Monday, March 03, 2014
An Empirical Analysis of the Infield Fly Rule
The third piece in my "Infield Fly Rule Trilogy," titled An Empirical Analysis of the Infield Fly Rule, is up on SSRN. As the title suggests, I (with the help of seven FIU students, who all seemed to enjoy themselves) conducted an empirical study of the past four MLB seasons to find out the frequency of Infield Fly calls and the effectiveness of the rule in avoiding dramatically inequitable cost-benefit exchanges.
Haters Gonna Hate
One of the most satisfying accomplishments of my career happened just a few weeks ago when I received my first slew of hate emails. They came all at once in response to my New York Times Op-Ed about post office banking and each one brought a smile to my face. (That’s not fully accurate—the three page hand-written letter I got from a prisoner in Georgia who informed me how difficult it is for him to even get stamps from the post office, let alone a loan, made me really sad). But I was cheered up when the Breitbart blog disparaged me and Elizabeth Warren in the same sentence—that just had me downright blushing. I was also flattered by the article that said that I was hiding my past as a high-powered bank lobbyist at Davis Polk—if only! Let me be clear, I’m not talking about nasty personal attacks that some of my friends have dealt with. I was just incredibly impressed by people who read the Op-Ed, disagreed with it, and took the time to write me a long substantive email. Although I did write each one back individually to thank them for their emails (except for the creepy ones), I would like to answer just a few general criticisms to post office banking here:
I have written about Post office banking in an article two years ago and more recently, in an essay on the HLR Forum so if you really want to disagree with me, those other sources will give you more to work with.
Sunday, March 02, 2014
Legrand and Werro on the Doctrine Wars
The following guest post is a contribution to the conversation continued by Rob Howse here earlier.
Professor Pierre Legrand teaches at the Sorbonne and has been visiting at the University of San Diego Law School and at Northwestern University Law School. Professor Franz Werro teaches at the Université de Fribourg and at the Georgetown University Law Center.
When It Would Have Been Better Not To Talk About a Better Model
So, the German Wissenschaftsrat — a government body concerned with the promotion of academic research (broadly understood) — suggests that legal scholarship should become more interdisciplinary and international. And the American Bar Association — a non-government body devoted to the service of the legal profession — opines that legal education should become more practical and experiential. These pro domo pleas featuring their own interesting history and having generated much debate already, we want specifically to address Professor Ralf Michaels’s reaction.
Saturday, March 01, 2014
Should the government be required to recognize and protect life?
I'm writing to you from beautiful Bismarck, North Dakota, where I spent the day speaking with folks about SCR 4009, commonly known as the Personhood Amendment. It will appear on the ballot this November, and if it passes will become part of the North Dakota Constitution. Here's the language, which is similar to failed amendments in Mississippi and Colorado:
"The inalienable right to life of every human being at any stage of development must be recognized and protected."
This is, of course, an anti-abortion measure that, because of the Supremacy Clause, will have no direct legal effect on abortion, but that could prohibit IVF treatments, DNR orders, living wills, the right of pregnant women to refuse certain prenatal prescriptions and make decisions regarding childbirth, and the right of all of us to make many medical decisions. It also suggests that North Dakota would now have a positive duty to "protect" life, as opposed to the more typical negative requirement that it generally not interfere with people's lives.
Having become somewhat of an expert on this amendment, I'm struck by a few things. First, this amendment turns constitutional law on its head, imposing on North Dakota a German-style positive duty to undertake a panoply of measures (state-provided housing and food, anyone?). Second, it was approved by our legislative assembly without regard to these potentially wide-ranging consequences. Third, and maybe most interestingly, it raises a more theoretical question: what role should state or federal governments play in "recognizing" and "protecting" life? Should states have a positive duty to recognize and protect life, or would that turn them into unworkable and bankrupt socialist utopias? What, indeed, is "life" for purposes of protecting it? At this level, the Personhood Amendment ceases to be a political issue and becomes one of fundamentally restructuring social and governmental systems.
Waldron v. Seidman, and the obligations of officials and the rest of us
"Never Mind the Constitution." That's the awesome title of this characteristically sharp and learned essay by Jeremy Waldron, reviewing in the HLR Mike Seidman's new book, On Constitutional Disobedience. Seidman's got a cheeky and funny short reply to Waldron, entitled, appropriately enough, "Why Jeremy Waldron Really Agrees With Me." I wonder if Seidman's Response will continue the apparent trend of the personal title for scholarship, e.g., Why Jack Balkin is Disgusting. If Susan Crawford's Response in the Harv. L. Rev. Forum to the review of her book by Chris Yoo is any indication, I suspect at most we can use these few data points only to identify a trend in favor of the "meta" title and not make broader generalizations just yet.
Moving past the title to something like the merits, I'll confess I'm pretty skeptical toward the general thrust of Seidman's argument (as characterized by Waldron and as evidenced in his NYT oped from last year). He is, as Waldron notes, basically a philosophical anarchist and that's a position I find largely untenable under particular conditions of a reasonable well-working liberal democracy. (Importantly, some of Waldron's work on political obligation was what led me down that path but little of Waldron's work on that subject figures into his review of Seidman.) One last mildly interesting thing to note is that Seidman's embrace of philosophical anarchism and his export of it to constitutional theory basically coincides with the thrust of Abner Greene's recent book, Against Obligation. There are differences between them, some of which are discussed here (review of Seidman by Greene) and here (review of Greene by Seidman). For those interested in these overlapping and important projects, the BU Law Review published a symposium on these two books last year, and you can find the contributions here, which I'm looking forward to exploring further, since, full disclosure, I am writing dreaming up something inspired by these various works on the moral and political obligations of prison or other corrections officials as a distinct class of officials).
Thanks to Dan and the rest of the Prawfs folks for having me as a guest blogger during March. I'm an assistant professor at the University of North Dakota School of Law and am currently doing a semester-long visitorship at New England Law | Boston. I teach criminal procedure, sentencing, constitutional law II, and First Amendment, and write at the intersection of First Amendment and criminal law, specifically "group" or "membership" crime, with an occassional dash of national security. You can find some of my representative work here, here, and, currently making its way through the spring submissions season, here.
Some of the issues that particularly interest me, and that I hope to explore during this guest blogging stint include: the role of the law professor in the "new" law school milieu of practice readiness, etc.; the role of the law professor as public intellectual, as Nicholas Kristof has recently discussed; and the abiding importance of scholarship for teaching and society, and how it can be understood and contextualized. Maybe I'll get to these, and maybe other events will unfold.
Friday, February 28, 2014
As March approaches, I just wanted to take a moment to thank our February guests, some of whom will linger as they get some remaining thoughts off their desk, and also to welcome our band of visitors for March: Erik Gerding from Colorado (with a new book to promote!), Steven Morrison from U North Dakota, Mehrsa Baradaran from Georgia, and David Han from Pepperdine. Thank you all for being part of the conversation and community here!
