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Responsive musings on conference formats

Carissa raises some good points about the different types of conference formats. I wanted to add some comments here.

First, another conference format to consider is the roundtable or moderated discussion, in which there are no prepared papers or remarks, but an open-ended (and hopefully freewheeling) conversation among the panelists, usually with a moderator guiding the proceedings. I actually believe this is the most effective format for having a coherent, lively thematic substantive discussion. Even if all the papers are good and even if they manage to fit together, there is always something a bit boring about the typical panel: 3-4 presentations of 20 minutes, with people sitting and listening to one another for 60 out of 80 minutes, then about 10-15 minutes of Q&A. Not that interesting. Of course, this format serves a different purpose--it is about an overall substantive presentation, not about honing individual work.

Second, a panel format might indeed be helpful for brand-new projects that are at three-quarters baked. If I am in the early stages of a project, where I have done most of the research and have a rough idea of the arguments I want to make, I can put together a pretty good 15/20-minute presentation for a panel. I have used panel presentations (or faculty workshop presentations) as, essentially, a broad first draft of my paper. The effectiveness of this depends on how an individual author works--if your research and organize first, then throw your ideas down on paper, this could work. I will be doing something like this for a panel at SEALS.

Third, I do not consider practicing in the hotel room an act of vanity. For me, it is an act of time-keeping. I never know how much material I have and how long I am going to go unless and until I run through the paper. That is the only way I can know if I am going to be able to stay within the 20-minute time limits. The drawback, I have found, is that it comes out a bit more rehearsed than, for example, a classroom lecture.

Musing About Conference Formats

Having spent part of the day planning a trip to DC for an upcoming conference, I’ve been thinking a bit about conference formats.  Off the top of my head, I can think of four major conference formats:

Half-Baked ideas — presenters speak briefly (usually on a relatively general level) about a new project & then the attendees give feedback and/or advice

 

Workshop — presenters submit drafts, which everyone reads beforehand, and then the conference is largely devoted to their comments

 

Commentor — authors present a paper and the conference supplies a formal commentor, who has read the paper prior to the conference; sometimes the commentors remarks are followed by a Q&A session

Panel — authors present papers in relatively long format (e.g., 15 to 25 minutes) followed by audience Q&A

As I see it, each of these formats has quite a bit to recommend it, though each tends to be most useful at a particular stage of a project.

Half-baked idea conferences can help get people started on new projects, they can be less intimidating for presenters who are not expected to have an answer for every objection, and they can provide helpful feedback at a time that is most useful to an author (i.e., early on in the research and writing conference).  The workshop format (about which Paul recently sang the praises)  provides a lot of substantive feedback for an author and (depending on how they are organized) can be the most forgiving format for those prawfs who express themselves better in writing than in person.  The commentor format also provides good substantive feedback, and although the author doesn’t receive the same diversity of views as at a workshop, the comments may be more comprehensive or more thought out than one might see at a workshop.  Workshop and commentor formats seem most useful for an author who is part-way through a paper.

The panel format seems to be more about author performance than it does about substance — while the substance of the talk obviously matters, a poor public speaking performance can ruin a panel presentation.  And because most people haven’t read the paper prior to the presentation, the Q&A session often raises questions that the author had already considered and dealt with in the paper, but simply didn’t include in the oral presentation.

Because panel presentations seem to be more about style than about substance, I’ve generally thought that they are of little value for an author with a work in progress.  Instead, I’ve always thought that the best time to present a paper is after it has been written and polished to such a degree that the presentation essentially boils down to me telling everyone about this great idea and how I worked through the puzzle I’d found.  But I’ve recently had a change of heart.  After having a project of mine dissected at the recent Prawfsfest! workshop at FSU (i.e., ripped to shreds by some smart, though happily also nice, individuals), I was scheduled to present the same project at the Law and Society Conference in Denver.  The Prawfsfest! format called for me to submit a 10,000 word draft and introduce it in about 5 minutes.  Law and Society, in contrast, was a traditional panel format, and so I had to make a 20 minute presentation to a room of people who knew nothing about my project.  As I sketched out my presentation and practiced it several times in my hotel room (yes, I am that vain about my public speaking performances), I had to choose which aspects of my project to emphasize in the talk and which arguments to address only if they came up in the Q&A session.  I was also forced to try and make the project seem cohesive.  While the workshop format allowed me to identify the weak points of my project and to ask for assistance in deciding which path(s) to pursue, the panel format forced me to try to make the project sound well-developed.  And in trying to accomplish that, I discovered what exactly it was about a relatively broad topic that I thought was interesting, and I was able to make significant progress on the paper itself.

Anyway, now I’m starting to wonder whether I’m selling the other conference formats short.  Maybe presenting a completed paper at a half-baked ideas format would allow an author to develop ideas for a new project related to one that he or she has already completed.  Maybe panels could help authors with brand new projects.  Maybe there are even better conference formats that I’ve never heard of before . . .

Law Schools and the Freedom of the Church

As most legal academics undoubtedly know, three fired faculty members (one tenured) from Ave Maria Law School have sued the school for wrongful termination on a variety of tort and contract theories, litigation that has been going on for almost two years and has cost the school a great deal of money. The blog Ave Watch has closely monitored the litigation and the controversy, as well as being a general source of criticism for the school and founder Tom Monaghan. Rick and the rest of the folks at Mirror of Justice issued a joint statement two years ago, warning of the effects of the controversy there on Catholic legal education generally.

Last month, the school moved to dismiss the claims as to all defendants for lack of subject matter jurisdiction under the Church Autonomy Doctrine (or Ecclesiastical Abstention Doctrine) and its employment off-shoot, the ministerial exemption. There was oral argument a couple of weeks ago and a decision is expected, perhaps this week.

Some thoughts after the jump.

1) I again wish the parties and the court would not speak about this as a jurisdictional issue. Michigan courts are courts of general jurisdiction, meaning they can hear all claims arising under secular law, regardless of source. The plaintiffs have brought straight-forward tort and contract claims under Michigan law, plainly within the court's adjudicative authority. The Church Autonomy Doctrine prohibits secular law from controlling religious institutions and their management of ecclesiastical matters, such as selection and supervision of ministerial employees. The First Amendment limits the scope and reach of secular law. If applicable, the Doctrine defeats the merits of the plaintiffs' claims--they have no right under secular law to be free from certain actions at the hands of a religious institution and they cannot sue religious institutions under secular law for firing them. So, to the extent the school is right about being protected by Church Autonomy, particularly in the realm of employment cases, I wish we can start talking about this as a merits issue, not a jurisdictional one. Because this case arises in state court, it seems like a good vehicle for recognizing the truly substantive nature of the doctrine.

Actually, there is fairly limited Michigan law applying the ministerial exemption to this sort of wrongful termination, so the defendants rely on a lot of federal cases involving the ministerial exemption from Title VII, which is the subject of large circuit split on the substantive merits/jurisdiction question. Ironically, one of the cases that the defendants rely on is Petruska v. Gannon University, is a leading case for the merits view of the exemption.

2) There is case law applying the doctrine to bar a Title VII claim by a nun who was denied tenure in the Canon Law Department at Catholic University. But that case involved a Church-operated school, evaluation of explicitly religious teaching and scholar, and a plaintiff who herself was a member of an Order and thus subject to a high degree of Church control.

But this would be a very new and expansive application of Church Autonomy for two reasons. First, Ave Marie is not owned, operated, or controlled by the Catholic Church; it identifies itself as a "Catholic law school." In order to receive this designation, the school needed approval from the Diocsese of Lansing and Ave Maria insists this designation requires it to abide by certain ecclesiastical doctrines. But the Church exercises no control or authority over the school, including any role in evaluating whether the school or individual professors were comporting themselves with that purportedly pervasive Catholic vision. School officials make those determinations. Second, the professors did not teach religious or canonical classes; the school was founded with the goal of bringing the Catholic intellectual tradition to bear on every aspect of instruction, although it is not clear from the briefing papers how that was carried out or how that affected the nature of classroom instruction or the evaluation of professors. Interestingly, canon law experts believe this would be an inappropriate application of the doctrine.

3) I would love to hear from Rick and others who study Catholic legal thought and Catholic education (especially legal education) about this case. What is the link between Catholic legal education and the Freedom of the Church? At what point should the Catholic or religious nature of a law school (whose core job, of course, is to teach secular law and to train future lawyers) be deemed so pervasive that every faculty member becomes, at some level, a teacher of religious doctrine or religious ideas? Would a secular inquiry into that professor's performance thus involve evaluation of sectarian matters? In other words, imagine a prawf who teaches civil procedure, but nevertheless is obligated to bring some canon law or Church doctrine into the classroom. Does satisfaction and performance on the religious component become part of the evaluation of her teaching, such that a secular inquiry into the circumstances of any adverse employment action necessarily requires a forbidden inquiry into sectarian matters? And would it be different if that faculty member's teaching package includes Canon Law?

Going from 'Us' to 'Them'

A few years ago, Nancy Rappaport published a short essay in the University of Toledo Law Review, called "Going from 'Us' to 'Them' in 60 Seconds," in which she described her appointment, relatively early in her career, to an associate-dean post:

Scarcely a half-hour after the official announcement had been made concerning my appointment, I was at the faculty copy machine, and one of my colleagues walked in. He (mostly in jest, I think) told two other colleagues, who were standing nearby, “Hey, don't talk about that in front of Nancy. She's a ‘them’ now.” And thus it began: the transition from being an “us” to being a “them” in the blink of an eye.

I had a similar experience, a few days ago, after it was announced that I am going to take on some associate-dean work at Notre Dame:  a colleague said (jokingly, I hope!) something like, "so, you decided to give up on being part of the solution and decided to become part of the problem, eh?"  (Ouch!).  I hope not!  Dean Rappaport writes, "Going from an 'us' to a 'them' also means that, unless your friends on the faculty are very special people, your relationships with them will change."  Again, I hope not.

Commenting on Commenting

I was a commentator at a really great conference last week at GW law school.  The conference explored a variety of issues relating to software and business methods patents, with wide variety of views.  I commented on three interesting papers relating to whether business methods should be patentable subject matter - the papers approached the question from very different angles.  I recently published an article on this topic in the Tennessee Law Review, so this was a good panel for me to comment on. I really enjoyed the experience and learned a lot.

But that's not the point of this post.  I wanted to write a little bit about the commenting process.  This is the second time I've been a commentator.  I've been to other conferences that had commentators, but I get the sense that few conferences use them - likely for time reasons.

So why have commentators?  What do conference participants get? How about commentators? More after the jump...

There is probably some long history about commenting from other fields that has been extended to the law discipline.  I can imagine that commentators would be important in any empirical field, because presentations of data are necessarily opaque; a commentator can comment on the quality of data, the choice of analytical methods, and concerns about conclusions one might draw from the results. If there is such a history, I don't know about it, but maybe a reader can comment. 

So, I look at commentating in law conferences ahistorically, and I think that many of my speculated rationales apply to legal scholarship.  Comments on empirical legal scholarship would have the same benefits as any other empirical field (and perhaps more, if you're skeptical about empirical legal scholarship).  But what about theoretical work?  I think one might want commentators here, too, to frame arguments within a broader literature, point out potential theoretical flaws, and present alternative viewpoints.  If the commentator is in the relevant industry rather than academia, the commentator can also bring "real world" perspective to the various projects.

So, why have commentators rather than rely on the Q&A period after the presentations?  I can think of a few reasons.  First - and I know this is a shock - presenters tend to use more than their alotted time, squeezing out Q&A time.  Commenting time is built into the schedule, and you get feedback no matter how far behind you get.  Second, on panels with multiple speakers you might not get Q&A about all topics, so the commentator can make sure each paper gets attention.  Third, and related, the commentator has read the paper while the audience often has not.  This allows the commentator to address important points that might not have been presented and to head off obvious questions answered in the paper.  This leads to Fourth - another shocker - questions and comments are often much longer than their probative value.  Commenting gets to the point, with short comments that might take several minutes to ask in question form.

From these points, the value to the participants of the conference becomes relatively clear.  The presenters get someone who commits to reading the work in providing thoughtful commentary.  That could be done privately, I suppose, but it's a lot harder to get people to do a thorough job if they aren't presenting. This conference is a case in point.  I had already downloaded one of the articles from SSRN and skimmed it (and even sent a brief note to the author), but my commentating duties caused me to read the article carefully and keep detailed notes that I shared with the author.

The audience gets to hear some (hopefully cogent) thoughts about the works presented, which hopefully also focuses the Q&A.  I frankly wonder whether commentating is as useful for the audience as for the presenters.  I was split 50/50 on the comments I heard from others. All were good, but only some comments really illuminated the topics at hand (more on that below with commentating style).  I guess you can't always bat 1.000.

