Monday, December 31, 2012
Happy New Year. Raise a Glass and Empty Your Pockets.
It's hard to believe that 2013 is upon us. The transition always presents a grand opportunity to take stock and give thanks to all our wonderful readers and contributors.
Please join me and others in toasting the new year by donating money to some of the following charities:
And if you're going to be in New Orleans this weekend for AALS or the various shadow conferences, I hope you'll hoist a glass with us at Whiskey Blue at the W Hotel on Saturday night at 10pm. (Feel free to show up earlier but I will be arriving around then.) The old farts among our readership will remember it's where we had our last (off the chain) NOLA happy hour.
Last, let me take a moment to thank our December contributors and welcome some of our new January guests. I'm thrilled to announce the return of Jay Wexler from BU and Michael Steven Green from William and Mary Law; and I'm also excited to welcome for the first time to this space two new voices: Derek Muller from Pepperdine and Ann Marie Marciarille from UMKC. Happy new year to one and all!
Fourth Circuit on Duke Lacrosse
A couple of weeks late on this. The Fourth Circuit held that all the Fourth Amendment claims by the Duke lacrosse players against the investigating police officers should have been dismissed on qualified immunity grounds.The court did allow state law malicious prosecution claims by the three indicted players, but not by the 30+ players who never were indicted, to proceed.
Details and thoughts after the jump.1) The claim by the three indicted players for a Fourth Amendment malicious prosecution violation failed because the indepndent decision of the prosecutor to seek and indictment (and the independnet decision of the grand jury to indict) broke the causal chain between the officers' conduct and the unconstitutional prosecution. Absent allegations that the officers affirmatively misled or unduly pressured the prosecutor to seek that indictment, his acts insulate the officers from liability. The court further rejected the argument that the police and Nifong conspired to seek an unconstitutional indictment and prosecution, emphasizing the duty of police and prosecutors to work together in seeking to establish probable cause and to seek indictments; a "conspiracy" thus could be alleged in every case. On a related point, the court in a footnote rejected an overlapping Fourteenth Amendment substantive due process claim against the officers for fabricating evidence. Substantive due process is not available when there is an "explicit textual source" for a constitutional claim; because the claim could be brought under the Fourth Amendment, the Fourteenth Amendment could not provide the basis for a claim.
This result seems correct, although it illustrates well the difficulty (if not impossibility) of using § 1983 to challenge misconduct in the criminal justice system. A prosecutor enjoys absolute immunity in seeking and obtaining an indictment, while his conduct insulates police officers from liabiltiy, at least absent affirmative lies or concealment of evidence. The court was a bit too dismissive of the possibility of a conspiracy to indict, although that may have been because the complaint itself showed Nifong as the bad actor, taking weak evidence, which the officers themselves insisted was weak, and moving forward with an indictment. On the other hand, because police never themselves initiate a prosecution, perhaps the Fourth Amendment is the wrong source; perhaps cases of fabricated evidence should be handled under substantive due process--after all, it is hard to imagine what misconduct could be more "outrageous" than fabricating evidence.
2) The claims against the City of Durham had to be dismissed once the court held that there was no underlying violation. The same for the "stigma-plus" S/D/P claims against police officers who made public statements suggesting the players' guilt. The DA's independent decision to seek the indictment broke any causal connection between the statements and the indictment, eliminating any "plus" necessary to state a claim. The latter was an unfortunate way to resolve it--I would have liked to hear the court take on whether "stigma-plus" was a valid theory of liability.
3) Judge Wilkinson wrote a strongly worded concurrence, criticizing the e plaintiffs' lawyers for overreaching, both in the dramatic numbers of claims asserted (23, 32, and 40, among the three complaints--and the unindicted players, who never got dragged into the system, actually brought more claims than the indicted players), the "sweeping scope" of the litigation, and the "overwrought" nature of the claims and the allegations. Wilkinson had a stronger position against "stigma-plus" claims as inconsistent with SCOTUS precedent; he also read Iqbal to require particular allegations of precisely what each supervisor did to cause the violations alleged; simply naming names, without identifying their conduct, is insufficient.
4) The state-law malicious prosecution claims remain alive against the officers, as do the claims against Duke University (who could not appeal at this non-final stage) and Nifong (who did not appeal the denial of his motion to dismiss. And despite Wilkinson's point that this case continues more than six years after the criminal charges against the three players were dismissed and coming up on seven years since the infamous party, the case goes on.
Sunday, December 30, 2012
Prof. Bainbridge takes up the cause of faculty in his own way by a post with the ill-conceived title "Dean Dan Rodriguez Thinks Making the Faculty Work Harder is the Solution." Uh, no, not exactly. But I'll leave y'all to decide whether my various posts suggesting ways of getting a handle on the too-high costs of legal education can be read as such.
But Steve nonetheless raises a serious point, a point made frequently elsewhere, and one which deserves serious scrutiny. What are we going to do about high administrative costs and the impact on law school budgets and, thus, student well-being?
First, some essential points of agreement:One, in this new environment, law schools must be prepared to justify thoroughly and concretely existing administrative costs -- and, indeed, we should do so with a dose of skepticism about whether the current configuration of administration can be sustained in a period in which students are suffering and in which our basic economic model (albeit at some places more than others) is in jeopardy. Two, any augmentation to administration must be justified in clear terms and with compelling evidence that such initiatives are directly tied to student well-being, both with respect to the learning environment and with respect to expanding professional opportunities after graduation. And, third, tuition revenues should be a last resort for these (if any) augmentations. As we ask, and even press, our alumni for financial support of our respective law schools, we should be looking to them to support infrastructure where we can explain and justify it as contributing directly to the law school's ability to (a) improve student learning; (2) enhance professional opportunities; and (3) ultimately reduce student debt.
Now, to those insistent that administrators are the main (sole?) problem here. The claim that law schools are filled with "administrator bloat" is not an argument, it is a slogan. Responsible analysis of our current situation requires information and perspective. Faculty members have long looked around their law school and wonder what all these "administrators" are doing. "I remember the good old days when the dean ran the law school with the help of his cheerful secretary, Mrs. Jones, a librarian, a couple admission folks, and a guy who made sure the podium and chalk was set up in the classroom. Ah, those were the days . . . " Yadda, yadda. Not only were the good old days not unequivocally good, but let us take a step back and look at what the increase in law school administration over, say, the past quarter century has brought us:
(1) Student services. The expansion in academic support as law schools looked to broaden their scope to historically disadvantaged students and, unlike the days in which they simply flunked out under performers, actually committed to the success of these students. Counseling services and more sophisticated exam administration (that the guy moonlighting from Star Market who has hired to proctor several exams when I was in law school) is one example. Specialized student support for foreign students is another. Administrator bloat here? Perhaps so. But the expansion of student services and recognition that this is a career path and not simply something to be outsourced to overworked legal writing instructors has been a cost driver;
(2) Techology. The need for specialized expertise in and with regard to technology has pushed law schools to make investments. Most law schools have separate IT departments; and, to a greater or lesser degree, these investments have enhanced students and faculty work. Current law students don't remember and can't easily fathom when technology support was the part-time person in the library or, even worse, was someone on central campus who might return your phone call and get to your law school problem as she went down her list;
(3) Career services. Can anyone doubt that law schools ought to invest significantly in job placement and advising services for their students, especially now? To be sure, law schools often do this inefficiently and haphazardly. But the single biggest complaint from involving administration is that there isn't enough effort and energy (all requiring resources) mobilized in the service of expanding professional opportunities for students. At Northwestern, for example, we have created an office of external partnerships, designed to increase opportunities -- that is, paid jobs -- for our law students by tactical and targeted networking. Career services in the new normal is not just advising; it is outreach and it is placement-centered. Lumping such efforts into the bromide "administrator bloat" doesn't capture it.
(4) Alumni relations & development. One commenter noted that NYU has 32 individuals devoted to ARD. I don't know whether that number is correct, but I do know that they were able to increase their endowment by over one half a billion dollars in the past few years. Increases in endowments decrease student tuition pressure; it's that simple. So, the significant augmentation in ARD within law schools have enabled law schools to continue to support their alumni communities, to enhance the reputation of the law school by strategic communication and marketing, and to raise money.
This all said, there is no doubt that there are serious inefficiencies in how law schools configure their administrative efforts. (Some of the administrator expansion has accompanied regulatory pressures, but that is a subject for another day). That there are such inefficiencies and that it is incumbent upon law schools to continue to look for ways of doing more with less and, to Steve's valuable point, to make sure that administrative enhancements are not coming at the expense of actual education. Moreover, none of the above -- let me say this in bold font, none of the above -- is intended to justify by its own terms the present (unsustainably high) level of law school tuition.
But the notion that any serious law school leader would suggest that budgets should be balanced and even reduced on the back of faculty members while administrators run riot is a foolish one. That is not my point. There are myriad places to look for meaningful changes to the economic model which is causing significant challenges to our students. The modern law school is made up of many "houses." We should be looking at getting all of them in order, no?
Saturday, December 29, 2012
law & technology: stepping up our game
Good post from Bill Henderson on how we learn or don't learn about law & technology. Definitely gets my attention, as it should other deans & profs.
Three (at least) dimensions of the matter:
How should we best use technology in educational instruction?
How can technology be mobilized in the service of faculty research and its external impact?
How should we educate our law students about new modalities of technology and technological innovation in the new world of legal practice?
Tall order indeed! I confess to great uncertainty, from a dean's perspective, about whether these complex matters are best left to a chief technology officer, perhaps combined with the law library's functioning, or should be more widely distributed within faculty and administration. Happy to be educated on this subject.
Friday, December 28, 2012
The Nuances of Cost in the Legal Supply Chain
I've cross-posted this at one of my blogging homes, The Legal Whiteboard.
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My colleague, Carter Bishop (left), just sent over some comments by a friend of The Legal Whiteboard, Paul Lippe (below right). Among other things, Paul contributes to The New Normal blog for the ABA Journal. Much of the discussion over there centers around the current upheaval in the way sophisticated users of legal services (mostly big companies) interact with their suppliers (mostly big law firms).
A post from Patrick Lamb (below left), the New Normal's other proprietor, not only captures a primary thesis of that blog, but also reflects something my non-lawyer corporate management team colleagues were saying to me in the executive suite almost twenty years ago: "Lawyers Are Not Special - The Rules That Apply to Other Businesses Apply to Us."
Carter's e-mail concerns comments from Jeffrey Carr, the GC of FMC Technologies to this effect: outside lawyers do four primary things: Advocacy, Counseling, Content, and Process. The first two have relatively high value, and lawyers are pretty good at it. The second two are the kinds of things that don't, on their surface, seem to have much value to the client, like legal research or document preparation, and which, in the New Normal, are getting outsourced to places like Wheeling, West Virginia and Bangalore, India.
Notwithstanding the fact that I was thoroughly inculcated in the New Normal twenty years ago, I was intrigued by Paul's very recent observation to the effect that lawyers still resist the jargon of Six Sigma and lean enterprise, that "this 'industrial' language is anathema to many lawyers, even though nobody seems to substantively rebut the New Normal analysis." (Well over twenty years ago, the then-GC of Motorola, Richard Wiese, came to talk to my law firm about Six Sigma, and he got precisely the same reaction from a good number of my partners.)
Anyway, Carter asked what I thought, and he may have been surprised. I think one aspect of the fundamental truth that "Lawyers Are Not Special" is that companies can't simply beat the crap out of law firms (in the long run) any more than they can beat the crap out of other suppliers. Here's what I noted:1. What has facilitated the "New Normal" is the migration of smart lawyers into corporate management, and the resulting syncretism of business like value propositions into the market for legal services. That's a reflection of lean business management philosophy generally, which is that we develop entitlements or expectations of value and productivity to be derived by any investment of resources, whether the investment is money, time, property. Value is what the user is willing to pay. Productivity is the ability to produce output (value) with the fewest possible inputs. When I was in the business world, the mantra was "growth and productivity." That is, you made money by expanding the reach of your value proposition (growth) and adopting the best possible cost position (productivity).
2. The New Normal purchasers are better able to distinguish, or unbundle, those aspects of legal work that have high value propositions. I do think the long term/short term distinction is meaningful. When I was full bore hard charging toward a business objective, I at least had the capability of hearing what the lawyers were describing as the long term risks. I didn't always take their advice because I was in a better position to balance long term and short term (for example, as a seller, I would not generally not want to let a debate over the caps, baskets, and limits of the indemnification provisions to the buyer take dollars off the purchase price). But getting sophisticated legal advice is more complex than it looks. People like David Katz at Wachtell or Peter Atkins at Skadden, whose M&A advice is probably worth well more than whatever they charge per hour, or Steve Newborn at Weil or Helene Jaffe at Proskauer, whose antitrust/merger analysis is the same (to name several whose advice I've valued or counseling I've admired), don't just pop into existence. The infrastructure of the firm creates people like that. So costing is more nuanced than just saying "I only want to pay for Katz's or Atkins's time."
3. In business, sophisticated purchasers want their suppliers in the supply chain to be profitable. For example, auto parts manufacturers need stampers to provide steel stampings. You can put enough price pressure on a stamper, even an efficient one, to drive it out of business. The trick is to design the supply chain so that the stamper makes what you need at a price appropriately reflecting its value to you, and productively enough to make a fair profit. What you do is work with the supplier to remove the non-value added stuff to the extent you can. If we can reduce the material cost on that stamping by engineering it in a different way, the price AND cost go down.
4. That's pretty much what you are seeing in the market for legal services. It seems to me the appropriate balance is when I, as GC, say to the Big Law firm - this is about how much I'm willing to pay for the deal, given that I need a mix of high value and low value services, and when the Big Law partner says that I'm going to charge you for the low value stuff to the extent necessary to allow the firm to continue to produce the high value stuff. It's a decent position on the law firm partner's side to say to a buyer - I'll strip as much out and send it to West Virginia or India as I can, but it's a legitimate part of my overhead to charge you for some training, because my value to you is actually about $50,000 an hour (or something like that - I just made the number up).
5. So my working philosophy as a GC was to be smart, not to be doctrinaire: to push when I thought it made sense to push, but also to back off and be responsive to the long term health of my best suppliers.