New York Times v. Sullivan at 50
As the faculty advisor to the Alabama Law Review, I'm delighted to note that the Law Review today is hosting a symposium on the 50th anniversary of New York Times v. Sullivan. The editors did a wonderful job putting together a great list of speakers. We are welcoming Judge U.W. Clemon (ret.), who not incidentally was the first African-American federal district court judge in the state; Judge Robert Sack of the Second Circuit; and Professors Sonja West (Georgia), Mark Tushnet (Harvard), RonNell Andersen Jones (BYU), David Anderson (Texas), and Christopher Schmidt (Chicago-Kent). I'm especially happy that the Law Review, in selecting these speakers, has recognized that the Sullivan decision is more than one thing: it's a speech case, to be sure, and an important press case, and an important case in comparative constitutional law (sometimes accepted, sometimes rejected), but it is also fundamentally a civil rights case, an aspect of the decision that is sometimes omitted. I'm glad in particular that students in and from Alabama, where the case began, have made an effort both to commemmorate this important decision and to spotlight its crucial civil rights aspects. I'm looking forward to a great day and want to praise the students who put this together. If you happen to be down the road enjoying a late breakfast at Rama Jama's or an early lunch at Dreamland, y'all come.
This being a blog, I will also link to a recent piece of mine on institutional actors in New York Times v. Sullivan, which doubtless is flawed but attempts to (1) think about the press, the civil rights movement, and the courts as institutional actors in the case; (2) ask questions about the long-term status of Sullivan as a canonical constitutional case; and (3) offer a puckish point in a footnote about Professor McConnell's excellent recent discussion of Citizens United as a Press Clause case. That point links my interest in law and religion to my interest in freedom of the press, and I believe Prof. West's paper today will take up a similar topic. Given similar concerns about identifying "religion," "churches," and "the press," it may be that church-state scholars can and will have something to add to thinking and writing about the Press Clause.
Thursday, February 27, 2014
Blog Post as Community
I generally experience PrawfsBlawg and othe law prof blogs the old-fashioned way -- checking out the site by clicking on the link from my "favorites" bar. The disadvantage of reading blogs this way is that you're always drawn to what's on top; you may miss something interesting that's percolating below.
Prawfs is fortunate to have a couple of blog post "communities" that have developed here, thanks to Dan and Sarah. This one -- on law review placement activity -- has over 400 comments. This one, a clearinghouse for law school hiring market questions, has over 1500 comments. I imagine participants in these communities only visiting these posts -- or at least, visiting these posts separately from the rest of the blog -- and checking in on the latest news. Most participants are anonymous, although some have handles that make their comments recognizable within the collective. Even with the anonymity, there are conversations that take place across time. There are news and opinions -- points and counterpoints and counter-counterpoints. These posts are communities which spring up each year at a certain time, like Brigadoon, and then gradually disappear, only to come to life again the following year.
These communities remind me a bit of urbanbaby, the website where anonymous posters address a wide variety of issues related to childhood. No one knows who is talking to whom, but there are distinct personalities, strong views, and collective wisdom. You may not be able to trust any one poster, but if you get enough of the same reply, and it makes sense, you can probably run with the advice. I can't vouch for urbanbaby now, as I haven't visited in some time, and it's not in the zeitgeist like it was in the mid-aughts. (Here are some NYT and NYMag articles about it.) But as a young parent, I used to call it the oracle, because you could put in almost any question and get a set of thoughtful, clever, and, yes, snarky replies. I think it shows that under the right conditions, you can have a sizeable, anonymous, online community that shares information and feels like a place you want to visit.
And if you want to check out some AALS hiring market poetry, click here and scroll down.
Wednesday, February 26, 2014
"We the People" Petition
I’ve submitted a petition at the White House’s “We the People: Your Voice in Our Government” website. Here it is:
And here is why I submitted it and hope you will sign it:
Once in a while, a federal judge’s commission -- that big, official-looking piece of paper signed by the President that identifies the person appointed to a particular federal judgeship -- disappears. That should come as no surprise. It happens to documents of all sorts.
Missing judicial commissions are not a national crisis. Indeed, they do not appear to be a problem at all.
First of all, no one is going to lose their job over a lost commission, because it is not the possession of a commission that makes the judge. Remember Marbury v. Madison? Besides, in Marbury the Supreme Court said that a replacement commission is as valid as an original anyway.
Second, replacement commissions do get issued. Apparently they go missing often enough that the government has set up a system to handle them. And the system seems to be working just fine.
And that is the problem: it seems to work. But it is a secret system, so no one really knows. Practically speaking, this is not a big deal, and knowing about it is not likely to change much of anything. But the government should not keep secrets except when there is a darn good reason, and it is difficult (impossible?) to imagine a good reason to keep the replacement commissions process secret. So, the government should share this small and harmless thing with the governed.
Besides, it would be interesting to know how the government goes about deciding when a replacement commission should be issued, and how it deals with some of the interesting puzzles that must confront whoever is running the show. For example, what happens when a judge who was appointed by a now-dead President needs a replacement commission? How does the dead President’s signature get onto the replacement commission? Are judges allowed to have only one commission at a time, or are they allowed to have a spare, or one per office, or as many as they want? If a judge changes his or her name, does the judge receive a new commission? And so on.
I say a little bit more about this about midway through a short paper, but you don’t need to read it to understand why this petition is worth signing.
Should A Colleague Review a Colleague's Book (or a Journal Publish That Review)?
I appreciate that asking questions (especially in the titles of blog posts) generally is taken as signaling that the author thinks he knows the answer to the question perfectly well. In this case, to be quite clear, I'm actually asking a question, not making an accusation.
So: Should a professor publicly review a book by a departmental or, in the case of law schools, faculty colleague? Or is the potential or perceived conflict of interest substantial enough to make this a bad academic practice? Of course, I ask for a reason. The latest issue of the Texas Law Review, which I am glad still publishes book reviews at all, features a review that, unless I have my facts wrong, involves one colleague reviewing another's book. The review is quite laudatory; other reviews have been as well, so doubtless the plaudits are deserved. But I admit that seeing one member of a law school reviewing the work of another, especially in a prominent venue, did give me pause.
It's not clear to me that there are any well-known rules about this, at least in the legal academy. I can think offhand of other examples of this conduct, certainly; a few years ago, for instance, two little-known Yale Law School professors engaged in a dialogue about each other's books in the Yale Law Journal. I would admittedly consider the ethical norms and practices of other academic departments a better guide than the practices of law schools, let alone law reviews themselves--although I was surprised that the Texas Law Review didn't simply seek a review by a non-colleague. But I don't know what those norms are, beyond a quick glance at this interesting but non-authoritative piece. Perhaps some of our readers, especially those in the academy but outside law schools, can offer some guidance on what best practices elsewhere in the university are with respect to such matters.