So what does the commentator get from all this?  I can tell you that it is a lot of work.  You often get the papers last minute, if at all.  The first paper I commented on was essentially a book, and the three articles I read for last week were substantial. Like most academics, I spent a lot of time thinking about the issues not only for the pursuit of knowledge, but also so that I wouldn't look like an idiot.  Perhaps the two goals are one and the same.

There are upsides, though.  The first is public visibility - I had been an academic for about 2 months before I got invited to the first one - based on a paper I published nearly a year earlier.  There was no way that I would get invited to present the paper, but commenting allowed my to get some visibility for that paper.  Indeed, an expanded version of the comments were just published as a very short essay.  Though few have downloaded it (nod, wink - show me some SSRN love), I think it makes some really good points that will add to the literature.

In short, you can't get invited to present at every conference, so commenting is a good way to go, present, meet people, see friends and colleagues, and learn without doing so.  If the conference can pay your way, so much the better.

Another benefit to the commentator is genuine learning.  I learned a lot about alternative theories about the way I see the world in reading all of the papers (some of which I might not have otherwise read), and one of them formed the basis for a portion of a book chapter I recently wrote.  I would not have had such a detailed knowledge of the theory if I hadn't been a commentator.

One last point about commenting style - I think how people comment varies greatly.  The industry folks I've seen tend to focus on whether or not the theories presented in the papers are reflected "on the ground," though some give a much academic style feedback.  I think both are really valuable.  Some give pointed feedback to each presenter, which I think works as well, especially in the part about preempting questions. 

For my part, I've tried to coalesce the papers into some broader theme or to make some broader points about the work, such as fitting it in with a broader literature (which just so happens to coincide with my view of the world - go figure). Whether I've succeeded is a matter of taste, I suspect, though you can read my comments and tell me what you think (nod, wink).

Organizing Academic Conferences

Sorry for a slow blogging week this week – I’ve been totally preoccupied with the last-minute preparations for the Criminal Appeals Conference next week, which I’ve organized with my colleague Chad Oldfather.  With a lull in the preparations today, though, I thought I would share some thoughts – questions, really – about when and how to organize academic conferences.

First, should untenured professors organize conferences?  When I started teaching, a more senior colleague advised me that he had made a big mistake when he decided to put on a multiday academic conference very early in his career; he found the administrative burdens to be a major distraction from his writing.  Heeding my colleague’s admonition, I waited until after tenure before I organized my first conference, which was on plea bargaining.  Now nearing the end of preparations for my second, I do appreciate my colleague’s warnings about how much work goes into making an event like this happen.  On the other hand, I’ve had a couple of advantages he did not: I have had a co-organizer for both of my conferences, and my law school’s administrative support staff has become much more experienced and capable in dealing with conference logistics.  For untenured professors with these advantages, I would not necessarily advise against conference-organizing.

Of course, one should not just do a conference for the sake of doing a conference.

Especially for an academic in his or her early years, there should be a clear sense of how the conference connects to and supports the scholarly agenda.  Although much of the work in preparing for a conference is purely administrative, there is a substantive dimension to defining the topic and identifying the right speakers to invite.  A conference can also help one to develop relationships with others who write in the same field, and to draw attention to one’s scholarship.  On the other hand, I wonder if blogging, email, and SSRN now provide much more efficient means to these same ends.  More ambitiously, a conference can serve to mark the emergence or maturation of a new school of thought, lending clearer definition to its content and its strengths and weaknesses.  As an exemplar, I think of Erik Luna’s terrific restorative justice conference at Utah in 2002 (when Erik was still a junior faculty member).

This leads to a second question: how focused should a conference topic be?  In my two conferences, my basic approach has been to define a topic broadly (plea bargaining or criminal appeals), invite a diverse group of interesting thinkers who have written on the topic in the past, and give them complete freedom to present on any aspect of the broad topic.  When I have been invited to conferences myself, I have always appreciated such broadly defined topics, especially to the extent they allow me to speak on something I was planning to write about soon anyway.  If I were to define the topic of a conference more narrowly to track my own idiosyncratic interests, I would be concerned about my ability to draw an audience and a full roster of speakers.  On the other hand, a conference that is too broadly conceived may lose its sense of coherence.  Also, if one’s goal is to create a “moment” for a new issue or school of thought, that goal will probably not be reached without a deliberately focused definition of the topic.

Finally, who should the audience be?  I have attended some conferences that have plainly been conceptualized as academics talking to academics, but others that have just as plainly been designed for a larger, more diverse audience, including students and practitioners.  I have taken the latter approach with my two conferences.  If my law school is footing the bill to fly in a bunch of smart people from around the country to have an interesting conversation, it seems only natural to try serve as many institutional interests as possible through that conversation, including teaching and community outreach interests.  Moreover, I’ve found that law students and practitioners, while perhaps not as steeped in the scholarly literature as academics, often have valuable comments and questions that inject important practical considerations into scholarly discussions.  On the other hand, there are perhaps some drawbacks to the “big audience” approach.  If nothing else, it adds considerably to the administrative burdens.  It also creates a more formal atmosphere, which may be less conducive to free-flowing, creative conversation among the academics. 

These are some of the questions on my mind right now about academic conferences.  I’d be interested in hearing others’ views about what the important questions are.

Research tools revisited

Last October, I blogged about various ways I organize research: 1) emailing myself articles, 2) a spreadsheet, 3) a research database.

Having used the latter two methods more in the last eight months, I thought I would update that post with new observations.

For starters, mailing myself articles to read is out.  I don't do it much anymore, and if I do, I add it to the database.

Also, I found that the spreadsheet method isn't that great. I found myself looking at the list of cases at the end of the project, and I found that I had already addressed most of the key cases.  Where I did look at it first, it was missing a lot of information I later found.  I think the reasons for this are twofold.  First, it's not a very elegant way to view information - it's hard to sort, it's not big enough to hold all of the information I might want (and if does have enough, it becomes unreadable), and you can't attach the case or article being referenced.  Second, a single summary is not terribly helpful when you need to cite particular passages.

I've worked more with Zotero and other available products, but they just don't seem to work the way I would like.

That leaves the database, which has been great - I used to draft two articles and finish a third (that I had started using other methods).  The key was the linked quotes and notes database - I found that I could quickly get detailed information about the article or case without having to look back at the original article - that is, I only needed to read it once.  I get information into the database in two ways - I either directly add my notes and/or copy and paste quotes as I'm reading, but that requires constant computer and network access while I read - not so great.  Alternatively, I mark passages and notes on a written copy, and hand it off to my research assistant to add to the database.

I've also found a relatively useful way to deal with books.  For those that I can't get through open access (google books or creative commons, etc.), I link to directly.  For archaic media like bound paper books, I flag interesting passages with post it notes, and then enter those passages or notes about them into the database.  This is a little bit more work than I ordinarily would want to do, but the goal is to do it once and do it right for important books.

One drawback that I'm working on - if I add a new article topic to the database, I have to re-identify which articles might be relevant.  As the database grows (425 cases and articles and growing), I'm going to have to rely on my memory a lot more than I would like.  One solution to this is keyword searching in the notes, or a periodic browse through all articles about a certain subject area (like patent law) rather than article topic (like subject matter) to add additional article topics to a reference.

One final point - as the database grows and as research assistants graduate, it will take more cycles to add references to the database.  Whoever enters the data will have to make sure the item is not already there from prior projects.

So, there you have it.  This may seem like old news to those who have been doing this for a while, but I thought it might be helpful to anyone trying to figure out how to organize their research. I'd love to hear more tips from anyone who has a good working system.

Minow to be new dean at HLS

Though there were many great finalists, it's really exciting to announce that Martha Minow, a beloved former teacher of mine, will now be the new dean at HLS. Here's President Drew Faust's announcement, after the jump.

Dear Colleagues, Alumni and Friends,

            I am delighted to let you know that Martha Minow has agreed to serve as the next Dean of Harvard Law School.  She will take up her duties on July 1. 

            Martha has been a member of the HLS faculty since 1981, and she has served the school with extraordinary dedication and energy.  She is an eminent scholar of uncommon range and imagination, a greatly admired teacher who guided the school's recent curricular review, and an outstanding citizen not only of the Law School but of the University, with impressive experience in academic leadership roles.  She has a clear-eyed view of the challenges and opportunities facing the Law School, and a talent for bringing people together to work through important academic and institutional issues.  Most of all, she has a passion for the law and for all that legal scholarship, education, and practice can do to advance the public good.  I look forward to welcoming Martha to the University's Council of Deans and to working closely with her in the years to come.

            Howell Jackson has done an exemplary job as the Law School's acting dean these past few months, and all of us owe him our deep gratitude for his willingness to serve in this interim role.  And, of course, Martha will benefit not only from Howell's excellent work during the transition, but also from Elena Kagan's five-plus years of strong and energizing leadership before taking leave in March to serve as Solicitor General of the United States.

            I'm grateful to the many members of the Harvard community -- faculty, students, staff, and alumni -- who offered thoughtful advice during the course of the search.  I've learned a great deal from your counsel, and it has helped guide us to an excellent outcome.

           A copy of today's announcement can be read at:  http://www.news.harvard.edu/gazette/2009/06.11/hls.html

Sincerely,

Drew Faust 

WiPping Your Articles Into Shape

I've just returned from Marquette's first Works in Progress Workshop of the summer.  I know many other law schools have similar programs, but the format has worked so well for us that I thought I would give it a plug here for faculties that are not yet doing it.  Former Prawfs guest-blogger Chad Oldfather organized our first WiP program a year ago, and we have had three more since then.  In advance of the workshop, participants (usually eight or nine in number) circulate two- to ten-page summaries or fragments of articles that are in an early stage of development.  At the workshop, we discuss each piece for 45 minutes.  The first five minutes are introductory comments by the author, with the balance of the time given to questions and comments from other participants.  It's a lot like the terrific PrawfsFest I attended at Hofstra last summer, but (as is more feasible with a smaller group) a bit less structured.  The law school springs for lunch, but otherwise there are no institutional costs.  In addition to the obvious benefits of good feedback on projects at an early stage, we've found that the WiP programs also facilitate mentoring and have broader community-building benefits -- spending a day batting around interesting ideas with colleagues helps to remind many of us why we became academics in the first place.  In retrospect, the WiP programs seem like a real no-brainer, and it is hard to believe we did not start doing them sooner.

New info on Lex Opus; an alternative to Expresso?

LexOpus (http://lexopus.wlu.edu) is a recently launched service at Washington and Lee Law School offering free online submissions to law journals. The service has two facets: 1) An author can make an article available to all interested law journals, inviting journals to make offers. Journals are able to limit by subject matter the articles that they see as open to offers. 2) An author can make offers to law journals in an author-specified journal list, LexOpus making on behalf of the author a short-term exclusive offer to each law journal in sequence. For non-peer-reviewed journals 'short term' is one week. Author offers continue past each journal's exclusive period, on a non-exclusive basis, until rejected by the journal or withdrawn by the author, but any journal with an exclusive period always has acceptance priority. An author can make a work 'open to offers' as well as submit to specific journals, or can do one or the other. As the system does permit uploading of revisions, authors might make working papers open to offers and then, if no acceptable offers have been received, when the finished work is available submit that version to specific law journals. Works can be suppressed from public view if the author so desires. Questions can be directed to:  John Doyle Washington and Lee Law School Lexington, VA 24450

In the Mail: Looseleaf Casebooks!

In going through a 10-day backlog of mail at the office yesterday, I was psyched to receive binders containing looseleaf copies of two of my casebooks for next year: Dycus et al.'s National Security Law, and the brand-spanking-new sixth edition of Hart & Wechsler's The Federal Courts and the Federal System.

Is it just me, or are looseleaf casebooks the coolest thing since sliced bread?

Alex Acosta to be dean at FIU

I am thrilled to report that R. Alexander Acosta, currently U.S. Attorney for the Southern District of Florida and former head of the Civil Rights Division at DOJ, will be the new dean of FIU College of Law. Acosta graduated from Harvard College and Harvard Law School and clerked for Samuel Alito on the 3d Circuit (my old circuit). FIU press release here.

This is a great hire for us. Acosta has connections in the Miami market that will be a tremendous help for us in attracting students, getting them jobs, and raising money--the three areas in which we are most lagging. I admit to having been initially apprehensive about a non-academic dean. I was won over by hearing about Acosta's efforts as a non-prosecutor taking over a prosecutors' office; the parallels to a non-academic taking over a law school were pretty striking. And we are in pretty good company with schools that recently have gone the non-academic route for dean. Could this be something of a new trend?

