculty” brochure goes out in the Fall touting the school’s newest bright young things.
Note that this is not exactly the “replication problem” that has been cited by many critics of the hiring process, where faculties stand accused of seeking to hire younger versions of themselves. Given what seems by most accounts to be the significantly increased quality of the candidate pool over the last twenty years, the (non-)joke that many current faculty could not get a job at their current school suggests that, at least in terms of raw quality, many faculties are not hiring younger versions of themselves. Better credentialed versions, perhaps. But not clones.
So, just like the old saying that nobody gets fired for purchasing IBM computers (OK, a very old saying) nobody gets criticized for hiring the last Harvard B.A. /Yale J.D. /Second Circuit clerk with an article placed in top-20 journal. Unless you happen to have a dissenter among the faculty – or better yet, on the appointments committee. Such a dissenter protests the uncritical reliance on standard credentials. She may be motivated by a concern that the process of racking up the standard credentials is one that is not fully open to women, people of color or people from lower socio-economic classes (see, e.g., the recent news about the dearth of female Supreme Court clerks). Or she may just be disenchanted by what can seem at times the cookie-cutter nature of so many top-tier candidates.
Yet for all of our pretensions to independent thinking and, in most cases, to social justice, such dissenters are rare, and I believe they become rarer as an appointments process continues. Why? Because dissenting is just that – objecting to the process, or to its results, rather than offering affirmative suggestions either for how to do a search differently or who different to choose for the screening interview.
It’s not that dissenters are lazy, or don’t have a vision for who they’d like to see chosen for the interview. It’s simply that the sheer mass of candidates makes it impossible for anyone to do the kind of careful parsing of resumes that allows someone to make a principled choice between non-traditional candidate A and non-traditional candidate B. This isn’t saying anything profound; it’s really just restating the conclusion that in a deep field of candidates it’s natural for committees to look for reasons to reject people, and difficult for someone to justify an idiosyncratic choice in a way that allows the chooser to conclude that he’s choosing methodically.
Of course a few non-traditional candidates do get through the filter. But my sense is that this happens because they have at least some standard credentials, plus something pretty unusual that makes up for the lack of the rest. And of course standard credentials do matter to some degree when considering the reasons a school hires a tenure-track faculty member. In particular, whether a candidate has published prior to going on the market is probably the best predictor of whether she will become a productive scholar. On the other hand, there’s no reason to think that such credentials correlate with teaching effectiveness, either with regard to substantive law or the “softer” lessons of becoming an effective and ethical advocate.
Of course, at the end of the day (or several years) most professors earn tenure. That fact could be taken as a vindication of the predictive power of the standard credentials. Or it could be that the hiring of candidates with those credentials starts to influence tenure standards. It would be fascinating to construct an experiment in which tenure-track positions were given based on a lottery involving all candidates who meet some reasonable level of qualifications. We might lose our most brilliant scholars. Or maybe not. Or maybe brilliance would be redefined.
Prof. Mikhail on the anti-torture provisions of the Common Article 3 bill
Professor John Mikhail at the Georgetown Law Faculty Blog has some insights into the Common Article 3 with regard to torture. Key points:
Section 8 defines torture as:
The act of a person who commits, or conspires or attempts to commit, an act specifically intended to inflict severe physical or mental pain or suffering...upon another person within his custody or physical control for the purpose of obtaining information or a confession... (emphasis added).
This definition is a departure from Common Article 3, which simply lists torture without qualification among those acts which “are and shall remain prohibited at any time and in any place whatsoever…” That is, while Common Article 3 does not restrict torture to harms associated with a particular mental state, Section 8 does do so; furthermore, it defines that mental state narrowly, as one of “specific intent.”
Read the whole thing!UPDATE: I've had a chance to read Prof. Mikhail's post again and think about it. I agree with him that Section 8 of the bill has the effect that he reads into it, namely, a specific intent requirement. However, I'm not so sure that as a practical matter, it will make a difference. Prof. Mikhail concludes his post with a hypothetical cross-examination in a criminal trial of a person accused of violating the War Crimes Act:
Prosecutor: Did you know that what you were doing to the detainee would cause him severe physical pain?
Defendant: Yes sir.
Prosecutor: Did you know it would permanently disfigure him?
Prosecutor: Did you know it would prevent him from being able to walk?
Prosecutor: And were you doing it for the purpose of obtaining information or a confession?
Prosecutor: Isn’t that torture?
Defendant: No sir. Read the statute. I knew those harms would occur, but I did not specifically intend any of them. Causing those harms was not my conscious objective.My question is, when would it ever not be a conscious objective of torture to inflict severe mental or physical pain? The interrogator's goal no doubt is to extract useful information for the victim. However, the tool for extracting that information is, by hypothetical, the infliction of severe mental or physical pain. The interrogator cannot say that he or she "hoped" that the victim wouldn't suffer, for if the victim didn't suffer, the victim wouldn't talk.
Of course, a jury might well decide that the aforementioned Agent Jack Bauer really did the right thing, that lots of innocent lives were saved, blah blah blah, but if the jury is so inclined, it doesn't necessarily need the "specific intent" loophole to acquit the defendant. It might do so under a theory of necessity, or it might just engage in jury nullification.
Happy Anniversary, Justice Scalia
Twenty years ago today Antonin Scalia was sworn in as an Associate Justice of the Supreme Court. The years since have seen him produce several of the most memorable opinions in the history of American law, and have treated us to the best use of language on the Court since Robert Jackson's tenure there. Justice Scalia has been controversial because he has challenged us to be consistent in our application of legal theory and to think about the law from a top-down, principles-first perspective, in contrast to the incoherence that so plagued the Burger Court and that continues to affect all courts to some extent.
