Monday, September 03, 2018

A Personal Law Review Article Submission Narrative

0dc3c821-583e-4983-87ce-a89c1b7bef6b-originalBefore the end of the month, I mentioned to Howard the possibility I would have one more thing to say about what has become a theme this summer: the folkways of career advancement in legal academia and, in particular, the angst around law review submissions.  I recognize that my circumstances may not match anybody else's - I have a job, tenure, and I'm too old and sedentary to be thinking about lateral moves.  But, for what it's worth and with the consent of the editor of the journal in which I've just agreed to publish an article, I'm going to offer here a narrative about the submission process. 

My project this summer was a thought experiment that looked at the current embodiments of "smart contracts" - crypto-currencies as well as systems of legal documentation that can operate on blockchain technology - and considered what it would take for a traditionally negotiated complex and bespoke agreement to be "smart" in the same way.  (The title is a clue to the conclusion:  The Persistence of "Dumb" Contracts.).  I finished it to the point of public consumption and posted it on SSRN on June 25.  All things considered, it did pretty well there.  It's up to 222 downloads as of this morning, and made a bunch of the SSRN "Top Ten" lists.

In terms of hiring or tenure, it doesn't matter where I publish. I am pretty sophisticated about what is meaningful and what is not in a linear ranking like the US News list. But I'm as susceptible as the next person to the allure of glitzy branding, even if for no reason other than pure ego.  I am not on the faculty at a school whose letterhead sends student law review editors into spasms of fawning sycophancy.  Nor do I think my stuff is easy for student law review editors to assess.  (Dan Markel, of blessed memory, once told me I am "orthogonal" to most debates, something I took as a compliment even though I'm quite sure he didn't mean it that way. I think of it as "anything you can do, I can do meta.") Indeed, I've already noted that I've been asked to "peer review" articles for multiple super-elite flagship law reviews.  Each time I've done it, bitching all the while to my contact articles editors about the fact that my own submissions to their journals don't make it out of the submission inbox.

So, after the break, a short narrative about Persistence's submission odyssey.

As of June 25, I was suffering from the usual self-delusions, sitting on a completed 25,000 word article and thinking that it really did deserve to appear in a very "top" law review (see above).  I knew that submission season didn't begin until August 1 and that the peak for submissions would be roughly mid-August.

I had acted as a peer reviewer for an article in the flagship journal of a very highly ranked law school in the spring (the "XLR").  I contacted directly the XLR senior articles editor with whom I had dealt.  The editor encouraged me to submit when the journal opened on August 1, and said that if I gave a two week exclusive, the journal would guarantee a read of the piece.  That seemed to me a no-lose proposition because it would still allow me to submit in the Scholastica shotgun as of August 15 (by which date, I knew in those brief moments of being tethered to some fashion of cognitive lucidity, XLR would have rejected it).  

In early July, Northwestern announced an early submission period for those willing to give exclusives between July 15 and the end of the month.  Again, that struck me as a no-lose proposition, as upon its inevitable rejection at Northwestern, I could submit it to XLR as of August 1.  The inevitable Northwestern rejection came (a day early), and the piece duly went off to the XLR.  I related the story of its sojourn at the XLR here.  Suffice it to say that, as of the evening of August 14, I was ready to do the Scholastica thing.

Off it went in the wee hours of August 15 with a CV and a cover letter (including the classic sentences: "Let me put this bluntly.  Please put aside the usual heuristics based upon the letterhead of the submitting author.").  As I've noted, my peeve is submitting to journals and not being prepared to accept offers if they are the only ones you get.  On the first pass, I decided to do flagship journals of USNWR top 50 schools and two "specialties," the Columbia Business Law Review and the NYU Journal of Law & Business.  When I woke up in the morning, I had a few minutes of post-Nespresso clarity, after which I added submissions to the flagship journals of top 100 USNWR schools. I also decided, since I had submitted to specialty journals at Columbia and NYU, I'd submit to one "elite school" specialty journal that I had never seen before but which seemed appropriate for my topic: the Stanford Journal of Blockchain Law and Policy.  

That was it for the next couple weeks, except that I decided to submit directly to a couple flagships (you know who they are) that don't do the full Scholastica shotgun thing.  One of them (for whom I had done a peer review several years ago) rejected the piece within a couple days, but were thoughtful enough to look forward to my next submission.  Other than that, I lurked on the angsting post and contributed to the betterment of the world by recording my rejections on Sarah Lawsky's spreadsheet.  Based on what I was seeing in the comments, and knowing how little any of the tea leaves meant, I wrote something about my view of the realities of article placement.

I then experienced what I thought, at the time, was the corollary to my pet peeve about submissions, which I sometimes characterize as another one of Lipshaw's Laws.  It goes like this:  "If you submit only to law reviews you are prepared to accept, you can be sure that your only offer will come from the very last review you decided you were willing to put on the list."  As sure as the earth orbits the sun in an ellipse, I received a message last week through Scholastica from the very last review I had decided I was willing to put on the list, the Stanford Journal of Blockchain Law & Policy, that my article had received a favorable "peer review" and would be coming up for a vote of the board of editors.

What I am about to say may well be the epitome of rationalization or cognitive dissonance.  I did something I probably should have done at the outset, which is that I went to the SJBLP website.  There I discovered that the journal is not student-edited, that articles (i.e. pieces over 10,000 words) are sent out for peer review, and that the journal is affiliated with the MIT Media Lab and Stanford's Code-X (its Legal Informatics program).   Many people who are prominent in the "artificial intelligence and the law" community are affiliated with Code-X.

So we go back to the issue of substance, on one hand, versus heuristics and ego, on the other.  My piece got very granular about the nature of computer code and its relation to logic.  I said a lot of things about how computers work.  Even though I'm pretty good at math, I'm not a computer expert.  To have the piece accepted by a peer-reviewed journal in the academic "law and computation" community was, to me, a significant professional validation.  At that point, I realized that I would rather have it published there than in almost any other journal.  I say almost any other because the allure of publishing in a T14 or T17 journal, particularly when it is so rare on my faculty, was still strong.

Yesterday, the SJBLP accepted the piece with a short deadline.  Last night, I withdrew it from all but nine journals, and expedited the rest.  This morning, again with the benefit of Nespresso clarity, I decided (a) it was highly unlikely any of the nine would abide the short expedite deadline; (b) it was highly unlikely that any of the nine would make an offer, but (c) most importantly, I really did come to believe the best home for the piece was where it was likely to be read by people who care about and understand the issues.  Ego and heuristics be damned!  Shortly thereafter, I clicked the "accept" button on Scholastica and withdrew it from the remaining journals.

Were I "on the market" would I have thought this through in the same way?  I don't know.  Fortunately, I don't have to test my self-honesty against that counter-factual.  I am quite sure, however, that, as someone who is obliged to consider scholarship by hiring and tenure candidates, this narrative would make sense to me if offered up by one of them.  Here, I'm simply putting it out to the community as one datum, for whatever it's worth.

Posted by Jeff Lipshaw on September 3, 2018 at 02:07 PM in Getting a Job on the Law Teaching Market, Law Review Review, Life of Law Schools, Lipshaw | Permalink | Comments (6)

Friday, August 31, 2018

Kai-zen and Poka-yoke in the Classroom

Even when I'm not doing a whole new prep, in the spirit of kai-zen ("continuous improvement"), I like to tinker with the form and the substance of a class.  Sometimes the tinkering is fairly substantial.  Several years ago, the authors of my contracts casebook decided to produce another edition.  I respectfully declined to adopt it, not believing that there were sufficient advances in the law of contracts to justify having students buy a newly-issued book.  But, upon discovering that there weren't enough copies of the old edition in circulation to be sure students could get them, I decided to scrap the casebook entirely, download and edit the cases myself, post them on Blackboard, and assign the very good Examples & Explanations book as the text.

If you aren't familiar with it, kai-zen is a fundamental aspect of lean manufacturing, something that had its roots in the Toyota Production System in Japan after World War II, and migrated to the United States and elsewhere in the 1980s and 1990s.  In first year contracts, I came up with two improvements yesterday, as usual in the several hours before the first class was to begin.

Screen Shot 2018-08-30 at 6.23.23 PMThe first was substance.  I record all my classes and post my notes as soon as we are done with a unit.  I decided that I wanted the very first thing that I said on the very first day to be something to which the students could return when, as I put it, later in the semester they got frustrated with the material, me, the book, the cases, or why they made the decision to go to law school in the first place.

The second was form.  As I've mentioned, I don't impose a seating chart, and my cold-calling tends to be half-hearted at best, and tails off over the course of the year.  I do, however, start with "on-call" panels, and I do like to know something about my students.  In past years, I have simply given them blank index cards with the instruction to write their names and other information.  But, regardless of the instructions, students have managed to leave stuff out, write on the back of the cards, fill the cards so that I can't put pictures on them, etc. I have also struggled with how to take that information and use it (a) to organize the panels, and (b) have the information, including their pictures, readily accessible as I have to find them in the classroom (because I don't use seating charts). 

So I called on another lean manufacturing concept - "poka-yoke" or "inadvertent mistake prevention."  The idea on the manufacturing floor is that you set the process so that the operator can't make a mistake without shutting things down.  Instead of having two similar and identical holes for which the inserted piece could get reversed, you make the holes into different shapes and non-symmetrical.  It occurred to me that, if I just did a little poka-yoke on the cards, I would get the information just as I wanted it, and with a space in which to insert a picture.  

Voila!  What you see above, which took about 90 seconds in Word to create, and which could be duplicated on 4 x 6 index cards.  To create the panels, I just shuffle the cards and separate them into groups.  To call on students, I just reach for a card.

Posted by Jeff Lipshaw on August 31, 2018 at 08:46 AM in Lipshaw, Teaching Law | Permalink | Comments (3)

Sunday, August 26, 2018

A Guide for the Perplexed - Law Professor Careers Edition

220px-Guide_for_the_Perplexed_by_MaimonidesWith sincere apologies to Maimonides, and having been a guest blogger through this year's fall article submission season, it seems like an opportune time for a short update to those classics, Memo to Lawyers: How Not to "Retire and Teach" and "Retire and Teach" Six Years On.  I wrote the former piece after getting a tenure-track law teaching job at the ripe old age of 52, reflecting on the idiosyncrasies of the hiring process, particularly for the superannuated aspirant, after having experienced the real world for most of a career. I wrote the latter piece shortly after I got tenure, reflecting mostly on what it really meant to do scholarship and teaching well.  

I now have the further experience of having participated on various career-related committees and the faculty meetings in which hiring and other career decisions get made.  (Disclaimer:  what follows are my views alone and do not represent views of my employer, any committee on which I sit, or any other member of our faculty.)  So, below the break, and for what it's worth, here are some random and personal thoughts about the role of scholarship in academic law careers and careerism, particularly for pre-tenured folks, from my particular perch at a respectable but certainly not an "elite" school.

  • Why are you writing?  Presumably it's because you like doing it and see it as a way of making a difference in the world.  But from a career advancement standpoint, you do it for one of three reasons:  to get hired, to get tenure, or to move laterally.  What I'm about to say is based on intuitions about data because the data is not readily available.  The first and the last of those career objectives are difficult; the middle one, at all but a handful of institutions, is relatively easy.  My suspicion is that the lateral market is far less important as a factor in career advancement than it might otherwise seem - again the availability heuristic at work.  The AALS reports that there are over 10,000 full-time tenured or tenure-track law professors (makes sense - about 200 schools at an average of 50 faculty members).  Maybe there are 100 lateral moves a year?  A very well-known senior law professor/scholar told me years ago not to expect to move laterally - this person had spent 17 years at a lower top 100 school before making a series of significant jumps up the food chain.  My intuition (which I could test if I didn't think it was undue navel-gazing) is that the farther you go down the rankings, the higher the percentage of faculty that have spent their entire career at the school.
  • CVs provide a gestalt.  My own experience is that I take it in as a whole and don't react to any particular item unless there is something truly exceptional about it.  For my money, the angst and mental energy I see reflected on this blog with respect to article placement is barely worth the effort.  The names of law reviews in which you've published are visceral heuristics that, in my experience, matter only when one is flipping through hundreds of FAR submissions.  Even then, it matters only to an extent and not at the level of granularity that people seem to think makes a difference.  Per the lumping of peer reputation scores I've highlighted before, if you've published in the elites it would cause me to notice, and it would probably cause me to notice if you published nowhere but specialty journals in the unranked USNWR category of law schools, but little else matters viscerally.  I don't keep a US News or Washington & Lee ranking in my head, and couldn't tell you where Tulane ranks in relation to Colorado to Temple.  And even noticing isn't the same thing as making an informed judgment that involves the subject matter of the writing, the apparent sophistication of the work (if one can tell from the title), or its originality, even if I make the judgment quickly.
  • Once you get past the visceral, here's what I think really happens.  As Paul Caron wrote in an article over ten years ago, legal scholarship has an exceedingly long tail.  Paul relied on research done by Tom Smith at San Diego.  The top half percent of articles get 18% of all citations, the top 5.2% get 50% of all citations, and the tail gets truncated quickly as 40% of all articles never get cited.  I'm assuming that there is a relationship between citation and articles even getting read.  The times you can be sure some or all of your work will be read is when you've made it through the callbacks and are into the final several people being considered for the spot, when you are being reviewed for promotion or tenure, and if and when you were ever in the final stages of the lateral process.  Generally speaking, people doing that reading aren't idiots, and know exactly how the system works.  If the piece sucks, but somehow you managed to get it through the editorial board at take-your-pick top 50 flagship, very few people who know the area in which you are writing are going to think to themselves, "Hmm, this person missed the really important work on this subject and skated over the hardest responses to the argument, but my gosh it was placed in the Big Ten Other Than Michigan Law Review, so it must be good."
  • While being perceived as a competent scholar is a but-for in the hiring, tenuring, and lateraling milieus, the make-or-break consideration is being perceived as a productive scholar.  If there is anything I find meaningful in visceral impressions, again it is the gestalt of a CV with a healthy list of publications the dates of which show consistency, all appropriately adjusted for the length of one's career.
  • In creating the gestalt, aim for one traditional law review behemoth a year.  But don’t overlook short pieces - reactions, brief essays, and so on.  The online supplements are nice for this, as are the "essay" sections of traditional law reviews.  You read a piece and have 3,000 to 5,000 words (or fewer) to say about it.  Do it!
  • With the shorter pieces, take a shot at a peer reviewed journal.  I really like the courage it shows. (Most peer reviewed journals have a word limit - usually no more than 10,000.).  It takes longer to place them, but it really is a professional affirmation.  And since it's likely that they don't count as "tenure pieces" under many schools' tenure standards, the wait doesn't matter so much.  Steel yourself, however, for what academics in other disciplines experience:  evil reviewer #2 who hates your piece, your school, and you, "revise and resubmit," and Chicago Manual of Style footnotes. 
  • My thoughts on the substance of what gets written and the relationship of that substance to career advancement - issues of cross-disciplinarity, normativity, conformity, etc. - are at pages 71-80 of Retire and Teach: Six Years On, and I won't repeat them here.
  • Network in your area.  If you read somebody’s article and like it, send the person a note with this in the subject line “Loved your piece....”.  Be a commenter on others’ work.
  • Blog.  PrawfsBlawg was founded as a forum for new (i.e. “raw”) professors.   Again, it’s a two-edged sword.  If your stuff is good, it helps.  If not, it doesn’t.  When I was unsure of a blog post, I would send it to a friend first.
  • Finally, a pet peeve. When you submit, you certainly can play the expedite game, but my personal view is that it’s inappropriate to submit to law reviews for which you would not accept an offer if it were the only one you got.  If somebody at my school were to tell me they were doing that, I would probably raise my eyebrows and look askance.

Posted by Jeff Lipshaw on August 26, 2018 at 10:42 AM in Getting a Job on the Law Teaching Market, Life of Law Schools, Lipshaw, Teaching Law | Permalink | Comments (3)

Thursday, August 16, 2018

More Angsting about Angsting

So ... I entered a piece in the law review submission free-for-all.  It has caused me to reflect further on this system that generally causes academic jaws to drop in every other discipline when you describe it. Being at this stage of my career (see Further Reflections on the End of Ambition) where placements tend to be a matter of bucket list check-off and pure ego, my heart really does go out to those whose angst is related to getting or retaining a job. I thought "ctr" (the Appointments Chair at a T50 school) offered some wise counsel in the comments, consistent with the data, about not getting too hung up on the relative rankings of the schools in which you place your pieces.

I do not discount the angst.  I recently went through the five stages of law review submission grief.

Denial:  [Imagine thought balloon if this were a cartoon] "Oh wow, I've been called now by the fourth different Very Highly Ranked Flagship Law Review that Has Never Published Anything Written by Anybody Who Has Ever Been on Our Faculty to do a peer review of a submission.  I must be thought of as having scholarly chops well above the station otherwise indicated by the faculty letterhead on which I am obliged to submit my own work."

Bargaining:  "Dear Senior Articles Editor for Very Highly Ranked Flagship Law Review that Has Never Published Anything Written by Anybody Who Has Ever Been on Our Faculty:  I was flattered when you asked me several months ago to be an unpaid peer reviewer for the article submitted by [deleted] and was happy to turn around thoughtful comments in fewer than 24 hours because you were on an expedite deadline.  I did point out at the time the irony of your calling me for a review when all of my submissions to your journal have been rejected within hours, if not minutes, of their submission. Nevertheless, I did do it for you in the appointed time.  As you may recall, you commented on my comments as 'fascinating,' 'insightful,' and 'extremely helpful to our board's consideration.'  I now have a new piece ready for submission, and am willing to give it to you for an exclusive review for two weeks."

Depression:  "Dear Professor:  Thank you for submitting your article to the Very Highly Ranked Flagship Law Review.  Even though I found it fascinating and insightful, I am afraid that we will not be able to consider it for inclusion.  We wish you the best of luck in your placement of the article.  We hope, however, that you consider the Very Highly Ranked Flagship Law Review for future submissions."

Anger:  "Ungrateful little shits."

Acceptance:  American Samoa Journal of Bible Studies and Blockchain Technology.

[I promise more serious advice in a future post.]

Posted by Jeff Lipshaw on August 16, 2018 at 10:45 AM in Getting a Job on the Law Teaching Market, Life of Law Schools, Lipshaw, Teaching Law | Permalink | Comments (3)

Monday, August 13, 2018

Submission Angsting and the Availability Heuristic

Slide1I have not participated in the bi-annual feeding frenzy known as the student-edited law review submission season in several years.  I may this year, plus I'm blogging, so it's hard not to read the comments on "submission angsting" post (NB: autocorrect kept changing it to "submission ingesting" which I think is clever.)

This is a curmudgeonly but data-based contribution in aid of the reduction of angst. I vaguely recall posting something like this eleven or twelve years ago, no doubt when many young law professors or aspiring law professors were still in high school.  I direct it to those of you readers angsting significantly between, say, placements in law reviews at school ranked 65 versus school ranked 75.  Or some such similar consideration.

Paul Caron over at Tax Prof Blog does us the community service every year of re-ranking the schools by their "peer assessment" number, which ranges from 1.1 at the low end to 4.8 at the top.  I am assuming for this exercise that the peer assessment is meaningful even though I have my doubts.

My doubts stem largely from the likelihood that so much of this is determined by the availability heuristic, the term coined by Tversky and Kahneman for a mental strategy in which people make judgments about probability, frequency, or extremity based on the ease with which and the amount of information that can be brought to mind.  Hence, we bias our judgments based on available information.

Having said that, here goes.  One of the most available pieces of information is the linear ranking in US News.  It's really available.  It's available to the people who send in their votes for peer ranking and it's available to authors trying to place their articles.  What is not so available (thank you Paul) because you have to pay to get it isn't just the re-ranking by peer assessment but the actual peer score.

The histogram above shows the peer assessment scores from the 2019 US News law school ranking by the number of schools at each peer score from 1.1 to 4.8.  You can draw your own conclusions, but I think trying to thin-slice differences between scores close to each other is kind of silly.  It's pretty clear that whatever peer assessment means, the top 17 are in their own world.  As between 18 and 50, yeah, maybe there's difference between 18 and 50, but I wouldn't get too worked about about the difference between 30 and 40.  That effect is even more dramatic in the 50-100 range.  The point is that the rankings are linear, but the actual data sits on a curve.  So the differences between linear rankings mean different things at different levels.  (I'm pretty sure re-grouping the data in other significant categories like entering LSAT score would yield similar results.)

It's why I find it, what?, sad? odd? unthoughtful? when schools get lauded or dinged for moving eight or ten places one way or another between about 50 and 125.  Yes, the data are meaningful when you jump from 105 to 18 or vice versa.  But not when you "sank" from 50 to 62.

Okay, that's it.  Back to our regularly scheduled blogging.

UPDATE:  I'm going to close the comments here.  If this merits any discussion, it probably ought to occur at the angsting post.  

Posted by Jeff Lipshaw on August 13, 2018 at 03:12 PM in Getting a Job on the Law Teaching Market, Life of Law Schools, Lipshaw | Permalink | Comments (0)

Sunday, August 12, 2018

Further Reflections on the End of Ambition

6a00d8341c6a7953ef022ad3a3f7af200bAlmost exactly three years ago, on the last day of my guest-blogging month, I posted a piece entitled The End of Ambition.  Sometimes I go back to what I wrote long ago and cringe (I was tempted to link the piece that most makes me cringe, but nah) but this one I like.  It started as a contemplation of what it's like to face the end of your career and turned into a broader assessment of what it means to grow up, to be an adult (something we've recently explored in connection with law students).

Well, here we go again, except now I'm 1000000 (Aside #1: as my friend Raffael Cavallaro said, "there are 10 kinds of people in the world, those who understand binary and those who don't") and looking pretty good for 1000000. (Aside #2: if horses ruled the world, "digital" really would mean "binary".)  But when you hit 1000001, you hit the normal age for filing for Social Security, and at 10000110 you have maxed out on the value of deferring your benefits.  (For those of you who have many years yet before this becomes an issue, it involves the uncomfortable evaluation of how long past 10000110 you and/or your surviving partner think you will make it.  The longer the period, the more sense it makes to defer.)

What prompted the re-reflection is being on this blog extensively at the same time the "submission angsting" and "hiring committee" posts have gone up, and my recent pontifications (sparked by Kaci Bishop's article) on fear and failure.  What I want to do here, from the perspective of one who has achieve the ripe old age of 10 to the 110th power, is link fear and failure to ambition.  My thesis here is that there is a continuum of ambition from the macro to the micro, and our brains don't do a great job of making that clear, hence causing our nervous system to spit out fear of failure juice in many of the wrong places. 

Here are prototypes of macro ambition:  getting hired as a tenure-track law professor or being awarded tenure.  Placing law review articles have a lot to do with both (so it seems).  I do very much understand macro-ambition.  My school and professional lives were a continuous series of them - grades, class standing, university admissions, law school admissions, getting a law firm job, making partner, getting the in-house job, becoming the GC.  I've said this before - when you attempt to break into academia and then climb the tenure ladder as a superannuated newbie, the actual consequence of failure is, I think, less significant in one's life than if you start out young.  I think there is also a lower fear factor - and thus more willingness to swing for the fences. (By the way, it's been around for well over a decade now, but you can find that particular story in Memo to Lawyers: How Not to "Retire and Teach".)

Here is my prototype of the micro-est of micro ambitions. When you get to be 1000000 and you worry about the increasing number of senior moments, you do things to assure yourself that you aren't losing it.  One of mine is doing the New York Times crossword puzzle every day.  Monday and Tuesday are too easy, so I do them online and see how fast I can complete them.  Wednesday through Sunday merit printing them.  I do them in ink and my goal is not to make a mistake.  I can annoy my wife no end by finishing the Saturday or Sunday puzzle perfectly and then proudly displaying it as though it is actually some kind of meaningful accomplishment. 

Now some people never stop having and acting upon macro-ambitions. Joe Biden is thinking about running for President, I'm pretty sure.  I am in the process of coming to terms with the end of mine. (Trust me, I had them and could tell you stories.) What I'm thinking now is that there isn't really an end of ambition.  It's just that most of the macros get taken over by the micros. Not going to be a CEO. Not going to be a university president. Not even going to be a lateral hire. It's now a bucket list.  Yeah, it would be cool to place an article in the Yale Law Journal.  It won't make a helluva big difference to anything, but it would be another thing to check off, somewhere between doing the Saturday puzzle completely correct in ink and being President.

