Monday, April 09, 2018

In Defense of Law Review Articles

Last week, I had the good fortune to attend a conference on The Future of Legal Scholarship, which was hosted by the Loyola University Chicago Law Journal.  It was a very well organized and well attended conference, at which several law professors spoke about a number of topics related to legal scholarship.  Both in formal remarks, casual conversation at the conference, and the post-conference chatter on Twitter, several law professors criticized the law review article format and submission/acceptance process.  Some of these criticisms were entirely fair.  Anthony Kreis, for example, made a strong case for blind review of all law review article submissions.  But I heard other criticisms that I think are far less defensible.

One criticism of law review articles that they are too long.  If you can’t make your argument in 25 pages, so the argument goes, you should simply write a book instead.  I disagree.  I can think of plenty of arguments that cannot be fully supported and defended in only 25 pages.  And to say that those ideas ought to be turned into books ignores real differences between books and law review articles.  For one thing, most books owe their length to copious amounts of background material that situates the author’s ideas, rather than the support and defense of substantive arguments.  That additional background materials is necessary in books because most book publishers want authors to write for a non-legal audience, as well as for legal readers.  For another, book authors are not forced to support all of their factual claims with footnotes as they are in law review articles.  Annoying as it may be to write such footnotes, the practice keeps authors honest and the footnotes serve as a useful resource for readers.  Put simply, if I were to turn my 60 page law review article into a book, I would have to make such significant changes to that article, that it would no longer resemble what I’d originally written.

Continue reading "In Defense of Law Review Articles"

Posted by Carissa Byrne Hessick on April 9, 2018 at 01:19 PM in Carissa Byrne Hessick, Life of Law Schools | Permalink | Comments (23)

Some thoughts on technology & surveillance

Thank you to Howard and the Prawfsblawg family for having me back.  I have found last month’s discussion about the future of legal education fascinating.  The intersections of innovation and technology are of much personal interest to me, and I echo some of the hopes that legal education will embrace a bit of healthy disruption.

I wanted to spend a bit of time this month talking about new technologies and civil rights with a focus on policing.  I will start by simply highlighting a fascinating series of blog posts curated by the ACLU on whether artificial intelligence will make us less free.  (Answer yes).  The most recent posting (each of the postings come out every few days) discusses the intersection of immigration and new technologies. Written by Erica Posey and Rachel Levinson-Waldman of the Brennan Center, here is a snippet of one proposed DHS idea for a predictive system to identify possible bad actors:

"An Immigration and Customs Enforcement call for software companies to bid on the creation of an automated vetting system — to scrutinize people abroad seeking U.S. visas as well as foreigners already in the country — came to light in August 2017. In keeping with the goals outlined in President Trump’s Muslim ban, the request for proposals called for software capable of evaluating an individual’s propensity to commit crime or terrorism or to “contribute to the national interest.” The algorithm is meant to make automated predictions regarding who should get in and who should get to stay in the country, by        evaluating open source data of dubious quality using a hidden formula insulated from public review."

This request for a predictive tool to evaluate immigrants can be compared with another DHS idea floated last week to monitor the public activities of media professionals and influencers which might include some bloggers and public intellectuals in the legal academy (depending on the definition of “influence” I guess … do law review downloads count?).  DHS's Media Monitoring Services project like other concepts seeks to use big data technologies to monitor patterns of activities in public and quasi-public areas of our lives.  While the fear is perhaps overblown (today), the future danger is that blog posts like this one will now be included and monitored because the algorithm will pick up the key words without necessarily considering the content.  Just by writing about DHS surveillance, I am drawing the attention of DHS surveillance.  This might not be the best use of our technology or tax dollars.  And, it certainly warrants a healthy bit of skepticism.

Posted by Andrew Guthrie Ferguson on April 9, 2018 at 11:23 AM | Permalink | Comments (4)

"To Kill a Mockingbird," by Aaron Sorkin

Aaron Sorkin is writing a stage play of "To Kill a Mockingbird," with Jeff Daniels set to star as Atticus Finch. The Estate of Harper Lee has sued Sorkin, objecting to the way Finch is written (he "grows" in his racial tolerance over the course of the story, rather than beginning and remaining paragon of virtue throughout).

As that legal drama plays out, some of the courtroom scenes from Sorkin's script leaked. It is reprinted after the jump.

Continue reading ""To Kill a Mockingbird," by Aaron Sorkin"

Posted by Howard Wasserman on April 9, 2018 at 10:31 AM in Howard Wasserman | Permalink | Comments (4)

JOTWELL: Thomas on De Figueiredo on the pending case list

The new Courts Law essay comes from Suja Thomas (Illinois), reviewing Miguel de Figueiredo, Alexandra D. Lahav & Peter Siegelman, Against Judicial Accountability: Evidence From the Six Month List (available on SSRN), an empirical study of the effects of the pending-case-and-motion list.

Posted by Howard Wasserman on April 9, 2018 at 10:02 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Symposium: Futures of Legal Education

The 61 posts for Futures of Legal Education can be found here. Thanks to all our participants and to Dan for running it.

And on the subject of the future of legal education, I want to plug the Summit on the Future of Legal Education and Entry to the Profession, sponsored by the FIU Law Review, organized by my colleague (and symposium guest) Scott Norberg, and featuring Dan and several other participants from the Prawfs program. The program will be all day next Thursday and Friday morning, April 12-13. Everyone in the Miami area is welcome. The event will be livestreamed. Registration (and CLE credit) on the above link.

Posted by Howard Wasserman on April 9, 2018 at 07:24 AM | Permalink | Comments (0)

The Futures of Legal Education symposium -- Signing Off

Mike Madison's post -- #61 in this series -- is appropriately the last one in this series (though certainly not the final word in this important discussion of our enterprise.).  I thank him, all the other contributors, and the editors of this blog for indulging us in this multi-week conversation.  I hope the readers found the discussion provocative and thought-provoking.  

Here is some interesting data analytics from our discussion:

We had 61 posts, from 27 contributors, including 11 guest posters. Contributors were from a diverse range of schools and professional roles and you can see that they offered perspectives that were quite diverse in content and in tone.  In total, these posts added up to 57,600 words -- equivalent to a huge law review article or two plentiful articles or even a short monograph.  A lot of nourishing food for thought!  

Thanks, again, for all who contributed to this virtual symposium.  We can only hope that these ideas contribute to a great future of legal education. 

DBR

Posted by Dan Rodriguez on April 9, 2018 at 01:56 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 61 (Michael Madison)

Again, a huge thank you to all of the amazing contributors to this symposium for their interest, engagement, and persistence, both in the symposium itself and in the registers of their personal and professional lives that they shared here.  Earlier this year, when Dan Rodriguez approached me about possibly building a virtual symposium based on my essay-ish invitation from last December, I was both flattered and more than a little nervous.  Critical responses I could handle, but what if no one cared?  It turns out that I am far from alone not only in believing that the future of law is both highly uncertain and full of opportunity, but also in believing that broader and more integrated conversations and actions are needed – and are happening, all over the US and around the world.  Your efforts to serve and to achieve justice inspire me.  They should inspire students, professors, and lawyers everywhere. 

Let us pay it all forward, building ever-greater momentum.  Here are some final thoughts as we transition from the close of the symposium to next steps:

Continue reading "Legal Ed's Futures: No. 61 (Michael Madison)"

Posted by Dan Rodriguez on April 9, 2018 at 01:44 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 60 (Dan Rodriguez)

Predicting Reform

The bulk of these wonderfully interesting and provocative symposium posts have been normative or descriptive.  This makes eminent sense.  Contributors have been invited to imagine change, in one or another facet of our educational enterprise; and some have pointed to real change through their depictions of creative initiatives in their own law schools.  What I want to do is make a suggestive comment that is more by way of a prediction.  Let me take a somewhat arbitrary timetable, say, twenty years from now.

First, change will emerge from a hollowing out of the existing landscape of American legal education.  While I am less confident in saying that this will accompany an enormous decline in the number of law schools or law students, the existing landscape is unsustainable.  Too many external threats loom; too many risks attendant to contemporary models; a mismatch between traditional objectives and the evolution of the marketplace.  Legal education in 2038 will look every different than it does now, and this as a result of significant, and for many of our law schools, largely unwelcome, shocks and impacts.  Before we get to the “never let a crisis go to waste” bromide, we need to get to a crisis.  And we can see the makings of a crisis ahead.  We can criticize the hyperbole, and question the motivations of those who are seemingly so gleeful about the bloodletting to come, but we should be wary of shooting the messenger.  Reckoning won't come in a day or a week, but there are very serious storm clouds and they cannot be wished away.

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Posted by Dan Rodriguez on April 9, 2018 at 01:36 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 59 (Hari Osofsky)

Pathways Forward

As I begin this final post, I want to thank Dan and Mike for initiating this important dialogue and all of the contributors for sharing their insights.  It has been such a rich discussion that there are so many things I’d love to talk more about.  We need to find other mechanisms for continuing this discussion as this virtual symposium concludes.

