Thursday, May 10, 2012
Productivity: A Mother's Day Blog Post
In honor of Mother's Day, I thought I'd write about work-life balance, which is a bit like the Marquis de Sade writing about abstinence. This year my scales have had the elephant of work on one side and the feathers of my life on the other, and still I constantly feel as if I should do more better faster.
My husband has been on my case about this problem, and for good reason. But he finally said something last week that hit home, so to speak. I was complaining that I hadn't been "productive" during the week, and he replied, "That's because you've defined productivity to exclude anything to do with home." His words weren't angry nor were they an attempt to be consoling. He was just stating a fact, which is what made his words so resonant for me. It would be an overstatement to say that I define productivity by my word count, but not by much.
As a wife and mother of three sons, my family is my top priority. But I'm not sure I consistently send them that message, and it can be hard to know what making family your top priority means on a moment-t0-moment or day-to-day basis. I definitely put a high value on time spent in direct interaction with them: I try never to work late nights or weekends, and I've gotten rid of cable television and wi-fi at home to prevent distractions from swamping family life. That said, I don't much value the time I spend making home "a home." I almost completely discount the value of performing the mundane chores that make up this thing called a life. I tend to begrudge every second spent folding the Sisyphean piles of laundry on my dining room table, taking the emotionally withholding cat to the vet, or doing the dishes, treating these chores as obstacles to productivity. I don't even enjoy cooking much anymore because it takes "too much time." I do all these things, but they give me little sense of accomplishment, and I tend to view them as getting in the way of what I "should" be doing.
As I write this, it sounds pretty misguided. The worst part is that I suspect I'm not the only academic who has defined productivity so narrowly that she has trouble setting a satisfying work-life balance as a result. The problem, ultimately, is one of accounting. On the life side of the balance, motherhood has fleeting and fortuitous moments of joy, but one finds few signposts, while guiding children to adulthood, that one is headed in the right direction. Even when one knows certain tasks are necessary, there are few direct measures that tell one whether one is doing them well or poorly. [Is yelling ever warranted to make sure the kids' homework gets done? I sure hope so.] For many of the tasks, indeed, such concepts seem entirely beside the point.
Work, on the other hand, has a strict system of productivity accounting. (Academia's productivity accounting is much too strict, but that's a topic for a different productivity blog post.) One can measure one's productivity by words written, articles published, lectures delivered, students taught, and there are often encouraging signs along the way that one is doing one's tasks well. It is easy, therefore, to let work, with its tangible rewards, overbalance life, with its intangible ones.
My hope for Mother's Day is that I can recalibrate.
Should Faculty Decisions Include Mandatory Cooling Off Periods?
The other day I heard about a very interesting practice. A faculty will have a discussion about a candidate for a job, and then not open voting up on that candidate until two weeks have passed. The same thing goes for promotion and tenure decisions.
The benefits: concerns raised at the meeting about scholarship can then be checked out by people who want to follow up. It also makes sure people don't vote in a hot emotive state, which sometimes occurs in controversial cases.
The cons: marginally slows down a school's ability to make offers, or waves of offers, and creates more opportunities for back-room lobbying or coalition-building, although it's not obvious why that's a bad thing. In the context of the p/t decisions, it might also create 2 weeks of total awkwardness for some people too.
What do y'all think? Better suggestions to facilitate deliberation or other goals re: hiring and p/t?
Thursday, May 03, 2012
Waiting out the Professor and Clerkship Markets
Prawfsblawg's entry-level hiring report is about to shut down, so my last post as a guest blogger seems like a good time to discuss a strategy that I suspect is underemployed by both faculties hiring assistant professors and judges hiring law clerks. The strategy is waiting for the market to "clear" and then hiring the most talented people who have fallen through the cracks. I want to posit here that the strategy is underutilized in both the law professor and clerkship hiring markets.
Chicago is the relatively rare elite law school that does a lot of entry-level hiring. In a typical year we will interview 20-25 candidates and read work by perhaps 80 more candidates. As a result, we vet almost all of the very strongest candidates on the market each year. Sometimes, our own assessments of someone's work or our tastes will differ sharply from those of a peer school. Sometimes, a school will hire someone who isn't officially on the market. But even accounting for those cases we will usually vet most of the entry-level candidates who are getting hired at the "top" schools (however defined). Every year we will also interview talented candidates who aren't offered tenure track positions at any law school. And those folks are the ones I want to focus on.
To the best of my knowledge, there are very few non-elite schools that try to wait out the market, figure out who is unjustifiably "dropping on draft boards," and snap that person up. Instead, a number of non-elite schools shy away from candidates who look high-end at the outset. Other schools set up interviews with bullet-proof candidates very early in the process and then suffer cancellations when the candidates get too many great AALS interview requests.
I recognize that a lot of schools are slot / subject matter constrained, and with narrow and technical subjects there may not be enough plausible candidates in the pool to justify a waiting strategy. But when a school that has trouble getting its first choices is looking for best athletes or hiring in an area where there are a few dozen candidates in the FAR registry with the right set of interests, I suspect there is a lot to be gained by waiting, and reaching out to candidates a month or so after AALS.
A related fascinating aspect of the entry level hiring market is the structural hole that exists in the social network of appointments committee chairs. Peer schools talk to each other and share information about who each school is seeing and how particular candidates did in interviews. But appointments committee chairs are evidently much less likely to speak with counterparts at schools whose rankings differ sharply. That is a missed opportunity for the less elite schools. Within a week or so of the AALS, an appointments committee chair from an elite school is likely to have a good sense of which "Rashard Lewis" candidates have a lot to offer but are nevertheless likely to drop on draft boards for whatever reason. Yet these conversations, as best I can tell, rarely occur.
The same thing happens with federal clerkship hiring. Every year each law school that produces a lot of clerks can probably identify a couple of really outstanding students who had interviews with great judges but wound up with no clerkship when the music stopped. I am sure that on September 14 of this year, there will be terrific clerkship candidates at every top law school who were not offered a clerkship. Some will have subpar interviewing skills, but most will be victims of bad luck. Federal judges who wish to remain "on plan" but hate the madness that is September 13 would do really well to call up law schools on September 14 or 15 and say, "Who is your best person who got shut out on the 13th?" I for one would be be delighted to field such calls and help judges find the right match.
There is a potentially important distinction between the two markets. Clerkships are a one- (or sometimes two-) year gig. A clerk who is dejected after striking out on September 13 is going to be extremely loyal to a late-mover judge and will be motivated to do wonderful work. With professors, there is some danger that the candidate who dropped will not want to stick around at the school that hired him or her for that long. Having said that, I suspect that a law school is much more likely to engender loyalty in a rising star by waiting out the market and coming to the rescue than by making an exploding offer that a candidate feels forced to accept. So I do think that for a school that wants to hire ambitious but loyal professors, trying to wait out the market is a smart approach.
Like many strategies, waiting out the market won't work well if most schools try it. But right now, my impression is that almost no law faculties and few judges are pursuing the strategy. It's a market failure that smart "Moneyball" employers would do well to explot.
That'll be my sign-off. Thanks to Dan and the gang for inviting me to return to Prawfsblawg. And thanks for reading.
Wednesday, May 02, 2012
Signing Off, With a Parting Shot at Legal Education
Thanks to Dan and the rest of the Prawfs community for welcoming me here this past month. Although my stint is up, and I'm signing off today, I can't help taking one last shot at some important legal education news that has just broken. Chief Judge Jonathan Lippman of the New York Court of Appeals has just announced that all candidates for admission to the Bar of the State of New York will soon be required to prove that they have performed at least 50 hours of law-related pro bono service prior to being admitted. I'm a firm believer in the value of pro bono service, and did quite a bit of pro bono work in my past life as an associate at Cravath. And as Jason Mazzone notes over at Balkinization, all these person-hours could well produce some serious social good. But this new rule strikes me as seriously problematic, particularly in light of the challenges facing legal education and the prevailing economic climate, both of which are the topic of so much current discussion and angst.
The current recession has not been kind to the young, particularly those without a broad support network. The deck is stacked against them in a contractionary economy, both because they haven't yet had the chance to acquire sufficient resources to see them through hard times, and because in periods of scarcity (like the current one), those who do have such resources guard them ever more jealously, making it difficult for those just starting out to get on their feet. Chief Judge Lippman's proposal notably declines to impose pro bono requirements on current members of the bar on grounds that it would not be "workable," in part because there are "lawyers who can't make a living on what they are doing now." This special pleading seems to be of a piece with the current trend of muddling through hard times by demanding more sacrifice from those who have less, while failing to make comparable demands of otherwise similarly situated people who are fortunate enough--often due to nothing more than the historical accident of having been born at the right time--to have more.
As my former colleague Brian Tamanaha and others have argued at length, law school is an increasingly bad deal for many students. The looming spectre of unmanageable debt and the fierce competition for legal employment have created all sorts of opportunities for incumbents in the legal profession to take advantage of those who seek to enter the profession as a means to a better life. I'm sure I'm not alone in having been somewhat concerned at the contortions that law schools and legal employers alike are willing to go through to steer a course between the ABA's Standard 305 (governing externships) and the recently reinvigorated enforcement of the Fair Labor Standards Act. Even federal judges and US Attorneys Offices appear to be hungry for free labor from those who are desperate to get a foot on the ladder to a successful legal career. The fact that we incumbents are increasingly demanding these types of sacrifices of those who seek to climb up the ladder behind us strikes me as at best uncharitable and at worst venal. Certainly it strikes me as inconsistent with the values underlying a commitment to pro bono service. If the stewards of the legal profession really think pro bono service is important enough to be made mandatory--and I'm not opposed to that idea--then we should be mandating it across the board, not singling out already disadvantaged new entrants for treatment we don't have the stomach to impose on ourselves.
I hate to be leaving on such a down note, but that's all the time I have this go-round. Thanks again for listening.
Tuesday, May 01, 2012
Opportunities to present for young (and old) scholars
My friend Rose Villazor is putting together an appendix for an AALS newbie conference presentation having to do with where prawfs can present works in progress. She has already done an admirable job in gathering information but I figured we might usefully crowdsource here.
So take a look at the list after the jump below (forgive the formatting errors; damn you Word!) and use the comments to share any other venues that you know about where folks can try to present a work in progress, eg., conferences, workshops, colloquia, etc.
I'll add a few that I'm aware of or involved with right at the top: The NYU Crim Law Theory colloquium that Mike Cahill and I run; Prawfsfest!; the ASU Young Scholars gathering in mid-March; and the Law and Society Crimprof shadow conference.
I. General Conferences
- AALS – January
- LatCrit (every two years)
- People of Color Conferences
- i. Conference of Asian Pacific American Law Faculty (CAPALF)
- ii. National People of Color Conference (every five years with the last one held in 2008)
- iii. Regional People of Color Conferences
- Regional Law Schools Associations Conferences
- i. Central Association of Law Schools
- ii. Midwest Association of Law Schools
- iii. Southeastern Association of Law Schools (SEALS) (typically July/August)
- Society of American Law Teachers (SALT)
II. Specialized Conferences
- AALS Sections Works-in-Progress Programs
- American Law and Economics Association (ALEA)
- American Society of International Law (ASIL)
- American Society of Comparative Law
- American Society for Legal History
- Annual Indigenous Law Conference
- Clinical Legal Education Association (CLEA)
- Clinical Writers Workshop
- Conference on Empirical Legal Studies (CELS)
- Immigration Law Teachers Workshop
- Labor & Employment Colloquium
- Law and Society (typically in June)
- i. Regional Law & Society Conferences
- Law, Culture and Humanities (typically in March/April)
- Legal History Conference
- Property Works-in-Progress
- Syracuse Law School Center on Property, Citizenship and Social Entrepreneurism
- Western Empirical Legal Studies
III. Junior Scholars Writing Competitions for Pre-Published Papers
- AALS Annual Junior Scholars Writing Competition
- AALS New Voices Call for Papers
- AALS Sections Writing Competitions
- George Washington Center for Law, Economics and Finance Junior Faculty Workshop (C-LEAF)
- Harvard/Yale/Stanford Junior Scholars Forum
- Law & Humanities Junior Scholars Workshop (Columbia, USC, UCLA and Georgetown)
- New Voices in Civil Justice Scholarship Workshop
- SEALS Call for Papers
IV. Junior Faculty Workshops
- Emerging Family Law
- Emerging Immigration Law Teachers & Scholars
- Emerging Scholars Conference (Chapman)
- Junior Faculty Criminal Law Workshop
- Junior Faculty Federal Courts Workshop
- Junior Faculty Forum for International Law (NYU)
- Junior Scholars in Intellectual Property
- Junior Faculty Interdisciplinary Scholarship Workshop
- New Perspectives in Comparative Law
- SALT Junior Faculty Development Workshop
- Southeastern Law Scholars Conference
V. Colloquia/Workshops (Subject Specific) 
- Boston College Legal History Roundtable
- Columbia & Fordham Critical Race Theory
- Duke International & Comparative Law
- Emory’s Feminism & Legal Theory Project
- Georgetown Law & Economics
- Harvard’s International Law
- Hofstra’s Colloquium on Law & Citizenship
- Hofstra’s Colloquium on Law & Sexuality
- Indiana Law, Society & Culture
- Loyola Tax
- Minnesota Law & History
- Northwestern Constitutional Law
- NYU’s Colloquium on the Law, Economics and Politics of Urban Affairs
- Santa Clara Social Justice
- Temple International Law
- University of Miami Legal Theory Workshop
- UC Berkeley Law & Society
- UCLA Legal Theory
- Virginia Law & Economics
- Wisconsin Institute for Legal Studies
- Yale Law & Economics
 Please note that the information provided in this Appendix is by far not exhaustive. Visit individual schools’ websites for additional information regarding conferences, workshops, call for papers, etc. Also, visit www.legalscholarshipblog.com for further information.
 Again, this list does not provide the complete list of workshops and colloquia within each institution specifically and the legal academy generally. Most schools have general and specialized workshops and colloquia. Visit a school’s website to get information about the types of workshops and colloquia available in that institution.