The thing is the fear. I've already admitted publicly that I have the typical type-A failure dreams.  I'm not sure which is the chicken and which is the egg - ambitious goals or fear of failure - or if maybe they are the same thing.  But it has made me think about Woody Allen's observation on this in Annie Hall:  "You know, a guy walks into a psychiatrist's office and says, hey doc, my brother's crazy! He thinks he's a chicken.  Then the doc says, why don't you turn him in?  Then the guy says, I would but I need the eggs."

Woody was talking about relationships, but I'm talking about fear of failure. I still get slightly (not pathologically) annoyed at myself for screwing up the crossword. If you lose the fear, do you also lose the ability to achieve whatever it is you want to achieve?

UPDATE:  I corrected my age from the original posting (h/t Dean Andy Perlman).  I am 1000000, not 100000.   When you get to 1000000, it's hard to see all those zeroes.  Another damn failure!  There goes the brain again, releasing those fear of failure juices.

Posted by Jeff Lipshaw on August 12, 2018 at 10:56 AM in Blogging, Deliberation and voices, Lipshaw | Permalink | Comments (1)

Friday, August 10, 2018

Failure, It Turns Out, is an Option, and a Pretty Good One Sometimes

Image.ashxIn my last post, I promised to talk about fear not just in the horse but in the rider.  The point, of course, has to do with the relationship of fear to learning. Kaci Bishop's (North Carolina) recently posted article, Framing Failure in the Legal Classroom, provides a nice segue.  (H/T Paul Caron.) Failing, at least in the micro, is learning, and I agree with Professor Bishop's bottom line that academic and practicing lawyers tend not to be very good at connecting the subject and the predicate in those three words.

I have four very vivid memories of the subject of failure - in the abstract - coming up during my education and career.  I'm paraphrasing most of it.  The first was when I watched the moot court competition finals at Stanford.  The esteemed federal Third Circuit judge A. Leon Higginbotham was a member of the panel.  During the post-argument comments, he said something like "a well-prepared advocate can never lose; the client may not win, but the advocate never loses."  The second was when I was interviewing for my first job out of law school (the Dykema firm in Detroit).  One of the litigation partners said to me, "One of the things we have to do here is train people how to lose."  The third was when I left the firm to join the law department at what was then AlliedSignal (now Honeywell). One of the recruiting documents I received was the 1991 annual report, which contained CEO Larry Bossidy's first letter to shareholders (he had just come over from General Electric where he was second in command to Jack Welch).  The piece I remember most was about leadership and it went like this:  "Of course there will always have to be leaders who make the final decision, but the tyrant in the corner office, the guy with all the answers, need not apply here." (This much appealed to me because, in 13+ years at the law firm, both as associate and partner, I rarely felt that I had any answers to much of anything.)  The last was an interview with Steve Kerr, who had just been installed as GE's first Chief Learning Officer, on the tension between failure and Jack Welch's famous (or infamous) "stretch goals": namely, that if you set ambitious goals for people, you can't punish them if they fail to meet them.

At the risk of TMI, I'm sixty-four years old and still have the standard dreams about failure - for example, the one about missing the entire semester of a math class that met early on Tuesday mornings and now having to take the final.  I started as a litigator, and it became clear that it was easier to give Judge Higginbotham's advice (particularly if you were the judge) than to take it.  I took losing very personally.  Looking back, and then considering what I internalized as failure even in the deal-making or business context, I see it as an illusion (or delusion) of one's own ability to control circumstances.  You can't eliminate the fear; you have to learn to cabin it or manage it (and I think that is one of the points Professor Bishop is making).

I had a couple reactions that I'll talk about after the break.

First, I do agree that failing, in the micro sense, is integral to learning.  I also think that Professor Bishop is correct in incorporating Carol Dweck's distinction between the fixed and the growth mindset.  As I interpret it, it's the difference in the affective orientation to learning that precedes any learning.  If you want to learn, you learn.  If you don't want to learn, you don't.  The fixed mindset is one that has given up on learning; the growth mindset invites it.

Second, Professor Bishop mentions classroom "failures" (i.e. that "law students have as a primary goal not embarrassing themselves in the classroom") but doesn't center her arguments on what I think is a particular aspect of law school culture: the difference between private failure and public failure.  The fear of public failure is what I recall most vividly from the very first class on the very first day of law school forty-two years ago.  It wasn't so much that I read the first case in the Dawson & Harvey contracts casebook (Groves v. John Wunder & Co.) and was mystified; it was that from the opening bell others in my 25-student small section appeared to understand it so well (yes, Robert Weisberg and Douglas Baird, I'm talking to you).

Dealing with public failure if you run a moderately interactive law school classroom is a challenge.  It is hard to be nurturing when a significant aspect of the job is the theatrics of it all.  If you believe in the non-paternalistic classroom, then you ought also to believe that your job as professor is to make the experience more compelling than what is available by way of internet, text, or Angry Birds. Nor is it easy.  Some things students say or ask in class are misplaced or wrong or distractions.  For each student that you try to accommodate gently, there's another one thinking you should have been more brutal.

My quibble, if I have one, with Professor Bishop's piece is that her focus on mindset is confined solely to that of the student.  Just as psychoanalysts need to experience their own analysis to be able to guide anybody else, I don't see how there's going to be much change in the classroom if the fixed mindset is in the mind that is behind the podium.  Over the years, one of the ways I have tried to put myself in the position of a fearful student has been to make myself learn in environments that are not my natural habitat.  The three things I've tried to pick up over the last ten years are playing the piano (I never learned to play any musical instrument) and two athletic endeavors.

All my piano failures are private and relatively trivial, ego-wise.  Not so the athletics.  To put it bluntly, I think I'm pretty agile mentally, but I really, really suck as an athlete.  My joke over the years is that I engage in athletic endeavors (golf, for example) for the massive doses of humility I get.  I think, more seriously, that the activities I've selected in the last couple years force me to confront not only fear of failure, but physical fear, and, more importantly, the delusion of control.  When you ride a horse in an indoor ring with other riders present, you are dealing with a thousand pound sentient being with a point of view, and one that often is not aligned with your own.  Several years ago I decided to start taking fencing lessons (epee).  I'm really bad.  And your opponent is waving a long thin sword around, trying to jab you with it.  Even with all the equipment, it can hurt.  Every one of my opponents' touches is a public failure, but also a learning experience.  Particularly when the opponent is a thirteen year old young woman who wins 10-2.  It's really hard to learn when you are afraid!

Even with all of this, the performance art of teaching law students causes me, unfortunately, to get in touch more often than I should with my inner smart ass and outer stand up comic. (One only need look at some of the things some students say about me in their evaluations to know that I am no paragon of virtue when it comes to making students comfortable with "failure" in class discussion.) Fear has to have its source in evolutionarily adaptive instincts that get housed deep, deep in the reptilian and pre-reptilian parts of our brains.  And, of course, what we are doing in class is the polar opposite. As the Carnegie Report observed,“[a]t a deep, largely uncritical level, the students come to understand the law as a formal and rational system, however much its doctrines and rules may diverge from the common sense understandings of the lay person.”  They are doing that because that is what we are teaching them to do!

I should conclude by observing that, contrary to some popular memes, the vast majority of law professors I've met in the last fourteen years care very deeply about the quality and effectiveness of their teaching.  Wanting to be better, wanting to learn, comes from the inside.  And there are external sources of fear.  Before tenure, there are student evaluations and classroom visits from tenured faculty that bear significantly on your career.  Even after tenure, getting lousy evaluations is like being criticized as a corporate board member from the shareholder activists.  It may not make a lot of difference, but it doesn't feel very good.

Perhaps the lesson from Professor Bishop's piece, at least for me, is to think about the failures that occur from my side of the podium.  One of those might be the failure to heed at least two tenets of Kant's Categorical Imperative: (a) to act in every instance in way that you would legislate the rule of your action as a universal rule (for you aspiring legal philosophers, the source of Rawls's "veil of ignorance" as the basis for justice), and (b) to see every other person as an end rather than a means.  To return to a theme of an earlier post, think about what that says about cold-calling on one student as a means of teaching another student!

Posted by Jeff Lipshaw on August 10, 2018 at 09:09 AM in Article Spotlight, Lipshaw, Teaching Law | Permalink | Comments (1)

Tuesday, August 07, 2018

The First Day of Class - A Horse's Perspective

Buck_poster2During the summers, I usually spend a lot more time around horses and dogs than I do around students (or any people, for that matter).  I climbed on the back of a horse for the very first time almost to the day nine years ago at age 55, and life was never quite the same thereafter.  And about a month ago, I became responsible up here in Michigan for the care and feeding of a Half-Arabian - the other half is Hackney - with the barn name Markie (registered name: EQL Mark of Mine), below right.  (You can see the riding equivalent to a law student's first moot court oral argument here.  Last year, after eight years of coaching, I got up the guts to do what is known as a schooling show. It demonstrates the reason for my own barn name - "Tighty Whitey".  As I suppose often happens, my partner Markie saved my bacon.  Here we are a year later and a little less tighty.)

About this time of year, probably because of the impending transition back to the classroom and dealing with IMG_1934humans, it seems like I always go back to one of my favorite movies, Buck, about the horse trainer (and model for The Horse Whisperer) Buck Brannaman. I posted this several years ago on a blog called The Legal Whiteboard, but it doesn't exist anymore, so I'm resuscitating it here.

Five minutes into the movie, he's beginning a "colt starting" class, in which horse owners are learning how to get horses who've never been saddled, much less ridden, to accept the rider.  He narrates:  "Colt starting is always interesting because most of the youngsters never been saddled, never had anyone on their back, or a bit in their mouth, so there’s a lot of fear in both the horse and the human."  

Then the film cuts to his opening remarks to the owners who are themselves going to have to teach their horses:

“The way I do these colt classes, you guys, you’ll have to get ’em exposed to a lot of things that seem perfectly normal to you but it doesn’t seem normal to the horse.
“You walk up to ’em smelling like a Big Mac, you know, or somethin.’ Your diet is gonna make you smell different to the horse.
“And then you’re gonna tell the horse, ‘don’t worry, I want to crawl on you’ … in a similar posture to how a lion would attack and kill a horse. They jump right up in the middle of them and they reach their front claws around and as they’re biting down on their spine they’re cutting their throat with their claws. You’re asking the horse to let you be in that posture and crawl on him.
"And then about the time he says, ‘Alright, maybe,’ and then you say, ‘Oh one more thing. I want to strap some hides of other dead animals around you before I crawl on you.’
"Damn sure have to have some trust. He’s got to believe in you to let you do that. And amazingly enough, they’ll let you do it.”

I'm pretty sure there's a lesson there for all teachers, but particularly law professors facing a class of 1Ls on the first day.   More on the rider's (i.e. my own) fear to come.

Posted by Jeff Lipshaw on August 7, 2018 at 10:53 AM in Lipshaw, Teaching Law | Permalink | Comments (0)

Friday, August 03, 2018

Liz Magill, Stanford Law Dean, to Become UVA Provost

M-elizabeth-magill-5-400x400Liz Magill, who succeeded Larry Kramer as the dean of the Stanford Law School in 2012, will leave to become the new provost at the University of Virginia.  She will remain at Stanford until her successor is in place.

Her new boss will be UVA's new president, James E. Ryan, also a former law professor (most recently the dean of Harvard's Graduate School of Education).  

Those interested in filling her shoes should contact Persis Drell, Stanford's provost, who is organizing the upcoming search.

Posted by Jeff Lipshaw on August 3, 2018 at 02:45 PM in Life of Law Schools, Lipshaw | Permalink | Comments (0)

Wednesday, August 01, 2018

Classroom Without Paternalism?

Slide1As my last post on cold-calling seemed to stir the pot, I'm going to close out the month by trying to do it again.  But this time without being a nattering nabob of negativism ($200 in Jeopardy! if you can identify the source of that line - answer below the break).  (As to cold-calling as a means of generating participation, by the way, I admire the alternatives suggested in Steven Baicker-McKee's subsequent "Flipping the Classroom" post.  I mean to try some of that.)

One of Douglas Levene's comments in the earlier post captures my own bias perfectly: "I figure they are all adults and will get out of the class what they put into it."

Indeed, one of my lines on the first day of class, as I am walking through my own expectations of classroom protocol is the following: "Nobody in this building will care more about and work harder at leading you to water than I will, but nobody will care less than I about whether you choose to drink." That usually comes right before or after I tell them I don't care where they sit, how they take notes, or whether they surf the internet during class.

To be clear, I am not suggesting this is the way I would run a primary or secondary school or even an undergrad class. But I do believe pretty firmly that once you are a graduate student bound, even if prospectively, to a code of ethics and disciplinary rules and within three or four years of licensure and accountability by way of grievance or malpractice, you have first to be accountable to yourself and not to your professors.  That includes deciding, in the face of the performance standards you don't control (like what counts toward getting a good grade), how you want to go about meeting the standards.  That was the source of my nattering negativity about cold-calling. I believe oral participation in a first-year contract law classroom (as opposed to a legal practice skills class) is a means to an end, not an end in itself, and something of a paternal imposition on my part if I demand it without consent.  My primary learning objectives are (a) how to translate real world narratives involving promises, commitments, and transactions into legal theories that produce legal consequences, and (b) how to use some of the rules within the contract law canon to achieve that.  (Foolish Consistency is the Hobgoblin of Little Minds Disclaimer #1:  I start the year with on-call "panels" that tend to fade out over time.  Why bother at all?  I don't know.)

Below the break, some positive thoughts about running a moderately non-paternalistic class.  I will don my Kevlar "Jim Harbaugh khakis" and leave the comments open.

220px-Spiro_AgnewSeating charts.  Why bother?  There's a reason why Kingsfield is unrolling one at the beginning of The Paper Chase.  It's so he can know where the student on whom he wants to focus his attention is sitting.  If you don't really believe in cold-calling, then there is no reason at all to have one.  Or, worse, it's just a pure power play.  "I am the professor and can move wherever I want.  You are the student and have to sit where I tell you."

I much prefer Howard Katz's suggestion in the comments to the earlier post.  Our school issues the students name cards that even I can see when they are used up in the back row.  Now, in the early days, when I'm still using the on-call panels, it means I have to spend a minute before class begins scanning the room to find where the six or seven students are perched.  That gets pretty easy because, even without a mandatory seating chart, students tend to sit in the same place all semester.  Foolish Consistency Disclaimer #2:  Sometimes I will walk into class, not see very many name cards up, and announce that anybody without a name card showing is on call.  This usually has the effect of causing the name cards to go up.  I acknowledge, however, that this is my preference - wanting to know student names.  I suppose, taking anti-paternalism to its extreme, it's really up to the student to decide whether the student wants me to know his, her, or their name.  

Laptops.  I acknowledge, with some reservations, the controlled studies indicating that as to certain matters, the mean performance of a population of students who take handwritten notes exceeds, to a statistically significant extent, the mean performance of a population of students listening to the same material but taking notes on a computer.  Here are my reservations (with disclaimer that I am not an expert in the interpretation of statistical data - I have consulted with someone who knows a lot more about this than me and am waiting to hear back, so what follows could be wrong).  First, the studies do not show what I think is a problematic counter-factual - how would the specific student taking notes one way in the study perform if the student took notes the other way?  That is, the studies only speak to the average performance of populations, not to the impact of note-taking methodology on individual students.  Second, in my quick look at the studies, I cannot see whether there was any evaluation of the homo- or heteroscedacity of the data.  In other words, are the variances consistent across all sub-populations or do they vary?  Do better students vary less than poorer students when changing note-taking styles?

My real problem with laptop bans, however, is again the paternalism of it all.  I have not handwritten anything of passing importance in probably twenty-five years.  If bored students are going to surf the internet on their laptops, and I ban laptops, they can use their phone or their Apple watches to play games, text, disturb other nearby students, or otherwise ignore me.  Short of making the classroom door look like the security entrance at the airport, I think it's an illusion of control on the professor's part. (I am still waiting for laptop ban proponents to agree that they must deposit all electronic devices outside the faculty meeting room.)

I do do some things designed to encourage more thinking and less verbatim note-taking, whether by hand or keyboard.  All Power Point slides are available on Blackboard from the beginning of the year (or from when I create it if I make up a new one). I audio record all of my classes and make the recording available through a link Media Services creates on Blackboard.  I organize classes in units.  Upon the completion of each one, I post my class notes on Blackboard as well.  All of this is in the manner of "lead you to water."

Having thought this through as writing this post, however, I have decided to abandon my former "don't care if you drink" approach with disclosure regulation.  Starting this fall, it's going to be something like this:  "I don't care what your manner of note-taking is.  Be aware that there are studies showing that the mean performance of a population of students who take handwritten notes exceeds, to a statistically significant extent, the mean performance of a population of students listening to the same material but taking notes on a computer.  I do not know what that means for an individual student.  I know that I would prefer to take notes on a keyboard, but you need to make your own decision about what is best for you."

Verbal interaction.  I would agree that my classes tend to be more about what I have to say on a subject than what students have to say.  I pose questions to the class or even to individual students all the time.  I would agree with the Socraticists that I want each student in the class individually to be processing what the answer to the question should be.  My own experience as a student, again, recalling from many years ago, is that I tuned out most of the student responses, focused on my own working through of the problem, and waited to see what the professor had to say about it.  As a student, I certainly tuned out any student questions or comments that struck me as going far afield of the point being made.

I confess to not having a lot of patience merely to have students debate an issue capable of different outcomes depending on the rule applied or the manner in which a single rule gets applied.  My consistent point is that what makes non-trivial lawsuits non-trivial is that there is sufficient play in the fact situation to point the case toward one analogous prototype or another.  Hence my ubiquitous Venn diagrams of competing issues (the above picture on trying to figure out if a conditional promise creates a bargain or a gift being an example). Sometimes it takes one of those debates to demonstrate that play, but I don't believe that there are philosophically determinate answers in the Venn diagram overlap, so the debates quickly have diminishing pedagogical returns (at least in my view).

As I mentioned above, the "flipping the classroom" techniques look interesting as a way of promoting engagement without paternalism.

Evaluation.  I do a lot of evaluation.  All of the evaluation is completely open book and open note but must be completed individually (enforced solely by Honor Code commitment as to the quizzes). In first year contracts, there are eight units in the first semester and twelve in the second.  In Business Entity Fundamentals, there are nine units.  After each unit, I post an online multiple choice quiz that is generally due one week later.  So by the end of the year, the contracts students will have done 200 multiple choice questions and the BEF students close to that many.  There is an all-essay final at the end of each semester.  The quizzes count one-third of the total grade in each semester.  I design most of the quiz questions (particularly after the first couple quizzes) so that the student should be able to read the narrative and the call of the question and then think about what the essay answer would be before looking at the proffered answers and distractors.

The point is that I create all of the multiple choice and essay questions from my class notes.  Hence, students who don't engage (whether orally or otherwise) in what is going on in the classroom are at a distinct disadvantage.

Alright.  Kevlar khakis are on.

Posted by Jeff Lipshaw on August 1, 2018 at 10:15 AM in Lipshaw, Teaching Law | Permalink | Comments (7)

Tuesday, July 31, 2018

Suffolk Hiring Announcement

SuffolkFrom my Appointments Committee colleagues:

Suffolk University Law School in Boston invites applications for up to three tenured or tenure-track faculty positions at the rank of assistant, associate, or full professor of law starting in the 2019-2020 academic year.  Candidates should have a strong academic background, a record or promise of significant scholarship, and a demonstrated commitment to excellence in teaching. Our primary curricular needs are Criminal Law and Contracts. We hope to hire candidates with combined expertise in one of those first-year subjects and one or more of our upper-level areas of need, which include Constitutional Criminal Procedure, Evidence, business law (especially Business Organizations, Securities Regulation, and Banking Law), Alternative Dispute Resolution, Health Law, and courses on race, gender, sexual orientation and the law. Consideration will be given to relevant practice experience.

Interested candidates should include in their application a resume or curriculum vitae and a cover letter addressed to Professors Joseph Glannon and Lorie Graham, Co-chairs of the Appointments Committee.  All materials must be uploaded to the Suffolk University website.

Suffolk Law is an equal opportunity employer and will give careful consideration to all qualified applicants regardless of race, color, national origin, religion, sex, age, disability, sexual orientation, gender identity, gender expression, genetic information, veteran status, or any other characteristic protected by law.  Suffolk Law is committed to a diverse faculty and strongly encourages applicants from historically under-represented groups. For more information on Suffolk Law’s commitment to diversity, please see this.  

Posted by Jeff Lipshaw on July 31, 2018 at 01:19 PM in Getting a Job on the Law Teaching Market, Lipshaw | Permalink | Comments (0)

Thursday, July 26, 2018

Law School Classroom Techniques: Myth- or Reality-Based?

IMG_0162My friend Hadar Aviram's post about cold-calling awakened me from my anti-dogmatic slumbers.  Trigger warning: this is a "just asking'" post about accepted wisdom among law school professors about what it means to do a good job in the classroom.

I teach contracts to 1Ls (I think that's me on the day I taught the Frigaliment "what is chicken?" case) and business organization law to upper-class students.  Usually, these subjects do not generate impassioned views as to which students feel compelled to speak.  In upper-level classes, I do not call on students at all.  In the Contracts class, I start the year with "on-call panels" but my willingness to call on students generally fades out by the eighth or ninth week of the first semester and never appears at all in the second semester.  (I also don't do seating charts.  I do like it when the students have their school-supplied name cards out in front of them.  And I do tend to learn the names of the students who volunteer.)

Here's my just askin' question.  Does student oral participation in class actually make a difference to a desired learning outcome?

Invariably, when I finally get the results of the blind grading, several of the top performers turn out to be students who never said a word.  I harken back to my own experience.  I was never a shrinking violet in class before I went to law school.  Indeed, I have been described in the past as something of a manic expressive.  My law school organized our first-year class into small sections of about twenty-five students each.  I recall vividly the first day of class - Contracts - having read the case of Groves v. John Wunder and having no clue about anything when I was done.  Two of my classmates went on to distinguished academic careers. They and a whole bunch more in the class seemed to know what they were talking about, and had opinions from day one.  I was sufficiently intimidated on the first day never to say a word unless called on, particularly in large classes, for the next three years.

My suspicion is that the relationship of oral participation in class - and the pedagogical methods that encourage or require it - to learning outcomes or post-graduation success is grounded more in myth than reality.  I suspect the myth originates in the conception of lawyers as barristers and the purported efficacy of the Socratic method.  I have a further suspicion that it gets further support from the tenure process. That is, if you are a pre-tenured professor and being observed for tenure committee evaluation purposes, the observer is going to have a much harder time determining if you are effective if the students don't say anything but are nevertheless thinking deeply.  The availability heuristic is at work.  Orally participating students constitute available information, whether or not it is information on which one can reliably reach a conclusion.

Stay tuned for my next contrarian rant on the subject of banning laptops in the classroom. 

Posted by Jeff Lipshaw on July 26, 2018 at 03:09 PM in Life of Law Schools, Lipshaw, Teaching Law | Permalink | Comments (12)

Thursday, July 19, 2018

Now (or soon to be) in Paperback: Beyond Legal Reasoning: A Critique of Pure Lawyering

9781138221307A brief pause for a semi-commercial announcement.  Actually, if we consider the royalties to which I am entitled from Routledge after deducting the cost of a professional indexer, there's very little commercial about it from my standpoint.

Beyond Legal Reasoning: A Critique of Pure Lawyering first takes a granular look at "thinking like a lawyer" - its logic and theory-making - and then at the perils of succumbing to it when one is not in the traditional "lawyer as warrior" mode.  My original title, Unlearning How to Think Like A Lawyer, still lingers in various descriptions.

Apparently the law library market is price inelastic and the publisher waits eighteen months before putting out a paperback edition.  That is now available for pre-order (release date: Aug. 24) at a fraction of the hard cover price.

But ... most of us write to be read, not for the several hundred dollars of royalties that an academic book generates for the author (translating into cents per hour for the time creating it).  If you are interested in a free taste, the preface is available on SSRN.   Or the entire book is available for free at any of these fine libraries.