In doing so, Justice Scalia has had a tremendous effect on the law -- one made all the more remarkable because of the frequency with which he fails to obtain a Court for his positions. Though many disagree with his methodology and his conclusions, there can be no doubt that he has changed the way legal arguments are made, and that the views he has championed carry much more weight now than they did twenty years ago because of the voice he has given to them. Debates about the most fundamental aspects of judging -- how to interpret the Constitution and statutes -- are largely discussions about Justice Scalia's articles and opinions on originalism and textualism. Debates about the most fundamental aspects of American government -- the separation of powers and (to a lesser extent) democratic self government -- focus on Justice Scalia's ideas.
Others, including columnists, lower-court judges, and politicians, surely can lay claim to publicizing the arguments that undergird Justice Scalia's jurisprudence, but none has been as eloquent as he has, and none has done more to affect the law in the last twenty years as he has. Best wishes, and congratulations.
The Most Overrated Movie of All Time
I don't know if this one will ultimately take the prize, but the beautiful Dr. Dimino and I wasted 100 minutes last night watching The Postman Always Rings Twice -- the Lana Turner version. The movie centers around an adulterous affair and the lovers' plots to kill Turner's husband. The acting is mediocre, the plot is predictable (apart from the suspended sentence of probation Turner gets for her guilty plea to manslaughter!), and the use of music is the worst I have ever heard. Every time the main characters are about to kiss, the music rises to a roar, resulting in the scene being laughable rather than sexy. Furthermore, the significance of the title is not clear until the very end, and I still think it was a poor choice.
Feel free to nominate other overrated movies in the comments.
Research Canons: Dispute Resolution
Our next subject matter for the research canons project is Dispute Resolution. (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.) Please comment on the books and articles that are essential to a new academic in the field.
Last semester, when I taught employment law, I remember having a conversation with some students that ended up carrying over into a question I kept asking (seemingly) everyone. The question was, what do you think is an “immoral” job and why? The responses I received varied widely. One friend, an entrepreneur - and also a fan of the Sopranos – replied that his only category was “hitman” but then, under my intensive questioning, qualified that answer with “anything illegal.” But of course, that begs the question of what is illegal and why, etc., which wasn’t really what I was thinking about, at all. To the other extreme, another friend was adamant that plastic surgeons belonged on the list. Me, personally? I think if your job is “spammer,” well, that might be immoral. (No one mentioned any law-related jobs, but that might be because everyone I was talking to knew I was a lawprof…)
Monday, September 25, 2006
Self-Help, Satire, and the Meet Market (Part 1 of ?)
Last week, I promised a bit of satire relevant to the meet (meat?) market, focused on the idea of self-help books. I realize that the link is not, at first glance, entirely obvious, so here’s my thinking.
Self-help books are ubiquitous. Looking to improve your public speaking skills? How about losing those few extra pounds? Do you wish that you were more assertive without being aggressive? If so, there are any number of self-help gurus who can provide counsel. Dr. Phil even claims he can help you with both relationships and weight loss. Has he looked in the mirror lately? Not particularly thin, so why is he dishing out the advice on diet? Apologies, I digress.
Among this self-help explosion, one of the most interesting (sadistic?) areas in the entire genre is the advice given to the single. Many relationship books promise fantastic results, making the purchaser feel confident that, with only the small price of a book purchase, he or she will be well on the way to finding the right person. They tantalize by offering particular forms of advice. What are the best places to meet people? How many dates should you go on before making it exclusive? How do you know when you’ve met Mister or Miss Right?
Similarly, searching for an academic job is a difficult process. It’s all about finding the right match with a school. Sometimes it seems as if everyone else has already found the academic job of their dreams, and yours remains elusive. It feels bad when you keep checking your voicemail, but the hiring chair you hoped would phone seems to have forgotten about you. Unfortunately that search – especially when it happens as part of the AALS meet market – sometimes turns out to be an emotional rollercoaster. But, truthfully, what else would you expect from a relationship that begins oh-so-casually during a mere twenty minutes in a hotel room at the Marriot Wardman Park?
Perhaps some of the self-help “lessons” to be learned from these more general books can also assist in the search for the right academic job. More to follow...
Do Children Have a Right to Know Their Biological Siblings?
Maggie Gallagher (we used to be part of the same conservative organization in college -- don't ask) sent me the following today:
What's next after redefining marriage? I think you'll be interested in a new report from Elizabeth Marquardt at the Institute for American Values, in which she argues that the next great frontier in law and culture is redefining parenthood.
All of us recognize that through adoption and other means sometimes the law recognizes nonbiological parents. The great question, which has received too little attention is: Does natural parenthood matter all all? Or does the state get to make up and define who a parent is?
These questions are the subject of The Revolution in Parenthood: The Emerging Global Clash Between Adult Rights and Children's Needs, a new joint report being released today by the Institute for Marriage and Public Policy, the Institute for American Values, the Institute of Marriage and Family Canada, and the Institute for the Study of Marriage, Law and Culture.
The report features the experience of the first generation of children conceived with the use of donor sperm, who are just now beginning to speak out about their experience. As a press release from the Institute for American Values notes, "These young people often say they were denied the birthright of being raised by or at least knowing about their biological fathers and that it profoundly shapes their ability to understand who they are. After finding out that she was conceived with donor sperm one 14-year-old girl in Pennsylvania wrote to Dear Abby that 'It scares me to think I may have brothers and sisters out there, and that [my biological father] may not care that I exist.'"