Friday, April 27, 2012
Yale Law Women's Eye Opening "Speak Up" Report
I have just finished reading through the Yale Law Women's brand new report on the status of male and female law students at Yale. The "Speak Up" report revisits an important topic that the same organization had reported on in 2002 and assesses progress over the last decade. The phrase "must read" is horribly over-used, but I genuinely believe that every professor and administrator in the legal academy ought to print out this report and read it over the weekend. The students at Yale who worked on the report should be commended for gathering a great deal of illuminating quantitative and qualitative data to assess the experiences of students and faculty.
There are a bunch of different findings that could be highlighted, so I want to comment briefly on a few that jumped out at me. First, the disparities between men and women speaking up in class remain substantial. I suspect New Haven is hardly unique in that regard. The Speak Up Report somewhat sheepishly mentions an obvious solution, which seems to have substantial majority support from the Yale students surveyed: Cold-calling via the Socratic method, especially what the Report calls "warm-hearted cold calling." A great virtue of cold-calling is that everybody speaks. While the report details various sensible steps that can encourage more women to speak up in class, it seems nothing will work better than having the majority of the class time be devoted to Socratic discussion rather than lecture followed by Q & A from volunteers. As someone who has used [hopefully] "warm-hearted cold calling" for a decade, it's my impression that the comments of students who never raise their hands are, on average, better than the comments of students who regularly raise their hands. Talking in class, and being peppered with hard but fair questions from a professor, are big parts of the education that students are paying for. And I think that perk ought to be spread as equally as possible.
Some of the other key findings report similar levels of disatisfaction among male and female students. A second eye opener is the report's discussion of the small group experience. Every Yale 1L take one substantive fall semester class in a very small section. It is a big selling point for Yale. As a Deputy Dean who helps build Chicago's teaching schedule, I can tell you that Yale's resource investment in its small groups must be enormous. Even wealthy schools like ours would have a hard time duplicating what Yale does without either growing the faculty substantially or relying very heavily on adjuncts to teach 2Ls and 3Ls. Yet, for all this investment, Yale's results are disappointing. Less than half of Yale students describe their small-group experience as a positive one. I don't know what to make of this finding. Maybe Yale students' expectations are unrealistically high? Maybe Yale doesn't have the right faculty teaching small groups? Maybe the small-group experience would add more value in the 2L or 3L year? The student response rate was pretty darn high, so I really wonder what is going on. The report also concludes that the faculty and administration at Yale do not reward good teaching, and if true, then that could explain the problem. For what it's worth, my own small group experience at Yale in 1997 (with Peter Schuck) was wonderful, and Peter became an extremely generous mentor through my three years at Yale and thereafter.
That brings me to point three: mentoring. There might not be enough Peter Schucks to go around. Neither female nor male students seem satisfied, even attending the law school that can lavish more faculty resources on each student than any otherschool. 51% of Yale law students report that they feel no one on the Yale faculty is a mentor to them. That is depressing. 72% of Yale law students report dissatisfaction with faculty mentorship. That is more depressing. To be sure, comparable figures may be even higher at some other elite schools that haven't bothered to survey their students on these questions. But the reported figure suggests that official, sunnier accounts of the student experience at Yale, in which one-on-one faculty mentors are "offered to every student at Yale as a matter of course" and "all students get to know faculty very well," are more aspiration than reality. I don't mean to pick on Yale. It is admirable that people within the school are forthrightly confronting what it would need to do to improve the student experience. And I would be surprised if the faculty weren't already giving these issues a great deal of thought. Hopefully creative action will follow. Yale has led the legal profession on many vital issues in the past, and it would be nice to see the law school lead on the issues of instruction and student mentorship.
I am sure that every law school confronts many of the same issues that were raised in the Speak Up report. I am curious about what the comparable data would look like at my own school and have asked my administrative colleagues today whether we can conduct similar surveys of our own students and faculty. In the mean time, I think it will be useful to talk about what we ought to infer as we attempt to generalize from the Yale report. Is it that if the ultimate "haves" school has these serious problems, then they must be even more pervasive among the "have nots"? Or is it something about the faculty culture or the expectations of students at the "haves" schools that makes these sorts of problems less pervasive at schools with fewer resources? Or is this an issue that is a bigger problem at Yale than, say, the comparably sized schools like Stanford, Chicago, and Cornell? Most importantly, what can we as legal educators do to close the mentorship gap? And, since the Speak Up Report makes as many recommendations to students as it does to faculty about how to solve these problems, how can we get as many students as possible to help us help them? Downloading the report is a good place to start.
Tuesday, April 17, 2012
We are all Empiricists Now, so Which Empiricists Should We Hire?
Evidently, we are all empiricists now. Except for me. But even I have a cool randomized field experiment in-progress with David Abrams, so I'll become an empiricist in no time, at least by some people's definition. Phase one: Collect data. Phase two: ???? Phase three: Profit.
Anyway, the Brian Leiter thread on empiricists, general frustration at identifying the right criteria for classifying empiricsts, and the subsequent comments ("My earlier post cataloguing School X's eight empirical legal scholars neglected to mention my dear friend and colleague, the multi-talented empiricist Slobotnik. Signed, mortified School X booster.") provide an opportunity to ask what sorts of empiricists should be hired in the legal academy. I recognize that the answer some people will provide is "none." I'm not addressing that crowd, though I am raising some issues that might be helpful to people who are skeptical about empiricist hiring in general on law faculties.
Here, then, are a few thoughts about how to hire entry-level quantitative empiricists with PhDs in disciplines like Political Science or Economics, as well as a coda about what many empiricists should be doing as the "field" matures. Hiring qualitative empiricists or experimentalists is a different ball of wax entirely, so I'm not really writing about those sorts of hiring decisions. My views are informed by having been a member of a law school's faculty appointments committee for most of the last decade (with trips to seven of the last ten AALS hiring conferences, for the quantitatively minded). They do not reflect the views of my institution. And my views don't match up perfectly with the way I have voted internally. I'll omit obvious advice like (a) hire smart people, and (b) fill curricular needs:
1. Ignore the findings. The legal academy probably focuses too much attention on the results of the empirical research project, particularly when hiring entry-level scholars. This is an empirically testable claim, but my impression is that entry level scholars with highly significant results do better on the market than candidates with marginally significant or null results. If this effect exists, it is largely pernicious. It rewards blind luck, it promotes the testing of questions that the empiricist already has strong intuitions about, it encourages entry-level scholars to write tons of papers (with less care) or run countless regressions until they find an interesting result, and it reinforces existing publication biases, which tend to publicize significant results and bury null results. Subject to the caveats below, we should not expect someone who achieved a highly significant result in paper A to be particularly likely to achieve a highly significant result in paper B . . . unless the scholar in question falsified data in paper A and wants to press her luck. But when you're doing entry level hiring, you really ought to care about papers B, C, and D. Which is why you should (almost) ignore paper A's findings.
2. Emphasize the methodology. Now the caveat to suggestion 1. Sometimes what's driving a highly significant result is a methodological breakthrough or the construction of a large new data set. These efforts or achievements should be rewarded. Someone who had a methodological breakthrough in paper A is plausibly more likely to have further breakthroughs in paper B. (Again, this is testable.) Someone who assembled a massive data set is likely displaying the work ethic and care that will serve them well in future projects. The same goes with framing a really interesting question, ideally one where either a null result or a highly significant result is revealing. Now, there are two major problems with emphasizing methodology. First, scholars genuinely making significant methodological breakthroughs are likely to go to Economics or Political Science departments so they can hang around with other researchers who are making methdological breakthroughs. Second, most law faculties don't have enough good empiricists to evaluate the empirical chops of a teched-up entry-level candidate. These faculties tend to lean heavily on references. And most references are relatively unreliable. (Except for me. And you!) The only things less reliable than references are outside letters and amicus briefs.
3. Hire candidates who intend to grab low-hanging fruit. There are important fields in legal scholarship where empirical scholarship has largely saturated the market. Setting aside extremely gifted candidates, these are areas where it is easy to pile up citations and hard to make much of an impact. I think that's become true of Corporate and Securities law, as well as judicial behavior, and the bar may be getting higher for quantitative empiricists writing in these areas. But there are other areas of law where great empirical scholarship is harder to come by: Civil Procedure, Comparative Public Law, Bankruptcy, and Health Law. Ok, you might have caught on to what I did there, having just mentioned the specializations of the last four JD/PhD empiricists hired by Chicago. Of course, these hires happen to be brilliant too; and that doesn't hurt. That's not to say we didn't try to hire a couple empiricists in fields where the low-hanging fruit has been picked. But the trend may be meaningful.
4. Hire empiricists who have really practiced law. This is a hedging strategy. A fair number of empiricists on the market have little evident interest in legal doctrine and seem poised to become middling or worse teachers and colleagues. An empiricist who has actually practiced law at a high level and seemed to have this practice experience inform her research agenda is a relatively good bet to add value to the institution even if the research winds up only being ok. My understanding is that at least one major law school that launched a JD/PhD program refused to let its JD/PhD candidates participate in on-campus interviewing or otherwise utilize the Career Services office to pursue non-academic jobs . . . [Shakes head].
5. What will we do with all of these empiricists? Some empiricists have become or will become superstar researchers. Most will not. An interesting question going forward is what the latter group should do with their time. I would hope that non-superstar empirical scholars increasingly turn their attention to replicating highly significant work by others upon which policymakers have relied. If my hunch about results-driven hiring is correct, then the temptation of entry-level scholars to falsify data is strong. I worry that some scholars will give in to temptation. A good faculty workshop can catch all kinds of errors in the data. Many good questions are asked about robustness. But such a workshop will be unlikely to unmask intentional falsehoods in the underlying data - that typically takes a lot of time and attention. I suspect that the legal academy is presently at a point where trying to replicate famous empirical results - using new data sets ideally - may represent some of the most socially useful low-hanging fruit, especially in fields that are heavily populated by empiricists.
Such replication is usually not methodologically innovative, so it probably isn't the wisest work for most entry-level scholars to do, given the obsession most faculties have with "high upside" hires. But for established empirical scholars who have largely reached their ceilings, a renewed emphasis on replication would be most welcome. This is an alternative to the "teaching colleges" approach discussed elsewhere. It is probably not wise to ask average-ish tenured JD / PhDs to give up research and focus exclusively on teaching. But it is perhaps more appropriate to ask that they try to maximize the social value of their research, and keeping the profession honest through replication may be the best way to accomplish that end.
Jon Klick offered the following additional thoughts, with which I largely agree:
Ideally, you do want someone who knows the difference between a true null/zero and a statistically imprecise result. Further, to some extent, statistical precision will be endogenous to research design. All other things equal, a better design (or using more appropriate data) is more likely to lead to either identifying a true zero or else a statistically significant result. This suggests that there is some information content about the candidate’s skills included in the finding of a statistically significant result. As for zero/insignificant results, assuming the candidate can speak thoughtfully about whether it is a true zero vs a limitation in the research design and/or inherently noisy data, I agree that we shouldn’t downgrade a candidate on that basis.
There’s another important sense where the results matter. Econometric work (really any statistical work) is as much art as science, so there are times when you do everything right and you come up with some crazy result that is almost certainly wrong. Unsophisticated/immature empirical researchers often present results like these and come up with some post hoc rationalization. This is a very bad sign. A sophisticated/talented empirical researcher knows to either re-think his design or to abandon the research and move onto something else in these cases.
I do worry about the problem of "crazy" results being abandoned and never seeing the light of day. As a Bayesian, I want to know about crazy results, null results, and every other kind of result. I certainly feel that a good empirical scholar ought to caveat the heck out of those crazy results and other scholars citing that work need to understand those caveats to contextualize the results.
Monday, April 02, 2012
Law Deans in Jail! or Law Deans in Jail?
Over the last few days, I had the pleasure of perusing a new draft, Law Deans in Jail, (co-authored by Morgan Cloud and George Shepherd, both of Emory). The paper is forthcoming, and I confess I'm curious what the indemnity clauses will look like in the author-publisher agreement...
My comments are really more requests than criticisms as such. Upon reading it earlier this weekend, my first reaction was a plea for punctuation. Given that the brief/paper makes the serious and plodding case for the criminal liability of some deans and institutions (as well as USNews) under various federal criminal statutes, I was puzzled why the title didn't have a ? mark in its title. The merely declarative title makes it seem as if the case is open and shut. In the introduction, the paper notes that the sources for making the federal case against various persons and entities are news stories, not sworn depositions, etc, and thus the claims about liability are contingent or tentative. By the end of the paper, however, it's hard to see much for the case for contingency. My sense at least is that Cloud and Shepherd think there's a basis for a federal case here and that it should be made.
I mention this in part because it reminds me of Paul's earlier post today referencing Fallon and amicus briefs, and the duties of scholars (a topic I find myself perennially interested in). I think Cloud and Shepherd have made a very interesting argument in their paper. It's not entirely one-sided. After all, in a few places, they consider why deans might respond to the USNews questions in "gaming" ways that are perhaps morally defensible. But the paper's not exactly balanced with much effort to discern what might be the other side's defenses, legal or moral. Of course, not every paper needs to be aggressively even-handed, and there is still a good case for some scholarship to be useful enough to lay the groundwork for actual litigation. (*Disclosure: Maybe I'm just saying that tendentiously because I have a project that's I hope will eventually serve that function too.)
So, in addition to the plea for the question mark and, with it, the unreasonable request for more discussion in an already 70-page paper of the shortcomings of the evidence adduced against the legal education institutions and USNews (or the possibility of countervailing defenses), I also have a second question.
That is: among our readers who have read the paper and served as a prosecutor (preferably a federal one), or otherwise know a decent enough amount about criminal law, how many would actually exercise the discretion to bring the case, or at least investigate its claims further, etc.? (This goes to the usefulness of scholarship per Paul's discussion in his other shrewd post of the morning.) If you wouldn't bother from the outset, why not? If you would make at least preliminary investigations, what kind of specific factors would convince you that this is a federal case worth bringing as a criminal case as opposed to some other form of legal response (or perhaps no legal response, just social pressure/media, etc.). (Please don't just refer to the Petite or other USAM factors. Apply them!). Or, if you're a populist, like some friends of mine, would you want an equitable grand jury to decide whether to go forward apart from the legal accuracy question?)