And, of course, there is the fact that this played out so publicly, thanks to Florida's Sunshine laws and having a high-profile political figure in the mix. In the end, I do not believe the coverage skewed the outcome, but it definitely changed the way the process worked.

I would pause to compliment and thank our outgoing dean, Leonard Strickman, who got the place off the ground and carried us through the fill-in-the-box steps of ABA and AALS accredidation. Acosta's role is to get us to the next level and I am convinced we got the right person.

The University of Chicago Class of 2001: A Post by Eugene Kontorovich

I'm happy to observe that 25% of the guest bloggers here were at the University of Chicago law school together. Mark Blitz and I were in the same class, with John Pfaff, a JD/PHD, a year below I believe. This led me to think about my other classmates in academia, and I've realized there are quite a lot of them. Bill Henderson at Indiana, the noted scholar (and blogger) of the legal services market itself, who was good enough to save me from disaster by sharing his Contracts outline, Danny Sokol at Florida; Josh Fairfield at Washington and Lee; Jonathan Mitchell and Adam Mossoff both at my former haunt; and my dear friend Hermine Hayes-Klein  teaching Torts at the Hague University. (My apologies to anyone I have inadvertently neglected in this off-the-cuff inventory.) That's really not bad for a class of 180-something. That is a more than 4% teaching rate, well above Chicago's recent performance.

 

It is a particularly impressive group that honors by association. Readers here will be interested to note that it's also a very bloggy bunch. Sokol has a blog on antitrust and competition policy; Henderson on the legal profession; Fairfield contributes to a blog about something to do with technology; Hayes-Klein runs a blog on the Federalist papers. Aven antediluvians like Mossoff  and myself have recently guest-blogged at the Volokh conspiracy and elsewhere; he talked about early manual sewing machines and I about pirates so it's not surprising we are not in the digital vanguard with our classmates.

 

This leads me to think about the much discussed relationship between blogging and academic success/tenure. I have no opinion on whether blogging can contribute to success; I can see how it can cut both ways and it depends chiefly on whether blogging is a compliment or substitute to traditional scholarship. But I suspect even if blogging does not cause success, success will cause blogging. What I mean is that smart dynamic people with a lot to say will wind up looking for additional avenues in which to do so; their cups run over. Consider ”my judge,” who has not one but two. Thus I would predict top law professors would be overrepresented amongst the ranks of law professor bloggers.

Electronic law review supplements and tenure

I want to combine a couple of recent topics of discussion: a) Erwin Chemerinsky's Michigan Law Review essay (which Bill commented on) and b) Cardozo Law Review's launch of De Novo, its on-line supplement intended to provide an even broader forum for short scholarship, including c) a fun forthcoming piece of advice for a new law professor by my colleague, Matthew Mirow.

The question is should we do with these new scholarly forums and how should they be worked into out scholarly expectations and our tenure standards? And Chemerinsky's discussion of the legal scholarly enterprise is a good jumping off point. A couple of sub-questions and sub-issues presented here.

First, Chemerinsky defines scholarship as that which makes an important, original contribution that add substantially to the body of legal literature. Form and audience are less controlling, although Chemerinsky does suggest that blog posts and op-eds do not qualify. But journals such as De Novo or Northwestern Colloquy or Yale's Pocket Part are doing something different. They are publishing short pieces (3000-5000 words, shorter even than the typical law review "essay"), although longer and more substantial and substantially researched than most op-eds or columns and most blog posts. And important, original ideas can be presented and argued in this forum. Or at least similar ideas from larger pieces can be presented in a different form, with a different emphasis, for a different audience.

Second, should junior folks be encouraged to write for these forums? These pieces are relatively easy to write in a short period of time and the lag from acceptance to publication may be a matter of weeks. So a prawf can go from idea to publication in two-three months, in a forum that may reach a fairly wide audience. If the rule is to always be writing and involved in the conversation, it seems to me this is an easy way to get some publications under one's belt and to get your name and your ideas out there.

Third, how does this affect what we all should be doing with our time at any career stage? In the old world, it was all about lengthy law review articles that were submitted at one of two set points during the year and that typically took six to 12 months, acceptance to publication. And there really were no other options--no alternative outlets or forums, no alternative forms of scholarship. But on-line supplements alter that. So while big (although not-quite-as-big) law review articles remains the coin of the realm, there are other outlets and options. So to what extent should we make those other options part of our annual scholarly plan--one big article and one essay or reply for on-line placement each academic year?

Finally, how does this get written into the tenure standard? At most schools, the statutory minimum is written in terms of big law review articles. At FIU, the illustrative standard (not intended as a necessary-and-sufficient quantification) is "three substantial scholarly works" by the start of the sixth year. Should that standard be revised to recognize the new scholarly reality? Should it speak not only of substantial scholarly works, but of "other" scholarly writing, which might include electronic supplements. Should they be part of the body of scholarly work that is sent to outside reviewers? This is not to suggest that a junior faculty member who goes up with three 3000-word essays for supplements should get tenure; only that she she should get credit for writing such essays in addition to her three or four substantial scholarly works. Tenure should be based on the overall body of work; can and should we expect that body to include some pieces intended for on-line supplements and other scholarly places? And should we write formal standards accordingly?

New law schools and old universities

Dan Filler follows-up on my description of recent events in the FIU dean search with an excellent contextual point that we both are sharing: One of the challenges for a new law school working itself into an established university is educating the university about the ways in which law schools are different--explaining differences in compensation, hiring commitments, status, teaching load, scholarship standards, etc., and getting the university to understand and accept those differences and incorporate them into the operation of the university.

We have most consciously dealt with this in the promotion and tenure process--explaining why five medium-to-long pieces in student-edited journals satisfies productivity norms in the legal academy and thus warrants tenure. Fortunately, the chair of P&T has taken this education function very seriously and been very precise in how candidates and their records are framed so the provost understands that, in the realm of legal academe, this person is tenure-worthy.

Perhaps some of the confusion we have had in the dean-search process (especially as to the application of the Sunshine Laws to these faculty-centered elements) can be tied to an absence of a similar precision in performing that education function.

Deans and Sausages: On conducting a dean search in public and correcting the public record

Back in February, I wrote about the early coverage of FIU's dean search, made public by the state's Sunshine Laws. I particularly complained that the coverage was likely to be inaccurate for the same reason much coverage of the judicial process is inaccurate--the press is not very good at capturing niche or nuanced events, nor is it very good at reporting process stories or the effect that process has on outcomes. Dan Filler similarly criticized the potential mischief that comes with subjecting a process such as a dean search to the Sunshine--as he put it, giving the world an opportunity to see us making sausage.

Thus far, we have met five candidates, with a sixth coming at the end of this week. On Monday, the faculty met to vote its preferences on each candidate. The meeting was opened and noticed under the Sunshine Laws. And the next day, accounts appear that are inaccurate or at least not reflective of process and nuance. The gist of the accounts is that Alex Acosta (the current United States Attorney for the Southern District of Florida and the candidate that everyone around here cares about) was deemed "not acceptable" by a majority of the faculty (he was nixed, in one commentator's words). Two candidates--Prof. Joel Friedman of Tulane and Dean Jose Juarez of Denver--were found "acceptable," or, as one story stated, they were the only two found to have "superior academic chops." It also was reported that the vote, although not binding was "traditionally . . . seriously considered."

And once again, nuance and process were lost in inaccurate or incomplete news accounts. People are watching sausage being made here, but media accounts do not provide the context of the sausage maker, especially the unquestionably unique sausage maker that is FIU. So allow this post to correct at least some of the public record.

We did hold a sense-of-the-faculty vote on the five candidates we have met thus far (the final candidate will be considered at a second faculty meeting next week). But under the rules established for the vote, there was explicitly to be no characterization of the outcome; there was to be no determination or declaration that anyone was acceptable or unacceptable. The rules did not establish any numerical threshold for acceptability (on faculty-hiring votes, we always know that acceptability requires 2/3--and no one reached that mark). The fact that it is being reported as a finding by the faculty of the acceptability or unacceptability of any candidate is wrong because no standard ever was established to define acceptability. The reporter unilaterally decided that 50 % (rather than 2/3 or 40 %) was the threshold, with no basis for the conclusion.

Similarly, the lede in one paper stated that the faculty "didn't want" Acosta as dean. But again, there was nothing that defined at what point a candidate became wanted. And since we also did not rank-order anyone, there was no statement of preferences and thus no statement as to who we wanted or did not want as dean. The vote simply was supposed to reflect the unadorned numerical opinion of faculty members as to individual candidates--running alongside individual statements of views that we were invited to present directly to the provost. And it certainly was not a finding as to anyone's "academic chops."

The Sunshine Laws created a second bit of mischief that was not addressed in the articles. University counsel rendered the opinion that, to comply with the laws, the members of the law faculty who are members of the Search and Screen Committee (five people out of a committee of nine) had to either publicly declare their votes (all other ballots were secret) or not vote. They chose the latter so as to protect two untenured committee members from having to declare their preferences. But, as a result, 15 % of the faculty members present at the meeting were unable to express their preferences on the same terms as other faculty members--a number that might have shifted the outcomes on several planes. The question now is whether and how the views of these five faculty members will be presented to the provost and considered in conjunction with the votes of the rest of the law faculty in order to get a true "sense of the faculty."

Third, there is no way to conclude that the faculty vote is "traditionally" "seriously considered" because a faculty vote on a dean candidate is a totally unique animal at FIU. Deans here historically are selected without corporate input from the faculty as a whole; the faculty is represented on the search-and-screen committee (always chaired by a dean from a different college) and individual faculty are given the opportunity to weigh in on their preferences for the provost's consideration. But no other college here ever has had this type of sense-of-the-faculty vote--precisely to leave the provost with the freedom to choose without running into cries of faculty governance. And since this is the first time the College of Law ever has searched for a dean, there is no "tradition" at FIU (whatever the effect of similar votes at other schools) of how such votes are treated. I have no doubt the provost will consider the vote totals (as the provost said in one of the articles). And ABA accredidation standards provide that a dean should not be hired who lacks the support of a substantial majority of the faculty (whatever that means and whatever the final numbers look like, after the additional five faculty members have been heard from), at least without good explanation. But I do not believe it is accurate to suggest that the vote will be any more controlling than the other pieces of information provided to the provost.

Dan Filler is absolutely right that giving the world a window into the process is a bad idea (a point he made back in February and again today). I believe the problem is less giving the world a window, than the inaccuracy of the window. But I am not sure how we can get or ensure accuracy in such a unique process.

University Bookstores and the Intellectual Life of Campus

My school, the University of North Dakota, recently declined to renew its contract with Barnes & Noble to run the campus bookstore. Instead, they’ve signed up with Follett. So we are in the midst of transferring control of the bookstore from one megalithic operator to another. This seems to me a real shame. I have nothing against B&N or Follett. I am sure they are generally very good at meeting contractual expectations while maintaining a profitable and tidy operation. But there are few things so wonderful as a bookstore that is neither tidy nor profitable.

As an undergrad at the University of Texas at Austin, I must have spent, cumulatively, at least a solid week browsing aimlessly in the cluttered aisles of our Co-op Society bookstore. They had, as one guy I talked to remembered, “every book in the world.” I recall once looking through a whole table of scholarly books on theoretical mathematics. Not that I understood any of it. But I felt very academic just leafing through. And it wasn’t just the books. There’s something inspiring about spectrum-ordered rows of art supplies. And I loved the fact that if I ever needed to pick up a scalpel, a stethoscope, or a box of 25 microscope slides, the bookstore was there for me.

Okay – if I wax any more tweedy, I’m going to make some one nauseous. I get that. But hey, I’m a law professor. I like the smell of books and coffee.

The last time I was down in Austin the bookstore had pared down to a neat little operation, renting out most of their A-list retail space to Barnes and Noble. What a bore. I hear Barnes and Noble has since left, but the old every-book-in-the-world Co-op hasn’t returned.

Watching UND switch from one mega-retailer to another, I feel like we are missing the chance to extend the university experience with a truly great bookstore.

I understand the new bookstore managers are interested in learning from the law faculty what books they ought to carry for law students. I would like to tell them to keep expanding their selection until at least half of the shelf inventory experiences no year-to-year turnover.

Hmmm. I don’t think they are going to go for that.

Acknowledging What Harvard Law Owes to Slaves

The three sheaves of wheat on the Harvard Law School coat of arms (top), derived from the family crest of Isaac Royall (bottom), may be fairly said to represent the labor of slaves.

Harvard Law School was founded with money amassed through slavery.