Or, after the break, you can watch the presentation from last April at the Harvard Law School's Center for the Legal Profession:

Posted by Jeff Lipshaw on July 19, 2018 at 06:16 AM in Books, Deliberation and voices, Legal Theory, Lipshaw, Teaching Law | Permalink | Comments (0)

Monday, July 16, 2018

There Is Nothing New Under the Sun - Xenophobia Edition

PapaParisPart of this is recycled from something I posted (can it be?) on Christmas Day, 2007 over on Legal Profession Blog.  At the time it was a tribute to my wife Alene's grandfather, Nathan Milstein, one of the longest serving lawyers in the history of the Michigan bar.  (That is him on the left, Alene on the right, and our niece, Paris Franklin, in the middle.) The last couple paragraphs in that post prompt me to reprise much of it.

Nathan was born in 1907, graduated from Detroit Central High School in 1924, and attended the Detroit College of Law (then the Detroit City Law School and now the Michigan State University College of Law) and Wayne University Law School, receiving his LL.B. at age 21 in 1929.  Nathan passed away in 2003, having continued to practice until his late eighties.

Nathan's practice in the 1930s included, among other things, immigration.  That came up in a conversation Alene had with my colleague, Prof. Ragini Shah, who founded Suffolk's Immigration Clinic.

I am burying the lede here, so bear with me.

What prompted the post over ten years ago was the renewed interest in Diego Rivera and Frida Kahlo. Our family takes a special interest in all things Rivera and Kahlo as a result of a particular historical interlude:  their four year stay in Detroit, beginning in 1929, when, at the behest of Edsel B. Ford, Rivera painted his monumental murals on the walls of the Detroit Institute of Arts.  We have hanging in our living room three prints signed by Rivera, part of a collection of ten he gave to Nathan, who represented and befriended Rivera and Kahlo during their stay in Detroit.  (Family legend has it that Kahlo made a pass at Nathan, but this is unconfirmed.)  

After Nathan passed away (at 96), Alene and I spent many hours going through his voluminous files.  One truly appreciates the historian's and the biographer's art of distilling the story from the data when looking at records like these.  The documents are tantalizing. 

For example, Nathan was a bachelor until 1946, when he married Alene's grandmother, who was a widow with two children.  Before that, he was supporting his mother and sisters.  When the war broke out, he tried for years to find a way to serve without being drafted as a private (which in 1941 paid $21 a month, not enough to support the family.)  Ultimately he found a job as a civilian flight instructor, but the file of letters and rejections to almost every branch of the military and government agency is about two inches thick.  I have framed in my office my personal favorite:  the letter signed by John Edgar Hoover advising Nathan he had failed the F.B.I entrance exam, which I had first interpreted as having been on account of Nathan's being Jewish while taking it.

Back in 2007, the interest in Rivera inspired me to go back through some of Nathan's files. What became clear was that it was likely Hoover objected to Nathan not only because of his ethnicity, but also because he consorted, in the course of his immigration practice, with all sorts of "undesirables," and espoused public positions to which the FBI director of long memory must have objected.  (I like to think that Hoover's two issues with Nathan were related to each other.)

For example, there was a file of correspondence relating to his representation in late 1932 of one Halvard Lange Bojer, the son of noted Norwegian author, Johan Bojer.  The younger Bojer, an engineer who had emigrated to the U.S. in 1928, was working for General Electric in Fort Wayne, Indiana, when he was arrested by the Immigration Service, and transported to the Wayne County Jail in Detroit, on the grounds that he was a member of the Communist Party.  Bojer himself described it to a reporter as follows:  "They tell me that I'm a Communist. . .It so happens that I'm a member of the Communist Party Opposition, whose headquarters is in New York.  Members of that Party, though glad to take Moscow's advice, refuse to take Moscow's dictation.  There are other differences, such as our belief that the worker's solution is in the organization of a Labor Party, comprised of Trade Unions, similar to that of England.  Also, we disbelieve in Moscow's theory that existing labor organizations, such as the A.F. of L., should be wrecked for the formation of Communist units."

The American Civil Liberties Union attempted to intervene on Bojer's behalf.  (I couldn't tell if Nathan was already representing Bojer or if the ACLU retained him on Bojer's behalf.)  On December 12, 1932, Roger Baldwin, the ACLU Director, wrote to Nathan, urging Bojer to fight deportation as a test case.  Baldwin stated:  "The issue is far more than personal to him.  This is the first case, so far as we are aware, when a member of his particular Communist group has been held for deportation on the ground of membership.  It is worth fighting through because it offers a test of the application of the law to other than members of the Communist Party."  Nathan met with Bojer in the Wayne County jail, where Bojer, "a very affable and highly cultured young man," advised that he had no desire to appeal the deportation, and was willing to return to Norway.  He was released pursuant to a bond posted by his friends in Fort Wayne, and joined an "East bound deportation party" on December 29, 1932.

There was an interesting postscript to that story.  Bojer's son or grandson (I don't remember which) in Norway somehow saw the blog post, got in touch with me, and I ended up sending him copies of all the papers.

So finally here is the lede, which was something of an afterthought in the 2007 post, but which in the past two years takes on relevance if not prescience.  The files contained an excerpt from Nathan's tribute to Judge Arthur C. Denison on the occasion of his retirement from the 6th Circuit Court of Appeals in January, 1932:

Humanizing the enforcement of existing laws relating to admission and deportation of aliens has become a serious problem confronting social leaders throughout the country.  In the present delirium of unemployment when a vague terror seizes the nation, this fear is translated into alien hatred.  Public discontent must be directed away from the cause of the unrest and to accomplish this, a counter irritant is administered.  The ever oppressed alien is again victimized.  The term alien becomes synonymous with undesirable.  Deportation "drives" and "spectacular raids" then become common occurrences.  Wholesale deportation follows as a panacea for what ails the nation.  This national hysteria influences the action of public officials and finds expression in more rigid and relentless enforcement of deportation laws.  Even the courts are sometimes swept into the whirling cyclone, marring the annals of juridical science with unprecedented decisions.  To espouse the cause of the under-privileged requires great courage.  Those who bear the courage of their convictions and refuse to be swayed, belong to the school of Holmes and Brandeis.  So few do they number that a loss in the ranks is keenly felt by liberty loving citizens.

And here's more.

The recent resignation of Judge Arthur C. Denison of the United States Circuit Court of Appeals for the Sixth Circuit is such a loss.  As a student of social conditions, he has clearly recognized a festering condition to which the Congress of the United States has closed its eyes.  Dwelling above the sound of passing shibboleths, he has refused to harken to the murmur of the moment.  Recognizing that immigration statutes are very drastic and deal arbitrarily with human liberty, he has found it necessary to remind Immigration Authorities that aliens are human beings and as such have rights in any country in which they are domiciled, not under the principles of natural justice, but under the Constitution itself.  Aliens help to create the wealth of our nation; they are subject to its laws and must comply with all its demands of taxation.  Aliens, therefore, who have become part of our household and who have cast their lot permanently with ours, must be accorded the protection of law that is granted our citizens.

 Oh, and by the way, Nathan insisted to me many years ago that he was a Republican.

Posted by Jeff Lipshaw on July 16, 2018 at 07:59 AM in Blogging, Current Affairs, Immigration, Lipshaw | Permalink | Comments (1)

Friday, July 13, 2018

A Professor's Modest Dream

My undergraduate alma mater, the University of Michigan, holds an annual summer event up here in northern Michigan, generally highlighting an achievement of somebody affiliated with the university.  This year it was an interview with Hendrik Meijer, the CEO of the Meijer super-grocery store chain, but also something of a scholar, who just published a biography of Senator Arthur Vandenberg. (Michael Barr, long-time Michigan law professor and recently appointed dean of the Gerald R. Ford School of Public Policy, ably conducted the interview.)

Image.1531193713927But I digress slightly.  Absolutely my favorite course at Michigan was the fall 1973 edition of "Introduction to Film," taught by Professor Frank Beaver (left), only three years out from having received his Ph.D.  I remember that course chapter and verse, from conceptual montage to the shocking "gun" scene in Edwin S. Porter's The Great Train Robbery to the assessment of that neat new film, American Graffiti, to Professor Beaver's admiration of Haskell Wechsler's Medium Cool. (I wrote my paper for the course on Deliverance.)

A couple years ago, I recognized Professor Beaver at one of these events, introduced myself, and began spouting back to him chunks of lectures he had delivered more than forty years before.  Since then we catch up annually, as we did last night, on new movies.  Professor Beaver still writes on film for Michigan Today, the alumni publication.

I think I took his course in his fourth year of teaching.  I "accosted" him roughly forty years later.  Because of my late entry into academia, the equivalent for me would be a former student approaching me in roughly 2051, when I will be a spry 97 years old.  I can only hope.

Posted by Jeff Lipshaw on July 13, 2018 at 08:53 AM in Books, Culture, Film, Lipshaw | Permalink | Comments (0)

Monday, July 09, 2018

Coase and Fireworks

493l4SRQTVOydKrgKSgSugIn my continuing effort to demonstrate what the mundane world looks like through the eyes of a nerdy law professor, today we will talk about Ronald Coase, recipient of the Nobel Prize in economics, and fireworks.

Before we had dogs, I liked fireworks, at least the professionally staged kind.  Up here in Charlevoix, Michigan, every year in late July the town has a week-long event called Venetian Festival.  The highlight on Friday night is a spectacular fireworks show out over the lake for which our deck is effectively a front row seat.  For the last seventeen years or so, however, I have not been out on the deck nor have I seen the fireworks.  No, I am back in a closet with the door closed, comforting our dog(s) who is/are going batshit crazy.

With the professionally staged fireworks, at least I know when to go into the closet and when I can come out.  It's the private ones that really drive me crazy.  In Massachusetts, where we live nine months of the year, I don't have worry.  Private fireworks are illegal, end of story.  

Here in Michigan, however, we have to deal with one aspect of the state legislature's Year of Living Stupidly.  In 2011, the same year it passed the law eliminating the requirement that motorcyclists wear helmets, Michigan first permitted the sale of fireworks in the state.  In 2013, it amended the law to permit local units of government to ban the use of consumer fireworks, but not on national holidays, the day before or the day after a national holiday.  (It also allows any city in the state with a population greater than 750,000 - there is only one - to ban them between midnight and 8 a.m. on such holidays, and only between 1 a.m. and 8 a.m. on New Year's Day.)

The reasons for my sitting on the beach and, like a complete dork, reading Ronald Coase's The Problem of Social Cost follow the break. If he had the house next door, and had the same issues I do, what might he say about it?

Our local unit of government, the City of Charlevoix, and the surrounding Charlevoix Township each enacted ordinances banning the private use of consumer fireworks to the extent permitted by the Michigan statute.  Thus, for three of the days we are here during the summer (July 3-5), we have to deal with the possibility that some *)&(*^*^&$ is going to be responsible for random and unexpected fireworks activity that turns our dogs' brains into petroleum jelly and causes them to (a) howl madly, and (b) scurry around the house wildly under beds, couches, and other areas of perceived safety.  

The rest of the summer we can be fairly sure that our nearby neighbors won't be using consumer fireworks because of the local ordinance.  If they did out of a misunderstanding of the law, and they were to ignore our friendly suggestion that they obey the law, we would be within our rights to call out Charlevoix's Finest. Fullsizeoutput_de4

Here's the problem.  If you happened by my earlier discussion of riparian rights, you saw this Google Earth picture. It so happens that I took the above picture just about at the tip of the red arrow.  The city proper is largely to the left (west) of the tip of the arrow.  The township pretty much ends at the other end of the arrow.  Every thing else to the right, including that peninsula (known as Pine Point) that looks sort of like India, is in Hayes Township.  Hayes Township has never passed an ordinance banning fireworks.  So just after it gets dark, for much of the summer, we are treated to a fireworks display that carries very nicely, sound and otherwise, across the mile or so to our house.

Where our dogs, having dog-like senses of hearing and smell, proceed to have their brains turned into petroleum jelly and thereupon to (a) howl madly, and (b) scurry around the house wildly under beds, couches, and other areas of perceived safety.

Now, I know that the reason for all of this fireworks activity under the current legal regime is the result not of, as Coase might hypothesize, a railroad needing to run a railroad even if sparks cause crops to catch fire, or industries needing to burn fuel even if it causes air pollution nearby.  It is the product of market activity in which the total value of production exceeds the cost of such production, and consumer activity in which the utility engendered by playing with toys that make loud booms and bright flashes exceeds the cost of such activity, at least for those engaged in it.

The social cost occurs across the lake at my house, where I am contemplating the purchase of doggy Xanax.

The popular takeaway - the "Coase Theorem" - applied to my situation is this.  In a world of zero transaction costs, the total net social welfare of setting off fireworks, on one hand, and my distress in dealing with the dogs does not depend upon the initial allocation of rights.  Assuming that we valued noise and peace in the appropriate ranges, either the celebrants would pay me for the right to have the rockets' red glare or I would pay them to cease and desist. 

It works like this. Let's assume that the pricing system works costlessly and the only actors are A across the lake who wants to use fireworks and me.  The cost to me of insulating my house against fireworks noise is $100.  If the default rule is that the fireworks can't be used without my consent, and the value to A of his (and it's always a "he") activity is more than $100, then A ought to be willing to pay me up to $100 to shoot off fireworks (the cap being $100 because for that amount he can pay for the insulation of my house).  If there is no regulation against fireworks, and I value silence at more than $100, I ought to be willing to pay A up to $100 to have him stop.  In short, with a smooth and costless pricing system, you get the same result regardless of the initial legal entitlement. But, of course, the idealized world of zero transaction costs doesn't exist, and so even if the world only consisted of A and me, and the transaction costs of paying off A creates a total cost to me that exceeds the value of silence, I won't do it, even if without transaction costs it would have been the more efficient result.  And it's not just A and me.  It's many of the good citizens of Hayes Township and many of the good citizens of Charlevoix.

Is there a market solution to my problem?!!?  It turns out that Coase didn't articulate a theorem (or at least that wasn't his object in the article).  There were no helpful hints on how to articulate a default rule so as to minimize transaction costs with the aim of an optimal allocation of resources.  In fact, he never used the word "theorem" or the term "transaction costs."

I recommend Pierre Schlag's critique of the morphing of what Coase said in Social Cost into neo-classical law and economics.  At the beach the other day, I confirmed Pierre's statement that you can get the entire basis for what others now call the Coase Theorem by page 8 of Coase's original 1960 article and skip the remaining 36 pages (actually there's a piece of it at pages 15-16 as well).  Pierre's critique is not of Coase's article. His point was that the popular takeaways - mainly Chicago Law and Economics - have transformed Coase's point into something else entirely. It wasn't Coase who developed the L&E focus on using neo-classical economics to justify legal rules, or to focus on the reduction of transaction costs in pursuit of an idealized efficient solution.  Moreover, in a different piece, Pierre observed that the L&E approach to transaction costs itself is neither theoretically intelligible nor operationally applicable.

To the contrary, according to Schlag (and, by my reading of Coase, he is right), Coase had a far different goal in Social Cost. Coase wanted neo-classical economics to take account of the real world, in particular the effect of law and legal institutions on resource allocation.  Coase's main object was to criticize the prevailing acceptance among neo-classical economists of the idea of Pigouvian taxes.  He wanted to demonstrate the problem with Pigou's approach to externalities - namely, to impose taxes or bounties to the extent that the social cost of an activity exceeded the private cost to the actor.  

Coase was skeptical of Pigou's entire approach.  The bounties or taxes were likely to be overbroad.  Indeed, the focus on making an actor's private costs equal to the total social cost of the activity was misplaced.  In the foregoing example, suppose the social cost of fireworks noise is $200 to me.  Coase criticized the knee-jerk remedy merely of taxing the activity in the amount of $200, because it is possible, in an appropriately free market, that it would only cost $100 to achieve an optimal allocation of resources. In short, the appropriate way to judge externalities (Coase didn't use that term either) was to assess the total effect on social costs both for the actors and those affected by the actors and not simply to add costs to deter the unwanted activity.

But, wait. If the market is not going to work, am I out of luck?  I don't think so.

If Professor Coase lived next door and I were to walk over there and find him, like me, huddled in a closet with his batshit crazy dogs, I don't think, based at least on what he said in The Problem of Social Cost, that he'd rule out the idea of having government rather than the market decide how resources are to be allocated. Firms get organized when there are opportunities for value-enhancing transactions, but only under a scheme where less expensive intra-firm administrative costs substitute for higher costs of market transactions. And then there is the case of something like fireworks noise, "which may affect a vast number of people engaged in a wide variety of activities" and so "the administrative costs might well be so high as to make any attempt to deal with the problem within the confines of a single firm impossible.  An alternative solution is direct Government regulation."  Here, Coase observed that "[t]he government is, in a sense, a super-firm (but of a very special kind) since it is able to influence the use of factors of production by administrative decision."  Coase pointed out that the "government is able, if it wishes, to avoid the market altogether, which a firm can never do."

That is an interesting point up here along the lake. Yes, government regulation can be overbroad and inefficient. 

But equally there is no reason why, on occasion, such governmental administrative regulation should not lead to an improvement in economic efficiency. This would seem particularly likely when, as is normally the case with the smoke nuisance, a large number of people are involved and in which therefore the costs of handling the problem through the market or the firm may be high.

But you have to get down to cases and not deal in abstractions. Coase thought economists and policy-makers over-estimate the advantages of government regulation, but all that does is suggest that government regulation should be curtailed. "It does not tell us where the boundary line should be drawn. This, it seems to me, has to come from a detailed investigation of the actual results of handling the problem in different ways."  The problem even with local government regulation is that it doesn't fully account for all of the social costs, because the board of supervisors in Hayes Township has not enacted the same ordinances as Charlevoix and Charlevoix Township, and parts of Hayes Township are closer to my living room than parts of my own city.

So, here I am, 1,778 words into this blog post, and discovering that, if Ronald Coase were my neighbor, I might well get him to join me in an effort to get the county or maybe the state government to understand there is a social cost to fireworks.  Not everything needs to be dealt with in terms of markets.

In this article, the analysis has been confined, as is usual in this part of economics, to comparisons of the value of production, as measured by the market. But it is, of course, desirable that the choice between different social arrangements for the solution of economic problems should be carried out in broader terms than this and that the total effect of these arrangements in all spheres of life should be taken into account. As Frank H. Knight has so often emphasized, problems of welfare economics must ultimately dissolve into a study of aesthetics and morals.

I suspect he'd agreed with me that, for fireworks, as elsewhere, "[in] devising and choosing between social arrangements we should have regard for the total effect." We could gather up the dogs and all those suffering from PTSD and march on township hall to tell them just that.

Or maybe he would tell me that I had over-thought the issue and suggest reading more appropriate for the beach.

Posted by Jeff Lipshaw on July 9, 2018 at 09:54 AM in Deliberation and voices, Law and Politics, Legal Theory, Lipshaw, Property | Permalink | Comments (5)

Monday, July 02, 2018

Self-Plagiarism (and the First and Second Laws of Textual Physics)

June is my intense writing month, by and large, and I just finished up a draft that, as I said elsewhere, may not be ready for Broadway, but is ready for out-of-town previews on SSRN.  (If you are curious, it's titled The Persistence of "Dumb" Contracts. It ponders the extent to which artificial intelligence could take over the non-blockchain contract drafting lawyers have been doing for hundreds of years.)

If you are like me, and have been at this for a while, you probably have developed a theme that pervades your work. Mine has to do with how people, and lawyers especially, make tough judgments in the face of uncertainty. Not tough judgments (although they may be) in adjudication, but what to do when your nicely developed lawyerly rationality can give you five good reasons for doing A and five equally good reasons for not doing A. A perfect example was Meryl Streep as Katharine Graham deciding whether to publish the Pentagon Papers (I rented The Post last night); you either take the leap or you don't.  Not to decide is to decide.

Sometimes a sentence or a paragraph or a long footnote from a previous piece seems like it fits in the new one. It's so easy to copy and paste and - voila! - you've written 200 words - a nice chunk of the day's quota. At least at some point in the drafting of Persistence, I did that. Is it okay?  (Spoiler alert: as far as I know I made it okay under even the most stringent standards.) Thoughts on self-plagiarism follow the break.

First off, let's define plagiarism.  I'll go with the definition we give our students: "taking the literary property of another, passing it off as one's own without appropriate attribution, and reaping from its use any benefit from an academic institution."

Second, self-plagiarism is indeed an issue,  There's a nice piece on this at the RIPS Law Librarian Blog, specifically about this issue in the law review context.  There are two sins that fall under "self-plagiarism" that are not what I'm talking about.  The first is creating many publications from the same study.  (Even that strikes me as overbroad - you can do a popular piece and an academic piece from the same material and not be committing a faux pas, as long as you disclose it.) The second is more serious, which is actually submitting the same work to different journals and permitting it to be accepted in multiple places.

The third issue is the one I'm most likely to encounter in my own work - what the RIPS bloggers call, in a less pejorative way, text recycling. That seems fair, because (apart from copyright issues if the journal holds it) you really aren't passing off someone else's intellectual output as your own. The RIPS bloggers are thoughtful about this.  If you are building on a body of work, it does seem silly to have to reinvent the wheel or have part of your article oddly set off in block quotes because you used it before.  On the other hand, they point out that editors and readers have a right to know if what they are reading is not original work, even if if originally it was yours. Not surprisingly, they advocate a sensible policy.  If you are using it again, disclose it either in a footnote, a in-text reference, or a general disclosure like you regularly see in a book preface when some of the chapters had earlier iterations as law review articles.

The lesson I learned this month, however, was slightly different.  I had inserted a footnote to the effect that much of the discussion on a couple pages had first appeared in my own piece, appropriately cited. The RIPS people would have been satisfied. The problem was one that, frankly, I didn't see, and it took another reader to point out.  I'm going to call it "textual inertia," or even better, "Lipshaw's First Law of Text Recycling." It goes like this:  "Every piece of text, once written, tends to remain in that state of drafting unless an external force is applied to it."

There is a Second Law as well: "The relationship between a text's mass (m), the ease by which it can be edited (a), and applied force (F) is F = ma, where a text's mass is directly proportionate to how pretty a word processor makes it look on the page."  What this means is that if you were to handwrite the text in a scrawl on a legal pad, you don't need much force to edit it.  But if you cut and paste the prior text into Eugene Volokh's wonderful law review article template, it becomes very hard to move.

That's why it's so hard to edit even a piece where you haven't recycled text. But when you recycle, chances are you really aren't making the same point that you made before.  It's the idea underlying the text that has relevance in this newer piece.  But it's so damn easy to cut and paste, and once you've done that, the First Law sets in.  And, as my friend who read the draft pointed out, that particular passage sounds like a tangent not quite related to the point of the article.

* By the way, my usual blogging home, at least on issues relating to legal education, lawyering, legal thought, etc. is now Paul Caron's iconic Tax Prof Blog.  This entry will be self-plagiarized, I mean cross-posted, over there.

Posted by Jeff Lipshaw on July 2, 2018 at 08:08 AM in Article Spotlight, Lipshaw | Permalink | Comments (2)

Wednesday, August 31, 2016

Bard Signing In

Let me start my third visit to Prawfs Blog with warm thanks to Howard Wasserman and to my fellow bloggers for the work they have done keeping this forum going. As the public information about Professor Markel’s murder becomes increasingly lurid, I’d rather focus on his work than on the circumstances of his tragic death. And from the beginning his work on this blog was to provide legal academics a forum to talk to each-other about matters of interest to them—whether it was highlighting a new study, commenting on a case or talking about legal academe.  

As a brief self introduction, I’m starting my second year as the very proud dean of the absolutely amazing University of Cincinnati College of Law. Every day I hear something about what one of our faculty, alumni, staff or students are doing and I’m proud to have a role in sustaining the framework that allows these things to happen at our historic law school. So I’m going to talk about legal education. But as an engaged health law academic specializing in ethical issues in public health, the unchecked spread of Zika in the United States is also going to be a topic of discussion. Thank you for having me. It is a real honor to be included.

