PrawfsBlawg

Greetings Fellow Prawfs!

Thanks to Dan for the invitation to guest-blog at Prawfs for December.  Once the email reminding me that the time for my gig arrived, I had a bit of trepidation about whether I'd have anything to say.  After all, I'm stepping into the shoes of some insightful UGA colleagues and good friends at other schools who post here.  It's a good thing that exams came and inspired a comparison I thought I could share.

Everyone I know hates exams--prawfs hate writing them and reading them and students hate taking them.  I know of people who have experimented with different forms of evaluation to reduce the stress on students, and these usually come at the cost of increased work to the instructor.  I don't know of institutional rewards for law prawfs who evaluate students particularly effectively other than the satisfaction they get from it or the sense that their students will gain additional skills and knowledge from the preparation and exam process beyond just studying for a regular exam.  There are certainly punishments for those who cut corners on this part of the job by turning in grades late or grading so poorly that the administration has to step in.  On the other hand, I've not heard of a school that has an award or prize for, say, the best written exam or the most effectively graded exam.

It occured to me that much regulatory oversight is plagued with the same problem.  I'm most familiar with environmental regulation, but I'm sure this effect occurs in other areas as well.  Most members of the regulatory community comply to avoid negative consequences (fines, prison sentences, etc.), but they react to dealing with their environmental compliance people the same way that professors react to writing and grading exams--work that needs to be done but that is by no means pleasant or rewarding.  Environmental regulation could use more rewards as incentives for compliance, and some have been implemented.  Are there any lessons we can borrow to create positive incentives for writing and grading exams?

"What section are you in?"

Since joining the Boston College Law School faculty a few months ago in July as a first-year law professor, I've been asked that question on six occasions. And I don't like it. But I'm not quite sure what to do to prevent it from happening again.

The first time was at our annual welcome reception for students in August. Wearing a suit, as I do every day, I greeted 1Ls with a handshake and a hearty "welcome!" (or "welcome back!" for 2Ls and 3Ls). As I was making my way over to the food--which is always one of my very first stops at any social function--a student introduced himself to me and asked if we were in the same 1L section, mistaking me for a fellow student. This has happened several times since then, but not just upon meeting students. Some law school staff and faculty have made similar remarks.

Now, I suppose I do look young. Certainly not this young but young enough to look like a 1L, whatever that means in an era when the age of entering students can range from 19 to retirement.

So what should I do to send an appropriate signal to others--including law school staff, students and faculty--that I am not a student?

It appears that wearing a suit every day doesn't quite do the trick. (Though perhaps I should consider wearing a three-piece suit with a bow tie in the tradition of the most recognizable professors in popular culture, like him or him.) 

Alternatively, I could perhaps introduce myself as "Professor Richard Albert," instead of simply "Richard Albert." But quite apart from making me come off as a little pretentious, that just doesn't sound right to me.

Does the Prawfs community have any helpful ideas from personal experience or otherwise? 

(Bonus points may be awarded for funny responses.)

Hello to the Prawfs Community!

It's terrific to join the Prawfs community as a guest blogger for the month. I'm grateful to Dan for inviting me. He knows--and now you do, too--that he has been one of my favorite people since we met some time ago.

I'm looking forward to sharing some thoughts on my experience thus far as a first-year law professor (spoiler alert: I love it!), on interesting scholarship I've recently read, and maybe also on politics.

Thrilled to be here!

Casual Empiricism and Data Quality

David Zaring has a short but interesting post over at the Conglomerate about different types of empirical researchers in the law. He describes the political science types, who study Supreme Court data, the quant types who study finance and accounting data in business schools, and the cross-over types who teach at law schools but use their inter-disciplinary PhDs for empirical legal research.

Finally, he describes what I would call the "casual empiricists" (and what I suspect the other three groups would call the "wannabe" or "fake" empiricists). I prefer "casual," of course, because I fall into this group. These law professors are interested in quantitative data but may lack the skills or training for hard core, PhD level quantitative analysis. For example, though rusty, I have plenty of econometric skill. I took the same basic graduate level courses given to economics PhD students and worked as a research assistant to an economist defining, running, and evaluating complex regressions. However, I never took the advanced data gathering and analysis courses, nor did I work on a dissertation. I suspect many of my casual empiricist colleagues are in the same boat.

As a group, we clumsily gather data about legal questions we want to study, and then run basic regressions on the data. Even so, there is something to be said about casual empiricism, and for reasons discussed below, I reject arguments that all casual empiricism is unworthy as legal scholarship. Of course, this is an old debate, even on this blog.

Part of the genius of the great empiricist is taking a large, generalized data set and analyzing it in new and different ways to yield answers to questions we previously thought unanswerable. Even better is the slightly smaller, slightly more tailored data set that gives us insight into bigger societal issues. Petra Moser's work studying World's Fairs data comes to mind.

But this type of study has its limits. It is almost always an indirect look at the question that is being answered. Sometimes indirect information is the best information available, and maybe even the only information that can be gathered at a reasonable cost. However, indirect information is necessarily incomplete in at least two ways.

First, there may simply be data missing. This isn't a problem if the missing data is randomly distributed, such that the results are unbiased. Knowing when you have enough unbiased data to reach a conclusion is a valuable skill.

Second, the data may not be sufficient enough support the inferences being made. Sometimes this is simply due to logical errors, such as assuming that correlation means causation. These types of errors are rare in quality scholarship, though, as most trained empiricists will avoid them or at least look for statistical ways to show that correlation is probably tied to causation. More difficult to assess is the incompleteness that comes from limited data. For example, much empirical patent scholarship involves the study of patents on publicly traded companies because, simply enough, data is available about public companies. The question, though, is whether the results can be applied to private companies. Recent private company survey results imply (to me at least), that the patent system may work very differently for private companies.

It is the second form of incompleteness that drives many casual empiricists. There are burning questions that large data sets just cannot answer. If they could, then chances are that some "real" empiricist would have looked at the question. Thus, the small, tailored data set leaves a niche for empirical work whose added value is the data gathering rather than the clever analysis of generalized information. Of course, trained empiricists do this data gathering as well, but they don't have the same large competitive advantage in this area.

I am working on just such a project, and it has taken an amazing amount of work (primarily by my dedicated research assistants and with grateful appreciation to my dean). I'm studying the ten most litigious non-practicing entities in patent litigation (you may know them as "patent trolls") and the underlying source of the patents that they are litigating. This has involved 1) identifying the NPE's, 2) identifying all the NPE's subsidiaries that may be litigating, 3) identifying all of the lawsuits, 4) identifying all of the patents involved in the lawsuits, 5) gathering data about those patents, including the initial owners, 6) gathering venture capital information about private owners, 7) gathering valuation information about public owners, 8) gathering incorporation data about the owners, 9) gathering generalized information about the owners, and 10) tracing the assignments of the patent from the original owner to the NPE.

There is no one database that has all of information in any of the above categories, let alone the combination of all of them. Thus, I expect this to be a really great data set when it is done, and will hopefully be a nice contribution to knowledge despite my casual status.

Of course, this is not intended to demean empirical work by PhD's, who quite often do this kind of data gathering and then do even more clever analysis of it than I could fathom. Indeed, others have suggested to me (and I agree) that for heavy-duty empirical work it makes sense for the casual empiricist to work with (or at least get input from) a trained empiricist. Nonetheless, there is some room for everyone at the table.

Ouch

The University of California has put faculty and staff on furloughs amounting to an average 8 per cent pay cut, and yesterday voted to raise student by 32 per cent.

That's a huge increase.  It's worth noting that, even after the increase, UC tuition will still be a bargain at $10,302 -- my own university charges a whopping $41,610 for undergraduates -- but still, a 32 percent increase in any price has to cause some severe sticker shock.

Professors have a funny relationship with tuition.  On the one hand, I am stunned by the tuition my law school charges -- $42,205 -- and I feel we should at least show some restraint in increasing it.  On the other hand, it pays my salary.  My school doesn't have that big an endowment, so we are primarily tuition-dependent.  If we want to restrain tuition increases, we have to restrain my salary too.  So I'm caught in a conflict of interest.

Professors also have a funny relationship with furloughs.  Thankfully, we don't have any at my school, but I wonder how professors at state schools are managing.  An 8 per cent furlough presumably means that they're being instructed to take about 20 days off a year.  (Apparently the actual number ranges from 11 to 26, with higher-salary employees expected to take more.)  But given the way professors work, days off are pretty meaningless.  We already have considerable control over our time -- apart from time when we're required to be in class, we work as much as we want to and take days off when we want to.  I hasten to add that for most of us, including me, that ends up meaning working almost all the time, but the point is that getting extra time off doesn't take the sting out of a furlough.  It's not like getting unpaid vacation time, it's just unpaid work time.

Of course, the life of a professor is so good that it's churlish to complain that furlough days probably won't actually get taken.  I'm not expecting any sympathy with the fact that we already have so much flexibility that it's meaningless to give us more.  But still, an 8 per cent pay cut has to hurt.  My sympathies go out to the UC students and faculty.

For Whom Do We Teach?

As the semester winds down and preparation for next semester gears up, I've had some thoughts about topic selection for my courses. For example, this year I cut "Defenses I" from the course - it was a survey of three really interesting defenses: reverse doctrine of equivalents, experimental use, and laches. They should all be really important defenses but for reasons I won't get into here, they just aren't. So, do I focus on what I wish the law would be, or do I focus on the topics that students are likely to encounter? In a perfect world, I would do both, but patent law is just too broad to do so in a 3 (or 4, or 5) credit course. This year, I decided to focus on the more likely defense: inequitable conduct.