In this contribution, I reflect on pathways forward, drawing from the themes of our conversation and adding to them. If we’re going to develop legal education for a changing society together—through the new collaborations that we’ll build within and across our institutions—what are effective mechanisms for doing so and core values that we should maintain?

Piloting Innovation

My closest colleagues at Penn State are well aware that my favorite word is pilot (well, after the words We Are Penn State, creamery ice cream, and THON). That is because pilots are institutional spaces for innovation.

A key theme throughout this virtual symposium has been on how we foster innovation. One of the most crucial elements of creating an innovation culture is providing space for failure.  I talk a lot with our community about the importance of learning leadership.  We all make mistakes, and the key to success is what we learn from them and how resilient we are.

In a pilot, we try something new at a small scale without knowing if it will work.  It is intentionally structured for the learning crucial to innovation.  So, we are piloting modular online courses aimed at nonlawyers, new approaches to joint degrees, our first pop up event for the Legal-Tech Virtual Lab, new educational partnerships in Panama, etc.  Some of these pilots will work well, some will need some tweaking, and some will be disasters. 

But where we end up as a law school will be better because we made room for playful learning.  And if we can learn from one another’s pilots across institutions, all the better. That is how we get to “the next thing after the next thing,” a phrase that I learned from my inspiring colleague Interim Vice Provost for Online Education Renata Engel.

Continue reading "Legal Ed's Futures: No. 59 (Hari Osofsky)"

Posted by Dan Rodriguez on April 9, 2018 at 12:42 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Sunday, April 08, 2018

Legal Ed's Futures: No. 58 (Gordon Smith)

Surprise

I am grateful to Dan Rodriguez for convening and Mike Madison for inspiring this symposium. Reading the contributions has been thought provoking. Like Bill Henderson, I wanted to participate earlier, but I was busy doing the hard work that follows good ideas. Nevertheless, I have been reading and learning and hatching new ideas.

Some readers of this symposium will be familiar with LawX, BYU Law School’s legal design lab, which was launched last semester. Our first experience with LawX produced a product called SoloSuit, which in just over two months has been used by over 500 people to generate answers to debt collection lawsuits in Utah. This summer, legal aid organizations in at least four other states will implement SoloSuit.

This outcome seems like a success story for design thinking in law schools, but the bigger story of LawX (at least for me as a law school dean) is about surprise. In creating LawX, I was motivated by a very simple idea, namely, that legal education should be better at encouraging students to change the world. Law schools are very good at teaching students to work within the status quo, but the core function of entrepreneurs is to challenge the status quo, and I want our students to embrace that entrepreneurial mindset. Thus, the goal of challenging the status quo of debt collection lawsuits was built into the structure of the course, but our students experienced all sorts of surprises as they researched and built SoloSuit – surprises about Utah law, surprises about the small size of debt collection lawsuits, and surprises about how people might interact with the website the students were designing. Surprise is part of the design thinking process, as participants are encouraged to avoid prejudging the solution, precisely to encourage unanticipated results.

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Posted by Dan Rodriguez on April 8, 2018 at 10:59 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Saturday, April 07, 2018

Legal Ed's Futures: No. 57 (Dan Rodriguez)

Masters in our Domain

A number of contributors, including Bobby Ahdieh, Megan Carpenter, Michael Waterstone, and Kellye Testy, have posted in this symposium about the proliferation and contributions of degree programs for non-lawyers.  However one slices and dices the data, it is becoming clear that the development of these programs is a major event in the modern evolution of legal education.  There are more than 17,000 non-JD students enrolled in ABA-accredited law schools right now, and, while I do not know the breakdown between LLM and other programs, I am reasonably confident that the non-LLM Masters cohort is large and where the real growth is.  We can expect these programs to grow apace, even though, as Ahdieh notes, what we mean by “these programs” is complicated, as different law schools (including mine, with our MSL/Law-STEM program) pursue different strategies in the marketplace.

I want to add to this discussion two reflections.  First, the attention paid to the market, that is, the demand of students for these programs on the one hand the demand of the marketplace for individuals with these new, and rather unusual, credentials and education, should not blind us to the need as law schools and legal educators to make some fundamental judgments about (1) what it means as a pedagogical – and even epistemological – matter to teach law to folks who are not aspiring to become lawyers, and (2) how we expect these students to become integrated in a law school environment where the core mission remains educating future lawyers.

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Posted by Dan Rodriguez on April 7, 2018 at 08:03 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 56 (guest post, Margaret Ryznar)

Reflections on the Loyola Chicago "Future of Legal Scholarship" Symposium

I had the great pleasure of attending Friday’s live symposium on the future of legal scholarship—the Loyola University Chicago Law Journal students did a wonderful job with the program.  One thing that strikes me after listening to the panelists and reading these various contributions on this blog—traditions, habits, and cycles are hard to break.  For this reason, I don’t anticipate that the prestige of publishing in law journals is going away soon.  However, my views align with those who think technology is a big disrupter.  Already, we see many professors’ work being elevated by online journals, online media, SSRN, blogs, and, yes, even tweets (maybe not Facebook anymore, though).  Students are even more tech savvy than we are, and appreciate the flexibility that online course content offers.  When the next generations join us on the law faculty, we’ll see online scholarship and teaching become more normalized and perhaps even part of the tenure/promotion/other rewards processes.  After all, much of the future is in their hands.  All of these changes have been relatively slow compared to some other fields, but that’s characteristic of legal education.  Hopefully, we can find the right balance and training for students and faculty as we continue inching toward the future.

Margaret Ryznar (Indiana-Indianapolis)

Posted by Dan Rodriguez on April 7, 2018 at 07:01 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Rotations

A flurry of final posts for our Futures of Legal Education Symposium are going up this weekend. We will put up a single post with all the contributions next week.

Our late-starting April/May visitors will be Seth Davis (UC-Irvine), Andrew Ferguson (UDC), Adam Kolber (Brooklyn), and Derek Muller (Pepperdine). They will be here through April and into May.

And June will feature our second End-of-SCOTUS-Term Symposium; stay tuned.

Posted by Howard Wasserman on April 7, 2018 at 11:30 AM in Blogging | Permalink | Comments (0)

Legal Ed's Futures: No. 55 (Dan Hunter)

The Future is Already Here…

Well, the end (of this symposium) is nigh, and I can’t thank enough the Prawfs editors, Mike M, and Dan R, for the opportunity of joining you for this discussion of the future of legal education. I’ve loved reading the thoughts of all contributors, and to have had the chance to contribute in some small way to the discussion.

In looking back over my entries, I’m struck by how dystopian of legal education my vision must seem. I think this is because I always overestimate the speed of technology uptake, and underestimate the effect of culture. You’ll have to forgive me on this: I have spent my entire career professionally watching the way that digital tech has transformed our life. But the other experiences that drive my worldview are hanging out in the startup world and running a tiny, everyone-thinks-we’re-gonna-fail law school (that I started just as the legal education market really tanked). So, I’m primed to assume that things are going to change a lot. In a negative way. And very fast.

But perhaps we should be very hopeful about the future of legal education. Law profs and law deans are a smart bunch. The university has existed more-or-less in its current form within the Western tradition for more than 900 years. And the lessons of the innovation generation are being built out into the wide range of law school responses, as Andrew Perlman sagely documents.

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Posted by Dan Rodriguez on April 7, 2018 at 10:43 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 54 (Robert Ahdieh)

The Golden Age of Legal Education

In my opening post, I highlighted my optimism about the future of legal education.  As I have read and learned from the posts that have constituted this virtual symposium, that optimism has only grown.  We can make legal education work – in ways that are financially viable, socially responsible, and encouraging of humanity’s social, economic, and political progress.

In that spirit, let me conclude with a further word on the reasons for my optimism.

In an earlier post, I spoke of the increasing complexity of our collective social, economic, and political life – not only in the United States, but throughout the world.  Given that growing complexity, I would suggest, it is not only reasonable, but quite likely, that we will see growing demand both for lawyers and for legally trained non-lawyers (as described in that earlier post) in the years ahead. 

That demand begins with the increasing reach – as well as complexity – of law and regulation that follows (almost) inevitably from growing social, economic, and political complexity generally.  As the scope of applicable regulatory constraint across a variety of different industries, sectors, and spheres of activity increases, the need for capable lawyers must necessarily increase as well.

The same is true, I believe, of non-lawyer professionals.  With more regulation comes a concomitant need for a wider universe of such professionals to have at least some working knowledge of the substance of relevant law and regulation.  And that group, I would suggest, is not likely to be a small one.  To the contrary, it might well dwarf the size of the law student population today.