Posted by Jennifer Bard on August 31, 2016 at 09:37 PM in Article Spotlight, Blogging, Culture, Current Affairs, Dan Markel, Howard Wasserman, Information and Technology, Life of Law Schools, Lipshaw | Permalink

Friday, July 31, 2015

The End of Ambition?

60-days-green-white-mdI hear that sixty is the new forty.  I hope so.  It's the end of the month, and I'm thinking about ends.  And if the bromide is true, I'm premature.  But here's a trigger warning anyway: what follows is about "ought" fading into "is" or "becoming" fading into "being." It's also hopelessly self-indulgent, but my excuse is that I just got the schedule of faculty meetings for the next year.

By a quirk of career fate, I'm a bit older than most of my professional cohort (in this incarnation).  Next year  will be the fortieth anniversary of my first day of law school, something that flips me out, but also means that I was puzzling through Groves v. John Wunder before the majority (I suspect) of the readers of this blog were born. And it means that most of you will have no conception at all of the inner sense of being closer to the end than to the beginning. There's a hint of it in somebody like that young whippersnapper, President Obama, realizing that he has run his last campaign, but he really does have a whole career ahead of him still.  (On January 20, 2017, he'll be 55, which is only a year older than I was when I got a full time permanent faculty position.)

Running the last campaign is a nice metaphor, because campaigns are about becoming. Careers are a continuing series of campaigns - getting a job, making partner, getting tenure, getting promoted. NPR just ran an interview with Woody Allen, who turns 80 (!!!!) on his next birthday. To the extent that professors create through their writing, those pieces, like the movies that Woody keeps making, are becomings. But those are slightly different becomings, more like unfoldings, and not like steps up a ladder.

UnknownMy friend, the philosopher Susan Neiman, has a new and neat little book about becoming and being, entitled Why Grow Up? Subversive Thoughts for an Infantile Age (New York Times Book Review by A.O. Scott here).  Susan is a fabulous translator of Enlightenment philosophy (particularly Kant) into practical wisdom. I don't necessarily share her outcomes (she's a lot farther to the left than I, a passionate moderate) but given her fundamental message, there's a lot of room for reasonable differences.  That's because adulthood is (to quote Scott's pithy summary) "the endless navigation of the gulf between the world as we encounter it and the way we believe it should be." Or as Susan says, it "requires facing squarely the fact that you will never get the world you want, while refusing to talk yourself out of wanting it."

So adulthood is also a mediation between simply being, on one hand, and continuing to become, on the other. Maybe being closer to the end than the beginning means that you have to be more selective about your becomings. The practical translation of that thought is the expression "life is too short," something that takes on more quantitative meaning the older you get, and particularly during faculty and committee meetings.

Even this blog post is a little becoming, because when I'm done with it, I've made the world a little more like it ought to be than it was (at least for me).  Each paragraph, each article, each book, each lecture, each student one influences is a little becoming.  But is accepting that as the rest of one's career also the end of ambition?

Posted by Jeff Lipshaw on July 31, 2015 at 08:46 AM in Blogging, Deliberation and voices, Lipshaw | Permalink | Comments (1)

Tuesday, July 28, 2015

The Art of Lawyering and Beyond

PkosuriPraveen Kosuri (left), the director of Penn Law School's entrepreneurship clinic, has a neat new piece, Beyond Gilson: The Art of Business Lawyering.  Here's the abstract:

Thirty years ago, Ronald Gilson asked the question, “what do business lawyers really do?” Since that time legal scholars have continued to grapple with that question and the implicit question of how business lawyers add value to their clients. This article revisits the question again but with a more expansive perspective on the role of business lawyer and what constitutes value to clients. Gilson put forth the theory of business lawyers as transaction cost engineers. Years later, Karl Okamoto introduced the concept of deal lawyer as reputational intermediary. Steven Schwarcz attempted to isolate the role of business lawyer from other advisors and concluded the only value lawyers added was as regulatory cost managers. All of these conceptions of business lawyering focused too narrowly on the technical skills employed, and none captured the skill set or essence of the truly great business lawyer. In this article, I put forth a more fully developed conception of business lawyer that highlights skills that differentiate great business lawyers from the merely average. I then discuss whether these skills can be taught in law schools and how a tiered curriculum might be designed to better educate future business lawyers.

What Professor Kosuri captures is that it’s a complex world out there, and trying to distill the essence of business lawyering through one particular science (rather than art) is going to be radically incomplete.

Nevertheless, his approach continues in an analytic tradition of identifying characteristics from the outside, and suggesting essentially that others, for want of a better word, mimic those characteristics. My view ups the stakes even more, because I think being a great business lawyer is not only beyond the acquisition of technical skills, it’s also beyond the acquisition of art. Stated more plainly, to learn the art, to acquire the characteristics Professor Kosuri describes, you have to want them first.

Which raises the question of teachability. I’m pretty sure we instill this affect, this emotional predisposition, more through our modeling of behavior than we do by way of teaching through our words.  There's been a lot of discussion of Atticus Finch in the last few weeks, and who knows how many people Harper Lee inspired to be lawyers through To Kill a Mockingbird (and, hence, the downer of finding out that he may not have been as godlike as previously thought). I confess that I have never read To Kill a Mockingbird, and have only seen parts of the movie. My lawyer hero was Henry Drummond from Inherit the Wind, the fictionalized Clarence Darrow, and his cross-examination (taken in large part from the Scopes trial transcripts) of Matthew Brady, the fictionalized William Jennings Bryan, was the apotheosis of lawyering.

Well, you grow up and it turns out that making a living as a litigator in, say, 1979 or 1985 isn't (for most of us) like trying the Scopes case. But that doesn't diminish the impact of "be like" as the source of one's desire to learn a particular way of practicing one's craft.

And isn't the hardest place either to teach or model "be like" from behind a podium in a lecture hall?

Posted by Jeff Lipshaw on July 28, 2015 at 08:02 AM in Article Spotlight, Corporate, Lipshaw | Permalink | Comments (1)

Thursday, July 23, 2015

God Doesn't Play Dice, Spooky Action at a Distance, If You Have a Hammer, Everything Looks Like a Nail, Ships Passing in the Night, and Other Metaphors For Belief and Debate

Canstockphoto12155245This is a reflection about disciplines and theory, in particular, law and economics.  I preface it by saying that I think economics is a fascinating subject, I took a lot of econ classes in college (mostly macro), and I was an antitrust lawyer for a long time, which meant that I had to have some handle on micro as well.  What provokes this particular reaction is a new piece by Bob Scott (Columbia), a far more distinguished contract theorist than I, on the same subject, contract interpretation, on which I've been writing and blogging this summer.  Bob and I aren't just ships passing in the night. (If we were, he'd be the aircraft carrier in the photo at left.) We are sailing in different oceans. I have been thinking the last few days about why. (I should say that Bob and his frequent co-author, Alan Schwartz, have acknowledged my previous critiques in print. The sailing metaphor is about our concepts, not the fact of the dialogue!)

I'll come back to the specifics later. What I want to consider first is those circumstances in which reasoned discussion is or is not even possible. A couple years back I read a fascinating article by a philosopher named Brian Ribeiro, in which he assessed truly hard cases of conflicting belief, i.e., those instances in which the interlocutors disagree but are not ignorant of critical facts, are sufficiently educated, and are under no cognitive disabilities. A perfectly good example is religious belief. If you are a Mormon or a Catholic, you are going to believe things about which no amount of reasoned argument will change my belief. Rather, a change has to be the result of a conversion.  To quote Ribeiro, "If reconciliation is to occur, then one of us must forsake reason-giving (non-rationally) reject our old rule, and (non-rationally) accept a new rule, thereby ending the dispute."

It's pretty easy to see that issue in the case of religion, but my contention here is that it happens all the time in academia, i.e., we are ships passing in the night because we begin with an affective set of foundational beliefs upon which we base our sense-making of experience, and the affect is simply not amenable to anything but a conversion experience if there is to be a change.  The first part of the title is a reference to Einstein's famous quip about quantum mechanics, and has to do with something very fundamental about how you believe one event causes another (like particles influencing each other simultaneously at distances greater than light could travel in that instant - the issue of "entanglement" that Einstein called "spooky action at a distance").

I'm not saying that one can't be converted. I suspect there would be some experiment that could have brought Einstein around, just like Arthur Eddington's experiment brought Newtonians around to Einstein's general relativity. The issue arises at a meta level, when you don't believe that there can be evidence that would change your belief. Sorry, but I don't think even my believing Christian friends whose intellects I  respect beyond question are going to get me to believe in the divinity of Jesus Christ.

I'm pretty sure that there's no bright line that cabins off the meta issue of belief solely to matters of religion, however. My friend and next door neighbor, David Haig, is an esteemed evolutionary biologist at Harvard. He and I occasionally partake of a bottle of wine on a Saturday or Sunday afternoon, and come around at some point to the "hard question of consciousness." This is the unresolved scientific and philosophical question of the phenomenon of consciousness. At this point, the debate is not so much about whether there is a reductive explanation, but whether there can ever be one (that's why it's still as much a philosophical as scientific debate). David and I pretty much agree to disagree on this, but my point is that reasoned discussion morphs into belief and conversion at some point.  That is, if presented with a theory of consciousness that comports with the evidence, I'd be pretty stupid not to be converted (just as if Jesus showed up with Elijah at our next Passover Seder and took over reading the Haggadah). But for now, he believes what he believes and I believe what I believe. (There's a philosophical problem of induction buried in there, because usually the basis of the belief that we'll solve the problem is our past experience of solving heretofore unresolvable problems.)

How this ties back to something as mundane as contract law after the break.

First, I owe it to Bob to plug his forthcoming Marquette Law Review article, Contract Design and the Shading Problem, the abstract of which is as follows:

Despite recent advances in our understanding of contracting behavior, economic contract theory has yet to identify the principal causes and effects of contract breach. In this Essay, I argue that opportunism is a primary explanation for why commercial parties deliberately breach their contracts. I develop a novel variation on opportunism that I identify as “shading;” a behavior that more accurately describes the vexing problems courts face in rooting out strategic behavior in contract litigation. I provide some empirical support for the claim that shading behavior is both pervasive in litigation over contract breach and extremely difficult for generalist courts to detect, and I offer an explanation for why this is so. In contrast to courts of equity in pre-industrial England, generalist courts today are tasked with the challenge of interpreting contracts in a heterogeneous global economy. This has left generalist courts incapable of identifying with any degree of accuracy which of the litigants is behaving strategically. I advance the claim that ex ante design by commercial parties is more effective in deterring opportunism in litigation than ex post evaluation of the contractual context by generalist courts. I illustrate this claim by focusing on the critical roles of uncertainty and scale in determining how legally sophisticated parties, both individually and collectively, design their contracts. By deploying sophisticated design strategies tailored to particular environments, parties are able both to reduce the risk of shading and to cabin the role of the decision maker tasked with policing this difficult to verify behavior. I conclude that judges and contract theorists must attend to the unique characteristics of the contracts currently being designed by sophisticated parties because it is the parties, and not the courts, that reduce the risks of opportunistic shading in contract adjudication. 
What Bob is wrestling with is how to fit the problem of contract language into the law and economics of contracts.  "Theory" would predict that contracts are a check on opportunism, and therefore we ought to see a reduction in opportunistic behavior, particularly as between sophisticated parties who write complex agreements. But we see LOTS of opportunistic behavior and so how do we explain it? Well, it must be because somebody is acting opportunistically, and pushing an ex post interpretation of the language that couldn't realistically have been what it meant when the parties agreed to it ex ante.
 
Economic theory of contract law - i.e., the relationship of contracting behavior to the reduction of opportunism - demands a causal relationship between the act of making a contract and the application of that contract to resolve a dispute that occurs later in time.  Moreover, if the contracting parties are rational, they ought to trying to make their contracts as "complete" as possible, that is, to anticipate as many "state contingencies" as they can. To quote Bob Scott: "Faced with this wide gap between theory and reality, the answers to a critical empirical question remain elusive: how do sophisticated parties adjust ex ante to the prospect of breach ex post?"
 
Bob and I don't disagree that the world is rife with opportunistic behavior, and it occurs as much in the case of sophisticated market actors as with anybody else.  Why we are ships passing in the night has to do with our respective orientation to theory and causation. I'm being presumptuous here, but I think for an economist to delink the ex ante contracting behavior from the ex post opportunism is, like Einstein, to accept spooky action at a distance. The theory is the hammer and, if you have it, the problem looks like a nail.
 
As I've written (ad nauseam, but at least here and here), I have a completely different view of the causal connection (or, to put it more bluntly, the lack of one) between the creation of ex ante contract text and ex post contract opportunism.  All law and economics scholars would (I think) agree that "complete contracts" - i.e. contracts that can in theory anticipate every state contingency - don't and will never exist in the real world. I think the concept, as a matter of fundamental belief, is so ephemeral and fantastical that I can't accept it even as the basis from which to begin an argument. Similarly, I believe the phrase "mutual intention of the parties" is right up there with "the present King of France" in terms of nominally coherent descriptions of non-existent things.  On the other hand, I can understand if an economist would look at my view as saying, in essence, God plays dice with the world, or as contending that I've reduced the behavior to something like spooky action at a distance.
 
What's interesting about all of this is my suspicion (confirmed by my exchanges with Bob offline) that we'd probably face practical problems as pragmatic lawyers in very similar ways. The dialogue is really about fundamental orientations to making sense of the world.

Posted by Jeff Lipshaw on July 23, 2015 at 10:21 AM in Article Spotlight, Legal Theory, Lipshaw | Permalink | Comments (2)

Wednesday, July 15, 2015

"We Begin with the Assumption that Contracts Matter...."

GULATI 0375292One of my reads this summer, because it's relevant to my piece on "lexical opportunism," has been a fascinating little book by Mitu Gulati (Duke, left) and Robert Scott (Columbia, right), The 3 1/2 Minute Transaction: Boilerplate and the Limits of Contract Design (Chicago, 2012). The subject matter is a puzzler: why did sophisticated law firms keep including a particular contract provision (the "pari passu" clause) in sovereign debt agreements when (a) almost nobody could present a credible explanation of its purpose, and (b) a highly publicized case affirmed an interpretation of the clause that threatened to undermine all attempts to restructure sovereign debt? Scott new 9-09

Let me start with words of praise. This is a good read and good work. Anybody seriously looking at issues in contract theory ought to be reading it. But it's refreshing to read the results of an academic, empirical piece where the authors are so frank about their bemusement and their inability to come up with a satisfying explanatory theory. Professors Gulati and Scott come at the problem with a neoclassical economic perspective, and find that "these hard-nosed Wall Street lawyers told us stores about rituals, talismans, alchemy, the search for the Holy Grail, and Zeus." (5)  It's pretty clear 173 pages later they'd agree that the conclusion - sticky boilerplate and herd behavior - is a whimper rather than a bang.

I confess that Ayn Rand's The Fountainhead and Atlas Shrugged were staples of my intellectual youth. I've since come to terms with some of the hokum and inherent contradictions in the philosophy (she hated Kant, and I kind of know why - her response to the limits of reason was to opt for an orthodoxy of logic, including the foundational posits that logic requires), but many of her bon mots come back to me at opportune times.  The apropos quote here is from Francisco d'Anconia to Dagny Taggart: "Contradictions do not exist. Whenever you think that you are facing a contradiction, check your premises. You will find that one of them is wrong."

So.... One of the fundamental puzzles for Gulati and Scott is why sovereigns incur any costs toward lowering the cost of capital by way of contract design, and yet economists seem to think that contract design is irrelevant. The bridge from that to their assessment begins as follows: "In any case, as contracts scholars, we begin with the assumption that contracts matter." (23)

That bothers me.  Let's try these variants.  "As philosophers, we begin with the assumption that metaphysics matter." "As human anatomy scholars, we begin with the assumption that appendixes matter." "As physicists, we begin with the assumption that phlogiston matters." What's going on is a demonstration of the subtle ways in which descriptive theory has a normative component, even if the normative element is as basic as something like "this activity should be amenable to explanation by way of theory." If you start with neo-classical welfare-maximizing as the default in human decision-making - i.e., ceteris paribus, that's how the world ought to operate - no wonder it's a puzzle when it doesn't turn out to work that way. (I'm not sure if old Ayn ever got to the part of the Critique of Pure Reason that works through this - it's buried in an Appendix to the Transcendental Dialectic, beginning at pages A643/B671.)

If we check our premises, maybe contracts don't matter.

Posted by Jeff Lipshaw on July 15, 2015 at 07:44 AM in Article Spotlight, Books, Lipshaw, Science | Permalink | Comments (1)

Sunday, July 12, 2015

"No Contracts"

For all that lawyers and law professors traffic in language, sometimes I think language is to lawyers as water must be to fish. That is, if you live in it, it's kind of hard to step back and realize the universe could be constituted out of some other medium.

Cutie-fish-in-waterUp here, the cable provider is Charter, and it runs a lot of commercials. The actor in the commercial for its business services trumpeted yesterday that one of the benefits of subscribing was "no contracts!"  Well, you and I both know that there HAS to be a contract. God knows Charter will be disclaiming SOMETHING - like, for example, the potential for consequential damages to a business if the internet connection goes down.  

What we all know is that "no contracts" actually means something other than its literal meaning.  "No contracts" means only that the subscriber won't be held to a fixed term, and will be able to cancel its service without much notice to Charter. OMG, the plain meaning is precisely the opposite of the plain meaning!

The particular conceit of the smartest people in our profession - and I mean both practitioners and professors - is that words and sentences are capable, with the right skills, of exactitude that approaches an asymptotic limit. Within a certain school of contract law theorists, this gets expressed as the idea of an "incomplete contract," as though the idea of a complete contract, one that contemplates EVERY possible state contingency, is something any more conceivable than the Kabbalists' notion of God (the Ayn Sof - "there is no end"). I put the term "complete contract" in the same conceptual category as I do non-words like "gruntled," "dain," and "combobulated." 

Below the break, I fulminate on this idea - that plain meaning is like Schrödinger's cat, existing and not existing at the same time - in the context of statutes (i.e. King v. Burwell) and contracts. (Full disclosure: I'm the guy who, when any student in my contracts class says the words "mutual intention of the parties," starts making "woo-woo" noises and acting out the Vulcan mind-meld.)

I don't usually wade into the great issues of the day, but I thought I ought to read the King v. Burwell opinions.  If you put aside the politics, Chief Justice Roberts's opinion is a pretty well-trod exercise in the interpretation of a text: what does it mean for a health care exchange to be "established by the state"? Does that mean state itself  has to put the exchange in place under its law, or does it also mean an exchange that the federal government has established for the state as the default?  

For contracts professors, it's not too surprising.  If you read Justice Traynor's opinion in Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co., a seminal case in the law of interpretation, it's the same "literal reading" versus "contextual reading" of an indemnity clause. Indeed, if you look at the language in PG&E, it's the equivalent of Charter's "no contracts," and the court says, "Oh no, it can't possibly mean that!"

Two implications come to mind.

First, whether language ever really maps even an individual purpose or intention, much less the elusive "mutual intention of the parties" in a contract or "congressional intent" is the subject of the piece I posted on SSRN several weeks ago: Lexical Opportunism and the Limits of Contract Theory. My point there is that the elusiveness of language as map undercuts attempts to make broad economic or moral theoretical statements about contract law; I suspect it's the same for statutory interpretation. The text is the text and, in any hard case about its application, we are all opportunists.

Second, it's also almost impossible to state a rule for when you ought to abide by the plain textual meaning or look at the context. Sometimes "no contracts" could really mean "no contracts." There are some documents whose very value is in their formalism - letters of credit, negotiable instruments, promissory notes - and you really do do a disservice by allowing a contextual reading of the language.  Hence, Judge Kosinski's criticism of the PG&E rule in the Trident case: it "casts a long shadow of uncertainty over all transactions negotiated and executed under the law."

Personally, I don't know what the hell "established by the State" was supposed to mean, and was relieved to have the ACA once again upheld because I think it's good policy (or better than the non-policy that existed  before). 

But in terms of the language issue, I can't help hearing the debate as though I'm listening to two fish argue how wet the water is.

Posted by Jeff Lipshaw on July 12, 2015 at 08:04 AM in Article Spotlight, Legal Theory, Lipshaw | Permalink | Comments (1)

Saturday, July 04, 2015

Wine, Soda Pop, and Law Schools - More on "Law Review Lift (Drag)"

Some time this month I will get to a relatively more serious topic, like textual opportunism, but for right now I'm still fiddling around with Al Brophy's ranking system.  

So 10+ that I don't bury the lead, let me say up front that I have played some simple-minded statistical games with Al's data.  What I come up with is that, among academics, "brand," as with soda pop, means a lot, and it is relatively sticky and independent of what is going on with the students.

I also think it's pretty obvious that there is a relationship between the "brand" and student data (i.e. high correlations between any ranking system and LSAT scores, for example). What got me interested, however, as I noted a few days ago, was the differential when Al included or didn't include a different and interesting stat: how often the school's main law review (not its faculty) got cited. My intuition is that what other profs think about placing articles in a school's review (based on my own experience) is a lot like the peer reputation score, except that it does measure a revealed preference (i.e., when you rank "peer reputation" as a participant in USNWR, it doesn't cash out to anything; placing an article does!)

The problem with all of these systems, in which we are "ranking" something with many complex factors (like wine) is that the judgment is qualitative, even if it looks quantitative. Often it's qualitative simply because it's qualitative (e.g., "peer reputation"), but even when it's fully quantitative it's qualitative because of the judgments one makes in weighting the quantitative factors.  I was once a partner in a big law firm. Our partnership agreement called for compensation to be determined by a committee, which in turn used a list of factors like "billable hours," "service to the firm," "client responsibility," etc. Every two years the committee turned out a ranking that set your compensation relative to all the other partners. Similarly, if you aren't a hermit during early March of each year, you hear about a double ultra secret committee in Indianapolis deciding which of the "bubble teams" gets into the NCAA basketball tournament. Same thing.  Recent results? Body of work? Bad losses? Good wins?

In any event, I played with Al's data and made some scatter plots and regressions in Excel, all of which follow the break.

20+I should note that I ran my little exercise by one of the toughest critics of empirical work I know, not for an endorsement, but to see if it was okay to "bin" the data into that 10+, 20+, and 30+ differentials between Al's 2 variable and 3 variable results. My interlocutor (who will remain nameless to protect the innocent) said that binning was okay if there was some theory behind it, but his or her very, very fulsome and thoughtful reply to my question reaffirmed my belief that data without judgment is blind (and judgment without data is empty, to be fair, in each case paraphrasing Kant). The big issue is whether just a few outliers are responsible for the outcomes (which you can see by eyeballing the scatter plots). That may be true here. So with that disclaimer, and recognizing this is a blog post, for God's sake, and not a peer reviewed research paper, here's what I came up with.


If you plot law review "lift (drag)" of 10+, you come up with a positive correlation to law review volume number (.339).  See chart above the break. 30+

If you do the same for "lift (drag)" of 20+ and 30+, you come up with even higher correlations, .42 and .55, respectively.  (See above left and right.)

What do I conclude? Probably nothing more than common sense would tell me: "brand" makes a difference; it takes a long time to develop one; and once you have it established, it sticks around enough to bias other data.

Posted by Jeff Lipshaw on July 4, 2015 at 03:39 PM in Article Spotlight, Life of Law Schools, Lipshaw | Permalink | Comments (1)

Thursday, July 02, 2015

Playing With Al Brophy's Alternative Law School Rankings - Student Centered vs. Student/Scholarship Centered Results

I have all sorts of analytic issues with law school rankings - e.g., reputation means a lot, but it really is based on feedback loops and is really, really sticky; linear rankings by number hide the fact that it's a bell curve on things like reputation, and linear differences in the middle of the pack don't mean much). But it's still interesting navel gazing, and makes a big difference (I think) in professional and academic careers.

Image.ashxYesterday, Al Brophy (UNC) posted an update to his alternative to USNWR, Ranking Law Schools, 2015: Student Aptitude, Employment Outcome, Law Review Citations.  He uses three variables, entering median LSAT score, employment outcomes (JD required; no school-funded jobs; no solo practitioners), and citations to the school's main law review.  That latter one is interesting because it doesn't measure the scholarly influence of the school's faculty, but instead the school's brand for purposes of law professors placing their articles.  