This is a fact that HLS, my alma mater, does not try to hide. But it is a truth that is not exactly advertised either. If you visit the “Our History” page of the law school’s website, you get a somewhat-whitewashed version of the school’s heritage. More than a third of the 311-word synopsis of HLS history reads as follows:

The Law School traces its origins to Isaac Royall, who in 1781 left land from his estate in nearby Medford to Harvard University, with the proceeds intended to "endow of a Professor of Laws at said college, or a Professor of Physics and Anatomy." Harvard took the opportunity to fund its first chair in law, and the Royall chair continues to support an HLS professor today, more than 200 years later.

In 1806, Royall’s heirs sold the rest of his estate and used the funds to establish a school of law at Harvard University. The Royall family coat-of-arms -- three stacked wheat sheaves beneath the university motto, Veritas -- was adopted as the school’s shield.

What this account omits entirely is that Isaac Royall was a slaveholder – his donated estate was built from slave labor and the slave trade.

I appreciate that the issue of how Harvard Law deals with its slave-money origins raises a set of very difficult questions. (A very thoughtful and wonderfully engaging discussion by Janet Halley, Harvard’s current Royall Chair, can be found here.)

Nonetheless, I think there is one simple question of fairness that transcends the historical, political, and social complexities: Shouldn’t HLS acknowledge Royall’s slaves as it does all other benefactors?

Surely they are benefactors. We know that the slaves were not paid the wages they were owed for their labor. So, to borrow a concept from remedies, it seems only fair that Royall’s slaves should, in retrospect, be awarded something like a constructive trust on their unremitted earnings. That trust property, having been converted to charitable contribution, leaves a residue of acknowledgement of giving. That acknowledgement is currently possessed, posthumously, by Royall. It seems only equitable to shift that res to the account of the slaves, or at least allow them to share as co-tenants.

I think it follows that, at a minimum, Harvard Law ought to acknowledge the slaves’ contributions in the school website’s historical narrative. And I think a tangible statement on campus – a wall-mounted inscription somewhere – would very much be in order. Many of the slaves’ names are known and are listed by The Royall House Association. Those individuals should be acknowledged. Using the information found on the Royall House Association’s rolls, I imagine the inscription might read as follows:

IN GRATEFUL ACKNOWLEDGEMENT OF THE INVOLUNTARY CONTRIBUTIONS OF THE SLAVES OF THE ROYALL ESTATE FOR THE FOUNDING ENDOWMENT OF HARVARD LAW SCHOOL:

HECTOR
QUACO
RUTH
NAN
CUFF
PETER JUNE
CUFFEE
PETER
FORTUNE
CAPTAIN
BLACK BETTY
ABBA
QUACOE
DIANA
JOHN
NANCY
BETTY
GEORGE
SARAH
JACOB
JEMMY
ABBA
ROBIN
COBA
WALKER
NUBA
TRACE
TOBEY
PRESENT
CATO
BARRON
NED
HOUSE PETER
ROBIN
QUAMINO
SMITH
PHILLIP
TRACE
SUE (SUSANNAH)
JONTO
OLD NEGRO MAN
SANTO
GIRL 6 YEARS OF AGE
OLD COOK
GEORGE
ABRAHAM
BETSEY
NANCY
COOPER
HAGAR
JOSEPH
MIRA
PHEBE
PLATO
STEPHY
DIANA
JOSEPH
BELINDA
JOSEPH
PRINE
PRISCILLA
BATHSHEBA
NANNY
AND OTHERS WHOSE NAMES ARE LOST

More (Early) Notes re: U.S. News Rankings

The early list is out (HT: Paul Caron at TaxProf, via The Faculty Lounge, which also has info on specialty rankings).  And, to follow up on Rick's post on peer assessment:  Brian Leiter offers the 2009 'reputational' scores here.  Query whether politics (in terms of a school being viewed as liberal or conservative), if it does play a role, does so with respect to schools after the top 50--or are those schools' political leanings, if categorized as such, immaterial? 

New (better?) conference formats?

I participated on Friday and Saturday in a very rewarding and interesting event, organized by the James Madison Program in American Ideals and Institutions (sorry, Mr. Rich!), that was billed as a "consultation" on the topic, "Law and Religion:  Historical and Philosophical Perspectives."  Perhaps others are already familiar, or experienced, with this format, but it was new to me and, I thought, very successful.

Basically, the event's organizers gathered 10-ish pretty-far-along papers, and then distributed them not only to the presenters, but to an additional group of a dozen or so "discussants."  Each session involved a pretty short presentation (15 minutes) by two authors of their papers, and then an hour (or more) of very lively conversation among presenters, discussants, and attendees.

A few weeks ago, our guest-blogger Mark Kende arranged a similar program on "Law, Religion, and Constitutionalism".  Again, the event was set up to resemble a lively workshop -- lots of participation, back-and-forth, etc. -- and not the usual rubber-chicken, four-talks-on-a-panel affair. 

And, it sounds like we are seeing more and more Prawfsfest-esque,"schmooze"-type roundtable events.  All this -- i.e., a diversifying array of conference formats -- strikes me as a good thing.  Any thoughts?  Any other formats worth mentioning that people have experienced or tried?  Any downsides?

U.S. News and "assessments"

I know we're not supposed to take notice of the U.S. News rankings (ed.:  so don't!), but . . . I continue to be struck by the facts that (a) very few of the "top 50" schools (only UCLA and USC, it appears) have "peer assessment" scores that are *higher* than their lawyers / judges score, (b) the schools with the largest gap between peer assessments and lawyer-judge assessments seem to be ones that are often said, with varying degrees of accuracy, to be "conservative" (e.g., George Mason, Brigham Young, Notre Dame), and (c), with very few exceptions, the peer-assessment number is so sticky.  (I realize I am treading very close to "sour grapes" ground, but the steadiness of my own school's number, assuming it is supposed to reflect a judgment about the faculty and their scholarly productivity, is unwarranted by the facts.) (ed.:  so quit whining, and get back to writing!) 

The Take-Home Final Exam

It's that time of year, so I'm working on my final exams. In my 1L structural constitutional law course I'm giving a take-home exam, as I have done for the last two semesters in this course. My sense with this subject had been that I was reading too much of a rushed exam when I tried to test in three hours what I thought the students should take out of the semester, which made me less confident that the better-prepared students could distinguish themselves consistently.

The biggest challenge has been how to schedule a take-home exam in the midst of the 1Ls' very structured final exam schedule. But overall, I have been happy with this exam format for this particular course. In other courses, though, I find the timed in-class exam more effective for assessing my students. I haven't polled my students formally, but they generally seem pretty split on which format they prefer.

What leads professors to give take-home exams in certain courses but not others? The nature of the subject generally? What a professor wants to test in a particular semester? Whether the course is a 1L or upper-class course? What specific testing goals do professors pursue with a take-home exam that differ from an in-class exam, and how are these goals reflected in the exam itself? And, do some professors object to take-home exams in law school?

Second Annual Junior Faculty Federal Courts

THE SECOND ANNUAL JUNIOR FACULTY FEDERAL COURTS WORKSHOP

October 22-23, 2009 Michigan State University College of Law East Lansing, Michigan

The Michigan State University College of Law is pleased to announce that the Second Annual Junior Faculty Federal Courts Workshop will take place on its campus October 22–23, 2009. The inaugural workshop, held in April 2008 at the American University Washington College of Law, was a resounding success attended by junior scholars from 30 law schools, resulting in publications in numerous preeminent journals. We aim to continue this tradition.

The workshop pairs junior and senior, federal-courts scholars in a day-long, works-in-progress workshop. Senior scholars who have confirmed their attendance for this year’s workshop are Susan Bandes (DePaul University School of Law), Martha Field (Harvard Law School), Martin Redish (Northwestern University School of Law), and David Shapiro (Harvard Law School).

Workshop Agenda

Drafts of papers will be distributed to participants prior to the workshop, which begins with dinner on Thursday, October 22. On Friday, October 23, following breakfast, two panels of junior scholars, composed of three to four persons each, will present papers in the morning. After lunch, two panels of junior scholars will present papers in the afternoon. Each panel will be assigned a senior scholar who will provide commentary on the paper and lead the group discussion.

Invitees

The workshop is open to non-tenured, or newly tenured, academics who teach Federal Courts (or an equivalent course) or whose scholarly agenda encompasses topics ordinarily associated with such a course. Those who do not currently hold a faculty appointment but expect that they will during the 2010-2011 academic year are also welcome. There is no registration fee for this conference.

RSVP

Those who plan to attend the workshop are asked to RSVP by July 31, 2009 to Sally Rice at Michigan State University College of Law (events@law.msu.edu). Please indicate whether you will attend the dinner on October 22.

Persons wishing to present a paper are asked to e-mail an abstract by June 29, 2009 to Lou Mulligan (mulligan@law.msu.edu). A committee of past participants will select papers no later than July 3, 2009.

Michigan State College of Law is pleased to provide all participants with meals while attending the workshop and has secured a block of rooms at a discounted rate.

Conference Flyer here. I attended (although did not present) at the first conference in April 2008, organized by our own Steve Vladeck and his AU colleague Amanda Frost, and it was a terrific program, with some excellent papers and great give-and-take. I am hoping to present something this year, provided I kind figure out which of two projects to do. I also would note that two of the senior mentors--DePaul's Susan Bandes and Northwestern's Marty Redish--were among my mentors in law school.

Isiah Thomas, FIU Basketball Coach?

Beginning when I was around 16, I wanted to be a college basketball coach. I was a student manager in college, worked as a coach at summer basketball camps throughout college, and my first job after college was as assistant coach at a D-III school in Chicago. Basically, I was trying to set up the career trajectory that Nets Coach Lawrence Frank followed about 10 years later--short Jewish kid from NJ becomes manager at Big Ten school, parlays it into coaching career. It seems to have worked out slightly different for him than it did for me.

This biographical detour is to say that, 15-20 years ago, I was perfectly happy with the notion that D-I basketball coaches made (at a minimum) five times as that of the ordinary humanities professor--in fact, I was hoping to have one of those paying-five-times-as-much jobs. I noted how out-of-whack coaches' salaries were, but bought the now-largely-challenged economic arguments about the real financial value college sports brings to the university. Of course, I never envisioned an economic downturn this severe that would affect universities (particularly mine) this severely. Nor did I envision my life at a small, underfunded public university in a state with no income tax and no significant commitment to higher education.

All of which is to express genuine bafflement and uncertainty at the news that FIU has hired Isiah Thomas to be its men's basketball coach, with a press conference to announce the hiring today. In no particular order, a jumble of thoughts:

1) It certainly is putting FIU on the college-sports map, at least for now. We lead PTI last night. The last time FIU was part of a national college-sports story was after the brawl with Miami during a football game.

2) I do not know right now how much Thomas is making, but I imagine there was a premium to get him and his name down here--not U-Conn/Jim Calhoun territory, but certainly more than Thomas' predecessor and probably more than the average coach at this level. This seems troubling at a university that just eliminated entire departments and has spent the past several years (and likely will spend the next several years) slashing big chunks of its budget, including the budget of the College of Law. True, if we are serious about college sports, we have to spend money--but is this the appropriate time?

3) More important is the question of whether this is worth that money. Thomas has not been a good coach (with the Knicks and Indiana Pacers) and his record as GM/Owner suggests that he is not a particularly good judge of talent, although he did make some good draft moves. He also ran the old CBA out of business, so his management skills are questionable. The school has hired his name. But the 17-year-olds he will be recruiting know him only as the guy who ran the New York Knicks into the ground, not as a Hall-of-Fame, championship-winning college and NBA player. So what are we getting for this money? No one knows for sure.

4) Then there is the fact that in 2007 Thomas and the Knicks were hit with an $ 11 million punitive-damages verdict for Thomas' sexual harassment of a female Knicks employee (the case settled before compensatory damages were determined). FIU AD Peter Garcia's response to that (in the ESPN link above) was, basically: I know Thomas and he is a wonderful husband and father, it's in the past, and everyone makes mistakes (although some mistakes are larger than others). This seems like an awful lot of baggage to carry into the job. And it calls into question how well he can or will control his program and his players, especially on the always-dicey issue of relations between student-athletes and the rest of the student body.

If it sounds as if I am rooting against this, not at all. I hope Thomas turns FIU into a mid-major power--the Gonzaga of the South; it would be psychically, if not financially, good for us. I am not optimistic right now, but I can be convinced. And I certainly will go to some games to check it out. But this is a tremendous financial--and legal--risk for the school to take and a bad time to be financially risky.

Will work for . . .

Thank you to Dan and the Prawfs community for inviting me back.  I’m really glad to be here. 

I’ve had a number of conversations with students recently about post-graduation job prospects, deferred start dates, and the like.  These conversations have sparked/renewed several concerns, to which I’ll devote this post and a few others.  Topic number one:  loan repayment assistance for students taking public interest jobs.