The full report and executive summary are available at www.marriagedebate.com.
Although I haven't had time to read the full report, I must say that the implications are bizarre: Do we have a "birthright" to be raised (or at least know about) our biological fathers? Shall we really be concerned about the fear of "brothers and sisters out there"? I know plenty of adopted people who struggle with their situation. But I would think the appropriate response is not to further entrench the silly idea that biology matters and that we have a "birthright" to our biological parents. Of course, I am now experiencing the joys of biological fatherhood (I think -- I really should get that test to avoid paternity by estoppel); but I think the movement to emphasize biology in child-rearing is deeply misguided. For more on my potentially idiosyncratic views, see here. For more photos of the lovely Clementine Schonfeld (my daughter pictured above) get in touch off-line.
The Search for Deliberative Democracy in China
I'm delighted to announce the publication of my second book. You can buy a copy here. In reality, it is too expensive to buy. So ask your library to buy it for you.
Moneylaw: Second of a Series
Having started Jurisdynamics, Professor Jim Chen is engaged in a little empire-building, having started up various associated enterprises. I come today to praise one of them in particular: Moneylaw, a blog about "the art of winning an unfair academic game," according to its subtitle/motto. Its contributors include Jim Chen, Tom Bell, Al Brophy, Paul Caron, and other inestimable writers. The posts so far have been terrific, and if you like Prawfsblawg, it's well worth adding to your list of frequently visited cites.
Professor Chen has written a number of interesting posts lately, some of which have occasioned commentary elsewhere. I think they are consistent with each other, but I would like to see him give some more thought to some of the ways in which they bump up against each other. He has written:
1: The "legal professoriate remains enthralled by academic rank." This is a mistake. We ought to be purely meritocratic in thinking about academic prestige. The rule ought to be: Credentials don't matter. Performance does.
2: Chapman Law School, which famously boasted of its SSRN numbers when those numbers were based in substantial part on old papers, has been subjected to "ritual abuse." One observer (actually, Dan, here on Prawfsblawg) "went so far as to praise these acts of public flagellation as an unsung virtue of blogging." In fact, Chapman was only trying to "master the art of winning an unfair academic game."
3: "Sextonism" has become a label of opprobrium among legal academics (especially Brian Leiter). In fact, Sextonism should be viewed as the adroit (if not altogether credible) promotion of an educational institution.
Now, Chen writes with a wry style, so it's difficult for dullards like me to discern when he's being above-board and when he's writing with tongue in cheek. He is certainly upset that the Chapman affair became an occasion for elite schools to snobbishly tut-tut Chapman for the effrontery of ambition, thus nicely guarding their turf at the same time; and I think he believes Sextonism is less of an ill than its critics suggest, although the "not altogether credible" language suggests that he recognizes that it is a far from unmitigated good.
My own views follow after the jump.
My own view is that Chen is absolutely right on (1). He is right on (2) to the extent that his objection is specifically about the ways in which the criticism of Chapman was a mere occasion for the reproduction of hierarchy. Similarly, on (3), he is right if his point is that a little crassness in promoting one's institution is not a terrible thing, particularly in a system in which credentials often are treated as counting more than performance.
I might even suggest a nice Hebraic angle to my take on (2) and (3), to commemmorate the Jewish New Year. The American legal profession once shuddered at the brusque entry of Jews and other members of immigrant cultures into its especially hallowed halls -- elite law schools, white-shoe firms, and so on. But the shift in legal culture that was caused, or at least accelerated, by this phenomenon of new entrants to the profession circa mid-century, which in many respects was "an offense to the fastidious," as Posner puts it in his discussion of Mary Ann Glendon's book on the legal profession, was largely a positive thing. It laid bare the extent to which law is a profession and a business; it forced the law schools and white-shoe firms to adapt or die; and it showed that sometimes the gatekeepers of the profession were not genteel preservers of high standards and tradition, but mere cartelists.
We might say the same thing about some of the developments Chen writes about, although the partial insulation of law schools from market forces makes the picture somewhat different. A new crop of professors and law schools insist that their work is strong, their ideas worth hearing, and their faculties worthy of respect. Knowing that the gatekeepers will often, although not always, remain insensible of these developments, they work around the system, finding new ways of getting their message out (SSRN, blogs, and various acts of Sextonism), just as my father and countless other improperly pedigreed lawyers started up new firms, found new business models, and otherwise challenged the established hierarchy. If the work itself is no good, or the "upstart" faculty less strong than its boasts suggest, then that is one thing. But if it is good, and some gatekeepers shudder at the vulgar way in which this new crop breaks down old intermediary models and challenges easy assumptions about the "best" schools, then to hell with those gatekeepers.
In short, I think there's much to be said for Chen's focus on performance rather than credentials, and there are excellent reasons to scrutinize the gatekeeping function performed by a few law schools and legal academics, especially if those gatekeepers, despite any claims to the contrary, ultimately focus more on credentials than performance, and especially if those gatekeepers are aghast at the chutzpah and vulgarity of the arrivistes; vulgar arrivistes can be a good thing!