Al did two analyses, one using only the student variables (LSAT and employment - the "2 var" rank) and one using all three (the "3 var rank").  His Table 2 shows the relative 2 var and 3 var rank for each school, but his comparison are all as against USNWR.  I was interested in "law review lift" versus "law review drag."   So I made a list from Al's Table 2, arbitrarily taking a difference of ten or more as the cutoff.

After the jump, you can see a list of schools whose ranking with their law reviews improves by ten spots or more (law review lift) or whose ranking drops by ten spots or more when the law review gets included (law review drag).  I'll leave it to you to theorize about meaning, if any.

Law review stats enhance student stats ten spots or more
Illinois
Indiana
Florida State
Houston
Utah
George Mason
Cardozo
Cincinnati
Lewis & Clark
Pepperdine
Hastings
Connecticut
San Diego
Brooklyn
Chicago-Kent
Albany
Indiana - Indianapolis
Hofstra
Oregon
DePaul
William Mitchell
American
Catholic
Howard
Akron
Michigan State
Marquette
Seattle
Cleveland State
Vermont
Santa Clara
New York Law School
Ohio Northern
Widener (Delaware Journal of Corporate Law)
McGeorge
Toledo
San Francisco
Suffolk
 
Law review stats drag student stats ten spots or more
 
Georgia
Arizona State
UC-Irvine
Kentucky
Baylor
Georgia State
New Mexico
Oklahoma
Montana
Tulsa 
New Hampshire
Florida International
Rutgers-Camden
Drexel
Syracuse
Hawaii
Idaho
Stetson
South Dakota
Campbell
Duquesne
Chapman
Northern Illinois
North Dakota
Samford (Cumberland)
CUNY
Wyoming
Nova Southeastern
Texas A&M
Oklahoma City
Arkansas-Little Rock
Dayton
Liberty
Elon
Faulkner
Florida A&M

Posted by Jeff Lipshaw on July 2, 2015 at 08:11 AM in Article Spotlight, Law Review Review, Life of Law Schools, Lipshaw | Permalink | Comments (0)

Tuesday, February 22, 2011

Is "Intellectually Vacuous" the Right Expression for Veil-Piercing Doctrine?

Over at his blog, Steve Bainbridge endorsed a view, inspired by comments from Steve Bradford (Nebraska) at Business Law Prof Blog to the effect that every time he got to teaching "veil-piercing," he was reminded again how "intellectually vacuous" the doctrine was.

I sympathize.  I have the same reaction when I teach veil-piercing.  Why?  It's the tempest in a teapot problem that affects much of what commercial and business lawyers learn in school, on one hand, and what they practice, on the other.   Were you inside the teapot of an idiosyncratic case that ends up as an appellate decision on veil-piercing, it would seem like a Category 5 hurricane.   You read five or six cases with outrageous facts and try to reconcile how the doctrine for why corporations legitimately exist (individual use them to shield themselves from liability) is exactly the same as the doctrine under which individuals can be tagged (individuals used them to shield themselves from liability).  Blow winds and crack your cheeks, rage, blow!  But piercing cases are rare, idiosyncratic, and usually marked by some outrageous conduct that makes the decision, in retrospect, not particularly surprising.

Slide1 But I disagree that the proper description of the problem is intellectual vacuity.  The problem is trying to reduce to propositions something that propositions can't reduce.   I've been teaching first year contracts and I've encountered this same "vacuity" problem every time the standard is "justice" (as in promissory estoppel), unconscionability, or mistake.  Analogical reasoning doesn't work because it is inductive analogy - the cases are supposed to describe a rule - rails in a Wittgensteinian sense - that point you to the next result, and there are no rails, or there are too many rails, or they aren't parallel (metaphorically speaking).   The better way to approach this is to understand that (a) we have a non-propositional conception of the prototypes of corporate legitimacy and corporate legerdemain, (b) the prototypes sit in polar opposition on a continuum, and (c) the rationalizing propositions follow the non-propositional and intuitive metaphoric leap from the specific case before us to a prototype.  Another in my series of Venn representations of this kind of polarity is at left - this on unconscionability.

Shameless self-promotion alert:  I discuss this cognitive process at length (giving credit where credit is due - I didn't make this stuff up) in three recent papers:  Metaphor, Models, and Meaning in Contract LawThe Financial Crisis of 2008-09:  Capitalism Didn't Fail But the Metaphors Got a "C" (Minn. L. Rev., forthcoming), and The Venn Diagram of Business Lawyering Judgments (46 Seton Hall L. Rev. 1 (2011), forthcoming).

Posted by Jeff Lipshaw on February 22, 2011 at 01:33 PM in Corporate, Deliberation and voices, Legal Theory, Lipshaw, Teaching Law | Permalink | Comments (1) | TrackBack

Monday, February 14, 2011

Metaphors, Models, and Meaning in Contract Law

As I mentioned to Dan Markel offline, I have been less active as a blogger so far this month in part because I've been focused almost entirely, as I have since last September, on two things:  (a) prepping for my full-year six credit contracts class, and (b) developing a thesis (embodied in an article) that merges the theory and doctrine of the class prep with what I know about how the real world of "contract practice" works.  Like most one-track people, I have been a total bore.

For a number of reasons I've been reticent to post the article until today, but Metaphors, Models, and Meaning in Contract Law is now available on SSRN.  I alluded to it in a post on The Faculty Lounge as I was starting the project last September; 23,000 words (it was above 31,000 at one point) and two major "start from scratch" rewrites later, I have decided to let it go public.  (I will do a post in the next few days on the five stages of assimilating even favorable and constructive comments:  denial, anger, bargaining, depression, and acceptance.)

Figure4
The gist of it is this:  the dominant metaphor for contract in practice and the academy is "contract as model."  One upshot of this metaphor is an article of faith (among lawyers at least) about the rational linkage between what is going on before the fact in the creation of the contract, and what gets litigated after the fact.  Sometimes the metaphor is appropriate, and sometimes it is not.  I've played with my intuition and admitted casual empiricism that the contract, even in a heavily negotiated deal, is as often the "thing" that Arthur Leff conceptualized in his iconic 1964 American University Law Review article as it is a model or map of the transaction .  I've proposed an alternative metaphor of "journey" in which the objectification of an agreement in the contract (a milestone, metaphorically speaking) is often as important as the content itself.  The piece contains illustrations I use in class (see Wood v. Lucy, Lady Duff-Gordon, above, but you have to read the article to get the context), as well as a discussion of how I use the fundamentals of metaphor theory to explain hard cases in which the parties assert, and judges must choose between, competing legal "algorithms".

The abstract follows the fold.

The abstract:
Why does there seem to be such a wide gap between the subject matter of the usual first-year contracts course and what practitioners (particularly transactional lawyers) actually experience? My claim is that it is the result of a powerful theoretical system whose hallmark is a closed linguistic system—in the coinage of one noted scholar, “an epistemic trap.” The subject matter of contract law requires dealing with legal truth not just as a coherent body of doctrine, but also correspondent in some way to actual self-legislation of the parties. I propose escaping the trap with a turn to metaphor theory. The underlying metaphor common to prevailing conceptions of contract law, and which demands some form of correspondent truth from the contract (and contract law), is “contract as model of the transaction.” I suggest alternative metaphors of categories as containers, ideas (including “the meeting of the minds”) as objects, and the transaction life cycle as a journey. The goal is to focus on the “subjective to objective” process of the transactional life cycle, and to consider the perspectives of the participants in or observers of the transactional life cycle, and the models and metaphors that shape the conceptual frames from within which those participants and observers perceive and make use of the legal doctrine.

Posted by Jeff Lipshaw on February 14, 2011 at 02:11 PM in Article Spotlight, Lipshaw | Permalink | Comments (0) | TrackBack

Friday, February 04, 2011

Interdisciplinary Angst? - A Response to Boyden

I started to write a comment to Bruce's very interesting post, but it started to get long and then I realized I'm a guest blogger.

There are probably a dozen books, not all of them necessarily well known, that have had a fundamental impact on my thinking.  One of them was a little piece by a organizational behaviorist by the name of Barry Johnson, entitled Polarity Management.  The thesis is that some problems are only manageable, not solveable.   The hallmark of such problems is that they demonstrate a conflict between interdependent but mutually exclusive polar values, each of which has an upside and a downside.  A good example in a business organization is the polarity of teamwork versus command-and-control.  Teamwork's upside includes buy-in, energy, synergy of ideas, innovation.  Its downside is its lack of speed, bureaucracy, "camel" creation.  At the other end of the polarity, command-and-control is alienating and often bereft of esprit, enthusiasm, but it is decisive and clear.  Moreover, organizations show a tendency to move from the downside of one value by adopting the other, taking the benefits of its upside until the ill effects show up and then repeating the process to the other end of the polarity (over and over and over).  (I saw this when "Total Quality" showed up in the early 90s to replace hierarchical management - you couldn't change the brand of coffee in the break room without a brainstorming session.  So there was the counter-revolution.)  The trick is to manage the polarities, not solve them.

When we talk about any professional or academic discipline, we are talking about a construct that is some mix of concept and social organization.  There is no reason to think that the disciplines that have spun off from philosophy over the last 150 years cut nature at the joints (as some people are want to say).   Or to put it another way, "independent discipline" compared to what?  The "problem," if it is one, of disciplinary boundaries involves the interdependent but mutual exclusive values of (a) professional certification and authority (note the irony of my including a bibliography below, by the way giving weighty authority on interdisciplinarity) versus interdisciplinary exploration, and (b) deep and focused study versus creativity and innovation.  It seems to me what leaders of academic institutions ought to be doing is managing the polarity rather than seeing it as a problem to be solved.   It's obvious that there's huge value in both deep doctrinal competence and cutting edge weirdness (neuroeconomics, as a case in point).  Against the downsides, respectively, of stultification and dilettantism.  Certainly highlighting the issue (as in Bruce's post) is the first step to managing it, but it's not a problem that has an answer.

At the risk of stepping on Patrick O'Donnell's bibliographic toes, there's been some interesting work assessing disciplinarity both generally within academia (Michele Lamont, How Professors Think: Inside the Curious World of Academic Judgment; Louis Menand, The Marketplace of Ideas: Reform and Resistance in the American University) and law (Peter Goodrich, "Intellection and Indiscipline").  Also on the issue of the rise of social science disciplines generally and history as a discipline specifically, see Thomas Haskell, The Emergence of Professional Social Science:  The American Social Science Association and the Nineteenth Century Crisis of Authority, and Objectivity is Not Neutrality:  Explanatory Schemes in History.  And what would a guest blog post be without some self-promotion:  my thesis ("The Venn Diagram of Business Lawyering Judgments", forthcoming, 46 Seton Hall L. Rev. 1 (2011)) that effective business lawyering demands a skill in being interdisciplinary, a discipline I have coined "metadisciplinarity," otherwise known as the deep art of being meaningfully shallow.

Posted by Jeff Lipshaw on February 4, 2011 at 01:13 PM in Deliberation and voices, Lipshaw | Permalink | Comments (1) | TrackBack

Tuesday, February 01, 2011

Lived (and Dated) History

I've been waiting patiently for the rotations to rotate; I should have posted this on January 20, 2011, the fiftieth anniversary of John F. Kennedy's inauguration.  For some random reason about a month ago, I pulled Theodore H. White's Pulitzer Prize winning The Making of the President 1960 off the bookshelf and have been leafing through it.  The 1960 Presidential campaign is one of my earliest memories of the world beyond the immediate surroundings of a pre-schooler (I was six and would have Images been watching it all on the black and white Muntz television while sitting on the Naugahyde couch in our living room).  (I have been trying to translate this into how it would sound to me if told to me by my parents; the equivalent would have been my father describing to me a memory of that tumultuous election battle between FDR Images-1 and Alf Landon in 1936.)

Aside from historical datedness like the amazing Democratic coalition of northern liberals and southern racists, or the fact that it was the liberal wing causing headaches for Republican Party regulars, I was struck by tidbits of mundane datedness as I read the first chapter.  It is Election Day in 1960.  Kennedy has voted in the West End branch of the Boston Public Library, then been driven through the "grimy blight of Scollay Square"--now the Government Center T stop and the plaza in front of City Hall--to an airplane that takes him to Hyannisport, where:

- The Democratic National Committee was insolvent and only had $800 to set up a press center at the Hyannis National Guard Armory; most of the materials to outfit it came from local donations - the local lumber company and Ford dealer.  A local carpenter volunteered to build the partitions and platforms.

-  There are no women except for wives and girls who operate the mimeograph machines.  At 11:30 p.m., Jacqueline, in her ninth month of pregnancy "was sent up to bed."

- "Upstairs Lou Harris worked his slide rule...."

- At midnight, the candidate is wearing "white shirt, tan twill trousers, green necktie, white wool socks" [???!!!]

For a comparative backward-looking view, and one that imports the modern merging of media, entertainment, and politics, see this Vanity Fair retrospective on the Hollywood aspect of the Kennedy inauguruation published last month.  Again, I was struck by the mundanities:  on January 18, Kennedy had breakfast at the Carlyle in Manhattan, then boarded a commercial flight from LaGuardia to D.C.!

Posted by Jeff Lipshaw on February 1, 2011 at 09:29 AM in Books, Lipshaw | Permalink | Comments (1) | TrackBack

Wednesday, July 28, 2010

Jeff Lipshaw: Things You Ought To Know If You Teach Contracts

I'm going to follow Paul Horwitz's lead and mix resources with opinion.  This is simply one person's view; reasonable minds may differ and I invite debate!

 1.         Four credits or six credits (and other issues of coverage)?

 The most fundamental question facing a new contracts teacher is whether he or she needs to plan a six-credit course (i.e., two three-credit courses spanning the entire first year) or a single semester four-credit course.  Most of the casebook teachers' manuals will suggest syllabi for either; the one casebook of which I'm aware designed specifically for a four-credit is Frier and White, The Modern Law of Contracts.  (That teachers' manual also has the added benefit of an analysis I wrote of Richard Posner's opinion on liquidated damages in Lake River v. Carborundum.)

 The fundamental units of contract law pedagogy run something like this: 

             - Legal enforceability of private promises (promises, objective theory of contract, consideration, promissory estoppel, quasi-contract)

            - Contract creation (offer and acceptance, reliance, electronic contracting)

            - Contract performance and interpretation (parol evidence, implied terms)

            - Defenses (statute of frauds, unconscionability, duress, mistake, impossibility and frustration)

            - Breach

            - Remedies

 

I'm not a coverage junkie, but even in a four-credit course, I'd try to make sure I did something in each of those units; depending on how fast you traverse the material, in a six-credit course you could even get to assignment and third party beneficiaries.

 

2.        Consideration or remedies first?

 

The basic dichotomy in teaching contracts (and hence the approach of the casebooks) is whether you teach "legal enforceability" or "remedies" first.  This is right up there with other crucial decisions like "paper or plastic."  There's a rationale for each:  teaching consideration first appeals to the theorists because it plumbs the question why and under what circumstances the state gets involved in enforcing promises at all.  Teaching remedies first highlights the different aims of contract law – reliance interests, expectation interests, and restitution interests.    Some of the most popular casebooks (Knapp, Crystal, and Prince, for example) take the former approach; the latter approach is classically Kingsfield because you start with cases like Hawkins v. McGee (what is the value of a good hand?) or Groves v. John Wunder (do you measure damages by the actual harm to the non-breaching party or by the literal terms of the contract?)

 

3.        How much UCC and CISG?

 

This probably depends in part on whether you have a four-credit or six-credit course, and whether your curriculum (like Tulane's, for example) explicitly calls for teaching the UCC either in the second semester of the first year or as an upper level course.  This is a matter of personal preference; there are some contracts professors who eschew much of "classical" contract law in favor of the UCC, even in the regular contracts class.  I think there are some pieces of the UCC that you almost have to teach, like the battle of the forms under 2-207 (particularly as it now applies to shrink wrap or electronic contracting).

 

I'm going to go public and say that teaching the U.N. Convention on the International Sale of Goods (the international equivalent of the UCC) is, in my view, a "nice to do" but not a "gotta do."  This is a somewhat politically incorrect view.

 

4.        How much real world?

 

I'm also willing to go on record (having done it already) to say that nothing highlights the tension between the legal academy and the practicing profession as much as the subject of contract law.  You can graduate from law school and actually use the doctrine you learn in torts, civil procedure, criminal law, etc.  That is far less true of contracts.  First, contract law as taught is really about contract litigation, not contract creation.  Moreover, you can go thirty years in practice and never see a case or a transaction that invokes the law of consideration, offer and acceptance, duress, etc.  I am generally disdainful of contract doctrine as a means of explaining what is actually going on in the business world.  (See my article Models & Games, for example.)  Although there are some admirable casebooks out there that attempt to do so (e.g. Epstein, Markell, & Ponoroff, Making and Doing Deals), my concern is that pushing traditional contract doctrine into a real business setting is a square peg in a round hole (the metaphor is apt for all sorts of reasons).   You don't really teach the business world, and you don't really teach traditional doctrine.
 
No, were it not for the bar exam and inertia (i.e., Langdell was a contracts teacher), we probably wouldn't bother with most of contract law as we presently teach it.  Or, as I have often said, practice is 5% doctrine and 95% interpretation; the course is usually 95% doctrine and 5% interpretation.

 

I do not have a good answer for this.  My inclination still is to disabuse students of the idea that what they are learning maps on the real world.  It is more helpful to think of contract law as the default rules upon which the legal consequences of a binding promise will be imposed on parties after the fact when indeed there is no subjective evidence of an intent to be bound at all, or legally, or on what specific terms.  Hence, teaching the subject, by my way of thinking, requires a jurisprudential approach, one that says "what you are about to learn is a particular way of modeling human interaction."  Said with more jargon, contract law may or may not map well onto the reality of private ordering, and the mistake most students make is to try to make the map work.  No - an integrated law of contracts, if one exists, is a figment of the Langdellian or Willistonian or even the Corbinian or Llewellynian imagination, a way of trying to make unified sense of the whole of private ordering, whether that sense-making is by way of formalism or contextualism (or efficiency or the promise principle, to bring the debate forward in time).

 

Having said that, particularly if you have the luxury of a six-credit course, interjecting classroom exercises that tie to the doctrine seems like a really good idea.  There is a burgeoning industry in such exercises; see Resources below.

 

5.        Resources

 

-  Sign onto the list serv of the AALS Section on Contracts.  Carol Chomsky at the University of Minnesota is the list serv administrator.

 

-  Make sure that you are on the desk copy mailing list for contract law materials at Thomson West (West and Foundation Press), LexisNexis, and Aspen.  You can only use one casebook, but the other books are rich with resources.

 

-  Get the RSS feed for the ContractsProf Blog, edited by Frank Snyder at Texas Wesleyan, and ably assisted by Miriam Cherry (McGeorge), Meredith Miller (Touro), Keith Rowley (UNLV), and Jeremy Telman (Valparaiso).

 

-  Immediately find out who Tina Stark (Emory) is, and why she is one of the most forward-thinking and innovative transactional law teachers in the country.  Get yourself access to the Emory Exchange for Transactional Training Materials, which includes tips for integrating real world situations into the first year contracts course.

 

- The Legal Information Institute of the Cornell Law School maintains an online and cross-linked version of the UCC.  (Note:  the Cornell license doesn't include the comments so you have to get them elsewhere).

 

- The Pace Law maintains an online full text version of the United Nations Convention on the International Sale of Goods.

 

- Order a copy of Contract Stories, edited by my classmate Douglas Baird (Chicago), which contains essays providing the context of many of the chestnut cases.

 

- Attend the annual Spring Contracts Conference, an event instituted by a group of committed contracts professors, including Frank Snyder and Keith Rowley.  I don't have a link for the upcoming conference to be held February18-19, 2011 at Stetson University (perhaps somebody can provide a link in the comments).

 

- Plan to attend Suffolk University Law School's March 25, 2011 daylong symposium in Boston to mark the thirtieth anniversary of the publication of Charles Fried's iconic "Contract as Promise.  After reflections from Professor Fried, some of the academy's foremost contract theorists will offer papers and commentary, with ample opportunity for questions and discussion.  Participants presently scheduled include the Honorable Richard Posner, Randy Barnett, Barbara Fried, T.M. Scanlon, Jean Braucher, Richard Craswell, Avery Katz, Henry Smith, Lisa Bernstein, Seana Shiffrin, Daniel Markovits, Juliet Kostritsky, John C.P. Goldberg, Rachel Arnow-Richman, Curtis Bridgeman, Nathan Oman, Roy Kreitner, Gregory Klass, Carol Chomsky, Jody Kraus, Alan Schwartz, and Robert Scott.

 

- You may or may not want to get familiar with some of the supplements.  Brian Blum's Examples and Explanations (Aspen) is very popular.   Keith Rowley's Questions and Answers: Contracts (LexisNexis) has lots of multiple-choice questions.  I know there are lots of other good ones, and invite recommendations in the comments.  (I try to keep an arm's-length relationship with the supplements, mainly because I don't want to have to try to explain what another professor means about a subject in addition to what I and my casebook are saying.)  One huge benefit of getting on the desk copy mailing list is that you get these resources as well.

 

- One of the most helpful things for me was the session at the AALS Workshop for New Law Teachers on pedagogical methods other than Socratic or lecture (e.g., brainstorming or "pair-square-share).   

Posted by Administrators on July 28, 2010 at 11:53 AM in Lipshaw, Teaching Law, Things You Oughta Know if You Teach X | Permalink | Comments (2) | TrackBack

Wednesday, May 05, 2010

Leadership, Judgment, and Reduction at the Harvard Business School

This morning's Wall Street Journal reports that the Harvard Business School has named a current professor, Nitin Nohria as its 10th dean.  The article describes Nohria as "a vocal critic of management education and the leaders it produces," and quotes Nohria's recent conference call comment - one that without some unpeeling sounds a little odd:  "I believe that management education has been overly-focused on the principles of management."  But maybe not.  Would it sound so odd to say that legal education has been overly-focused on the principles of law?  Not at all.  But consider the next quote in the article, this from Jeffrey Sonnenfeld at the Yale School of Management:  "Mr. Nohria is someone who's been asking the tough questions. . . .  While there is a lot of soul searching going on, he has been taking the steps to give MBAs judgment as well as knowledge."

To paraphrase Mark Twain, everybody talks about judgment but nobody does anything about it.  It's hard to be both thorough and brief when giving quotable comments to reporters, so I don't knock Dean Sonnenfeld at all, but, obviously, instilling or teaching or demonstrating judgment is a task far more challenging than the mere "giving" of it.

What's intriguing to me is the implicit polarity of (a) over-focus on principles of management and (b) judgment.  Some thoughts on principles (or rules) as reduction, something I've been considering recently, below the break.

I can't recall if I have blogged about this, but I have mentioned it in a couple papers.  My next door neighbor and very good friend, David Haig, is a theorist in evolutionary biology at Harvard.  He is a very smart guy.  His groundbreaking work was in genomic imprinting, and particularly the theory underlying certain outcomes in maternal-fetal conflicts (it's a game theoretic approach that hinges on the selection of the mother's or father's gene, particularly when it's a zero-sum game as to resources as between the mother and the fetus).  The theory has practical impact because it helps explain conditions like preeclampsia in pregnancy.  Every couple weeks, usually late on a weekend afternoon, I open the gate in the fence between the houses, walk up the steps, and David and I share a bottle of wine and solve all the problems of the world (usually his house because he has small children.)  There is one continuing theme:  David thinks science will get us most, if not all, of the answers (eventually), and I am what we have come to refer to as a mysterian (Colin McGinn may have coined it, but I am happy to adopt it.)

Much of our conversation, then, is expressly or implicitly about reduction, and more specifically, epistemic reduction. Reduction is of particular interesting to biologists (or philosophers of science interested in biology) because of the seeming loss of explanatory power as one moves from molecular biology to the physics of the atoms and particles that make up the cells. Hence there is a Stanford Encyclopedia of Philosophy entry on Reductionism in Biology and it defines epistemic reductionism as "the idea that the knowledge about one scientific domain (typically about higher level processes) can be reduced to another body of scientific knowledge (typically concerning a lower and more fundamental level)."  The Theory of Everything orientation to the world is necessarily reductive, even if not deterministic (hence the hope of somebody like Roger Penrose who hopes that consciousness and free will are ultimately explained by quantum physics, and therefore as reducible or irreducible as our ability to understand particles). 