Continue reading "Legal Ed's Futures: No. 54 (Robert Ahdieh)"

Posted by Dan Rodriguez on April 7, 2018 at 10:39 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Friday, April 06, 2018

Legal Ed's Futures: No. 53 (Dan Rodriguez)

Public Interest Law v. law in the public interest

I was working my way through, albeit clumsily, this distinction while listening last evening to the recollections of some of our extraordinary alumni at our annual public interest awards banquet.  I would capture this distinction thusly, and with reference to the myriad careers law graduates pursue:

Public interest lawyers are working (tirelessly, constructively, impactfully) on serving clients who are seeking redress for private and publicly inflicted harms, who are being defended against criminal prosecution and various threats through the civil or administrative process, and are in some way looking for lawyers for help and for service in a world of injustice and of maldistributed legal resources.  Public interest law is a big tent and, while it faces enormous (and perhaps growing) challenges, is now well instantiated as an essential element in our profession and a worthwhile career path for young law graduates.  I won't say it is in its heyday, because every public interest lawyer I know looks longingly for a future in which this work is more remunerative, more valued, and more common as an avocation for new lawyers.

Law in the public interest is a more capacious and unsteady category.  It involves the manifold ways in which lawyers represent and advice clients in "ordinary" public and private matters and do so zealously, but with the large aim of promoting public interest.  I think of a lawyer who assists a state legislator in drafting a reform to consumer protection as undertaking law in the public interest.  Too, I think of a lawyer assisting a startup in developing an app that will provide low-income individuals with more user-friendly resources to navigate, say, the disaster relief process also doing law in the public interest.  Readers will have other, and perhaps more apt, examples.

To me, the dichotomy is important in helping better frame curricular and programmatic agendas in law schools.  All of us will have limited bandwith for initiatives that are directly concerned with Public Interest Law.  And, frankly, there will be a ceiling for student demand for these initiatives, given their career ambitions (endogenous to the economic model of legal education to be sure) and the configuration of law faculties.  So, at bottom, law schools will attend to Public Interest Law to only some extent -- should be more, but will only do so much.  By contrast, I think that we would do well to see law in the public interest as an imperative to promote throughout the curriculum, as part of, to use Deborah Rhode's truly memorable phrase, a pervasive method.  How will the representation of this client serve the public interest, as well as her private, and typically pecuniary, interest?  How will the development of creative legal solutions enabled by new technologies further public interest agendas alongside the economic interests of actors availing themselves of these technologies?  Folks in the vanguard of thinking about, say, blockchain and autonomous vehicles are considering such questions, and law schools should be encouraging and incentivizing these ventures.

So, my point is a small one in the grand theme of things, and a rather abstract one.  I offer it as a slight help in framing our objectives.  Constructing programs and curricula to further law in the public interest is a salutary task to be considered as larger, and perhaps realistically more comprehensively than, ambitions to expand offerings and opportunities in Public Interest Law (although, let me say again, such goals are worthy in their own right).

Dan Rodriguez (Northwestern)

 

Posted by Dan Rodriguez on April 6, 2018 at 06:54 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 52 (Robert Ahdieh)

Toward a Third Leg of the Law School Curriculum

Many of the symposium’s posts have explored curricular changes in legal education – including both past changes and potential ones we might consider for the future. 

In a sense, participants’ reflections on such changes represents our collective sweet spot.  Deans and former deans in the conversation may have powerful insights regarding budget and finance.  Those who have overseen admissions or career placement may have distinctive perspectives in those spheres.  And so on and so forth.  But all of us have insight into the curriculum.

Against that backdrop, this brief post does not attempt to propose any particular curricular innovation.  Or to decry the power that the dead hand of Christopher Columbus Langdell still exerts over us.  Rather, it offers a way to frame and perhaps think about at least some subset of the curricular innovations we have discussed or might consider in the future.

Law schools have long done well in teaching the substantive content of the law – and well as the distinct analytical skills of “thinking like a lawyer”.  For all the negative attention the latter task has received in recent years, its importance remains self-evident.  Both it and the substantive content of law must thus remain the critical first leg of the stool of a comprehensive and consequential legal education.

For the last fifty years, in turn, we have likewise realized the centrality of training law students in the skills of effective lawyering.  Of course, legal research and writing have been central to that undertaking – including as evident in the professionalization of legal writing teaching in recent decades.  Clinical education is to similar effect, in ensuring that our graduates understand the ethical duties and functional skills of the very best lawyers.  More recently, externships and simulation courses have added further strength to the second leg of the stool: the legal skills essential to being an effective lawyer.

What about the last decade?

Continue reading "Legal Ed's Futures: No. 52 (Robert Ahdieh)"

Posted by Dan Rodriguez on April 6, 2018 at 04:35 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 51 (Megan Carpenter)

Law Schools Are Like Pittsburgh

Mike Madison’s work outside legal education informs this space, as well.  Back in 2009, Mike produced a series of writings on Pittsburgh’s renaissance, which were published on Pittsblog, recast in a book I edited on the role of law in entrepreneurship and innovation, and even summarized in the Pittsburgh Post-Gazette.  His work on Pittsburgh talks about the city’s decline and its renaissance, and evaluates, in part, the benefits and shortcomings of its revitalization.  It is a story that is very Pittsburgh—but it is also a story that is much larger.  It is about the decline of primary and secondary sectors as drivers of our economy and the rise of the knowledge economy, and, particularly relevant for our purposes, about innovation more generally.

Like the steel industry, the dominance and relative success of the traditional model of legal education stifled innovation that might otherwise have occurred.  Higher education has never been quick to innovate; universities are right up there with cultural institutions like the church and the military in that regard.  In law schools, we are ahead of the curve in witnessing the decline of old higher education models.  We know that the way we have always done things is not working, both economically and in substance.  A changing legal services industry demands an evolution in education and training.  And for many law schools, the old way of doing things frankly does not present a sustainable business model.

Continue reading "Legal Ed's Futures: No. 51 (Megan Carpenter)"

Posted by Dan Rodriguez on April 6, 2018 at 03:14 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 50 (Michele Pistone)

Thanks to everyone for your thoughtful engagement in this symposium.  I have learned a lot from the conversation and I hope we can figure out ways to continue discussing these important issues. 

I write today from Boston, where I am attending the AshokaU Exchange.  I was invited to give a “Big Ideas” Talk - TEDx-style – about a new educational program I am developing at my institution, Villanova University, to train non-lawyer immigrant advocates to represent immigrants in immigration court and before the Department of Homeland Security.  The talk was videotaped and I will share the link when it becomes available.

For those of you who are unfamiliar with Ashoka, it was founded by a lawyer (another example of using a law degree successfully outside the law) and is focused on social entrepreneurship and change-making.  It identifies and empowers people who are making systems changes in their communities.  Ashoka partners with universities around the world – change-maker campuses – to support education about change-making and systems changes.  It works around the world and has close to 40 years of experience in making change.  The topics that are being discussed here include: leading change; scaling and systems change; challenging conventional wisdom; systems intrapreneurs in higher education; and diagnosis to the resisting change syndrome, among others.

Continue reading "Legal Ed's Futures: No. 50 (Michele Pistone)"

Posted by Dan Rodriguez on April 6, 2018 at 02:43 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Thursday, April 05, 2018

The Future of Legal Scholarship: That Time that Justice Breyer Made Fun of my Harvard Law Review article's title...

Tonight I take the redeye nonstop from San Diego to Chicago and tomorrow morning I speak at the much anticipated conference on The Future of Legal Scholarship.

I posted earlier this week some thoughts about my panel here. While preparing my thoughts for the conference I ran across a prawfblawg post I wrote five years ago...here's a bit of it, the Justice Breyer bit still makes me laugh...

One of the things (perhaps the top thing) we prawfs think about a lot is the role of legal scholarship. It's hard to know while you are writing a piece how much impact it will have with the community of scholars you want to speak to. Per the new citology study, unsurprisingly, articles in the Harvard Law Review tend to have a much greater chance of scholarly impact. Indeed, it is quite rare for any article outside the top five or so journals to get on the list. And yet, for me this hasn't been a measure (nor a goal) of an article's success. When I compare between my own articles (a within subject analysis), I must say I don't have a great grasp of which articles will become more central as time goes by. my article The Renew Deal: The Fall of Regulation and the Rise of Governance which I wrote while a grad student and published before going on the law teaching market (it wasn't my job talk piece which I published later) second on the 2004 list of most cited law reviews, squeezed between Tribe, Koh, Ackerman, and Lemley. A couple of years after The Renew Deal came out in the Minnesota Law Review, I published another article I had begun writing as a grad student in the Harvard Law Review: The Paradox of “Extra-Legal” Activism: Critical Legal Consciousness and Transformative Politics. That article itself had an interesting path to publication, worth a separate blog entry, the short of it was that I had decided to not publish it cause I got a job and felt it was too personal (not that it reads that way, but that's how I felt about it once I started teaching and wanted to move on to new writing adventures), and only with the urging of a friend, Scott Cummings (UCLA), who kept asking me every time we met at a conference, "Orly, why aren't you publishing The Paradox?", I reluctantly pulled it up and half-heartedly sent it. Long story made short. Back to impact. Once I had returned to The Paradox, I believed it was actually quite interesting, and indeed, here in Israel, where I am spending a marvelous sabbatical this year at Tel-Aviv University, it is the article of mine that seems to have most taken off, taught in multiple syllabi, translated into Hebrew in several journals. But in the U.S., I don't think it had been widely read. Imagine my excitement, turned into disappointment...when I saw one day that Justice Breyer cited The Paradox in a short article of his in a tribute issue in his honor. I imagined he had found my argument that we should reject skeptics who have turned away from the Supreme Court in struggles for social justice. I had imagined he loved my nuanced analysis of what is meant by those who write about cooptation. I had hoped he loved the seamless threads in which I link Brown v. Board to newer cases about gay rights, health care, gender politics and disability discrimination. And here is what I found when I began reading. This was how my Harvard Law Review article was cited by a Supreme Court Justice:

I'm also grateful to the Annual Survey of American Law for dedicating this issue to me. For one thing, that fact suggests the Law School is interested in the Judicial Branch. And that is a good sign. I realize that journals, like judges, are often under attack. The New York Times reported that Chief Judge Jacobs of the Second Circuit recently said, “I haven't opened up a law review in years. No one speaks of them. No one relies upon them.” And there is evidence that law review articles have left terra firma to soar into outer space. Will the busy practitioner or judge want to read, in February's Harvard Law Review, “The Paradox of Extra-legal Activism: Critical Legal Consciousness and Transformative Politics” ?