Thursday, December 27, 2012
The Mechanics of Constitutional Amendment - 1972 Version
Over at Balkinization, Mark Tushnet has a note about the movie Lincoln, a character's reference to President Lincoln signing the Thirteenth Amendment, and the fact that a President need not, as with a bill, sign a constitutional amendment for it to take effect. Mark asks, "How many viewers, with at best an 'I'm just a bill' knowledge of our Constitution, are going to think that Presidents have to, or even generally do, sign constitutional amendments?"
I just spent the better part of the morning scavenging through old boxes in the basement to find the evidence that, just over forty years ago, as a beardless boy of eighteen, I confronted Richard Nixon on this very point. I was a freshman at the University of Michigan in 1972. During a visit to Michigan State, I found a brochure in one of the dorms (it would have been completely futile at Michigan) in which the Committee to Re-Elect the President was making the case that young people should vote for Nixon over McGovern. One of the claims was to the effect that President Nixon had always supported the eighteen-year-old voting age, and on such-and-such a date "signed the 26th Amendment into law."
Upon my return to Ann Arbor, I wrote a letter to the President, objecting to this characterization of constitutional law, and asking him why he seemed deliberately to be taking credit for something that was beyond his powers.
The lame response - as Woodward and Bernstein would have observed, a "non-denial denial" - is at left.
Although I later regretted that the letter had come from Harry S. Dent, and not John Dean, I was somewhat mollified when Mr. Dent pled guilty to illegal fund-raising in the Nixon campaign as part of the Watergate investigations. I also never believed that the President had asked Mr. Dent anything of the sort. None of this was enough to get me on the "enemies list."
Now that I have fished it out, I'm trying to decide whether to put it up in my office next to the framed 1942 letter signed by John Edgar Hoover denying my wife's grandfather's application to join the F.B.I., expressly because he "failed the written exams," but implicitly, to my reading, on account of Nathan Milstein having been Jewish while applying.
NRA Scoring: Not "Pernicious" But Still Important (and Revealing)
Orin links this morning to the same story that caught my eye today: Linda Greenhouse's opinion piece on what she calls the NRA's "increasingly pernicious role in judicial confirmations." Greenhouse writes that the NRA has become increasingly willing to "score" votes on particular judicial nominees, both for the Supreme Court and for lower federal court slots, and even where there is little strong evidence of that nominee's views on gun rights. Because of the NRA's political and financial clout, its vote scoring can make a significant difference in individual senators' positions on such nominees. Greenhouse writes that these positions can only be explained as a part of the NRA's "maintenance of its symbiotic relationship with the Republican Party." She calls it "totally unacceptable for the N.R.A. . . to be calling the tune on judicial nominations for an entire political party." Orin writes, contra Greenhouse, that there is no principled difference between what the NRA has done in this situation and other efforts by advocacy groups across the political spectrum to influence legislative decisions.
I agree. I won't rehash Orin's points, but I'll add a couple. First, Greenhouse describes the NRA's clout and its power to influence senators through scored votes as purely a matter of Republican politics. Clearly the NRA's relationship to the GOP is stronger than its relationship to the Democratic Party, but in doing so glosses over the fact that, for political reasons, the Democratic Party as a whole has run away from gun control for the last decade or so, and championed the rise of many pro-gun or anti-gun-control Democratic politicians. Second, Greenhouse writes that "[t]here was, in fact, no plausible reason for any senator to vote against" Sonia Sotomayor. That's a silly statement, one that depends on an incredibly loaded interpretation of advice and consent; of course it was plausible to imagine that Sotomayor would be a "liberal" justice, in various meanings of that word, and reasonable (on some meanings of that word) to vote against her on that basis, just as it would have been reasonable to vote against the eminently qualified John Roberts on the opposite basis. For similar reasons, it's not accurate for Greenhouse to write that NRA opposition to liberal judicial nominees is somehow incoherent unless it's based on undefined substantive reasons. What it is, for better or worse, is a plausible prediction of future performance, and it's the same prediction that other advocacy groups make in opposing conservative judicial nominees.
That said, I think one could say more than Orin does in his post. Without assuming that the NRA's political clout, relative to most other interest groups, is unearned or illegitimate, it is still substantial (although hardly invincible, as Richard Mourdock could tell you). So when the group extends its ambit, surely that is worth noting and reflecting upon, particularly when that ambit extends past gun-specific issues to include carveouts intended to preserve its own political power (a carveout, incidentally, to which congressional Democrats agreed, contrary to Greenhouse's all-Republican narrative). And when it does so apparently as much to secure a tradeoff with particular political leaders as for reasons related to the group's mission, that's worth noting too: Greenhouse reports that one reason the NRA scored the vote on Sotomayor was because it was asked to by Senator McConnell, in order to keep the Senate Republican caucus in line on the vote. I agree with Orin that that's just how politics goes, but that doesn't preclude our noting and being concerned by it.
Finally, the political power of the NRA's scoring mechanism is worth noting because, as I noted in my earlier post, the group made clear last week that it thinks it is urgently necessary, in order to save the lives of innocent children, to push a legislative effort to put armed guards in every school in the United States before those schools reopen in January. Orin writes: "I realize that the NRA is in the news for its proposals for responding to the Sandy Hook shooting—proposals that I find, um, unhelpful. But I want to focus this post on the proper role of groups in influencing the judicial confirmation process." That's his prerogative, and it's a delight to see someone on his blog mentioning the NRA proposal at all. But, as I wrote earlier, a key indicator of whether the NRA was at all sincere in its statement will be whether the lobby is able to get one of its many congressional allies to put a bill on the floor in that timeframe, and an even better indicator of sincerity will be whether it treats this as a scored vote.
Opponents of the NRA already think the group doesn't care about the deaths of children and are unlikely to be persuaded otherwise. That's not a view I share, particularly given its gun safety programs, which could be viewed as self-serving but don't have to be. But if the group doesn't get a bill on the floor and doesn't score any vote on that bill, particularly having scored things like the Sotomayor vote, then I think even its allies--who have mostly been silent in recent days--would be entitled, if not obliged, to conclude that the NRA doesn't care about dead children anywhere near as much as it says it does. Surely that would be worth more than shrugging and saying, "Forget it, Jake; it's Chinatown."
The Law of Tenure
I have enjoyed Dan Rodriguez's posts, and got to thinking this morning about his comments below regarding faculty workload, and Orin Kerr's comments and questions about what a dean can and cannot control about teaching and other expectations.
Having spent the better part of a career in the corporate world, I'm something of a skeptic when it comes to the efficacy of written power - namely, articulated principles, policies, and rules - in making sure that an organization operates effectively. As to social or economic power, one of the things corporate leaders learn fairly quickly is that, notwithstanding the hierarchy, everybody is pretty much a volunteer, and you can't use "my way or the highway" very often, for all sorts of reasons.
When organizations work well, what either substitutes for or fills in the gaps left by the formal "law" of the organization and "command-and-control"? Leadership, followership, culture, responsibility, empathy, sharing, openness, willingness to learn, and humility are all words and phrases that come to mind. As is the occasional benign inclination not to claim the full measure of one's formal entitlements. I say that as a relatively hard-assed veteran of the business world.
So, without further editorial comment, and as a public service, I am attaching four documents that commonly encompass the formal written law of faculty membership, at least in those institutions that incorporate them into formal contracts, the governing rules of the institutions, or the faculty handbook (per this paper, "the 'Statement of Principles on Academic Freedom and Tenure' is the AAUP policy most widely incorporated into faculty handbooks across the country." Nevertheless, my quick visit to the websites of my alma maters, Michigan and Stanford, demonstrate that incorporation of the AAUP policies by reference is not universal.)
The Majoritarian Senate
Many thanks to Dan Markel for allowing me to make a one-time appearance on this blog. Recently my co-author, Gregory Koger, and I completed a draft of a paper on the filibuster entitled "The Majoritarian Senate," which is now up on SSRN.
In the paper we demostrate that the a majority of senators can reform the filibuster at any time using ordinary Senate procedures. We show that reforming the filibuster does not require a supermajority of senators, the beginning of a new Congress, or any appeals to the Constitution (let alone judicial review). The argument is simple, and one that a lawyer would certainly appreciate. Just as one can change the meaning of the Constitution through interpretation, a majority of senators can change the rules that constitute the modern Senate filibuster by reinterpreting them.
Oddly enough, and this came as a surprise to me, the procedures for Senate rule interpretation cannot be filibustered, can be used at any time, and historically have been used by both the House of Representatives and the Senate to limit filibustering. In fact, the paper shows that the House abolished the filibuster by essentially using the same procedures for rule interpretation as the ones we describe in the paper.
The paper is still a draft, so I would welcome any comments you may have. Part of why we posted the draft now is hopefully to reach policymakers as they negotiate possible filibuster reform proposals. Even if filibuster does not happen in January, we hope that supporters of reform will recognize that they do not have to wait for a new Congress to try again. More broadly, the goal of the paper is to show that Senate rules and procedures are no obstacle to reform. All that is needed is the will of a determined majority of senators. In other words, when it comes to filibuster reform, don't hate the game, hate the players.
Wednesday, December 26, 2012
As reformists and irritants likewise insist, we are going to increase our expectations of full-time faculty members in order to realize cost savings and take our foots off the tution pedal. Market pressures make the exhortation "pay the bastards less" ring rather hollow -- and all the shouting and screeching from the disgruntled won't make it otherwise. Salaries for incumbents will remain more or less where they are (albeit with rarer raises). Faculty hiring is what will take the hit. In this environment, law schools will be asked to do more with less.
So how ought we to think about these great(er) expectations?
(1) Teaching regularly and well and with sufficient accomodation to institutional needs, as these needs evolve in this new and difficult era. Deans, including this one, will be reticent to enter into permanent teaching reduction agreements. Scheduling will need to follow the imperative of student learning and sensible organizational management, not principally the convenience of full-time faculty members. Faculty leaves, whatever the reason and whatever past practice, should be discretionary and timed around the needs of the school and its learning environment. And teaching must be excellent -- sophisticated in content, coherent in expression, up-to-date, and connected increasingly to the essential project of making our students into first-rate young lawyers;
(2) All hands on deck. Faculty members are the professional portals to the students' legal careers. The work of training rests in their hands. But, to an increasing extent now, so, too, does counseling and placement. Developing opportunities for students to pursue remunerative, valuable careers should be part of the work of a faculty member. This will range from active career counseling, writing effective recommendations for clerkships and, where appropriate, law firm employment, and helping students with their employment search in imaginative, tangible, and reliable ways. This work is too important to leave solely to overworked career service offices and deans;
(3) Insofar as scholarship forms an important part of the modern faculty portfolio, expectations of excellent, impactful scholarship should be high -- indeed, in this difficult environment, especially high. Law profs have an exceptionally enviable gig. Let's just suppose that faculty members need to demonstrate their suitability for this gig on an annual basis, and with unimpeachable evidence that they are doing their scholarly work at a level that befits this great job.
In short, faculty workloads will grow. They ought to grow. The central question, to me, is how they ought to grow in a way that serves the professional objectives of our students, while also preserving what is tremendously valuable in the contributions of the law professiorate in the contemporary legal academy.
Happy Birthday, Paul
Today is Paul Horwitz's birthday. As his wife Kelly correctly observed on FB: "He truly is an inspiration. I don't know anyone who lives with his degree of chronic pain with such grace and humor. He's overcome all that to become a fabulous father, prolific author and wonderful husband."
Here at Prawfs, we think he's also a pretty shrewd and funny observer of the legal scene too.
We are all very grateful. Happy birthday, dear Paul!
Tuesday, December 25, 2012
Interviewing at the AALS Recruitment Conference: A Newbie's Perspective
Continuing on my recent posts of what I learned during my first tour of duty on my school's appointments committee, I'd like to offer a few comments on some of the mistakes I observed candidates making during their interviews in D.C.
1) We want you to want us -- Call us insecure and shallow, but we want to hire someone who is excited at the thought of joining our faculty. When you give off the vibe of "Well I'm talking to you today because I was already going to be here in D.C. and I had some time available, but boy I hope one of my preferred schools come through," we'll pick up on that and likely cease all consideration of your candidacy. Of course, from our perspective, such an attitude is very helpful -- it makes the decision that much easier about who to invite for callbacks, and we don't want to hire anyone who doesn't really want to be here. Thus, we appreciate you telegraphing your preferences to us so early in the process. For the candidate, however, it can be quite costly. After all, your dance card may be completely full at AALS, but you do not know which schools (if any!) are going to make you an offer. We might have been your best (or only) bet.
So how do you show your interest? Well, beyond simply appearing happy to be in the room with us, you should do at least minimal research on our school so that you can talk about our program in a more informed way and, at the same time, ask more meaningful questions (and you should ask us questions -- the failure to do so can come across as a lack of interest). How can you show your disinterest? By arriving late and not apologizing (we understand the nature of the conference and the delays it can cause), by requesting to leave early because "I'm really excited about this next school, and I don't want to be late," or by asking questions like "So what city is the University of Tennessee in?" These are extreme (and admitedly made-up) examples, but not that far removed from things I have witnessed and heard about from friends who have served on their school's appointments committee.
2) Know why we are talking to you -- I don't know about other schools, but we primarily hire by subject area. Thus, when you come into our AALS suite, it is primarily because we think you are a strong contender to teach X at our school. It is your job to find out what X is PRIOR to the conference. Ideally, we should tell you what X is when we call and set up the D.C. interview; however, if we fail to do so (and it happens), please ask. One of the first questions we ask is "What would you consider to be your ideal teaching package? Please list four courses." If X is not in that list, you are likely done. We may ask, "Well, what about X?" And you can respond quite favorably to X; however, the fact that you didn't list it upfront will likely introduce enough insecurity as to your commitment to teaching X that your journey is over. I can see the comments to this posting now -- "Well that's just ridiculous!!!" Maybe so, but I've seen it happen enough that I feel comfortable throwing it out there as advice to future candidates.
3) If we are in the room with you, you need for us to like you -- Some candidates make the mistake of turning their D.C. interview into a conversation with a select member of the committee. Now, maybe it was that member who engaged you in this dialogue that lead to a 30 minute one-on-one discussion; however, make sure you are talking to everyone in the room. If the school paid to fly that person to D.C. to sit and interview candidates, then the school is going to be listening to what that person has to say. Thus, candidates need to cast a wide net over the room, engaging as many folks as possible. The University of Tennessee, for example, sends a student representative to D.C. Once interviews are complete, we very much value that student's opinion (the same student also reports at the eventual hiring meeting to the full faculty); thus, it could be a costly mistake to dismiss that member of our committee as "a mere student with no authority."