I just saw a paper on BEPress from Hanoch Dagan and Roy Kreitner with a pithy quote about legal doctrine: "Langdellian legal science envisioned law as an autonomous discipline governed by three characteristic intellectual moves: classification, induction, and deduction."  This strikes me as classically reductive in the sense of isolating from the data what constitutes in language, the medium of the law, any particular element of any particular legal consequence, whether it be, for example, duty, negligence, mens rea, an investment contract, monopolization, or apparent authority.   Focusing on the Kantian idea of judgment as the "faculty of subsuming under rules, i.e., of determining whether something stands under a given rule ... or not,” there's really no difference between scientific judgments in biology and scientific judgments in legal doctrine.  The real question is whether in adopting a particular rule or theory or model (the skill in judgment that Kant didn't view as something that could be "given" by way of teaching, but could only be practiced) we've adopted one with optimum power for explanatory or predictive purposes in resolving the question at hand.

Hence, when we acquire knowledge, we are necessarily selecting rules that themselves tag only pieces of all the data available to us, and those rules allow us to predict consequences whenever the relevant conditions present themselves.   Right now (but that could change), the selection of particle physics as the model (with its coherent assemblage of rules) is not going to help a biologist explain pollination, notwithstanding all of the explanatory power of particle physics for those operating the Hadron collider.  It strikes me that Nohria is right about business people (and I extend it to lawyers in business):  if we over-focus on the rules and principles of management or law, we've over-reduced, and will necessarily find our judgments to be problematic.

Posted by Jeff Lipshaw on May 5, 2010 at 01:03 PM in Legal Theory, Lipshaw, Science, Teaching Law | Permalink | Comments (0) | TrackBack

Saturday, May 01, 2010

Slicing Prosciutto and Other Metaphors

Marc has joined the fray and I don't think he's a wet blanket at all.  I started to write a comment and quickly concluded it would turn into a post of its own, suggesting that he's a catalyst.  Moreover, wet blankets aren't fun, and I've just spent an hour writing this post, which I wouldn't do if it weren't fun (or if I had a life, but such are the benefits of empty-nester-dom:  I can do whatever I damn please on a Saturday afternoon).

I understand Marc to be saying he does not teach the moral "ought" that stands behind values, and I am sure that's true.  The metaphor for the method he describes is "slicing the prosciutto," which evokes understanding in finer and finer detail the components of the particular human behavior that constitutes his subject area, and the laws, rules, norms, lore, and customs that have arisen to regulate that behavior. I agree that has little to do with a moral "ought."  Nevertheless, the metaphor invokes another kind of "ought", an epistemological "ought," one that suggests a relationship between knowledge and reduction:  we ought to know more as we slice the prosciutto more thinly.   Thus I want to peel some leaves off the artichoke of the metaphor of the slicing of the prosciutto, first, to address generally what Steven Pinker calls the "metaphor metaphor" and, second, within the prosciutto metaphor itself, to address what happens if you keep slicing.

First, what does the use of a metaphor like slicing prosciutto tell us?  The extreme exponents of the metaphor metaphor are George Lakoff and Mark Johnson (Metaphors We Live By) in cognitive science and Steven Winter (A Clearing in the Forest) in law.  You cannot read the work of either of them and not be taken with their intellectual horsepower, but it is an extreme position.  The main idea is that all thinking is metaphor (hence, the metaphor metaphor for thinking) arising out of our having embodied minds in physical bodies: there are no a priori concepts or universal truths and all concepts arise from basic hardwired physical relationships (e.g. TIME IS MOTION; LOVE IS A JOURNEY).  Pinker criticizes the extreme metaphor metaphor (as I have, using a slightly different metaphor), but nevertheless is taken (as am I) by its seeming explanatory power in many cases.  Pinker writes in The Stuff of Thought:

Another fallout of the metaphor metaphor is the phenomenon of framing. Many disagreements in human affairs turn not on differences in data or logic but on how a problem is framed. We see this when adversaries "talk past each other" or when understanding something requires a "paradigm shift.". . . Each controversy hinges on a choice between metaphors. . . .

The most recent example of this is the Goldman Sachs inquiry, where the duty and materiality issues depend entirely on whether you use a bookie metaphor or an investment adviser metaphor to frame the controversy (see Larry Cunningham's invitation a few days ago to come up with the best analogy).

There is an implicit "ought" in Marc's inculcatorium (or non-inculcatorium) that asks us to take the metaphor SLICING IS STUDY, and the implicit analogy THINNESS is to PROSCIUTTO as REDUCTION is to KNOWLEDGE.  How about this metaphor?  Elements of a legal claim are TREES in the legal FOREST and law itself is a TREE in the FOREST of human understanding.  Don't lose sight of the FOREST for the TREES.  That suggests you want to teach not by slicing prosciutto but by stepping back.  What I am suggesting here is that we are indeed inculcating more than we think. It may not be a moral inculcation, but it is an epistemic inculcation.

Second, my use of the artichoke was only slightly in jest.  As to the prosciutto metaphor, can you slice it (the prosciutto or the metaphor) too fine?  Does it lose its taste if the slice is only a couple molecules thick?  I think prosciutto slicing has a highly non-foundational, scientific feel to it.  We are reducing to the very atoms or nuclei or quarks of the meat.  If you are a foundationalist, perhaps you do want to use artichokes rather than prosciutto because you finally get to the heart, it's all the same green mushy stuff, and there's no point in reducing any further. 

I think Langdell wanted to be a prosciutto slicer, and generally law as practice and academic pursuit for the last 100 years reflects that.  My impression is the Stanford program and other interdisciplinary or metadisciplinary efforts are attempts not to lose sight of the forest for the trees.

Posted by Jeff Lipshaw on May 1, 2010 at 02:24 PM in Lipshaw, Teaching Law | Permalink | Comments (3) | TrackBack

"The Most Significant Curricular Change Since Langdell": Stanford's New Model for Legal Education

Howard's last post about common sense is on to something, though I'd engage with him on whether you can just tell lawyers, after three years of law school inculcation, just to employ common sense.

So was Larry Cunningham's post yesterday at Concurring Opinions, discussing Louis Menand's essay on the anxiety inherent in academic interdisciplinarity.

I've gone on record as suggesting the professional judgment of a business lawyer requires not just interdisciplinary skills, but a "meta" ability to deal with many disciplines, something I call the discipline of metadisciplinarity (or, as I referred to it in a talk at Boston College a few weeks back, the very deep art of knowing how and when to be shallow).  Metadisciplinarity asks one to engage, as a practitioner, with the interplay between technical expertise and common sense, or, as an academic, with the tension between specialized knowledge and dilettantism.

So it was that Larry Kramer, dean of Stanford Law School, in Boston last week meeting with small groups of  Kramer_larryalumni, caught my attention.  Usually, I'm in those meetings as a target (cha-ching), but when Larry claimed that Stanford might well be undertaking the most significant change in legal education since Langdell, I was interested more as a legal educator.  Stanford's changes are not new news; they began well before the financial crisis and its domino effects on the businesses of law and law schools. It's one thing to say you are going to fiddle with the curriculum; it's another to say one school's change is important enough to, as they say, shift the paradigm across all of legal education (as Langdell's case method did).  That hit me where I live now, particularly after digging into the rationale for the change, which has everything to do with lawyers going beyond doctrine, or even pure legal judgments, and engaging in the interdisciplinary judgments that occur any time they interact with clients. 

For the micro view, see my paper, The Venn Diagram of Business Lawyering Judgments:  Toward a Theory of Practical Metadisciplinarity (forthcoming, Seton Hall Law Review, 2011, also to be presented at the Law & Society meeting later this month).  Below the fold, however,I want to raise some questions on the macro issue:  what cascading institutional changes in legal education, if any, this portends.

There is a fair amount of public material on this:  the 2006 press release, "Larry Kramer Wants a Revolution in Legal Education" from the Wall Street Journal Law Blog, as well as a much more recent memorandum Larry's assistant sent me the other day, which I've reproduced below the fold.  I can, however, summarize this in just a few bullet points:

1.  The first year of law school largely works, and that will continue largely unchanged.
2.  The second and third years of law school largely don't work.
3.  The law school will be a portal to the university in the second and third years, giving students tremendous flexibility in designing course and clinical packages that take advantage of ALL of the university's graduate and professional programs.  This isn't just more joint degree programs (but many are available), but the opportunity to make the education underlying even the J.D. as interdisciplinary as the student wants.  The educational impetus is that it's no longer true that a lawyer can obtain the skills he or she needs to succeed merely by studying legal doctrine with law professors and other law students.
4.  All students will get an opportunity to spend at least one quarter in a full time clinical experience - with no competing classes or projects.

I don't think one can fairly compare Stanford's resources with all law schools, and I don't mean to, but I did start thinking about this vision of legal education, and how schools from the top to the bottom of the surveys and rankings mights be affected. The "beauty" of the Langdell model for years and years was that a law school education didn't look fundamentally different within the four walls of any law school you chose to visit.  When a law school paints a very different picture to its incoming students - "we are going to put the full power of the university to work on your education in a meaningful way" - that seems like it begins to separate the field.   For example:

- Size matters . . . when you are committing to give every student a full quarter's worth of full time clinical experience. Stanford has 160 students per class; some of the top-ranked schools (e.g., Harvard, Michigan, and Georgetown have three or four times as many).  Can the big schools make the same experience available?

- Resources matter . . .  while free-standing law schools could certainly work to replicate university-like resources, that isn't going to be easy.

- Location matters . . . when you are offering opportunities, as Stanford's materials mention, "within walking distance" of the law school.   How will schools like Northwestern, Georgetown, Fordham, BC, etc., where the schools are physically removed from the main campus, react?

- Students matter . . . when you are worried about things like your bar passage rate and you migrate away from the traditionally required upper level doctrinal subjects, like evidence or business associations. 

- Reputations matter . . . Larry told me about a program in which Stanford law students will be working cooperatively with a major corporation in which law students fill a particular need.  Will every school be able to make that opportunity available?

Let's assume that the Stanford model indeed is the most significant change to legal education since Langdell, or, at the very least, it's a game-changing marketing plan.  Here are some of my questions.

    - Is it an elite school phenomenon?  (That was the view of one of my colleagues.)

- How does it measure up against other changes to the paradigm, like Northwestern's two-year plan?

- How will the "aspire to be elite schools" react?

    - How will the lower "first tiers" react?

- What will the effect on independent schools be?

   - What adaptations will result in the third and fourth tiers? 

- Will there be consolidation?

Here's the memo from Larry's assistant:

Stanford Law School revised its first-year curriculum decades ago (in the 1980s), and it successfully teaches students how to think like a lawyer through rigorous courses in legal reasoning and case analysis. But law students need more today than the traditional second- and third-year law school curriculum offers them. It is important for 2Ls and 3Ls to learn more legal doctrine, but it is equally important for them to learn how to think like their clients during the upper years.
 
Our curriculum changes are a response to a changing legal profession. Because business, medicine, government, education, science, and technology have all grown immensely more specialized, legal practice has had to adapt by growing more specialized. At the same time, lawyers have to practice in a globalized context--transnationally.  And, while lawyers have historically been looked upon and trained to spot problems, now lawyers are being asked to solve problems. In order to contribute to solutions, lawyers have to be able to work collaboratively as part of cross-disciplinary professional teams. They have to be able to think like their client, which means, in part, they should develop subject matter expertise in their area of practice. (e.g.  Environmental law / environmental sciences.)
 
Stanford Law School is unique in that no other law school can match the breadth of excellence we can offer students who want to study across disciplines. Stanford University ranks in the top 10 in 17 academic categories; in the top five in 16 of 17 categories; and the top three in 14 of 17 categories.  In rethinking our curriculum, we saw that our students have a lot to gain by taking courses outside the law school--among the other top ranked programs at Stanford University that afford them subject matter expertise; that teach them to work in problem-solving teams (such as taking a team who can take an engineering product to market); and that teach them to operate in a global context.
 
Accordingly, we began to revamp our revamp our second- and third-year curriculum starting in 2006:
 
We revamped our course offering, changed our academic calendar, and broadened the degree. We’re encouraging students to find their direction while in law school, helping them to choose the right courses, and connecting them with alumni who can serve as mentors in their field. (To facilitate mentoring, we built SLS Connect – a proprietary social network tool specifically for Stanford Law School alumni and students.) We’re providing real research opportunities to students through research centers, and directing their research on projects that have real-world impact (such as the Afghanistan Legal Education Project). We made a huge commitment to clinical education and have expanded our program, to enable students to do real work on the ground (including practice in international law).
 
Specific Changes:
 
We are educating students more broadly through courses outside the law school and through joint degree programs. We synchronized our academic calendar with the rest of the university, which is on quarters not semesters, so our students can take advantage of the fact that Stanford University houses top-rated graduate programs and departments all within walking distance of the law school. We now offer 27 formal joint degrees and we continue to allow students to tailor their own joint degree in practically any discipline.
 
We have developed team-oriented, problem-solving courses that are co-taught by faculty from the law school and Stanford's other top-rated schools. For example, student teams from the law, business, and engineering schools will learn how to bring an invention to market--evaluating the technology, drafting a business plan, protecting intellectual property, and managing the regulatory process.
 
We are rapidly expanding our clinical education program so that every law student is able to take a clinical course some time during their three years here that will teach him/her how to work with clients and colleagues-- and how to address the ethical dilemmas that arise in practice in the context of real-life client representation scenarios where they can be mentored by seasoned practitioners before they graduate. We are broadening the range of practice areas of our clinics, and introducing a clinical rotation, based on the medical school model--with no competing exams or courses.
 
On May 28, 2008, the law school faculty voted to adopt a grade reform proposal to change the law school’s grading system to an honors, pass, restricted credit, fail system for all semesters/quarters. The new system includes a shared norm for the proportion of honors to be awarded in both exam and paper courses. The policy became effective beginning fall 2008 starting with the class of 2010.
 
Timeline:
 
The curriculum changes have taken place over the last several years--with a formal announcement of them in November 2006 and a "joint degree expansion" announcement in May 2007 (see links below). We switched fully to the quarter system in the fall of 2009. We modified our grading system effective 2008 for the class of 2010.

Posted by Jeff Lipshaw on May 1, 2010 at 06:47 AM in Lipshaw, Teaching Law | Permalink | Comments (3) | TrackBack

Friday, April 30, 2010

It's the Most Wonderful Time of the Year - Reprise

Thanks to Dan for inviting me back for the fourth year in a row.  I'm soon going to turn my attention to REALLY SERIOUS STUFF and the kind of shameless self-promotion that comes from posting on a mega-elite Top Twelve Blog as opposed to my merely Tier 1 home blog (Legal Profession Blog:  A Member of the Law Professor Blogs Network) where I've been pontificating over the last few weeks about God's gift to securities law professors:  synthetic CDOsSEC v. Goldman Sachs, and the metaphor war in the Senate.  I am pretty sure I was the first person either in the blogosphere or the MSM to use the "bookie" metaphor and I am really happy to see others coming around.

But first, I want to reprise an old post. I wrote this song about this time last year when I saw a colleague (who will remain nameless) bouncing his way down the hallway with a disgustingly cheerful air, and what we used to refer to as a "[Senator Levin's favorite unfortunately used adjective to describe a synthetic CDO]-eating grin."  I asked him why he was so happy, and he said "it's my favorite time of the year."  Immediately, a little Andy Williams in a devil costume popped up on my shoulder, and gave me these lyrics without stopping to take a breath.  So this goes out to all the students in the 4:00 p.m. edition of Agency, Partnership, and LLC this semester who were wide awake enough to laugh at my jokes:

It's the most wonderful time of the year 
The 3Ls are cramming
And take-home examming, with 1Ls in fear.
It's the most wonderful time of the year 
It's the hap-happiest season of all
With the summer approaching and no class encroaching
At least until fall,
It's the hap- happiest season of all 

There'll be stipends for writing 
With no deans to be fighting,
And grading will all have been done. 
There'll be times of clairvoyance;
We're free from annoyance when
Faculty meetings are none.

It's the most wonderful time to stay here 
There'll be much profound thinking 
On essays we're inking 
When students steer clear 
It's the most wonderful time of the year 

There'll be federal granting 
And no colleagues ranting
In committees to which we belong
We'll be teaching in Florence
And free from abhorrence
Of everything we know is wrong.

It's the most wonderful job you can get. 
While the law firms are bleeding
And markets receding
The one thing we never forget
It's the most wonderful job
It's the most wonderful job
It's the most wonderful job you can get. 

Posted by Jeff Lipshaw on April 30, 2010 at 05:42 PM in Lipshaw | Permalink | Comments (0) | TrackBack

Saturday, August 01, 2009

IKEA Meditations

One of the charms of being able not to retire and teach is being just a little unstuck in time with respect to my professional peers.  While Dan and Wendi get ready for the bris of their little boy, I'm in Ann Arbor helping the boy through whose bris I kept my eyes tightly shut move into a new apartment as he prepares to start medical school on Monday, following his White Coat Ceremony tomorrow.  (Note to self:  why don't we do something like this for entering law students?  But what would we call it?)

I have helped him move each of the last couple of years, and the routine is always the same - rent a truck for a couple of hours, move the 500-pound bookshelf from hell, pack and unpack the boxes, wake up the next morning (as now) wondering why I went seven rounds with a welterweight boxer.  This year was slightly different, as we decided to go to IKEA to buy another bookshelf and a dresser (which we assembled late last night, and which may account for the sorry state of my lumbar this morning). 

600px-IKEA_stores.svg As I fade into blog sunset once again, I want to reflect just a minute on the IKEA experience, which I can only describe as a kind of Swedish Disney "It's a Small World", except that you get to buy the dolls at the end.  (The map, right, courtesy of Wikipedia, shows the places in the world you can find an IKEA store.) First, I couldn't understand why the place had to be halfway back to Detroit when every other self-respecting big box store has managed to find a place on the Ann Arbor outskirts.  The reason is, I think, that the place is the size of a small state itself.  Second, like being at a Disney park, you can't help think about the hours of mental energy that went into designing the layout.  You go up an escalator, like that first ascent on a roller coaster, and then go wooshing through a maze of rooms (complete with "short cuts"), looking at the displays, and writing down aisle and bin numbers.  Third, you can't escape.  It's been a long time since I was at DisneyWorld, but what I remember was how the designers kept you from actually seeing how long the line ahead of you was by snaking you back and forth until you turned a corner and realized there was a whole 'nother room of cordons and lines.  All you want to do is get to the "Raiders of the Lost Ark" warehouse with the aisles and bins to put your "some assembly required" bookshelf and dresser on a cart, and you cascade from lighting to plants, to glassware.  Fourth, the books in the office and family room displays are real, and in Swedish.  There must have been 500 copies of Jonathan Franzen's The Corrections in Swedish.  And finally, there's a cafe serving Swedish food, including something in lingonberry sauce.

All I can say is that I really was shaken up, and that was before I started assembling the dresser. 

Thanks for the month, and see you again soon (New Orleans in January?)

Posted by Jeff Lipshaw on August 1, 2009 at 06:55 AM in Lipshaw | Permalink | Comments (5) | TrackBack

Wednesday, July 29, 2009

Living Outside the Paradigms

Two different pieces got me thinking again about issues of depth and breadth, or alternatively, working in the spaces between disciplines.  (I'm loath to call it either inter-disciplinary or cross-disciplinary, because, to some extent, those terms already tinge the meta-thinking about it.)  I was explaining this yesterday to my father-in-law, who is visiting us here in Michigan.  He's a really bright guy (a lawyer), and loves ideas, but he's not a scholar by any means, and so I'm obliged to use plain English.  It went like this.  If you are constructing a thesis that borrows from many disciplines, how much of an expert in each discipline do you need to be?  Moreover, if it's really original work, who is going to be able to judge whether the work constructively pushes the inquiry along, or is simply bullshit?*  In other words, if you are going to write in law and phrenology, do you have to have the equivalent of a professional certification (whatever that is) in both disciplines?  And if you do, have you been sufficiently co-opted by both disciplines so as to kill off whatever inclination you may have had to do "out of the box" thinking?  That's the dilemma, and I don't think it's any more resolvable by way of a silver bullet than most other long-standing irresolvable debates (like "Tastes Great" or "Less Filling").

At the recommendation of frequent commenter, A.J. Sutter, I recently started a book by Hamline University philosopher of science, Stephen Kellert, entitled Borrowed Knowledge:  Chaos Theory and the Challenge of Learning Across Disciplines.  At the same time, Brian Leiter linked the other day to my friend Rob Kar's recent review (in the Notre Dame Philosophical Reviews) of Brian's Naturalizing 9780226429786 Jurisprudence.  The fun in reading something like Brian's work, or Rob's review of it, is the deep dive into a long-standing dialogue; in this case, the jurisprudential debates over the last century or so over the possibility of explaining, philosophically, scientifically, sociologically, or psychologically, how judges go about making law, and more fundamentally, what law is.  Nevertheless, if your intuition happens to be that looking at what judges do is like looking backwards through a telescope (i.e., not wrong, but focused on a very particular instance of how humans manage to order their affairs in the whole scheme of life, law, norms, and business), then you keep bouncing out of it with something of a "so what?"  The "so what?" is likely the reaction of most normal people to most of what philosophers, historians, literary critics, and other sojourners in the humanities do anyway, but I'm a lawyer-practitioner who somehow plopped into the academy, for God's sake, and like Guy Noir, trying to find answers to life's persistent questions.  I thus feel compelled to figure out what might bridge us from the relatively pure jurisprudence of a Leiter or Hart or Raz to what I spent more than a quarter century doing in the real world, which was legal work, but most of the time not involving judges.

More below the fold on the opposite of the deep dive - borrowing from one field to another.

A couple of years ago, I got hung up on Gödel's Theorem, which is one of the groundbreaking instances of pure thought in the last century.  For the uninitiated, Bertrand Russell and Alfred North Whitehead purported to reduce all of mathematics to a set of foundational axioms and rules of inference, focusing primarily on sets and numbers (cardinal, ordinal, real).  Kurt Gödel, a member of the Vienna Circle, constructed a lengthy proof, the purpose of which was to show that any complete complex system of formal logic, like arithmetic (particularly as encapsuled by Whitehead & North's Principia Mathematica), contained propositions that were formally undecidable within the system (i.e., that they could not be proved either true or false using the axioms and rules of inference).  In other words, the system could be either wholly consistent or complete, but not both.  The proof method involves a formal version of the Liar's Paradox, in which the following phrase translates into numbers:  "[Is not provable] is not provable."  In other words,  we get to the point where the system loops on itself, and tells us in formal terms, that the  proposition "is not provable" we've postulated within the system, and then working only from the system's basic axioms and rules of inference, and thus appearing to be provable, is not provable.  That's what makes it a theorem.

This is a mind-bending thing to contemplate, and Douglas Hofstadter's Gödel, Escher, Bach is perhaps the most famous attempt to derive metaphors from it.  But is it an effective metaphor for reducibility or limitations on knowledge, or other epistemological or metaphysical insights?  Gödel himself, like many mathematicians, was something of a Platonist. 

When I was fiddling around with this (and there's a lot of fiddling in this area - do a Lexis or Westlaw search in law reviews on "Gödel"), Larry Solum, ever wise, voiced the cautionary message:  the formal logicians are very skeptical of attempts to extend metaphors from formal logic into other areas.  But are the logicians entitled to define the extension of the metaphor?  That's what Kellert's book is about, but more generally as to all disciplines (including a discussion of the question "what's a good metaphor?").  In particular, he looks at metaphors to chaos theory, something HE knows about, in economics, law, and literature.

Well, I'm just diving into this, so more to come later.

* I may have a special interest in this.  I have a book proposal under review with a major university press.  The following comment from one of the anonymous reviewers is one that I kind of cherish:  "It is clear the author has a special range of interest and expertise, and this book weaves the author’s unique range of interests together with purpose.  The problem is that not many people share the author’s range of interests."