But given that, I think Chen should think carefully about the relationship between points (1), and points (2) and (3). My issue with Chapman clearly is not outrage at a lower-tier school challenging the primacy of an upper-tier school, and I agree with Chen that some of the reaction to Chapman's move was merely snobbism. But in the absence of an old-school gatekeeping function, there is still some merit to finding a variety of ways to monitor and challenge the truth of the claims to quality made by various claimants. And here, whether or not they were ultimately right, I think the blogs performed a signal service in raising doubts about the nature of Chapman's claims. That's what our own Dan Markel was saying in the post that Chen refers to, and I think Dan was right.
Similarly, Chen speaks up for Sextonism, and as I said earlier, if Sextonism is a way of finding new ways to challenge the old gatekeepers and draw attention to excellent performance by people or schools that would otherwise go unrecognized, then who cares if it's a little crass. But he should recognize that one of the goals of Sextonism -- at least as practiced by Sexton at NYU -- is not to challenge the old gatekeepers, but to be recognized in the same breath as them. Of course, Sexton hired great people and built a great institution. But my sense is that the ultimate goal here was not just to emphasize the performance of NYU as a scholarly institution, but to turn NYU into a credential, which then would be somewhat insulated from the performance demands that Chen thinks are the most important thing. Of course we're great; we're NYU!
So, in short, I think Chen is right to defend crass Sextonism against the usual criticism, but he should give careful thought to the content of various Sextonian claims, and distinguish between Sextonism that is about calling attention to various excellent performers, and Sextonism that is about trying to lift a particular institution into the existing hierarchy without challenging the hierarchy itself. He might even ask whether Sextonism won't, in fact, frequently pose a challenge to his view that performance is all that matters. Precisely because legal academics so frequently are insecure about broader judgments of quality and merit, and precisely because faculty members are so diverse in their areas of specialization that it's difficult for one person to make qualitative judgments about a whole institution, it seems to me that Sextonism at the institutional level will often focus on credentials rather than performance.
Credentials and Hiring: First of a Series
There's been a lot of good discussion on the usual suspect blogs in the last week or two concerning what I would broadly describe as the endless anxiety about credentials and merit in the legal academy. Part of this is sparked, I'm sure, by the looming meat market; a good deal of it has been sparked by Jim Chen et al.'s superb new blog, Moneylaw. (Although Shubha and others on Prawfs have offered some very honorable contributions to this discussion.) And much of it has to do with the broader fact that the members of the legal academy, in which reliable standards of judgment are so hard to come by and which faces a continual crisis about its place within the university, are just constantly insecure about who we are and what it means to be good. In any event, the discussion has been very interesting, and this week I plan to discuss these issues over the course of several posts.
Let me start by noting a very interesting post by Brian Leiter today, asking whether students choose law schools with an eye toward teaching. Brian is reacting to a Moneylaw post by Nancy Rapoport, in which she says she thinks few students do so, and in which she adds, "Don't punish the candidate for his choice of law school. Look beyond the group membership (choice of law school) to the candidate's talent." Leiter says he agrees generally with Rapoport's views on what law schools should look for (I'm not clear on whether this agreement encompasses Rapoport's "don't punish candidates for their choice of school" advice or not), but says his anecdotal sense is that many students do, in fact, think about the possibility of a teaching career when choosing schools. He concludes, "That schools like Yale, Harvard, Chicago, and Stanford dominate the market for new law teachers surely has a great deal to do with self-selection."
Since it's Monday morning, let me begin easily enough by cribbing my comment on Leiter's site, with thanks to him for sparking these thoughts:
You may be right that a substantial number of prospective law students think about their teaching prospects in choosing a law school. That's still a small number relative to the whole, however, so Rapoport's claim may still be accurate if read as follows: of the entire mass of students selecting law schools, I don't know too many who do so on the basis of its potential to lead to teaching jobs.
One could reasonably argue that this is a selective group in the first place, and that of those who are real teaching prospects, an increasing number are selecting their school with an eye toward teaching. But I still think Rapoport's advice -- don't punish candidates for their choice of school -- is a good one, if reasonably applied. Of course, students have lots of different reasons to choose different schools, money and geography being among them; a talented student with family obligations, a sick relative, and so on may choose to stay in a particular place, and accept a full ride at a less highly ranked school, rather than move across the country to accept an admission offer at a prestigious but expensive school. If law schools are serious about seeking genuine diversity in faculty ranks, including socio-economic diversity -- and I'm not saying they are serious about this! -- they might well want to take this into account.
Moreover, even if many students who want to teach, and know it from the get-go, select their school on this basis, many other students, including many who are highly talented, only discover their interest in teaching after they've already selected a school and begun their legal education. This is one possible reading, for instance, of your datum concerning UT students seeking to transfer elsewhere.
I'm not saying the top schools aren't excellent sources of teaching talent, or that there are absolutely no qualitative differences between schools that hiring committees might want to consider. I am suggesting that, just because schools institutionalize a bias in favor of hiring potential faculty from a limited number of schools, and just because some number of prospective teachers respond by selecting those schools, that does not make the system entirely rational, at least if the hiring committee is seeking quality rather than merely looking for a way to minimize its search costs.
For a variety of reasons, including economic factors and the simple fact that some students discover their vocation later than others, full many a superb hiring prospect may wither on the vine at a non-top 10 school, while the clerkships, teaching interviews, and other fruits go to someone from a top school who is superficially attractive but not ultimately the best prospect. That's too bad. At the very least, we should acknowledge that the very fact that judges, firms, and hiring committees are more likely to encourage and select those who resemble them, rather than engage in a more laborious search for talented people elsewhere, ought to undermine any confidence in the view that the winners in this process are literally the "best" people.
OK Law Geeks, Here We Go!