4) Failing to get a callback often has little to do with your performance -- I have listed the above as examples of things that can hurt you. The truth is, however, that most candidates give very engaging, thought-provoking interviews. In fact, I had many candidates reach out to me after the conference, asking "I was surprised I didn't get a callback -- I thought the interview went very well!" And I responded that the interview did go well! The main reasons someone wouldn't get a callback was either because there were others in the pool who had more experience in some area (teaching, scholarship, etc) or they weren't quite the curricular fit we were looking for. Thus, despite what I'm saying above, one shouldn't think the failure to get a callback invitation is any indication on how well one did at the interview in D.C.
As always, I value your comments on the subjects raised in this posting.
Monday, December 24, 2012
cost v. curricular innovation: that infernal dilemma
So the blogo-mediasphere is rightly concerned with legal education's too-high costs. For some radicals (here used in a neutral sense), that is the signal issue around which all other considerations orbit. Other voices decry traditionalism in law school curricula, celebrating innovations, preaching the wisdom of experential learning, and urging major changes.
And herein lies the vexing dilemma: Adapting to the new normal requires major curricular innovation; innovation costs money; the current economic model relies on unsustainable tuition increases and (arguably) budgets. How ought we to think about the tradeoffs?
Some general thoughts:
(1) Innovations should be evaluated on both pedagogical and economic dimensions. Experential learning is, indeed, an expensive proposition, but the challenge for clinicians and others invested in such worthy projects is to think about how to manage budgets in order to economize on particular parts of the clinical experience. To be more concrete, some admixture of public subsidy, Biglaw firm subvention, cy pres fees and other sources of court-generated funding, will help shift some expenses from recycled tuition;
(2) Legal writing should be heavily subsidized by firms. Innovations in legal writing (advocacy + transactional) are high priorities -- as Casey Stengel says, "you can just look it up." Firms such be urged by deans & other fundraisers to support generously, and ideally with endowments, creative legal writing endeavors. We should pursue tangible partnerships with firms who can afford this investment (here not being wholly naive about the economic challenges facing firms), making the case for new modalities of legal writing and the ways in which these programs will affect positively firms' bottom line;
(3) Fee-generating clinical initiatives. There are emerging initiatives to form what are essentially in-house law firms within law schools. Such programs, perhaps focusing more on transactional than litigation work, would look simultaneously to give students direct practical experience, including managerial/organizational skill-building while also generating at least a modicum of fees to offset clinical costs. Negotiating the politics of law school v. law firm competition is tricky. But this will, I believe, emerge as a novel strategy to realize both economic and pedagogical aims;
(4) Tuition breaks for externing students. I want to be careful with this suggestion for obvious reasons, but perhaps law schools, particularly the relatively well-resourced ones, should look at some tuition arrangements (reductions or one-time grants) for students who are spending a semester's worth of time externing. The traditional model of "a credit is a credit is a credit" may need to be adjusted; to the extent that students whose principal locus of activity is temporarily elsewhere impose somewhat fewer direct financial burdens on the school, schools should think about tuition adjustments;
(5) Fight the power. That is to say, push hard against regulatory costs of key groups including state bars, ABA, AALS, etc., so as to enable curricular experimentation without extraordinary external costs. Better yet, work with the central university and with external grant-funding organizations to subsidize experimental-experiental initiatives.
Here's a thought on this last issue: LSAC is sitting on a pile of money and would seem to be well positioned to subsidize law school curricular projects, particularly for those law schools least able to support them on their own. How about a major grant initiative directed toward these aims?
I've been recovering from back surgery earlier this month and am now in the home stretch of grading, so I apologize for my silence the last while. In any event, I wanted to join some others in taking a moment to wish a Merry Christmas to our friends celebrating the holiday. I hope you enjoy the holiday whether it is a bonanza or a reprieve.
For those of you planning on showing up in New Orleans for the AALS conference in a couple weeks, we will have a happy hour as usual. Details will unfold over the next week. Watch this space. Last, on a personal note, I'll be up in NYC later this week, principally as a walking tourist; for those of you up there, please message me with any special recommendations about what's going on and cool things to do at this time in the city. Thanks, and happy holidays to all.
Sunday, December 23, 2012
Why I Am Not a Legal Realist
I had a dialogue with a friend and colleague a couple months ago in connection with the pedagogy of first year contract law. The question revolved around students' attempts to understand the doctrine, say as capsuled in the Restatement, as something integrated and coherent. For example, is it helpful for a student to have a relatively abstract understanding of what makes something a contract, given the vagaries of the doctrines of consideration, promissory estoppel, promissory restitution, etc.?
At the time I responded as follows:
I tend not to get so hung up on taxonomies and terminologies.
In other words, how the universe of enforceable private obligations gets classified into subsets and then “named” is less important to me than the actual rules (algorithms) into which real world stories get translated for the purpose of arguing for or against or adjudging the existence of a legal obligation that arises out of a promise.
So “enforceability” cases arise when one of the parties contends that whatever legal rule turns a gratuitous promise into a binding one either applies or doesn’t for the purpose of enforcing or avoiding an obligation. “Formation” cases arise when it’s to the advantage of one side or the other to claim a bargain was or was not formed.
The groupings of cases and doctrine into casebook categories and chapters is an academic one, and “scientific” in the Langdellian sense of trying to make all the doctrine “fit” as though there really were a physics like world in which the concepts, rules, and algorithms existed on their own.
I would tell the student not to worry so much about the definitions. Or look to R2K §1 as the definition of a contract - the delightfully tautological notion that a contract is a promise or set of promises for the breach of which the law gives a remedy or otherwise imposes a duty. Under that definition, a promise enforceable under R2K §90(1) (otherwise referred to as promissory estoppel) is a contract, but who gives a ****?
The question he raised was whether it made sense to give students some formal structure by which to organize the doctrine, as opposed to teaching something that sounded more of "legal realism."
Having thought about it, and to the extent these categories are meaningful, I can now say why I’m not a “realist” and am instead probably something like a "constructivist." For those who need a soporific, the brain-numbing explanation follows the break.
I regularly see the following when grading 1L contracts exams. Invariably, regardless of the particular construct of a large issue-spotting question, the majority of students understand the implicit question to be something abstract (or disconnected from context, if that's different) like "was there a contract?" If that's how you frame the response to the problem, it certainly makes sense to proffer, as your first "Rule" in an IRAC approach, the definition of a contract.
Moreover, this is usually preliminary to an assessment whether, first, there was a promise and, second, whether there was consideration for the promise. This, if well done, is less abstract because it requires engagement with the facts, but it still starts from an abstract frame of reference.
That's certainly one way to go about it, and it very often suffices for a pretty decent grade.
But it's not the way I teach approaching a lawyer's problem. It puts law before context, and I believe law, at least from a law student's perspective, is meaningless without context.
I try to get students to go about this differently, and as experienced lawyers do: first identifying what the claimant wants as a non-legal matter and only then positing the legal theories supporting the claim and the defenses to the claim.
There’s a subtle analytical difference. If I launch immediately into a conceptual analysis of contract law, starting quite understandably from the definition of “contract” in R2K §1 and moving to the definition of “promise” in R2K §2, I very possibly miss all but the most obvious issues. Indeed, in my experience, it turns out that the definition of “contract” in R2K §1 rarely makes a difference to the most effective legal theories of claim and defense (it doesn't hurt to talk about it, but it's only an opening flourish).
No, it seems the right way to organize one’s thinking is not around the coherence of the set of rules that constitute contract law (as embodied in, say, the Restatement 2d), but around the legal theories lawyers construct – using the rules within the Restatement – for purposes of attack and defense. (I always do a lecture early in the semester demonstrating how these "theories" turn into the "counts" of a complaint.)
I understand this sounds like legal realism. Larry Solum just featured as his "Download of the Week" an otherwise highly theoretical piece on legal realism by Nicholas Barber (Oxford). Barber takes on what he calls the "thankless" task of trying to describe what "legal realism" means. My friend could be correct in placing me with those "realists," like Stewart Macaulay, who try to "focus on the impact that law has on the community that it addresses." That's fair. As I have told Professor Macaulay, often my most difficult challenge is explaining why I think what I'm saying is different than what first he said fifty years ago!
Or it could be, given that I'm not talking here about ongoing relationships but the argumentation and adjudication of legal disputes, that I am espousing some of the Core Claims of the realism that, per Barber, is "attentive to the gap between the law's aspirations and the reality of the rules that guide power": (per Leiter) (a) "that in deciding cases, judges are reacting to the underlying facts of the case, whether or not those facts are legally significant, i.e., whether or not they are relevant in virtue of the applicable legal rules"; (b) "that [legal rules and reasons] generally have no (or little) effect [on the course of decision], especially in . . . that class of more difficult cases that reached the stage of appellate review"; and (c) while there may be some causal connection between legal rules and reasons, on one hand, and decisions, on the other, "Realists deny that 'traditional . . . rule-formations are the heavily operative factor in producing court decisions."
Great movements in art and thought are often a response to the failures or inadequacies or restrictions of an earlier movement. Historically, the variants of legal realism are no different. It simply defies common experience of individual or judicial decision-making to suggest, for example, that a traditional rule formulation of "separate but equal" versus my moral outrage at racial segregation would be the source of my decision in a case like Brown. And it defies commercial experience to suggest that most of what we teach in the doctrine of contract law (whether emanating from the perspective of a Williston (pictured, above left) or a Llewellyn, pictured above right)) has much in common with the business of doing transactions.
Continuing in this intellectual tradition, the thesis of Barber's piece is to offer a critique of Dworkinian responses to legal realism and legal pluralism. Barber views both realism and pluralism as "set against the non-positivist [i.e. Dworkinian] account of law, an account that ties law tightly to the moral considerations that ought to guide judges." The essence of this latter account is that "law is mind-independent: its content is not determined by institutions or individuals, but, rather by what morality demands of us."
But I don't teach courses that dealt in subjects to which students generally bring well-developed moral intuitions, or in which those intuitions clearly direct one to a result. Instead, the opinions and dissents often seem equally persuasive. The first case I read in law school was Groves v. John Wunder Co. The defendant failed to grade a piece of commercial property to the specifications in the contract. The cost of completing the grading was $60,000 but the property was only worth $12,000 even if graded correctly. Should the damages be the cost of completion (which gives a windfall to the plaintiff) or the difference in value (which gives a windfall to the defendant)?
Yeah, I guess there's a moral component (breacher versus non-breacher), but even one of the great realists (Holmes) said that shouldn't matter. I mean, c'mon, does anybody really care?
When I decline to call myself a realist, what I'm really saying is that, philosophically, I'm closer to a form of what is classified (!) as constructivism, here described nicely by Carla Bagnoli in the Stanford Encyclopedia of Philosophy.
One attempt to distinguish constructivism from both realism and anti-realism appeals to the function of concepts (Korsgaard 2003). Korsgaard points to an assumption she believes that realists and antirealists share and that constructivists reject, namely, that the primary function of concepts deployed in judgments that can be true or false is to represent things as they are, so if normative judgments are true, they must represent something real out there in the world. By contrast, constructivists think that normative concepts, which are deployed in judgments that can be true or false, have a practical function: they name solutions to practical problems, rather than represent features of reality (Korsgaard 2008, 302 ff.). For instance, the concept of equity does not stand for a property; instead, it proposes a response to the practical problem of how to distribute goods. Korsgaard draws the contrast between constructivism and other metaethical theories as follows. Unlike substantive realism, which holds that moral judgments are true insofar as they represent a mind-independent normative reality, and antirealism, which denies that there are normative truths because it denies that there are normative properties, constructivists hold that practical judgments can be true or false without representing mind-independent normative facts about the world (Korsgaard 2003, 325 n. 49).
My view is that meaning is something we always construct in context. Neither my friend or my students are wrong in trying to find meaning (read: coherent explanation) of the rules as a formal system. I organized an entire symposium around the theoretical underpinnings of contract law! And even as a practical matter, the appeal of formalism over contextualism in contract disputes, it seems to me, is not that there's an immanently correct answer but that it's just simpler to get to an answer from the judge's standpoint.
What I share with realists is a skeptical view of the law as a mind-independent reality. At least in the quotidian world where I teach students to do what I did for so long as a working lawyer, I don't see the search for immanent truth embodied in abstract questions like "what is a contract" as particularly helpful. Rather, the algorithms of the Restatement 2d and Article 2 of the UCC are practical models for resolving disputes without resort to violence, whether or not they manage to cohere in themselves.
So without a compelling moral intuition as the basis for a "realist" approach to things like "gift or bargain," "covenant or condition," and "exclude parol evidence or not", what are we left with? Only the internal coherence of the model and our intuitions, not so much morally as epistemologically - in the sense of making sense - with respect to the facts in dispute.
Here's an example. A newspaper wants to run an important political exposé. The credibility of the story depends on the credibility of the source. The editor decides the story requires identification of the source and overrides a reporter's promise to the source that the paper will withhold his identity. The source sues the newspaper for damages he suffers as a consequence (losing his job, etc.). We know what a prototypical enforceable commercial bargain looks like, and we know what a prototype gift or gratuitous promise looks like. Where does this one fall?
There are an array of rule formulations from which to choose, from "contract = promise + bargained for consideration" to "promissory estoppel = promise + justified reliance + avoidance of injustice" to "gratuity = promise + mere condition of performance". There are colorable if not persuasive consequentialist moral arguments on both sides. My students know that to ask me for the correct answer is to get an "I don't know."
Nevertheless, I don't believe that "realism" explain these cases very well. A die-hard realist might well suggest that there's no mind-independent reality whatsoever that determines the answer. What I'm saying instead is that, individually and collectively, our minds construct a reality in which, absent overwhelming moral considerations, internal coherence of the doctrine itself is part of the sense-making we use to explain and to advocate.
That's not formalism, and it's not legal realism, at least as others have struggled to describe it.
An Interesting Supportive Conservative Take on the LaPierre Statement...