I face the same issue as I plan for cyberlaw - many ask me if I teach any international aspects in class. Despite the growing importance of international e-commerce and social networking, I've made the judgment call that my students are far more likely to encounter the domestic "bread and butter" issues that I choose to cover. Unfortunately, this leaves little room in the course to address international issues, which are really interesting and potentially important. Indeed, cyberlaw is even more complex for me, as I often have several students from the engineering school's computer forensics program - the issues those students will face are different still from the typical lawyer's issues.

So, how do we decide these trade-offs?

I am increasingly siding on the student needs (rather than student interests or my interests) side of line. While I think many of the issues I could teach are really interesting, I can satisfy my curiosity through research. Indeed, the likelihood that I could cover any topic and its nuances in such detail the students will understand and retain is unlikely in any event.

The bigger question, I think, is whether to teach something that the students might find interesting, but that they are unlikely to encounter in practice. It seems to me that the answer depends on the type of class. In patent law, I take a relatively no-nonsense approach for a couple reasons. First, most of my students will not become patent prosecution lawyers. Those that will take patent drafting as well. Second, let's face it, patent law has few sexy issues. Thus, I try to make the basic stuff interesting and tie it to potentially interesting policy issues, like patenting of DNA or software.

Cyberlaw is a different story - there are all sorts of issues that students may find interesting, but that don't come up that often unless you specifically practice in the area. As a result, my cyberlaw course is mixed. I cover core topics like copyright, trademark, Communications Decency Act, and jurisdiction. I also spend some time on privacy and consumer protection, which I think they are less likely to see but have a lot of interest in.

I am certain that there are some classes that are all about the interesting policy issues rather than the practical nuts and bolts, and I also suspect that the mix differs by school personality, both because of teacher and student goals and interests. I also suspect that the Carnegie Report has something to say about this topic, though I reject the view that law school is merely a trade school and that all classes must be geared toward the practical use of information taught, even if I lean that way much of the time.

Self-Promotion #5: Hodge Podge of Ideas

In this last post on self-promotion, I just want to throw out some more ideas about how you can obtain a better platform for you and your scholarly work.  If others have ideas that have worked in their own careers, it would be great if you would add them to the comments of this post.

So, in no particular order, some further ideas on how to promote yourself within the larger legal academy:

1. Involvement in Law & Society or other organization with a subject matter focus (other organizations revolve around empirical studies and law & economics.  The best thing about these conferences is that many of them are inter-disciplinary which means that you also will find outlets to collaborate with social scientists outside of the law.  Law & Society for one has a great collaborative research network which permits one to navigate this rather larger conference by subject area.

2. Similarly, you can get to know more people in your field by becoming involved in your relevant AALS section. Different AALS Sections work differently, but some are certainly open to younger scholars playing a leading role in setting up programs and publishing newsletters.

3. Starting a listserv or discussion list in your area of expertise might also give you the ability to get to know people you otherwise don't know. Although there are many listservs out there on broad topics like constitutional law, law and religion, and legal writing, consider setting up a list (with the help of your IT department) in a sub-area within your main field. I did this a number of years ago in the employment discrimination context with the empdiscr listserv, even though there was already in existent a more general labor and employment law listserv (worklaw).

4. Consider talking to your law review about hosting a symposium on a topic that you and four of your most fun and famous friends from your field would like to talk about and submit papers on.   The advantage of proposing a law review symposium is that you can really get to know those in the academy who have overlaps with your interests in meal setting or more informal get-togethers during the symposium.

5. Communities outside of the law might also bring you into contact with different law professors. Involvement in a political campaign or with a national civic organization might provide an idea venue for you to get to know scholars in fields outside of your normal reach.

6.  Think of putting together a law debate for the Federalist Society, ACS, or ACLU.  Students are very open to the idea of you participating in debates either with colleagues within the school or with colleagues at other schools. I know that the Federalists and the ACS provide a list of national speakers to consider and even provide funding in some circumstances to fly speakers in.

7.  Take advantage of posting your work on SSRN, bepress or similar legal paper database. It is still surprising to me how many come to know the work of other scholars through downloads on these services.  Law professors who have similar interests will get in touch with you once they see the scope of your own scholarship or you can get in touch with others to talk about their scholarship.

In any event, I hope this post and the previous four have given individuals some ideas about how to become better known in the large law professor world. As I told people over the years, especially when one starts out their law career at mid-level school in an out-of-the-way part of the country, it is sometimes necessary to "shout" to tell people you exist.  Assuming that once you get people's attention that you can also keep their focus on you with your research and scholarship, slowly but surely more invitations to symposiums, conference, and yes, even guest blogging stints, will come your way.

Paul Secunda

Research Grants for Legal Scholars

Like many universities, my university is pushing to have more of its professors seek grant money to conduct research and support their positions. This is nothing new in social sciene, hard science, and engineering, but it has left some of us in the law school scratching our heads.

I am wondering whether a law school, where most of the faculty is not supported by research grants other than internal grants (e.g. summer money), can shift to a research grant oriented format.

More after the jump...

I have been successful in obtaining grant money in the past (more than $100,000 to support the Entrepreneurship, Innovation & Law Program I started ), but I am currently in the process of seeking my first research grant. It is for an empirical project, and I am hopeful. I also believe that there are plenty of opportunities to get empirical legal research funded.

However, I do have some concerns about a funded research model generally:
1. How much funding is out there for non-empirical research? Most of my research to date has been theoretical, and I think the same is true for most of my colleagues. Are there opportunities out there - widespread opportunities that would support the faculty of many law schools - for research funding? Comments on this point would be helpful.

2. Do law schools have adequate support for a research model? Like most schools, we have a "Sponsored Programs" office, but I have found the support for legal based activities, including finding grant sources and writing proposals, to be limited in the legal area. What kind of change would be needed to move to a research funded model?

3. Even if there are grant opportunities supported by the school, can the law school teaching model take advantage of them? Most grants include money to pay the salary of "investigators" doing the research. That's the whole point of a research model - why should the school pay if funding sources will pay? The problem is, that salary means that the faculty who are doing sponsored research are not teaching.

This, in itself, is not a problem. Faculty who would rather write than teach are happy, and it is cheaper for the school to hire an adjunct than to pay a faculty salary. However, law school teaching is different than other fields. We balk at having graduate assistants teach classes and/or grade. We advertise our great teaching faculty to prospective students. We seek accreditation from the ABA, which (I believe) looks at the number of classes offered by full time faculty.

This third point, I think, is the Achilles heel of a funded research model for law school. While people often say that many schools would rather their faculty write than teach, if push came to shove and the entire faculty reduced teaching to say, one class a year, students, the ABA, and others might start objecting.

Self-Promotion #4: Faculty Exchanges and Workshops with Other Schools

One of the things that I have always done with my law review articles when they were in the process of being written is to share them with as many other scholars in my field (and especially with experts on the topic of the paper) to get their insights.  I have been very fortunate to work with scholars at other law schools who have given of their time freely and in a selfless manner no matter how busy they have been.  Indeed, I myself probably read and comment on about 5-10 law review articles a year from others which are about to be submitted for law review publication.  I believe this is an exceptionally important thing for new scholars to do as they try to find their own voice.  They need to gain the wisdom of those who have gone before them and these academic elders are usually very willing to help (so don't be shy!).

All that being said, engaging in these individual and sometimes reciprocal readings of one another's law review articles is probably not the most efficient way to promote yourself in the larger academy. In recent years, I have become a huge fan of the faculty exchanges and faculty workshops.  It works differently at different schools, but the basic concept is for a school to send some of its scholars to other schools to workshop their papers in front of a different faculty and get their feedback.  What is great is that you get to know a whole another group of law professors outside of your field and you get their fresh perspective about the merits of your paper.  And because they are not your colleagues who might have to pass you in the law school everyday, they are more likely to hold forth and tell you honestly how they feel about your work. Of course, especially if you did a good job, this is yet another way to get known by a whole another group of law professors.

These arrangements can be part of an on-going exchange that your school has, or such workshops might be more on an ad hoc basis and based on the interest of the faculty.  The experience of Marquette is that we have faculty exchanges with a number of schools on an annual basis and then we also leave open slots for one time shots from different schools where we don't have fixed relationships.  I have done one of each type of workshop this Fall semester and both have been worthwhile for different reasons.  The first one at Villanova as part of an on-going exchange allowed me to get some important feedback on a paper that was very much a work-in-progress. That talk and exchange allowed me to know what wasn't working with the paper.  On the other hand, I next went to Tulane on my own initiative, and this time with my paper a little bit more along the way, I was able to get additional feedback which I have already added to what I hope now will be a better paper.

Now, all of this is not to say that you shouldn't share your papers with your colleagues at your own law school for their input (you definitely should!).  And I know that with my paper referenced above, I will send it out to about five scholars who are particularly good on my area of interest when the time comes. But the great things about faculty exchanges and workshops is that you are in a win-win-win situation:  you improve your paper in the process, meet and learn about a whole new group of faculty, and consistent with Paul Horwitz's emphasis on institutional self-promotion, let other professors at these schools know about the exciting work that is coming out of your home institution.

Starting next week: Law & Society and Collaborative Research Networks

Paul Secunda 

The "Death of 'Big Law School'"?

"Above the Law" has collected some posts dealing with the blog-circulating suggestion that "problems with the Biglaw business model will have major effects on the law school business model."  I'm confident that this suggestion is correct.  And, what was said at the "WSJ Law Blog" might also be correct, as a predictive matter :  "Perhaps the focus will be more on teaching students on how to draft interrogatories than on reading John Rawls. If we’re reading Gerding correctly, law school may become less fun, but perhaps more useful."  Again -- maybe so.