The other side of corporate speech
There are reports that the NFL is monitoring Arizona's SB 1062, which gives private businesses the right to refuse service to anyone if providing service would violate their religious beliefs. Phoenix is scheduled to host next year's Super Bowl, but the league stated that such a bill would be inconsistent with the league's (stated and purported) policies of tolerance, inclusiveness, and non-discrimination for all sorts of reasons, including sexual orientation. The fear among Arizona business and political leaders now is that the NFL may move the game if this bill becomes law (it has passed both houses and is waiting the governor's signature). And there is precedent for this--the league moved the 1993 Super Bowl from Arizona (theme warning!) when it failed to recognize Martin Luther King Day as a state holiday.
But isn't this corporate speech? Isn't the NFL, a powerful entity, engaging in First Amendment expressive activities by using its economic influence to affect public policy? Isn't this exactly what critics of the "corporations have First Amendment rights" meme object to? (The NFL is not a corporation but an unincorporated association of associations, but I doubt that matters much for most arguments). Liberals and progressives and supporters of LGBT rights--the very groups most likely to be criticsl of Citizens United, are now quite pleased with, and supportive of, the NFL's stance and the (hoped-for) effect it could have on this horrific piece of public policy. But other than the valence of the political position at issue, how is this different than a large company trying to affect environmental policy or elections (which, in turn, will define policy)?
This gets at what I always have regarded as an inconsistency in many anti-corporate-speech arguments. We like businesses that are socially conscious and that work towards the public good. But that must mean they have the same right to define (what they regard as) the public good as anyone else. It cannot simply be that entity speech is ok when it promotes LGBT rights, but not ok when it promotes something we do not support.
Update: Gov. Jan Brewer vetoed the bill.
AALS: is, not, and ought
Posts and comments about scholarship funding (and related other subjects) mention AALS from time-to-time. Perhaps it would be helpful to frame more precisely what the ass'n views as its role (speaking here just as one volunteer, not in any way for the organization):
The AALS is a voluntary association of law schools. It is not an accreditator and has nothing in the way of power over law schools or their faculties. Rather, it is an organization made up of law schools which have accepted the association's core values, abide by its membership bylaws and, for reasons best known the law schools themselves, believe that the association provides sufficient value to warrant joining. Where the on balance tradeoff augurs against continuing adherence to these core values, the institution should surrender membership, and there should be no penalty for its students, graduates, and alumni for doing so. "Is this association consistent with our institutional mission and valuable for us" should always be the question for the law school.
The AALS takes no global position on what a law school must be -- how it trains its students, how it configures its faculty, what it costs, what should the tradeoff be between teaching and scholarship, or other central issues that are driven, in the main, by the articulated mission of law school.
Funding legal scholarship
Present economic circumstances in law schools -- or, more to the point, economic circumstances of current and prospective law students which are shaping the predicaments of many law schools -- rightly raise the hard question of how, or even whether, most law schools should subsidize faculty scholarship. The "why" question is essential, and warrants continued attention.
For now, if I may, let me turn to the "how" question:
Matt Bodie's posts, and the many comments accompanying them, engage the question of whether internal subsidies can and ought to incentivize scholarship at the quantity and quality level that is appropriate to the mission and goals of the institution.
First, an observation about "theory," before turning to "practice": The model of law schools which aspire to be incubators of meaningful scholarship is one in which faculty compensation is tied squarely to the ability and willingness to engage in scholarship, regularly and reliably and over the course of an academic career. Deans and faculties do their job in good faith and in good conscience when they undertake to monitor equitably and comprehensively this engagement. Students' tuition supports scholarship in law schools just as it subsidizes scholarship by faculty in undergrad and other graduate settings. (This seems to go missing in the debate. Does the Columbia undegraduate truly think that their tuition is going primarily to the teaching work of their full-time, ladder rank faculty?). Accountability to students demands that the law school be responsible and relentless in ensuring that scholarship is a key part of the faculty member's work product. Different law schools will make different allocative choices to be sure; but it ultimately a gesture of defeat for any law dean to throw up her hands and say "scholarly productivity cannot be adequately measured nor adequately monitored, so I can't be bothered to do it."
Tuesday, February 25, 2014
More personal jurisdiction from SCOTUS
SCOTUS today decided Walden v. Fiore, unanimously (per Justice Thomas) holding that a district court in Nevada lacked personal jurisdiction in a Bivens action against a Georgia police officer who wrongfully seized money from plaintiffs at the Atlanta airport. Adam Steinman a the Civ Pro/Fed Courts blog has some excerpts.
No major new doctirnal ground broken. It does reframe the effects test to focus on the defendant's contacts with the forum, not with the plaintiff, although recognizing that they may be intertwined. But injury in the forum, even if the defendant knew the injury would be suffered there (arguably the case here), is not sufficient absent some conduct by the defendant that implicated the forum (physical entry, phone calls, affect on reputation or property there, etc.). Otherwise, the plaintiff otherwise controls where she lives and where she feels the harm, a unilateral act of the plaintiff that is insufficient to establish jurisdiction--the plaintiffs here were harmed in Nevada because they chose to live in Nevada when they wanted their money. At best, an injury felt in a state can show that the defendant formed a contact with that state.
The Court drops a footnote (n.9 on p. 13) that it once again is not deciding anything about internet-based contacts. The targeting that the opinion seems to demand could be read to mean that broad enough wrongdoing (say, a fraud scam over the internet) will not create jurisdiction in the victim's home, because the defendant targeted the world, not just that plaintiff's state.
Like Daimler v. Bauman, decided last month, this is another good teaching case, in that it simplifies things and discusses the doctrine as a whole. It shows clearly that the effects test is not a unique separate test (as some lower courts had suggested), but another way that a defendant creates minimum contacts. So my syllabus just got revamped (again) when I teach P/J in April--Daimler instead of Good Year or Helicol and Walden instead of Calder and Clemens v. McNamee (a 5th Circuit decision).
When Should Originalism Fall Back on Precedent?
In a previous post, I suggested that originalism might benefit from recognizing a fallback rule of deference to judicial precedent. The idea would be to preserve a first-order commitment to the Constitution's original meaning, but to acknowledge that when the original meaning cannot confidently be discerned, the best approach is to fall back on precedent. Underlying this argument is a dedication to judicial constraint, doctrinal stability, and a view of constitutional law as transcending the personalities of individual judges.
Among the (many) questions raised by this fallback rule is when it kicks in. That is, how should a judge determine when to fall back? I find this question to be fascinating and complex, and I'm continuing to work through it. With apologies to Peter King, here's what I think I think.
The basic issue, as Gary Lawson explained in Proving the Law (86 Nw. U. L. Rev. 859), is defining the standard of proof for legal propositions. We see endless debates over this issue in the administrative-law context as judges and scholars talk about whether a statute is "clear" for purposes of the Chevron inquiry. In the realm of constitutional interpretation, there's a similar question about where to set the bar for establishing the determinacy of the Constitution's original meaning.
I'll leave these big questions to far better minds than mine. I'd just like to suggest that regardless of where one sets the bar for constitutional determinacy, deference to precedent can work as a fallback rule when that bar is not met. Of course, the universe of cases in which precedent is relevant will be affected by the applicable standard for determinacy. But the basic operation of the fallback rule doesn't change.