That title may be a bit misleading. Actually, what I find interesting is that an interesting, supportive take on the LaPierre statement has been difficult to find. As I said in my last post, I already know what my liberal/pro-gun-control friends thought about the statement, and found it mostly uninteresting (and somewhat unpersuasive). But I had hoped to get out of my own epistemic bubble to find an upside take on LaPierre's statement from my usual go-to sites for those towing a more pro-gun, anti-gun-regulation, or conservative take on these and other issues. I suppose my own views on the issue are clear, but it's nice to look for challenges to those views.
But the usual sites I go to have either been silent or strategic (or both) in their reactions. The VC is the first place I go to for such things. Eugene Volokh had a post yesterday on a press release by Senator Feinstein proposing an assault weapons ban, but that post didn't mention the LaPierre statement. David Kopel, who can generally be relied on to be vocal on such issues on the VC, oddly hasn't put anything up on that site since December 11. The Corner, the National Review blog, had one more or less substantive post on the proposal, one purely descriptive piece, and a couple of posts detailing news show appearances by LaPierre or David Keene (but without discussing Friday's proposal). But mostly, it focused on criticizing reactions to the NRA's statement. (By comparison, it's had four posts on Chuck Hagel in the last three days.) For my sins, and so you, dear readers, wouldn't have to, I visited Instapundit. I don't expect substance from that site, but was still surprised by what I found, which basically was the same "the enemy of my friend is my enemy" approach that the NRO took, criticizing reactions to the statement rather than addressing the statement itself--i.e., "Well, he had journalists seething, which is probably a good sign."
I should add two points, but also two counterpoints. 1) Although this was the only major statement or proposal since Newtown by the leading pro-gun interest group, and one might expect to find something meaningful about it on these sites, it is of course possible that substantive commentators might be more interested in serious ideas than in evaluating every picayune press release or statement that comes down the pike. On the other hand, one would think that if Eugene had time to write about a press release from Senator Feinstein's office, he might have something to say about this. 2) People have lives, of course--even bloggers. They don't have always have time to write about everything. On the other hand, Kopel has published two op-eds and one NYT Room for Debate piece, and done six media appearances, since Newtown, but has written not one word on the VC since the 11th, let alone anything on what the NRA described as an urgent and necessary proposal to address mass murders of children in schools.
I think this is fair evidence that the usual suspects either found LaPierre and the NRA's proposal beneath discussion, or thought it politic, for some reason, to simply not mention it. I'm sure there are more charitable conclusions that could be drawn, or that one could draw no conclusions at all. I still found it downright bizarre, though, and frankly disappointing. I did not search very far outside my usual sources, to be sure, and perhaps there were good defenses of the proposal out there. But I didn't see them where I would expect to see them. My own view, as I said in my earlier post, is not that the proposal was horrifying or morally monstrous as such; just that, unless the NRA actually devotes resources to getting a bill on the floor and scores that vote, then we can quite fairly treat it as cynical political theater.
On a marginally cheerier note, check out the very interesting discussions of the gun/gun-control issue from a Catholic point of view, including a couple post-LaPierre statement, at Mirror of Justice--especially, with all due respect to the other posters there, the posts from Rob Vischer and Patrick Brennan. The comments to those posts offer some slightly interesting natural law perspectives, although what is startlingly absent from those comments is even the slightest hint of the imitation of Christ or the emulation of the saints. (When a commenter there writes about the possibility of a Katrina-like disaster, "Unfortunately, in cases like this, you may have little choice but to either fire a weapon against someone...or be killed for your food," I wonder whether he even considered the option of simply giving away his food to those who hunger--which is, you know, what Christ would have done.) I particularly admired the posts by Prof. Brennan, who is what outsiders would call a conservative Catholic (although I think he would reject that term), but who offers a powerful reminder, on the eve of Christmas, that committed Christianity may call for a radical peace that demands much more than hobbyists, or lovers of the bourgeois American lifestyle, may find comfortable.
Saturday, December 22, 2012
Filling out the FAR Form: Reflections from a Newbie
I've previously blogged about (here) my experience as a first-time member of the Appointments Committee at my school and the lessons I learned. I now want to transition into a discussion of some of the common "mistakes" I observed candidates making either through the FAR form, the D.C. interview, or the callback interview. I'll begin with the FAR form.
I have also blogged about (here) the problems with the current FAR form and the need for changes. Nonetheless, it is the current form that we now have to deal with, and I would like to offer some observations about how members of an Appointments Committee might use that form -- as with any writing, understanding your audience is crucial to communicating most effectively. Obviously, I cannot speak for everyone who reviews those forms as different people and different committees focus on different things; however, what follows are some areas where I saw candidates making certain choices that I think would hurt their candidacy at almost any school.
1) "No" Scholarship -- It was quite shocking to me the number of people who left the "Publications" section of the FAR form blank when, in fact, they had publications. Candidates, when we search the FAR, we get a list of candidates who match whatever search criteria we used. Next to each candidates' name is a link to that person's FAR form and resume. Given that the FAR form is supposed to provide "one-stop-shopping" for your credentials, many of us (myself included) will only look at it to determine whether you're a yes, no or maybe. If it's a no, I'm likely not going to read the resume. And . . . if your FAR form lists no publications, then it likely is going to be a "no" and your journey is done at our school. Several times this past season, the committee would assemble to discuss who to interview in D.C. and someone else would bring up a name of a candidate. When I would respond with "Yeah, but he hasn't published anything," I was then informed (by a much more thorough member of the committee than I) that, "Well, if you read his resume, you'll see he's written 2 articles." How lucky for that candidate that someone was willing to go beyond the FAR form. Nonetheless, I think it's a fair assumption that most folks aren't going to look beyond the basic form; thus, it would behoove candidates to ensure that the form can stand alone as an adequate summary of their qualifications.
2) Teaching "experience" -- My view on teaching experience is that it's great if you have it, but not fatal if you do not so long as you seem to put some thought into what it means to be an effective teacher. However, it seems that candidates are, by and large, quite reluctant to leave the "Teaching Experience" section of the FAR form blank. Instead, they'll list anything that is arguably relevant, ranging from serving as a mentor to young associates at their law firm to such things as teaching Vacation Bible School while in the 11th grade. Not to disparage any of those experiences, but when I see them on the FAR form it just highlights for me the fact that the candidate has no law-related teaching experience. And, if the experience is too much of a stretch, I might question your understanding of what it is a law professor does--not to mention your judgment in including such irrelevant things in the first place.
3) Geographic Restrictions -- I have to admit, I really don't understand why anyone lists geographic restrictions on the FAR form. On one hand, I really appreciate a candidate letting me know up-front that she would never want to work at my school, but by the same token, even when my school satisfies the restriction, such limitations make me question the candidate's understanding of the process and also her own self-assessment. As to the process, as any candidate knows, it is extremely hard to get a law teaching job. Further, to get one in the few places you deem ideal is next to impossible. Thus, when I see restrictions, I immediately think "Well,that's not really how this works if you're serious about it." Instead, it can give the impression of "Well, a law teaching job might be nice, but only so long as it fits in with my current life." Second, it can come across as a bit arrogant, giving the impression that the candidate thinks his qualifications are so outstanding that he'll basically have his pick of jobs. Now, I fully understand that there are people who are quite passionate about law teaching who, unfortunately, are limited in where they can move. But, why not just leave off the geographic restriction and instead, turn down any interview requests from schools that aren't a fit for you? That way you don't risk sending any of the negative signals I mentioned above, and you can make decisions based on the individual schools instead of having already eliminated every single law school located in certain state(s). And, of course, the more restrictions you have, the less likely you are to get any position anywhere.
4) The "Comments" section -- Like "Teaching Experience," I think this is another section one should feel comfortable leaving blank absent some compelling nugget of information that a committee might benefit from knowing. Examples of helpful "comments," include "Please see my resume for a more complete picture of my publications"; or "Although I do not have formal teaching experience, I have served as a mentor to many associates in my firm"; "The reason I can only take a job in the Pacific Northwest is because . . ." or even "My husband and I are both on the teaching market and would like to find a job working at the same school." Such information can be extremely helpful. What is not helpful are "comments" like: "I think I'd make a good law professor"; "I am willing to publish articles"; or "Glee is my favorite TV show." These are made-up examples, but the first two appear a lot in one form or another -- and, bottom line, we have already assumed that you are willing to publish and that you believe you would do a good job -- why else would you have paid over $400 to put your name in the FAR. Thus to read that is 1) a waste of our time and 2) an indication that you don't quite understand the nature of the position you're applying for. As for the final example I gave, I guess the "comments" section can help humanize you a bit and provide us with a glimpse of your personality, but at the time we're reviewing the FAR form, we're just making initial determinations as to who to see in D.C. -- it's at the interview that I'd start worrying about letting my personality show (after all, when you have a live audience, you have a bit more control over the impression you're making).
Again, these are just my thoughts, and I share them here in an attempt to be helpful and also to encourage others to share their FAR form pet peeves.
A statement too far?
We live (thankfully) under a Brandeisian "remedy to be applied is more speech" model of the freedom of speech, which protects "verbal tumult, discord, and even offensive utterance" and accepts "verbal cacophony" as "necessary side effects of the broader enduring values which the process of open debate permits us to achieve." One underlying theory of that model is that eventually speakers will be exposed--one statement will go too far or be so totally tone-deaf, ungrounded in reality, insincere or cynical that the speaker loses all credibility.
I wonder if Wayne LaPierre (if not necessarily the NRA as a whole) hit that point yesterday. Probably not, truth be told. But we can hope.
Models. Behaving. Badly.
My friend Anna Ivey (former Dean of Admissions and alum of the University of Chicago Law School) passed on a recommendation for Models. Behaving. Badly., by Professor Emanual Derman of Columbia. It's a nice alternative to Taleb's The Black Swan - particularly if, like me, you think Taleb has a lot to say but is readable only in very short doses.
The subtitle is "Why Confusing Illusion with Reality Can Lead to Disaster, on Wall Street and in Life." This is a a topic - the philosophy and science of mind by which we derive subjective meaning from objective circumstance - that has fascinated me for a long time.
Plus, if you like the stimulation of taking multiple disciplines and smashing them together to see what meaning results (sort of a mental Large Hadron Collider), you have to love a book that incorporates Humbert Humbert, positrons, The Pirates of Penzance, Black-Scholes, the Standard Model of quantum physics, and the Tetragrammaton.
The NRA Proposal Judged From an Internal Point of View
It's unsurprising that the gun control/response to Newtown debate has not remained terribly focused or productive for very long. This isn't my field, and I've been occupied with other things anyway, so I haven't written on it this week. But I did want to add two observations. Both of them are admittedly consistent with my biases on the issue, but both are also aimed at trying to say something that could and perhaps ought to be said by those who don't share those biases.
The first has to do with the NRA statement to the press yesterday. (More a statement than a "press conference," since the organization imposed a three-day waiting period before answering any questions.) Here is Wayne LaPierre's statement in full. Unsurprisingly, gun-control advocates did not care for the statement. For present purposes I won't take a position on it. But if one takes something like the NRA's point of view, a question worth asking is whether the statement was essentially political theater or whether it had any shred of sincerity to it. Admittedly, I think it was theater. But how might one evaluate it from an internal point of view?
Two factors seem relevant. First, the statement does not amount to saying, putting more armed guards in school is the best we can do, or that it is acceptable legislation, or a reasonable starting point for discussion. It says doing so is utterly, immediately necessary. "[W]e must speak ... for the safety of our nation's children," LaPierre said. "[W]when it comes to the most beloved, innocent and vulnerable members of the American family — our children — we as a society leave them utterly defenseless, and the monsters and predators of this world know it and exploit it. That must change now!" Here was his specific call for action:
I call on Congress today to act immediately, to appropriate whatever is necessary to put armed police officers in every school — and to do it now, to make sure that blanket of safety is in place when our children return to school in January.
Before Congress reconvenes, before we engage in any lengthy debate over legislation, regulation or anything else, as soon as our kids return to school after the holiday break, we need to have every single school in America immediately deploy a protection program proven to work — and by that I mean armed security.
And he concluded: "This is the time, this is the day for decisive action. We can't wait for the next unspeakable crime to happen before we act. We can't lose precious time debating legislation that won't work. We mustn't allow politics or personal prejudice to divide us. We must act now."
The second factor is this: If that's what the NRA thinks is immediately necessary to resolve a pressing issue of public safety, it has plenty of resources and influence to devote to the task. It spent some $19 million in the last election cycle. Its lobbying power is evident. It is willing to spend to defeat incumbent Republicans as well as Democrats. It devoted ample resources to the primary defeat of Senator Richard Lugar, who enjoyed a one-time A rating from the group and almost has an NRA-worthy last name. And one key aspect of its power is its determination which congressional votes to "score" in coming up with its ratings.
So, in judging the good faith of yesterday's proposal, which again was described not as a compromise or possible idea but as urgent and mandatory, look to three things. First, will it actually expend any resources on it? Yesterday's statement said that former congressman Asa Hutchinson would "lead [our] effort as National Director of the National School Shield Program, with a budget provided by the NRA of whatever scope the task requires." The NRA has the money, and can raise more. How much will it spend? Second, how long will it take for it to get a bill into the hopper? It ought not take terribly long. Third and by far the most important, will the NRA treat any vote on this issue as a scored vote, regardless of any reasons, such as fiscal conservatism, that individual members might have for voting against it? If it can't get a bill on the floor, or doesn't score that vote, then I think it would be quite fair to say it never really gave a damn about what it described as an urgent and necessary proposal.
Again, I appreciate that those who oppose the NRA in general, or found yesterday's statement insufficient or horrifying, already think the proposal was political theater. For present purposes, I'm not interested in that; I'm interested in how those who either support the NRA in general, or think the proposal was a good or at least reasonable idea, and in any event who think the NRA is sincere in its statements, should evaluate the proposal--which, obviously, they should.
It's not all that hard for those who already hate LaPierre to continue hating him. But for those who think highly of him, and/or of the organization, I think it's fair to say this: LaPierre made clear that his proposal, in his view, was urgent, important, and necessary to protect "the most beloved, innocent and vulnerable members of the American family — our children." If the organization does not actually make a concerted and resource-heavy effort to see legislation proposed, advocated, and scored, then, at that point, I think it would be more than fair for even his supporters to conclude not only that the whole thing was political theater, but that--for professional purposes!--LaPierre does not really care all that much about the safety, well-being, or death of children. His adversaries, of course, already think that, but I'm more interested in how his supporters should judge him.