I think he assumed the answer. I think he asked it rhetorically. In truth, I had feared the name of the article would deter readers, and would not be as catchy as The Renew Deal. I had asked Scott and the editors at the Harvard Law Review to think of alternative titles. But we all kept coming back to the original one. We thought, and I still think, it best reflects the article's. But perhaps a different title would have gotten it more American readership. In Hebrew it received the new and catchier title, "Is Law Dangerous?" [and A small footnote: when I told my beloved former teacher, turned colleague and friend, Menachem Mautner (profesor and former dean at Tel-Aviv University), about the Breyer citation, he called it a "badge of honor". He said the shift of legal scholarship has been from a doctrinal mode of writing aimed for the judiciary and practice to a deeper level of academic writing that takes the academic community itself as its audience. I think I still believe we can simultaneously do both.]

Orin Kerr left an insightful comment back then on my post which I still value today in preparation for tomorrow's panels -- "I think it all boils down to the audience you choose. No one work can please every audience, so you just have to pick what audience(s) you care about based on your interests and goals. Some people will care about influencing the courts; others about influencing the legal culture; others about influencing legal academics; and others will just care about expressing their own views apart from their impact on others. Even within these categories, there are subcategories: For example, some will care about influencing subject matter experts in the field, while others might care about influencing generalists or particular schools of thought within the subject matter. It all depends on your interests and goals, I think, which in turn depends on what you value." 

 

Posted by Orly Lobel on April 5, 2018 at 07:06 PM | Permalink | Comments (4)

Legal Ed's Futures: No. 49 (Frank Pasquale)

Private vs. Public Finance in Higher Education

 This symposium has generated great ideas for improving legal education. They remind me of classic discussions in health law, regarding the “triple aim” of improving quality, expanding access, and reducing cost. While stalwart medical reformers have achieved all three aims in some areas (by, say, reducing medical errors), it is often very hard to achieve that hat trick. If an initiative achieves one or even two of the goals, that is an achievement.

Thus a common theme of this symposium (“cut costs”) is often in tension with, or outright contradicts, our aspirations to improve the quality of legal education, or expand access. Top talent (particularly in technical areas) is not cheap. On an organizational level, an endless horizon of austerity is the perfect way to demotivate staff. Even more worryingly, the “cut costs” narrative plays into some very destructive dynamics in higher education finance now playing out in Washington, as Republicans aim to raise the cost of higher education finance beyond already troubling levels.

Continue reading "Legal Ed's Futures: No. 49 (Frank Pasquale)"

Posted by Dan Rodriguez on April 5, 2018 at 12:46 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Erie and litigation financing

Wisconsin enacted a law amending its discovery rules to require that a party's initial disclosures include "any agreement under which any person, other than an attorney permitted to charge a contingent fee representing a party, has a right to receive compensation that is contingent on and sourced from any proceeds of the civil action, by settlement, judgment, or otherwise." (§ 12 of the legislation). The political valence is that this is a victory for business defendants over the plaintiff's bar (which is how it was fought in the state), although there is some broader support for disclosure of third-party funders in the wake of Peter Thiel's funding of Hulk Hogan's suit against Gawker.

There also is an interesting Erie/Hanna question of whether a plaintiff must disclose this information in state-law actions in federal court. Since I am afraid I am not going to reach Erie (at least not in-depth) this semester, it may have to wait until next year. After the jump, I take a stab at what I think should be the analysis.

Continue reading "Erie and litigation financing"

Posted by Howard Wasserman on April 5, 2018 at 11:24 AM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (5)

Class certification and universal injunctions

Judge Chutkan of the District of the District of Columbia last week issued a preliminary injunction barring HHS and the Office of Refugee Resettlement from enforcing policies preventing pregnant unaccompanied undocumented minors in federal detention from obtaining services to terminate pregnancies. Wanting a broad injunction that would reach beyond the four named plaintiffs (all of whom had terminated their pregnancies) to all women who might be subject to the challenged regulations, the court did it the proper way. It certified a class and issued a class-wide 23(b)(2) injunction prohibiting enforcement of the policies as to all members of a class defined as "all pregnant, unaccompanied immigrant minor children (UCs) who are or will be in the legal custody of the federal government."

Unlike courts in many recent cases, Judge Chutkan  followed the middle step of certifying a broad class, then issuing an injunction protecting the entire class that is the plaintiff in the action. But the case illustrates an important point. If universal injunctions are readily available, no plaintiff would bother jumping through the class-certification hurdles, but will proceed directly to asking the court for the same broad injunction while keeping the action as an individual one.

Posted by Howard Wasserman on April 5, 2018 at 12:42 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Tuesday, April 03, 2018

Legal Ed's Futures: No. 48 (Dan Hunter)

How to Disrupt (Part 2)

I spend a lot of time in the startup community, where one of the main analysis points is “Product/Market Fit.”(PMF) One aspect of this analysis: no matter how beautiful your product, if the market doesn’t want it then you’re going to fail. So, make sure your product fits your market. (Duh.)

Another way to think about this is to ask what is the compelling value proposition for legal education in its current form? The answer to this question should not be that the Section says that we’re the only ones allowed to offer it…

I spend a lot of time thinking about the PMF of legal education, about the nature of the product that law schools provide and who is the market for it. And it won’t come as much of a surprise that, I think that legal education (and higher education generally) has got the PMF totally wrong. If asked, my guess is that we mostly think that our market is LSAT-takers, and our product is the JD. (Or whatever the correlates of these are in your jurisdiction.) [1]

But I think that our market is the entire legal services market (not the legal profession) and our product is the person who emerges at the end of our training process with the knowledge/skills/dispositions that allow them to deliver services within that market.

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Posted by Dan Rodriguez on April 3, 2018 at 10:46 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

DOES LEGAL SCHOLARSHIP LIVE AND DIE IN A VACUUM?

That's the title of the second panel in the upcoming conference on The Future of Legal Scholarship - and I, alongside Carissa Hessick and Eric Segall, am speaking on this panel. In preparation for the panel discussion I've been rereading Carissa's symposium contribution, TOWARDS A SERIES OF ACADEMIC NORMS
FOR #LAWPROF TWITTER as well as prawfblawg posts by Chris Walker , Paul Horwitz (article here) and others about the value of being a tweeting, blogging, op-ed writing #lawprof. My general views on this should be revealed from action: I am on twitter (follow me @orlylobel), I obviously blog here - I was brought on as a permanent blogger early in my teaching career by our beloved Dan Markel who believed in the value of law professors connecting, networking and sharing their ideas and thoughts more frequently than through the law review system - and I like writing op-eds, though they always relate to my scholarly law review / book writing, for example this NYT op ed and this one

My feeling about all of these activities is that in general they enrich and support a strong scholarly agenda in several ways: 1) You get to test your theories and arguments in front of a broader and more diverse set of readers, including academics from other fields, law professors you normally don't interact with and wouldn't naturally be the readership of your law review articles, journalists, attorneys, the general public, and each of these networked exchanges can make you in fact more nuanced and add to the complexity of your thinking (which is of course the opposite result from the one often cited as the risk of these forms of writing -- that one loses nuance, depth, and complexity - I guess these opposing views are at the core of what we might open ufor discussion during out panel). 2) You learn more, and quicker, about new developments happening in your field. For example, I write about employment contracts and thanks to a broader readership I get to hear about contractual variances, situations and disputes that I wouldn't be able to get to just by reading the case law or even by collecting field data or conducting surveys about corporate practices. 3) You get to have an impact on policy and public debates. When I wrote Talent Wants to be Free (Yale Press) a few years back I argued that non-competes were used broadly but that no one was paying attention. I argued that the media and policymakers were debating the scope of intellectual property while ignoring the expansion of other kinds of knowledge and information being confined and propertized through contract. I am not entirely sure why this changed quite quickly after the book was published, and I most certainly don't claim to have magically created the interest in the topic, but suddenly soon after the media was vigorously covering the topic of non-compete and I got to comment and refer journalists to my book, and in 2016 I was invited to speak at the White House about my non-compete research, became part of the President's policy team working group on the topic, culminating in a President's Call for Action to the states on non-competes. That was cool. 4) As a variant of the argument that "law professors are people too" how about: law professors are writers too. You get to vary your writing style, eventually having a positive impact on your law review writing style [at least that's the direction it worked for me -- writing the shorter popular pieces reminded me that law review articles are also better when they don't rely on professional jargon and are written for people to enjoy the reading rather than suffer and feel good because they are suffering, hence, working and learning?...]. 5) And then, yes, law professors are people too. We live in the world and law is a political discipline. I subscribe to Hessick's and others' calls to remember that as professors we implicitly yield authority and assert our expertise when engaging online and beyond. But I do think that as scholars and teachers and institutional leaders in higher education we want to be engaged citizens. 