I teach at a Jesuit school, which, like many other institutions (some also religiously affiliated), purports to encourage students to consider focusing their legal careers in public service.  Along these lines, the school offers certain qualified graduates participation in a loan repayment program (again, like many other institutions).  I believe such a program is great in theory; in talking with students and in considering the terms and conditions of our program and others like it, however, I wonder whether such a program is a sufficient incentive to entice students to careers in the public interest. 

Student loans for tuition alone upon graduation are approaching or exceeding $80,000.  The model of loan forgiveness program I’ve seen will help a student in a qualified position (with a salary cap of between $50,000 and $60,000 per year) by offering up to $20,000 in student loan repayment assistance over five years.  The payment cannot go toward relieving the (often sizable) debt of the personal loans taken out by many students during their time in law school. 

So, I pose the question (well, questions):  If you are a student desiring to go into public interest work, does the prospect of loan repayment affect your decision, or is it simply an added bonus?  If you are a student unsure of whether to enter a career in the public interest, do existing loan assistance programs suffice as an incentive?  If so, what are the models of those programs?

The legal profession may be changing, and perhaps for the better (more on that in subsequent posts).  As we work with our students to help them enter the legal profession, what can those of us in university faculty/administration do to encourage/assist in the consideration of public interest jobs?

Nell Jessup Newton to Notre Dame Law School

I am happy to report the news that the new dean of Notre Dame Law School is Nell Jessup Newton.  (Notre Dame's gain is, I know, my PrawfsPal Ethan's loss.  The announcement also means, I hope, that I will get to see the lovely and talented Nicole Stelle Garnett, who was on the hard-working dean-search committee, more often.)  

Once upon a time, when I imagined myself a potential scholar of Federal Indian Law, I had a chance to read and benefit from her important work in the field.  (I'm counting on her to bring me back up to speed!)  Dean Newton has a great reputation as an energetic, empowering, and creative dean, and I am looking forward to working with her, as she puts her many talents to work at making my law school the outstanding, distinctively Catholic, and (therefore) interesting place that it should be!

Some thoughts on the timing of the spring submission process for law reviews

It occurs to me that there doesn't really seem to be a good reason for law reviews to change over their boards in late Feb/early March, as opposed to mid-January. And there's an important advantage to all the players (the students and the profs who bow down to them) if the turnover occurred earlier: namely, it lessens the freneticism of having the expedite madness bump up so intensely against both spring break and, more importantly, exams.  Here's my thinking: my sense is that the sweet spot for spring submissions is usually around March 1.  Many friends of mine who submitted four weeks ago or more, however, are still in the "game" now, just as law reviews start to think about winding down due to increased student anxiety about upcoming exams. The situation is probably substantially worse for those who submit toward the end of the window, ie, around or after March 15th.

The fall cycle by contrast begins roughly speaking with the new school year in late August. This makes it a more orderly experience in terms of being able to get read at places without having to deal with the kinds of disruptions or shutdowns associated with spring break and exams/reading period. 

Am I missing something?  If not, why the heck don't we get the top reviews to agree in advance to do their turnover at the beginning of the spring semester, and that should probably get everyone else to move their turnovers to an earlier point in time also. Vitarelli: lead the charge!

Putting Expresso Out of Business?

John Doyle (the librarian par excellence at W/L) writes:

A new, free, law journal submissions system will be launched by mid-April. "LexOpus" will not simultaneously submit works to multiple journals. Instead, an author selects an ordered list of journals and the system makes the work available to each journal serially on a 7 day exclusive basis. If the current journal rejects, or the 7 days elapse, then the work moves on to the next journal in the author's sequence. A journal whose exclusive period has elapsed may still accept the author's offer, but the current journal has priority until its exclusive offer from the author is rejected or elapses. More information is at http://lawlib.wlu.edu/lexopus/about.aspx
Would authors have any interest in giving up simultaneous submissions?

My sense is that most of us benefit from the simulatenous submissions process so that the answer would be no. But I do suspect Expresso is capturing high fees that another school could undercut with a smartly run program. Thoughts?

Innovation in Legal Writing Programs...

Last year, Prawfs had a number of good discussions on various aspects of legal writing programs, including posts of who should teach legal writing, the components of a legal writing program, and an exchange over the use of 3L writing instructors. I thought I would return to the state of law school's legal writing programs, spurred by an email I received from Catherine Wasson, the Director of Elon's Legal Research and Writing Program about the 2008 Law School Survey of Student Engagement (LSSSE).

The 2008 LSSSE has some interesting things to say about law schools' legal writing programs and the law school curriculum in general:

In the crucial area of legal writing, the 2008 findings are more complex and unsettling. Nearly half of responding students reported that they have not had enough practice in developing their legal writing skills in situations matching or approximating real-world legal practice. At the same time, students reported that such practice-oriented writing assignments were particularly effective in enhancing their legal research and communication skills. So, while in aspiration much of legal education is starting to move beyond an exclusive focus upon “thinking like a lawyer,” in practice the schools generally have a long way to go to make those aspirations real achievements. * * * *

 

Innovation is essential to making sure the law school curriculum as responsive to the rapidly changing, increasingly complex legal environment. At the same time, effective legal training must be rooted in such timeless fundamentals as helping students acquire the strong conceptual, analytical, and writing skills demanded by the profession. Despite near-universal agreement on the value of these skills and competencies, legal writing, for example, is typically featured primarily in the first year, and viewed by students as a sidebar in their doctrinal classes.  The low value placed on writing is sybolized by the facts that relatively few legal writing faculty are tenured or in a tenure-eligible role and are often paid less than other faculty members.  Nonethless, good lawyers must be good legal writers; it is a skill that will serve students well as they transition to the practice of law according to results from the After the JD study.

 

In many ways, the observations of the 2008 LSSSE Survey reaffirms conclusions reached by the ABA Survey of Law School Curricula, the Carnegia Foundation's Educating Lawyers book and the Best Practices in Legal Education book, which have all urged law schools to adopt more professionalism and practice-oriented approaches to their curriculum.  Educating Lawyers particularly emphasized the unique opportunities for simulated practice in writing courses, explaining that the "teaching of legal writing can be used to open a window for students onto the full complexity of legal expertise."  Many commentators have picked up the call of the Educating Lawyers' recommendations as it relates to Legal Writing.  See, e.g., Erwin Chemerinsky, Rethiinking Legal Education, 43 Harv. C.R.-C.L. L. Rev. 595, 597 (2008) (urging first-year legal writing programs to focus on writing assignments "more likely to be seen by a larger number of students in their early years of practice.").

 

So my question.  What are law schools doing to reconceive the traditional legal writing programs?  Are schools moving away from the appellate brief and argument to structure classes around more practical problems that lawyers are more likely to see in their eary years of practice?

To get things started, Southwestern's legal writing program has for many years been at the vanguard of legal writing programs, and recent changes seem to really take to heart the calls from Carnegie, Best Practice, and LSSSE.  

 

Southwestern's program -- titled Legal Analysis, Writing, and Skills -- covers objective and persuasive legal writing and research, but also includes focused instruction on professionalism, statutory interpretation, client and witness interviewing, meet and confers, client counseling, email drafting, as well as advanced legal reasoning and case synthesis.  The program is taught by full-time dedicated faculty, who are either tenured or on long-term contracts, who have committee and voting responsibilities, and who are paid at rates among the highest in the country (for the benefits of this approach, see Jan Levine's comments to the earlier posts and the ABA's Sourcebook on Legal Writing Programs). The course is graded and is for six credits (three each semester). 

 

The faculty has also recently approved a new innovation that creates three-tracks in the spring semester.  Instead of just having appellate advocacy, our Fall 2009 entering students will have the opportunity to select one of three tracks: (1) negotiation; (2) trial/pretrial practice; or (3) appellate advocacy.  Each track will provide instruction on persuasive writing, but then will focus on either negotiation skills, pretrial litigation skills, or appellate advocacy skills.  The guiding idea is that the writing program should prepare our students for summer externships, jobs, and eventual graduation by including more real-world experiences. The plan -- although not yet fully formed/implemented -- is that these three legal writing tracks will lead into the school's three honors programs (the negotiation, trial advocacy, and moot court honors programs).  This seems exciting to me.  I'm aware of no other first-year legal writing program that provides students the opportunity to specialize or select a track.  I would be interested though in hearing if other schools are considering this kind of approach.

 

Students can then get advanced legal writing instruction through upper division advanced writing classes, a number of simulation/practical skills courses (such as pretrial civil practice, business contract drafting, patent drafting, drafting licensing, video game, technology agreements etc.), and ultimately conclude their law school career with a capstone course (e.g., capstones in Civil Litigation, Entertainment Law, Employment/Labor Law, Criminal Law, Mass Torts etc.).  This is in addition to traditional seminars. Each capstone course requires substantial writing instruction in simulated real-world experiences.

   

Tit-for-tat in the Law Review Submission World?

Today over lunch I heard about a very interesting form of self-help from a colleague (unnamed!). S/he mentioned that when law reviews fail to acknowledge receipt of the manuscript during the submission cycle, or receipt of the request for the expedite, s/he simply doesn't inform those schools of when the manuscript has been accepted elsewhere/withdrawn from availability.  Hopefully, we can create a virtuous circle where the law review editors click the Expresso box to confirm receipt and the authors won't be tempted to retaliate by clogging the pipeline...reactions?

Update: just to be clear, I'm not endorsing the retaliation, just describing it!

"Outside" Information in the Law Review Submission Process

Yesterday the NYT reported on the growing use of PDAs and the Internet by jurors in the midst of trial and deliberations.  Although sometimes the problem is information flowing out from the jury, in many cases the jurors are trying to do their own investigation beyond the parameters of the court.  This thirst for outside information seems natural:

Judges have long amended their habitual warning about seeking outside information during trials to include Internet searches. But with the Internet now as close as a juror’s pocket, the risk has grown more immediate — and instinctual. Attorneys have begun to check the blogs and Web sites of prospective jurors.

Mr. Keene said jurors might think they were helping, not hurting, by digging deeper. “There are people who feel they can’t serve justice if they don’t find the answers to certain questions,” he said.

Law reviews now have access to a lot more information about the articles submitted for consideration, for reasons similar to the juror phenomenon.  The Internet has made authors' biographical details easy to find, and has made this information much "thicker" in terms of resumes, SSRN drafts, news stories, and blogging.  (Think back to the biographical information available in, say, 1992, or even 2002.)  Given that ExpressO encourages the submissions of CVs along with articles, it would seem that law review editors are interested in this outside information and are making use of it.

However, there is something about this natural investigative urge that cuts against the Platonic ideal of the submission process. In the best possible world, the argument goes, the law review would simply consider the article itself and would make the review process anonymous to exclude all outside "noise."  That way, any biases based on the author's past work, institutional home, or political ideology would be excluded from the process.  The article itself would rise or fall based purely on its own merits.

I posted yesterday about the new input law reviews are seeking from their own faculty or even outside faculty as part of the submission process.  Most folks seem comfortable with faculty involvement, on the theory that more information is better and that professors can provide helpful guidance to students.  But law reviews are moving to this new model sporadically, and without much uniformity in terms of input or transparency.  Perhaps profs and law reviews could work to develop some sort of "best practices" for outside input as we move away from the "article and article alone" model.  And before we move away from it, are there aspects to the "article and article alone" model that we might want to keep?

Faculty Influence on Article Selection at the Law Reviews

I wanted to build on Dan's comments about the fascinating thread over at Brian's Leiter's place but then take them in a different direction.  What I found most interesting were the comments about faculty influence on the selection process.  Here are a few examples:

• from Elisabeth: "HLR and YLJ get multiple faculty reviews before publishing anything."
• from Brian Leiter: "[O]ne thing that is unclear is how much of a role in article selection faculty play at the elite law schools. They clearly play more now than even fifteen years ago, but is it really the case that any article published in Yale or Harvard or Chicago or Columbia is really a 'peer' refereed article at this point?"
• from L&E Scholar: "[S]omething interesting appears to be happening at Stanford. They sent me an econometric article they were considering (& I'm not in-house). Also, they asked me if I would agree to be on a standing referee list/advisory board for this kind of work. My respect for Stanford went up a lot after this since I see it as a push toward a real refereeing system . . . ."
• from Jeffrey Kessler: "I can confirm what is going on at Stanford. As of a few months ago, Stanford Law Review's new policy is to have all articles peer reviewed before they are accepted. (We had to make one exception because another school gave the author a one hour exploding offer.) Since this policy was put in place, most articles we selected have been reviewed by more than one professor, and we've made a special effort to reach out to experts at other schools. Faculty from across the country have been very gracious in giving us thoughtful, incredibly insightful commentary."