Friday, December 21, 2012
Introduction to a Discussion: Koppelman on "Defending American Religious Neutrality"
Here's another piece of weekend reading. As Rick noted on this page a while back, our friend and colleague Andrew Koppelman has just published an excellent book on law and religion, Defending American Religious Neutrality. (Note that the Amazon page offers an excellent deal when you buy it with another particular book.) Here's what Steve Smith of San Diego has to say about it: "Neutrality has been the central but embattled ideal in the modern jurisprudence of religious freedom. Andrew Koppelman offers the most serious and sophisticated defense of that ideal now available. For anyone interested in these important debates, this book is not recommended reading: it is required." That seems right to me. It offers a wide-ranging and sophisticated explanation and defense of the role of neutrality in the American law of religious liberty, and even those of us who do not share all his views (and I think Andy has convinced me that he and I actually have a good deal of common ground) will find it a book to be reckoned with.
Andy has kindly offered an introduction to his book below and, God (or not God) willing and the creek don't rise, Rick and I should be posting some responses to the book in the next week or two, hopefully with some replies by Andy. We're grateful to have him. His post begins below and continues after the fold.
* * *
The American law of freedom of religion is in trouble, because growing numbers of critics, including a near-majority of the Supreme Court, are ready to cast aside the ideal of religious neutrality. My new book, Defending American Religious Neutrality (Harvard, 2013), defends the claim, which unfortunately has become an audacious one, that American religious neutrality is coherent and attractive.
Two factions dominate contemporary discussion of these issues in American law. One, whom I’ll call the radical secularists, tend to regard the law of the religion clauses as a flawed attempt to achieve neutrality across all controversial conceptions of the good – flawed because it is satisfied with something less than the complete eradication of religion from public life. The other, whom I’ll call the religious traditionalists, think that any claim of neutrality is a fraud, and that law necessarily involves some substantive commitments. They claim that there is thus nothing wrong with frank state endorsement of religious propositions: if the state is inevitably going to take sides, why not this one? One side regards religion as toxic and valueless; the other is untroubled by the state’s embrace of an official religion. Neither sees much value in the way American law actually functions.
Yet America has been unusually successful in dealing with religious diversity. The civil peace that the United States has almost effortlessly achieved has been beyond the capacities of many other generally well-functioning democracies, such as France and Germany. Even if the American law of religious liberty were entirely incoherent, it might still be an attractive approach to this perennial human problem. There is, however, a deep logic to the law that its critics have not understood.
Prominent scholars of religion have ridiculed President-elect Dwight Eisenhower’s 1952 declaration: “Our form of government has no sense unless it is founded in a deeply felt religious faith, and I don’t care what it is.” Eisenhower nonetheless revealed a deep insight into the character of American neutrality. This book aims to recover that insight.
Contrary to the radical secularists, First Amendment doctrine treats religion as a good thing. It insists, however – and here it parts company with the religious traditionalists - that religion’s goodness be understood at a high enough level of abstraction that the state takes no position on any live religious dispute. It holds that religion’s value is best honored by prohibiting the state from trying to answer religious questions.
American religious neutrality has over time become more vague as America has become more religiously diverse, so that today (with the exception of a few grandfathered practices) the state may not even affirm the existence of God. This kind of neutrality is not the kind of neutrality toward all conceptions of the good that many liberal political theorists have advocated, but it is the best response to the enormous variety of religious views in modern America. It is faithful to the belief, held by the leading framers of the First Amendment, that religion can be corrupted by state support.
Defending American Religious Neutrality offers new answers to three questions: What conception of neutrality is relied on in the interpretation of the Establishment Clause of the First Amendment? Is it coherent? Is it defensible?
The First Amendment of the United States Constitution says “Congress shall make no law respecting an establishment of religion, or abridging the free exercise thereof.” The interpretation of this provision has been controversial for a long time, and indeed may be ripe for revolution. A growing number of writers, including several Supreme Court Justices, have argued that religion clause doctrine is both incoherent and substantively unattractive. They propose to replace it with a new set of rules that are far friendlier to official endorsement of religion.
If these proposals are adopted, the result would be heightened civil strife, corruption of religion, and oppression of religious minorities. One proposal, for example, is to permit states to endorse general principles of Abrahamic monotheism. Official religious pronouncements not only brand as outsiders anyone whose beliefs do not conform to the official line; they tend to produce religion of a peculiarly degraded sort. If the state gets to discern God’s will, we will be told that God wants the reelection of the incumbent administration. Another proposal is that religious activities should be eligible for direct funding so long as there is a plausible secular reason for doing so. Such funding for religious entities, particularly when those entities are relied on to provide public services such as education, aid to the homeless, prison rehabilitation, or drug treatment, can easily lead to a situation where the only option is a religious one, and people are bullied into religious activities. The most radical proposal would discard the requirement that every law have a secular purpose. Some religious justification is available for nearly anything that the state wants to do to anyone. Permitting such justifications would devastate many constitutional protections that have nothing to do with religion.
And this exorbitant price will have been paid for nothing. Present doctrine already allows for what the doctrine’s critics most value: state recognition of the distinctive value of religion. The law treats religion as something special in a broad range of legislative and judicial actions. What the state may not do—what the doctrine properly forbids it to do—is declare any particular religious doctrine to be the true one, or enact laws that clearly imply such a declaration of religious truth.
There is, indisputably, a deep coherence problem in First Amendment law. The Court has interpreted the First Amendment to mean that “[n]either a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.” But the Court has also acknowledged that “the Free Exercise Clause, . . . by its terms, gives special protection to the exercise of religion.”
Accommodation of religion as such is permissible. Quakers’ and Mennonites’ objections to participation in war have been accommodated since Colonial times. Other such claims are legion. Persons whose religions place special value on the ritual consumption of peyote or marijuana (or wine, during Prohibition) seek exemption from drug laws. Landlords who have religious objections to renting to unmarried or homosexual couples want to be excused from antidiscrimination laws. Churches seeking to expand sometimes want exemption from zoning or landmark laws. The Catholic church wants to discriminate against women when ordaining priests. Jewish and Muslim prisoners ask for Kosher or halal food. These scruples have often been deferred to, and religious objectors have frequently been exempted from obligations that the law imposes on all others.
There is considerable dispute about whether the decision when to accommodate ought to be one for legislatures or courts, but that debate rests on the assumption, common to both sides, that someone should make such accommodations.The sentiment in favor of such accommodations is nearly unanimous in the United States. When Congress enacted the Religious Freedom Restoration Act (RFRA), which attempted to require states to grant such exemptions, the bill passed unanimously in the House and drew only three opposing votes in the Senate. After the Supreme Court struck down the Act as exceeding Congress’s powers, many states passed their own laws to the same effect. Many of those opposed to judicially administered accommodations, such as Supreme Court Justice Antonin Scalia, think that it is appropriate for such accommodations to be crafted by legislatures.
Each of these measures raises the same dilemma. If government must be neutral toward religion, then how can this kind of special treatment be permissible?
It is not logically possible for the government both to be neutral between religion and nonreligion and to give religion special protection. Some justices and many commentators have therefore regarded the First Amendment as in tension with itself. Call this the free exercise/establishment dilemma.
This apparent tension can be resolved in the following way. Begin with an axiom: The Establishment Clause forbids the state from declaring religious truth. A number of considerations support this requirement that the government keep its hands off religious doctrine. One reason why it is so forbidden is because the state is incompetent to determine the nature of this truth. Another, a bitter lesson of the history that produced the Establishment Clause, is that the use of state power to resolve religious controversies is terribly divisive and does not really resolve anything. State involvement in religious matters has tended to oppress religious minorities. Finally, there is a consideration that is now frequently overlooked, but which powerfully influenced both the framers and the Justices who shaped modern Establishment Clause doctrine: the idea that establishment tends to corrupt religion.
These considerations mandate a kind of neutrality. The state may not favor one religion over another. It also may not take a position on contested theological propositions.
It is, however, possible, without declaring religious truth, for the state to favor religion at a very abstract level. The key to understanding the coherence of First Amendment religion doctrine is to grasp the specific, vaguely delimited level of abstraction at which “religion” is understood.
What in fact unites such disparate worldviews as Christianity, Buddhism, and Hinduism is a well-established and well-understood semantic practice of using the term “religion” to signify them and relevantly analogous beliefs and practices. Efforts to distill this practice into a definition have been unavailing. But the common understanding of how to use the word has turned out to be all that is needed. Courts almost never have any difficulty in determining whether something is a religion or not.
The list of reported cases that have had to determine a definition of “religion” is a remarkably short one. The reference I rely on here, Words and Phrases, is one of the standard works of American legal research, a 132 volume set collecting brief annotations of cases from 1658 to the present. Each case discusses the contested definition of a word whose meaning determines rights, duties, obligations, and liabilities of the parties. Some words have received an enormous amount of attention from the courts. Two examples, Abandonment and Abuse of Discretion, drawn at random from the first volume of this immense compilation, each exceed 100 pages. Religion, on the other hand, takes up less than five pages. The question of what “religion” means is theoretically intractable but, as a practical matter, barely relevant. We know it when we see it. And when we see it, we treat it as something good.
American religious neutrality is studiedly vague about the good that it is promoting, and this may be a source of frustration to its admirers. But there is wisdom in this vagueness. Citizens do need to share an understanding of what is valuable. But when the details of this particular Valuable Something are so hotly disputed, the most effective way for the government to pay it reverence is just to shut up about it.
Friday ReadingSince it's the 21st of December, here's a little extracurricular reading to start your weekend.
Wednesday, December 19, 2012
Not just balls and strikes, redux
I have returned to writing about the infield fly rule, a more scholarly expansion of the short defense of the rule that I wrote in October. Thinking about particular examples of infield fly situations (or non-examples) in the context of the full baseball rulebook brought me back to the judge/umpire/calling balls-and-strikes analogy. In particular, I come back to the argument (which I have made before) that one problem with the analogy is that it understates the complexity of the decisions that umpires actually have to make. And I have in mind one historic play that illustrates this complexity quite well.
(I apologize in advance for a post that may be tilted fairly heavily towards the sports and away from the law--feel free not to follow the jump).The Situation: (sorry not to have video to embed--it's really hard to find baseball footage online): Game 4 of the 1978 World Series between the Dodgers and Yankees; Dodgers leading 2 games to 1 and 3-1 with the Yankees batting in the bottom of the sixth. Reggie Jackson on first, Thurman Munson on second, one out; Lou Piniella batting. Piniella hits a low (ankle-high) line drive up the middle, to the left of Dodgers shortstop Bill Russell. Russell moves to his left, catches the ball at his shoe tops, drops it, picks it up as his body is continuing to move left, steps on second for the force out, then throws to first. Jackson had stopped running when he saw Russell initially catch the line drive and he is standing between first and second. As Russell's relay is coming, Jackson (imperceptibly) sticks out his right hip; the ball hits his hip and caroms into right field. Munson scores, Piniella is safe at first.
Several separate columns labeled this one of the five worst (or at least most controversial) calls in World Series or postseason history. Maybe. But look at the rules and facts the umpires had to determine on the fly:
1) Infield Fly: This is a potential infield fly situation (runners on first and second, less than two out). So the second-base umpire first had to determine that the ball hit was a line drive, to which the IFR does not apply, rather than a fly ball. Easy enough decision to make here--the ball clearly is a line drive and not easily playable--but the umpire at least must consider the rule in passing.
2) Intentionally Dropped Ball: Rule 6.05(l) provides that a batter is out and the ball is dead if an infielder intentionally drops a fair fly ball, including a line drive, where any force out is in effect. So the second base umpire had to determine whether Russell had intentionally dropped the ball to get a double play. He concluded it was not deliberate, presumably by reading where the ball was hit, how quickly and far Russell had to move to his left, and Russell's body language suggesting he was scrambling to pick the ball back up rather than being in control.
3) Interference: This is the one for which this play is remembered. Rule 7.09(f) provides that both the base runner and the batter are out and the ball is dead if a base runner "willfully and deliberately interferes" with a fielder in the act of fielding a batted ball with the "obvious intent to break up a double play." So the question is whether Jackson "willfully and deliberately" interfered with Russell's relay throw. The first base umpire decided he was not, presumably because Jackson was genuinely hung-up on the play. The runner need not move all the way out of the baseline as the throw is coming (they usually do as a matter of self-preservation). It appears on slow-motion that Jackson did stick his right hip out as the ball approached, but the umpires did not have that luxury of breaking the play down that much.
Whether you think the call was right or wrong probably depends on your rooting interests--I was 10 years old and living in northern New Jersey at the time. My point is that the umpires actually had a huge amount to watch, process, and interpret. And it is far from a simple or robotic task.
Update: Thanks to commenter Jack, here is the video:
Tuesday, December 18, 2012
Foreign Travel by Members of Congress (Part III)
As I explained previously (here and here), I’ve been writing a piece that examines Congress's involvement in international diplomacy. One half of the article documents the nature and extent of the contemporary practice, while the other analyzes that practice from a separation-of-powers angle. As the data in the last post demonstrated, legislative diplomacy in the form of CODEL travel is a major form of engagement between the United States and foreign countries. Now I want to discuss some of the reasons why the numbers from the last post are significant.
First, the findings at least partially contradict the common perception that CODEL travel is nothing more than a series of taxpayer-funded boondoggles for profligate legislators. With places such as Afghanistan, Iraq, and Pakistan among the most common destinations, and with members of congressional committees such as Foreign Affairs and Armed Services traveling more than their counterparts on other committees, it is apparent that something other than vacationing is going on. Wikileaks confirms as much—an overwhelming majority of the State Department cables show legislators using foreign travel to gather information about economic, political, and social conditions in host countries. The idea, it seems, is that legislators can educate themselves by meeting with foreign officials and personally observing foreign conditions, and in turn use their knowledge to develop more effective legislative solutions to foreign policy problems. Wikileaks shows that another rationale for CODEL travel is lobbying; legislators often use their meetings with foreign officials to press foreign governments to act in ways that promote U.S. interests or, less frequently, the interests of specific constituents. One might fairly question whether CODELs are an effective means of pursuing these goals, but it’s clear that the goals generally are not sightseeing and leisure. The intermittent public debate on CODEL expenditures needs to acknowledge that.