A friend passed this prediction along to me, noting that this change "has been a long time coming," and here's what I wrote back:

In my own view, for what it’s worth, it would be very sad if the lesson that law schools took away from all this is that they should become more narrowly technical and practitioner-preparatory in their approach.  In my view, law school needs to be *more* interdisciplinary, and the study of law needs to be approached *more*  like a humane discipline, than they currently are.  The world does not need, really, blinkered-but-efficient-and-proficient technicians; it does need, though, lawyer-citizen-leaders who are well read, ethically sensitive, public minded, and theoretically sophisticated.  There are huge problems with the profession, I think, but the answer to those problems is not, it seems to me, for law schools to resign themselves to the relatively unambitious task of providing fodder for the current (or post-crash) law-firm machine; instead, we need to produce people who have the ability and intellectual resources to transform the profession and help the profession to be what it should be.

This sounds, I admit, abstract and Ivory-Tower-ish (almost a caricature of out-of-touch tenured academics' self-important musings), even elitist.  I am uncomfortable with that.  To be clear, I think *practicing* law is (or, at least, should be) both "fun" and "useful" (it has certainly be fun for me!).  The disdain for everyday law practice that one sometimes encounters in the more rarified precincts of the academy is, at best, off-putting.  My sense, though -- what I was trying to express in my note to my friend -- is that the *practice* of law, properly and richly understood, is . . . more (deeper, bigger, harder) than I think people give it credit for.  It is absolutely the role of good law schools to produce good lawyers; I'm just suggesting that the problems with the structure of the profession have not shown that the way to produce good lawyers is to shrink our understanding of what it means to be a good lawyer.  The big-firm model of legal-services delivery seems messed up and dysfunctional, no doubt.  I'm pretty sure, though, it's not because students have been reading too much Rawls.  (Well, maybe it is.  But it's not because they have been reading too much Jacques Maritain or Thomas Aquinas.  =-)  ). 

 

Self-Promotion #3: Writing Proposals for Conferences and Workshops

Before turning to the topic of today's post, let me say that I very much appreciate Paul Horwitz's contribution with regards to Institutional Promotion.  I may not have planned to mention institutional promotion as one of my self-promotion tips, but I think it goes without saying that promoting your institution is part and parcel to being well-known (and well-liked) in the legal academy.  Indeed, I know of very few instances where law professors unhappy with their current institutions didn't end up appearing dour and glum in either the blogosphere or at a particular conference.

With that out of the way, let me say that there are many opportunities for you (and your school!) to host or participate in a regularly scheduled conference or workshop.  I have in mind two different types of situations. 

The first one harkens back to my post in Self-Promotion #1 and the idea of forming a colloquium for your field, like Scott Moss, Joe Slater, and I did for labor and employment law. Now, there might be already existing annual colloquium in many different fields, but that does not keep you from submitting proposals for hosting those meetings.  Over the years, the organizing committee of the labor and employment law colloquium has had the pleasure of fielding many great proposals for holding the conferences througout the country. In fact, right now we are going through the process for the Fifth Annual Colloquium.  So another idea for getting yourself know (and in the process getting high marks from your Dean) is to host the next colloquium or conference. It goes without saying that many more people will know who you are if you are one of the organizers of such a program.

A second type of opportunity is provided by some of the more major associations in the law professor world.  First among them is the mid-year meeting held by the Association of American Schools (AALS). Every spring for the last decade or so, the AALS has solicitied proposals from individuals and groups to hold a mid-year meeting on their field or discipline.  In the Spring of 2007, I drafted, with the help of many others, a proposal to hold a conference on labor and employment law.  To be honest, the process of putting the proposal together was quite intense and I ended up speaking to about 30-40 law professors in my field for their input (this, in and of itself, was a good self-promotion deal).  In any event, we submitted a three-day labor and employment law proposal.  Although we were not selected for a conference, the AALS Planning Committtee did agree, based on this proposal, to hold a Workshop on Worklaw in the Summer of 2009 at the Long Beach, CA Westin. 

In some ways, however, this route might now get the bang for your buck that you are looking for.  AALS usually appoints a planning committee for mid-year meetings that have nothing to do with those who submitted the proposal and not surprisingly, many of the initial ideas for panels and speakers are discarded.  Nevertheless, these conferences and workshops provide yet another change for you to create a forum to discuss ideas and research in your field with people of similar interests and also provides additional networking opportunities.

One last idea: if your school is a member of the Southeastern Association of Law Schools (SEALS), there are opportunities to submit panels and workshop ideas for the annual conference in some beautiful Southern location (See www.sealslawschools.org for more details).  In the past three years, Michael Green (Texas Wesleyan) and I have put together workshops on Labor and Employment Law (with about four panel and sometimes a new scholar panel), and this year, for the first time, a Workshop on Employee Benefits (with three panels).

The point is that there exist opportunities to host or create workshop or conferences at your schools or other places that have the benefit of both promoting yourself as a scholar, as well as given yourself an opportunity to get to known by more people in your field.

If you know of other such opportunities that I have failed to highlight here, please provide info in the comments. The next self-promotion post will dicuss faculty exchanges and workshops with other schools.

Paul Secunda

Self-Promotion #2: Twitter, Blogs, and Social Networking Sites

Yesterday, I started this series of post with  the thought of providing some ideas of how to engage in the art of self-promotion to get oneself better known through the academy so that one's work is read or perhaps to let potential lateral market suitors know that you are out there.  Today, in this second post of the series, I want to discuss the advantages and disadvantages of using various forms of internet tools to spread word of yourself.

First, one could always engage in blogging. There are way too many views on whether junior law profs should engage in blogging both pro and con to review them all in this post, but I want to make the point here that a certain type of blogging will get you known in a way that hopefully will not put off your colleagues. 

Chief among these blogs are those blogs that seek to create a virtual community among peers in their discipline.  When Rick Bales (N. Ky/Chase) and I started blogging at the Workplace Prof Blog together back in the Fall of 2005, it was our sense that the labor and employment law community suffered from fragmentation and a lack of good resources to keep up with both news about law professors in our field.  We set out with the idea that by promoting our colleagues work, presentations, conferences, appearances in media and newspaper, etc., we would create a closer knit group of individuals who would be able to help one another in their scholarly careers and who could now talk about issues and topics of common interest to them.  Four years later, I can say (with two more permanent bloggers on board) that the experiment has been a wonderful success.

I think why it worked even for a junior prof like myself when I started was because the blog was never about self-promotion or navel-gazing, but sought to attract those individuals (both profs and non-profs) serious about developments in the many areas of labor and employment law.  Now, the fact that Rick and I have been called the "Bert & Ernie" of labor and employment law professors is a nice side benefit as far as getting people to know two professors at lesser known schools. We have been thanked numerous times by colleagues for providing a service to our community that previously did not exist.  The thought is that you set out with a worthwhile objective - like creating a virtual community among your peers - and then if an incidental benefit is that you are better known by more people in your field, it is all good. Especially for people like Rick and I at lesser known schools.  It gives us a platform that we would necessarily have through more traditional means like law reviews and conferences.

More recently, I have also embraced Twitter as another way to reach both law professors and other interested individuals in the 140-character genre (psecundawrkprof is you want to see a sample). Twitter allows one to make note of interesting scholarship in one's field, as well as interesting news developments, when blogging would seem to otherwise take too much time (an important consideration especially for newer profs who have to worry about writing).  Of course, by connecting your Twitter account to your blog, you bring in a whole new group of people to that virtual community I discussed above.  I also enjoy the ability to re-tweet other people's posts as a quick way to disseminate developments that are of mutual interest to those in my field.

Finally, a word about social networking sites like Facebook, LinkedIn, and Plaxo.  I do not use these tools for spreading my work or other people's work on the web as a general matter.  I think with the proper privacy settings and other limits set, one could use these tools to the same effect as Twitter and blogging, but I worry about mixing too much of my personal life with my professional one.  Now, certainly there are friends in the academy that I am happy to "friend" on Facebook or link to in LinkedIn, but I don't have the necessary close relationship with all the people I am interacting with on the blog and Twitter. 

I choose then to not use social networking sites for professional purposes (although I realize LinkedIn, for instance, was established just for that purpose).  I like having some web sites for professional use and others for personal use (even though those spheres will inevitably overlap).

So that's a few thoughts on using Twitter, blogs, and social networking site for self-promotion.  The next post of this series will discuss submitting conference or workshop proposals to organizations like AALS.

Paul Secunda

Self-Promotion #1: Build a Blog-Built Conference

I want to continue in a tradition I have had as a guest blogger at various blogs in the past: the serialization of posts on a topic of what is hopefully of mutual interest to a large segment of the blog readership.  Last time I did this was almost two years ago on that other blog (with the initials C.O.) and I wrote about my law school lateral market experiences.

This time I want to take on a somewhat related topic - self-promotion in the legal academy.  This interest stems from a great panel on self-promotion I heard at the Southeastern Association of Law Schools (SEALS) annual meeting this past August, featuring Jennifer Collins (Wake Forest), Erica Hashimoto (Georgia), and this blog's Paul Horwitz (Alabama).  At that panel, I jotted down a number of ways I thought that especially less senior law faculty could go about getting themselves "known" in the larger academy (hopefully for the good and not the bad).  Of course, being "known" in the legal academy is one way to get yourself out there on the lateral market and thus, the connection to my last series of posts on this type of topic.

Today, let me start by making a suggestion that is well within the scope of what junior law profs can hope to accomplish, at least in some fields.  A number of years ago on this blog, Scott Moss (Colorado), Joe Slater (Toledo) and I were bemoaning the fact that there were never ever any good labor and employment law conferences.  So what did we do? We started a colloquium of our own.  About to be in its fifth year next year, the Annual Colloquium on Current Scholarship in Labor and Employment Law has criss-crossed the country (from Milwaukee to Colorado to San Diego to Newark) and has involved literally hundreds of professors, practitioners, and students in a supportive dialogue on research and developments in labor and employment law. I think I can speak for my co-founders when I say that none of us had any idea of how successful this endeavor would, and continues to, be.