I'd also note that, in my (tentative) view, it's possible to argue that the bar for determinacy ought to vary depending on whether a case is one of first impression. We can imagine (I can, anyway) an originalist judge who raises the bar for determinacy when the result would be to overrule a line of judicial precedents. There's even some basis for believing that this sort of approach may have had currency around the time of the founding. I suppose one might counter that it's not the bar for determinacy that's moving, but rather whether judges choose to implement the Constitution's determinate meaning. That strikes me as a fair point, and one whose implications are worth considering. But either way, the upshot would be that it takes more and better evidence to unsettle something than to settle it.
A Post-Script on Samuel Sheinbein
I'm not sure how many of you remember this, but one of the more fascinating stories my co-authors (Jennifer Collins and Ethan Leib) and I relied upon in our 2009 book on criminal justice and family status had to do with Samuel Sheinbein. After he gruesomely murdered someone in Maryland, Sheinbein, with his father's assistance, escaped to Israel and avoided extradition. The Sheinbein parents thought they were doing their parental duty by trying to squire their son to a more compassionate jurisdiction. Sheinbein was charged and convicted in Israel and sentenced to 24 years in prison in Israel, with furloughs, which is probably a better outcome than he would have received in Maryland. (Though with the recent excuse of affluenza, who knows?)
For our purposes, we were primarily interested in Sheinbein's parents' involvement in assisting their son, since our Privilege or Punish: Criminal Justice and the Challenge of Family Ties focused on two questions: what role does and what role should family status play in the operation of the criminal justice system? Among other things, we discovered that about a dozen states around the country explicitly carve out exemptions for family members from laws that otherwise prohibit assisting fugitives and we argued that these exemptions were largely misguided and should be jettisoned. Here's a short version of what we argued on the Freakanomics Blog.
The Sheinbein parents' good intentions, certainly understandable if not justifiable, have had deadly consequences. For the latest news is that Samuel Sheinbein the killer is now dead. He was shot by special forces in a prison raid once he barricaded himself in a room within the prison; somehow, Sheinbein secured the firearm of a guard and seriously wounded three prison officials along the way. There's no definite lesson to be learned here from one anecdote--one might well imagine the Sheinbein saga ending with a story of redemption and rehabilitation. Here, however, it was intransigence and bloodshed. And so, when legislators are considering whether to be sympathetic to parents or children placed in difficult positions by their criminal family members, they would also do well to remember the Sheinbein story, a case where we see the cruelty and cost of misplaced compassion.
Scholarship funding: why and how
Earlier this month, Prof. Bodie helped us focus on an important set of issues regarding the structure of funding and incentives for legal scholarship. In his posts, and in the voluminous comments, he offers a number of descriptions and also prescriptions about how best to reshape the landscape within law schools.
As I enter this debate (as an experienced dean, in addition to a longtime academic), let me sharpen this discussion by revealing the three questions raised by Bodie and the commentators:
- Why should law schools be subsidizing scholarly production by their faculties?
- What is the optimal model for such subsidies, given the goals of: (1) increasing the production of scholarship within particular schools and within the academy more generally; (2) limiting the burdens on law students; and (3) administering a system in an efficient and fair way?
In short, the questions are about "why" and "how."
As to the "why," the issue continues to be chewed over in the media, the blogosphere, and occasionally in more extended articles and books (Brian Tamanaha's being perhaps the most important recent example).
My own summary of the reasons why we do it is not, to put it mildly, arrestingly novel, but merely summarizes what, to me, is the compelling cluster of reasons:
- As part of universities, we have an obligation to engage actively and purposively in the development and dissemination of knowledge -- knowledge about our profession, about the structure of institutions in which law is created and in which it performs functions of consequence in a democratic society, and about the content of legal rules, their implementation, and their desirability. No law decrees that any one law school, or any collection of law schools, need to be part of colleges or universities (and several aren't, of course). But the price you pay for being embedded in a university structure and culture is that your tenure-line faculty engage in the practice of scholarly work and production;
- Law professors have a comparative advantage in doing this scholarly work. This is true by virtue of their employment structure; it is true by virtue of their competency, as measured by colleagues who hire them, deans who evaluate and incentivize them and, to a large degree, by self-motivation and habit of mind. Full-time law professors are especially suited to engage in the work, research, and collective efforts required to do legal scholarship at a high level. This is so not because of innate qualities of brilliance or even temperament; it is so because that is what they are hired and required to do and, further, because they have the fertile environment of institutions filled with capable, ambitious colleagues and equally capable, ambitious law students;
- To be sure, at its worst, legal scholarship is banal, remote from considerations of both the bar and the academy, and is overwrought. The same can be said of bad judicial opinions, bad statutes, and bad work product in nearly every field. At its best, however, legal scholarship can and does help shape the law in constructive directions, can help shed illuminating light on difficult legal and policy puzzles, and can help advance important societal goals. Choose your favorite example. The work of environmental law scholars from the 70's and 80's helped transform modern environmental law; actual people benefited from these efforts. The work of constitutional lawyers helped propel the cause of marital equality in the past fifteen years. The work of libertarian legal scholars and political economists are helping shape the debate over eminent domain in the post-Kelo world. The list is a long one. The value of legal scholarship should be judged by its best practitioners, not its worst excesses.
Sport, non-sport, and judging
I have wanted to use Jordy's posts about judging and reputation to jump into other things, especially as the posts pertain to activities such as figure skating. And I want to tie this to my ongoing interest in defining what constitutes sport, for which I believe I have landed on a workable definition that focuses on whether a contest is decided by evaluating the intrinsic quality of an athletic skill (not sport) or the instrumental result of the performance of that skill (sport). The attempt to understandin judging may introduce some consequences into the distinction.
Sport is governed by what Mitchell Berman called the “competitive desideratum,” the desire that the “outcome of athletic contests . . . depend (insofar as possible) upon competitors’ relative excellence in executing the particular athletic virtues that the sport is centrally designed to showcase, develop, and reward.” The outcome of a sporting event should not be decided by anyone other than the players themselves. And it particularly should not be decided by an umpire or referee making pronouncements about the game's rules.. Of course, that is not entirely possible, since sports are governed by rules that must be applied and enforced by someone, with enforcement certainly influencing the outcome.
Banning home plate collisions: An exercise in statutory interpretation
Major League Baseball yesterday announced an experimental rule banning, or at least limiting, home-plate collisions. The rule is intended to protect players, as home-plate collisions are a common cause of concussions and other injuries to catchers. Whether it does or not provides an interesting exercise in statutory interpretation.
Monday, February 24, 2014
American legal scholarship and legal education misconceived
Duke's Ralf Michaels has undertaken to celebrate Germany superiority in legal scholarship. This is a peculiar venture, one that Rob Howse has skewered elsewhere on this blog, he focusing on the comparative aspects of the project. This seems to me a good enough skewering, although I would have to leave to the experts in the comparative law & German elements to speak knowledably about Michaels' perspectives on this subject.
Let me just say a few things about the depiction of contemporary American legal scholarship.