By statute (28 U.S.C. sec. 2), the Supreme Court Term begins on the First Monday of October, viz., next Monday, October 2. The summer recess, though, ends today with the "long conference" at which the Court considers hundreds of certiorari petitions that have been filed since June. "Considers" is of course overstating the point, as many of the petitions will receive no discussion in the conference itself because they present no important question of federal law.
SCOTUS Blog has a post that is well worth reading about the conference itself and about the schedule of argument that might emerge as a result of the cert. grants that may issue tomorrow. There are several interesting cases that might be granted; you can see the list with a short description the ones Tom Goldstein has identified as having a "reasonable" chance here.
Research Canons: Corporate Law
Our next subject matter for the research canons project is Corporate Law. (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.) Please comment on the books and articles that are essential to a new academic in the field.
It's bad enough that we have juries like this, but judges?
"I just follow my own common sense. And the hell with the law."
- THOMAS R. BUCKLEY, a longtime justice in Dannemora, N.Y.
I was galled reading this report in today's NYT about small town justice in New York State. I figured an open thread on this story would be a good way to start the week off. Pick out your favorite abuse and offer prawfs-style value-added analysis. Sure seems like good fodder for those afraid of what Austin Sarat calls lawful lawlessness.
Update: Dave Lat has the requisite links to why this is no surprise. After all, state courts are "ghetto."
Sunday, September 24, 2006
Thanks for the space
Thanks to Dan and his co-bloggers, Ethan Leib, Rick Garnett, Rob Howse, Paul Horwitz, Matt Bodie, Steve Vladeck, and Orly Lobel for the opportunity to post this week. I hope Dan does not regret the invitation too much. Whatever the status of blogs, they serve a great function for distributing works that one may not want to develop into full articles. There is room for the half-baked. After all, raw cookie dough has become a delicacy, working its way into ice cream and the centers of various forms of chocolatey goodness. I am willing to bet that my posts this week have been just as nourishing.
All the best.
Meat-market ethics (or not)
Jim Chen and his Moneylaw crew have been discussing the value of certain credentials to appointments committees, a topic that’s been blogged about, and even written about, before. Much of this discussion’s focus has been on the relationship between various credentials and a candidate’s expected future success, and how those credentials in turn have value among market employers. The “moneyball” angle is that certain credentials are over-valued by employers and others are under-valued, and the entrepreneurial employer who cannot afford to compete for candidates with over-valued credential needs to pursue a strategy based on identifying candidates whom the market will under-value.
I’d like to view this process from the reverse angle. Imagine, if you will, that you are a candidate with a sufficiently strong package of the “right credentials” that you’re getting invitations to on-campus interviews at [fill in a top-20 but not top-5 law school] before AALS, and your meat-market dance-card is filled with other elite top and less-elite top schools. You're hot, you're smart, and you're sufficiently slick to give you a better than even chance of ace-ing, or at least not-bombing, a job talk. (Congratulations!) Law school ranked #75 (this is a hypo -- I have no wish to call out this year's #75 for this) calls you for a meat-market interview. It’s located in a place that is unattractive to you for some reason. You wouldn’t take a job there if you had other options, and probably even if you didn't; indeed, chances are quite good you might not even go on a campus interview except to practice your interviewing skills and job-talk, and perhaps to try to leverage an offer from Law School #75 at another school. (I could change the facts a little to say Law School #75 called you early for a AALS interview, you accepted, and now you're wondering whether you shouldn't just call back and cancel.)
Question: precisely what responsibility, if any, does a candidate whose credentials lead to “hotness” in the market have to their suitors?
I’ve come up with three possible answers, and I’d be interested in hearing comments or being told that I’m missing something:
One answer: You have no responsibility. If the suitor wants you and knows, or should know (based on your credentials), that you’re hot, then it’s up to the suitor to decide to invest a meat-market spot and an on-campus interview on the (false) hope that you’d accept an offer.
Alternative answer: Some responsibility to Law School #75. The school has embarked on an effort to recruit you in good faith. If you honestly have no interest in accepting a job from it, you shouldn’t be wasting its time. This is a version of the law review game where authors (not me! I swear!) submit to every journal in the known universe in hopes of trading up to the small number of journals at the top of their preference order with no intention of publishing with anyone outside the top ranks of his preference order. I think it’s ethically suspect (and as I recall, Eugene Volokh has made this point) to submit to a process whose outcome you have no serious interest in accepting. Of course, note the irony: Here’s a law school faculty crying when it’s the victim of a game that its own faculty might play when it’s law student editors, not themselves, who are poised to be taken in. More persuasively, though, I think if the law school has chosen to invest its resources in recruiting you, it should have to deal with the consequences that its efforts will fail. In this scenario, the exploding job offer seems not only rational but perhaps even ethically defensible. How else can a school reveal the preferences of a candidate it really wants when it’s afraid that its desire is unreciprocated?
A different alternative answer, and to me the one that’s most persuasive: Some responsibility but only to the candidates who may not get the meat-market interview and/or the on-campus interview you don't want because you have wasted the school’s time and attention. One question, obviously, is whether this actually happens -- so do me the favor of assuming that this does happen or might happen. Again, there’s little reason to feel sympathetic for Law School #75. The meat market offers a significant number of slots for schools that plan to attend both days. There’s no real harm in a school using a couple of those slots for candidates that represent a “reach” for it, in the hope either that you actually have a reason to be interested in #75 (maybe you have family there) or that they can sell you on the school or that you may ultimately get no offer that you'd prefer more to theirs. But it may get tricky if you get an early call-back and you get an offer that you let sit for a long period of time, stringing Law School #75 along while you attempt to trade up to a school you prefer. Here, I can imagine scenarios where a very worthy candidate who would love to be at Law School #75 is ultimately frozen out because of another candidate who’s sitting on a job offer. In that instance, there may be reason to feel bad for the other candidate, and to consider your actions to be questionable.