The conference is this Friday so I'd love your thoughts, comments, ideas to help further the discussion. 

Posted by Orly Lobel on April 3, 2018 at 07:06 PM | Permalink | Comments (5)

Yet another qualified-immunity summary reversal (Link Corrected)

SCOTUS on Monday summarily reversed the Ninth Circuit's denial of qualified immunity in Kisela v. Hughes, which resulted from an officer shooting a woman in the mistaken belief that she was threatening her roommate with a knife. Such summary reversals of denial of qualified immunity have become commonplace, as you recall. This one brought a dissent from Justice Sotomayor joined by Justice Ginsburg, who argued that, even if the lower court was wrong, it was not "so manifestly incorrect as to warrant 'the extraordinary remedy of a summary reversal.'"

I have not had a chance to read or digest the opinion. But Will Baude offers some comments, especially about the one-side nature of qualified immunity and its evolution into an absolute bar to recovery. So does Orin Kerr, who offers an explanation for why the Court has gone down this road with immunity grounded in the distincion between conduct rules and decision rules.

Posted by Howard Wasserman on April 3, 2018 at 04:41 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Legal Ed's Futures: No. 47 (Kellye Testy)

Having been a Dean at two law schools for nearly 15 years, I understand the value of flexibility, experimentation, and innovation, and I firmly believe that the ABA Standards should value the same. Doing so does not necessitate throwing out the test requirement that applicants and law schools have relied upon for many years¾at least not without carefully exploring the consequences of doing so and considering alternatives to achieve school-based flexibility while also retaining fairness to applicants.

So, I appreciate Dan Rodriguez’s call for greater collaboration among law school deans, faculty, and administrators, and organizations like LSAC that represent major stakeholders in legal education and the legal profession. At a time when the legal needs of the middle class and poor are largely unmet, and the rule of law itself is under attack, we need to work together. Trusted relationships among all of us involved in law and legal education are vital to addressing the challenges and leveraging the opportunities facing our profession.

Because I embrace Dan’s premise, I disagree with the portions of his comments about the LSAC. His characterization of our engagement on the proposed changes to the ABA’s accreditation standards as “combative” and “scorched earth” apparently rests on a fundamental misunderstanding of LSAC’s position on the proposed changes.

Continue reading "Legal Ed's Futures: No. 47 (Kellye Testy)"

Posted by Dan Rodriguez on April 3, 2018 at 04:36 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 46 (Luke Bierman)

Upon the recent arrival of the 2019 USN&WR rankings of law schools, I found myself doing an annual head shake accompanied by an annual, “I wish they wouldn’t do that.”  Appearing in the middle of this virtual symposium, the USN&WR rankings inspired me to reflect on other things that I wished in our challenging world of legal education.  And so, it occurred to me that a wish list might be a good way to comment on the interesting and various postings that make up this symposium.  Please note that this list is by no means complete or all inclusive. 

First, as noted above, I wish they wouldn’t do that.  The USN&WR ranking really is as pernicious as so many of us think.  As noted by several commentators here, it overvalues things that are awfully hard to shake, like reputation, and undervalues things that demonstrate relevance, like professional associations.  But overall, it fails to capture the values that different schools provide in their teaching, in their scholarship or in their communities.  The effort that we collectively place on chasing modest changes in rank, while privately admitting that this system is seriously flawed, misaligns our priorities.  As Jerry and Scott suggest in posts, let’s all agree to stop it.  Let’s finally put up AND shut up … I wish we all just stop participating in solidarity of disapproval.  Let me add, this list hardly is comprehensive or all inclusive.

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Posted by Dan Rodriguez on April 3, 2018 at 02:47 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Quillette on Critical Legal Studies: The Wrong Start to What Could Be an Interesting Discussion

I occasionally read and generally enjoy the online essay site Quillette. I'm not sure how I would characterize its "politics," but I'm not much interested in doing so in the first place: the essays at their best are interesting, thought-provoking, and well-expressed, and that's good enough for me. It just put up a piece titled "Beyond All Warnings: The Radical Assault on Truth in the Law." The gist of the piece is that "the significant influence of ‘postmodern neo-Marxists’ on the legal academy is undeniable and pernicious," and that Critical Legal Studies, along with other fields such as Critical Race Studies, which the piece treats (mistakenly, in my view) as basically "subgroups" of Critical Legal Studies, have become the mainstream within the legal academy. 

Leaving aside my disagreement with various assertions and detours along the way in that piece, I respectfully think this is quite mistaken. Serious CLS scholars are rare in the legal academy in the United States. (I cannot speak to the other countries mentioned in the piece. Certainly CLS seems to have had more longevity and popularity elsewhere, perhaps in part because there are more academically oriented law "departments" elsewhere, whereas the American legal academy, however much and fairly it is criticized for being too impractical, is still more of a mishmash of professional training and scholarly work.) Much of the work that is criticized in rather general or anecdotal terms in the Quillette piece is really establishment progressivism, not CLS. Most American law professors these days are, I think, at best uninterested in things like indeterminacy and rule-of-law critiques. It is possible that some contemporary legal scholars take such ideas seriously in private, but believe these urgent times require us to be silent about those issues, or at least put them on the back burner. More common, I think, are those who either never bought into CLS, or assume it’s old-hat stuff, and thus has no value for purposes of either intellectual discussion or professional advancement, or that it was “refuted.”

CLS was never popular among establishment liberal law professors, who if anything were the targets of most of its critiques. Nor is it popular among most modern establishment progressive law professors (assuming, as I do, some difference between being a "liberal" and being a contemporary "progressive"). Consciously or unconsciously, these scholars are more likely to prefer the idea that some values or "settlements" are close to absolute and that they are beyond critique, serious problems of indeterminacy, and other potential "viruses" in their program. They want those values to be honored and advanced, through law and including through judicial review. They are therefore not keen on an intellectual program that might suggest that such projects are self-contradicting, predictably cyclical, futile, or otherwise mistaken. If anything, I think the tendency these days is not only to reject or ignore CLS, but even to publicly avoid open acknowledgment of Legal Realism, despite the cliche that we all all Legal Realists now, in favor of statements about "neutral magistrates" and "sound doctrinal principles." I can't imagine a serious Crit or even Legal Realist using such terms, except as a prelude to "trashing" them.

Certainly there are progressive legal academics drawing on the literature of things like Critical Race Theory in their current work. But CRT was not just a "subgroup" of CLS. It actively resisted some aspects of CLS, such as the critique of rights. And much of the contemporary scholarly literature drawing on or referring to things like CRT is much heavier on some basic and now conventional premises drawn from that literature than it is on deep critique--especially self-critique. Some of this semi-CRT or completely-non-CLS scholarship is excellent, of course. Among other things, some terrific doctrinal scholarship is being published these days, although it is curious and deserving of notice that we seem to have returned so enthusiastically to doctrinal work even as the legal academy has hired more people trained in other academic disciplines. But this excellent work, progressive or otherwise, is not Crit work, and it doesn't aim to be. 

A conventional view among political conservatives, outside and inside the legal academy, is that CLS and CRT had a strong and lasting influence on legal scholarship and continue to affect, or infect, it. That is basically the position of the Quillette piece. I think that view elides differences between progressivism, liberalism, and genuine Critical Legal Studies work. (And some conservative legal scholars--including many of the more interesting ones, in my view--are actually more interested in and sympathetic to Critical Legal Studies than many mainstream progressive legal scholars.)

My own view is that we need more CLS work in legal scholarship right now, not less. (And that includes serious CLS work from a "conservative," religious, or traditionalist perspective. Although some of CLS's leading lights argue that it was always mostly just a location for people on the Left, I don't think that's entirely true; nor does it mean that this is how its ideas must be used. In any event, as I suggested, most progressive law professors are more accurately described as bourgeois establishment progressives than as genuine Leftists.) I emphasize "right now" both because I think there's too little of it these days, and because I think this is an especially fruitful time for CLS work. A sense of urgency and common cause can, of course, be productive and lead to important real-world change. But that sense can tend to lead to work that may be doctrinally excellent, but is light on critique or self-critique, or fails to ask broader questions--especially if they might damage the cause. It runs the risk of becoming dogmatic about its premises. At a moment at which there are many serious criticisms of liberalism and/or questions about its future, combined with substantial unanimity among legal academics about various progressive values (as seen, to be clear, through an establishment lens) and the routine invocation in current scholarly and public writing of things like "rule of law," faith in judicial review, and so on, there is a lot of room for interesting and valuable work questioning those assumptions and premises.