• from Frank Cross: "I think it's good what Stanford and other schools are doing, but its not peer review. I was one of those 'faculty from across the country' who commented to Stanford's law review on a submission. It wasn't at all the same as a peer review, in part because of time constraints."

I would love to get both descriptive and normative commentary on these developments.  On the descriptive side: How many law reviews are doing this?  Is it a formal or informal process?  Are written comments asked for?  Is the author notified of the process and/or the comments?  How influential are the comments on the law review?  Has any review gone forward in the face of a "no" from a faculty member?  And are there other, more informal methods of faculty involvement, such as when a faculty member from the home school sends over a submitted article with a positive note?

On the normative side: Is this faculty influence a good idea?  If so, what is the best method of implementing it?  How strong should the role of faculty be in the process?  How transparent?  Can "walking an article down" be considered a form of peer review?

Some more blather about "best journals"

The other day Brian Leiter trotted out his new favorite toy (condorcet-compatible voting tools) to do a ranking of the "best law journals." Brian editorialized: "is there really any legal academic who thinks the quality of articles in, say, the Harvard Law Review is really higher than the quality of articles inJournal of Legal Studies or Oxford Journal  of Legal Studies or almost any of the faculty-edited journals?  I find that quite hard to believe, but I am open to being persuaded otherwise."  There's a pretty interesting comment thread to this question-- interesting if you're a dork like most of this blog's readership.

Anyway, my sense is that even if the overall quality of articles in OJLS (which I have seen cited only a few times in my area--I think a piece by Paul Robinson and John Darley is the only one that comes to mind) or JLS (admittedly, a great journal) were higher than HLR or YLJ, it would be hard to say that they are necessarily the best journals to publish in for academics in American law schools.  The quality of the articles is only one valuable metric to judge. But visibility and accessibility are important too--a point conceded by some (including Brian) in the comments. Indeed, for a good while, I don't think these journals were on Westlaw (which is the primary though not exclusive research tool I use), which makes citation more difficult.  

Moreover, there is an important submission problem associated with the question that I don't think was addressed in the comments to Brian's thread, but which was highlighted to me by a certain FOP named Zoom.  Zoom asks: what peer-reviewed journals publish articles in the standard law review format (footnotes instead of parentheticaly references)? I think the answer is not many, which if true tends to support the view [Markel] made on the Leiter thread that there are different streams of people who write for the two different sets of journals. If you're a philosopher, and your preferred publication sequence goes something like Top Philo journal, JLS, middle tier Philo journal, JLA, then of course you write it with the parenthetical reference style.  But if your preference is JLS, HLR, YLJ, JLA, then you skip JLS b/c it's a pain in the ass to write two different articles based on citation formats.

Update: A couple things I forgot to mention. I don't intend to shill for tout  the student law reviews, but the talk that peer reviewed journals solve the "network" effects by being blind seems naive. I've been a peer reviewer for pieces that are allegedly blind, but b/c of ssrn and just being up on what people are working on, it's not blind. And I've also been the beneficiary of comments (again, allegedly blind) whose authorship is relatively easy to discern.  The latter is less problematic than the former because the former situation has the reviewer still get to perform favors for friends (or remove opportunities for antagonists!) in relatively small areas of academic writing. Moreover, there are some faculty edited journals that are not strictly speaking going through blind peer-review. They're faculty edited in the sense that faculty choose the articles.  That allows for both cronyism as well as nimbleness in a tight market.  That's not to say there aren't journals with better practices and better articles, but we have to be careful about generalizing too broadly about the benefits of one "system" over another.

Tri-4-Gey, and an update from Steve Gey

The folllowing is a press release that I thought would interest the academic legal community as well as the numerous fans of Professor Steve Gey outside the professoriate. I am also posting Steve's most recent update, which is both, and again, heart-breaking and inspiring.

Warriors against ALS Continue Battle for Ailing Professor

 

For the third consecutive year, a group of rowdy devotees are raising money on behalf of their favorite law school professor as he combats a fatal illness. Their story is one of love for a great man, dedication to a cause, and hope for the future. Competing in a triathlon is not easy, and fundraising during an economic crisis has proven difficult. However, knowing that every cent raised brings happiness and meaning to their hero’s final years keeps this team swimming, biking, and running to the finish line.  

 

In December of 2006, the colleagues, students, and friends of Professor Steven Gey received devastating news: he had developed a particularly aggressive form of amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig’s Disease. Except in very few cases, the victims of this cruel disease endure slow paralysis and, eventually, death.

 

For those who know him, it is difficult to think of Professor Gey as being mortal. Sporting a thick Groucho Marx mustache, his explosive personality and endearing charm have made him a favorite at Florida State University’s College of Law since he first began teaching there in the 1980s. Blessed with the ability to speak almost as fast as he is able to think, Professor Gey’s unorthodox and impassioned teaching method has cultivated generations of students entirely devoted to him, whether or not they agree with him. As one former student, Sean Park, put it, “time was always short in his daily schedule, but whenever you had his attention, the spotlight was on you.”

 

It has been just over two years since his initial diagnosis, and the disease is taking its toll. Professor Gey jokes that being hand-fed and spending all day, every day, in pajamas makes him “feel like Hugh Hefner without the baby rabbits.” But this humor belies the truth: ALS has ravaged his body. Always wafer-thin, his weight dropped to a paltry 90 pounds at one point during 2008, prompting him to joke: “I won’t have the chance to die. I’ll just float away.” But even now, after losing control over his limbs and lungs, the kinetic fire in his eyes continues to burn mischievously. His abilities to motivate and influence those around him—the same characteristics that make him a powerful professor—have inspired a fundraising effort of monumental proportions.

 

After learning of Professor Gey’s illness, many of those who love him chose to proactively channel their grief into raising awareness about ALS. In the spring of 2007, a small group of students led by Atlanta-based lawyer Kristina Klein, a graduate of FSU law school, initially set out to raise a couple thousand dollars towards ALS research by competing in the Red Hills Triathlon in Tallahassee, where Professor Gey still resides. This modest goal snowballed into a three-year philanthropic endeavor. Over $40,000 were raised in 2007; the following year, the team doubled in size and raised another $60,000.

 

This year, the 60 members of the Tri-for-Gey III team aim to bring the total to $150,000—no small feat in the midst of a global economic crisis. With less than three weeks left until the April 4^th triathlon, they are still $30,000 short of their goal, but they hold out hope that they will succeed.

 

Hope is all they have left.

 

The members of Team Gey are diverse. They are Christians, atheists, and Jews; they hail from Norton, Kansas, and Bowling Green, Kentucky. Very few are true athletes. To the contrary, many are doughy white-collar workers who, until recently, had not seen the inside of a gym since leg warmers were in style—the first time. Yet everyone who started the race succeeded in making it across the finish line. This determination evidences the formation of a positive-feedback cycle based on devotion and a sense of responsibility: the Team Gey members continue to be inspired by Professor Gey’s staunch will to live, which is in turn bolstered by the team’s determination and constant outpouring of love.

 

Orlando-based lawyer Melanie Shoemaker Griffin, a three-year Team Gey veteran and former student of Professor Gey, refers to his powers of motivation as “heroic.” She hopes that “as a result of Team Gey's efforts, I will see a cure for ALS found during my lifetime and know I played a small part in saving millions of lives.”

 

Another competitor, Atlanta-based lawyer Ranney Wiesemann, has never met him, but the devotion of co-workers inspired her to join the team. “As long as Professor Gey continues his courageous fight against ALS, I will be right there beside him,” she says, looking forward to the opportunity to meet him after this year’s triathlon.

 

It is no small wonder, then, that Professor Gey has drawn two conclusions from his experience with ALS. First, “fatal diseases are a bummer, but second (and more important), people's responses to fatal diseases make the human race look downright respectable.” In a recent letter to the team, he expressed regret that “I will never be able to repay any of you for what you've done. But please understand that if you could cash out gratitude, you would all be rich beyond belief.”

 

And yet his happiness is all the riches that the members of Team Gey seek.

 

Professor Gey’s story is a timely reminder that the ongoing debate regarding stem cell research has a very human face. Many argue that degenerative disorders such as ALS can be treated, if not cured, by such research. Never one to shy away from controversy, Professor Gey is a strong proponent of stem cell research and applauds President Obama’s recent reversal of the ban put in place by the previous administration.

 

Some who adore Professor Gey abhor the use of human stem cells for research; others roundly support it. Both wish that he could be cured. Reinforcing his legacy as an educator, Professor Gey continues to compel those who love and respect him to address and fully analyze a sensitive issue that, for the sake of comfort, they may have otherwise ignored.

 

Back in December of 2006, after she first proposed the idea of the Tri-for-Gey, Kristie Klein made a pact with Professor Gey: he would keep living as long as the team kept competing in the triathlon. He has thus far held up his end of the bargain and continues to insist that the team live in the moment. Just yesterday, he wrote: “For now, let’s all celebrate the fact that I’m still living and you are all still crazy.”

 

Perhaps they should also celebrate that their fundraising efforts have produced an immortal gift for future generations of ALS victims: hope.

 

Donations can be made in Professor Gey’s name at www.active.com/donate/Tri-For-Gey-III. Professor Gey personally receives an update every time a donation is made, and all proceeds will go to ALS-Therapy Development Institute, the world’s largest ALS research center.

 

 

Select Quotes from Professor Gey in letters to the Tri-for-Gey team:

·         “The basic plan now is the same as it was a year ago: figure out how to deal with an ever-diminishing number of body parts, until some doctor trips over a cure to ALS while trying to develop a new and improved version of Rogaine.”

·         “It's probably safe to say that I'm on track to fulfill the usual prognosis for all ALS patients, which basically gives me the life expectancy of a hummingbird. I've just decided to act as if that's not the reality, and I'm happy to say that all of you are helping me perpetuate my self-delusion.”

·         “If you crazy people are still willing to get up at the crack of dawn and jump in a frigid lake, and then run and ride yourselves silly, then I may as well try to stick around to see what you all look like in wetsuits.”

·         Regarding his new-found freedom to watch French movies: “Indeed, my present circumstances have given me a whole new perspective on the nouvelle vague. I now find Jean-Luc Godard’s Weekend oddly comforting. So you see? This whole fatal disease thing isn't all that bad after all.”

 

Informational Websites:

• Tri-for-Gey Fundraising website: http://www.active.com/donate/Tri-For-Gey-III
• Tri-for-Gey III Facebook page: http://www.facebook.com/home.php?#/group.php?gid=39048938733
• Tri-forGey II Facebook page (photos from last year’s triathlon available): http://www.facebook.com/home.php?#/group.php?gid=4961478062
• St Petersburg Times article featuring his students’ devotion: http://www.tampabay.com/features/humaninterest/article463230.ece)
• Professor Gey is the author of a myriad of controversial articles (http://www.law.fsu.edu/faculty/profiles/gey/vita.pdf)

 

Please direct any questions to Julia Breslin (jibreslin@gmail.com) or Melanie Shoemaker Griffin (mshoemaker@deanmead.com). 

2008 Newsletter for AALS Section on New Law Professors

In my (now-expired) capacity as Secretary for the AALS Section on New Law Professors for the 2008 calendar year, I had the privilege to put together the section's annual newsletter, which includes fun little pieces about tenure, name-calling (the good kind), and reprints. For those who are interested, I thought I'd post a copy here!

Are Workshops on the Chopping Block? Some Modest Proposals

Over at the Glom and at Co-Op, Christine Hurt and Darian Ibrahim raise the concern that law schools might cut back on workshops to save some money during these tight-fisted times. I agree with Christine's assessment of the many benefits of workshops, and I know I'm always grateful for the opportunity to hit the road and present some marginally less-than-inchoate ideas about punishment and such. As I mentioned on the Co-Op post, my experience has been generously enhanced by the rich and amazing workshop culture at FSU--even in many of the instances where I haven't had the chance to read the paper by the presenter. I do think, however, that the quality of conversation (at least from the presenter's point of view) is immeasurably better with an audience that has read the paper or at least a good portion of it, and I'm a bit puzzled as to how to increase the likelihood of having that happen.

So here's my first "modest" proposal for schools that are strapped: perhaps schools should qualify their support for the workshop in these economic times by underwriting the cost of lunch for those who read the paper in advance and force those who are coming to listen w/o having read to pay their way (e.g., 5-7 bucks) or bring their own lunch.  It could run on the honor system but it might reduce the "free lunch" culture.