Second, the results show that the conduct of foreign relations is, from an institutional perspective, more complicated than commonly assumed. In practice, diplomacy is not an executive prerogative; it’s a crowded field occupied by the President, State Department, and other executive actors, plus both chambers of Congress. And in practice, the Senate is not necessarily more involved in foreign relations than the House. As I explained before, House members participated in CODELs even more frequently than their Senate counterparts in 2009, both in aggregate and on a per-legislator basis.
Finally, I think the results are significant because they call for some new thinking about the separation of powers in the context of foreign affairs. A few aspects of the doctrine should be pretty straightforward: Legislative diplomacy generally cannot intrude upon diplomatic functions—such as negotiating treaties—that Article II assigns to the President, and communications carried out for the purpose of fact-finding are constitutional as an exercise of Congress’s implied power to investigate in furtherance of enumerated Article I powers. But beyond that, formalist analysis is probably unable adequately to account for the contemporary practice. For example, as a textual matter is it unclear why CODELs can lobby foreign governments, and why Senator Kerry could undertake missions to Pakistan and Afghanistan on President Obama’s behalf. The alternative is to adopt a functionalist analysis that renders legislative diplomacy constitutional as a form of constitutional custom, or as the product of an executive delegation of Article II diplomacy power, but doing so results in a series of additional complications. Functionalism, for example, typically isn’t used for converse analyses of these kinds; the more common inquiry—such as in Youngstown—is whether custom or legislative delegation supports a gloss on executive power. Moreover, the possibility of executive delegation would operate in tension with the principle of the unitary executive. In working through these issues, I hope to develop a few insights for con law folks and those involved in legislative diplomacy, and also to illustrate one way in which Congress exerts more influence in foreign affairs than is often assumed. I’ll share a draft soon on SSRN.
Thoughts on presidential succession
I had not thought about this until it was pointed out, but the death of Hawaii Sen. Daniel Inouye brings with it a change in the President pro tempore of the Senate. That office now passes to Sen. Patrick Leahy, the senior-most Senate Democrat. At Slate, Matthew Yglesias argues against having the P/P/T third in the line of presidential succession. Yglesias primarily focuses on the fact that the P/P/T is not even a chosen or recognized party leader; in fact, the only qualification to be P/P/T is to be really old and a member of the majority party.
Ironically, Yglesias points out, Leahy also chairs the Judiciary Committee, meaning he now has the power to at least begin the process of creating a better line of succession by pulling himself out of it. (It is not clear whether Yglesias wants to move to cabinet-only succession and also remove the Speaker of the House from the succession order or whether he just wants to acknowledge the realities of Senate structure and the differences between the House and Senate).
Green Bag Almanac & Reader Good Writing Honorees
Once a year, the Green Bag’s impressive board of advisers for exemplary legal writing selects 20 or so works to honor with publication in the Green Bag Almanac & Reader. It is not an easy task, because there really is a great deal of good writing produced every year by lawyers and other people who write about the law. So, there is a burdensome but unavoidable process for making choices. Here are this year’s honorees. Congratulations to all.
I. Opinions for the Court
- José A. Cabranes, Rivas v. Fischer, 687 F.3d 514 (2d Cir. 2012)
- John Gleeson, U.S. v. Dossie, 851 F.Supp.2d 478 (E.D.N.Y 2012)
- Royce C. Lamberth, In re Grand Jury Subpoena, 846 F.Supp.2d 1 (D.D.C. 2012)
- Ojetta R. Thompson, Schatz v. RSLC, 669 F.3d 50 (1st Cir. 2012)
II. Concurrences & Dissents
- Marsha Berzon & Richard Tallman, Miles v. Ryan, 697 F.3d 1090 (9th Cir. 2012)
- Neil Gorsuch, U.S. v. Rosales-Garcia, 667 F.3d 1348 (10th Cir. 2012)
- Elena Kagan, Williams v. Illinois, 132 S.Ct. 2221 (2012)
- Dale Carpenter, Flagrant Conduct: How A Bedroom Arrest Decriminalized Gay Americans (W.W. Norton & Company 2012)
- David M. Dorsen, Henry Friendly, Greatest Judge of His Era (Harvard University Press 2012)
- J. Harvie Wilkinson III, Cosmic Constitutional Theory (Oxford University Press 2012)
IV. Long Articles
- Charles Fried, On Judgment, 15 Lewis & Clark Law Review 1025 (2012)
- Arthur R. Miller, McIntyre in Context: A Very Personal Perspective, 63 South Carolina Law Review 465 (2012)
- Carol Sanger, “The Birth of Death”: Stillborn Birth Certificates and the Problem for Law, 100 California Law Review 269 (2012)
V. News & Editorial
- Tom Goldstein, We’re getting wildly differing assessments, SCOTUSblog, www.scotusblog.com, July 7, 2012
- Jill Lepore, Benched: The Supreme Court and the struggle for judicial independence, The New Yorker, June 18, 2012
- Dahlia Lithwick, Extreme Makeover: The story behind the story of Lawrence v. Texas, The New Yorker, March 12, 2012
- Jonathan Macey, Tackling the Power of the 1%, Politico, November 29, 2011
- Frank H. Easterbrook, Commencement Address, Swarthmore College
- Bob Kohn, Brief of Bob Kohn as Amicus Curiae, U.S. v. Apple, Inc.
- Christy Susman, Letter to Patrick Wensink, Jack Daniel's, July 12, 2012
Student Class Evals, Transparency, & Self-Selection Bias
When catching up with one of my former students/RAs yesterday, he brought up the topic of student evaluations. More specifically, he asked what influence, if any, they have on law professors’ careers. Given that I am still on the junior side of the tenure divide and am still learning about how my university’s promotion procedures operate, I didn’t have a great answer for him. My impression is that glowing evaluations are helpful in the tenure-track professor’s quest for permanence, but that they have less institutional importance past that point. Whether student evaluations should play a larger role in the tenure-track/promotion/retention process is an interesting question, but not one that I do not feel particularly qualified to comment on. My student’s question did, however, lead me to consider a pair of related issues.
Accessibility to Students: My impression is that most law schools (like undergraduate programs) do not make class evaluation data available to students. This has always struck me as a bit peculiar—why shouldn’t students have access to information that they help create and that will help them make intelligent scheduling decisions? Making professors’ aggregate scores available online would cost nothing and require little additional administrative work. While having such information publically accessible might be uncomfortable for those who have received low scores, I am not sure whether this harm is actually a bad thing (it could incentivize those individuals to put greater effort into class prep or seek outside assistance) or unique (student bodies have institutional memories, websites exist where students can publically rate and comment on their professors). What, if anything, am I missing here?
Data Collection Methods: From talking to fellow junior profs and my lawyer friends who attended different law schools, it seems that most (if not all) schools have transitioned to online-based evaluations and that the majority of schools have not made filling out a class eval mandatory. The former makes sense to me, but the latter does not—by making evaluation optional, schools invite self-selection bias and drastically decrease the meaningfulness of the entire endeavor. One way of instituting mandatory reviews (used by my alma mater) is to make a student’s completion of a course’s online survey a prerequisite for viewing their grade. I imagine that other institutions have tackled this issue in other ways—anybody care to share their institution’s approach?
Jeremy Telman on Legal Education
I have been remiss in not linking to a series of six blog posts by Jeremy Telman (Valparaiso) on the subject of legal education over at Contracts Prof Blog.
By all rights, given procrastigrading, I should have linked this several days ago. I have no excuse.
The Pathological Perspective, Guns, and Deinstitutionalization
I offer here an observation on some of the post-Sandy Hook debate. It doesn't have any clear policy implications one way or another, but it nonetheless struck me.
Almost 30 years ago, Vince Blasi famously argued that we should take a "pathological perspective" on the First Amendment. He argued that we should interpret the First Amendment such that it is best positioned to do maximum work in the "worst of times" -- the times "when intolerance of unorthodox ideas is most prevalent and when governments are most able and most likely to stifle dissent systematically." It seems to me that a lot (though far from all) of the advocacy of rights of gun ownership in this country takes a similar pathological perspective. Thus we hear that gun ownership is necessary to prevent tyranny, and that we have to be worried about the government disarming the populace.
Yet when we have a mass shooting, we often hear from gun rights advocates (again, far from all of them), that the problem is not lax gun laws but the deinstitutionalization of people with mental illness. David Kopel's op-ed in today's Wall Street Journal contains a few grafs making this argument. What's striking to me is this: Much (though, again, far from all) advocacy of deinstitutionalization in the 1960s particularly was itself driven by a pathological perspective. Some (though far from all) advocates of deinstitutionalization argued that the government would use its power to institutionalize as a means of detaining and torturing dissenters, outcasts, or peceived deviants. And they had then-current examples (from the Soviet Union) where governments were doing just that. (For a hint at these issues, see page 15 and note 63 of this article.)
Given the pathological perspective on these two issues, one might be tempted to ask gun rights advocates, What makes you think that a government that is so tyrranical that we will need to overthrow it by force can be trusted with the power of locking people up based on assertions of mental illness or predictions of dangerousness without the benefit of a criminal process? Okay, a bit of a cute question, and the policy issues for both gun and mental health laws are difficult and complicated ones on which reasonable people can disagree. For myself, I'm not sure that a pathological perspective on gun rights or deinstitutionalization makes a whole lot of sense. For one thing, it likely leads us to ignore the day-to-day threats to freedom that make far more of a practical difference to our lives in expected-value terms than does the exceedingly unlikely "worst of times." And if we do get to the "worst of times," I'm not sure how much value "parchment barriers" (or even pistols and rifles) will have for us in practical terms. But I thought the parallel in the arguments was striking.
An interview with Patrick Griffin, author of "The Catcher in the Drain"
Last Friday I linked to a 1992 article in the Chicago Reader, a free weekly alternative paper. The article, called "The Catcher in the Drain," made the case why a big chunk of students were making a mistake by going to law school. He methodically went through the reasons for getting a J.D. -- higher pay, more prestige, degree flexibility -- and explained the problems with each. At the end, he compared himself to Holden Caufield, who dreamed off trying to stop others from jumping off the cliff.
The author of the article is Patrick Griffin. He is now at the MacArthur Foundation, serving as Program Officer for Juvenile Justice in U.S. Programs. Before joining the Foundation, he was a writer, researcher, legal analyst, and director of projects for the National Center for Juvenile Justice (NCJJ), where he became a national authority on comparative legal analysis of state transfer and blended sentencing laws. Griffin began his career as an attorney, and before joining NCJJ had practical experience as an editor of business-oriented legal publications and as a freelance journalist whose essays, profiles, and general-interest reporting appeared in magazines and newspapers nationwide. He graduated magna cum laude from the University of Michigan and received his law degree from Harvard Law School.
I wanted to check in with Griffin 20 years later and see what he thought of his article now, and on the state of legal education. He was kind enough to answer my questions below.
It's been twenty years since you wrote "The Catcher in the Drain." What do you think of that article now?
I had always thought it was a good piece and been proud of it. But re-reading it now, I’m less sure. I was writing for attention, obviously. I wish I could go back in time and tone it down, sober it up. But some of the ideas were worth raising, and people certainly responded to it—it was reprinted in a bunch of places. I got letters. It wasn’t like people needed to be told that there were “too many lawyers” in some sense. But the process that produced the too-many-lawyers condition had not been explored that much, I think.
Have you followed any of the recent press with regards to law schools? What do you think?
I sympathize with the law school grads who are suing their schools because they feel they’ve been misled. I don’t know what to say about it as a basis for litigation, but they’re probably performing a public service by calling attention to one aspect of the problem. My piece, somewhere near the end, actually proposed something like a “money-back guarantee” requirement for law degrees—and suggested that it might make law schools more cautious about scooping in wanderers like my young self. But of course I was focusing on career satisfaction and career fit issues, not on the more basic problem of lawyer unemployment.
Some folks would look at your article and say it was prescient. Others would say it's proof that this is all cyclical, and law schools will be back in full swing soon. What is your perspective?
I wasn’t predicting anything, but the phenomenon I was writing about—people going to law school for reasons that made no sense, from their own or society’s point of view—was certainly about to become more widespread.
Has anything changed in the practice of law over the last twenty years that would change your article, if it were written today?
If anything has I wouldn’t know. But I’ve changed. I continue to think that law was a mistake for me, but now I suspect that if I hadn’t made that mistake, I’d have made some other one. I think people like me are destined to screw up in their twenties. And then figure everything out, absolutely everything, in their thirties.
Would you tell a prospective law student today the same thing you would have told them twenty years ago?
A lot of it is still true! I probably wouldn’t argue as strenuously as I did then, though.
There has been a lot of criticism of lower-ranked schools for selling false hopes, but top-tier schools like Harvard are still generally assumed to generate value for their graduates. But you criticized law school from the perspective of an elite law alum. What would you say to someone planning to go to your alma mater?
Most of the things I said about law and its dissatisfactions were as true for Harvard grads as for anyone else. If law is a mistake for you, then Harvard Law is a mistake too. But I realize now that I failed to think very much about the elite/non-elite distinction at the time, just because I didn’t have a lot of experience. Or rather I only had my own, which is what I wrote about. In hindsight, having had a bunch of jobs and something resembling a career, it’s easier for me to see that brands like Harvard are worth something in the marketplace. It’s a little flag that signifies something vaguely positive, and I’m sure it has benefited me at times. It’s certainly not a reason to go to law school, but if you’re going anyway…
Did you ever hear from anyone at Harvard about the article?
I never heard anything from anyone at Harvard directly, but the article was cited a few years later by a Harvard professor—Mary Ann Glendon—in a really good book (I think it was A Nation Under Lawyers, which was much better and more serious than its title). She used me as an example of the kind of person who really doesn’t belong in the profession.
How has going to law school shaped your subsequent career?
At the time I wrote I was working for a legal publisher, but not long after the article came out I started writing freelance and watching the kids. Eventually I took a job in a delinquency research office—as a writer, really, not as a lawyer, though some of what I did had to do with law—and that led to my current job with a foundation. So…? I have no doubt that law school profoundly shaped my subsequent career, but I have a little trouble sorting out how. It opened doors and closed doors.It looks like going to law school has perhaps played more of a role in your career than the typical non-lawyer: you've done a great deal of work on juvenile justice systems, including being director of projects for the National Center for Juvenile Justice (NCJJ). Are you giving short shrift to the benefit of going to law school, even though you are not a practicing attorney?