I was definitely more persuaded after reading the paper than I was beforehand that a case could be made. I understand lots of people might like to see the criminal law used to this effect because of valid concerns they have about the misleading data that was circulated and left uncorrected about job prospects or LSAT scores by USNews. But I have some qualms, none of which are vital to resolving the "federal case" issue but need to be kept in mind still. First, if law school deans now respond to the threat of criminal liability (or other legal recourse) by having to independently seek verification by Jones Day or other expensive law or accounting firms about the numbers produced by their employment and admissions offices, then that cost will be passed on to students and faculty because of a breakdown in the trust between Deans and those offices or because some Deans acted very poorly. Maybe that's a cost worth bearing but how much are people willing to pay for that? Second, maybe Deans should simply ignore the social demands on them created by the rankings and then not worry about these issues. Here, though, I think there's a colorable fiduciary claim that deans would violate duties to their stakeholders if they utterly ignored rankings; my view is they should pay them attention but not to the exclusion of acting ethically. I say this in part because I value the information-forcing benefits that rankings provide to the public.
Finally, maybe USNews and law faculties around the country need better "warning labels." I.e., Law schools could say, for the public interest we have made reasonable efforts to gin up information that conforms to the requests made by USNews or others in allowing informed decision-making, but there is always the possibility of human error or malevolence that we couldn't control, and so, caveat emptor should apply to the consumption of these data...
So: a federal case? Is this an instance of academic overcriminalization/prosecutorial over-reach? Or a much needed instance of social and legal responses to hold accountable through federal courts those who would train our legal overclass?
(Signed, verifiable, civil and substantive comments invited. Others will be removed and possibly banned.)
Wednesday, March 21, 2012
NYLS Class Action Dismissed
. . . NYLS's statements [regarding employment rates and salaries] are neither "half-truths" nor misleading. As acknowledged in the complaint, NYLS complied with ABA standards.[fn11]
11. In their Opposition Memorandum, plaintiffs try to reframe their pleadings and argue that the complaint in fact alleges that NYLS did not comply with the ABA regulations. However, the complaint is replete with allegations of compliance and utterly devoid of any allegations of non-compliance. . . . Indeed, plaintiffs' dissatisfaction with the ABA regulations themselves appears to be the admitted impetus for this lawsuit.
Although dismissing the suit, the opinion concludes with a rather heartfelt plea for law schools and the legal profession to better serve the needs of past, present, and future students. Here's an excerpt:
If lawsuits such as this have done nothing else, they have served to focus the attention of all constitutents on this current problem facing the legal profession -- from the law schools and their regulators, to the compilers of data that rate the schools to assist law school consumers, to the law firms that formerly primed the pump for a steady supply-line of associate positions to be filled by each graduating class, to the judiciary who offers clerkships to the best and brightest, to the local bar associations whose members are responsible for the continuing health and viability of the profession, and, finally, to prospective law students themselves. All must take a long, hard look at the current situation with the utmost seriousness of purpose. To the extent law schools are turning out too many graduates for the positions available, market forces will begin to correct themselves, hopefully in short order. But that does not itself excuse our collective responsibility to those who have been unfortunate enough to have been caught in the midst of the maelstrom. To them we owe our best efforts to get them situated.
The court also asks for "a renewed sense of responsibility to prospective applicants and students, starting at the law school level" with respect to employment data. But the complaint is nevertheless dismissed.
Tuesday, March 13, 2012
The Rankings Are Here! The Rankings Are Here!
It's the time of year again: the full 2013 U.S. News law school rankings have been released. The release of the rankings has the feel of a sporting event - with plenty of postgame analysis (check out, for example, here and here). For those looking for the peer-reputation scores, Paul Caron has them posted here.
And please forgive me for this little bit of unabashed institutional promotion: Pepperdine Law joined the top-tier this year at #49. Not that it matters.
Friday, March 09, 2012
How Do You Do Peer Review?
Assessing the teaching skills of our colleagues is notoriously difficult and is currently performed through two very imperfect methods: student evaluations and peer reviews. The problems with student evaluations have been amply covered in both the literature and the blogs, but I have not seen all that much on peer review, other than the usual complaints about the seemingly inevitable "Lake Wobegon effect." My school is currently looking at ways to make peer review more robust. So I would be interested in knowing how other schools do peer review and whether it provides a satisfactory assessment tool. In particular, I am interested in the following:
1. Do you have a written policy on peer review?
2. How often are peer reviews conducted -- once a semester, once a year, or only when someone is going up for promotion or tenure?
3. Are only pre-tenure faculty peer-reviewed or also tenured faculty?
4. Are visits to class for purposes of peer review pre-announced so that the faculty member being peer-reviewed knows ahead of time?
5. How many faculty conduct the peer review for each faculty member being peer-reviewed? If more than one, do they consult with one another and issue a joint report?
6. Is the faculty member conducting peer review generally in the same field as the faculty member being peer-reviewed?
7. How many class sessions does the faculty member conducting peer review attend?
8. Are the peer-reviewed faculty member's student's final examination answers (or other student work product) reviewed?
9. Do peer reviewers fill out a specific form in conducting peer review?
Tuesday, February 07, 2012
Restating, stating, shuffling, or changing?
I’m really glad to have a chance to rejoin the Prawfs community for this month. Sorry for the somewhat belated start, but the past couple of days have been a flurry. I was just out in sunny California for a fascinating international humanitarian law conference at Santa Clara Law School. As Ken Anderson, one of the participants, notes in his opinio juris blog post on the conference, topics covered included the applicability of classic criminal responsibility theories to robots that are used in warfare; the intersections between gender, justice, and conflict; and the right to counsel in military proceedings. I had a chance to present on my new book on child soldiers, several aspects of which I hope to blog about here this month as well.
Yesterday the Transnational Law Institute at my law school hosted George A. Bermann from Columbia Law School, who delivered a fantastic public lecture entitled "American Exceptionalism in International Commercial Arbitration". We are fortunate at Washington and Lee to have Susan Franck as a colleague, in that her work situates at the cutting-edge of scholarship in this field -- and our Moot Court Room was packed and engaged. Although the notion of "American Exceptionalism" often applies in human rights law areas (such as constitutional interpretation, war crimes trials, and terrorism), Prof. Bermann explored how aspects of the US legal system interface with the quest, through international convention, for uniform enforcement of international arbitration awards in commercial law matters. In particular, Bermann identified a number of factors, which may not always be anticipated in contract negotiation, including federalism (for example, how the public policy of one of the US states may interface with the recognized ability for an award to be denied enforcement if it infringes public policy), inadequacies in the domestic Federal Arbitration Act, and procedural features of the US legal system. In this regard, clearly, I would answer Trey Childress' earlier question on this blog with a clear yes – international law matters and domestic legal structures ought to be mindful of it.
Bermann serves as Chief Reporter of the American Law Institute Restatement (Third) of the U.S. Law of International Commercial Arbitration. At the end of his talk, a student in the audience raised what I thought to be an important reminder – namely, what are the obligations and duties of Restatement authors? Is it to photograph the law, prod it along, or reengineer it? Do different obligations arise in different areas of law? For example, in areas of law thick with case-law and statute, is photography preferable? In areas of law lolling in ambiguity, grappling with change, or redolent with awkwardness, is something more required? What is the proper place for normativity? For international law junkies out there: are the obligations of the Restatement drafters similar to or different from those of the members of the International Law Commission (ILC), who are called upon to promote the progressive development of international law and its codification – recognized by convenience in art. 15 of the ILC's statute as two separate tasks?
Friday, January 06, 2012
Tamanaha on the Times-Duncan LS Story
Brian Tamanaha reveals a huge chunk of missing information from the New York Times story on Duncan School of Law and A.B.A. accreditation. One has to wonder, given this and the shoddiness of the legal scholarship piece, whether Times editors will continue to give Segal such a long leash.
Monday, January 02, 2012
Parting Advice on Parental Leave
Thanks to Dan and the other Prawfs for inviting me to blog this past month. As I sign off, I'd like to share some words of advice that I've received over the past several months from folks at various schools about parental leave.My husband and I are both academics, and we're expecting our first child in February. As my soon-to-be-a-parent status has become more obvious (that is, once my stomach got so big that it was clear I wasn't just falling out of shape), I've had a number of conversations about the dos-and-don'ts of parental leave negotiations with other prawfs at various schools. Here's what I've learned:
1) A school's written parental leave policy may not always reflect their practices. While I haven't heard of any schools where the practice is less generous than the policy, I've heard of several schools where the leave actually given is more generous than the written policy. While a more generous practice may be good news, the downside is that the actual practice may be hard to discover. It's worth asking your colleagues who've recently had children what leave they received, and to have this information at your fingertips when it comes time to talk to the relevant administrators at your school.
2) Think carefully about when you reveal your baby news. Conventional wisdom tells parents-to-be that they shouldn't spread their pregnancy news until after the first trimester --- that is to say, after the risk of miscarriage has decreased significantly. While I think that conventional wisdom is generally a good idea, you might want to consider revealing that information a bit eariler under certain circumstances. For example, when the administration here at Arizona State was setting the spring class schedule, even though I was not yet out of my first trimester, I decided to tell those administrators in charge of the schedule (in strict confidence) that I was due to deliver a baby in February. Those administrators (who agreed to keep my news secret) were then able to plan the schedule more effectively, and my leave was less disruptive to the school.
3) Be patient and try to stay cool. Even though law schools tend to be wonderful places to work and law professors tend to be rather progressive, I've heard stories about a number of insensitive comments by colleagues and administrators upon learning the news of someone's pregnancy. (Full disclosure: As someone who generally doesn't like children, I've been known to say less than sensitive things about other people's parenthood.) And while Arizona State has been extremely accommodating to both me and my husband, I have heard stories from other schools about blatantly different treatment for moms expecting a baby as compared to dads. I don't think moms and dads should be treated differently (and I suspect that different treatment might be unlawful), but if you encounter such treatment, try to address it calmly and rationally. Your first priority should be to secure the best parental leave you can. Fight the fight for gender equality after you've secured your leave.
That's all the advice I have. Others should feel free to chime in via the comments thread.
Wednesday, December 28, 2011
Potentially Important Law Faculty Hiring Decision...
I'm not a First Amendment scholar, nor am I an employment discrimination scholar. I did, however, go through a hiring process twice, and this decision by the Eighth Circuit surprised the heck out of me. The gist of the opinion is that a jury must decide if a professor who was not hired at a public law school was discriminated against in violation of Section 1983. The allegation, quite simply, is that she was conservative and a liberal faculty (or more specifically, the dean following the recommendation of the faculty) refused to hire her.
The court held that this is a legally cognizable injury, and that a jury has to decide whether she wouldn't have been hired anyway.
For those of you on the market this year (or thinking about it), the case is also an insightful view into the black box of academic hiring. It shows how mixed signals can occur, and how uniformly positive feedback can still not lead to getting hired for all sorts of reasons outside of the candidates' control. I won't comment on the reasoning or facts in this case, because I just don't know them. That is, as they say, up to the jury now.
One final point - there is a key faculty governance nugget buried in this case. One factual question was whether the dean always followed faculty recommendations, and/or whether the dean must. While most deans follow almost all faculty hiring recommendations, they usually (technically) don't have to. One issue in this case is that no such policy was in writing. After this case, deans might want to put such a policy in writing for self protection, but maybe the deans (or university provosts and presidents) won't want discretion so limited.
H/T How Appealing
Wednesday, December 21, 2011
Law School Service
As every law prof knows, our professional lives are supposed to be made up of three components — scholarship, teaching, and service. Like many junior profs, I’ve spent most of my time focusing on scholarship and teaching. But some recent discussions I’ve had with some other law profs about how faculty ought to be dividing their time and what role service ought to play in our professional lives have led me to reexamine the role of service in the life of a law professor.
Let me begin with a quick observation that much of what I will discuss does not, at least in my mind, apply to junior faculty who have not yet been granted tenure. That is because I think (a) untenured folks are generally expected to do less service than the tenured faculty (e.g., not serve as chair of committees, not serve on university committees), and (b) scholarship and teaching seem to be the primary factors considered in the tenure review process (I’d be surprised to hear that a law professor was denied tenure based on insufficient service).
But once a faculty member has received tenure, it seems that expectations regarding the amount of service change. Those expectations seem to change in at least two ways: First, more service is expected internally at the law school law school and sometimes at the university level. Second, whether service can (or ought to be) prioritized over scholarship and/or teaching is suddenly a question open for debate.
At first glance, the idea of expecting more service from tenured faculty members seems uncontroversial. One could easily presume that both scholarship and teaching become easier; that is to say, the longer one has been a professor, the less time it takes to prepare for class or write an article. If the other two components of a professor’s responsibility are easier to fulfill, why not ask him or her to take on more service?
I am suspicious of this line of reasoning. For one thing, although writing an article or teaching a class may be easier, I think that law schools already tend to consume any excess time that a law professor might generate by obtaining tenure. In the scholarship arena, tenured faculty are often expected to make more contributions (e.g., write a new law review article while simultaneously writing symposia articles about prior articles), longer contributions (the constant suggestions that one “use” tenure to write a book), or contributions that are more difficult (e.g., now that you have tenure, your articles should engage bigger questions, shift the paradigm, etc.). In the teaching arena, some schools have course relief that disappears upon tenure, and at other schools tenured faculty are more likely to be asked to prep a new course or pick up an extra section.
For another thing, the additional service burden is rarely distributed in an equitable fashion; some tenured faculty are asked to sit on a number of committees every year, while others aren’t. Now, the reasons for that inequitable distribution could be obviously objectionable (e.g., some faculty flat out refuse to do their fair share of committee work), not all that objectionable (e.g., some faculty members have proven themselves more adept at committee work than others, such that more socially outgoing faculty members might be asked to serve on the appointments committee more often), or open to debate about whether they are objectionable (e.g., asking female or minority faculty members to serve on the appointments committee more often in order to highlight diversity at the law school, or not expecting as much service from faculty members who the most productive scholars). To the extent that we think more service can be expected of faculty members by virtue of the fact that they have been in the academy longer, it seems to me that we either need to ensure that the additional service burden is fairly distributed or that the reasons for disparate distribution are both articulated and defensible.