In saying so, I'm not suggesting that legal scholars or lawyers shouldn't file lawsuits or amicus briefs, or otherwise challenge and hold accountable some actions of this administration. But that activity does not, or should not, prevent one from writing scholarship that takes a deeper and more critical look at various assumptions about the law and legal doctrine. Someone interested in this kind of legal advocacy might worry that writing Crit scholarship, or even acknowledging in one's scholarly work CLS critiques of things like "neutral magistrates" or "sound doctrinal principles," might undermine one's legal advocacy at a crucial moment in our nation's history. That worry seems exaggerated, given that judges pay little attention to serious Crit scholarship in the first place. And in some cases, that Critical scholarly work might suggest problems with some forms of current legal advocacy, such as reliance on the courts, and counsel in favor of other forms of advocacy or activism.

The bottom line, I think, is that 1) the piece defines CLS way too broadly, and attributes to it things that have much less to do with CLS than with conventional establishment liberalism or progressivism, and that 2) we need more good CLS scholarship--scholarship that need not have any particular political valence--and not what we actually have right now in the American legal academy, which is almost none of it. 

Posted by Paul Horwitz on April 3, 2018 at 11:14 AM in Paul Horwitz | Permalink | Comments (6)

Monday, April 02, 2018

Legal Ed's Futures: No. 45 (guest post, John Mayer)

In Legal Ed’s Futures: No. 43, Dean Rodriguez missed a stakeholder organization – CALI.  [Ed's note:  Center for Computer-Assisted Legal Instruction). We’ve been around since the late 1970’s. You may think CALI is about lessons, free casebooks or awards, but what we are really about is creating a living institutional memory for law school teaching materials and capturing expertise in a digital format that can be scaled and re-purposed using increasingly powerful technology.    

Among all the other crises there is a crisis in the way teaching materials are produced, distributed, shared and incentivised.  

- casebooks that cost $200 or more,

- exam banks where faculty share PDFs using 1990’s listserv technology (if at all), and, 

- incentives that favor lock-in, silos, proprietary systems and not educational flexibility or efficacy.

Continue reading "Legal Ed's Futures: No. 45 (guest post, John Mayer)"

Posted by Dan Rodriguez on April 2, 2018 at 11:36 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 44 (Dan Hunter)

How to Disrupt (Part 1)

Everyone needs a hobby, and thus I often daydream by thinking about how I’d disrupt myself.

By which I mean that, although I think that my law school is pretty forward-looking, as I keep reminding myself the way that we teach law and the way that law schools exist within the university is just an historical accident. The trick then is to puzzle out why we’re still doing things the old-fashioned and expensive way, and to ask what small change could have a snowballing effect on the bigger stuff, disrupting all of it. There are so many inter-related aspects of legal education that it’s almost impossible to pick the features that we could change to make a huge difference. But here are my two contenders:

(1) The hour-long class.

(2) The exam.

These two elements of education lead to a range of interesting artefacts. First off, they create the need for the law school and the entire accreditation matrix that Dan R has so neatly described. We assume that someone has to warrant that some feckless student—let’s call him “Dan Hunter”—has done enough study (and even turned up to enough classes) that he can be said to know something about Civil Procedure. To warrant this we need a Civ Pro professor who is qualified to give that attestation on the basis of the final exam (or other similar assessment mechanism). That professor needs, of course, to operate within a law school that can be trusted to provide that attestation properly, and eventually to award Hunter a JD. Which means that we need to establish standards for that sort of high quality law school—which standards will generally demand high quality (and expensive) physical plant and libraries, and the need for various administrators and deans and sub-deans and so on to coordinate and report on meeting the standards. This means that we also need an Accreditation Industrial Complex to coordinate all this, with the highpoint being the expense of paying well-qualified ex-deans and other similar worthies to fly to Pittsburgh to do site visits to ensure that Mike M is adequately teaching his class.

Continue reading "Legal Ed's Futures: No. 44 (Dan Hunter)"

Posted by Dan Rodriguez on April 2, 2018 at 11:18 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Candor, Integrity, and the Ethics of Legal Scholarship

I was delighted to be a part of organizing and participating in the Marquette Law Review's symposium this fall on the ethics of legal scholarship. My co-organizers, Carissa Byrne Hessick and Chad Oldfather, shouldered most of the load and put together a great discussion. Carissa's paper for that conference, on law professors on Twitter, has already provoked and produced a good deal of discussion and debate. Chad's contribution to the symposium is, to use a standard law-blog cliche, typically thoughtful--and also fun to read.

I doubt my own contribution amounts to as much. It is certainly not as focused as Carissa's, although it does talk about law professors who engage in what I describe as "multi-platform" work, including Twitter, op-eds, scholars' letters, and amicus briefs as well as legal scholarship, and the potential dangers or confusions involved in doing so. And it begins with a discussion that was important to me as an institutional pluralist and may be important to those who argue over how prescriptive we should or shouldn't be about the ethics of legal scholarship, but for others will be less important. If they want more concrete recommendations and arguments, they'll want to turn to the second half of the essay.

The paper is called "Institutional Pluralism and the (Hoped-For) Effects of Candor and Integrity in Legal Scholarship." There may be a few relatively minor changes before publication. Thanks to the Marquette Law Review for letting me post this version. Here's the abstract. Enjoy! I confess I enjoyed writing it. 

This Article is a contribution to a symposium on the ethics of legal scholarship, held at Marquette Law School in September 2017. It has two goals: 1) to consider whether it is possible to contribute to debates on the ethics of legal scholarship while favoring an institutional pluralism in which different forms of legal scholarship are possible and legitimate; and 2) if one concludes (as I do) that it is possible to for an institutional pluralist to hold and advocate views on the ethics of legal scholarship, to explore the implications of the core values of ethical legal scholarship that I focus on here — candor and integrity — for different models or visions of legal scholarship.

On the first question, the Article describes institutional pluralism. It rests on two propositions: 1) Various essential institutions in public life and discourse, such as universities or the press, perform distinctive functions and follow different norms. Those norms show some stability and continuity but are subject to change over time, as a result of both internal debate and external influences. These institutions should be judged primarily on their own terms, and should not be required to follow the “logic of congruence.” 2) There is room for a plurality of approaches and models within those institutions. Not all newspapers, for instance, must follow the model of disinterested reporting; not all universities must privilege the disinterested truth-seeking model over a model that favors thicker substantive goals such as justice or equality. There may be outer limits to these variations, but within them there is room for different models of and approaches to scholarship — including legal scholarship. An institutional pluralist within the academy is certainly free to argue in favor of a particular model of scholarship and scholarly ethics, but should do so with a certain spirit of modesty and charity and not insist that competing visions or approaches be expelled from the “academic” sphere.

The two core values I single out as essential to ethical legal scholarship are candor and integrity. The Article asks how those values would apply to, and improve, different models of legal scholarship. They include the normative model that remains the most common form of legal scholarship; legal scholarship that sees its primary goal as “speaking truth to power”; and advocacy or “engaged” scholarship, particularly when it involves not just traditional scholarship but the pursuit of advocacy across a variety of formats and platforms, such as social media, op-eds, and amicus briefs or scholars’ letters. In each case, I do not reject these forms of scholarship or advocacy, but insist that their authors should be clear and transparent about their goals, arguments, animating premises, and argumentative or persuasive tactics. Doing so may sometimes reduce the persuasive power of such arguments, but it will allow readers to better understand the aim of the scholarship or public advocacy and its potential limits or omissions, and judge its arguments accordingly. Some scholar-advocates may consider these rules too confining. They might consider engaging in such advocacy in a purely civic capacity, without invoking their academic positions and ostensible academic expertise or authority. In extreme cases, they may decide that they ought to leave the academy and engage in full-time advocacy.

    

Posted by Paul Horwitz on April 2, 2018 at 08:10 AM in Paul Horwitz | Permalink | Comments (2)

Sunday, April 01, 2018

The danger of universal injunctions

If you want to see the consequences of inappropriate universal injunctions, look no further than the contempt order imposed by Judge Mazzant of the Eastern District of Texas on the associates of a large firm.

Mazzant issued a universal injunction in 2016 against Obama-era minimum-wage regulations, in an action brought by several states against the Department of Labor. Lawyers representing an individual filed an action in the District of New Jersey against Chipotle seeking to enforce the regulations. Judge Mazzant ordered the attorneys to dismiss the New Jersey action and held the attorneys in contempt. Mazzant held that DOL represented the interests of the individual workers, such as the New Jersey plaintiff, who would be affected by the rule.