And here's a second suggestion: adopt something like the Prawfsfest! cost-sharing model. Most schools are keen to have their faculty go out and present their work in an ambassadorial role, especially if that will improve the quality of the paper. Why not have the presenter's school pay a portion of the expenses of the workshop? E.g., the "host school" would pay for the lunch workshop food, and maybe the dinner, but the presenter will pay (using his school's budget) the airfare/hotel--or something like that. Perhaps the presenter's school will also require the presenter to pitch the paper at her/his home school first before taking the paper on the road...that way it's a two-fer and there's less likelihood the presenter will embarass the school...

Ok, this is probably paternalism gone too far. I'm going to impose a time-out for myself. And btw, a note to my colleagues wondering if I read tomorrow's paper for the workshop: I did read the intro so far, but in any event, do as I say, not as I do :-)

Law Review Submission Season Stories of Inspiration: Written Apology from YLJ!

Two years ago, the editors of The Yale Law Journal actually apologized to me, in writing, for not publishing my article.

Perhaps they will make amends by publishing my most recent piece.  Indeed, they said they hoped to see it - which has kept me going:

Dear Prof. Foley,

Thank you for submitting your work, Guantanamo and Beyond: Dangers of Rigging the Rules, to The Yale Law Journal.  We are sorry that we will not be able to publish it.  Each year, we receive many excellent submissions from which we can select only a handful for publication. We appreciate having had the chance to consider your manuscript and hope you will continue to submit your work to us.

Sincerely,
The Yale Law Journal

A for Effort?

The Times has an article on the attitudes of college students that if they put in the time and real effort in class (doing all the read, showing up for class), they should get at least a B, regardless of the quality of their papers or exams. A recent study found that 1/3 thought showing up for every class was sufficient for a B and 40 % thought doing the reading (presumably while also showing up) was enough.

A keeper quote from a senior at the University of Maryland:

If you put in all the effort you have and get a C, what is the point? . . . .If someone goes to every class and reads every chapter in the book and does everything the teacher asks of them and more, then they should be getting an A like their effort deserves. If your maximum effort can only be average in a teacher’s mind, then something is wrong.

The story deals with undergrads, but surely the same attitudes have or soon will trickle into law schools. Apparently, the legal writing listserv has been talking about this all day today, with one commentator capturing the issue as it relates to law school: "I think putting in a lot of effort should merit not getting sued for malpractice. What else is there really than the effort that you put in?"

I have not yet had a student dispute a final grade on these grounds. But I have had a student demand to know why he received no credit for class participation (which is worth 10 % of the final grade) when he was in class and prepared every day--but never spoke once the entire semester. He did not quite seem to understand that a) you don't get credit for showing up, since that is the independently required as part of the class; b) it's not entirely clear that you "participated" in class if you never actually, you know, participate; and c) even if doing the reading were enough, how am I supposed to know that you've done the reading if you never speak.

Crazy Week

I would have posted more this week.  But it was a little hectic at my law school.

FIU Dean Search II: Oops

In my earlier post on the news accounts of the FIU dean search, I likened a mainstream media accounts of a law dean search to accounts of judicial proceedings--ripe for context to be lost in translation. I was more right than I thought.

It turns out that the ten people mentioned in the newspaper stories are not finalists for the job in any sense; those were ten candidates that were discussed during that meeting (which was attended by a Herald reporter). Other candidates also were discussed. Other candidates will be discussed at the next meeting. And Alex Acosta, the outgoing United States Attorney who was the focus of both newspaper stories, was at the top of the list because the list was alphabetical. So, contrary to what the media reports suggested to some observers, we actually were not doing anything "strange" compared to other dean searches, such as presenting twice as many finalists or identifying and highlighting one person as a "leading" candidate early in the process. The reporter apparently completely misunderstood what had occurred at the meeting.

The committee is taking steps to publicly correct the (mis)perception, to preserve the efficacy and workability of the search and to ensure all candidates (mentioned in the article and not mentioned in the article) that no firm decisions have been made.

Update:

The text of the public statement is after the jump:

Search for new College of Law dean moves forward

MIAMI (Feb. 12, 2009) - The search committee charged with finding FIU College of Law’s next dean discussed a preliminary list of candidates this week.

This list, published in several media outlets, is not a final slate of candidates. In future meetings, the committee will consider these and other candidates and will continue to solicit applications for this position until it is filled.

“We have, and continue to receive, applications from throughout the country to lead this young and promising law school,” said College of Medicine Dean John Rock, who is heading the search committee. “We will not settle on anyone until we are absolutely certain that we have chosen the right candidate.”

The next meeting of the search committee will be on Wednesday, Feb. 18 at 9 a.m.

The current dean, Leonard P. Strickman, came to FIU in January 2001 as a professor and founding dean of the College of Law.

Under his stewardship, the College of Law received accreditation in the fastest time allowed by the American Bar Association. Graduates have passed the Florida Bar Exam at rates exceeding the statewide pass rate and at the most recent examination, in July 2008, FIU graduates passed at the second highest rate when compared to graduates from all law schools in the state of Florida.

Strickman will remain a member of the law faculty after he steps down as dean this summer.

Comments on FIU's Dean Search

As much of the country seems to now by know, both South Florida newspapers yesterday ran stories yesterday reporting the ten candidates for FIU's deanship (what I have been calling the "medium list"). The stories focus (in headline, lede, and content) on one name--Alex Acosta, the outgoing United States Attorney for the Southern District of Florida, who is described in both stories as a "leading" candidate. He also is listed first among the names, although the list is alphabetical, further demonstrating that alphabetical order is not neutral. Dan Filler at The Faculty Lounge wonders if this could skew the search--by giving Acosta coverage in the mainstream media, it converts him into a favorite. Dan also suggests it could cause political problems for us if he is not hired.

I take mainstream media coverage of a dean search much as I would take most mainstream media coverage of judicial proceedings; I generally find the latter unwatchable because so much is reported incorrectly or inaccurately. And I think the same of these articles. Both stories are trying to convert a niche event (making an academic appointment) into something for mainstream consumption (a political appointment potentially involving a well-known local public official), and as with trial reporting, something often is lost in the translation. In fact, I am pretty sure the papers would not have reported the story at this point but for Acosta's name. I do not believe that mistranslation will affect how our faculty, search committee, or (hopefully) provost will act in the search such that it skews the outcome. I would agree that it might skew some non-academic responses to the outcome--but that is not unlike what happens with media reports of court cases. Acosta obviously also is a unique candidate, which makes his inclusion of some public interest. But what is not discussed in the story is what is relevant to the academic niche (i.e., our faculty and students) that really cares about the story: Acosta brings a very different set of skills and experiences to the position, so his inclusion, along with other experienced academics, suggests something about multiple thought processes as to the school's institutional direction.

And, in the meantime, the discussion over the admittedly strange news stories obscures the fact that we have a pretty good group of potential candidates as the search committee starts to pare them down. Since I do not have to do any real work to do on this at this point, I must admit to a sense of excitement and optimism at the prospects.

I aspire to Charlie, but I've got some Oprah in me.

During the hiring process, my least favorite question -- usually asked by students -- was "What's your approach to teaching?"  I always wanted to respond, "What would you like my approach to teaching to be, friend?"  Even today, I'm not sure how to describe my approach -- a little bit of lecture, some light-contact socratic, a song, a dance, whatever works.  After all these years, though, I've finally found an analogy that works for me.

By way of background, since Ted Koppel retired, the object of my biggest man crush has been Charlie Rose (besides Eddie Vedder, of course).  While watching last night, I realized one basis for my admiration: he actually embodies what I hope to accomplish in the classroom.  He creates space for a conversation, not just an interview; he is a great listener (rather that formulating my next point while a student is talking); he encourages participation from everyone at the table (rather than relying on a few "go to" students); he is not afraid to challenge his conversation partners when they try to punt, but he always does so with grace and class (he doesn't make them cry); he is funny, but not in an insecure stand-up comic sort of way; he can make even painfully boring topics seem only moderately boring.  Now to be clear, I aspire to be Charlie Rose in the classroom.  I'm not there yet.  On most days, I fear that I'm exhibiting a parade of horribles from across the talk show host spectrum.  Read on for the heart-wrenching introspection . . .

I confess to having some Oprah tendencies in me: pedagogy as self-revelation, sharing stories that entertain and affirm the power of the law student spirit.  Trotting out a good human interest story (i.e., photos of my kids) when the class is about to turn against me.

At the same time, I occasionally like to rattle my students out of their comfort zones, pushing them through real-world examples that call their settled views into question.  Jerry Springer has gotten rich by doing the same thing, though I hope that mine leaves students with some lasting lessons other than shock and nausea. 

I don't have the abrasiveness of Rosie O'Donnell (I hope), but I do need to make sure that, when I disagree with a student's remark, I have a legitimate pedagogical objective for that disagreement.  I don't pick fights, but I do like to disagree. 

One host who thankfully does not show himself much in my classroom is the early David Letterman, whose grouchy sarcasm made the guest not so much a conversation partner, but the object of scorn.  The more recent Letterman's slightly bemused sarcasm is not foreign to me, but I reassure myself that it can motivate learning and keep classmates engaged without alienating the recipient. 

The talk show host I resist most in the classroom -- perhaps because he can rear his big-jawed head now and then -- is Jay Leno: not wanting to make anyone feel uncomfortable, keeping things light (and lightweight). 

I don't spend much time worrying about Craig Ferguson, whose "dirty old man" schtick could actually threaten my job security if he saw the light of day. 

Eureka!  I think I've found a workable framework for articulating our diverse approaches to teaching.  Much more informative than the socratic / non-socratic blather.  So which talk show host are you?

Four Reasons Empiricism Won’t Fade Away This Time

Although no one has “talked me down” from my bull market hypothesis about the historic trends in empirical movements in law, I believe that this third period of interest will be far larger and more enduring than either of the previous two even if the economy takes a very long time to recover from its current malaise.  My arguments in no particular order include the following: Phd-ification of the professoriate; the coming of empirical lawyering; business law; and multiculturalism.

At the outset, I should emphasize that I mean empirical legal studies in a far broader sense than is meant by the journal or the association that bears those names, and includes not only the qualitative social science types that are still feeling marginalized in those venues, but also scholarship influenced by the humanities and cultural studies.  In short, empirical on my account is not a question simply of methods but of the location of legal knowledge outside the boundaries of formal law and its institutional practices.

Phd-ification
Readers of this blog with long memories will recall that I’m not a proponent of making the Phd an entry requirement for law teaching.  One of the things that makes contemporary law schools so interesting in my view is that the standards for what counts as a legal scholar have never been more heterogeneous.  However, there are innumerable good reasons why a Phd provides advantages to people seeking law school teaching jobs and their numbers have been growing steadily for several decades.  What is essential is not that these Phd-eed scholars will define non-empirical work as outside the canon, but that their intellectual interests and sensibilities create an enduring base for empirical scholarship inside the legal academy.  In contrast, the Realists lacked not only Phd’s (as did many of their social science colleagues) but that they lacked any real training or skill in social science (or the humanities for that matter).  The “law and society” scholars of the 1960s, did have Phd’s (in many cases) and solid social science tool kits, but they were largely based outside of law schools and only penetrated in a few distinct schools (Wisconsin, Berkeley, Buffalo, Denver, Miami, perhaps a few others).

Empirical Lawyering
As I argued in a UC Davis Law Review article on the 40th anniversary of Katz v. United States last year, for the first time we are approaching a time when empirical skills and knowledge are sufficiently available to lawyers themselves that the business of law outside the law schools is becoming strikingly more empirical.  The Warren Court’s doctrines invited all kinds of empirical lawyering, but the supply side was not there.  Today it is (beginning) to be.

Business
Both the Realists and the Law & Society movement had a decidedly left and social justice orientation.  This was scholarship and advocacy with a mission to improve law’s relevance to the poor, the marginalized, and those generally who find themselves “against” the law in all too many circumstances.  Today, there is little doubt that the center of gravity in empirical law is coming to be the business curriculum.  While it is easy to drop or marginalize social justice scholarship and pedagogy (especially during economic downturns), the same is not true at all for the business curriculum.

Multiculturalism
Throughout the 20th century, law became steadily more doctrinally porous to consideration of social circumstances and contexts (think of the steady march of “manslaughter” doctrine from its common law set of fixed forms of mitigated killing to a generalized consideration of emotional disturbance).  This could be done with little actual presentation of empirical evidence about those circumstances through the sleight of hand worked by the magical word “reasonable.”  So long as judges could get away with consulting their own lived experience to decide what was “reasonable” (an empirical study with an “n” of 1), there was no real opening for empirical advocacy.  This magic trick was supported by the continued cultural hierarchy that place white Protestants from northern European backgrounds at the top of virtually all social and economic ladders in America (as true in the 1960s as it had been in the 1920s).  As the multicultural make-up of the US (and other peer societies) becomes undeniable and irreversible, tolerance for allowing judges to use their own cultural assumptions as a knowledge base about social context is collapsing.  The well-equipped lawyer of the near future will need not simply to be able to consult social science but to bring a sociological imagination to their lawyering (whether litigation or transactional).