Whatever my reservations about the conventional wisdom that we ought to expect more service from tenured faculty members, they are insignificant as compared to my concerns regarding the second question --- whether service can (or ought to be) prioritized over scholarship and/or teaching. I’m sure it goes without saying that there are certain circumstances where service will necessarily take precedence over teaching and scholarship. For example, if a faculty member is asked to serve as associate dean, I think most would agree that the faculty member ought to have a reduced teaching load and/or reduced scholarship expectations during the time that he or she serves as associate dean. (Those reduced teaching and/or scholarship expectations presumably end at the same time that the associate deanship ends.) But I think that there are harder cases regarding service, especially once we start talking about service that is external to the law school.
Consider, for example, the common practice of law professors who do pro bono litigation work. Let’s say the average faculty member who engages in this sort of work writes two appellate briefs per year. Now imagine that one faculty member does far more --- writing 10 appellate briefs per year. How should that additional service be “counted” by the law school? I use the word “counted” because many schools seem to expect a certain amount of teaching, scholarship, and service from each of their faculty members. Those faculty members whose scholarship is significantly above average in terms of quantity or quality are sometimes excused from some portion of the ordinary teaching or service load. And those faculty members who take on a greater teaching load (which could be a higher course load or volunteering to prepare a new course) are sometimes excused if their scholarship publications fall below the average rate for a tenured faculty member, as well as sometimes asked to do less service. (Yes, I know that thinking in terms of averages for teaching amount, scholarship amount, and scholarship quality is almost certain to be highly contested, but just bear with me that such an average can be (at least roughly) identified. Or at least agree that law schools need to occasionally assess whether their tenured faculty members are being productive members of the law school.)
In light of how exemplary scholarship and exemplary teaching can result in lower expectations for the other components of a law professor’s duties, and in light of the commonly accepted practice for reducing teaching and scholarship expectations for exemplary internal service (such as serving as associate dean), one might expect that exemplary external service --- such as taking on a significant amount of pro bono litigation work --- ought to result in reduced expectations for teaching and/or scholarship. Yet, despite the logic of the forgoing argument, I suspect that many law professors would find the argument unconvincing. Indeed, my own intuition suggests that exemplary external service ought not “count” in the same way as exemplary teaching or exemplary scholarship when assessing faculty productivity.
While there are a few reasons I can identify that support this intuition, I’d be more interested to hear from thoughts from readers on this topic. So, any thoughts on how to “count” external law school service?
Wednesday, December 14, 2011
On the Move
Jane Yakowitz and I have accepted offers from the University of Arizona James E. Rogers College of Law. We're excited to join such a talented group! But, we'll miss our Brooklyn friends. Come visit us in Tucson!
Posted by Derek Bambauer on December 14, 2011 at 05:39 PM in Current Affairs, Getting a Job on the Law Teaching Market, Housekeeping, Information and Technology, Intellectual Property, Life of Law Schools, Teaching Law, Travel | Permalink | Comments (2) | TrackBack
Monday, December 12, 2011
Two Easy Ways to Make Junior Faculty Happy
Talking to entry level candidates this hiring season, I spend a lot of time explaining why I think Arizona State is such a great school for junior faculty. Our former associate dean (and now interim dean), Doug Sylvester, instituted a number of policies that help promote junior faculty and to foster a great culture of intellectual collaboration. It recently occurred to me that there are at least two things we do here at ASU that an associate dean (or even just an enterprising junior faculty member) could institute at any law school.
First, before every big submission window, the junior faculty pick one day each weekend to meet and complete our articles. We call this arrangement "misery loves company," and the concept is simple: Juniors arrive at the law school at 9:00am and sit in their offices to work on their drafts (no socializing or other administrative/email tasks—and no internet surfing permitted). The law school orders a simple lunch for everyone (usually pizza and drinks), and we convene in the faculty center at noon to eat, socialize, and often vent frustrations/air questions about the current status of our drafts. At 1:00pm, we go back to our offices and continue to work on our drafts. After 5 we are free to do as we please; some stay and keep working, though many of us often decide to get dinner or drinks.
Second, we have a semi-annual internal "retreat" for junior people to workshop their papers or half-baked ideas. Our workshop is similar in model to Prawfsfest --- presenters need to circulate their drafts in advance, and the sessions are driven by comments and suggestions (presenters, in other words, don't really present their drafts). We call these workshop retreats, because we always hold them off campus --- sometimes at a local resort or restaurant, and sometimes even out of town. Like misery loves company, these retreats don't cost the school much money (basically the cost of lunch). And both have the benefit of reinforcing the importance of scholarship, keeping the junior faculty informed about what all of us are working on, and providing moral support during what can be a difficult process.
I'm a big fan of both misery loves company and internal retreats, and if your school doesn't already do something similar, I suggest you try to get one or both started. Does anyone want to share similar ideas from their schools --- that is simple and inexpensive ways to make junior faculty happy, while at the same time promote scholarship, teaching, or service?
Tuesday, December 06, 2011
How I Write
I've noticed that many aspiring law professors (including fellows) find writing law review or other articles, an essential part of our job, difficult at first. Here is a set of suggestions based on what works for me. I make no claim that these are best practices, exhaustive, or even something that will work for you. Still, I thought it worthwhile to share some reflections, and I invite others to do so in the comments.
NB: I have no children and am unmarried, so I've often wondered whether that is part of what makes writing work for me. I am sure it plays some role, but as I discuss below given that I stick to a pretty strict 9 to 5 schedule Monday to Friday (except once every week and twice every other week where I teach till 7 PM), and rarely work on the weekend, I suspect that this cannot explain most of what works for me.
Here are the tips based on how I write:
- Get a big monitor: I love having a monitor big enough to show two full documents and a sizable magnification at the same time. I can have westlaw up in one and the draft article in another, or have a journal’s edits and my original article up simultaneously. Some people prefer two monitors, but either way I think this will increase your efficiency.
- Alter your email schedule: If you can change your automatic email receive schedule to 20 or 30 minute intervals rather than every 5 or 10 minutes you will find you are less likely to get distracted. Of course, turning email off altogether is better still but for many of us that is not a great option.
- Aim for crappy but complete first drafts, avoid perfection: I have always admired people who write perfect first drafts; I’ve never been one of them. I usually go through 100 drafts of any piece of writing, and actually save a new version on any day I make an alteration that is even mildly significant. I think for many perfection equals paralysis. I can generate a crappy and almost complete first draft much quicker, and I feel liberated knowing the final draft will be SO much better. It also enables me to share the draft earlier in its gestation and even workshop it with friends early…which leads to the next point….
- Work on Deadlines: As an appellate lawyer at the Justice Department I basically had hard deadlines almost constantly on briefs. Indeed, the harder the deadline, the faster I would work. In a few emergency stay cases with basically a 24 hour turn around, I found that I could work two to three times as fast and produce a document that was 80% as good in terms of the quality. I think deadlines are very helpful, and you should seek them out as much as possible. Agree to give a workshop in-house or at another school at a date that feels a bit on the early side. I also use the law review cycles as internal deadlines when I should have a “very good” draft, and then work backwards to create deadlines for myself as to when I will give the draft to various people and incorporate changes.
- Teach your draft papers: If you are teaching a seminar or even a general class in your area, consider teaching a draft paper. I have found that the students love it, and you get good feedback – especially as to whether the article is pitched at the right level for law review editors.
- Work in 45 minute tranches, and 3 hr blocks: I have found I can work intensely for 45 minutes at a time, and I can do a 3 hour block before my brain is exhausted. So I usually do a morning and/or afternoon session, and if I do both on a given day I schedule a full one-hour lunch in between (on every work day we either have a faculty workshop or a dining room where I can relax with my colleagues). I use the last 15 minutes of each hour for answering emails, or administrative matters or blog reading. I know this amount of time-management seems neurotic or the exact billing practices many people happily left behind when working for a firm, but it works for me.
- Pick good times and places to write: My concentration is at my peak first thing in the morning, so I try to do my writing then and schedule my classes for the late afternoons. This also benefits my students because I am an incorrigibly fast talker, and my being “tired” actually makes me a better teacher. I really like writing in my office at the law school, but for others a coffee shop or home works better. Find your ideal writing space and stick with it.
- Have multiple projects of various types/lengths at once: At any given time I have 2 to 5 papers on one of the burners of my intellectual stove. I will be dealing with a journal’s edits on one paper, getting a second ready for sending out to law reviews, writing the first draft of a third, and researching a fourth. I find this works well for me because when I am sick of or exhausted by one paper, I can switch to one of the others and feel renewed rather than having to switch off writing altogether. One of the reasons why this works for me is that I try at any time to have multiple types of papers going. Some of this is no doubt field specific, but for me it is great to have one short paper for a medical journal audience, one or two longer law review articles, and maybe an partially empirical project where we are just working on cleaning data.
- Split to your heart’s content: Most subjects I find interesting prove to be much more complex then when I start writing about them. I routinely cut down 48,000 word draft papers to 32,000 words – indeed I spend at least 40% of my time on any paper on this phase . . . but sometimes it becomes clear to me early on that what I really want to write will end up being more like 80,000 and have three different big ideas aimed for different audiences. Almost always when this has happened I have been able to split the original projects into multiple parts. I have done this with my medical tourism work, and one of the nice side benefits is that even after you split you can always potentially re-join the work and still further elaborate on it as a book, as I am trying to do now.
- Have RAs work on the piece throughout, during your “off times”: I have a “stable” (about 9 or 10) of research assistants. Having this many is great because it means there is always at least someone available to work on something. Even when a paper is only mid-way through the drafting process, I will give it to my RAs to edit while I am busy working on another paper with the hope that they can make it better even when my eyes are not on it.
- Treat writing like a job: This is more a philosophy. Many flock to legal academia away from a more rigid job in the legal world, but there is something to be said for rigidity and not waiting for the muse to whisper in your ear. I try to treat legal writing as a job, come in at 9, leave at 5 on most days and work consistently throughout. This helps me be both productive and sane, but perhaps I am an aardvark in this respect.
Wednesday, November 23, 2011
Nostalgia and the Search for Nuance in Critiques of Legal Education.
On the topic of scholarship and lawyering inspired by Segal's NYT bile pile, I've mostly refrained from weighing in. But one of the recent comments however has spurred me to temporarily intervene. The legal academy has been emphasizing scholarship among its members for at least 20 years and at the top schools it has been even longer. Some of the Segal/Campos scamfans talk about law profs under this regime of intellectualism as being poorly situated to instruct the next generation of attorneys.
So here are some quick reactions. Do we think the lawyers who were trained over the last 20 years at law schools under this new 'scholarship' regime are worse than the lawyers who were trained beforehand when scholarship was less significant in the lives of law professors? If so, what are the metrics for making that claim? Or do people not actually think that pinheaded prawfs are bad for lawyering but rather their recherche interests simply raise the cost of legal education more than it's worth?
I don't know the answer. On the one hand, maybe the "law school as trade school" era in which most of the fancy schools did not have productive and more intellectual faculties was better for society and law students. I'm not a whig about history but I'm usually skeptical of such nostaligic golden-era claims. On the other hand, I certainly think the ABA and AALS and other bodies are impeding some creative disruptions in the delivery of legal education. I also think taxpayers are right to ask whether publicly supported legal education is a compelling use of their tax dollars compared to other important social tasks.
Still, I largely think Segal's attacks on legal education don't have sufficient nuance to be persuasive and I'm quite doubtful that the emphasis on legal scholarship by some professors is getting in the way of a better law for society or a more attractive legal education. There are after all some for-profit law schools and they don't emphasize or produce too much scholarship on their faculty as far as I can tell. Maybe it's still too soon to tell if their graduates will be better situated than the graduates of more intellectual/scholarship-oriented schools, but if they're not, the scam-critics will need a good story of market failure to explain why not--or they might have to soften their views and voices and pull in their elbows a bit.
[I'll keep comments open to signed *and* substantive comments with verifiable email addresses.]
Sunday, November 20, 2011
Scholarship and Lawyering
I'm sure by now many (if not all) of you have read David Segal's article in the New York Times "What They Don’t Teach Law Students: Lawyering." Matt's already put up a post critiquing the piece and some great comments have followed.
One thing that struck me when reading the piece was the following line: "Professors are rewarded for chin-stroking scholarship . . . ." Of course, what professors are typically rewarded for is article placement - I don't know of any school that has adopted a policy for rewarding only articles addressing the arcane. And while many law profs bemoan the submission process, it seems worth noting that students are the ones who select the articles. So it seems fair to say that, at least to some degree (professors may very well shape what their students consider good scholarship), students play a major role in the type of scholarship that law schools reward.
All this might be a good reason to support the current article submission and selection process (no, I'm not expressing a definitive view here). It provides students with the opportunity to shape scholarship in the legal academy and promote whatever type of research they deem important. If it is in fact true that students are selecting articles that lean more towards theory than practice, then profs will presumably follow suit. On that count, the climb of theoretical pieces might be seen as profs simply giving their clients - i.e. paying students - what they want.
A Recipe for Trashing Legal Scholarship
- A premise based on a hazy cliche, such as: "Of course, much of academia produces cryptic, narrowly cast and unread scholarship.";
- A few particularly esoteric article titles -- law & philosophy if possible;
- A complete misunderstanding of Ed Rubin's program for reform of the legal academy, which in fact seeks to increase the role of legal research in law school pedagogy;
- A couple of hostile throw-away quotes from Supreme Court justices;
- A truly bizarre calculation of the "cost" of legal scholarship, based on back-of-the-envelope calculations and unsupported assumptions;
- An unwitting job candidate, whose scholarly work can provide a few more esoteric-sounding titles and food for ridicule; and
- An overall theme for the story (the nature of legal education) that is, in fact, something worth debating -- and in fact is being debated quite vigorously within the academy.
Directions: Mix together in the preeminent newspaper of our country. Half-bake and serve.
Seriously, I hope other folks jump on this -- it's really demoralizing and infuriating to read this in the New York Times. It's a head-scratcher. I was just writing over at the Glom about the respect and appreciation the Delaware Chancery has for legal scholarship. And then we get this.
Segal says at one point, in attempting to show the impracticality of legal scholarship:
Some articles are intra-academy tiffs that could interest only the combatants (like “What Is Wrong With Kamm’s and Scanlon’s Arguments Against Taurek” from The Journal of Ethics & Social Philosophy).