Now granted that this type of self-promotion is not available for those of you in fields that already have such subject-specific conferences, like in IP and ADR.  But my point is that there is still many disciplines that do not have any such programs and your colleagues in these disciplines are just waiting for someone to take the bull by the horns and start a colloquium.  It goes without saying that you quickly become known by those in your field and it is the type of enterprise that you can continue to be involved with over the years.  Because it is such a large undertaking, I would suggest, however, trying the create-a-colloquium approach with one or two other people in your field with whom you work well.

Next time: twitter, blogs, and social networking.

Paul Secunda

Back from the hiring conference

Well, that was interesting and at least somewhat enjoyable. Of course, I have the beneift of being a member of (according to one anonymous candidate commenting at Faculty Lounge) a unique committee. Needless to say, I am free-riding on my colleagues on this one.

I concur in Michael's conception of FRC a series of "micro-workshops." Michael supplies the missing underlying key to my try-to-have-fun suggestion. Candidates can enjoy this not only because they can talk about themselves, but because they are doing, in miniature, one of the core fun parts of this job. And something they hopefully will get to keep doing once they join the academy.

I would add that Michael's perspective works for hiring-committee members as well. Being on the listening/interlocutor side in workshops also is a great part of this job, and that should be true for the micro-workshops we have invited each candidate to do for us. And at least we get some variety in our workshops--no two candidates even came close to talking about the same ideas.

The Global Legal Education

Much of my focus has shifted this year as I've moved into administration--specifically, working in international education and campus globalization.  While my work is directed at serving the entire university, I'm curious as to what Prawfs readers think about the role of international education in the law school setting.  Specifically, what responsibility does a law school have to provide its students with a global education?  Should there be opportunities to: 
-study, work, and/or engage in service learning abroad? 
-engage with international students and scholars recruited to the school? 
-focus curricular electives in courses in international and comparative law, theory and practice ( I recognize that a number of schools have for a few years now required an international law class for 1Ls)

? 

Further, if any or all of the above are in fact a responsibility of schools to provide, are they the responsibility of every law school?  Such opportunities require significant planning in several areas, not the least of which is budgetary; and some of these costs will be passed on to the students.  Should every law school, then, provide (or endeavor to provide) these types of options for their students, or should it be a matter of what the student population is deemed or anticipated to expect out of the education provided?

Congrats to Todd Henderson

Brian Leiter is reporting that my friend Todd Henderson (Chicago) is this year's winner of the Federalist Society's Bator Award.  Congratulations!  Todd is joining an impressive group!  Check out this list.  (Especially, of course, the 2009 winner.).

U.S. News Surveys Out; Info Available Here

Late last week, law professors everywhere -- four at each school -- received the annual U.S. News survey asking them (as well as lawyers) to assess the quality of every JD program in the country on a scale of 1-5. In ranking law schools, U.S. News considers "input" measures like the LSAT score and GPA of incoming students, and "output" measures like bar passage and employment rates. In between, and also part of the formula, is an attempt to assess the "value added" by a particular school relative to others. To get at this, U.S. News primarily uses this survey. The idea is "ask the experts," despite the fact that few law professors or lawyers know much of anything about more than a handful of schools. And this survey accounts for 40% of a school's total score, dwarfing any other factor. 

The conventional wisdom is that law schools pay too much attention to the U.S. News rankings. But I think as to most law professors and lawyers, the conventional wisdom is exactly wrong: rather we haven't paid enough attention, and should pay more. That's the premise of the project that fellow Prawfs guestblogger Dave Fagundes and I started last year, Race to the Top, which aims to leverage attention to the rankings to help focus attention on the educational quality of J.D. programs. This kind of focus also makes sense in light of the ABA's new, much-welcomed focus on outcome measures and assessment in law schools.

In part for U.S. News survey respondents to use, we've aggregated data on our website that is relevant to the educational quality of each school.  The data is broken down into five principal categories: student engagement, curriculum (focused on experiential learning), use of best practices, student-faculty contact, and legal writing programs.  Another great resource, using some of the same data, are the charts that TaxProf Blog's Paul Caron did last week using the valuable student survey data from The Princeton Review. The one comparing the Princeton Review data to U.S. News can quickly help identify "underrated" law schools, which should be given a "4" or "5" in the survey.

Prawfs readers: if you know law professors (dean, assoc dean for academic affairs, chair of hiring committee, most recently tenured), or law firm hiring partners and recruiting coordinators (who may not have received it just yet), that would have received this survey, it would be great if you sent them the link to this post, and encouraged them to use the data in filling out the survey.  We'd welcome suggestions for the project going forward, and I look forward to talking more with many of you about these issues back here at Prawfs, and at our own website, in the months ahead.

Cruising the Classrooms

Tom Cruise recently visited an Entertainment Law class at Harvard, and students were understandably excited. Although Cruise is known around the world, classroom guests who are not as famous can also add a boost of energy to an otherwise humdrum session. When I was a law student, Ben Stein was an adjunct, and I recall visiting his class because my classmates raved about his teaching style and the humorous Bueller voice. That day, someone had brought in candy, and a bag was being passed around. Since I wasn’t famous, my presence went unnoticed by everyone – except Stein. He stopped lecturing and asked, “Are you in my class?” I replied, “No, but I’ve heard some great things and thought I might visit.” He then said, “Someone pass this brilliant young lady the bag of candy.” Everyone laughed, and class went on as usual. So, my question for the day is, what’s your policy on guests in the classroom?

Weekend Trivia Challenge - Name this Law School

The Question:

The first law school in its state, this school’s sun-drenched Mediterranean Revival campus began life as the Hotel Rolyat in 1926. It is now the gorgeous setting for this powerhouse in trial advocacy, whose mock trial teams have won the American Association for Justice National Championship four times. Other areas of special expertise at this school are education law, elder law, and legal writing. What is this law school?

The Answer:

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Stetson University College of Law in Gulfport, Florida

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"Union Card" Academics versus Intellectual Scabs

Brian Leiter asked the following interesting question over on the Legal Profession Blog: "Is it unethical or inappropriate for law professors to write and circulate articles in areas or on topics in which they lack any relevant disciplinary competence?"

This question has a simple and a complicated answer. The simple answer is: Of course not! The best thing about being a law prawf is that we have a roving commission to speak without a union card about whatever we like. We law prawfs are obliged to do so, because we train actors, not what Hannah Arendt used to call (with a touch of contempt) "professional thinkers." (See, e.g., Life of the Mind at 167 (1981)). Actors -- judges, bureaucrats, lawyers, activists, etc -- cannot be methodologically specialized: In the end, their decisions will have implications analyzed by every discipline that has humanity as its subject -- economics, philosophy, political science, aesthetics, you name it.

Of course, real-world actors use their professional role to circumscribe what they may legitimately consider, but even this decision not to consider "extra-legal factors" (whatever that means) is generally justified by multi-disciplinary considerations such as political science ("judicial activism is illegitimately undemocratic, because the median voter would disapprove of the policies of the median judge") to philosophy of law ("judicial activism is inevitable, because legal texts do not really cabin discretion"). The non-legal academics who, to my mind, are most appealing are scabs who flagrantly trespass on other disciplines, like Brian Barry (combining philosophy and rational choice theory) or Allan Gibbard (combining philosophy and evolutionary biology). So put your union card in your shoe when you come to law school: If you cannot explain your non-legal ideas to a smart 1L or law prawf, then you should de-camp for the closed shop of the non-legal academic world, where you can engage in your insular family quarrels without being disturbed by an unfamiliar bibliography, citation method, or normative framework.

This is, as I say, the simple answer -- and it is much too simple. There is an ethics of being an intellectual scab about which Brian is quite right to query. Taking up Brian's invitation, here is (after the jump) Hills' Decalogue for the Interdisciplinary Lawyer.

(1) Thou shalt consult and co-write with the specialists. We law prawfs hire folks like Leiter so they will feel obliged to read our drafts, point to the relevant literatures, and (patiently, not snarkily) explain basic concepts. So befriend such a one and force them to talk to you. (I do not write or say anything about political theory or political science without speaking first to Don Herzog and John Ferejohn and a few others, for instance -- a precaution that has saved me much time and embarrassment).

(2) Thou shalt not proudly pontificate but rather humbly query. Important safety tip: No matter how much of a polymath you are, you cannot possibly master the secondary literature in any area as well as a grad student who is ABD (unless you happen to be a grad student who is ABD). So go ahead and ask your specialist colleague for reading tips.

(3) Thou shalt read the secondary literature, guided by a competent expert, before thou readest primary sources. This is my cavil with originalists: They plunge into Farrand's or Elliott's but ignore Forrest MacDonald, Bernard Bailyn, Saul Cornell, or Joyce Appleby. Re-inventing the square wheel in this way -- that is, reproducing crudely and incorrectly the knowledge that has been mined elsewhere -- is a recipe for law office history, philosophy, economics, etc.

(4) Thou shalt aim for arbitrage, not original work in the discipline. No one pays a pure law prawf without training in the relevant discipline to contribute to, say, Nietzsche scholarship: That's like paying a sheep to herd dogs. But there is room for a law prawf to explain why a problem in the law might require the courts to take a position on scientific naturalism, which might be a good opportunity to bring in some philosophical considerations and even aphorisms from Nietzsche. If you follow commandments 1-3 above, then you will not be producing any insights that Nietzsche scholars would find astounding, but you might help judges and lawyers understand how something apparently very remote from their quotidian professional lives is actually implicated by their actions.