Would Phil Areeda have been my facebook friend?

I've been hanging out for the past five years over at Mirror of Justice, where emotions run high in rollicking discussions of all things Catholic, legal, and theoretical, and for a much shorter period of time at Legal Ethics Forum, where emotions run significantly lower in discussions of all things Model Rulesish.  It's nice to hang my shingle out here for a while where, as I understand it, the field of inquiry is wide open.

Ideally, I should have had the foresight to prepare a whole pipeline of witty, insightful posts for my time here.  I haven't.  I've been preoccupied by my venture last week into the world of Facebook.  As a friend of mine remarked, FB simultaneously elevates and trivializes our relationships.  Gone forever are the days when we could sing along wistfully with our beloved Wilburys, "Maybe someday down the road aways, you'll think of me and wonder where I am these days."  Odds are, they know where you are these days, and they know what you had for breakfast.  Curiosity is satisfied, but the mystery of it all is bludgeoned to death in the process.  FB angst is old news to most of you, and I'm sure that there is an entire section of the MLA convention devoted to navel-gazing scholarship on the FB experience.  But bear with me, for I do have a PrawsBlawgable question about all this after the jump. 

What does FB mean for the professor-student relationship?  I'm not talking about whether the law school should use FB as a professional networking venture; I'm talking about what students know about you and what you know about your students.  I still base my image of the law school professor on Phil Areeda, who I'm certain would have had me arrested if I had dropped by his office to chat about the weekend.  Even when I started teaching at St. John's, a senior colleague (whose attitude did not, I learned, reflect the prevailing sentiment of the faculty) warned me that, given my age, students would try to become friends with me, and that I should run screaming if any approached me outside class. 

And now what have I become?  Going out with students for a beer, fielding a flag football team, and playing basketball with students has always made me an enthusiast for the friendship that dare not speak its name, but now I've taken it to another level -- I'm FB friends with my students.  I'm all up in their business, and they're in mine.  Is it wrong?  Is it a concern?  Do any other faculty FBers deny student friend requests?  Do you keep them on a separate friend list with more limited access to your page?  At least for me, the notion of keeping a mysterious distance between students and myself was a non-starter, but have I (or my students) lost something in the process?  WWPAD?  (What would Phil Areeda do?)

Law Review Submission Season

Has it begun?  It's probably a bit early for Redyip, the great bird of the gods of Zarcon, to send its glorious signal.  But have folks begun submitting?  And have reviews started reviewing?  I've heard rumors in the past that the submission season has crept up to late January.

Developing a law faculty: diversify, or build on strength?

I guess I held out pretty well on my New Year's resolution to stop blogging. But now that I've fallen of the wagon, I hope to start posting more again.

Anyway, as a member of my school's appointments committee this year, I've been thinking about how a law school should set its general agenda for hiring. Of course there are a lot of factors to consider, but what I'd like to focus on is how a school can best improve itself as a producer of scholarly writing. (Schools might do this out of a desire to improve the substance of their scholarly output, or a desire to improve their reputation, or both.)

My particular question is this: should a school pursue "breadth" or "depth" in its faculty? Is it better to have a faculty that represents a boradly diversified portfolio of interests, subject areas, methodologies, ideologies, etc., or to have more uniformity along one or more of these axes, thus developing a core strength or a "personality"? If the second of these, should the school simply build on its existing strengths to solidify a comparative advantage, or should it try to anticipate future trends?

The "depth" or "concentration" model makes some degree of intuitive sense, since having several faculty members with overlapping expertise, or using similar approaches, can create synergies that might make their collective work better than otherwise. (On the other hand, modern communications technology might obviate the need for such people to be in the same location.) Certainly some top schools are "stacked" in specific subject areas, and some other schools (e.g., George Mason) seem to have done relatively well for themselves by specializing to some degree. U of Chicago might be an example of the benefits (reputational or otherwise) of having a "personality," though it also seems to me that Chicago's faculty is presently more diverse in various ways than the "Chicago school" label suggests, and maybe after a school has established something like the "Chicago school" identity (real or perceived), it can have a hard time stepping out of its own shadow. And perhaps it's hard to be an "outsider" at a school with a large contingent of people working in a certain area or doing things a certain way, or "insiders" might become a coalition with disproportionate political clout they may not wield to the school's benefit.

On the "breadth" side, a school might specifically feel the need to have "coverage" in a scholarly area (not just a teaching area) where it currently lacks a presence -- not only "we need someone to teach Property," but "we need a law and econ person," or a critical race theorist, or what have you. I sometimes hear people on my faculty expressing views of this general sort, though they don't always agree on what the holes are that we need to fill. Of course, this approach might create positive spillover too, if one person's work benefits from the insights or critiques of someone with a distinct view or approach. (But as an empirical matter, how often do people share their work with colleagues in completely unrelated fields? I observe that happening more with junior faculty than with more established scholars, though I'm sure it varies depending on schools and individuals.)

Do other people have thoughts about this? And do your schools' faculties have conversations about hiring at this level of generality or long-range thinking? I get the sense that for a lot of schools, the hiring process is more ad hoc, responding to (perceived) immediate teaching needs, among other things. Are resource constraints, or the likely levels of disagreement among faculty members about these general issues, such as to make the larger conversation a waste of time?

Also, is either model noticeably better or worse in terms of students' educational experience? Maybe students benefit from exposure to intellectual diversity, but maybe they also benefit by self-selecting into an institution that focuses on the subjects, skills, etc., that they want.

What makes for a good Associate Dean for Research?

Over at the Faculty Lounge, Danny Sokal writes:

At the AALS annual meeting, I had a a chance to catch up with friends and compare experiences across schools.  From our perspectives, perhaps the most important person on the faculty for the untenured is the Associate Dean for Research.  A good Associate Dean does more than send you emails about upcoming conferences and research grant applications.  At the University of Florida, my Associate Dean sits down with junior faculty on a regular basis to go over research agenda, provides significant comments on drafts, brainstorms on organization of papers and works very hard to ensure that we progress as scholars who can balance between reaching specialists in our field and engaging with a broader scholarly community in our writing.  The sense I get from friends at other institutions in that there is high variance in how hands on the Associate Dean is and the effectiveness and availability of their Associate Dean.  I suspect that if one were to do a longitudinal study of productivity and impact of junior scholars, one would find a correlation between a strong Associate Dean for Research and success in the scholarly enterprise.

It seems perfectly legitimate for ADR's to be involved in junior mentoring, but for what it's worth, I pretty much doubt empirical claims (which, to be clear, are not made by Sokal,) that a strong ADR can "fix" otherwise weak junior talent or that a weak ADR can stunt the success of otherwise strong junior talent. FSU's own ADR, Jim Rossi (visiting at Harvard this spring), has played an extraordinary role in intellectual life and institution-building at FSU, but I don't think anyone, including Jim, views the ADR's role here as encompassing the kind of intense mentorship that might be going on elsewhere.  

That said, in service to my ongoing quest to figure out best practices for law schools, I'd be curious to hear thoughts by ADRs or others of what's working and what's not. Does anyone have something to add to James Lindgren's seminal article on cultivating research and intellectual life, , Fifty Ways to Promote Scholarship in 49 JOURNAL OF LEGAL EDUCATION 126-142 (1999)? What's changed in the ten years since that piece appeared, aside from the appearance of blogs?

New Semester, new ideas

Just back from a fascinating weekend in NOLA, where, among other things, I attended much of this amazing Black-Jewish dialogue group. I came home with a cold, an abiding appreciation for Black Catholic masses, and a belly full of beignets. Clearing out my inbox this morning, I just stumbled upon Simon Stern's thoughtful draft syllabus on law and literature, which he helpfully posted on SSRN here. I know that in the past we've posted some syllabi here on Prawfs under the research canons project. That said, I think it's great that Simon (who now teaches in my hometown of Toronto (pronounced Tchrano)) has uploaded to SSRN his really neat syllabus, which includes HLR notes by Jeannie Suk and Prawfsfest MVP Dave Fagundes. 

If you can suggest a link to a "quirky" course syllabus in the law school curriculum, ie, one that integrates readings from a variety of areas, please share it in the comments. And feel free to nominate your own syllabi in the comments or upload it to SSRN if it's yours.

Empirical Legal Bulls?

I've been thinking recently about the parallels between the three periods in which empirical research on law and legal institutions seemed to reach particular peaks: the mid '20s, the mid '60s and the period that began in the late  1990s and may have ended now.  Surely somebody has noted that these were all periods of bull markets on Wall Street (my obsession with the election meant I read few legal blogs in 2008 so help me with links).

The relationship may be spurious but it has a certain logic.  At least compared to library research, empirical research is expensive.  Bull markets mean that institutions that live on endowments, like foundations and universities, have lots of money to invest in academic research.

The 1920s are particularly clear in this regard.  As Jack Schlegel shows in his great book on American Legal Realism and Empirical Social Science, the realists were enabled by intensive competition among elite law schools and universities, and the ability of foundations to at least consider contributions that are huge by contemporary standards. For example, the Johns Hopkins University brief experiment with a non-law school research institute in legal studies, was pitched to the Rockefeller Foundation with a request for an endowment grant of 5 million in 1928 (roughly 60 million in 2007 dollar).  The Foundation balked but expressed a willingness to spend 1.5 (about 24 million).  Law schools were flush as well.  Cycling between Yale and Columbia, several realists found their salaries rising to the then stratospheric salaries of 10, 12 or even 15 thousand dollars a year (122 to 182 thousand a year in 2007 dollars).

From the mid-1950s through the mid-1960s, several foundations, including Ford and Russell Sage, pumped millions into major universities like Berkeley, Northwestern, and Harvard to launch law and society centers and programs.  Law schools and other university units, were once again bidding up the salaries of empirically oriented scholars, intensified by the massive expansion of higher education in those years.  While not as bouyant as the 1920s, this  period was also one of strong performances on Wall Street,

Our own recent period of intense interest in empirical scholars and scholarship has also gone along with a roaring Bull market (this one apparently every bit as volatile as the 1920s).  New innovative programs (like Hopkins in the 20s, or JSP in the '70s) are being launched and salaries have been bid up.  Does Black September 2008 signal an end to all that?

Not so quick.  First, it was more than Bull markets that fueled empirical peaks.  These were also periods characterized by the emergence of new industries and markets that produced new demands for governance (and new questions about the adequacy of laws), social movements producing new demands for legal reform, and relatively activist administrations in Washington (Hoover in the 20s, Kennedy and Johnson in the 60's, Clinton and Bush in the 1990s and 00's),  These factors may drive growth even after the bulls stop running on Wall street.  In the 1930s, many of the empiricists drifted out of the academy to participate in the New Deal, and Obama's New New Deal may be just in time for such a transfer.

But two reasons lead me to believe this current empirical wave will be more enduring.  First, the cost of empirical research is expensive but much less than was true in the '20s, when computers did not exist, or in the 1960's, when they were hugely expensive to access.  Second, unlike the previous periods when law schools opened up to empirical work, this wave has been generated largely internally by the emerging scholarly norms of the professoriate itself (rather than ambitions of foundation or university visionaries to change the faculty).  

Fantasy Prawfs

A few years ago I sat down to write a little Green Bag-esque article where I planned to set out some proposed rules for a fantasy law professor league, based on the popular fantasy sports leagues that lots of people play and can't ever stop talking about--fantasy baseball, fantasy football, fantasy scrabble, etc. etc.  (my own fantasy scrabble team is taking a huge hit this year, and I blame it all on Edley's recent troubles, but that's something for another post.)  Sadly, I wasn't able to come up with anything satisfactory, and so I shelved the project.

Now that I've started hanging out in the blogosphere, I thought maybe I'd try to revive the idea and see if my fellow blogospherians can help fill out the details.  There are at least two major issues that must be considered: (1) what are the key stats; and (2) what constitutes a team?  On #1, citation counts, SSRN downloads, publications, conference appearances, committee assignments (weighted to reflect more onerous assignments), and teaching evaluations would be likely choices, if indeed the data on these things are available (the latter would be made a lot easier if more students would start using the rate my professor website--indeed, perhaps that website could be brought on as a sponsor).  On #2, maybe each team would consist of one public law prof, one law and econ prof, one historian, and one crit, or something like that.  I'm very open to ideas on this, and I hope you'll share them in the comments.