Here, says Michaels, "faith in legal doctrine as a sufficiently exact tool to deal with social issues has been destroyed." ???!!! I suppose one can say that everything is embedded in the meaning of "succiently exact." Here, as elsewhere, law in action is seen as a necessary supplement to law in books. Legal doctrine doesn't enforce itself; the social elements of doctrine in, at the very least, framing fundamentally matters of implementation and administration of public policy are well understood. This is not about the "here," after all. Max Weber understood this. So did William Blackstone. So, who does Michaels imagine believes that doctrine is sufficient or is exact?
AALS should fund scholarship?
Earlier this month, Prof. Matt Bodie penned a collection of very interesting posts on legal scholarship and its funding model. I will have various things to say about his valuable, and controversial, ideas in the coming days. Let me start out by responding to a narrow point he made (mentioning me and Judy Areen by name in this post! We were blushing respectively from Chicago and Washington DC):
The AALS is funded principally by dues paid by member law schools and, secondarily, by receipts from meetings. (The meetings are, despite a chorus of complaints about high costs, essentially break-even propositions, but that is another topic for another day). The overall budget for the organization is, given the overall work, not a large one. And the financial pressures upon law schools counsel caution with respect to either changing the structure of dues or increasing dues annually. Indeed, the last three years has brought very modest increases of said dues, unlike the ABA.
Administering research grants through the AALS would, quite clearly, require a wealth transfer from law schools, many quite strapped, to the AALS. It is hard to defend such a choice under current conditions.
Moreover, it would be hard to fathom that the AALS would be a better steward of law schools' money for scholarship than the law schools themselves. The choices of how best to support and subsidize faculty's scholarly work are internal choices, driven the respective missions of the law schools. To be sure, AALS has, as one of its core values, legal scholarship. But the matter of how best to incentivize and promote such scholarship among member schools is properly a localized one.
This post, with due respect to Prof. Bodie, is an easy one, as the AALS grant idea is really a non-starter. He raises some harder and more complex issues elsewhere in the series. And I will join that debate in separate posts.
Judgment Calls and Reputation, Part Three: Attorneys
It has been fun reading some of the thoughtful reactions to my previous post on the influence of reputation on figure skating judges. Of course, judging at the Olympics is done anonymously now (not that it necessarily helps), but what if skaters could choose their judges, or at least know in advance the reputations of the judges? Would their routines or strategy change in light of that information?
I’m no skater. But I know from my days in law practice that knowing a judge's reputation (or even specific gossip on a judge) can make a big difference in litigation strategy. The reputation of individual judges or entire courts, or other lawyers’ war stories about specific encounters with a judge, can affect forum shopping, motion practice, or whether to request a bench or jury trial. My current research has focused on the influence of attorney gossip about judges, especially in the federal district courts, and I thought I would share a few highlights here.
Brevity is . . . wit
In trying to make sure my students are practicing writing as a skill (along with the thinking and analysis that is a precursor to writing), while also trying to ensure an appropriate workload, I have settled on using short writing assignments. I assign quick, discrete questions inviting short, quick-hitting analysis of those questions (e.g., "Identify the problems with this pleading"). The benefit is that it forces them to perform legal analysis--identify and explain a rule and apply it--without room to ramble or BS or throw everything at the wall to see what sticks, which also makes them easier to evaluate and grade. I have a better sense of who gets it and who doesn't. I also think I am able to provide better feedback (written and oral), since the analysis necessarily is compact and concise. It also offers coverage--I can test on a lot of different areas, while avoiding the discomfort I always felt in relying exclusively (or even heavily) on multiple-choice (despite the obvious bar-exam benefits).
And, of course, it famously can be harder to write less than more, so there is a writing challenge to it. (As I think back to my days as a journalism undergraduate, the longest thing I wrote in my first two writing courses was at most 1000 words). Meanwhile, student are writing "full" papers (briefs, memos, etc.) in legal writing, so I know they are meeting a different type of writing requirement elsewhere.
There are a number of ways to do this. One colleague shared that in courses in which students write judicial opinions, the word limit is 2,358--the number of words in Justice Holmes' dissent in Abrams v. United States. As my colleague explains, if Justice Holmes only needed that many words to create what would become free speech doctrine, law students do not need more. I am going to adopt this for the opinions in my upper-level classes. As for other assignments, my in-semester essays run anywhere from 500-1000 words (depending on the class and the assignment). And I have moved to primarily short-answer in-class exams, consisting of 30-or-so questions, with a maximum of 110 words for each answer.
The goal in all of this is that students are writing, even if only a small amount at a time, and even if it does not precisely reflect the briefs they will write in practice. There still is educational benefit in this sort of writing.
Friday, February 21, 2014
George Anastaplo, RIP
I am late to the table in commenting on the death of George Anastaplo last week, but one of my colleagues insisted I could not claim to love the First Amendment and not post something about it here. Anastaplo had a storied academic career as a con law and political science scholar. But Anastaplo he lived it first, litigating his own First Amendment challenge to his denial of admission to the Illinois Bar. He lost 5-4, although Justice Black wrote a dissent (for himself, Chief Justice Warren and Justices Douglas and Brennan) defending the First Amendment and the role of lawyers in times of political conflict. On Black's instruction, the dissent was read at his funeral.
The Supreme Court's Second Thoughts About the First Amendment
The Supreme Court's pending docket includes several cases that implicate the freedom of speech. Among them are McCullen v. Coakley, which deals with speech outside of health care facilities where abortions are performed, and Harris v. Quinn, which has potential implications for public employee unionism.
An interesting aspect of these cases is the intersection of the First Amendment with principles of stare decisis. In both McCullen and Harris, there's a possibility that the Court will reconsider a high-profile precedent. The Court doesn't strictly need to reconsider the applicable precedents (which are Hill v. Colorado and Abood v. Detroit Board of Education, respectively) in order to reach a decision. But it's worth thinking about the role that stare decisis may play if the Court concludes that the precedents are flawed.
At the outset, it's important to keep in mind that the relevant precedents rejected claims of First Amendment violations. From the perspective of stare decisis, the question is this: When is it appropriate to retain a precedent that improperly (in the view of today's Court) truncates expressive liberty?
In theory, the Court leaves open the possibility of retaining precedents on grounds of stare decisis even if they are unduly limiting of expressive rights. But in practice, the Court has tended to describe infringements on the freedom of speech as deeply and fundamentally worrisome, which makes it more difficult to argue that a given precedent should be retained notwithstanding its cramped conception of expressive liberty. That creates a puzzle as to the role of stare decisis in First Amendment jurisprudence.
Whether or not it happens this Term, it'll be useful to hear more from the Court about how the value of speech interacts with the value of doctrinal stability in undertaking the stare decisis calculus.
Not a sport, redux
Jordan presaged it, although for different reasons: Judging in women's figure skating is once again a thing, as people question the scoring that gave a Russian skater a surprisingly easy Gold Medal on Thursday. The issue here is less about reputation than about good, old-fashioned home cooking. And a judge who was suspended previously for trying to fix a competition previously. And we may be back to concerns about anonymous judging--established to avoid collusion and bloc-voting, it also removes accountability.