(5) Thou shalt take summer courses: For instance, University of Michigan's ICPSR program has a very good set of classes in quantitative methods. Take a few. Yes, it will initially be humiliating to sit with a bunch of twenty-somethings and even teens and have one's problem sets corrected by someone young enough to be your kid. (I know, from personal experience). But -- so what? You can afford to reveal your ignorance: That's why we have tenure.

(6) Thou shalt ask dumb questions: Never, never try to bluff or hide your ignorance. Just come out and ask, right in the middle of the faculty lounge, "what is 'Nash equilibrium,' anyway?" Bertrand Russell said somewhere that "[t]he point of philosophy is to start with something so simple as to seem not worth stating, and to end with something so paradoxical that no one will believe it." So asking a simple question about why some widely accepted principle in some discipline does not make sense might be a great way to detect a foundational paradox. Well, probably not -- but at least you will have displayed the mighty confidence of the humble, providing a service to all of your craven colleagues who were too frightened of being caught out to actually understand what was being told to them.

(7) Honor thy legal father/mother: Self-hating law prawfs nauseate me. Learning legal stuff is actually pretty hard: Just listen to all of the non-lawyer academics who mess it up. So do not be ashamed of "just" knowing the law. Sure, the Law is filled with mysterious gaps that Law itself cannot fill. But you cannot find the gaps until you've really thought about the law.

(8) When thou listeneth to specialists, thou must be as stubborn as a judge in a bench trial who listeneth to expert witnesses: Remember that any philosopher, economist, or other expert who cannot explain their argument to you in decent English does not belong in a school devoted to the task of teaching people to explain stuff to the uninitiated -- state and federal judges, Presidents, juries, etc. So ask questions (Commandments ##1 & 6), be humble (Commandments ##2 & 4), be diligent (Commandments ##3 & 5) -- but be stubborn about not getting fobbed off with patronizing jargon or casual name-dropping.

(9) Thou shalt never vote against making an offer against a whippersnapper more knowledgeable than thou art because thou feelest threatened: This advice is for us oldsters who could not possibly be hired under the standards now applicable to entry-level candidates. When some Ph.D.-J.D. economist shows up with a book manuscript, a peer-reviewed article or two, and a job talk dispensing econometric concepts that you've never thought about before, do not bristle and harrumph and question the validity of a whole academic discipline. No, statistics is not all a pack of lies, oldtimer. If the young turk survives your stubborn questioning (Commandment #8) and presents an idea relevant to some legal problem (Commandment #7), and your resident experts whom you have humbly consulted pronounces them kosher on their methodology (see Commandments #1-2), then greet the newcomer with joy and gratitude, secure in the knowledge that your tenure will prevent them from laying you off as the obsolete dinosaur that you are.

(10) Also thou shalt not oppress an academic stranger: for ye know the heart of a stranger, seeing ye were strangers in the land of other academic disciplines. This last commandment might be obsolete nowadays when law faculties are teeming with non-JDs, but, believe it or, the non-lawyers on law school faculties can sometimes feel put out by the attitude of law prawfs that law is a mysterious craft that they cannot "get." In my view, non-J.D.s who respect the law and care about teaching law students do just fine teaching basic law courses. (Don Herzog at Michigan teaches terrific -- and very doctrinal -- torts and First Amendment courses). So put your union card away and welcome the stranger: Maybe they'll return the compliment.

Weekend Trivia Challenge: Latitude and Longitude Extremes

The Question:

Which ABA-accredited law schools are at compass extremes? That is, which law school is the most southern, western, eastern, and northern?

Here is one hint that may help you:

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Each answer is a different school.

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And another hint:

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Only one of the schools is within the 48 contiguous United States.

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The answers:

The northernmost: 

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University of North Dakota School of Law in Grand Forks, ND, at 47° 55′ 17″ N, 97° 4′ 14″ W

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The southernmost:

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Pontifical Catholic University of Puerto Rico School of Law in Ponce, PR, at 18° 0′ 9.45″ N, 66° 36′ 57.28″ W

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The easternmost:

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University of Puerto Rico School of Law in San Juan, PR, at 18° 24′ 10″ N, 66° 3′ 0″ W

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The westernmost:

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University of Hawai‘i at Mānoa William S. Richardson School of Law in Honolulu, HI, at 21° 17′ 49.2″ N, 157° 49′ 1.2″ W

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Also interesting:

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Furthest East (mainland): University of Maine School of Law, in Portland, ME, at 43° 39′ 39.96″ N, 70° 16′ 44.04″ W
Furthest South (mainland): University of Miami School of Law, in Coral Gables, FL, at 25° 43′ 17.92″ N, 80° 16′ 45.36″ W
Furthest West (mainland): University of Oregon School of Law, in Eugene, OR, at 44° 2′ 34.69″ N, 123° 4′ 9.44″ W

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(In figuring this out, I am indebted to Julie Jones, librarian and prawf at the University of Connecticut School of Law, who inputted the location of each school to create a map of all ABA-accredited law schools. Super cool! Thanks!)

What did the Carnegie report say anyway?

In the last few years, there's been a fair amount of talk in the legal academy about how legal education ought to change, in part in response to the 2007 Carnegie Foundation report. Many assume that the report is a repeat of the familiar "law school should be more practical," and to a certain extent that's true. But it's more nuanced than that.

One way to get the gist is to head to the website of the new law school at UC-Irvine, founded by noted constitutional law scholar Erwin Chemerinsky. The site summarizes its curriculum this way: "A cutting-edge, strongly interdisciplinary curriculum will prepare UC Irvine School of Law graduates not only to think like a lawyer but also to actually practice law."  UCI's website also includes a key quote from the Carnegie report: "Most law schools give only casual attention to teaching students how to use legal thinking in the complexity of actual law practice.  Unlike other professional education, most notably medical school, legal education typically pays relatively little attention to direct training in professional practice.  The result is to prolong and reinforce the habits of thinking like a student rather than an apprentice practitioner, conveying the impression that lawyers are more like competitive scholars than attorneys engaged with the problems of clients." 

You can also read the executive summary of the Carnegie report here, but the highlights are: 

(1) Lawyers are best taught through a curriculum that integrates the three pillars of doctrine, skills, and professional identity, rather than having a curriculum that focuses on doctrine, and treats the other pillars as "add ons." 

Ideally, these three pillars (or "apprenticeships") can be integrated in the same course. For example, rather than having a course called "Torts" that focuses on doctrine, a separate course called "Factual Investigation" that focuses on a skill that any torts lawyer needs, and a course on "Professional Responsibility" that covers ethical dilemmas facing such lawyers, these things can all be included in one course, even if not all are covered in depth. One might call such a course "The Torts Process," which happens to be the name of a well-established course book from Aspen (Henderson et al) that uses this approach, and which I use to teach 1L Torts.

(2) The combination lecture/Socratic method is far overused, as is the Langdellian approach of learning the law through the dissection of appellate opinions. These problems are particularly pronounced after the first year.

(3) Law schools are far behind other educational institutions in how they assess student learning, and the extent to which they provide feedback that improves learning outcomes. 

(4) Problems 1-3 are all related.

What's happening in legal education?

With the beginning of a new school year, and a new law professor hiring season, one might want to know the answer to this question. Specifically, I can imagine law-professor job candidates being asked the question: "Are you familiar with the Carnegie report on legal education, and how would it affect your approach to teaching?"  So I'd recommend you at least read the executive summary. Over at Concurring Opinions, Kathleen Boozang says that the report was greeted by a "big yawn" by most law professors, but she speculates that the collapse of the legal market could change that. 

A recent National Law Journal article quotes Rod Smolla, the dean of Washington and Lee and architect of its new Carnegie-esque third-year curriculum, as saying "we are at a moment of historical change in legal education...When we look back at this period in five to 10 years, we will mark it as the time when the whole mission of law schools made a fundamental turn."  In W and L's third year, students learn "substantive" areas like family law or employment law through real and simulated cases where students act as lawyers and try to solve problems, not by reading appellate opinions, taking notes in class, and mushing it all into an outline at the end for a 3-hour typing race. More students opted into the new curriculum than expected, and applications there were up 33% this past year, with a survey indicating that the new curriculum played a role in many students' decisions to go there. 

Meanwhile, Martha Minow, the new dean of Harvard Law School, where the Langdellian method of teaching from appellate opinions was developed, has called for "another case method" closer to the one used in business and public-policy schools, and consistent with W and L's approach and Carnegie. 

So will there be significant change or not much at all? My own view, for what it's worth, is that much depends on the success or failure of innovations like Washington and Lee's third-year curriculum, the more practice-oriented curriculum at Northwestern, and the new law school at UC-Irvine. If they succeed, I would imagine others will follow.  What do you think?

New U of Chicago Dean on Educating Lawyers

In this op-ed for the National Law Journal last year, "Legal Education Must Look Beyond the First Year," UCLA Dean Michael Schill, soon to move to University of Chicago, talks about a theme I agree with: the consistency of schools doing sophisticated interdisciplinary research, and training lawyers in a rigorous way. He says:

For the first 20 years of my career as a legal academic, the pendulum of legal education swung strongly away from the "trade school" model of legal education toward interdisciplinary education and theory. The Carnegie Report suggests that, perhaps in our embrace of abstract theory, many law schools have neglected their principal obligation -- teaching our students to be lawyers. As schools adjust their curricula, UCLA's experience suggests that we be careful not to overreact. Deep interdisciplinary knowledge and mastery of theory can co-exist very well with increased specialization and practical skills development. Indeed, both sets of skills training reinforce each other, and only by embracing both will we produce the best possible legal professionals.

He and his team also made a terrific case for the strength of UCLA in educating lawyers in a piece, "How UCLA Law Trains Lawyers," you can find here.

I have no reason to believe this orientation had much of anything to do with his hiring or his plans at U of C, but think it's interesting that a school with a great reputation in interdisciplinary work (at least with one discipline), but less of one in clinical and skills education, has hired a dean who embraces both.