It was three years with a lot of smart people, so there were intellectual benefits. And it’s a credential, which is a form of currency—in my case, pretty devalued, but not completely, not like Confederate money. I see the value now, in the experience as well as the credential, better than I did when I was younger. But the same would probably be true of any comparable experience, in retrospect. Three years in prison might have been valuable too.
What happened, eventually, was that I found jobs that were congenial to me, jobs I felt I could be good at, and then shaped them so that I could make use of as much of my experience as I could.Do you think some of the "scam" blogs have taken on the role of your "antilaw counselors," to some extent? Should there be a more formal devil's advocate in the law application process?
I didn’t really know these existed! I’m pretty out of it. But it sounds like they might be useful. So might a devil’s advocate—but the problem there is that clever young people are always going to figure out how to say the right words. I’d have figured it out.
What advice would you have for law schools themselves?
I doubt they would take my advice. But I guess I would ask them to give thought to whether there’s any truth in the notion that there are too many lawyers in an objective sense as well as too many lawyers who would be happier doing something else. And if there is, what responsibility do they bear, and what should they do about it, singly or collectively? It’s easy to say that everybody should be free to make their own mistakes, but if you’re the one benefiting from those mistakes, year in and year out, doesn’t it create some obligation to do something at some point?
Monday, December 17, 2012
Big Bad Wolf on Trial
Last week, my law students travelled to my kids' school to help the fifth graders prepare for their big mock trial. The Big Bad Wolf is being prosecuted for the alleged murder of two pigs, destruction of private property, and disruption of public safety. One of my students told me her decision to go to law school can be linked to her sixth grade mock trial experience. I had a blast coaching the defense team. In the opening statement, the kids talked about bias, animus, and the problems of eye testimony in cases
involving different animal species.
Networks for Prosperity
Is the name of a new UN report to which I have contributed. The report looks at the importance of knowledge networks in the context of economic development, trade, innovation and growth. The first launch of the report happened a few weeks ago at the UN headquarters in Vienna. A second launch is planned in NYC early 2013 and I look forward to attending. My contribution to the report considers the ways human capital is enriched by talent mobility, professional interactions, information flow, and motivational incentives, and examines how intellectual property and competition policy can support (and conversely hinder) these effects (also see here and here). I plan to post more about the report's implications at the NYC launch.
Build a better mousetrap . . .How is it that in the approximately 2200 years since the Maccabee Rebellion, no one has invented a good doohickey for getting remnant wax out of a Chanukah Menorah? And what should such a thingamabob be called?
Saturday, December 15, 2012
Flanders and Posner on Stephen (and me)
In the latest issue of the Ohio State Journal of Criminal Law, Chad Flanders and Richard Posner have written commentaries about the work of Sir James Fitzjames Stephen, which follow, to one extent or another, this piece of mine. I've learned a lot from Judge Posner's earlier work on Stephen and from correspondence with him about some of Stephen's ideas. The judge focuses on the importance of "force" in Stephen's conception of criminal law and punishment, something which I discuss in my piece as well.
As to Professor Flanders's piece, I should say first that I'm very grateful to him for taking the time to respond to my work at length; I am glad to have provoked this comment. On the substance, we have, as will be plain for those who read the pieces, many disagreements, and I'm also grateful to have them spelled out as crisply and energetically as Chad does here. But one area where I think we very much agree is this. Theory is certainly not objectionable, provided that it is understood as the activity of giving organized thought to any issue. Indeed, I think I can cheerfully agree with that view, and still maintain my claims about some of the deficiencies of punishment theory today, deficiencies which, Chad is quite right to point out, may not be unique to work in this area.
But this is a blog post, and interested readers (all 2 of you) should take a look. Here's something from Judge Posner's piece that might be useful as well: "I do think [Stephen] had a theory of criminal law and a philosophy of life, but he was not a systematic or disciplined thinker, and this allowed him to make observations that owe nothing to theory, that are simply shrewd and sensible[.]"
Friday, December 14, 2012
Decentering centers (more on law school sustainability and costs savings)
Law schools resist collaboration and efficiencies in scale economies where centers, institutes, and programes are concerned. This resistance may be unwarranted in many circumstances.
The incentives to proliferate academic research centers are understandable, yet fundamentally self-serving. A center on, say, health policy aims toward developing, nurturing, and disseminating theoretical and (especially) applied research to advantage knowledge and improve public policy. It may help, say, Stanford, Chicago, or Northwestern, to have it located only at their law school. But wouldn't the larger cause be better served by serious, sustained collaboration across institutions? Even the most ambitious and resourced law schools will have a small fraction of, say, intellectual property or environmental law/policy experts. But five law schools working together will have many more. The advantages of sustained collaboration among well-configured institutions seem rather apparent. And there seem to be rather palpable efficiencies -- and, critically, lower intra-institutional costs -- generated by such tactical collaboration.
Alas, centers, institutes, and programs are frequently (nearly always?) treated as local sinecures. Faculty recruitment and retention drive many design and implementation choices. And deans exhort their donors to, as Brian Wilson proclaims, be true to your school.
Where cost savings are a growing imperative, why not think imaginatively about cross-institutional synergies and cooperative endeavors? Some of these enterprises may involve similarly ambitious schools; others may trade on the advantages of local knowledge and structure -- so, a consortium of, say, Chicago area or SF bay area schools working cooperatively on programs with tangible benefit to the area.
Students, faculty, and the community benefit greatly from the work growing out of excellent research centers. But how much of this benefit requires all the effort, energy, and money deployed within one law school's four walls?
(Cross-institutional curricula raises similar issues and is a variation on this theme, albeit a variation that deserves separate discussion).
On politicizing and making public policy
One of the many phrases that should be retired from all serious public discourse is "this is not the time to politicize a tragedy" (and similar ways of framing the same idea). Another way of saying "politicizing" a tragedy is "making public policy in light of" a tragedy, policy that, we hope, will prevent similar bad events from recurring. All law is made in a factual context or in response to some set of facts or circumstances, especially a unique, tragic event. That is inherent in the nature of law. So please stop suggesting that tragedies should not be a basis for public policy--they inevitably are.
Of course, making prospective legal rules in response to a special factual context, especially a tragic one, may not be the best way to do make law, as Fred Schauer argued. So rushing to enact new gun-control laws is not necessarily the answer--nor is it likely to produce wise policy that will succeed in preventing future tragedies. But reckless pejoratives such as "politicize" should not be used to short-circuit real policy discussion or to run from having the discussion at all.
Doing the waive at the ballpark
Via Nathaniel Grow (who teaches Legal Studies in the business school at Georgia): The image at left (click to enlarge) is a page from the October issue of Yankees Magazine and features the team's ticket policy. Note the underlined language in the inset at the top--fans acknowledge that team policies banning foul/abusive language and obscene/indecent clothing do not violate their free speech rights and they waive any free-speech objections to those policies or their enforcement.
I find it interesting that the team is now framing its attempts to regulate fan expression explicitly in free-speech terms. It suggests their recognition of my core argument--that fan expression, even profane or objectionable fan expression, is subject to First Amendment protection and analysis. This policy is an effort to wiggle away from that legal reality. Of course, the idea of "acknowledg[ing]] and agree[ing]" that something does not violate one's rights when it probably does is pretty Orwellian. It goes well beyond a waiver of a claim into a compelled agreement to an alternate reality.
More fundamentally, even as a straight waiver, it cannot possible be enforceable. Assume for the moment the Yankees are a state actor in managing the ballpark--I argued they were with respect to the old Yankee Stadium, which was owned by the City of New York, although the analysis changes for the new ballpark, which is privately owned but (largely) publicly built. The government cannot condition access to a public forum on a person waiving their right to challenge constitutionally suspect limitations on their speech in that forum (imagine a parade permit saying "As a condition of accepting this permit, you agree that police can halt the parade if your speech is objectionable"). Nor is this saved by the fan's compelled acknowledgement that "such time, place and manner of [sic] the restrictions are reasonable." While it is telling that the team is using those precise words, a TPM restriction must be content-neutral; a ban on foul language and indecent clothing is so obviously not content-neutral.
Finally, I do note that the waiver only applies to dirty words and dirty clothes and not to other possible free-speech violations, such as compelling fans to remain standing by their seats for "God Bless America" or other forced patriotism. I wonder if that is an oversight or if the team has genuinely given up on those efforts.
Two Past Perspectives on Legal Education
For a December Friday I thought I'd link to two older pieces on legal education that you may not have seen:
- Michael Froomkin's "A Virtual Law School?," which he describes as "only slightly tongue-in-cheek." The slide show was presented at the 2000 AALS conference.
- An 1992 article in the Chicago Reader called "The Catcher in the Drain." I think the author's advocacy of "antilaw counselors" has come to life on the web.
Thursday, December 13, 2012
"A sad sign for higher education"I agree that the (hopelessly lame) new University of California logo is one. "Let there be light" strikes me as a motto that, well, aims a bit higher.
On teaching loads
I do not write much about the law-school-reform stuff, because I have not thought as deeply about it as Matt, Paul, and others. But commenters in two earlier posts have raised the issue of tenure-track teaching loads, suggesting that moving to a 2/3 (or even 3/2 or 3/3) teaching load would resolve some problems without overburdening professors.
My school's regular teaching load is 2/2 and I have taught 2/3 for the past few years. It is manageable and I have not found that it interferes with scholarship or other writing--although my view on it as a second-year professor may have been different than as a tenured full professor. So I agree that upping the ordinary teaching load would not overwhelm most of faculty and is a change that schools could make.
But beyond appearing to make law profs sing harder for their supper (which some of the angrier birds seem to want), I doubt increased teaching loads will resolve the teaching-resource problem. After all, even with most of our non-administrator professors teaching four classes, we still, by necessity, have many classes taught by adjuncts and other non-TT faculty.First, upping the teaching load will not necessarily mean more course offerings covered by tenure-track faculty. The need to offer multiple sections of 1L and required or "required" upper-level classes means that several profs already have 1/4 to 1/2 of their loads taken up on one subject. For example, most years, I have had to cover two of the three Evidence sections we offer each year--1/2 of my normal load taken up by Evidence. Next semester, I have to cover two sections of Civ Pro--again, 1/2 of my normal load taken up by Civ Pro. Several of my colleagues are in the same boat. This, by the way, is part of why I started teaching a fifth class--I wanted to make sure I got to teach, and the school offered, Fed Courts and Civil Rights every year.
We have a small faculty (only 24 tenure-earning faculty, one of whom is a clinical professor), which explains the need to double-up. We also have a small class (around 160 each year) and try to keep class sections small--no more than 60 or so (1L) or 80 (upper-level). These are all things that everyone in the reform conversation likes. Smaller faculty means less money spent on faculty, cost savings that can be passed along to the students. Smaller classes are pedagogically beneficial--they allow more students to engage in classroom conversations and allow for more non-lecture activities and more in-semester assignments and projects. But when you put all of that together, it means tenure-track faculty are not available to cover all of the courses a law school needs to offer--even when we up the expected teaching load. This is exacerbated when we throw in the practice-oriented and clinical classes (which, again, reform advocates insist must be a greater part of the law school curriculum), which must be kept especially small, demanding more sections and more profs.
Again, I am not arguing against increasing the typical teaching responsibility (I have always been perfectly happy teaching what I do). It would remove one faculty-recruitment disadvantage we have long fought. It is just to say that it does not actually solve any problems beyond the cosmetic.
Foreign Travel by Members of Congress (Part II)
As I mentioned in my previous post, I’ve been writing an article on the subject of international diplomacy by members of Congress, with an emphasis on congressional delegations (“CODELs”) to foreign countries. Information about CODEL practice has been pretty limited, so one of my purposes has been simply to provide a more complete account of how frequently CODELs travel overseas, who is participating, where they go, and what they do when they get there. To do so, I collected information from the State Department cables that Wikileaks released to the public in 2010-11, many of which provide detailed accounts of meetings between members of Congress and foreign governments. I also collected information from official reports on publicly and privately financed congressional travel. Some of the reports were published in the Congressional Record pursuant to federal statute; others were published in accordance with House and Senate ethics rules. The data is quite voluminous, so I focused only on travel that happened in 2009—the most recent year for which the available information is the most complete. Counting each country visit by each legislator as one trip, and adding the data from the various sources, I came up with the following.
A total of 420 federal legislators, or approximately 79% of the combined membership of the House and Senate, completed slightly more than 2000 trips abroad in 2009. Members of the House were responsible for 84.5% of this travel, for an average of 4.0 trips per member, while members of the Senate were responsible for 15.5%, for an individual average of 3.2 trips. Legislators from both parties participated in comparable measure: Democrats averaged 4.09 trips per legislator, while Republicans averaged 3.56.
Legislators engaged in diplomacy unevenly. While some never went abroad even once, fifty-four legislators made at least 10 foreign trips during the year; the most frequent fliers were Eni Faleomavaega (24 trips) (D-AS), Jim McDermott (21) (D-WA), Adam Smith (17) (D-WA), Gabrielle Giffords (16) (D-AZ), Sheila Jackson-Lee (16) (D-TX), Lindsey Graham (15) (R-SC), Gregory Meeks (15) (D-NY), Jeff Miller (15) (R-FL), Solomon Ortiz (15) (D-TX), Dana Rohrabacher (15) (R-CA), and Joe Wilson (15) (R-SC). By comparison, Secretary Clinton made 51 trips to foreign countries over the same period.
Legislators traveled widely. CODELs visited at least 117 countries in 2009. The most frequent destinations were Afghanistan (139 trips), Israel (134), Kuwait (119), United Arab Emirates (86), Germany (73), Iraq (72), Pakistan (53), Jordan (49), Belgium (47), and Italy (47). An overwhelming majority of this travel was publicly funded.
Finally, members of congressional committees with jurisdiction over foreign affairs and related matters were more likely to participate in CODELs than other legislators. The tables below contain information for the committees with the highest and lowest member-trip averages.
Table 1 – House Committee Travel (2009)
Total Member Trips
Trips Per Member
Standards of Official Conduct
Education and Labor
. . .
. . .
. . .
Table 2 – Senate Committee Travel (2009)
Total Member Trips
Trips Per Member
Agriculture, Nutrition & Forestry
. . .
. . .
. . .
In my next post, I’ll offer a few observations about why I think these results are significant, and why they raise some interesting separation of powers questions.