Posted by Jeff Lipshaw on July 29, 2009 at 10:04 AM in Deliberation and voices, Legal Theory, Lipshaw | Permalink | Comments (6) | TrackBack

Tuesday, July 21, 2009

The Shoes

I have not had much time (really much energy) to post from Budapest - last week it was in the low 90s, and Shoes teaching two hours a day in the heat of the afternoon just about did me in.  My wife, Alene, was traveling separately in Italy and we met in Vienna over the weekend. 

This has nothing to do with law professoring or teaching.  It's also more of a downer than I mean to convey generally about Budapest, which, other than the heat, has been just fine.  This is, however, the kind of thing one runs into in Europe from time to time.

Walking home from dinner we saw one of the most moving Holocaust memorials I can recall, which somebody described to Alene this morning (the grandmother of the young woman who described the event had survived it).  In 1944-45, Hungarian Jews were lined up on the wall of the Danube and pushed or jumped or shot to their death in the river below, but only after being ordered to remove their shoes, which had value to the Nazis.  The picture at left is of the memorial created in 2004.

Budapest has one of the largest Jewish communities in Europe to have survived the occupation.  While most of the Jews in Hungary outside of Budapest were deported to Auschwitz, the ghetto in Budapest was not exterminated (akin to Cracow or Warsaw) because the Germans simply did not have enough time.  This was because the actual time of occupation was relatively short (the year before the end of the war, Hungary having been an Axis country).  Hence it was one of the few ghettos to have been liberated by the advancing Red Army.

Along the same lines, when I worked for AlliedSignal, the headquarters of the Bendix business, which had been in France since the 1920s, was in the Paris suburb of Drancy, which is near Le Bourget Airport.  Drancy had two claims to fame.  First, it was the home of ardent French communists (our facility was on the Rue de Stalingrad).  Second, it was the site of the deportation center for French Jews rounded up by the Nazis.

Posted by Jeff Lipshaw on July 21, 2009 at 06:20 AM in Lipshaw | Permalink | Comments (1) | TrackBack

Thursday, July 02, 2009

Complexity, Judgment, and the Subprime Crisis - The Hedgehog's View

At the end of April, Dave Hoffman and two of his colleagues at Temple, Jonathan Lipson and Peter Huang, organized a fascinating day-long colloquium on issues of complexity arising in the current financial crisis.  Among other presentations, Barry Schwartz from Swarthmore gave a talk on "the paradox of choice" (i.e., more choice, or more complex choice, doesn't necessarily make consumers happier), and Joe Grundfest gave a luncheon keynote.  One of the questions that kept occurring to me was the context of the complexity issue - what exactly were we trying to fix, if anything?  My analogy was this:  if law is a "science," and something about the financial crisis (whether complexity or something else) reflects a 180px-Igel01 disease, then what is the relationship between what we know about the disease and the regulatory medicine we would want to prescribe?  I liken financial boom-and-bust to bipolar disorder - is there a regulatory equivalent of lithium that we are assured will tamp down the peaks and valleys?  And even if there is, do we want to prescribe it?  Maybe we like the booms enough to bear the busts!  To keep the analogy going, there's a good chance Tchaikovsky and Van Gogh were bipolar - would we have their art if they had been medicated?

More on the hedgehog below the fold.

One of my most treasured Suffolk colleagues has suggested that I am a hedgehog, in the sense of the Greek saying (appropriated by Isaiah Berlin) that the fox has many clever ideas, but the hedgehog has one big one.  My big one (such as it is) is placing the canard "thinking like a lawyer" into the broader category of how people make sense of the world.  (This comes, I think, from spending so much of my professional life as a lawyer not surrounded by other lawyers.)  Nothing provokes this kind of reflection like great calamities, whether they are oceanic or financial tsunamis.  In a nutshell, the question is how we assess what happened against two very different kinds of "oughts":  (a) the normative "ought" of our sense of the way a just world should work, and (b) the descriptive "ought" that a scientist imagines when she comes up with a hypothesis of explanation that has yet to be borne out by experiment.  My working thesis is that thinking like a lawyer - somewhere between advocacy and truth-seeking - gets this all jumbled up.  What lawyers do mostly is look backwards and assess cause-and-effect in a particular way, and make implicit (and not necessary correct) assumptions about predicting the future from what happened in the past.  To put it otherwise, my hedgehog concern deals with difficulties in forward-looking judgment, namely, the difference between looking backward and assessing causation as a matter of attributing blame, and understanding what is going on as a descriptive matter sufficient to make a good forward-looking decision in real time under conditions of significant uncertainty. 

The result (how I spent my summer vacation) is The Epistemology of the Financial Crisis:  Complexity, Causation, Law, and Judgment, in which I've argued this is mostly an epistemological crisis - a crisis of faith in science and algorithm as against the ongoing irreducibility of judgment, whether our own or those to whom we delegate it.  In short, it's scary when we thought we had it nailed, and it turns out we don't know what we don't know.  (I apologize for the use of the word "epistemology" but I like it, despite the warning of a good friend that it's a signal of a high "crap factor.")  There's a little something for theorists of all kinds in there, including a critique of Michael Moore's new book Causation and Responsibility (the first extended treatment of causation in the law since Hart and Honore), Adrian Vermeule's Judging Under Uncertainty, and Richard Posner's A Failure of Capitalism

Posted by Jeff Lipshaw on July 2, 2009 at 07:51 AM in Article Spotlight, Corporate, Current Affairs, Legal Theory, Lipshaw | Permalink | Comments (4) | TrackBack

Wednesday, July 01, 2009

The Vacuous Private Law of Homeowners' Associations (Below the Fold) After Vacuous Reflections About My Vacuous Life

Here we are, back for the fourth summer stint on PrawfsBlawg.  It's hard to believe, when Dan first invited me to do this, in July, 2006, I was an outsider to the legal academy looking in (per Bob Uecker, "gosh, they're having fun in there.")  Also, Twitter was unknown.  Twitter has done a lot to focus my blogging, because, call me an old whatever, but I can't believe anybody gives two hoots about the mundane details of my life, whether by blog entry or tweet, something I wasn't considering back in 2006 while in a New Orleans carwash watching what looked like melted rainbow sherbet ooze all over my carSteve Bainbridge seems to be able to get away with food and wine, but he seems to know what he's talking about.  I try to maintain a connection to something legal (or, if not legal, funny). 

If I were inclined to vacuous reflections about life, however, I would extol the pleasures of not of litigating, but of home brewing beer, a subject touched upon in these parts recently.  My son, Matthew, and I are on our  third batch of the summer, having invested $100 in the basic tools of the trade.  Our first 43 bottles were an Irish stout recipe, which we named "Max and Annie's Jewish Stout," after our two dogs.  We've since moved on to "Max and Annie's Michigan Porcupine Pale Ale" (a Sierra Nevada Pale Ale recipe), and "Charlevoix Steam Beer," which is presently fermenting in the crawl space where it is cool.  Our plan is to lay down a carboy full of mead for a full year in a few weeks.  This is a stretch but the legal connection is that I can't post the labels, because I am positive at least the second two violate a whole raft of copyright and trademark rights.

But enough of me.  Let's go below the fold where YOU can hear me whine about the governance of homeowner's associations.

We spend the summers in Charlevoix, Michigan, where we bought a lot sixteen years ago, and built a house twelve years ago.  In Michigan, there is something called a "site condominium," which is basically another way of imposing regulations in a subdivision of free-standing homes, and that's what we have.  There are thirty-six lots, and common elements, which consist of two roads and landscaping, and a beach lot with a removable "Brock Dock" through which residents not on the lakeshore itself have access to the lake.  You own your own lot and house in fee simple absolute, but the lot is established pursuant to a master condominium deed, which contains the property rules, and which incorporates a set of recorded bylaws, which establish the five-person Board of Directors (classified board - two and three seat classes, elected for two years) and the architectual review board, empower the collection of assessments for the maintenance of the common elements, and set use restrictions such as no short-term leasing, no open garage doors, and no boats, trailers, RVs, etc. left in the driveways.

If you want to experience the thrills of corporate governance in a microcosm, do as I have done and be a member of the condominium association Board of Directors for going on fifteen years.  I would have resigned long ago, except that nobody is as anal about the record-keeping as I am, and so I've been the secretary (and now webmaster) for all these years.  The lesson I take from the experience, as a legal theorist, is the tenuous (vacuous?) relationship among (a) the actual private law of the association as reflected in its governing documents, (b) what people think their actual rights are, and (c) how, when it comes to asserting and defending one's interests as between the law and the lore (or custom), a foolish consistency is the hobgoblin of little minds (see Prawfs guest blogger Brian Tamanaha on Law as a Means to an End).   Take, for example, a matter of no small interest:  the ability to see the lake from your living room if you have a house that is not on the lakeshore.  There are local zoning rules that define setbacks, as well as an architectural review board within the condominium association, but it has been almost impossible to restrain the lakeshore residents from building setback to setback (i.e., very large homes on relatively small lots), so that the space between the houses is a mere sixty feet, filled with fast growing (and kind of ugly) white pines that the original developer planted at the lot lines to keep the place from looking like a landing strip.  But there is no legal right anywhere in the documentation that says you have a property right in your view of the lake.  The only way to control this is through community controls on landscaping (which doesn't help with the stuff that was here before) or an appreciation of the Prisoner's Dilemma we find ourselves living in, and the ensuing need to cooperate.  Nevertheless, I find myself educating a neighbor every year on the fact that there is no legal right to a "view corridor" as it has come to be known.  If there were, I would have already done something about the forest of scrubby white pines that block my view.

Then there is the question of the separation of ownership and management.  We just issued a rule to the effect that there were to be no permanent firepits built on the beach.  You can have fires, but you have to use a portable firepit (they exist), which means that you clean up after yourself, and there's no lingering hot embers for a kid to fall into.  My publication of this rule prompted the following "Berle and Means" response from a neighbor (otherwise, a very nice person - beware the pitfalls of the inference one draws from e-mail):  "Does the board act and make rules based on the good of the people that live here?"  

Well, I could go on, but there is shameless self-promotion yet to be written.

Posted by Jeff Lipshaw on July 1, 2009 at 11:19 AM in Corporate, Legal Theory, Lipshaw, Property | Permalink | Comments (5) | TrackBack

Saturday, June 28, 2008

A Theory: Under-Theorization is the Key to the Heretofore Under-Theorized Academia-Practice Divide

Two people whose blog posts and comments I almost always enjoy seemed to disagree about something over at Concurring Opinions.  I think it is an interesting point of entry into why academic and practicing lawyers are often ships passing in the night.  Academics use the term "under-theorized" all the time; I never heard the term in twenty-six years of practice.  This simple point has been heretofore under-theorized.  I'm going to step into the breach with the following theory about under-theorization:  Academics are reductive (indeed, in some cases, radically reductive) theorists; practicing lawyers are not.  Academics seek to theorize - i.e. to provide causal explanation of social events in time and place - in a reductivist way.  The social world is too diverse for highly reductivist theory without specialization; practicing lawyers, on the other hand, have theories too, but the causal explanation is at a level academics would call under-theorized.   

Here's what triggered this.  In his post, Deven Desai extolled the value of summer reading for academics, but added "[o]ne last note to non-academics and students: although practice may seem isolated from outside reading, I found that the best attorneys I knew read voraciously about their area of the law and about how to excel in writing or oral argument."  A thoughtful and frequent commenter from the real world of practice, A.J. Sutter (why doesn't somebody ask him to guest blog?) begged to differ:

Drilling down and reading voraciously about your area of law can actually be counterproductive. If you're doing transactions, a sensitivity to the nuances of drafting is certainly essential, but a highly detailed knowledge about case law may get you focused too much on pathologies, rather than usual practice. Moreover, it isn't so difficult for a client to find someone who knows a lot about a particular area of law.

What a client cares about is finding someone who understands his or her BUSINESS. The client also cares about finding someone with whom he or she can have personal rapport. (Lest you think corporate clients are "it"s, you will always be dealing with flesh-and-blood human beings, and usually with one key decision-maker, such as a GC or other in-house lawyer if the company is big.)

It so happens that something that I'm reading this summer helps theorize about both views and is the basis of my thesis above.  More on Thomas Haskell's The Emergence of Professional Social Science, after the jump!

Haskell sets modern professional social science, as a subset of modern professionalism generally, in context by studying the rise and fall of the American Social Science Association, the forerunner of modern disciplinary associations like the American Historical Association and the American Economic Association.

Here is my poor attempt to restate his thesis, in a nutshell.  Each of us has a sense (perhaps naive) that we are free and volitional agents, largely able to determine for ourselves the course of our lives; we have, in Haskell's words, "causal potency."  Moreover, until the late 1700s and early 1800s, little about the organization of society undercut the soundness of that belief.  Individuals lived in dispersed and independent communities (by and large), and the cause of things - in the sense of reasoned explanation that made sense of the world, and to the extent educated people thought about these things - was proximate, either in oneself, in one's local community, or in a personal God that determined otherwise inexplicable events. 

Beginning in the 1800s, as the Industrial Revolution and urbanization took effect, educated people (not just academics) came to believe that such explanation required understanding the impact on individuals and local communities of remote causes, in short, cause and effect in an increasingly interdependent world.  With increasing interdependence came increasing specialization - the rise of professions.  The transitional model was the ASSA, a group largely of New England social inquirers, general social philosophers as it were, who themselves were overwhelmed by the next generation of truly professional social scientists.

What Haskell argues is that there is a connection between the rise of societal interdependence and the contemporaneous ceding to professionals (by educated people generally) of the task of causal attribution between events in the world.  My take on Haskell is that he not only makes sense, but that we've not mastered the theory of theorization in more than one hundred years since Charles Peirce, William James, and John Dewey thought about it. 

Haskell says social science is a search for the independent variables of explanatory cause somewhere between the "causal potency" of the individual and First Causes like God:

To engage in inquiry is to search for genuine causation, to shear away merely secondary influences and necessary conditions so as to isolate those factors which, within a given frame of reference, can be regarded as self-acting, causal entities - "independent variables"  As causes recede and as growing interdependence introduces more and more contingency into each chain of causation, the realm of inquiry must expand and the conditions of satisfying explanation must change.  Common sense fails and the claim of expertise gains plausibility.  Explanation itself becomes a matter of  special significance, because the explainer promises to put his audience back in touch with the most vital elements of a receding and increasingly elusive reality.

And when does the pursuit of this chain of causation end?  It's a troubling issue.  Haskell relates that  Herbert Spencer learned as a child to question every cause and "as an adult took to his bed and wore earmuffs to prevent overstimulation of his senses."

There's a kind of Rule of Recognition problem going on here.  In a specialized, professional world, how do you recognize expertise?  Haskell's historical account says professional organizations arose in order to achieve a community of expertise.  For ordinary lay people, lawyers are a prime example of such a professional guild, but modern philosophers and historians and economists and sociologists have their self-certifying guilds as well.  Those particular protocols surfaced, for example, in the form of peer review for publishing and tenure review for advancement.

What strikes me about the current state of legal academia - particularly the debates over interdisciplinary work - is how it resembles the 1890s, in terms of the contrast between the old "gentlemen social inquirers" and the new professional social scientists.   Academic lawyers merely skimming the surface of specialties appear to their more specialized brethren as dilettantes, particularly as the specialists dig deeper and deeper into reductivist explanation.  I speculate (theorize?) that philosophical (Susan Neiman?) or economic (Steven Levitt or Paul Krugman?) or historical (David McCullough or Doris Kearns Goodwin?) public intellectuals are the closest equivalent to practicing lawyers in trying to operate at a level of explanation above the technical, and as such operate either outside or at the very boundaries of the community of academic professionals in those areas.

Lawyers are different, in the sense that there is a vaster layer of the discipline that interacts on a daily basis with the lay community, and must necessarily "theorize" or explain cause and effect that the more specialized and reductive members of the discipline reject as unsatisfying.  The analogy from another Haskell work, Objectivity is Not Neutrality, is apt.  Suppose a legal issue involves why some pipes froze in Duluth and caused extensive damage to a building.  Expert testimony on the physics of water molecules and how the expansion causes by crystallization would burst the pipes would be impertinent, because it operates at the wrong level of explanation.  The pipes burst because the superintendent of the building forgot to turn the heat on!

So now we understand the Deven-A.J. dialogue a little better.  Deven is rightly suggesting what a law professor should suggest:  drill down, learn the details, find the underlying causes, and then the causes of those causes.   A.J. is rightly responding in so many words:  that's not the level of explanation - of causal attribution - that operates between practicing lawyers and their clients (nor, would I add, between most practicing litigators and either judges or juries).

The open question is whether the specialized, professional, reductivist explanation is the better one.  My answer is:  it depends what you are trying to explain.  For a critique of an attempt to use economic theory to explain contract interpretation, see my Models and Games:  The Difference Between Explanation and Understanding for Lawyers and Ethicists, forthcoming this fall in the Cleveland State Law Review, at pp. 29-43. 

Indeed, even old practitioners can get co-opted.  My friend Bill Henderson understandably took me to task in good ol' plain English a couple weeks ago for an unduly specialized explanation of classroom deportment in my syllabus:  "what the hell are you talking about? All those years of practice, and you obscure a simple issue with Kant and Posner."  He (and other commenters) were right, and I dropped it from the syllabus.

Posted by Jeff Lipshaw on June 28, 2008 at 11:04 AM in Lipshaw | Permalink | Comments (1) | TrackBack

Monday, July 30, 2007

The New Formalism Panel

It was a treat merely to be on a roundtable panel with Larry Solum, Randy Barnett, Ekow Yankah, and our moderator, Dennis Patterson, as I've mentioned, to discuss the new formalism.

Larry kicked off with a short summary of what the new formalism was and was not.  Randy followed with a discussion why he began as a contextualist, and, like Jack Balkin, had come to view himself as adopting a "new formalism" (though he was careful to state that it was not how he defined himself - I paraphrase roughly "I don't think I've ever though of myself as 'a new formalist'").  I followed with a discussion of the neo-formalism that Schwartz and Scott adopted in the private law of business contract interpretation, and Ekow closed the panelists' short summaries with a critique of formalism as giving undue weight to the written text, particularly in view of segments of society who may have no ability to influence the drafting of the text.  We then proceed to about an hour of vigorous discussion in which the not-overwhelming-but-not-too-shabby-for-a-panel-in-the-second -to-last-time-slot-on-the-last-day audience participated, moderated pugnaciously by Dennis Patterson.

This was constitutional high theory at its finest, and nobody asked a question or made a comment about textualism or contextualism in contract law.  In fact, about five minutes into the questions, I passed Larry a note saying I would give him $100 if there were a question about my segment, and I never once even came close to worrying about taking out my wallet.

Hmm.  If somebody had, was my promise to Larry enforceable?

Anyway, I've decided to post a redacted form of my comments below the fold.

Here are the comments:

My jumping off point about new formalism is a comment Larry Solum made in the earlier session on Brian Tamanaha’s Law as Means to an End.

We grapple with an antinomy between a sense of permanence or immanence or determinacy in the legal rules by which our social relationships are regulated or constituted, on one hand, and our manipulation of those rules to achieve individual purposes on the other – in a word, instrumentalism. 

In its broadest jurisprudential articulation, this immanence shows up as “justice” or “the rule of law.” The intellectual history of formalism is well-known – the systematic, self-contained, scientific, axiomatic, purportedly deductive textualism of Langdell and Williston gives rise to realism, and its contrasting contextualism.   I think Willistonian formalism in contract law was intended to achieve an immanent norm – that being what my European sociology friends would call juridical justice, or the treatment of like cases alike.   And a student of Luhmann would note the systemic paradox.   Each opposing parties within the system argues to the adjudicator that its view, and its view alone, serves the interest of justice, here being consistency with prior case law.   It is like each side in a football game, or in war, invoking God on its side.

So we would begin by noting the strong explanatory power of realism or contextualism.   Private law does NOT pose the antinomy of an immanent normative order with instrumentalism toward our individual purposes, because in the ex post resolution of conflict between private parties, all is instrumental.   The issue is merely whether we will be textual or contextual in our instrumentalism.

But there is a new formalism proposed for contract law, and my claim is that it is really a sign of the persistence of teleology, of the imputation of purposiveness in nature and in the analysis of social systems. In their 2003 Yale Law Journal article "Contract Theory and the Limits of Contract Law,” Alan Schwartz and Robert Scott made the argument, at least for business contracts, that business parties would choose Willistonian formalism over UCC-style contextualism as the mode of contract interpretation.   The argument builds from the usual normative assumption that society is better off with legal rules that maximize efficiency in economic terms – all other things being equal (and they always are), more surplus is better than less surplus, regardless how the parties divide it up.   In the long run, interpretive mistakes even out, using plain meaning is cheaper, so parties would prefer plain meaning interpretation on the assumption that courts get it right most of the time. This move is not surprising, given its grounding in the social science of economics, and the aspiration of social science to uncover and explain causal relationships in social science with rigor analogous to that found in the physical sciences. 

But it seems to me we have the old antinomy now in a different expression, and once again it arises from the opposition of subjective interest and objective norms.   For in Schwartz and Scott, there are objective norms.   The key conflation of the subjective and the objective occurs quickly, implicitly, and effectively because it makes the fundamental assumption that “there is a correct answer” – this being the mutual intention of the parties and it is the court’s obligation to find it.   And I suggest “the mutual intention of the parties” is to contract law what “the rule of law” or “justice” is to law generally.    Say that to a contract lawyer, we nod our heads “uh huh,” and move on.    Schwartz and Scott assume that the parties' interest is in maximizing total surplus from the transaction which they will then divide by setting the price.   Setting the price is just "strategic behavior" and merits no discussion.  I have negotiated lots of deals, and I can't remember ever thinking about total surplus at all, much less first.   But if I had a choice between a smaller total surplus and grabbing more (in absolute terms) of a smaller surplus, I know where I would go.

It seems to me the world works from the first-person not the third-person perspective.    Only economists and lawyers think they can step out of themselves and see the world objectively, and folk wisdom ("the lawyer who represents herself has a fool for a client") suggests that it is a mistake even for lawyers.

I propose a different antinomy, not formalism versus instrumentalism, but in some borrowed terms, between aboutness and thingness.    I go back to my earlier characterization of “the rules by which our social relationships are regulated or constituted” and offer these comments and questions:

• Instead of focusing merely on rule-following (Fred Schauer’s work), we focus on the distinction between aboutness and thingness of regulative and constitutive rules.

• We ask, on one hand, whether the contract is a reflection or shadow of the transaction, a regulation of the transaction; in short, about the transaction.

• We ask, on the other hand, whether the contract is constitutive of the transaction.  Is the contract a thing in itself?

• And now we call upon a distinction in debates over the philosophy of social science – that being causal explanation versus understanding, or the exercise of hermeneutics.

• We can uncover and explain things.  This bespeaks:

      - Casual explanations
      - Algorithmic functions
      - Mathematical models
      - Laws (of nature, not the sovereign)

Whether you are a Langdellian scientist or a practitioner of the dismal science, it is hardly a leap to attribute thingness in your role as an objective third party observer of the object of study.

And things inhere in the order of nature.    It is the teleology that underlies science.   But it is not a given that the application of scientific method to ourselves works, any more than the ascription of surplus maximizing in individual cases, simply because overall it is a useful model in the aggregate. We are subjects within a system, considering ourselves.  And the alternative view of social science is not that we look for causal laws, but that we understand or make sense of our place in the world.   This is “hermeneutics.”  I contend this is what the parties are doing when they make the contract – they understand, they make sense – the contract is about their relationship.    The purposes are those of the parties, and may or may not align to form an immanent “mutual intention.”  The objectivity inherent in ex post litigation yields thingness, formalism, purposiveness in the contract itself.    We search for that immanent “correct answer” of mutual intention, even though, as I have written, mutual intention is most often an illusion.

I conclude by noting Tom Grey’s ultimate conclusion about “the new formalism”:    it is far more pragmatic than its most strident proponents would let on.    I contend that Judge Posner, a theorist who nevertheless must decide cases, foregoes contracts as things in favor of a common sense pragmatism (whether or not it is well-informed) that is ultimately hermeneutic and not scientific.  Why?    Perhaps because the nature of an antinomy is that it cannot be resolved.