A Crude Post

In Friday's New York Times, movie critic A.O. Scott reviewed the new documentary film Crude, which opens next Wednesday in Manhattan. The review and trailer (see above link) started a train of thought that has stayed with me since then. Scott calls Crude a “thorough and impassioned” film that “focuses its gaze on [petroleum] production, rather than consumption.” It sounds interesting, and I look forward to seeing it (presumably on DVD). As I read the review and watched the trailer, I began to ask myself: what would a documentary about the lawyers that work for the big petroleum companies look like?

What would these lawyers say?  Do they like the work?  Not like it?  Are they indifferent?  Also, much of the legal work for western petroleum companies is done by U.S. law firms, and the lawyers working at those firms are largely the graduates of U.S. law schools. What do the experiences of these lawyers tell us, anecdotally, about current U.S. legal education and the law schools that provide it?

As I think about it, perhaps the project would be more appropriately structured (at least initially) as a video oral history project. The idea would not be to be polemic, but rather to gain perspective on the global industry from the perspective of counsel.  One of course would need to take great care not to violate client confidentiality in the process, and presumably the focus of interviews would have to be on personal impressions, beliefs and the like, rather than on client or project specifics. I suspect that some of the most interesting stories would come from those junior lawyers who did the work for a while, and then moved on. (Or they just might be the lawyers who are more willing to talk about their experiences.) But in the interest of balance and obtaining a full-spectrum view, it would be useful to have senior and current lawyers involved too.

Such a project could be undertaken for virtually any industry with substantial legal representation, but the growing public focus on environmental and energy concerns suggests that petroleum companies (or perhaps the entire energy sector) would be a good choice. There certainly are a number of lawyer documentaries in existence (see A Lawyer Walks into a Bar and The Trials of Law School, for example), but none I can readily find that focus on the legal practitioners themselves in a particular industry.

This is not a fully formed idea by any means, but it does intrigue me. I would be interested in hearing what others have to say about it.

Greetings, and some thoughts on teaching at a new institution

Hello, readers, and thanks to Dan and the gang at Prawfsblawg for the return visit.  The last time I guest-blogged her, I was teaching at Iowa, but after seven years in the Midwest, I've just moved to Lewis & Clark Law School in Portland, Oregon.

This was a straight lateral move, without a semester as a look-see visitor, so I really am moving into a new environment, which leads to my first post -- some thoughts about teaching at a new institution.  Of course, all of us who went from whatever we did before teaching (private practice, government, public interest) were going to a "new" institution.  But at least then, the newness of the environment could be chalked up purely to moving from private practice to the academic world.  Here, the differences are entirely ones of school cultures.  To wit:

1) Dress code -- One can dress however one chooses (within reason) as a law professor, but even so, law schools no doubt have general dress code norms.  How much should one worry about not conforming to the new dress code norm?

For example, with few exceptions, I wear a suit and tie when I'm teaching.  This was on the dressier side of things at Iowa, but there were a fair number of others who dressed similarly.  There appear to be fewer at Lewis & Clark (though, contrary to earlier concerns I had, the number of others is not zero).  I wouldn't particularly to look like an overdressed slickster if it is a more casual environment, but then again, I also go through the effort of wearing a suit and tie on teaching days for the usual reasons of creating some distance between the students and me.  (Weirdly, I still get mistaken on occasion for a student if I dress like them.)

2) Length of Classes -- At Iowa, classes met for 60 minutes an hour, which meant that starting times advanced by 10 minutes per hour (i.e., classes started at 1:10, 2:20, 3:30, and so on).  Here, classes meet for 50 minutes an hour, and usually in two 1 1/2 hour blocks, which means for 75 minutes.  So some thought has to be given to whether to give a break in the middle, or to go straight through, either way making sure to finish well before the end of the allotted 90 minute block, because another class is going to be starting right away.

More importantly, this means that classes prepped for 90 minute blocks have to be adjusted to fit 75 minute blocks!  (That's a 16.7% difference in time. . . .)

3) Name of the New Institution -- I think the formal name of my new institution is "Northwestern School of Law of Lewis & Clark College."  But we seem to refer to it as Lewis & Clark Law School.  (That's also what it says on my business cards.)  Obviously, "Northwestern" gets confusing, even though in a rational world, the other Northwestern would be something like Midwestern or Northmidwestern or even Northeastern (though of course there's another one of those!)  Yet, the letterhead that came with my desk still reads Northwestern School of Law of Lewis & Clark College.  Who do I tell people I work for?

(With Iowa, I didn't have that problem.  But it did take me a while to remember that it's officially The University of Iowa, not the University of Iowa.)

4) Faculty meetings -- Generally not the favorite of law professors, but a necessary evil.  You get used to them at your old institution, though.  Is it acceptable to bring page proofs to an article to review?  Is it acceptable to bring a laptop computer to work on an article, or to blog?  Is it acceptable to grade exams?  And then, you have to figure everything out from scratch again.

Of course, in some ways, it's possible that I'm a sort of dinosaur in this regard, given the recent trend toward hiring VAPs at the entry level.  VAPs, of course, will have confronted issues 1-3 (and, if they're unlucky, issue 4!), so for them, starting on a tenure track is itself like a straight lateral move.

Dorf welcomes 1Ls

Michael Dorf offers words of welcome for 1Ls. In particular, he has thoughts about why legal education should be thought of as a continuation of undergraduate/liberal education and why students should try to enjoy learning the law and the ideas in the law, as much as they enjoyed learning history, biology, or literature while in college. At the very least, enjoyment means they will pay more attention and do better in school.

Our duty to keep law schools amphibious...

For my sins, I have been appointed for the third straight year in a row to serve on NYU's appointments committee. After reflection, I have decided that the best way for me to avoid further assignments is to be so honest about my hiring priorities that I thereby shock my dean and colleagues into appointing some one more suitable for the job.

To use a metaphor, I think that our primary duty is to keep the law school amphibious. Law school faculty members can typically be arrayed along an axis of academic depth ("the water environment") versus practical groundedness ("the land environment"). Faculty members, therefore, tend to lean one way or the other: Some are ace lawyers (say, Georgetown's David Vladeck) who are most at home on the solid ground of the courtroom, and some are purely academic specialists in some non-legal discipline -- lungfishes, if you will -- who rarely clamber up on land even to write an amicus brief or comment on a case (say, NYU's own John Ferejohn or Tom Nagel or Chicago's Brian Leiter). The challenge is to hire a faculty that has a mix of really aquatic and terrestial creatures in which everyone is a bit of an amphibian, mutually intelligible to each other and capable of participating in the same workshops profitably.

Two years' of experience on the appointments committee here at NYU and two on Michigan's committee have taught me that this is harder than it sounds. There is always a risk that the swimming critters and the land critters will suspect that the other group has contempt for the other's ecology and, as a defensive reaction, nix each other's preferred candidates.

In theory, everyone should understand that candidates should be judged on a sliding scale: We should be able to hire non-JDs with outstanding non-legal academic credentials as well as outstanding practitioners who have never written a purely academic article in their life, just so long as both groups care about the law and can talk intelligently to each other. But I've had colleagues who would turn down Brandeis himself for lack of sufficiently theoretical writing as well as colleagues who would nix Socrates because he lost his only case in his sole courtroom appearance.

I do not know the trick to avoiding these sorts of fights. But I plan to reject the myths of both the die-hard fish and the confirmed terrestials. I do not believe that a candidate needs a JD to be a great member of a law faculty: In my view, the only legal "method" is (quoting T.S. Eliot's view of literary criticism) "to be very intelligent." (The JD-less Don Herzog of Michigan teaches a legally deep class on First Amendment law that covers more doctrine in greater depth than most JD-taught courses). And likewise I do not believe that one needs to have ever published a single "theoretical" article if one's practical experience is sufficiently deep and varied.

The important point is that each type of candidate have a temperament of respect for what the other group is doing. The practitioner who has spent years lobbying Congress or practicing in a courtroom cannot play the harrumphing Philistine, irritably denouncing (for instance) mathematical models of voting behavior in legislatures or on the bench as "over-simplified." (Of course such models are over-simplified as a descriptive matter: So are subway maps of NYC -- but they are still helpful if they are testably predictive of where one will end up). Instead, the practitioners ought to be inquisitive about methods that they do not understand, asking for "intuitive" explanations in plain English and discussing those explanations in the terms of the relevant discipline. Likewise, the aquatic life forms ought to be able to speak and write English and communicate their academic insights in language that an intelligent lawyer, judge, or law student can understand, and they ought to be asking questions about which such an audience could conceivably care. An exclusive focus on refinements in discipline-specific methodology is a great thing -- but not a great thing for a law school.

Within these parameters, I'll vote for anyone, with or without the requisite union card of a JD or Ph.D, with brains and knowledge. I do not know whether this hiring philosophy will be a success with my colleagues. If not, then at least I'll get the more than adequate compensation of not being appointed to the appointments committee again.

Some Parting Thoughts on Research Assistants for Junior Profs

Since beginning my law teaching career, I have had a number of research assistants, whom I have asked to perform a variety of types of projects for me. As I see it, an RA position should benefit both the prof and the student. Perhaps because these goals are at times in conflict, I have not yet hit upon an RA model that seems to work particularly well. As this is my last day here at PrawfsBlawg, I thought I'd share my thoughts on RAs and ask readers for their input.

From the prof perspective, we want our RAs to be able to perform tasks that will save us time. Leaving aside the tricky question of whether RAs should write any part of the article ---- something that I don't ask my RAs to do ---- the typical tasks seem to consist of research and proofreading. Proofreading, though it saves prof time, is probably not the substantive or interesting work that RAs are all that interested in doing. And it frankly doesn't save all that much prof time.