The article is (a) a philosophy article written in (b) a philosophy journal (a self-described "online peer-reviewed journal of moral, political, and legal philosophy") (c) by a philosophy professor. I mean, really. Is that the best you can do?
Wednesday, November 16, 2011
A couple exciting or useful announcements...
Via Bridget at TFL, I just discovered that the American Law Institute has elected a few members of the Prawfs family to join its august ranks. I'm not yet sure what punishment comes with such honor, but in the meantime, join me in wishing a hearty congrats and mazel tov to these newly ascendant folks drawn from the Prawfs family: Orly Lobel (USD), Matt Bodie (SLU), and Dave Hoffman (Temple). Woot!
While I've got Bridget in mind, she relayed to me the other day that during the AALS conference, the Women in Legal Education Section will be hosting a mentoring session open to all men and women. You can read more about that after the jump.Section on Women in Legal Education’s “Speed Mentoring Program” at AALS January 5, 2011, 9:00 AM - 10:15 AM
Want to network with other professors but don't know where to start? Willing to share some wisdom or ask questions? Whether you are a new law teacher or an experienced law teacher, please join us for the Section on Women in Legal Education's first-ever "Speed Mentoring" program. After a brief overview, we will divide all program attendees into two groups, based on number of years of attendees' teaching experience. We will then pair experienced faculty members with newer faculty members for facilitated networking sessions. Every 10 minutes, conversation partners will change in a designated order. The program chair will suggest topics for each 10-minute conversation, but pairs are welcome to follow any conversational direction. The goal of this session is to facilitate connections between and among professors across subject matters and viewpoints. Mentees will benefit from the insights and wisdom of more experienced teachers. Mentors will benefit from the fresh perspectives of newer colleagues. All participants will benefit from active listening, exchanging information, sharing experiences and making new connections with national colleagues. At the end of the program, concluding remarks will be followed by free time for open networking. Bring your business cards!
Section officers and the Program Chair confirm that men are very welcome to participate.
Advance sign-up requested. Details here.
Monday, November 14, 2011
Status Update re: CrimProf Gathering at LSA Hawaii 2012
As I've mentioned before in this space, Carissa Hessick and I are trying to play matchmaker for crimprofs who are planning on attending the Law and Society conference in Hawaii in June 2012. If you're interested in participating but still haven't contacted us, or if you are interested and already have contacted us, then look after the jump for a status update.
It's the End of the Workshop as we Know It (and I Feel Fine)?
The combination of participating by skype in a debate in Mississippi two weeks ago, getting a walk through of our beautiful, highly video conference capable, classrooms in our soon to open new building, and running a workshop series on health law/bioethics/biotechnology with Einer Elhauge has made me think about whether new technology ought to make us rethink the law school workshop. While there has been plenty of blogospheric discussion of skype meat market interviews and even skype conferences, I've seen less on workshops which seem the natural place to start.
With the the technology I saw in our new classrooms, one could easily have the presenter (plus his/her powerpoint slides) up while the individual sees the faculty at the same time. The fact that in workshops usually only one person is talking at a time makes this very easy to control.
Pros: (1) Cheaper: Between airfare, hotel, meals, I would ballpark the typical workshop costs the hosting school roughly $1,000 for one to two hours of scholarly interaction. (2) Opportunity Cost for the Presenter: Many presenters would be much more willing to participate in workshops if the cost to them was merely an hour sitting in their office or law school videoconference facility, rather than a day and a half of travel. This might be particularly helpful for those with child or eldercare responsibilities, such that it is hard for them to take the time off.
Cons: (1) We Lose the Schmooze.The ability to chat with folks before and after the workshop, and the dinner after are often enjoyable and enlightening. That said, I think the schmooze benefits to the presenter is not nearly as much as it is in a conference setting. (2) Poorer attendance? Perhaps sitting in front of a screen feels like less of an "event" than someone's visit to the law school, such that attendance at workshops would drop off. This is possible, I have no data, but my priors go the other way. (3) Cost of the Technology: especially good technology that is unlikely to drop video-chats, etc. There are costs here, but over even the course of 2 years I would guess the savings in not flying people in would make up for it, though of course you need the technology to be good on both ends to make it work which, may lead to coordination problems.
What I am tentatively thinking (and perhaps I will consider implementing this in my own workshop some time in the future): as a first step, give all presenters the option of video-conferencing in if they prefer, but be willing to fly them in instead if that is their preference.
I am curious what others think, and especially if any schools have tried this for their workshops and to what effect?
Tuesday, November 08, 2011
Should Law Reviews Publish Their Own Faculty? Should Junior Faculty Publish in Their Own Law Reviews
In this post I am interested in the two titular questions. The questions were prompted by a conversation with several Harvard Law Review editors on changes they could make to improve the law review, and the report by one of them that another prof had suggested adopting a rule to this effect, which I found interesting.
A couple of initial caveats/disclosure/prophylactics: I don't have a strong view on the questions I am asking or a dog in the fight, one of the reasons why I am posting on it to get feedback; I've never been the lucky recipient of a Harvard Law Review offer to publish so I am not making claims about what I have done or would do; I do not mean to disparage the quality of anyone who does publish in their own law review, most of what I am interested in are perceptions rather than actuality here. Does where we publish reflect the quality of our pieces or even matter? Enough of us act as though it matters (by calling in expedites) that even if we think of placement as a very imperfect signal of quality, we behave as though it is a signal or at least worry that our peers do, making this a reasonable question on my view.
With those in mind, let's take up my two questions:
(1) Should law reviews adopt a rule that they won't publish their own faculty? Here I am imagining a kind of collective action as many law reviews undertook as to article length.
The argument for: Especially on small faculties, editors will feel pressure to take their faculty's pieces, irrespective of whether the faculty is actually putting that pressure on them. Even if selection was totally blind to the fact that this is the home institution, many on the outside will devalue the placement as an "inside job," and there is at least a spectre of partiality. Law review editors may feel less free to push back in their edits of professors on whom they depend for grades and recommendations than relative strangers.
The argument against: It can be a wonderful opportunity for students to get to know possible mentors on the faculty and perhaps there is more investment among law review editors. Still, as mentioned above this lack of arm's length relationship is not an unalloyed good. Moreover, there may be psychic harm if your faculty routinely solicits an offer from the home school journal only to call in an expedite and pass over those students and their journal.
(2) A separate question: assume the rule remains the same and faculty are allowed to publish in their school's law reviews. Should they? In particular, should junior faculty for whom placements are a bit more scrutinized place their pieces in their own school law reviews? My own anecdotal sense -- but I really want to take the temperature of the blog readers on this since I don't have much data -- is that outside evaluators tend to engage in devaluation of articles placed in the home journal. Now granted, if you are a faculty at Harvard or Yale, etc and the opportunity presents itself to place it in those very highly-regarded journals even with the devaluation it might be worthwhile. But what if you teach at a school with a less highly ranked journal?
Again, no dog in this fight, just curious what people think....
Sunday, November 06, 2011
Writing Agenda: Short vs. Long Pieces
In my last post, I talked a bit about how many fields junior scholars might write in. It sparked a much more thoughtful post from Paul and some great comments. So I thought I'd follow up with a post about another piece of the writing agenda puzzle: short vs. long pieces.
There's been a lot of talk about this among us juniors at Pepperdine of late. Our junior faculty is eight strong (and still growing). As a group, we had a particularly strong publication cycle last Spring (yes, you can read all about it here). And one of the nice things about strong law review publications is that it brings you into conversation with the people in your field - often in the form of requests for symposium contributions and book chapters. In that way, symposium pieces/book chapters represent a really great opportunity to participate in great scholarly conversations (for these reasons, I myself recently signed up to write for the Yearbook on Mediation and Arbitration's upcoming symposium that will address arbitration law in the wake of AT&T Mobility).
Of course, on the flip side, symposium pieces/book chapters always take longer than you think they will. As a result, they invariably cause you to push off larger projects. The cost there is (at least) two-fold: (1) the big projects are often the ones we're all most deeply committed to working on because of their connection to our primary scholarly objectives, and (2) a junior scholar's record is often measured in terms of the big law review articles.
I've gotten a lot of good advice from colleagues on this one, much of which boils down to "choose wisely." Trying to accurately assess how long a symposium piece will take you and the connection of the piece to larger scholarly objectives seems to be key in deciding when to say yes and when to say no.
Any other thoughts out there on how to decide when to take on smaller projects?
Friday, November 04, 2011
Writing Agenda: How Many Fields?
A couple of days ago, Franita Tolson posted over on The Faculty Lounge some great thoughts for junior scholars considering writing in multiple scholarly areas. On the one hand, there are good reasons to stick to one area of scholarship as a junior prof; that first project in a second area may be hard to get off the ground and with limited time it might be more effective just to stick to one's primary area. On the flip side, writing in two areas puts you in conversation with more thoughtful people and I suspect many of us have some projects in a secondary area of interest that we're just itching to put some time into.
I've been struggling a bit with this dilemma myself of late. I spend most of my time writing about commercial law meets religious practice (e.g. religious arbitration, religious contracts), and had decided to follow all that up with a broader paper on litigating religious claims. But one of my colleagues (Trey Childress) encouraged me to write a paper for the annual symposium of the American Society of Law's International Legal Theory Interest Group. This year's topic is Legal Positivism in International Legal Theory: Hart’s Legacy, and many of the questions will surround the Hart's own take on law and sovereignty. The topic pushed me to write outside my primary research area - I don't currently teach international law or jurisprudence - but addressing the possibility of non-state law in the international context has done wonders for my thinking more broadly about the role of religious law within the state.
Given Franita's thoughtful post, I thought I might suggest that for those of you thinking of venturing out to write in another scholarly area, finding that topic that touches, but doesn't quite overlap, with your primary area might prove super-rewarding.
Thursday, November 03, 2011
Why Don't We Do It In the Road?
In that White Album gem, "Why Don't We Do It In the Road?", Paul McCartney insinuated that whatever "it" was wouldn't matter because "no one will be watching us." The feeling of being watched can change the way in which one engages in an activity. Often, perceiving one's own behavior clearly is an essential step in changing that behavior.
I've thought about this lately as I've tried to become more productive in my writing, and I'm drawn to resources that help me externalize my monitoring procress. There are various commitment mechanisms out there, which I've lumped roughly into three groups. Some are designed to make me more conscious of my own obligation to write. Other mechanisms are designed to bring outsiders on board, inviting /forcing me to give an account of my productivity or lack thereof to others. And some, like StickK, combine the second with the means to penalize me if I fail to perform.
Should I need tricks to write? Perhaps not, but even with the best of intentions, it's easy to get waylaid by the administrative and educational requirements of the job. Commitment mechanisms help me remember why I want to fill those precious moments of downtime with writing. Below the fold I'll discuss some methods I've tried in that first category, and problems that make them less than optimal for my purposes. Feel free to include your suggestions and experiences here, as well. Also note that over at Concurring Opinions, Kaimipono Wenger has started the first annual National Article Finishing Month, a commitment mechanism I have not yet tried (but just might). In subsequent posts, I'll tackle socializing techniques and my love / hate relationship with StickK.
Perhaps like many of you, I find the Internet to be a two-edged sword. While I can be more productive because so many resources are at my fingertips, I also waste too much time surfing the webs. I've tried commitment mechanisms that shut down the internet, but have so far found them lacking. I've tried Freedom, which kills the entire internet for a designated period of time. That's helpful to an extent, although I store my documents on Dropbox, so my work moves with me from home to office without the need to keep track of a usb drive. While Dropbox should automatically synch once Freedom stops running, I've found that hasn't been as smooth as I hoped. This in turn makes me hesitant to rely on Freedom.
What makes me even more hesitant to use Freedom is that I have to reboot my computer to get back to the internet every other time I use it. If you are not saving your work to the cloud, you may see that as a feature and not a bug.
I turned next to StayFocusd, a Chrome App that allows me to pick and choose websites to block. Stay Focusd reminds me when I'm out of free browsing time with a pop-up that dominates the screen, with a mild scold, like "Shouldn't you be working?" If you are the type to use multiple browsers for different purposes, however, Stay Focusd is only a Firefox window away from being relatively ineffectual.
The self-monitoring tool I've liked the best so far is Write or Die. You set the amount of time you want to write, the words you propose to generate, and you start writing. As I set it, if you stop typing for more than 10 seconds, the program makes irritating noises (babies crying, horns honking, etc.) until you start typing again. Write or Die is great for plowing through a first draft quickly, but is less effective if the goal is to refine text. This is part because the interface gives you bare bones text. I'm too cheap to download the product, which has more bells and whistles than the free online version (like the ability to italicize text). In addition, in the time it takes to think about the line I'm rewriting, the babies begin to howl again.
So, what commitment mechanisms do you use when you don't feel like writing?
Wednesday, November 02, 2011
My friend and MOJ co-blogger Michael Moreland has a post called "Law Students and Lost Idealism" that I wanted to share with Prawfs readers as well:
As the law school semester turns to its final lap and the anxiety of our students--especially 1Ls--begins to take on dire proportions, I take a page from my 1L contracts teacher, Philip Soper, and give my students this passage about lost idealism from Mark Twain's Life on the Mississippi:
Now when I had mastered the language of this water and had come to know every trifling feature that bordered the great river as familiarly as I knew the letters of the alphabet, I had made a valuable acquisition. But I had lost something, too. I had lost something which could never be restored to me while I lived. All the grace, the beauty, the poetry had gone out of the majestic river! I still keep in mind a certain wonderful sunset which I witnessed when steamboating was new to me. A broad expanse of the river was turned to blood; in the middle distance the red hue brightened into gold, through which a solitary log came floating, black and conspicuous; in one place a long, slanting mark lay sparkling upon the water; in another the surface was broken by boiling, tumbling rings, that were as many-tinted as an opal; where the ruddy flush was faintest, was a smooth spot that was covered with graceful circles and radiating lines, ever so delicately traced; the shore on our left was densely wooded, and the somber shadow that fell from this forest was broken in one place by a long, ruffled trail that shone like silver; and high above the forest wall a clean-stemmed dead tree waved a single leafy bough that glowed like a flame in the unobstructed splendor that was flowing from the sun. There were graceful curves, reflected images, woody heights, soft distances; and over the whole scene, far and near, the dissolving lights drifted steadily, enriching it, every passing moment, with new marvels of coloring.