Friday, September 22, 2006
Rotations and Rosh Hashana.
As Rosh Hashana descends on (some of) us this evening, I just wanted to dash a quick note to the Prawfs community of readers and writers and wish you all a sweet and happy new year, filled with laughter and love, joy and peace. Tis also the season of contrition, so let me ask those whom I have given offense to for their forgiveness. Normally, specific requests for forgiveness are typical, but in the blogversations we have here, I may not know whom I've offended, so please feel free to let me know in an email.
And while I'm at it, let me also welcome Professors Bill Araiza (Loyola LA) and Avi Bell (Fordham and Bar-Ilan), who will be joining us next week as guest contributors. Shana tova and have a good weekend.
Teaching / Research Correlations: A Perspective Within Subjects?
Since I heard more than one of my senior colleagues suggest this, I decided to place a broader inquiry. Some people suggest that they have gotten worse evaluations in courses on subjects that are directly related to their core scholarly expertise than in courses that are more distant from their research. Several explanations may follow. Some prawfs believe that it is the amount of academic and intellectual excitement that they have in relation to the issues that have made the course less accessible to the students. Another explanation is that they have a much greater amount of information in their minds that they know is relevant to the understanding of the topic and it inevitably affects the way they deliver. A final reason may be that with courses less directly related to their research, the fact that they had to study a new course topic which they are not well familiar with along with the students has improved their ability to explain the materials to novices in the area and has increased their sensitivity to the difficulties of some of the doctrinal issues.
So rather than offer a between-subjects-analysis, perhaps people can testify as to co-relations with respect to various topics they have taken on as teachers.
Conference on Empirical Legal Studies
A message from Bernie Black, University of Texas School of Law:
We invite you to attend the inaugural CONFERENCE ON EMPIRICAL LEGAL STUDIES, which will be held at the University of Texas School of Law in Austin, Texas, on Friday 27 - Saturday 28 October 2006 (first session begins Friday 9:00, last session ends Saturday 1:15 p.m. to let attendees return home Saturday afternoon). The conference will feature original empirical and experimental legal scholarship by leading scholars worldwide, from a diverse range of fields. The conference will be run as five concurrent sessions covering different areas of scholarship, with a total of 90 presented papers. There is no charge to academics and interested law student and graduate students to attend the conference.
Info can be found at http://www.utexas.edu/law/conferences/cels2006/
The preliminary program is also available at: http://hq.ssrn.com/conf_prelim_program=CELS-2006
The Conference is jointly organized by Cornell Law School, NYU School of Law and the University of Texas School of Law. The 2007 and 2008 CONFERENCES will be held at New York University School of Law and Cornell Law School, respectively. The conference organizers are: Jennifer Arlen (NYU), Bernard Black (Texas), Theodore Eisenberg (Cornell), Michael Heise (Cornell) and Geoffrey Miller (NYU).
For more information:
General inquiries concerning the 2006 Conference and additional details regarding particular submissions should be sent to:
Prof. Bernard Black
University of Texas, School of Law and McCombs School of Business
firstname.lastname@example.org, (512) 471-4632
Logistical inquiries should be directed to:
Ms. Peggy Brundage, (512) 232-1387
J.B. Ruhl's Hierarchy of Legal Scholarship
Jim Chen J.B. Ruhl, at Jurisdynamics, has posted his quite interesting and helpful Hierarchy of Legal Scholarship. (The VC also discusses the heirarchy here.) He ranks different types of scholarship from 1-10, with 10 being the most . . . well, I'm not sure what exactly. I suppose "valuable" captures a good deal of it, but not "valuable" in the sense of "useful," which could describe a well written but uncomplicated survey or ALR annotation. Instead, the best legal scholarship in Ruhl's view is that which is likely to make the greatest impact on society outside of law. Scholarship having a great impact within the legal profession has slightly less status, and so on, with blogs receiving a rank of "0" as "not legal scholarship." Books are not treated as a separate category, and I wonder whether Ruhl would consider casebooks to be (#3) doctrinal studies of the law, (#4) doctrinal syntheses of developments in the law, or something else altogether.
I suppose the post will provoke a series of defensive arguments (most, no doubt, in dueling blog posts) about whether one type of article is deserving of the rank that Ruhl has accorded it. Nevertheless, the hierarchy is helpful to me in directing my research. If I've produced a (#5) normative policy analysis, can I add a reform proposal (#6)? This additional layer of complexity can make a work more valuable regardless of whether the rankings are formalized, but the list helps to remind writers of opportunities to take one's scholarship to the next level without changing the entire project.
Students and other writers searching for assistance along these lines should consult Eugene Volokh's excellent Academic Legal Writing, which discusses on pages 48-52 of the second edition techniques for expanding and revising practical memoranda to construct articles.
Research Canons: Admiralty/Aviation Law
Our next subject matter for the research canons project is Admiralty and Aviation Law. (See here for a discussion of the research canons project, including some newly added categories, dates, and links to previous installments.) Please comment on the books and articles that are essential to a new academic in the field.