Research projects can be interesting for RAs, but they pose other problems. The more complicated the research project, the more likely it is that a student may perform the project poorly. If I have to go back and "check" my RA's research, then it isn't saving me time. And sometimes, in looking through the primary sources myself, I've seen information that was outside the research question posed to the RA, but that is still valuable to the project. Simpler research projects present less of a risk of RA error, but might not present much of a time saving to profs, who are likely to be able to perform simple projects more quickly than students. Simpler projects --- i.e., find me a law review article that says X for footnote 9 --- are also less likely to be interesting for students.

Finally, because students who have worked as my RA often ask me for clerkship recommendations, I think it is important to give them tasks that allow me to assess their research, writing, and critical thinking skills. But I also don't want to give the students busy work just in order to form an opinion about those skills.

Have any of you hit upon methods of employing RAs that seem valuable to both the student and the prof?

Results of laptop ban survey

After banning laptops from the classroom last semester, I surveyed my students about the ban. I got about 65 responses out of approximately 200 students (not a great yield, but still). The questions and results, as well as my thoughts, after the jump:

My apologies for the formatting; I could not get them to line up.

1) What effect has the laptop ban had on your concentration in class?

Strongly positive: 33 Slightly positive: 17 Neutral: 13 Slightly Negative: 1 Strongly Negative: 0

2. What effect has the laptop ban had on whether you have found the course material interesting?

Strongly positive: 17 Slightly positive: 11 Neutral: 29 Slightly Negative: 3 Strongly Negative: 0

3. What effect has the laptop ban had on your ability to learn the material?

Strongly positive: 24 Slightly positive: 11 Neutral: 18 Slightly Negative: 6 Strongly Negative: 2

4. What effect has the laptop ban had on the usefulness of your notes for studying?

Strongly positive: 14 Slightly positive: 8 Neutral: 9 Slightly Negative: 22 Strongly Negative: 7

5. What effect has the laptop ban had on your overall enjoyment of the course?

Strongly positive: 21 Slightly positive: 13 Neutral: 16 Slightly Negative: 8 Strongly Negative: 1

So what do I make of these results? A few thoughts:

1) There were more neutral answers than I expected or, frankly, would have liked.

2) Students overwhelmingly recognize that they concentrate better and pay more attention when they are not allowed to use laptops. In other words, students recognize that the ban achieves one of its primary goals of increasing student attention and involvement. The limitation is that this does not tell us whether the reason for the increased concentration and attention is because the distraction of the internet/IM/e-mail has been removed or because, distractions aside, they are more involved when forced to listen and process the discussion rather than trying to transcribe it.

3) Students seem mostly positive or non-committal as to whether absence of laptops affected their enjoyment of the material or their ability to learn it. Which, of course, seems inconsistent with the overwhelming belief that they concentrated better. Better concentration does not equal great enjoyment or absorption? That seems counter-intuitive--if you pay more attention, don't you learn more (even if you find out you don't particularly like the material or the course)?

4) Students are split almost evenly positive/negative on the effect of the ban on note taking and the usefulness of class notes. My inference is that the negative on this is that students are accustomed to converting their typed class notes into an outline by cutting-and-pasting and reorganizing their class notes, rather than retyping those notes (one student specifically objected to having to retype). But I continue to believe that it is in the act of retyping, while putting all the divergent materials together in one whole, that real learning occurs and everything comes together.

I also asked some open-ended questions, including what students believe would be the best laptop policy. As with student evaluations generally, answers were all over the place. Only a few comments expressed a strong view that I was flat wrong to impose the ban; those who thought they should be allowed at least expressed an ability to see where I (and other banners) was coming from. Interestingly, several students suggested that laptops should be banned simply because enforcing a no-surfing/class-use only rule (which they supported) is impossible and the over-inclusive ban becomes the only way to halt inappropriate use of the internet. At least a couple of students commented that they were initially bothered by the ban, but came to appreciate the benefits of notetaking by hand.

On that last point, though, consider the following: About midway through the semester, I asked students in both of my 65-person Civ Pro classes how many were using laptops in their other classes in which use was permitted; all but 3-5 students in each class indicated they opened the computers back up when they were allowed. Which tells me that if I was expecting this to be an educational revelation--students would realize that laptop-free was the way to go and they would carry the lesson to the rest of law school--that was not happening. On the other hand, that finding is inconsistent with the anecdotal experiences of some prawfs who have banned laptops for the first month of class and given students the option after that and found that a substantial majority, having become accustomed to hand-notes, kept the computers closed.

So where am I on this? I definitely saw and felt the benefits in my classes and so did many of the students. The ban was neither wildly popular nor wildly unpopular; which means I am neither doing them a great favor nor flying in the face of overwhelming opinion. For now, students see this as just another "thing" you deal with in different prawf's classes--like lecture style, evaluation style, etc.

I will continue to exclude laptops this year (while still recording classes for them--just like at trial or deposition). And whether they take classes with him and the evaluations I receive in those classes, for now, seem unaffected by the ban.

The law-jobs market: What is to be done?

While I do not think there's any reason people should have noticed the absence, I regret being such a double-plus ungood Prawfsblawgger this summer and appreciate all the great stuff others have been writing.  (Blame it on Arizona, and Jackson Hole, and the North Cascades.)  That said:  I've been thinking and reading a lot about (what one hears is) the coming (and current) very, very challenging law-job-hiring market that our students are facing and wondering, what can we (i.e., the law professors) do to help?

Some thoughts after the jump . . .

One possible answer, of course, is "nothing."  The economy is in not-good shape, and the profession is not only responding to the downturn but also (perhaps) changing in fundamental, structural ways.  Another possible answer is the old reliable one, "law schools should give up on their scholarly aspirations / pretentions and focus carefully and entirely on professional training and practical skills.  If they do, then the students' job prospects will improve dramatically."  Still another might be, "law professors should join together and call for the closing of half of America's law schools.  This would reduce the number of young lawyers seeking increasingly hard-to-find jobs." 

These latter answers do not appeal to me, so I hope that they are not the right ones.

So, what else?  I cannot imagine that any law teachers are not concerned about their students' prospects, or saddened by the stress that so many are facing.  What can we do?  If law schools were to, for example, double the number of staff in their career-services offices, would that help?  Or, would it just mean that there would be more people helping the too-many students chase after the too-few jobs?  If law schools got more aggressive / creative with "how to get a job" programming, carefully reviewed and edited all students' CVs, counseled every student individually regarding their plans and prospects, etc., would it make a difference?  We can call our friends and former students, but such calls are not likely to create jobs that do not exist. 

I imagine that many of us are being asked for advice, help, support.  What are we saying and doing?

UPDATE:  Tax prof Michael Livingston responds convincingly here to, among other things, the "law schools need to become more practical" answer.

Late Summer Law Review Submissions

I was speaking with a few colleagues recently about the late summer law review submission window, and it seemed that we each had different understandings about when exactly the window is. One of us thought it ran from the second week in August to the first week of September, another thought the window began in late July, and the third thought that the window opened a week before classes began and closed in late September. And someone else I spoke with thought that most major journals now completely fill their books in the spring, and thus essentially don't look at late summer submissions.

On further reflection I realized that we might all be somewhat correct, as the window may vary from school to school. But in the belief that more information is generally better, I thought I'd ask the Prawfs readers --- especially those with recent personal knowledge as authors or editors --- to indicate in the comment thread when they think the late summer window is. If you have journal-specific information, including whether a specific law review has filled all of its issues for the upcoming year, please include it in your comment.

The First Day of an Upper-Level Elective

It's getting to be that time of the year again -- when we all turn to our syllabi for the upcoming fall semester and figure out what, exactly, we're going to do for 28 class sessions.  I thought I'd take this opportunity to ask a question about how we deal with shopping period, and how we ought to.

My approach to my upper-level electives has always been to make the first class meeting its own standalone class, and not part of the overall flow of the semester. So, I may assign an interesting recent case that raises a host of issues central to the overall topic for the semester, or a particularly thorny problem that might introduce a theme we'll encounter at various points -- but never the foundational beginnings of the doctrine; I save that for class meeting #2.

I do this for two reasons: First, as a way of giving the students a feel for the entire course before they commit to it, and second (and more importantly), to accommodate both those students who aren't sure if they want to stay in the course (who, as such, don't have to purchase the materials), and those who might come to the course after the first day, having made a similar decision about another class.

What do others do with that elusive first day? Do you dive right in? Do you assign more thematic material? Do you try your best to scare people away?

One More Thought About Conferences

I got a lot of interesting feedback on my post last week about conferences.  Last week I talked about formats.  Recently, I've been thinking about conference audiences.

Most of the conferences I've been to have been geared towards academics.  To the extent that the audience is bigger than the conference participants (which is not the case at many of the conferences I have attended), the attendees tend to be other academics.  But I've recently been to two conferences where the audiences were much larger and quite diverse.  The first was a conference on forensic science, that ASU hosted this past April.  The conference organizers (some of my senior colleagues) invited junior members of the faculty to moderate individual panels --- an invitation that I thought was both thoughtful (it made me feel loved) and good sense (as it let those of us who are less well-known meet some truly impressive people in the field).  The audience at that conference (which discussed the recently released National Academy of Sciences report on forensic science) drew a very large audience including lawyers, law enforcement, activists, and scientists, as well as academics.  The conference seemed to draw such a large and diverse crowd both because of the subject matter, which is of interest to many groups outside the academy, and because of the panelists, which consisted of leading experts in assorted fields presenting independent research and commenting on the National Academy's report.