I stood like one bewitched. I drank it in, in a speechless rapture. The world was new to me, and I had never seen anything like this at home. But as I have said, a day came when I began to cease from noting the glories and the charms which the moon and the sun and the twilight wrought upon the river's face; another day came when I ceased altogether to note them. Then, if that sunset scene had been repeated, I should have looked upon it without rapture, and should have commented upon it, inwardly, after this fashion: This sun means that we are going to have wind to-morrow; that floating log means that the river is rising, small thanks to it; that slanting mark on the water refers to a bluff reef which is going to kill somebody's steamboat one of these nights, if it keeps on stretching out like that; those tumbling 'boils' show a dissolving bar and a changing channel there; the lines and circles in the slick water over yonder are a warning that that troublesome place is shoaling up dangerously; that silver streak in the shadow of the forest is the 'break' from a new snag, and he has located himself in the very best place he could have found to fish for steamboats; that tall dead tree, with a single living branch, is not going to last long, and then how is a body ever going to get through this blind place at night without the friendly old landmark.
No, the romance and the beauty were all gone from the river. All the value any feature of it had for me now was the amount of usefulness it could furnish toward compassing the safe piloting of a steamboat. Since those days, I have pitied doctors from my heart. What does the lovely flush in a beauty's cheek mean to a doctor but a 'break' that ripples above some deadly disease. Are not all her visible charms sown thick with what are to him the signs and symbols of hidden decay? Does he ever see her beauty at all, or doesn't he simply view her professionally, and comment upon her unwholesome condition all to himself? And doesn't he sometimes wonder whether he has gained most or lost most by learning his trade?
Mark Twain, Life on the Mississippi (1883), Chapter IX
Guest: Kicking off guest stint
Tuesday, November 01, 2011
Classroom Debates on Sensitive Topics
Thanks to the PrawfsBlawg folks for allowing me to join them again. I thought I'd start by discussing a teaching technique that I've found useful for covering sensitive cases in a large class. I teach constitutional law, and students sometimes hesitate to talk a lot about topics such as abortion and affirmative action. This is unfortunate because they undoubtedly have many ideas to share. I therefore solicit four volunteers about a week in advance. I divide them into teams of two. One team has the job of attacking the core holding of a controversial Supreme Court case (say Roe v. Wade). The other team must defend the case. In addition, one person on each team is supposed to focus on legal doctrine, and the other person is supposed to focus on "policy" arguments.
At the beginning of the designated class, each team of two sits at a separate table in front. I let the class know that each team is playing a role, so there should be no automatic assumption that the debater is voicing their personal views. The attacking team then goes first. Each speaker on that team makes their arguments against the case for 5-7 minutes to the class. Hopefully, they make things interesting right away. Then the other team responds with each speaker getting 5-7 minutes. After that, I allow the teams to debate each other directly for a period. During this whole time, I'm sitting somewhere in the classroom with the students. Once the debating has died down, I let students in the class raise their hands and ask questions or raise issues with the debaters. What almost always ends up happening is that the students have a very instructive conversation about different aspects of the case and the bigger issues. They basically teach each other. I just play referee occasionally. Usually the students also end up saying some funny things which breaks the ice. In the next class, I may discuss a few issues that were not covered. I encourage folks to try something like this if you think it might be suitable. I would also enjoy learning if others do something similar to handle sensitive questions.
Monday, October 31, 2011
Welcome to "Law School Review"
Welcome to a new legal education blog: Law School Review: A Forum on Legal Education, sponsored by the National Law Journal. Contributors include Brian Tamaha, Erwin Chemerinsky, John O'Brien, Kyle McEntee (a recent Vanderbilt grad and exec director of a not-for-profit advocating for legal-education reform), Lucille Jewel, Michael Olivas, and William Henderson. It should be well worth reading.
Saturday, October 29, 2011
Generosity on the students' dime
Greetings from a snowy(!) New York City. I'm delighted to be back for another stint of blogging here on Prawfs. Thanks to Dan for the opportunity.
I want to start with something small, but maybe illustrative of a bigger issue. As I was in the back of a taxi on the way to the airport after a conference last week I started calculating the tip as we pulled onto the airport grounds. I think I'm a good tipper (though I also think I'm a good driver, as an impossibly large percentage of Americans do). At least let's assume I tip well. The question then hit me, should I really be tipping generously on a fare that students are ultimately going to pay for?
It was an interesting moment of "on the one hand, but on the other hand" thinking. On the one hand, I think service people generally work hard for little pay; as long as the person is doing her best I'm inclined to be generous. On the other hand, some of that generosity is, I think, based on some intuitive sense I have that I've been very fortunate and I really shouldn't scrimp when it comes to compensating people who work hard and make (a lot) less than I do. But that reason doesn't apply to my students, at least not now in their lives. Of course, the loans won't come due until they have jobs and are earning decent salaries. But of course in this economy some of them may not be getting those salaries for quite a while. And anyway, who am I to be making that calculus for them? But of course I have to do something -- the driver is waiting. ...
Anyway you get the idea. Of course, it goes without saying that we should all be a little -- OK, a lot -- more careful about how we spend our students' money in this economy. But assuming the cab ride or the restaurant meal or the hotel porter help (or the conference travel generally) is justified, what's appropriate for the discretionary part of the bill when it's our students paying for it?
Friday, October 28, 2011
Revisiting the Exploding Offer
Update: I've amended this post somewhat based on subsequent information.
We had a good thread with useful comments on exploding offers here a couple years ago and I wanted to make sure it was something folks knew about if they were on the job market this year or had some influence on the extension of expiring/exploding offers for the law prof gig.
In that earlier thread, I tried to explain what considerations should be relevant to setting a floor for the expiration date of a given law school hiring. Although I am probably more sympathetic to some shorter deadlines than some others under certain circumstances, I wanted to take a moment also to flag and express concern over one school's practice this year, which seems to me to be unusually short and unreasonable. (It may occur elsewhere too; I earlier identified the school but at this point, for the point of discussion, the particular name doesn't matter.)
The law school gave only seven days to a candidate who lived in another city and had a significant other to consult. It's possible that this little time was given to others as well (ie., both laterals or rookies). It's also likely that candidates might have been told that if an offer were to eventuate, the candidate would have about a week to consider it although there wasn't (from what I understand) clarity about when the offer was to eventuate. Notwithstanding the apparent notice, this "offer" seems to me to be an unreasonable and unfair offer. If it doesn't give people a reasonable opportunity to plan to visit with family or others impacted by the choice in advance of the offer's expiration, then it puts undue pressure on candidates. Again, I don't think all offers with less than a month of time are unreasonable or unfair. But if a school is unclear about the date on which the offer will be extended and doesn't give adequate time for persons with families or sig others to perform some due diligence and make a visit, then that strikes me as an unwise and indeed unfair choice to put to candidates. After all, it doesn't make sense for sig others to have to start doing due diligence or looking for jobs before the offer to the prof candidate materializes (especially when doing that could be harmful or costly to the affected family members). Well, that's my view, fwiw, not the views of the candidates who might still acquiesce to these conditions. I hope this practice ends.
Thursday, October 27, 2011
Scholars and the Briefs They Sign (qua Scholars)
I'm back in the 'Hassee after a quick trip to NYU earlier this week. Unfortunately, I'm missing the colloquium today for Dick Fallon's paper on scholars and the amicus briefs they sign. Somewhat oddly, the paper is part of the festival of ideas hosted weekly by Dworkin/Nagel. I say oddly because the colloquium is ostensibly about social, legal, and political philosophy, and the paper doesn't really have much to do with any of those topics. That's not a mark against the paper. Like all of Fallon's work that I've read, it's careful and thoughtful, and indeed philosophically informed. It's just a mite odd given the venue. That said, because the venue frequently attracts leading con law scholars who sign amicus briefs of the sort that worries Fallon, maybe it makes good sense for Fallon to go into the proverbial lions' den.
In any event, I had a chance to peruse the paper earlier this week and I think Fallon's right to push legal academics to be more circumspect about the amicus briefs they sign. Fallon cites Ward Farnsworth as having raised some of these issues a decade ago. Here's Farnsworth's basic point: "when academics offer opinions in their professional capacities, they should use the same care and have the same expertise called for in their published professional work, or should disclose that they are adhering to a lesser standard. Equivalently, they should not sign documents unless they would be ready to defend them orally in the tribunals to which the documents are being presented." It seems that Fallon largely agrees with this. Count me in too. But Fallon proposes a few other norms to guide the development of scholars' briefs.
FWIW, I think I've only signed fewer than a handful of amicus briefs, but it's true that I haven't always been as familiar with the sources cited in them as would be appropriate under Farnsworth and Fallon's prescriptions. Since I have a non-trivial interest in the ethical standards of legal scholarship, I find myself feeling a bit shame-faced. I'm glad Fallon's new paper provoked this greater mindfulness on my part, and I hope his essay and the norms it seeks to promote will find a warm and welcome embrace by other prawfs as they contemplate their participation in the seemingly growing practice of filing scholarly amicus briefs with the courts.
Thursday, October 20, 2011
Is Creative Writing About Law an Academically Worthy Interdisciplinary Endeavor?
Let's face it, we're all interdisciplinarians now. Even if we aren't. But what other disciplines count, such that if you put them together with law, you get something that law schools consider worthy? Obviously, the mainstays of interdisciplinary work--law and economics, history, philosophy, and political science--are here to stay, and these days we're happily seeing other disciplines added to the mix--anthropology, religious studies, various hard sciences, and the like. But what else should count, be welcomed into the legal academy with open arms, respected at tenure time, attract the attention of appointments committees, and so on? At Boston University, our schools and colleges grant degrees in over 250 disciplines, from archaeology to journalism to sculpture to oral and maxiollfacial surgery. Should we be looking to start hiring in the field of law and sacred music? Should we at least signal somehow that this is something we would be happy to consider, were somebody to show up with such a specialty?
Specifically, I'm wondering about whether Law and Creative Writing should "count" as a serious interdisciplinary endeavor. About 200 universities and colleges offer creative writing programs that teach students how to write fiction, poetry, and creative non-fiction. Some of these programs exist within English departments; others stand alone. All, I presume, see their mission as a serious academic one that deserves respect and support from their universities. As an example, here's a beautifully written statement of purposes from a top program at the University of North Carolina Wilmington.
Clearly, many law professors engage in creative writing endeavors. Some write stories. Some write novels. More would probably write novels if they thought that their schools would value such work. Of course, to "count," the novels would have to be good, as measured by those who are professional creative writers. A tenure letter evaluating a novel about law would have to come from Joyce Carol Oates, not your friend who is a fifth year associate at Debevoise. But I get the sense that even strong creative writing about law is presumed not to count. For example, look at page 144 of the Green Bag's introduction to its "Deadwood Report" project. The piece says that, in reporting on scholarship listed on the web pages of law schools, the Report will be "taking account of "scholarly books and articles in scholarly journals. Not novels." Now, the piece does thoughtfully go on to note that if the school's website includes official regulations stating that works of fiction count for tenure, and if further inquiry reveals that the school has in fact granted tenure on the basis of such work, then the Report will consider those works in its faculty measurements, "with a flag and a note about your interesting tenure policy." My sense is that this document accurately encapsulates the academy's view about law and creative writing--absent super duper exceptional circumstances, it doesn't count as an academically worthy interdiscplinary endeavor.
But of course, creative writing can help us see and understand the world in ways that academic writing cannot. There are some truths that cannot be conveyed by traditional expository writing. This has got to be the same for law as it is for other potential subjects of fiction and creative non-fiction. Try and express what Kafka gave us with The Trial in a law review article, I dare you. It's an extreme example, of course. But then again, one wonders whether, if Kafka were coming up for tenure at an American Law School, his classic novel would be considered a "plus in the file."
Friday, October 14, 2011
Transfer of "Legal Technology"
I just heard a talk about technology transfer (a piece by Jennifer Carter-Johnson). Roughly speaking, the inventors are scientists with academic positions and the technology transfer process enables inventions originating in universities to be licensed to industry. I don’t think an equivalent exists in law schools, although maybe this model will be – or has been - explored as law schools search out new funding sources.
Why no transfer of "legal technology"? The broad answer might be that it just doesn’t fit with the academic mission of law schools, and raises concerns about academic freedom and how monetary incentives might influence research. The narrow answer probably lies in what is patentable – do law professors generate anything patentable?
But my suspicion is that some information generated in law schools is worth good money. For example, sometimes law professors are like analysts. A passage from Michael Lewis’s new book, Boomerang: Travels in the New Third World, described Meredith Whitney’s prediction of municipal defaults. She’s a Wall Street analyst, but the description of what she did to identify this risk rang a bell. She needed the answer to some question. When she did the research, she discovered another pattern. This led to more research and ultimately to a conclusion that challenged common wisdom. It sounds like what law professors do at least some of the time.
Thursday, October 13, 2011
Have you ever taken a class at your university?
One very nice benefit that Boston University gives to all of its employees is the opportunity to take classes for free pretty much anywhere at the university. Despite its greatness, I had not availed myself of this opportunity for my first nine years here. Nor was I alone in my nonavailing. As far as I know, very few if any faculty members had taken a class here during that time (of course, it's possible--quite possible, actually--that I've just been oblivious). Last summer, though, I took first semester Spanish during the summer session. I have various personal and professional reasons for wanting to learn Spanish that I won't bore you with here, and the timing worked out well, and, as I mentioned before, the class cost me exactly zero dollars, so I took it. It was a blast. Apart from one other person who was around my age, everyone else in the class was 20. I kept waiting for someone to ask me to buy them beer. I made flash cards and studied them. I got stressed about upcoming exams. I tried to work the phrase "I like to ride a horse" into every class session. It was all very fun.
I also have to say that's it's a great change of pace to be a student again instead of teaching, and you get a little bit of a feel, anyway, for what it's like to be a student these days, which is probably a good thing because it's easy to forget. I can't help but think it will make me at least a tiny bit better of a teacher.