Thursday, February 20, 2014
Show me plead on, plead off
At the end of the pleading portion of Civ Pro, I spend one lecture day walking through the pleading process and all the rules and issues, showing how the pieces (which I teach in discrete and independent segments, not necessarily in chronological order) fit together. A few years ago I started calling this "Miyagi Day," because it felt a lot like that scene where Mr. Miyagi shows Daniel-San how waxing and sanding and painting fit together. And the students, shockingly, seemed to know and appreciate the reference.
Tonight was Miyagi Day (or Night, whatever) and this is what I found when I walked into the room:
Wednesday, February 19, 2014
The myth of the trial penalty?
Every now and then, I like to spotlight some articles that unsettle the conventional wisdom, particularly in criminal law. Add this one to the file. Almost every teacher of criminal procedure is aware of the idea of the "trial penalty," which conveys the sense that defendants who exercise their right to a trial will invariably get a worse result if convicted than if they plea bargain. The leverage prosecutors have in exploiting the trial penalty dynamic was described by my friend Rich Oppel in a front page NYT story he wrote a few years back.
Comes now (or relatively recently at least) David Abrams from Penn with an article that slays the sacred cow of the trial penalty by providing, you know, data. And the data is the best kind of data because inasmuch as it's true, it is SURPRISING data. Specifically, Abrams argues that based on the study he performed (which originally appeared in JELS and now appears in a more accessible form in Duquesne Law Review), the data supports the view that in fact there's a trial discount not a trial penalty. Fascinating stuff. Abrams offers some suggestions for what might explain this surprise: possibly a salience/availability bias on the part of the lawyers who remember the long penalties imposed after dramatic trials. Regardless of what explains the conventional wisdom, the competing claims should be ventilated in virtually every crim pro adjudication course.
Since this empirical stuff is far outside my bailiwick, I wonder if those who are in the know have a view about how Abrams' research intersects with the Anderson and Heaton study in the YLJ, which argued that public defenders get better results in murder cases than court appointed defense counsel, or Bellin's critique of that YLJ study here. Anderson and Heaton basically argue that public defenders get better results because they get their clients to plea bargain more frequently than court appointed counsel and that explains the outcome. As I recall dimly, that conclusion may have been true for the murder cases but the study didn't purport to make the claim that PDs were better across the board and maybe that's consistent with Abrams' views too. It would be odd (wouldn't it?) if comparatively fewer murder cases involve a trial penalty while the many other cases do not and in fact show a trial discount. Granted, these studies took place in different cities, etc., so I am also wondering if the various studies can be reconciled. Thoughts?
Will Germany always really best the US (and the world) in doctrinal legal scholarship?
Germany's Science Council (Wissenschaftsrat) has issued a report on the state of legal scholarship in the country. At first glance it is fairly interesting as an overview of the strengths and weaknesses of the discipline. The report has attracted, however, a rather unusual response at Verfassungsblog from a professor at Duke, Ralf Michaels, who seems to hold to theories of cultural determinism in legal education. According to Michaels, "German doctrinal scholarship will always be superior to that of other countries,.."
Always? I am not sure what to make of this. Is it an indirect insult, a polite (at least in Germany) way of saying that Germany will not ever be superior in Rechtsphilosophie or interdisciplinary scholarship? Even if one were to accept for a moment cultural determinism, and I do not, still one would have to wonder about the soundness of the assessment of the historical German legal culture-is the German public law tradition, and its strengths, to be reduced to doctrinal wizardry? Anyone with awareness of that tradition as it evolved from Hegel until the day Hitler came to power would, I think, have to say no.
It is not clear what Ralf Michaels thinks is wrong with American doctrinal scholarship-he only mentions that a lot of it is written by practitioners-whether this is empirically the case is questionable, but of course one finds an enormous amount of subtle and careful commentary on appellate and Supreme Court jurisprudence in a range of areas, from academics as well as practitioners. I have used German doctrinal tools like the Max Planck Encyclopedia of International Law, which is excellent, but also some of the US Restatements, which are of very high quality,too. I just can't imagine where Michaels gets the authority to assert with confidence the national or cultural stereotypes that he does (and I would add that I have learned a lot from reading recent German scholarship in public law and constitutional law theory by for example Armin von Bogdandy, Christoph Moellers, Christian Joerges, among others, which is of course not at all "doctrinal" at least not in the caricatural sense that Michaels suggests).
What is the real issue? All doctrinal scholarship, if illuminating, must make signifcant normative or evaluative judgments. I believe that can be shown. The question is what is the source of those judgments; is there an internal conception of the law itself as a normative order, or do we need to go "outside" and to what extent and to where, and how is that legitimate? On this as on many other matters, re-reading my much missed late colleague Ronnie Dworkin is very instructive.
Tuesday, February 18, 2014
(On the lighter side...) Diagram this!
What is the worst sentence in the history of American judicial opinions? I’m not talking about a sentence that you find substantively repugnant, or offensive, or even silly. Rather, I’m looking for sentences that are simply painful to read as matter of style or grammar. Bonus points if they are found in opinions that are routinely part of the law school curriculum. Two nominees can be found below.
JOTWELL: Tidmarsh on English civil justice reform
The new essay on JOTWELL's Courts Law is by Jay Tidmarsh (Notre Dame) discussing civil justice reform efforts in England, under the leadership of Lord Justice Jackson. (These efforts are notable, given recent concerns about the proposed FRCP discovery amendments and the direction they are taking on reform).
Monday, February 17, 2014
Law Schools Competing on Course Material Prices
Christine Hurt's post about the sales model of legal scholarship included a new approach for providing students with course materials:
The direct-to-student model for casebooks. I've been thinking about this since I discovered how much a new edition of the Torts book I use cost (gasp). So, currently, I can use my work time to write a casebook that is then sold to law students, including mine, who pay $200/ea, and I get $20/ea. For doing my job. (I know, others deviate from this model, including paying their own students back their royalties .) But why not just self-publish? I spend my summer coming up with my own materials (as many do for their own courses anyway) and make them free for my students online? All the cases are available on the internet, and so are all the statutes/Restatement sections/etc. The only thing missing is the commentary and the questions (which I usually skip). This could save students $1000/semester. I'm teaching a course for the first time this semester, BA II, and I put together my own materials -- cases, law review articles, public disclosure documents. It takes a lot of time, but it's not crazy. What about first-time professors? Well, I would be happy to share my materials. In fact, all the Torts professors here could combine forces. Just a thought.
I have written (here and here!) about moving to an open-source model for casebooks. But it hasn't happened yet. I think there are pretty clear reasons why: (1) casebooks provide value to professors by organizing and synthesizing complex material, and (2) professors and law schools do not have to pay the costs of those materials directly or personally.