Things to Do at Cablevision When You're Dead
It seems like the Knicks are not the only disaster at Cablevision these days. Yesterday the company filed a revised 10-K reporting on the results of an investigation into stock option backdating at the firm. Although thin on some critical details, the report did note that one director had received options after he died, which were backdated to before his death. The WSJ has further details, as well as these great quotes:
- Jack Coffee: "Trying to incentivize a corpse suggests they were not complying with the spirit of shareholder-approved stock-option plans."
- Brian Foley, a compensation consultant: "Once you take the lid off and look inside, you realize that the short rubber boots aren't going to do and you need the hip waders."
I’m 32 and I Haven’t Lost $5 Billion (Yet)
My business associations class and I have been following the story of Brian Hunter, an energy trader for the Amaranth hedge fund. In the last two weeks, Hunter lost his fund the amazing sum of $5 billion dollars. That’s right, not million, billion. (Dr. Evil didn’t even get the commas and zeroes misplaced). A student commented in class that Hunter seemed extraordinarily young to be given this kind of responsibility, as he was only 32.
Is 32 really that young? Maybe. In looking over the Forbes list of the richest Americans, Sergey Brin, the co-founder of google is worth $14 billion, and he’s only 33. Being 32 myself, I sometimes feel like I’ve made a lot of progress toward my personal and professional goals, and other times, these goals seem quite far away.
But that’s okay. I suppose I still have plenty of time to lose $5 billion.
Barbarians As Gatekeepers (Part 5 of 5)
Alfredo’s chronicles show how idealism and engagement can still be vital in the pursuit of legal education. The irony is that Alfredo is not a law professor or an attorney. He was for a time teaching at Texas Tech Law School, and he has published a number of very lively and well-placed law review articles. Nonetheless, most people in the law school academy would doubt his law professor bona fides. It has been hard for a law school and someone like Alfredo Mirande to match up. The question is why? What is it that legal academia looks for? Is it really about merit, or is some other form of white male patronage at work again?
The phrasing of that last question, intentionally, invites facile answers either for or against. I definitely think there is a lot of cronyism in legal education, even at, perhaps especially at, the highest echelons. Glossy pamphlets and inflated speeches praise the current state of legal education and caliber of its faculty. Meanwhile, professors outside the law school may question that assessment and the high salaries and benefits that can come with it. Many qualified applicants for law school teaching jobs look on with dismay as rejection letters are the response to sustained perseverance and effort. I want to suggest four explanations for why there seems to be such a wide divide in talent between the elect and preterite in legal education.
The first is the expansion of law schools in the Eighties, when law teaching jobs were more plentiful than in the Nineties. That expansion filled up a lot of positions that eventually became locked up as the holders received tenure. Standards in the Eighties and before were actually quite lenient for tenure, and therefore the current disconnect between the talented candidates ready to enter and the many less than stellar folks holding lifetime positions. Furthermore, the number of people who would like to leave the drudgery of law practice to enter into teaching has increased. The top three law schools alone graduate about 800 graduates a year. If the top twenty per cent pursue teaching positions at any one time, that is about 160 candidates for positions at roughly 180 law schools. Throw in additional cohorts and existing faculty members trying to lateral, and you have a fairly large supply seeking limited positions.
The second factor is that many of these candidates are very similar in credentials. If the top twenty percent, to be generous, of any law school class applies for teaching positions, each of them will have top grades as one credential. They will most likely also share valuable clerkship and law review experience. Work and life experience may be distinguishing, but again many candidates will be similar in that respect as well. That leaves publications as the key discriminating factor to determine who gets into the academy.
We turn now to the third factor, publications. As we all have bemoaned, publication decisions are made largely by third year law students who, for the most part, seem to accept articles on how likely they are to add to the prestige of the journal in terms of citations, especially by courts. Often these decisions are informed by the background and connections of the author or what the student has heard in class that might give them a clue to the subject matter of scholarship. Very little outside the known world gets selected by the law editors and hence the homogeneity of most law school publications.
While publications may be a key factor in allocating positions, members of hiring committees will differ on what weight to give to a particular publication. Curricular needs often overshadow the strength of a piece. What makes a publication strong has less to do with its content and more to do with the narrow experiences and understandings of members of the committee. In addition, concern with how a candidate may fit in also shapes hiring decisions, especially if the candidate does not fit the mold (i.e. white, male, or some acceptable surrogate for those traits). This fourth set of explanations suggest that with all the talk of merit, the matching process is largely one of who one knows rather than what one has to offer and can do.
It should not be surprising that since the legal professoriate is self-regulating and self-selecting, hiring decisions will be invariably incestuous. If faculty are homogeneous, one may argue, it is because they are all excellent, overachievers and therefore will look the same. But these myths belie the reality. Most of the existing faculty that are making hiring decisions were tenured on very little. The travesty is that many minority candidates get denied tenure for lack of publications or for poor teaching by a group of people who have distinguished themselves neither as scholars nor as teachers, except based on the testimony of other insiders.
As a colleague told me once when I shared my concerns, “Relax. It’s just a law school.” Of course, there is nothing venerable about law schools. But with all the hype and self-congratulation that we see in print and in the blogosphere, shouldn’t we expect more from the profession? Alfredo’s book offers an invaluable portrait of how law schools alienate the motivated and engaged. A consideration of hiring practices may explain how that situation takes shape.