I wonder if anyone else out there has done a similar thing at the school where you teach. Do most/none/all/some schools give a similar benefit? I would think that if you wanted to get all interdisciplinary and what have you, taking courses in the relevant other discipline would be a good way to get started on that. Indeed, maybe this could tie in to some of the other discussions going on here at Prawfs and on other blogs about what AALS candidates should ask in the last 5 minutes. "I was thinking of doing some cutting edge work in law and epistemology. Could I enroll in Epistemology 101 at your university for free?"
Wednesday, October 12, 2011
The Last Five Minutes of the AALS Meat Market Interview
At the Faculty Lounge, Bridget Crawford has a post about the hiring interview. She notes that her school sends candidates a memo prior to interviews with "information about our summer research grants, conference funding, research assistants, summer works-in-progress series, term-time colloquia with outside speakers, internal workshops, course relief policies, etc." I think that's a terrific idea, and completely applaud it. I've talked here before about thinking about the duties of both candidates and hiring committees. Given the strongly emerging norm that candidates are coming in with a written research agenda to give to schools, it seems fitting to me that hiring committees can do something in return.
Given the memo, she writes, she finds it especially silly that candidates then, when asked if they have further questions, still ask what research support the school offers. That's a fair point, although I think that we can leaven it with a good deal of mercy: it's tough enough to figure out where you're going at the Marriott Wardman, let alone to remember all the materials you've looked at from a school. And then, quite frankly, although law schools differ in all kinds of ways, it seems to me that this is an area in which the differences between them are not generally profound (although there are outliers in either direction).
Given the duties of hiring committees, rather than candidates, perhaps a better question to ask is what those committees can do to make the last five minutes of an interview useful.The memo certainly helps, and again I think Bridget and her school deserve praise for it, but evidently it doesn't help enough. Especially given that the whole process is about to start, perhaps we can think collectively about what would make those last five minutes more useful and less canned.
Generally, when I serve on the hiring committee, I take it upon myself in the last few minutes to talk a little about what I think makes my school distinct, what actually distinguishes it from other schools or at least makes it a good place to work. That might make for a more productive and useful exchange with candidates, who will at least know what one faculty member thinks is special about this particular school and be able to respond to it with particular questions (or canned responses like "that sounds great," but who can blame them).
The other thing I think gets way too little attention at the meat market, and in discussions of the meat market, is that we are asking candidates to think about moving somewhere. Although I sometimes harbor the suspicion that what everyone really wants to know is whether there will be a decent number of acceptable Thai restaurants in town (remember--my next project is about class/social status and the legal academy, so Thai restaurants, as a proxy, have been much on my mind lately), the fact is that moving somewhere is a major step. Some candidates--especially, in my view, those who have always moved in elite circles--clearly have not thought much about what that entails. But whether they are moving themselves, or a whole family, this is an incredibly important point. Especially if research support packages are mostly pretty fungible, and I think they are, it ought to matter a lot more what life is like after hours. What are the housing costs, and what kinds of neighborhoods are there? Do faculty live near each other, or is it an urban school where faculty live all over the place? What are the schools like for kids? What job opportunities are there for spouses? What's the community like as a community? All these are tremendously important questions.
I personally have loved living in Tuscaloosa--where there is a lovely historical district and faculty can afford lovely places to live--and for reasons I didn't necessarily anticipate. I understand that the Deep South is foreign territory to some candidates, especially if they have been slumming it in Cambridge and Arlington for the past 25 years. But I have found that I have an incredibly strong network of friends here, not just from the law faculty but from across the university and outside the university too. Our son was born here and was significantly premature; when we went into the hospital, a neighbor ran over to look after our daughter, a faculty colleague soon came over, spent the night, and looked after my daughter in the morning; we had tons of visitors and care while my wife was in the hospital and lots of support after my son was born and spent ten weeks in the NICU. My wife ran for and won a seat on the city board of education, and is deeply involved in civic affairs. When we take our kids places, we run into tons of friends with their own kids. We shared a beach house at Gulf Shores this fall with eight other families and their kids, all of them involved in the university in various ways and none of them at the law school. We will see many of them tonight at the local Hillel sukkah. Our friends run local arts activities, and I help select films for the annual Jewish Film Festival. And on and on. Candidates often ask about proximity to Birmingham, and I get that; but what I am struck by, in terms of what has made my life here in Tuscaloosa so full, is the powerful sense of community I have here. The fact that, as everyone should know, we were struck by a tornado has, in a sense, made life here even more precious. You learn a lot about a community in times of adversity.
Perhaps candidates ought to think more strongly about what makes life in particular places unique and special, and what tradeoffs are involved. (Among other things, they might think more carefully about the frequent bias in favor of living in one of the standard big cities. It's not just that life there is expensive. It's that your colleagues will probably be scattered far and wide, the school will have more of a commuter vibe, and you may get lots of bookstores and Thai restaurants but lose a good deal of community and quality of life.) And perhaps hiring committees can say more about what unexpected challenges and benefits they have found in living in a particular place. These kinds of rich details and thick commitments are a major part of our lives, and they can lead to discussions that are far more productive, and more important to a person's day-to-day life, than "what support do you offer for faculty research."
Tuesday, September 27, 2011
Structuring Faculty Workshops
A prawf writes:
We (i.e. “I”) are (am) thinking about starting a workshop here at ___ (not to bring in speakers, but for internal presentation). What ground rules do you set for participation in your workshop? Do you require any kind of commitment from faculty, or is it open to whoever wants to come that week? Any ideas on “best practices” would be helpful, especially since we're concerned about cultivating a committed group of regulars while minimizing free-riding.
Some thoughts and an invitation for you all to hop in, after the jump.
What do you all think about the best way to structure workshops?
Monday, September 19, 2011
Open Thread for Law Review "Angsting"
Updated and bounced to the front:
Redyip has finally been sighted for the season. The question is: has he departed for good until the spring? Are the law reviews still open for business and making offers?
Since we had such a successful thread this past spring about the submission season, I figured we should start a new thread for a joy/gripe-fest, a place where authors and editors can share stories and offer information about the upcoming submission season. Have at it!
Tuesday, September 13, 2011
Why The Rule Against VAPs?
A friend who's a VAP somewhere asked me: what gives with the so-called rule against hiring one's own VAPs?
I tend to agree with the implicit critique of this Ulysses-mast-binding rule. Certainly the argument from authority (ie, what do the fancy schools do) has dissipated. Schools like Chicago or Harvard, in the last decade (if not more), have hired their own Bigelows/Petrie-Flom fellows. Harvard even hired (and recently tenured) someone who actually was a VAP (a position whose title is not all that prevalent at HLS so far as I know).
Nonetheless, the stated or implicit justifications are at least threefold:
a) this way we can really promote you the VAP on the market without having a conflict of interest;
b) this way the host school's prawfs will be immune from lobbying by the VAP or the VAP's students or friends on the faculty; and relatedly
c) presumably in the course of "maintaining standards," this way we'll spare ourselves the discomfort associated with not hiring the VAP and yet having the VAP "on the premises" still, where s/he will could wreak havoc (Screw you! I'm giving A's to everyone!) or just grouse at us.
The justifications in other words are that the rule can benefit the VAP as well as the institution.
Of course, a rule that allows VAPs to be considered allows some VAPs to be benefited (the ones who are hired). It may even be that there's plausible deniability available when the current VAPs are not hired b/c the host school can always say, the VAP wanted to go elsewhere or there wasn't the right geographic fit or subject-matter fit. These would all help the non-hired VAP save face ex post, and ex ante, a VAP might want to buy a chance at getting hired by the host school, even if it's not great odds.
From the institution's perspective, the benefit of considering VAPs is that you get to look at people who might already be really good AND interested in your school and location. For schools that are in relatively GU places, this seems like a wise decision, much like being open to hiring couples or polyamourous units if possible :-)
So, does your school have a "rule" or a norm against hiring VAPs, or does it expressly consider the VAP pool as an optional "dating" pool for later hiring? My school, FSU, (note the following aspect of the blog post has been revised) has a rule against considering visitors while they're on the premises (and that includes VAPs) but the rule against hiring can be waived by 2/3 faculty vote in individual cases. In the last six years, we have done this once, and it wasn't related to a VAP. While the rule has an exception built in, the "ruliness" of it tends to dominate clearly... perhaps because of the concern that VAPs are no different than "regular" tenure-track visitors with respect to the downsides of voting while the visitors are "on the premises." But maybe VAPs are an entirely different kettle of fish? I can see why we'd treat both pools similarly based on purported justification c) above. But these rules or strong norms seem to me to be welfare-deflating. Tell me why I'm wrong (or right) in the comments. And why do you think the fancy schools (or some of them at least) have said they'll hire folks who are on the premises? Is the situation very different "down the chain" or have we failed to learn from the "best practices" at the top schools?
Monday, September 12, 2011
4th Annual Junior Faculty Federal Courts Workshop
FIU College of Law will host the Fourth Annual Junior Faculty Federal Court Workshop on February 2-4, 2012. This program was started at American University back in 2008 by PermaPrawf Steve Vladeck and has become an annual event in the Fed Courts scholarly community.
The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress. Five senior scholars have confirmed participation this year: Susan Bandes (University of Miami), Lee Epstein (USC), Theodore Eisenberg (Cornell University), Martin Redish (Northwestern University), and Suzanna Sherry (Vanderbilt University).
This year, we are spreading the conference out over two days (meaning an extra day in Miami in February, not a bad thing). It begins with a dinner on Thursday, February 2, then panels on Friday and Saturday. Each panel will consist of 4-5 junior scholars, with a senior scholar serving as moderator and commenter and leading a group discussion on the papers.
The workshop is open to non-tenured and recently tenured academics who teach and write in Federal Courts, Civil Rights Litigation, and associated topics. Those who do not currently hold a faculty appointment but expect to do so beginning in fall 2012 are welcome. The program is also open to scholars wanting to attend, read, and comment on papers but not present. There is no registration fee.
FIU will cover all meals for those attending the workshop, including a welcome dinner on Thursday and reception on Friday. The College of Law has arranged for a discounted block of rooms at the Westin Colonnade in Coral Gables, as well as transportation to the College of Law. Go to the Conference website for more information.
Those wishing to present a paper must submit an Abstract by November 15. Papers will be selected by a committee of past participants; presenters will be notified by December 10. Those planning to attend must register by January 10, 2012. The program is also open to non-presenters who want to attend, read and comment on papers, and participate in the discussion.
We are setting up a web site and submission e-mail; we will provide all that information as the submission and registration dates draw near. Anyone wanting to submit right away can send abstracts to me at firstname.lastname@example.org.
In the meantime, save the dates of February 2-4.
Saturday, August 20, 2011
A few thoughts on writing and shame
Thanks to someone on FB whose name I can't recall, I came across this essay about the experience of shame in the process of academic writing. Take a look at it if you've not seen it yet. Once you have, come back to this post and tell me your reactions. My sense is that some people simply sound wonderful on the page from the moment they put fingers to keyboard. (This must be true, for example, of Paul Horwitz, Chad Oldfather, Rick Hills and Dan Kahan, right?). Sadly, those dudes have done comparatively little to open the kimono regarding their creative process. But if they are like most of us mortals, I think it bears mention and reminder upon reminder, especially for all the aspiring prawfs who read this blog and others like it, that the process of producing good academic scholarship in clear prose takes real sustained effort.*
On that note, I recall with affection the story, perhaps apocryphal, of John Kenneth Galbraith, the Harvard luminary known for his econ and style. As the tale goes, Galbraith was presiding over a public celebration of his zillionth birthday or book in Cambridge. He was taking questions from the audience. A middle-aged woman asked: Professor Galbraith, how on earth do you get your prose to read so effortlessly? And, in an uncharacteristic flourish of candor and modesty, he said: well, after the 15th draft, I sure hope it looks effortless.
I am no Galbraith. In my own case, I number my drafts beginning 1.0 and they frequently go well past 10.0 (that is 100 or more drafts). The first fifty drafts or so are typically drenched with shame and marinated in self-disgust. But still I plod on. Gotta feed the boys, right? Anyway, as it is, the project on punishment and democracy that I've been working on since February is now at version 10.4, and it hasn't even begun the editing process from the students. It took me an unconscionably long time to realize what I wanted to argue but with the help of some good friends (yes, Cahill, it's principally your fault), I'm now more sure I'm saying something quirky and sound enough to lose the self-disgust. It's not yet up on SSRN, however. That's the signal that I'm still surrendering to the shame of the writing process, with a white flag around my neck.
I hope to overcome that particular bout of shame soon. But if it lingers, it may have to do with related anxieties about the connection between style and argument. Because I write principally in the philosophy of crime and punishment, I've frequently tried to strip my scholarship of any baroque tendencies that I would otherwise indulge. The topic itself is already abstruse. So, just the arguments, so much as I can bear. For me, sadly, the arguments take a while to develop and once I get there, I want to protect them from various objections; as a result, I still write really long articles. Thus, insofar as a writerly style has emerged, it's one that involves less verve and splash than I might otherwise prefer.
Because I want the arguments and not the art to perform their coercive task, I often feel my once-creative writing muscles and imagination have atrophied. And so the real shame I experience with my writing isa fear that my beloved vocation has flattened, if not quite deadened, my soul. Law school may be to blame: as the trope goes, it sharpens but narrows the mind. If what I read is any gauge, when I was in college, I was more of a fox than a hedgehog. Now, I think I'm a hedgehog with much less tolerance for reading or listening to foxes. And so I wonder: can hedgehogs still be interesting? Can they write coercively and creatively?
If the examples I mentioned at the outset are any indicator, the answer is clearly yes. So what is to be done? I'm curious to hear what others have done to retain or recover the palette of language or to overcome the various experiences of shame and the writing process.
*That's partly a word of caution to the folks in the sheets who are practicing and who think they can just gin up a job talk paper in a couple months or less. In most cases, good prawfs will sniff out mediocrity or worse within a few pages of reading.