Ian Ayers, in the op-ed cited by Christine, argued that schools should have a "textbook maintenance organization" that provides students with books as part of tuition. So I was thinking about revisiting this idea now, and adding a twist: schools could compete against each other on course material prices. Here's what one enterprising law school could do:
Sunday, February 16, 2014
Nope, Mormons aren't successful because of their legacy of nineteenth-century wealth
Unless you live in a remote cabin without an internet connection you’ve heard that Amy Chua and Jeb Rubenfeld have authored a book, The Triple Package, that purports to explain the economic success of certain ethnic and religious groups – Cubans, Nigerians, Mormons, Jews, some Asian groups, south Asian Indians, and Iranians – in terms of a particular constellation of culturally ingrained outlooks that lead to successful striving. By and large respectable liberal opinion is outraged. The consensus is that Chua and Rubenfeld’s argument is silly and probably racist in some way.
Saturday, February 15, 2014
Can Originalism Fall Back on Precedent?
In my previous post, I suggested that originalism and judicial precedent can work together when deference to precedent is understood as a principle of "constitutional construction." If the Constitution's linguistic meaning isn't clear enough to resolve a dispute, precedent can serve as a second-order preference. And this second-order preference is likely to be particularly attractive to those who give primacy to the stability and impersonality of constitutional law.
Treating precedent as a second-order preference also helps originalism respond to criticisms that the methodology is too indeterminate to be effective. Even if one believes that the analysis of original meaning is frequently inadequate to resolve constitutional disputes, the inquiry invariably will narrow the range of plausible choices, and deference to precedent can take it from there. If a judge who is faced with constitutional uncertainty falls back on precedent, the problem of indeterminacy is much more manageable. Whatever insights arise from the inquiry into original meaning are supplemented by prior judicial pronouncements.
The broader point is that in evaluating originalist theories of interpretation, I think it's necessary to view those theories in full context. Just as one couldn't properly assess the merits of, say, common-law constitutionalism without acknowledging both the role of precedent and the role of moral judgments, one can't fully evaluate originalist theories without asking what happens when the Constitution's original meaning leaves multiple options on the table.
Friday, February 14, 2014
Coleman on the discovery amendments
Civ Pro profs are talking quite a bit about the proposed amendments to the Federal Rules of Civil Procedure, partly because the comment period is closing. At ACSBlog, Brooke Coleman (Seattle) argues against the amendments to the discovery rules. These amendments would lower the presumptive limits on discovery devices and make proportionality part of the initial inquiry into what information is discoverable (it currently is a basis for the producing party to oppose discovery). Brooke argues that these changes are motivated by concerns for out-of-control and disproportionate discovery that, in fact, are unsupported by empirical studies.
Funding Legal Research: Suggestions for Reform
I thought I'd wrap up my series on funding legal scholarship with some suggestions for reform. As I laid out yesterday, the principle behind these reforms is that legal academia should move from school- & salary-based funding to field- and grant-based funding. I don't mean to argue that we should move entirely to a new system, even if such a dramatic change were feasible. Instead, this is a set of new approaches to align the system more appropriately:
Needed Compromise In The Proposed Discovery Amendment War
The following was written by Suja Thomas (Illinois) on the proposed amendments to the discovery rules of the FRCP, which are a current topic of conversation among civ pro types
The discovery rules are hot. The Advisory Committee of the Civil Rules has proposed several changes to the rules, and lawyers representing plaintiffs and defendants are deeply divided over many of the changes. The changes may be a game changer. Over 700 comments have been submitted, more than twice as ever before, and many law professors have weighed in. Much of the commentary focuses on a proposed amendment to the scope of discovery in Rule 26(b)(1) under which parties can withhold discovery on the basis of lack of proportionality to the needs of a case.
Thursday, February 13, 2014
Judgment Calls and Reputation, Part Two: Trial Judges
My post last week explained how figure skating judges can be influenced by the reputations of the skaters before them. Trial judges are often just as aware of the reputations of those before them in the courtroom. Indeed, as Judge Marvin Aspen once told a group of litigators, “just like you [lawyers] tell war stories about [a] judge, we judges do the same thing. When a lawyer is involved in outrageous or unprofessional conduct before me, when I’m sitting around having lunch with my colleagues, we talk about it.”
So should we be concerned that the reputation of attorneys influences judicial decision making? Maybe.
Funding Legal Scholarship: Moving from School & Salary Funding to Field & Grant Funding
The first post in this series on funding legal scholarship discussed the basic law school model: individual law schools fund scholarship. And to a large extent, law schools fund only their own faculty's scholarship. Yes, law schools do fund law reviews, which generally publish the work of outside scholars. But schools pay their own faculty's salaries, provide special financial incentives for research, and pay for research assistants and research travel. A professor's research is largely funded by her own institution.
A strength of this model is that it encourages schools to compete against each other based on academic reputation. Although the most prominent ranking system (USNWR) is not directly correlated with research productivity, school reputation is a strong factor, and all of the top-ranked schools enjoy strong scholarly profiles. Schools regularly compete against each other in the entry-level and lateral markets to nab the best scholars for their faculties. Critics of this system have to contend with the success of the elite schools, which place their graduates extremely well and are largely left out of the "scamlaw" discussions. In a world that rewards the school's graduates for the reputation of its faculty, it make sense for individual schools to use some portion of their funds to get the best scholars.
Fan speech, once again
I suppose I should wade back into the renewed interest in fan speech at sporting events, given two recent events at college basketball games: 1) Last week, Marcus Smart, a star player for Oklahoma State, was suspended for three games for shoving an adult fan at a game against Texas Tech, in response to something that the fan, a prominent heckler at games, yelled at him (the fan, Jeff Orr, apologized for his role and voluntarily agreed not to attend any more games this season); 2) Last night, an adult fan was ejected from a game at the University of Memphis, apparently at the request of the referee.
I do not know all the details, so I am not necessarily opining on either situation. But both have people thinking about fan speech, so I would weigh in with what I think are the general principles at work (And I know very well that I am not on the side of the angels in this).
Wednesday, February 12, 2014
Triple Package Doesn't Make the Grade
So I have just published a review of Triple Package (by Amy Chua and Jed Rubenfeld) for Slate here. Below I've posted a shorter and sweeter version of the review, for an audience who likely knows a bit more about Amy Chua and Jed Rubenfeld, given that they're both faculty at Yale Law School.
A few years ago, Chua authored The Battle Hymn of the Tiger Mother, a memoir in which she extolled the virtues of harsh disciplinary “Chinese” parenting. She's now become something of a brand, a polarizing figure loved or hated because of her views on the link between culture and success. Rubenfeld (Amy's husband and Yale Law School colleague) is a provocateur in his own right, having authored his controversial article on rape. But this book’s most distinctive feature is what has become Chua’s stock in trade: the claim that group cultures explain why those groups are winners.
Most folks in the academic community have dismissed this book with much eye-rolling, even as Amy and Jed are laughing all the way to the bank. To be fair, Triple Package is a trade book for a trade press, written in a lively style accessible to Chua’s earlier readers. Still, the authors push their academic bona fides on the talk-show circuit, and conservative media is touting the book as scholarly proof that culture explains persistent racial gaps in achievement. For those reasons, it seems important to treat the book as a serious argument and subject it to scrutiny.