The second conference with a large and diverse audience was a conference on criminal appeals that I recently attended at Marquette Law School.  Most of the panelists were law professors who had written short papers on the topic of criminal appeals (those papers, including one by me, will be published in an upcoming issue of the Marquette Law Review).  The large audience assembled to hear those papers was made up of practicing lawyers, and the Q&A sessions demonstrated that the audience was really engaged.  The organizers of the conference seem to have secured a large audience by selecting a topic that was broad enough to appeal to a large segment of the bar and by offering CLE credit for attending.  This format strikes me as a brilliant idea, not only because it encourages an exchange of ideas between the academy and the bar, but also because it allows law schools to provide something of value for their alumni while keeping them involved in the intellectual community of the school.

Full Professor, Without Tenure

At the beginning of the upcoming school-year, I become a bit of a strange creature within our profession (if I wasn't already) -- a full professor without tenure.  The reason is simple enough to explain -- American University has a rigid and inflexible (six) years-of-academic-service requirement before one becomes eligible for tenure, but the only time requirement for promotion to full professor is (two) years of service at the associate professor level.  Because I was already an associate professor when I moved laterally to American two years ago (and wasn't demoted), I satisfied the latter requirement earlier than is typical for folks who start at AU, who usually don't get promoted to associate professor until after their fourth year of teaching.

I raise this, though, because it leads me to wonder about the professional etiquette of being a full professor without tenure. For instance, do I need to note on my cv (and elsewhere) that I don't yet have tenure, since most will naturally assume, based upon the title, that I do?  Does that, in turn, send perhaps the opposite message -- that I was denied tenure, and am now effectively "of counsel" at my law school? (A fate which may yet await me...)

More generally, isn't it usually the other way around -- that folks get tenure based upon their professional accomplishments before they are promoted to full professor?  That's certainly true in other academic disciplines, isn't it?  If so, does that suggest that tenure based on a rigid years-of-service requirement causes more problems than it solves?

I'm torn on the tenure question, because I totally get the egalitarianism of not allowing folks to come up for tenure early, since that would create very strange and informal pressures on both the rank and tenure committee and on the junior deciding whether or not to go up early.  But it seems equally strange to have promotions and tenure so thoroughly unrelated to each other.  What's the magic bullet, here?

In Defense of Law Schools, by JB Ruhl (FSU Law)

N.B. This post is by JB Ruhl, a colleague of mine at FSU.

There has been plenty of buzz on legal blogs lately in response to Paul Lippe's AmLaw blog post laying out the case against the prevailing law school pedagogical model, in particular the status and role of the law faculty. There is no question that there is room for improvement in the American law school model, as there is in every educational model. Bill Henderson at Indiana University Law School, in a post on the Legal Profession Blog, makes a good case that Lippe's post deserves attention and that if times are changing for lawyers' clients, they are going to change for lawyers as well, meaning law schools must be attentive to the needs of our students to be able to succeed in a transformed professional environment. Nevertheless, let us not get so carried away in laying the blame on law schools as Lippe does.

Before I go further, a few disclosures. First, I am a law professor, a tenured one at that. I have been tenured at a rural public law school and at a public law school in the state capital of a major state, and I have visited at private "top 25" law schools. I've seen the spectrum of legal education. Second, I also practiced law for longer than most law professors prior to entering teaching--12 years with a very large law firm, the last four as a partner. I was in charge of hiring for one of the firm's offices for two years. I know what the practice of law is about, and I know what to expect at the entry level hiring stage. The upshot is that I do value the value of ensuring that law schools prepare graduates for entry into the profession, but I also equally value how important it is not to reduce the law school experience to that of a trade school. Now back to Lippe's ditty.

In short, although there is some truth in the basic theme of Lippe's assessment of the role of law schools and what they deliver, which I will get into later, how he arrives there is thoroughly off base. Here's why:

1. Lippe repeatedly suggests that medical and business schools have got it right and law schools provide "inferior training." Oh really? So, when our nation is in the throes of a debate over the runaway costs of health care and the global economy is in a massive recession due largely to the utter largess and indulgence of our big business and investment industries, law schools should emulate medical and business schools? I think not. Rather, I suggest that medical and business schools are right up there with, if not ahead of, law schools in the need to examine their pedagogical models. In any event, it is not useful to compare medical, business, and law school models--they are three vastly different professions with distinct subject matters and professional pathways.

2. Lippe goes further, arguing that "law schools will have to produce fully functioning lawyers who can quickly become economically viable--not just proto appellate clerks." Just like medical and business schools do, right? Wrong. Medical schools do not produce "fully functioning physicians" and business schools do not produce "fully functioning corporate executives." Medical residencies and corporate ladders are the next training grounds for graduates of those professional schools. Indeed, Lippe identifies a root problem with legal profession--that "firms' appetite for subsidizing training will decline." It already has declined, because the "law as a business" model of elite law firms, which replaced "law as a profession" in the 1980s, has squeezed out everything but the billable hour from the life of associates. With a few notable and noble exceptions, BigLaw law firms want more and more to be able to charge new associates' billable hours they can justify to clients, but want less and less to bear the cost of getting the new lawyers "fully functional." Most of the discontent Lippe identifies seems to come from practitioners locked in this "law as business" model, whether in elite law firms or large corporate departments. It may be time for them to reexamine their commitment to training young lawyers, as well as to law as a profession. 

3. Nowhere, for that matter, does Lippe define what a "fully functional lawyer" is. What does Lippe expect law schools to produce? Is it a lawyer equipped out of the box to argue a case in the U.S. Supreme Court? To take the deposition of a Fortune 50 CEO? To negotiate the terms of a major corporate acquisition? Of course not. Consider that most first year law students come to law school with little or no knowledge of the legal institutions of our nation beyond the basic civics class level. Lippe argues that the "time to [lawyers'] professional independence is longer [than physicians']. This is not because law is more complex or riskier than medicine, but because legal training is inferior." Well, at least he concedes law is complex and risky. But is it fair to say that I wouldn't want a newly-minted lawyer arguing a bet the company lawsuit for me because his or her training was inferior? No. The reason why is because I want someone who has argued hundreds of other less high stakes cases before taking on my high stakes case, and that simply takes time on the job. There is no way in three years of law school to get someone into that position. What we can and should do, of course, is strive to get our graduates into a position to become such a lawyer.

4. Part of the problem with Lippe's pitch in this respect is that he talks about law schools preparing graduates for the "legal profession" as if the legal profession consists exclusively of private law firms and corporate counsel offices, where, if I understand him correctly, the theory and policy of law are irrelevant. I'm not sure what Lippe believes goes on in law firms, but I know from my practice days that lawyers at law firms with sophisticated clients are often asked to think outside the box, to propose changes to legislation or regulations, to make novel arguments in court, and to suggest cutting edge legal strategies. Moreover, the legal profession extends far beyond law firms and in-house counsel offices. Lawyers working for public entities and non-governmental organizations are even more likely to be asked to "invent" law for the future. Lippe believes legal education should be reduced to "no more than a year of case method, a year of clinical, and then a year of externship with subject area focus, along the lines of medical school." What happened to thinking about what the law should be, rather than just what it is?

5. Lippe's central objection with law school faculties is that they "have grown more distant from the profession, and the legal academy has come to define itself as primarily engaged in a scholarly pursuit (like, say, literature or history), as opposed to a professional pursuit, like, say, medicine or business." But if one believes there is any value to ensuring that law students learn to think about the "ought" and not just the "is" of law, there has to be an emphasis on the part of the faculty to exploring the "ought" in order to be able competently to teach their students how to do so. Law is inherently a normative enterprise within society. True enough, practitioners must learn the mechanics and basic content of law, and for that purpose law schools must maintain a strong emphasis on practice training, but practitioners--good ones--are not simply automatons applying black letter law to uncontested facts. The law is often murky, or just plain bad, and facts are often incomplete and contested. Thinking about what ought to happen in such contexts is an important facet of legal education I fear Lippe's model would stifle into oblivion. In any event, Lippe's suggestion that law faculty scholarship is devoid of practical focus and content suggests that he has not read much of it. 

6. Along with his claim that law schools have "have grown more distant from the profession," Lippe goes so far as to claim that law professors hold law firms "in low regard." One solution he proposes is to use "more adjunct faculty who are active practitioners." Has he examined the course offerings at any law schools lately? He's welcome to check out ours at Florida State University, which includes a plethora of practical and skills oriented courses, many taught by our faculty members. I teach, for example, courses on Land Use Regulation, Growth Management, and Environmental Issues in Business Transactions. Hardly "distant from the professsion" or the sign of holding law firms "in low regard." Like many law schools, moreover, we offer numerous courses taught by adjuncts who are leading practitioners and our faculty members routinely invite practitioners from all types of practice settings to guest lecture, speak at forums, and mentor our students. Many of our faculty members, like those at most law schools, actively participate in local, state, and national legal professional associations such as the American Bar Association and state bar associations--writing for their journals, speaking at conferences, and chairing committees. Lippe is working off a mistaken straw man of what goes on inside most law schools and inside the heads of their faculty members.

I could go on with what is misinformed and off the mark with Lippe's assessment of legal education, but I should give him some credit for identifying the need to respond to the changing landscape of the legal profession (within which I include more than BigLaw and Fortune 50 in-house counsel offices). We must get control of the cost of legal education--it is pricing people of modest means out of the profession and making it near impossible for new law grads to enter public service. We must deliver the skill set that will enable our grads to enter the path to becoming a "fully functional lawyer," a path that is clearly changing at their feet. And we must continue to ensure that law school is about the law student, not the law faculty. My problem isn't with those ideals, it's with how Lippe articulates them and the solutions he offers. Less emphasis on teaching appellate common law decisions and more emphasis on clinical experiences are both part of the mix for legal education reform, but the trade school mentality that permeates Lippe's vision of legal education would be a giant step into backwardness and the last nail in the coffin of law as a profession. 

JBR

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?