The problem here is  the court expanding the scope of the injunction rather than waiting for preclusion to do its work. The injunction should have been limited to DOL (and nationwide, by applying anywhere DOL attempted to enforce the regulations). But there was no reason for the injunction to extend beyond DOL or for this to be resolved as a question of contempt. To the extent DOL represented the interests of individuals (a questionable proposition), that should have been addressed as a matter of preclusion in the D.N.J. case, with the New Jersey court determining whether the second action was precluded.

This case also shows that allowing universal injunctions may harm individual non-parties rather than benefiting them. Proponents of universal injunctions argue that a district court ruling declaring a law or regulation invalid should protect other persons against whom the rule may be applied, without making them file their own lawsuits and obtain their own injunctions. This case presents the flip side--a universal injunction depriving potential rights-holders of any opportunity to litigate these issues themselves.

Posted by Howard Wasserman on April 1, 2018 at 08:23 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (2)

Saturday, March 31, 2018

Legal Ed's Futures: No. 43 (Dan Rodriguez)

Collaboration among Stakeholder Associations: Why and How

Legal education reform is, as has been pointed out by several contributors to this symposium, a team effort.  There is the imperative of collaboration among faculty and staff within the law school, collaboration within a university for those law schools who are part of what is typically a diffuse institution with myriad pressures and multiple strategies, and collaboration with folks in the profession. 

What I want to reflect upon briefly is collaborations, fruitful and occasionally freighted, with associations who work with and on behalf of law schools to foster common ambitions.  An incomplete list of key stakeholder groups includes:

  • ABA Section on Legal Education and Admissions to the Bar
  • The ABA writ large (often called  the “big ABA”
  • Association of American Law Schools
  • The Law School Admission Council
  • Nat’l Conference of State Bar Examiners
  • Nat’l Ass’n of Law Placement
  • Access-Lex Institute (formerly the Access Group)

Taken as a whole, these groups impact an enormously wide swath of legal education issues.  To be sure, the ABA Section on Legal Ed (“The Section”) controls accreditation and, therefore, is rightly listed at the top of this list.  But it is crucial to see, as law schools do, that many dimensions of influence are reflected in the work of other important stakeholder groups.

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Posted by Dan Rodriguez on March 31, 2018 at 01:14 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 42 (Bill Henderson)

“Every good idea sooner or later degenerates into hard work.”

This quote comes from writer Calvin Trillin, but I first heard it from NYLS Dean Rick Matasar over a decade ago as he shared some realism regarding innovation, in legal education or elsewhere. 

I wanted to participate in this forum earlier, but alas, I was stuck doing hard work that followed a good idea.  A handful of innovators, including myself, have created a new nonprofit called the Institute for the Future of Legal Practice (IFLP, called “i-flip”).  Details online here.  I have been matching IFLP law students with summer employers. Unless this gets done well and quickly, the IFLP idea will fail.  So writing about the future of legal education had to wait.

I’ve been reading all the symposium posts and wholly appreciate the growing intellectual ferment.  Legal education is going to transform itself. I’m confident we’re in the early days of something great.

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Posted by Dan Rodriguez on March 31, 2018 at 11:31 AM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

12(b)(6) denied in Beckman v. Chicago Bears

I wrote last year about Beckman v. Chicago Bears, a First Amendment lawsuit by a Green Bay Packers fan who holds season tickets and a Personal Seat License ("PSL") at Soldier Field and was prohibited from participating in an on-field event for season-ticket holders because he was wearing a Packers jersey. The district court denied the Bears' 12(b)(6); Beckman plausibly pleaded a connection between the event and the Chicago Parks District to make the Bears a state actor and viewpoint discrimination. (The court granted the NFL's motion to dismiss on standing grounds).

The state-action analysis relies on a combination of the CPD retaining power to approve certain on-field events for PSL-holders and receiving revenues from certain PSL sales. Beckman filed the complaint pro se, so the court's Iqbal analysis bent-over backwards to draw inferences in the plaintiff's favor. The court identified several inferences as plausible despite no express allegations to fill the gap. For example, there was no allegation that CPD approved the event at issue or that Beckman held one of the PSLs from which CPD gained revenues, both facts necessary to the state-action analysis. But the court insisted that both inferences were plausible, which was sufficient.

Posted by Howard Wasserman on March 31, 2018 at 10:30 AM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Law and Politics | Permalink | Comments (0)

Friday, March 30, 2018

Continuing "Futures"

We will continue our Futures of Legal Education for one more week, concluding next Friday, April 6.

Thanks for your readership!

I encourage you to send me guest posts.  As you see, we have had some great contributions from guest posters.  You can email me at daniel.rodriguez@law.northwestern.edu.  I just need permission to include your name and affiliation, and won't edit for content.

Dan Rodriguez

 

Posted by Dan Rodriguez on March 30, 2018 at 12:40 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 41 (guest post, Ian Holloway)

“But you don’t understand. They’re completely different.” That was the snorted response I received a few years ago from a lawyer when I suggested that as a profession, there were things we could usefully learn from accountants.

I’ve had exchanges like that several times over the years. But I was reminded of them when reading Hari Osofsky’s Post no 24 in this series (“Moving Forward Together”). In my time as a dean of law, my list of eureka moments is far, far shorter than the “Yikes! We shouldn’t do that again” ones. But without question, a bathtub moment occurred a four years ago, when I arranged for the associate dean of our medical school to take part in the work of our curriculum review committee.

On a scale of one to 10 in terms of revelation, it ranked a solid 12. For what my colleagues and I learned from him was that in medical school today, very little actual classroom work takes place, at least beyond the basic sciences taught at the beginning. Rather, almost all medical education takes place through what the docs call problem-based learning.

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Posted by Dan Rodriguez on March 30, 2018 at 12:34 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 40 (guest post, Joan Howarth)

Most symposium participants have not discussed attorney licensing as being ripe for serious reform.  In response, let me describe a licensing regime worth considering.  Its key features include:

  • A one-time examination, after three or four years of law school.
  • The examination is all or nothing, so the new attorney may handle any matter on day one, without regard to specialization or degree of difficulty.
  • The subjects tested have been understood to be foundational since 1870.
  • Memorization of common law rules is emphasized.
  • Although taken after graduation, the exam tests knowledge and application of doctrine mainly learned in the first year of law school.
  • The same multiple choice component is used across the country, but states get to determine competency by setting different passing scores on that single test. 
  • The test is sufficiently similar to the LSAT that elite law schools can make curricular decisions without being distracted by licensing concerns. 
  • Clinical experience – or even having seen an attorney with a client -- is optional prior to licensing.

Oh wait.  That’s our current system of attorney licensing.  Surely changing this is foundational for most of the other reforms that have been discussed. 

Joan Howarth (Michigan St.)

Posted by Dan Rodriguez on March 30, 2018 at 12:30 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Thursday, March 29, 2018

Sponsored Post: Promoting active learning

The following post is by Ellen Murphy, Assistant Dean for Instructional Technologies and Design at Wake Forest University School of Law. She can be reached at murphyme@wfu.edu.

As an instructional designer and law professor, one of the most frequent questions I am asked about teaching law today is “what can I do to help my students become active instead of passive learners?”Now, these are not necessarily the words my friends and colleagues use; instead, they say things like:“how do I keep my students attention;” “how do I engage my students;” or if they’re reading teaching and learning blogs, “how do I flip my classroom?” But they’re saying the same thing: how do I get my students to engage with the material – and with one another – during class

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Posted by Howard Wasserman on March 29, 2018 at 03:41 PM in Sponsored Announcements | Permalink | Comments (1)

Legal Ed's Futures: No. 39 (Robert Ahdieh)

The Promise of Shared Governance

Inspired by Luke Bierman’s description (#16) of the robust dynamic of faculty engagement that gave rise to Elon’s bold set of curricular and professional development reforms in the last few years, I wanted to share a few reflections on shared governance in legal education today.

To begin, I think we do well to recognize distinct phases of decision-making in academic settings (and beyond) and the appropriately distinct role of faculty at each of those phases.  The first phase is defining the strategic vision for our school: Where do we want to go?  The next phase is developing ideas for how best to pursue those goals. What are our tactics?  The third phase is executing on those initiatives, and the fourth is assessing them:  Was the program a success?  Should we abandon it, modify it, or continue as is? 

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Posted by Dan Rodriguez on March 29, 2018 at 12:00 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Wednesday, March 28, 2018

Legal Ed's Futures: No. 38 (Jerome Organ)

I greatly appreciate the thought-provoking views that have been shared through this virtual symposium.  Let me add my expression of thanks to Michael Madison for getting this launched, to Dan Rodriguez for facilitating the symposium, and to all of the participants for sharing their insights. I write to highlight three points, connecting to some of the ideas expressed previously by others. 

My first point follows up on Mark Tushnet’s idea that law schools should be encouraged to pursue institutional pluralism.  There certainly is some sense in which that is happening. Andrew Perlman highlights some of the efforts to foster greater integration of technology and to support innovation in which a number of law schools have been engaged.  If one were to review carefully the Learning Outcomes Database I mentioned in my first post, one can also see some evidence there of institutional pluralism in terms of some distinctive learning outcomes that two or three or four dozen law schools have embraced.  At the same time, however, the Learning Outcomes Database also provides some evidence suggesting a remarkable foundational similarity across law schools, with a few dozen law schools embracing just the basic learning outcomes mandated by the ABA.