Funding Legal Scholarship: The Sales Model
Under the traditional law school model, the individual schools fund legal research; under the grant-funding model, third-party non-profits and government agencies supply a big chunk of the resources. There's a third model that exists in law schools today, and that is the sales model. Under this model, scholars act as individual entrepreneurs selling their research to publishers for personal payment. Much of the action between profs and publishers is in teaching materials, which I do not count under the research rubric. However, I do count academic books and doctrinal treatises as research, and professors sell their IP interests in these works to publishers in exchange for advances and/or royalties.
Prof. Alan Brownstein on this Term's church-state cases
Those of us in the First Amendment area know well that Prof. Alan Brownstein (UC-Davis) is among the most thoughtful and insightful -- as well as the most decent and charitable -- scholars now working. He shared with me the following reflection on religious freedom and the different reactions to the church-state cases before the Court this year. As they say, "read the whole thing":
I have been working in the church-state area for 25 years but I don’t think I have ever felt quite as out of synch with my colleagues in the academy as I do this year. Two important church-state cases will be decided by the Supreme Court this term: the Town of Greece case dealing with the offering of state-sponsored prayers before town board meetings and the Hobby Lobby case involving a RFRA challenge to the Affordable Care Act’s contraceptive mandates.
Tuesday, February 11, 2014
Funding Legal Scholarship: The Grant-Funding Model
Under the traditional law school model, scholarship is an expense that the school shoulders as part of its mission. In many academic disciplines, however, research is a revenue generator. The primary way in which schools generate income from their research is through grant funding: a third party will agree to pay the school a certain amount of money in exchange for the production of a specified research project or agenda. So instead of the school paying for the research, the grant-funder pays the school to pay the professor for the research.
In those disciplines where grant-funding is substantial, it is common to refer to the school's or division's research portfolio by a dollar amount, signifying the amount of grant-funding in play at any given time. And no wonder -- the funding can be quite substantial. For example, this 2011 report on UT-Austin found that the faculty generated $161 million in tuition revenue and $397 million in external research funding. The report came in response to an earlier effort to quantify UT faculty productivity based primarily on two metrics: number of student hours taught and amount of grant funding brought in. As one might imagine, law faculty who taught small courses and were traditional yet productive legal scholars did particularly poorly on these metrics.
Should Law Schools Fire Professors Who Do Not Write Post-Tenure?
My general understanding of the law school scene is that law schools hire people to produce legal scholarship, give tenure to folks who produce legal scholarship, gives raises (of varying degrees) for producing legal scholarship, but never fire post-tenure for failing to produce legal scholarship. And that this is true from the schools with the highest scholarly reputations on down. But Brian Tamanaha has challenged my thinking, in a comment to a post yesterday:
Tenured law professors have three core duties (as stated in bylaws and in ABA and AALS regs): scholarship, teaching, and service. We are paid to do all three. You are suggesting that we only have the latter two duties because schools don't fire professors who fail to write.
Holmes recognized the difference between a right or obligation and the chance someone will bring legal action to enforce it. You are using the low probability of the latter to claim that professors do not have an obligation to write--and therefore are not paid to write. Anything we do outside of teaching and service, by your reasoning, is just compensated "free time." This does not follow.
To see why, imagine what would happen if a law school threatened to fire "for cause" a tenured law professor who has not written in the last 5 to 10 years. You are right that this has seldom occurred in the past, but do not assume it is non-existent (rather than quietly settled to avoid embarrassment). And it is certainly possible in the future given current financial pressures. A law school in this situation would have a very strong case for legal termination. That is why your position is wrong.
Just to be clear (and not go through the entire thread) -- I actually agree with Brian that law profs have an obligation to produce scholarship. But is that obligation legally enforceable? Has any prof been fired for failing to write post-tenure? Or has any professor been pushed out the door *solely* for failing to write post-tenure? So -- good teacher, good institutional citizen, no scholarship, and threatened with termination? My sense is that this just doesn't happen. Am I wrong about this? And if not, why do we not see more of the enforcement that Brian suggests?
Precedent and Constitutional Construction
Last week I wrote a short post arguing that originalism is compatible with judicial precedent. That issue continues to be salient, in part due to a recent column by Cass Sunstein. Others have discussed Professor Sunstein's arguments, but I'd like to say a little more about how the relationship between originalism and precedent can work. I'll start by explaining the role of deference to precedent as a principle of "constitutional construction." In a follow-up post, I'll talk about the status of precedent for versions of originalism that reject the concept of constitutional construction.
Monday, February 10, 2014
Many of you will be as stunned to find this out as I was last night but our dear friend and teacher Andy Taslitz from American (and previously Howard Law) passed away yesterday. We are one mensch more deprived. May his memory be a source of enduring blessing and inspiration.
Some good tidings from FSU
The Dean at FSU Law recently reported that an astounding 83% of our current students made cash gifts to our law school's fund raising drive, which, let's face it, is a pretty awesome expression of gratitude and good cheer about their law school experience. #theyaredrinkingkool-aid
Funding Legal Scholarship: The Traditional Law School Model
This is first in a series of posts about how we fund the production of legal scholarship. To begin, a definitional move is in order: what exactly is legal scholarship? For purposes of this series, I want to be broad. I'll include any published research on the theory, doctrine, or practice of law, whether it be an academic book, a hornbook, a law review article, or an interdisciplinary or other-disciplinary piece that focuses on law in some respect. Legal scholarship is original research that attempts to contribute to our understandings of legal doctrine, human behavior in the context of law, or other aspects of our legal system. I'd draw a line between the research itself and the promotion of the research, so lengthy docrinal bar journal articles can be scholarship, but op-eds and blog posts are not. I don't think amicus briefs are, either, although I suppose a "Brandeis brief" could be. Happy to discuss this definition in the comments. In addition, I should note that I am leaving out legal scholarship that is produced by students as well as practitioners, at least for today.
So how is legal scholarship funded? I think we can separate the creation of that scholarship -- the research and writing -- from the publication of it. To take publication first, law schools pay a fair amount of the publication costs of legal scholarship, since they fund law reviews. Law reviews do receive revenues from subscribers (generally other law schools) and from Westlaw, LexisNexis, and Hein Online for electronic rights. But my assumption is that most law reviews are not self-sustaining. Reviews also usually have some level of school-provided support staff, and publishers are paid by the review/school as well. However, law reviews do receive a lot of "free" labor. Students are generally not paid to either produce or publish legal scholarship, although many students receive school credit (which they pay for) and some receive bagels.
Outside of law reviews, legal scholarship is published in bar journals, which are funded by the affiliated bar, or by academic presses, which are likely closer to self-sustaining but also may receive university support. (Here's a recent AAUP report on the finances of academic presses.) The current X factor is whether "publishing" through SSRN and/or Bepress will ever become independently acceptable. As of now, these databases are repositories for papers that generally hope to be published, are in the process of being published, or are already published elsewhere. SSRN and Bepress are both private companies.