Posted by Jeff Lipshaw on July 30, 2007 at 07:00 AM in Constitutional thoughts, Deliberation and voices, Lipshaw | Permalink | Comments (1) | TrackBack

Friday, July 27, 2007

Homeless

There is a multi-session program on Niklas Luhmann taking place here in Berlin during the Law & Society meeting.  Yesterday afternoon I attended a roundtable that was one of the later segments.   Glancing around the room, surreptitiously checking out name tags, and listening to accents during the Q&A, it was pretty clear I was one of the few Americans, if not the only one, in the room.

Here's some half-assed speculation on intellectual history.  Over the last hundred years, Dewey, Holmes, pragmatism, legal realism, critical legal studies, and law and economics sucked all the air out of the room, so to speak, when it came to reacting to a rationalist or quasi-rationalist foundationalism on our side of the Atlantic.  Luhmann is also a reaction to rationalism, but with a distinctly European acceptance of paradox.  Which raises the question:  if you are an American and somewhat obsessed by paradox in all its forms, are you homeless?

More below the fold.

First, a plug for the presenters, Hans-Georg Moeller, author of Luhmann Explained:  From Soul to Systems, and Michael King and Chris Thornhill, co-authors of Niklas Luhmann's Theory of Politics and Law.

Michael's contribution to the roundtable was subtitled "Why Academic Lawyers Shouldn't Read Luhmann," which was understandable after Hans-Georg's discussion of Luhmann's take on the fundamental paradox of justice.  Justice is a "contingency formula."  What that means is that within a system like law, justice serves as a foundational value, even though justice is incapable of directing a particular legal result in any particular case.  From outside the system, an observer would say that justice is in fact highly contingent, but the internal system would collapse if the actors came to believe that it was not.  This is in fact another way of looking at the antinomy of formalism and instrumentalism Larry Solum highlighted in an earlier session on Brian Tamanaha's Law as Means to an End.  Or, as I suggested in a comment at the end of the Luhmann session, the paradox in real world litigation is that each party invokes justice as argument in service of instrumental goals, as though God could really be on each side in a football game (or a war).  Within the autopoietic (or closed or self-referential) system of law, justice appears as consistency among like cases, not necessarily congruence with fundamental human, moral, or religious values.

So, says Michael, Luhmann is anathema to academic lawyers of all stripes.  To those focusing purely on doctrine, Luhmann would be saying:  "Your search for consistency within the system is ultimately futile.  You believe you can operate within the system to improve it, but that is merely an illusion required to allow your system to continue qua system.  All you are really doing is restating the foundational principle of justice (or whatever) in another way."  To the "morality police" concerned with assuring that legal justice equates with moral justice, the connection (in the traditional of legal positivism) does not exist.  What you see are fundamental is a contingency formula by which what you think is fixed is really contingent.  And to "law and..." scholars who believe they stand outside the system and assess it objectively, you may not recognize the paradoxical nature of your own position.

To return to Larry's articulation of the formalism-instrumentalism antinomy, were I a Luhmannite (and perhaps I am), I would interpret this last in the following way.  We encounter the paradox as an empirical matter.  As legal philosophers who have become conscious of the paradox, we have three choices.  One, we can engage the paradox even if it is incapable of resolution.  (This is what I think Luhmann does.  And that appeals to my Kantian proclivities).  Two, we can make the conscious decision to ignore the metaphysics of the paradox.  That means we are either pragmatists or virtue theorists.  Or three, we can try to resolve the paradox by adopting some form of normative or theoretical foundation with which law must accord (and here, ironically, we can place Charles Fried on contract as promise, law and economics generally, and Dworkin).  Or we can take some combination of the three (for example, Richard Posner, who combines choices two and three).

But, I wonder, is someone operating in the American intellectual tradition, but who opts for choice one, homeless?

Posted by Jeff Lipshaw on July 27, 2007 at 10:22 AM in Deliberation and voices, Legal Theory, Lipshaw | Permalink | Comments (2) | TrackBack

Tuesday, July 24, 2007

On to Berlin

I am sitting in the gate area in Schipol Airport in Amsterdam, waiting for my connection to Berlin for the Law & Society Association Annual Meeting.  If one can acquire intellectual gravitas by association with fellow panel members, I am going to have a big day on Saturday, when I sit on a roundtable on "The New Formalism" with Larry Solum, Randy Barnett, Dennis Patterson, and Ekow Yankah.

On the topic of formalism in my little corner of the world, I am re-reading "Contract Theory and the Limits of Contract Law" (113 Yale L.J. 541) by Alan Schwartz and Robert Scott, in which they make the argument, at least for business contracts, that business parties would choose Willistonian formalism over UCC-style contextualism as the mode of contract interpretation.  I have written before about the implications of trying to step out of the first person mode of entering into a contract to adjudge its meaning from a third party objective perspective.  I know I will have more to say about this, particularly as to law and economics, in terms of the move from explanation of causal relationships in physical science to the far muddier task of social science to the ascription of motives in individual cases. 

But for the time being I am pondering what seems to me an unwarranted (and key) assumption in the middle of the article that, it seems to me, falls victim to this first-person versus third-person problem.  As is often the case, Schwartz and Scott assume that the parties' interest is in maximizing total surplus from the transaction which they will then divide by setting the price.  Setting the price is just "strategic behavior" and, as far as I can tell merits no discussion in the article.  I have negotiated lots of deals, and I can't remember ever thinking about total surplus first.  If I have a choice between a smaller total surplus (assuming I ever thought about it in those terms) and grabbing more (in absolute terms) of a smaller surplus, I know where I would go.  Think of it this way.  I have an asset I would be willing to sell for at least $500.  Buyer A values it for as much as $900 (a $400 surplus) and Buyer B values it for as much as $1200 (a $700 surplus).  But because of other opportunities that are more valuable, B is only willing to offer me $800, and A is willing to offer me $900.    In an economists' world of perfect information, B ought to bid up and take the deal, and I ought to know that, but it seems to me the world works from the first-person not the third-person perspective.   Only economists and lawyers think they can step out of themselves and see the world objectively, and folk wisdom ("the lawyer who represents herself has a fool for a client") suggests that it is a mistake even for lawyers.

The irony here, and it is appropriate on the eve of Law and Society, is that I agree generally with the Schwartz and Scott outcome, but not for the reasons they articulate.   I think the contract is a shadow of the deal (nod to Austin Sarat and Thomas Kearns) with only a tenuous link to any mutual intention of the parties.  Given that the outcome is likely to be random and not necessarily rational, less is more.

Well, so much for that.  On to Berlin!

Posted by Jeff Lipshaw on July 24, 2007 at 01:39 AM in Legal Theory, Lipshaw | Permalink | Comments (1) | TrackBack

Wednesday, July 18, 2007

A Really Good Analogy is Like Finding a Ten Point Match in Fingerprinting

I want to thank Jamie Colburn whose comment below  on Eric Masur (Harvard physics) contained a link to this post by Michael Dorf on analogies to physics, and inspired that clever [?] title.

There the question was whether Laurence Tribe's article using curved space was a good analogy for constitutional law issues.  And Professor Dorf called into question the power of Judith Jarvis Thomson's well-known analogy to the famous violinist mysteriously attached to one's circulatory system as a way of looking at the morality and legality of abortion.   (I read the essay in Tom Grey's jurisprudence class in the spring of 1979 and I remember thinking the analogy was powerful, but that is somewhat beside my point here.)

Professor Dorf says:

The point of an analogy is to take something fairly complicated and compare it to something simpler that the reader/listener already understands.

I am not sure if "complicated-simple" is the point of an analogy.  What is critical, it seems to me, is the pre-cognitive (abductive?) recognition of patterns  by which we say if A is sufficient similar to B, then if A leads to C, B will lead to something similar to C (call it C prime).   To make a point about analogy with an analogy, the power comes from the extent to which A matches B, like a five point or a ten point match in fingerprinting, even though it is still no more than an explanatory theory about the causal relationship between A and C, on one hand, and B and C prime, on the other.  ("Complicated-simple" seems to me to have more to do with a model than an analogy, both of which bear some resemblance to a metaphor, but that takes us into "family resemblances" among words, and I don't want to go there because there is a whole class of people who will stop reading anything that includes a reference to W............)

We sense there is something fundamentally different between social structures like the Constitution, or a corporate entity, and physical structures, like space, so it weighs against the analogy, but we see the pattern nevertheless, so the analogy still has some power.  I used to sit in board meetings in which non-lawyer board members discussed transactions, and it would drive me nuts when they would get asset sales and stock sales mixed up.  So I had this explanatory analogy.  Think of the corporation as an egg carton, and the assets as the eggs.  The rule is that you can't cut up the egg carton.  You can sell interests in the egg carton, or you can take the eggs out and sell them, but you can't cut the carton.  Then some smart-ass would say, "okay, how do you explain mergers?"  And I would respond "well, if you have two egg cartons, you can magically superimpose one upon the other and now instead of a carton that holds a dozen eggs, you have one that holds two dozen eggs, except that it still looks just like the first egg carton."  At which point somebody would say "uh, guys, can you take this off-line and let us get back to discussion of the deal?"

My intuition is that a good analogy is something like finding a ten point match in fingerprinting, but it breaks down because good analogies are not necessarily as quantitative as that analogy implies.  If your head is not spinning yet (note that is a metaphor, not an analogy), go get some more coffee and be glad you are not me trying to put this together into an article, which I was supposed to be doing instead of writing this post.

Posted by Jeff Lipshaw on July 18, 2007 at 08:44 AM in Blogging, Legal Theory, Lipshaw | Permalink | Comments (5) | TrackBack

Tuesday, July 17, 2007

Science of Creativity or Creativity of Science?

Alene gave me the article I referred to in the previous post because of the focus on pedagogy; there is also a nugget of substance that happens to coincide with something I'm working on this summer.  So blogging comes with a lot less guilt when I can use it to think out loud.

Here is another piece of the interview with Eric Masur:

On a physics exam, the student will see a diagram and they’ll classify it. Then, it’s simply a matter of putting the right numbers in the right slots and, sort of, turning a crank. But this is algebra. It is not physics. When you test the students later on the concept, they can’t explain what they’ve just done.

This saddens me. In my laboratory, we’ve made some important discoveries. Several were accidental — serendipitous. If we’d only functioned on the standard knowledge, we wouldn’t have recognized what was before us.

Q. What were these findings?

A. Here’s the biggest one: Just for the fun of it, we once put a silicon wafer into some gas we had lying around the lab. We then irradiated it with ultra-short laser pulses. What came out was a wafer as black as the blackest velvet. Until that moment, the conventional wisdom was that silicon was never black. So it certainly was possible to think of this thing as a mistake and to have tossed it away. Instead, we put it under an electron microscope where we saw that we had found a new material: 98 percent silicon, 2 percent embedded gas.

And today, we have a patent for this black silicon, which has important applications in communications and sensor technology.

Some thoughts on the relevance of this to my nascent project below the fold.

The thrust of the work, for which I have posted the present introduction as thought-piece, is to explore my sense of the "thingness" of some areas of the law, as opposed to the "aboutness" of others.  I have made up a number of words or descriptors in the past seven months to explain this - morphosity or "formness" is one; viscosity or "thickness" is another.  This is thinking out loud, so bear with me, and defer on the implications, if any, for now.

It seems to me there is a difference between law that is laid upon independent activity in a regulative way - like contract law upon transactions, for example - and law that creates systems that otherwise would not exist.  Hence, the distinction between Articles 2 and 9 of the UCC:  one is about transactions that otherwise exist, but Article 9 is a creation in and of itself.  Its rules, to use the term bandied about by philosophers, are constitutive.  That is not to say there are no regulative rules in Article 9, but they are regulative in the same way that it is regulative to outlaw clipping in football after you have determined what clipping is out of constitutive rules (thanks to Fred Schauer for that example).

So when we start to talk about a system of rules, it's hard to avoid thinking about models and metaphors, and how analogical reasoning fits into all of this.  I've just finished reading Max Black's essay on the subject ("Models and Archetypes") in his book Models and Metaphors:  Studies in Language and Philosophy.  Black proceeds through an analysis of various types of models, from the scale model to the analogue model to the mathematical model to the scientific theoretical model.  From there he proceeds to a discussion of the means by which we extend what we know (i.e. the patterns of what is known to us) by analogy to something we do not quite understand.  And here is where we return to the relevance of Professor Masur's comments.  Black says, comparing scientific theoretical models to metaphor as figure of speech:

Much the same can be said about the role of models in scientific research.  If the model were invoked after the work of abstract formulation had already been accomplished, it would be at best a convenience of exposition.  But the memorable models of science are "speculative instruments," to borrow I.A. Richards' happy title.  They, too, bring about a wedding of disparate subject, by a distinctive operation of transfer of the implications of relatively well-organized cognitive fields.  And, as with other weddings, their outcomes are unpredictable.  Use of a particular model may amount to nothing more than a strained and artificial description of a domain sufficiently known otherwise.  But it may also help us to notice what otherwise would be overlooked, to shift the relative emphasis attached to details - in short, to see new connections.

Black concludes:  "If I have so much emphasized the importance of scientific models and archetypes, it is because of a conviction that the imaginative aspects of scientific thought have in the past been too much neglected.  For science, like the humanities, like literature, is an affair of the imagination."

If we take Black and Masur together to impart some sense of mystery at the core of physics, how much more is the same implicit in the assessment of social issues, or the solving of social problems, the latter of which is category within which we teach our students a particular discipline.  But solving those problems by formal applications of rules may be to understanding human relationships what doing algebra is to understanding physics.  I remember vividly "brainstorming" sessions in our business when things were looking dark and we needed new and creative ideas.  Everyone would be straining and struggling, and true to my nature, I would crack a joke, only to have the CEO glower at me:  "this is serious." 

Try this:  "be creative or you are fired!"  Sorry, it doesn't work.  Focus instead on the relationship between humor and innovation.   Each involves the unanticipated juxtaposition of ideas.

Posted by Jeff Lipshaw on July 17, 2007 at 12:09 PM in Legal Theory, Lipshaw | Permalink | Comments (1) | TrackBack

Professorial Charisma: Sage on the Stage or Guide on the Side?

My wife passed me the  Science Times section of the New York Times this morning in which there is a conversation about teaching physics with Harvard professor Eric Mazur.  Very interesting, particularly when juxtaposed with the thoughts about teaching law from the recent New Law Professors Workshop.  Here's a taste:

Q. When a task force on teaching at Harvard gave its report this past January, its chairwoman, Theda Skocpol, cited you as one of Harvard’s most innovative teachers. Have many of your colleagues since asked to observe your classes?

A. A few. At Harvard, teaching is left to the individual professor. There isn’t a lot of cross-pollination. The upside is that this “every tub on its own bottom” credo has made it possible to experiment with my own classes and not get much interference.

Now, I’ve walked into science classrooms here to see what the others do. Some of it makes me burn. You know, these great, fantastic performances by energetic professors where attendance is miserable and half the students seem asleep. Toward the front of the room, you see a handful of kids furiously taking notes, while others fiddle with their laptops. “Any questions?” the professor asks. There are none.

Q. When you teach Physics 1b, do you give “fantastic performances?”

A. You know, I’ve come to think of professorial charisma as dangerous. I used to get fantastic evaluations because of charisma, not understanding. I’d have students give me high marks, but then say, “physics sucks.” Today, by having the students work out the physics problems with each other, the learning gets done. I’ve moved from being “the sage on the stage” to “the guide on the side.”

This is reminiscent of Lao Tzu's words in the Tao:  "When the best leader's work is done the people say, 'We did it ourselves.'"

More on the substance of the physics in another post.

Posted by Jeff Lipshaw on July 17, 2007 at 08:23 AM in Legal Theory, Lipshaw, Teaching Law | Permalink | Comments (3) | TrackBack

Wednesday, July 11, 2007

Darian Ibrahim's Paper on Angel Investor Contracts

The Conglomerate Junior Scholars Workshop continues, with a neat paper from Darian Ibrahim on angel investors and a series of responses from luminaries like Larry Ribstein, Barbara Black, George Dent, and David Hoffman.

For the uninitiated, angel investors are those brave souls who put the first significant money into a start-up enterprise.  They overlap on the more developed end with venture capitalists, and on the less developed end with the holy triad known as "FFF:"  friends, family, and fools.

Being the hedgehog I am (wandering, I think, in the instant classic Solum sense - how does he do it?) about the lawyers' impulse toward a certain kind of rationality, and underlying (and autopoietic - look that one up!) presumption that the impulse is correct, I supplied a lengthy comment to Christine Hurt's intro to the discussion.

Posted by Jeff Lipshaw on July 11, 2007 at 10:30 AM in Article Spotlight, Blogging, Corporate, Legal Theory, Lipshaw | Permalink | Comments (1) | TrackBack

Wednesday, July 04, 2007

Stepping Off the Cliff and Publicly Following Advice on Scholarship from the AALS New Law Professor Workshop

All of Friday at last week's AALS New Law Professor Workshop was devoted to teaching, and two speakers, Doug Berman (Ohio State), of blogging and criminal sentencing fame (he is quoted on the front page of the New York Times this morning regarding the Libby commutation), and Angela Davis (American), shared the two hours devoted on Saturday morning to scholarship.  As to Doug's talk, I'll simply note that the written outline, one and a half pages of well-spaced bullet points, repeats the word "write" fourteen times.  Indeed, this is a public apology to Angela, because she spoke on the mechanics of writing and placing articles, but by that time, Doug had gotten me so fired up I didn't want to listen anymore about writing, and went up to my room to write.

One of Doug's major theses was "the importance and value of quantity. . .aka. . .avoiding the false comforts of 'quality over quantity.'"   (Readers of my blog posts know that has never been my concern.  Indeed, I take it one step further and actively sacrifice quality for quantity.)  Point number one under that thesis was "realize 80% of genius is revealed in the first 20% of efforts."  On that note, I decided this morning that the introduction (12 pages) to a piece on which I have been reading, writing, and thinking for six months, and the conclusion of which, say 48 pages (or the remaining 80%) in the future, is still murky to me, is certainly not genius, but on the other hand, beyond laughable.  So without further ado, and in another exercise of shameless self-promotion, I posted on SSRN a piece entitled Aboutness, Thingness, and Morphosity:  A Pragmatic Ontology of Formal Systems in Law, the abstract of which follows:

Others have spoken of a sense that distinguishes areas of the law, for example, the law of property, in terms of “thingness.” I explore the implications of this sense for the phenomenon known as formalism, in which legal forms reflect a belief in a “deep reality.” I contend our tendency to formalism is more than linguistics; it reflects perceptions of forms intangible but nevertheless real, all of which raises an ontological question. I further explore the pragmatic consequences of this otherwise philosophical question, in areas of complex arrays of constitutive and regulative rules, like accounting standards, codes, business acquisition agreements, and corporate structures. Lawyers are not unique among human beings in perceiving intangible deep realities where others do not, but if we see things as real that our clients do not, perhaps we ought to address the implications. This is the introduction to a work-in-progress in which I will attempt to do so.

I have done this a whole bunch of times and it is still like stepping off a cliff.

Posted by Jeff Lipshaw on July 4, 2007 at 11:22 AM in Article Spotlight, Legal Theory, Lipshaw, Property | Permalink | Comments (7) | TrackBack

Tuesday, July 03, 2007

A Critique of Pure Reason?

There's a neat online symposium going on over at Conglomerate.  The current entrant in the Conglomerate Junior Scholars Workshop is a paper by Trey Drury (Loyola - New Orleans, left) on Section 102(b)(7) of the Delaware General Corporation Law, and its equivalents in the otherLldrury jurisdictions, which limit directors' liability for money damages (but not a limit on injunctive relief or the finding of a breach of duty) with respect to the duty of care.

As anyone who has followed my ramblings here (and over at Legal Profession Blog) knows, I am hardly an empiricist.   (When I want my dose of philosophical empiricism, I turn to my friend David McGowan at San Diego, who does as good a job channeling Hume as anybody I know!)  I have said before that one of the great benefits of being a law professor is the wide brief to be a social philosopher.  I think that brief comes with an obligation to be clear about the descriptive, the normative, and the prescriptive, even if it is just to be clear that the descriptive and the normative are difficult to separate.  But I do wonder from time to time whether we jump to the prescriptive too quickly (noting that I am sure I have done the same thing).

Professor Drury is far more sympathetic to the "20-20 hindsight" problem in assessing directors' decisions than many commentators.  Nevertheless, I wondered whether Professor Drury's very interesting and readable paper was a solution in search of a problem, and commented: 

I'd be the last person to excoriate exercises in pure reason, but I'd still like to see some empirical work showing that most of the current bubble of corporate governance work is something other than the availability heuristic at work. There are 9,000 publicly traded companies in the U.S. - is it really the case that 102(b)(7) and its ilk are a problem for them worth the intellectual energy?

The only empirical work cited in the article (I think) is the Bradley and Schipani study, which I have not read. I'm skeptical it supports the claim that directors are "incentivized" to bad behavior, because just on the description, it sounds to be a macro look at share prices (and I'd want to dig through the methodology). Assuming it is methodologically sound, I would think about giving it more airplay at the outset as the basis for thinking there is a problem, rather than merely inferring, as a deductive exercise, that 102(b)(7) causes a problem. The sense otherwise, at least to me, is the hammer in search of a nail problem.

Of course, it's also possible that I am a spineless, passion-less wimp.

*Cross-posted at Legal Profession Blog

Posted by Jeff Lipshaw on July 3, 2007 at 07:55 AM in Article Spotlight, Corporate, Lipshaw | Permalink | Comments (0) | TrackBack

Sunday, July 01, 2007

Dispelling New Law Professor Angst

The AALS New Law Professor Workshop, just concluded, had segments that made it worth the price of admission.  The session on Friday morning on learning theory was a breath of pedagogical fresh air.  As my wife pointed out, a fourth grade teacher spends four years learning how to teach nine year olds, and, as somebody else pointed out, law professors learn teaching primarily by having been students.

I kept flipping, internally, between the viewpoint of participant and observer.  What tended to break my willing suspension of disbelief was the occasion reference like "of course, you know what it's like to take the bar; you've just done it" or "we, your teachers, take pride in seeing you out there" or "remember that the senior faculty are baby boomers."   All of these spoke to the expectation that most people in the audience were within a certain band of age and experience.  My remedy was to pull out my copy of Modern Maturity (the official journal of AARP), and pop another Centrum Silver.

It didn't matter to me.  I took this on knowing I was a cohort outlier.  And, I suspect, the thing as to which I was most outside the norm was angst about the future, and particularly the prospect of tenure.   That subject would have been the unmentioned elephant in the room except it was mentioned so often.   Most people I'm sure, if you asked, would say their goal was to become a great scholar or a great teacher.  But, to use the jargon, the revealed preference was getting tenure.

With a disclaimer, I want to take an old baby boomer's privilege and offer advice that will probably be worth as much as you have just paid for it.  Unlike many, I do not have a young family, with all the attendant concerns about professional, domestic, and financial security.  (I do have three children in college, however.)  I was once a young associate in a law firm, concerned (but I hope not obsessive) about becoming a partner.  Nothing really could force the desired result, other than work on the inputs that really mattered.  Everything we learned about succeeding, we learned in grade school - be thoughtful, work hard, care about others, control what you can control.   I go back to the wonderful comments of that non-pareil mentor, Larry Solum, at the New Law Professor Section gathering at the AALS Annual Meeting in January:  do the work for the intrinsic value, and let the chips fall where they may. 

To be sure, that is easier said than done, and there is sensible advice to be had.  But almost every aspect of the politicking and instrumentality advice boils down to the kind of good sense every one of us has in our respective hearts.   To listen once again to Larry, the aretaic virtues are not a bad model - for example, courage is a mean between rashness and cowardice.   Q:  "Is it advisable for junior faculty to voice opinions at faculty meetings?"  One answer could be:  "have a buddy you trust give you the norms of your institution, and if the answer to the question is no, shut up."  I think a better one is:  "Don't be a wallflower, and don't be a bull in a china shop.  Be self-aware.  Be respectful of those who have come before you.  Have courage."  (By the way, that wouldn't be bad advice for a new general counsel about to attend her first board of directors meeting.)  I give great credit to Kent Syverud for bringing this out in his concluding remarks.

Posted by Jeff Lipshaw on July 1, 2007 at 08:54 AM in Lipshaw, Teaching Law | Permalink | Comments (2) | TrackBack