Wednesday, December 12, 2012
Breaking Bad, Wire-Style
I've written before that "The Wire" had the best opening title sequence/theme song in TV history. I also am a big fan of "Breaking Bad," although its title sequence is not quite as memorable (although I still like it, especially in its use of Periodic Table boxes--for Bromine and Boron Barium--for the first letters in the title). Fortunately, someone decided to show what would happen if the latter used the former's title sequence.
Method and Politics
Nelson Tebbe is blogging with us over at CLR Forum this month, and he's got a really good post (and not only because he says generous things about my forthcoming book...available for pre-order here!) about the relationship between methodological and political leanings in religion clause scholarship, and a possible change in the alignments and relationships between method and politics. Nelson asks several very good questions that are, I think, difficult to answer both because the terrain is always shifting and because it is difficult to map out.
Steve Shiffrin, in his early book on the First Amendment, once said this about the importance of method:
The method employed . . . in first amendment decisionmaking has importance that transcends its capacity to determine results in individual cases. If the first amendment is to serve as an important cultural symbol, the modes of justification we use to persuade ourselves and others of its value and importance are themselves of special importance. If we are concerned about the kind of people the first amendment tends to encourage, we need to be as concerned with the rhetoric of first amendment discourse as with the details of its decisions. Our modes of justification themselves exhibit features of our character and appeal to features of our personality. The First Amendment, Democracy, and Romance 110-111 (1990).
Do you see alignments or disalignments in the methods of the scholarship in your field with the politics of the scholar using the method? Are there shifts in your areas that seem similar to the sorts of shifts that Nelson is describing? Or are the patterns relatively stable (and if so, are they stable in being unpredictable or predictable)?
Sustainability and the future: Managing teaching resources
I echo Matt Bodie's call for candid scrutiny of our educational strategies. As a dean, I think daily about building a better product. Most of our dean colleagues do likewise. We know the objectives -- maintaining top-quality legal education (which, not incidentally, still remains the envy of the world -- this despite frequent calls for replacing our model with the European alternative) and reducing costs.
So leave the hyperbole to others. Let us the rest of us get to work on constructive solutions.
Here's a big cost driver, perhaps the biggest: resources for full-time, tenure-line faculty. Much of this is about building respective armies of able scholars. The incentives, internal and external, for most law schools, especially those high up the food chain or aspiring to move up, have been noted frequently. But a central question looms, that is, how best to deploy teaching resources to staff an electic, modern curriculum? This question becomes ever more pertinent as the demands of the marketplace drive law schools to more imaginative and, yes, more practical strategies for preparation.
Law schools have long looked to adjuncts and the occasional recurring lecturer for teaching. Yet, the wheelhouse for such teaching has more often been clinics and skills-training. Good sense here; after all, experienced lawyers are wisely deployed to train would-be lawyers and the beat goes on. However, non-tenure line faculty -- more specifically, lecturers/senior lecturers on long-term contracts with compensation and resources befitting the commitment to regular teaching and a durable investment in student well-being -- is an efficient way to strengthen teaching at law schools which cherish deep connections to practice and, as well, to save costs.
Let me focus on the latter: Even the well-remunerated residential faculty member requires less direct financial investment than a research faculty member. Leave aside the matter of base salary. Law school support for research endeavors of faculty requires serious money, both to provide an adequate base for the research cohort and to deal with the imperative of recruitment and retention.
None of this is strikingly novel, of course. Northwestern and many other law schools have been relying for the past several years on large numbers of residential faculty members. We are very proud of our lecturers and senior lecturers and, indeed, have just added another step in this latter -- the Professor of Practice -- to acknowledge the special role these distinguished lawyer-teachers make to the curriculum and programming of the law school. We aspire to treat these members of the community well, with respect to pay, job security, and governance. Anything less defeats, frankly, the purpose of creating a separate faculty track in a comprehensive teaching community.
In addition to the merits of this device, trust me when I say that the cost savings are considerable. As we think about maintaining high-performing faculties, we need to think creatively about managing the general teaching budget. The days of supersize tenure line faculties may be waning, to be replaced with leaner research cohorts alongside an efficient number of valuable, less expensive residential faculty.
To Avoid a Pile-On...
...I will simply point readers to Orin Kerr's critique of Jay Silver's recent critical review of Brian Tamanaha's Failing Law Schools book. I certainly don't mind criticisms of that book; I had some, and so have others. But I don't think Silver's criticisms are sound, both because they overstate Tamanaha's arguments and because they consist more of bromides than well-supported arguments. To pick just one extraordinary example, is it really the case, as Silver writes, that "[t]he time-honored Socratic and casebook method of legal instruction, administered by professional educators, is a snug fit with the pedagogical needs of future attorneys?" In any event, read Orin's post.
Tuesday, December 11, 2012
Law School Sustainability
Law school applicants and LSAT takers are both down by double-digit percentages this fall. Law students are taking on higher and higher levels of debt and are met with a job market that is the worst in decades. Commentators at Above the Law, Inside the Law School Scam, and the New York Times lay out the numbers and ask why anyone would ever attend law school, unless they're essentially going for free.
Law schools and the law professors who help govern them need to confront these issues. However, in conversations with colleagues at other schools, I've heard about the difficulty in bringing up these concerns with fellow faculty members. In the face of the sometimes vituperative attacks on legal education, many professors have closed ranks, and a prof who brings up these issues may seem to be casting her lot with the critics. On the other hand, speaking up in defense of legal education draws cries that one is a Pollyanna or a con artist. As a law professor, I believe that there is a lot of good in legal education, but it's tough to say that to someone who is 26, unemployed, and carrying $120,000 in debt.
Law profs need to talk about these issues in an honest but productive way. Those of us who work in the field do not have the luxury of waiting to see what others do; we are responsible for change. And many changes will likely be unpleasant ones. But at the same time, there is a real opportunity here to reform an industry that has remained largely static for over 100 years. Taking the bull by the horns will give us a better chance to not get trampled.
So instead of continuing to debate whether law schools are failing, we need to recognize the problems and deal with them constructively. It's time to focus on the future. And if we want law schools to continue to be vibrant players in higher education, the legal profession, and society, we need to focus on sustainability.
"Sustainability" is generally used in the environmental context to indicate the ongoing health of a particular practice or system. But it can also refer more generally to the continued existence and flourishing of industries, firms, and institutions. Law schools have to focus on sustainability. That means asking what schools need to do now to ensure their long-term health and prosperity. Below I sketch out a few thoughts about law school sustainability:
Make law school more affordable. As discussed a few weeks ago, the short-term incentives for all law schools point in the direction of shrinking class sizes. But tuition and debt levels remain a long-term problem. To make law schools sustainable over time, we need to focus on making the opportunity to get a legal education something that doesn't saddle the student with overwhelming debt. This is not a problem that will be solved overnight. But it needs to be addressed, both now and continuing into the future.
Cut costs. If classes shrink and tuition drops, by necessity school budgets will shrink. But how they shrink is another matter. Those who govern schools need to think hard about the ways in which the budget will be cut. And if these conversations are focused on making the school more sustainable over time, professors will be more invested in the process, even if they personally feel the brunt. A salary cut is a postive step for the health of the organization if it is explicitly tied to a tuition cut. If the money saved just goes into a general university fund, profs may feel that their personal sacrifice has not contributed to a more sustainable institution.
Protect core values. There are a lot of different ways to reform legal education. Some of those can come from the inside, such as revised curricula, more experiential learning, and smaller class sizes. But some reforms would be imposed from the outside: revised ABA or state requirements, changes to federal loan programs, and huge market shifts in demand. Law schools need to think hard about what their core values are, and make sure to protect those core values. Along with providing excellent education and preparing our students for success on the job market, I think legal scholarship must also remain a core value to be protected. Now, there are lots of ways to do this; protecting legal scholarship does not mean continuing with the status quo. But I do think that a focus on sustainability includes a focus on keeping legal scholarship alive and well even when legal education is going through dramatic change.
I welcome your thoughts, particularly those of junior or prospective law profs. What should we be focusing on when we think about the long-term future of law schools?
Incentive Granularity and Software Patenting
For my last post, I would like to address a comment repeatedly seen on my prior post: “Show me an invention that would not have happened for the entire patent term, and maybe then we can discuss whether the patent system does any good.”
I’m not convinced this is the right level of granularity. But first, a couple caveats:
- I tend to think the patent term is too long for the speed at which technology develops today, especially computer software. This may not be true for pharmaceuticals, which leads to tension in the system.
- Of course we should look at whether individual patents were incentivized by the patent grant. It would be a bad system indeed if we protected everything that would have occurred anyway. Note that I think the “inducement” standard proposed by Duffy & Abramowicz and discussed in my previous post has some real merit.
But even with these two caveats, that’s not the question we should be starting with. The goal of the patent system is to promote progress of the useful arts. That might happen by encouraging investment in start-ups. That might happen by encouraging research & development funding. That might happen by inventions that come earlier than they would have, even if they would have otherwise come within 20 years. That might happen by allowing inventors some breathing room to invest in commercialization and dissemination of the invention. That might even happen by ending duplicative (wasteful) races carried out in secret. And all of these things might create costs, perhaps tremendous costs for some who come later.
To be sure, there is great (and I do mean tons of) study and debate about whether any of these benefits actually materialize and outweigh the costs. The analysis, though, takes place at a higher level than whether each and every invention would have come about within 20 years. That analysis – or something like it – certainly has its place, but not when assessing the system as a whole. And that's all I have to say about that.
Thanks again to Prawfsblawg for having me back. I enjoyed my stint, in what may be the most active commenting I’ve received (which may not be a good thing!).
Lincoln's advice to young lawyersVia Slate, here are the prepared notes of a talk Abraham Lincoln gave to a group of law students sometime in the 1850s (if you follow the link to the Library of Congress, you can see a transcription of his remarks). Nothing earth-shattering, but neat to see in his own hand.
Expanding the Baby Bar Idea
I note Dan Rodriguez's discussion below of an option to allow students (if they choose) to sit for the bar exam after two years of law school.
I am more concerned, however, about the possibility that as law schools struggle with restructuring over the next several years, they are going to be admitting more and more students who are less and less likely to have the minimal qualifications needed to pass the bar exam in the first place. I don't think there's much doubt that where schools admit students with LSAT scores into the low 140s and high 130s, there's a higher likelihood (a) students will struggle to maintain academic standing, and (b) students will fail the bar exam.
I went to law school in California in the 1970s. Everybody I knew was exempt from what is known as the California "Baby Bar." That is a bar exam that tests contracts, torts, and criminal law, is administered after the first year of law school, and is a requirement of bar admission for anybody who, among other things, is not attending an ABA-accredited law school (like the one that I recall meeting above a Ralph's grocery store on Wilshire in west L.A.).
There's something to be said for expanding the Baby Bar idea under some kind of neutral and objective criteria even to students at ABA-accredited schools.I'm not positive the bar exam is the perfect or even a good screen for lawyer competence. It is, however, one of the cornerstones of state regulation of the competence of lawyers. I agree with Judge Posner's recent post (HT: Brian Leiter) to the effect that professional competence is an area in which we are likely to see failures or unwanted inefficiencies in market solutions (i.e., I don't want to be the source of the market's information that my surgeon or my lawyer was a hack). I also agree with Judge Posner that professional societies like the ABA, the AMA, the American Philosophical Association, etc. have their roots, beginning in the late 1800s, in the need for certification of expertise, either by way of state regulation or professional ethics. As I've written elsewhere, "the legal profession is simply one example of the specialization of knowledge and judgment. Our physical and social environments have become too complex and interconnected, and our knowledge has so far expanded in breadth and depth that scientific explanation (and hence, reduction to more general laws) is impossible without specialization." In other words, I don't know if the bar exam is an answer to those concerns, but it's all we've got right now.
Add to that mix the reality that there's an increasingly Darwinian market dynamic not only in big law firms (as Judge Posner observes), but something similar that could very well affect the law school industry (as my co-blogger Jerry Organ has pointed out). When supply far exceeds demand, as appears to be the case with rapidly declining law school applications, something has to give. Either it's going to be the law schools themselves, or it's going to be reflected in the caliber of the applicants for bar admission that the schools turn out, at least under the objective standards we now impose (for better or worse).
The schools themselves could (and do) wash out students who have demonstrated, by the end of the first or second semester, that they really don't belong in the profession. (Are academic "wash out" rates collected and published anywhere? Maybe they should be!) But the schools are the same institutions that are admitting them on sketchy qualifications in the first place. And the "wash out" process depends on grading scales and commitment to rigor that may vary among institutions and individual professors.
It's possible, for all sorts of reasons, that low LSAT scores won't predict first year or bar exam success. If a school makes the choice, however, to lower the hurdle for incoming students below some standard on which we can reasonably agree, it seems to me fair for states to impose a requirement that its students take a Baby Bar at the end of the first year.
Monday, December 10, 2012
Crystalline statutes and mazelike tours
This fall, I have been covering Kloeckner v. Solis for SCOTUSBlog (case preview here, argument review here). The Court decided the case on Monday, holding 9-0 (per Justice Kagan) that any federal employee who was terminated and also subject to discrimination (a so-called "mixed case") can seek review of a Merit Systems Protection Board decision by filing suit under the discrimination statute in federal district court, rather than having to appeal to the Federal Circuit (which hears MSPB appeals in non-discrimination cases). Lyle Denniston wrote the recap for SCOTUSBlog; I just want to add a few more points.
My prior pieces on this case highlighted the constant refrains about the complexity of the case and of the statutory scheme (oral argument was filled with "say that again?" and "slower, please"). Kagan's opinion does a great job of simlifying the statute and the question, laying out the relevant provisions, explaining how they work together, and insisting that the right answer is "crystalline" from the text itself. The Court is often criticized for clouding the waters; it is nice to see a case that clarifies and produces the simplest approach. In contrast, she rejects (and disparages) the government's "mazelike tour" through the statute; after laying out the government's statutory argument in detail, Kagan says "[i]f you need to take a deep breath after all that, you're not alone."
I have written previously that Justice Kagan is a terrific writer and her opinions are a pleasure to read. This case is no exception--sharp and snappy and, obviously, quite sardonic. She makes a great read out of a case that was always destined to go to the junior-most justice (do you think she's looking forward to President Obama's next appointment?).