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Posted by Dan Rodriguez on March 28, 2018 at 01:37 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 37 (Michael Madison)

A thousand thanks to all contributors to this Symposium. I have a handful of additional provocations to share:

  1. Regulation of the profession and accreditation of legal education providers:

The current system of accreditation and regulation of US law schools is seen by some as critical and by others as retrograde. As I type, a Site Visit Team from the Section of Legal Education and Admissions to the Bar of the American Bar Association is visiting my campus, my law school, and (as of 9 am this morning), my class.  I’ve seen the “classroom observation” rubric that the team is using.  It is hardly rigorous.  Nor is it inclusive of non-standard pedagogy.

Among the commentators in this symposium, Scott Norberg and Jackie Gardina in particular have addressed the role of the ABA in accrediting law schools.  Several commentators have broached the idea of non-JD legal education.  Frank Pasquale has cautioned appropriately against “managerialism.”  Law schools can game accreditation and rankings systems by masking their efforts as “innovation.”

My questions are:  Should the ABA continue to play any role in accrediting law schools and/or other providers of legal education?  How should legal education programs other than the three-year JD be accredited or otherwise regulated?  What is the appropriate relationship between regulation of legal education, which the ABA now dominates (in the US), and regulation of professional services / legal information delivery, which state Supreme Courts and/or state bars dominate?  How do we appropriately connect questions about the future of legal training (the academic side) to questions about the unauthorized practice of law (companies such as LegalZoom, Rocket Lawyer, and Avvo) and about unbundled legal services (the services side)?  In that ecology, what is the proper role (or roles) of professional licensure? 

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Posted by Dan Rodriguez on March 28, 2018 at 12:59 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 36 (Deborah Merritt)

Past, Present, and Future

 Several symposium participants have praised law schools for their innovations over the last generation. They note that schools have strengthened legal writing programs, expanded clinical offerings, and created new experiential courses. These advances are real, but they have been achingly slow. The MacCrate Report called for these improvements twenty-six years ago, and practitioners believed they were already long overdue. Law schools have made progress during the last quarter century, but the changes have often been grudging—and we still fall far short in preparing our students to serve clients.

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Posted by Dan Rodriguez on March 28, 2018 at 12:54 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Tuesday, March 27, 2018

SCOTUS: Hall v. Hall and the limits of all-purpose consolidation

SCOTUS decided Hall v. Hall, unanimously (in a most-Robertsian opinion) holding that consolidated cases, even those consolidated for "all purposes," retain their independent identities for finality purposes, so judgment on one set of claims is final and appealable, even if other sets of claims remain in the district court. I called this one wrong, before and after argument. My SCOTUSBlog recap is here.

What I did not expect was the Court's seeming rejection of any distinction between limited and all-purpose consolidation, at least for appealability purposes. (The Court never discussed the scope of consolidation in the case, because it did not matter). Consolidation for all purposes should create a single action--as if separate sets of claims and parties had been joined in a single action in the first instance under FRCP 18 and 20.* In a single action, even complete resolution of some claims or some parties does not produce a final-and-appealable order (absent FRCP 54(b) certification). The Hall Court disclaimed any suggestion that all-purpose consolidation was not allowed. But it pulled finality and appealability out as issues affected by all-purpose consolidation; in other words, all-purpose consolidation does not create a single action for purposes of finality and appealability, although it may create a single action for other purposes. But that takes much of the force from all-purpose consolidation, which no longer produces the same procedural effect (in at least one respect) as if joined in the first instance. And without the finality benefit, it is not clear why else parties or courts would consolidate for all purposes, as all other benefits are available with limited-purpose consolidation.

[*] I teach that consolidation for all purposes is permissible only if the claims and parties could have been joined in the first place--not only because of a common question of law or fact (required in both Rule 20 and Rule 42(a)), but also where the claims arising out of the same transaction or occurrence.

Posted by Howard Wasserman on March 27, 2018 at 02:48 PM in Civil Procedure, Howard Wasserman, Law and Politics | Permalink | Comments (6)

Legal Ed's Futures: No. 35 (Dan Rodriguez)

Debbie Merritt’s two posts (here and here) focus sharply and shrewdly on the matter of curricular elitism in law schools.  In her first post, she makes the global point that law schools are sub-serving the agendas and objectives of big corporations and the super elite of our profession.  In the second, she uses the example of criminal justice to drill down on the ways in which law schools give little purchase to the diversity of the vexing issues in our criminal justice system (for example, policing), issues which affect disproportionately those lesser advantaged.

Let me suggest that she is clearly right in her depiction of the state of the world (noting that some innovative exceptions are various law schools are the exceptions which prove the rule), but sketch some reasons to believe that the diagnosis is highly problematic, given the state of the profession.

Law school curricula track (at least) three conditions:  the nature and scope of the demand in the legal marketplace for students educated in a particular way; the availability of faculty resources and, relatedly, the general and particular interests of law professors; and, the identification of law schools with a version of a law school ideal type.  All three of these conditions make it very, very difficult to imagine law schools eschewing elite values and strategies.  (Alas, I should say at the outset, as I expect that Merritt and I share many normative priors).

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Posted by Dan Rodriguez on March 27, 2018 at 01:52 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 34 (Luke Bierman)

The devil may be in the details and the proof may be in the pudding but at Elon Law we learn by doing.  Adjusting Elon Law’s curriculum and calendar demonstrates that wholesale change can be accomplished to positive effect.  Of course, there are many effects that can go into assessing the outcomes of legal education.  USN&WR rankings may be one but more on that for another day.  Our assessment of the comprehensive redesign undertaken at Elon Law must first be measured by our stated objective “to create a bridge from legal theory and doctrine to the practice of law.”  Likewise, our efforts to address the primary critiques of legal education as too long, too expensive and too disconnected from the profession that we had identified offer another approach for assessment.  And our identification of learning outcomes along the logical continuum of preparation in Elon Law’s new curriculum provides yet another point of departure for assessment. 

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Posted by Dan Rodriguez on March 27, 2018 at 01:10 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

Legal Ed's Futures: No. 33 (guest post, Harold Krent)

In most of the world, legal education is focused on undergraduates.  The tradeoffs between the undergraduate and post-graduate models are many.  On the one hand, graduate education yields more mature students and students with more varied backgrounds and life experiences.  On the other hand, targeting undergraduates ensures that more people are exposed to the importance of law and its methodology, whatever their ultimate profession, with the added benefit, as my former colleague Dan Hunter reminds us in this symposium, of substantial cost savings.  Then, with concentrated training after graduation, the graduates could satisfy much of the current unmet legal needs, albeit at modest compensation.  We cannot rely exclusively on pro bono services to meet those needs, even as we use technology to expand the reach of such efforts.

There will always be need for the sophistication of attorneys in a Cravath or in the Department of Justice, and the graduate JD model that we currently follow may prove best to educate students for that path.  But, it is not as clear that graduate education is needed to prepare students to handle uncontested divorces, real estate closings, and administrative claims.

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Posted by Dan Rodriguez on March 27, 2018 at 01:07 PM in 2018 Symposium: Future of Legal Ed | Permalink | Comments (0)

"Bound and gagged in body armor, hung upside down"

My analysis of Monday's argument in United States v. Sanchez-Gomez is on SCOTUSBlog. It was a good argument--both attorneys were very good, the Justices asked probing-but-not-obnoxious questions, and the bench left room for both attorneys to answer. I believe the Respondents will win--Kennedy seemed inclined towards them. The title of the post (and of my SCOTUSBlog post) comes from a hypothetical from Breyer.

On a different note, what is going on with the male Justices and Justice Sotomayor. Justice Kennedy interrupted her three or four times yesterday. And in NIFLA v. Becerra (the clinic compelled-speech case) last week, the Chief cut Sotomayor off when she interrupted an answer to a question from Justice Breyer, snapping " Maybe could welet him finish the answer, please?", something the Chief virtually never does--and certainly not as sharply.

Posted by Howard Wasserman on March 27, 2018 at 10:50 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink | Comments (3)

Jurisdictionality of presidential immunity

Michael Dorf writes about a mini debate with Josh Blackman over whether Congress could by statute grant the President a temporal immunity from suit while in office (overcoming by statute Clinton v. Jones and, for the  moment, Zervos v. Trump). They agree that Congress could do so, although depart over whether Congress could grant the immunity in federal court only (Blackman) or federal and state court (Dorf). The debate, Dorf argues, is over the nature of this immunity--would it be a substantive limitation on other rights or a jurisdiction strip? Dorf says the former, which means it is substantive federal law applicable in state and federal courts.

Count me in the Dorf camp on this. Most immunities are proprly characterized as substantive rather than jurisdictional--they affect who can be sued and for what conduct, core questions of the merits of the claim.

Posted by Howard Wasserman on March 27, 2018 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (2)