Thursday, July 21, 2011
Sundry: SEALS, scholarship updates, and the writer's studio
The annual SEALS conference is coming up next week, which I'll be excitedly attending. Our crew will be staying next door to the Marriott at the Palmetto Dunes--so please message me if you're there and want to celebrate Benben's 2d bday on the 29th. Notwithstanding the happy hour the night before, the (sincere!) motivation for the trip is a panel I'll be doing with Larry Solum, Usha Rodriguez, and Dave Fagundes on the question(s) of: (How) Can Blogging Build Community in the Legal Academy? I think blogs like ours (particularly Bodie's wonderful book club series) have done some great things toward cultivating community (at least defined in some ways), but Usha is right to ask her readers what else can be done. So...as a new school year awaits in the shadows, I thought I'd ask for readers of this blog to share thoughts they might have (either via email or in the comments) about what more Prawfs can do to build a warm and engaged community in the legal academy. After all, I'll need something to talk about on the 29th at 10:15am!
While I'm typing on the intertubes, let me take this moment to conclude my recent short series of posts with updates on what I've been working on. Mercifully, this will be the last of the batch for a while.First, the other day I put up on SSRN the final version of a chapter entitled What Might Retributive Justice Be?, which appears in the recently published volume, Retributivism: Essays on Theory and Practice (edited by Mark D. White). As the piece is, for me, relatively short, it's worth mentioning that this chapter might be somewhat helpful as an introduction/overview of contemporary retributive justice theory for those (1) less familiar with punishment theory and (2) tasked with teaching (or studying) criminal law or sentencing law in the coming year. By the way, there will be a conference at St. John's Law in NYC on Friday Nov. 4th devoted to discussing the chapters and themes in the volume. If you're interested in attending, let me or Marc DeGirolami know.
Second, thanks to a teaching leave made possible by the good folks at the Searle foundation and FSU, I've spent much of the last five months working on a piece trying to connect the literature on political obligation (ie., is there a moral duty to obey the law) to criminalization and punishment theory. The resulting marriage is a paper entitled Retributive Justice and the Demands of Democratic Citizenship. Not sure why, but I'm still holding this one back from SSRN right now. Nonetheless, it's now in a sufficiently complete draft(!) form that I'd be happy to share it with any folks who want a sneak preview and a chance to help me avoid various errors.
Third, I've also just put up a short essay (entitled A Judge for Justice) on related themes of disagreement, deference, and democracy in the context of crime and punishment (and in particular shaming punishments). By looking at the somewhat famous Gementera case carefully, the piece is intended as an homage to my former boss, Judge Michael Hawkins on the Ninth Circuit, who transitioned to senior status recently. To mark that transition, the editors at the ASU LJ convened a celebration/symposium earlier this year with some of his former clerks who are now prawfs; accordingly, the issue in Volume 43 with my essay also includes thoughtful reflections on Judge Hawkins' jurisprudence from Profs. Lenni Benson, Thomas Healy, and Carlton Larson.
I was going to include something about our new "writer's studio" at FSU in this post, but I'll save that for a separate post, as this one has probably gone on long enough. More later. Happy Thursday.
Wednesday, July 20, 2011
Memorial for Prof. Steve Gey, Sunday Sept. 18 at 130pm.
As readers of Prawfs know, my colleague, Steve Gey, passed away this summer after a long struggle with ALS. The FSU community will be having a memorial service to celebrate Steve's life and career on Sunday, September 18th, at 1:30pm here at the FSU law school. All are invited. For those of you who did not have the opportunity to get to know him, here is an article from our alumni magazine in 2007 about him. Steve’s contributions to the law school and to the fight for civil liberties were immeasurable, and we look forward to this opportunity to gather in his honor. Please help us pass the word about this memorial for this remarkable man.
Tuesday, July 19, 2011
Two Thunderously Trivial Thoughts on "Transformative Deans"
Thanks to a colleague's tip, I came across Brian's interesting post where he identifies nine transformative deans during the last decade. (I guess it's the mid-summer doldrums that prompt this collective navel-gazing!) Anyway, as usual, he has some acute observations about who's been able to shake things up effectively, and certainly he's correct in his assessment of FSU's wunderkind dean...unlike Brian, I am happy to be objective without being neutral :-)
But I want to register a small point of caution related to something I wrote last year about one of these transformative deans (whom I happen to love). While it's true that effective deans can do a lot to win faculty retention challenges, I think we need to avoid overstating how much credit deans can take regarding the hiring of high-quality faculty.
Faculty hiring at most schools is a very collaborative process, and in most cases, it should be. While deans at some schools can appoint who sits on the hiring committee, other schools leave that decision to the faculty itself to vote on. Even at schools where the dean appoints the appcomm, the dean cannot be assured that the committee will read/invite/approve those people the dean wants (assuming the dean even specified who she wants). Nor can the dean, at most schools, expect to have all the non-appcomm cats herded on voting days and have them vote as she wants. This may not be true in DVZ's world, where he is said (on what I take to be spectacular authority) to have fined people who didn't fall into line with his vision, among other aggressive tactics. But most schools do not have deans that are so, um, empowering of (or susceptible to) the unitary executive...and at least in some cases, the deans who assert such authority are regarded as rapscallions and worse. In light of this complex sausage-making reality of faculty hiring, one has to be cautious with praise in this dimension, just as one should be careful with criticism that deans are "responsible" for the failure to hire libertarians or women or any other group. After all, and put simply, faculty hiring is a they, not a s/he.
A second minor point worth mention: when it comes to noting the spending habits of deans, one has to also be aware of whether the successors (and the other stakeholders) are as thrilled with the resulting balance sheets as those who made the decisions. A law school's transformation that is built on shaky financial ground may share the same half-life as an O'Connor or Brennan opinion.
Last, Brian didn't open up comments on his post. So feel free to weigh in with your own thoughts here, but bear in mind the usual rules of the road here.
Tuesday, July 12, 2011
Judges: Ask not what legal academics can do for you, but what you can do for legal academia!
Apropos Chief Justice Roberts' kvetching about the irrelevance of legal scholarship not long ago, y'all might be interested in this post I received from a prawf at Harvard Law School. Use the comments to guess who wrote it.
The Growing Disjunction between Legal Scholarship and Judicial Practice:
A Profession in Crisis?
Not so long ago, legal scholars and practicing judges had a healthy and mutually beneficial professional relationship. Indeed, there was a time when academics and judges saw themselves as part of a common enterprise devoted to the understanding and improvement of law. Over the last generation, this has changed profoundly. Unfortunately, the last several decades have witnessed the emergence of a large and ever-widening disjunction between legal scholarship and judicial practice. It is fair to say that this disjunction has reached crisis proportions. Of course, there are those who, either out of complacency or personal investment in the existing system, do not see this growing disjunction as a serious problem. But it is a serious problem, and unless we honestly recognize it as such and take steps to fix it, the productive and symbiotic relationship between legal academics and practicing judges may break down completely.
That a disjunction between legal scholarship and judicial practice exists is self-evident. If you leaf through any volume of the U.S. Reports or the Federal Reporter, you will hardly ever find any judicial opinions of the slightest use to legal scholars. Most published judicial opinions are on obscure, mundane, and basically uninteresting topics like whether a dredge counts as a “seagoing vessel,” or whether some bankrupt coal company can unload its pension obligations on a successor, or whether the admission of some piece of meaningless evidence in a trivial case was properly excluded under an exception to an exception to the hearsay rule. Even when judges do take on issues that are relevant to academic practice, their opinions are typically written in such a way that makes them unhelpful for legal scholarship. Indeed, most academics – who are working to better understand and predict the practical consequences of legal institutions for human welfare, to elucidate how the law operates and evolves as a social institution situated in a particular historical context, to delve deeply into the moral and ethical dimensions of legal decision-making, and indeed to better understand the concept of law itself – will find little to help them in the turgid, arcane, and essentially irrelevant discussions in most published judicial opinions. In fact, I have many colleagues in the legal academy who no longer even bother to read judicial opinions, they have become so useless for serious legal scholarship.
Things have gotten so bad that it’s not clear that anyone reads most judicial opinions these days, except for other judges.When judges write only for one another, rather than for a broader audience of legal academics, the practice of judging threatens to become insular, self-indulgent, and intellectually irrelevant. Of course, judges may still be performing a useful function, in that they can help resolve mundane, or very occasionally consequential, legal disputes. So I suppose the increasing insularity of the judicial community may not matter if the only role of the judge is to be a kind of bureaucratic functionary. But many of us subscribe to the old idealistic notion that judging can be something more than that – that judges can contribute, in a very real way, to the scholarly enterprise (though admittedly as junior partners). In order to do that, however, judges need to stop writing just for other judges, and to start writing in a way that their opinions will be useful to academics.
In order to figure out what to do about the growing disjunction between the legal academy and the bench, we must understand the reasons this disjunction exists. While it is hard to give a definitive explanation (and there are probably many causes), a few possibilities stand out. One is that these days fewer and fewer judges join the bench with serious academic experience. In days gone by, a larger fraction of judges had spent significant time in academic practice (not just one or two summers as a research assistant) before becoming judges, and as a result these judges had both better academic training and a greater sensitivity to the needs and interests of professional scholars. These days, however, most judges are much likely to have backgrounds as practicing lawyers rather than as academics. This is a problem. Those who are responsible for appointing and promoting judges should give prospective candidates much more credit for serious academic experience than they currently do. Yet today – hard as this is to believe – there seems to be some discrimination against judicial candidates with serious academic credentials. If we are serious about narrowing the gap between legal scholarship and judicial practice, the thumb should be on the other side of the scale: we should be willing to appoint judges with meaningful academic experience, even if they don’t have all the conventional hallmarks of achievement as practicing lawyers.
A second explanation for recent trends may have to do with the fact that judicial practice these days places less and less emphasis on “interdisciplinary” judicial reasoning than it did in earlier times, when judges would routinely draw on ideas from moral philosophy, history, and social science when making their decisions. As judicial decisions have become ever more doctrine-oriented, they have had less and less relevance to legal scholarship. This may have less to do with any essential requirements of judicial practice, though, and more to do with the current preferences and proclivities of judges, as well as the people who hire and promote them.
These two explanations may both be manifestations of a larger, and troubling, cultural trend in the judiciary. Most judges do not self-identify as scholars, but rather as legal practitioners. Indeed, even those judges with serious academic abilities consider themselves judges first, and only scholars by happenstance. Moreover, even those judges who do have an interest in writing opinions that are useful to legal academics – opinions that engage with serious intellectual problems using rigorous research methods – face daunting social and professional pressure not to do so. I gather that some judges will quietly complain to friends and colleagues that they are worried that their prestige and chances of career advancement may be harmed if they are seen as “too academic” or “not practical and doctrinal enough.” Changing a culture is hard, but doing so may be necessary if the current crisis is to be redressed.
Of course, not everyone agrees that there is really such a crisis. “So legal academics don’t find much useful in published judicial opinions,” these skeptics say, “So what?” While some of the skeptics take the obviously untenable position that judges and legal academics have fundamentally different jobs (so that it would be unfair to judge one profession by how much it is helping the other profession do its job), a few of the skeptics do raise some objections that are worth taking seriously.
First, some of the skeptics assert that it is wrong to blame the judges for their failure to write for an academic audience, because the judges rightly believe that academics do not really care what judges think. Those holding this view often lament that the legal academy is so politicized – with scholars determined to reach particular preferred conclusions – that legal academics will at best selectively quote only those judicial opinions that support the academics’ preconceived notions, rather than really engaging deeply with judicial opinions that might argue cogently for a contrary position. On this view, the disjunction between legal scholarship and judicial practice is indeed a problem, but the fault lies with the academics for not being willing to listen, rather than with the judges. There may be something to this, but most academics I know would be thrilled to read a really good judicial opinion that engaged directly and intelligently with their latest research project. It seems to me that the real problem is that such opinions are so rare.
Another skeptical objection is that academics do not really need judicial assistance these days in the same way that they might have in earlier generations. After all, legal academics have access to advanced computer search engines (including Lexis and Westlaw), as well as paid research assistants and professional support staffs (much as judges have law clerks and similar administrative and research support). These skeptics would assert that academics can do their own research, and it’s a sign of narcissism or laziness when scholars complain that the judges aren’t doing enough to help the scholars do their jobs. This is profoundly unfair to legal academics, and it also reflects a fundamental misunderstanding of the role of the judge, which is to contribute useful material for academic progress.
In sum, this short comment is really a plea from a representative of the legal academy to the bench: You have the potential to make a real contribution to a vital social enterprise – the advancement of human knowledge about the nature, purposes, and effects of law. This potential has been realized in the past, and can be again if you are willing to make the effort. Resist the temptation to retreat into the comfortable cocoon of writing only for other judges and practicing lawyers, as this will eventually lead to the total irrelevance of the judiciary to the scholarly enterprise. Rather, you should strive to write opinions in a way that will inform, enlighten, and – yes – even influence practicing legal academics.
Saturday, June 25, 2011
Distance learning programs
I've never taught in a distance learning program. I know that MBA and MPA programs frequently offer such opportunities. (I'm not talking about a semester in another country programs, but rather courses regularly offered in outlying areas). Are such programs 'money makers'? Should they be? What are the benefits and costs of offering them? Should law schools go this route?
Tony Bertelli - (USC School of Policy, Planning and Development - joint appointment with the law school) provides some insights on such programs in a recent blog post:
Starting in August, I will be teaching a distance course at the MPA (Master’s of Public Administration) level for the first time. The School of Policy, Planning and Development is launching a new distance program this fall and my course is among the initial offerings. The distance medium is intensely challenging for a beginner like me. Why am I doing this? Here is one reason.
I’ve become convinced that distance teaching in MPA programs is important. Back in 2007, I wrote a paper about turnover intention in the federal service that launched an interest the sustainability of the public sector workforce. Around the time I published my study, an OPM report suggested that about 18 percent of the federal workforce had become eligible to retire and that the median length service after becoming retirement eligible was four years. In the 2010 Federal Employee Viewpoint Survey, fully 42% of the more than 247,000 respondents reported being with their current agency for longer than 20 years. Statistics for my home state of California are likewise striking with fully 51% of of the service comprised of Baby Boomers and only 11% Milennials according to the Department of Personnel Administration. That imbalance warns that pre-service MPAs are not sending graduates into public service positions, and retirements are on their way.
Check out the rest here.