Practicality probably should make me more circumspect. After all, some day, somewhere, a member of a hiring committee may read this post. But as the folk song goes, “When you have nothing,….” More urgently, I would like to see my colleagues at law schools everywhere be less complacent than they are and show some deeper and broader passions than their narrow pursuits of personal agenda, which ultimately boils down to career advancement or rising in the rankings. My sense is that this will not happen until the next generation takes a long and serious look at what has been wrought. Encountering many of my cohort either in the flesh or in the blogosphere gives me hope, despite the occasional glimpse of how careerist we tend to be. Alfredo’s book reminded me of the passion and thrill of law school, as well as its hardships and banalities. To the joys of scholarship and teaching, I will now add his testament to my law school days, which I can read and reread while hanging out in the margins.
Thursday, September 21, 2006
Satires, Alter-Egos, and the Meet Market
Law professors like having an alter-ego. Perhaps it is egotism, but how fun to have a “Robin” to your “Batman,” a “Panza” to your “Quixote,” your very own version of “Roderigo” or “Gil Grantmore.” Well, I am no different from anyone else (except that my alter ego has considerably less important things to say), and therefore, Professor Peach came into being. Last year, she was the co-protagonist of a satire about law review submissions that is available here.
Well, with the meet market approaching, Peach has a few thoughts about the process. Although it’s been four years since Peach went through it, alas, she remembers it quite well.
It is her contention that the best advice for dealing with the meet market can actually be found in self-help books, such as “The Rules” or “Smart Candidates, Foolish Choices.”
Yes, I can feel another satire coming… with parts of it to be serialized on this blog in the next week. Stay tuned….
When is a shoe not a shoe? Some more thoughts on the DPPA
So there was no Project Runway last night (or at least my TiVo didn’t record it), much to my disappointment. So as a very weak substitute I instead read Eliya, Inc. v. Kohl’s Dep’t Stores, 2006 WL 2645196, a recent SDNY opinion that reflects on an issue I blogged about earlier: the intersection of fashion and copyright. (Hat tip: William Patry.) The plaintiff created a shoe design, memorialized in a two-dimensional drawing, and the defendant used the written design to make and sell its own shoes. Straightforward case for infringement, right?
The court didn't think so, giving two reasons for its finding in favor of the defendant. First, the plaintiff’s copyright was for an etching, not a three-dimensional object, so the defendant’s creation of shoe in three-space can’t be a copy of the two-dimensional original. A shoe, in other words, is not a drawing of a shoe. This is obviously true as a descriptive matter, but doesn't seem to resolve the issue because the Copyright Act also protects derivative works, which almost always involve a translation from one medium to another. If I made a movie based on a novel without getting the author’s permission, I’d be liable for infringement regardless of the fact that a film doesn’t fall into the same category of creative work as a book.
More convincingly, the court pointed out that even if the shoe were a derivative work, it’s still not infringing because shoes—or any clothes—are useful objects, and as such aren’t subject to copyright protection. This part seems clearly right, and as the court points out, it imports a sensible limiting principle, preventing designers from claiming copyright in utilitarian objects by virtue of their exclusive rights in two-dimensional plans for those objects. Of course, the court’s holding would be different if the Design Piracy Prohibition Act passed, creating an exception to the useful objects doctrine for fashion. And this twist made me think a little more about the practical implications of the DPPA.
As it stands now, fashionistas can copyright their patterns but not the clothes that are made based on them. This means that you can’t copy another designer’s patterns and sell them in stores, but you can create and sell clothing based on those designs with impunity. Additionally, if you see an article of clothing you like in a store, on the street, or during fashion week, you’re free to copy it as well. The DPPA aims at the second problem, seeking to prevent low-end makers from reproducing couture based on eyeballing it alone. But as Eliya suggests, the legislation would have broader effects on the industry than its drafters seem to have intended.
By carving out an implied exception for fashion designs from the useful articles doctrine, the DPPA extends the scope of protection to patterns or any other written work on which clothing may be based. Under current law, clothes based on copyrightable drawings are unprotectable, but if the DPPA changes that, then they would likely be considered protected derivative works.
But is this a problem? There might be a few concerning wrinkles. The first is that this development increases the bases for possible fashion infringement suits. We’re no longer talking only about claims that a sweatshop in Asia is turning out knockoffs of the hottest designs from fashion week. Now any pattern or drawing that might have inspired a designer could form the basis for an infringement action. The possibilities for opportunistic strike suits become clear. Imagine that a hot new designer quits her job at a major fashion house, creates her own line, and hits it big at fashion week.
In order to state a plausible claim for infringement, the previous employer need only comb through its backfiles and produce a few images or patterns that were available when the designer was in its employ, and that bear some similarity to the new work. In light of the fact that fashion is, to a greater extent than most creative industries, constrained in its medium of expression and characterized by a high degree of reincorporation of and references to past eras and regnant styles, the likelihood of such scenarios proliferates.
This implication of the DPPA has effects beyond the world of high fashion. Under current law, publishers of patterns sell them rather cheaply because they have no intellectual property in the clothes people make based on them. But if those clothes did become proprietary, new vistas of price discrimination would open up to pattern designers, who could now use licensing to extract profit from the derivative works as well. The patterns could come with licenses that permitted purchasers to make only a single dress (cheapest) to an unlimited number (most expensive). I’m not sure whether this is an unalloyed good, but it may well make the pattern-design industry more lively by creating the possibility for greater profits and inviting more competition.
As I indicated in my previous post, I’m skeptical of the DPPA simply because I doubt it will actually make designers better off. Reading Eliya makes me no more a fan of the legislation, but it does make me think that it raises practical and doctrinal issues far beyond what its drafters intended.