Friday, May 24, 2024

An Addendum: Language Matters

It strikes me that the last couple of posts I've written about campus speech issues--on the "it's not a protest if" assertion and on the difference between "peaceful protest and non-violent protest"--lean heavily on making a big deal about what others might consider semantic quibbles. As an academic I'm fine with making a big deal out of semantic quibbles. (In the book A Terribly Serious Adventure: Philosophy and War at Oxford, 1900-1960, Nikhil Krishnan recounts the story of a don describing the philological question on which he had been lecturing at great length: "Absolutely insoluble problem, of not the slightest importance." That sounds perfectly wonderful to me.) But I think such quibbles do matter. They clarify our thinking in such matters, especially when the subject is one with great immediacy and emotional impact. They better help us describe what it is we are arguing about when it comes time to argue about whether something is permitted or not, should be permitted or not, and so on. (Are we arguing about whether and when officials can break up "peaceful protests?" Non-violent but not truly peaceful protests? Protests that "defy the authorities?" What is the it that is the subject of our attention and our arguments about what is allowed?) They enable us to better guard against mere propaganda, the use of arguments, descriptions, tropes and memes, and pre-loaded definitions that are meant to make us think as someone else would have us think rather than think for ourselves--propaganda that is often swallowed whole, often repeated unthinkingly by journalists, and competing uses of which end up taking up more time, attention, and passion than arguments about the thing itself. And as I suggested in my last post, because there is often an imperfect boundary between free speech as a doctrinal and as a cultural matter, and because discussions and understandings of one often bleed into the other, they help us better identify which domain we're arguing in and about. This is good for clarifying discussion and prescription in both domains and, for that matter, in whatever "liminal" remainder there is. These kinds of improvements to or clarifications of general public discourse may be mere drops in a bucket. But after all, when it comes to public discourse, the depositing of individual drops in very large buckets is precisely and possibly solely what academics are here to do.   

Just by way of closing, let me offer an illustration that renders the point less abstract: If one is thinking clearly and using language clearly, one knows that a boycott is a purposeful relation to deal or associate, generally for political or moral reasons and generally in the form of a measure intended to inflict economic pain. On the other hand, a judge or law firm's insistence on selecting law clerks only from "top" law schools, however ill-advised, arrogant, and foolish it may be (and I tend to think such a policy are mistaken for these and other reasons), is not a boycott. Indeed, it bears no useful relation to it, and thus is useless for purposes of analogizing to boycotts. 

Posted by Paul Horwitz on May 24, 2024 at 03:16 PM in Paul Horwitz | Permalink | Comments (0)

The "It's Not Protest If...." Fallacy

A trope I have seen often in the recent campus and off-campus protest discussion is that some activity or other is "not protest" if it doesn't involve some form of transgression, rule-violation, or disruption. This would seem not to be a specifically legal point; and for the most part, under a common reading of the First Amendment, it wouldn't be. But it comes up in what we might call First Amendment-ish or free-speech-adjacent public discourse, in a way that has some legal, or I guess legal-ish, significance. Surely this trope is wrong. 

A mild version of this kind of proposition comes up in Chicago philosophy professor Anton Ford's recent erroneous op-ed in the Chronicle of Higher Education about the Kalven Report. Ford writes: "Protest is essentially disruptive; if it’s not disruptive, it’s not a protest. While not all protests are equally disruptive, all aim to disrupt normal life to at least some extent. A ban on 'disruptive protest' is a ban on protest tout court."

It's easy enough, even without going to Twitter, to find examples of cruder versions of this sentiment that go past the "disruptive" point. People adopting such a position argue that protest necessarily involves rule-breaking: "It's not a protest if you have to ask permission." "If it’s 'acceptable,' it’s not a protest. If you’re not pissing people off, you’re not protesting hard enough." Demonstrations, as an ideal type, "defy the authorities." All of these are actual quotes. I can provide more exact examples from Twitter, and would do so were I not semi-debarred from using them. And although the chance of their being stupid increases substantially simply virtue of their being on Twitter and Instagram, so would the relevance of such assertions, given how many people conduct a version of public discourse and debate on these issues there. (The truth is that if one wants to research and discuss these kinds of issues, one must look at social media platforms--even, Lord help us, if one just wants to know what academics, and not normal people, think, given the awful habits of contemporary academics. So I do look. But I still find it better to avoid citing those platforms and to avoid going to those poisoned wells too often. I find myself nauseated by even short exposure, and other than for research purposes I find that the benefits of staying away far outweigh whatever I lose in terms of awareness of the anecdotal outrage of the day. Your mileage, I will say politely but insincerely, may vary.) 

On social media, especially, assertions and arguments like this do bleed into free speech law--or perhaps "'free speech' 'law,'" in the sense that there is a difference between a thing A and the object A-prime, or between Hancock Park and "Hancock Park adjacent." Protest, this line of thinking runs, is a fundamental, long-recognized aspect of free speech. And protest is--on this view--definitionally transgressive, disobedient, rule-or law-breaking, disruptive. It follows that it must violate the First Amendment to break up or make arrests at an encampment, march, demonstration, etc., even if the protesters were, say, violating clearly established rules or laws, engaging in obvious trespass or worse, and so on. Versions of this argument have been presented as Hail-Mary attempts by individual January 6 rioters. And similar arguments have been made, and taken seriously, in public discussion of the campus protests and the responses of universities and local officials. People making these arguments have included professors, although not generally law professors.   

There is something to the argument that protest is generally disruptive, I think. Even there, I doubt it's right to say protest is necessarily disruptive. Thousands of people may seek a permit to gather in a large park or public gathering place that has long been a prominent site for such assemblies, in order to visibly protest something like American involvement in a war. While they are there, say for a pre-arranged span of twelve hours, clearly the space cannot be used by others, and people strolling nearby may be disturbed or inconvenienced. But it's all been planned in advance, the authorities have had time to manage it and deal with contingencies such as waste disposal and security, and the crowd leaves when it's all done. That's a protest, surely. But is it really "disruptive?" Nominally, yes, perhaps; but in the sense in which some of the writers above or elsewhere mean it? I doubt it. It's certainly not transgressive.

One could come up with other examples. Protests and demonstrations happen all the time by pre-arrangement, often involving mass gatherings (obviously so for demonstrations, although an individual can protest, a la Hyde Park) and perhaps some level of planned "disruption." They are to actual disruption a little like what a scheduled work of performance art in a gallery is to real life. The organizers may even work closely and collegially with the authorities. Of course we may have concerns about officials using their permitting or licensing power arbitrarily or invidiously. In such a case there may be good reason to march without legal permission and without regard to legal proscriptions. But in theory, if that system were acting justly, people would have the right to seek an advance permit to make use of a public forum for purposes of peaceable, lawful assembly in order to protest. Is that "not a protest?"

Indeed, in a just society--a just actual society, not a "just society" in a just-this-side-short-of-Heaven hypothetical sense, in which all issues on which people disagree have been settled--we would likely still have assemblies, protests, and the like. And the ability to protest would be equally available to all, conducted under a fair and reasonable permitting system, and conducted thoughtfully with regard to the interests of others. They would be an effective exercise of voice for purposes of mass expression, and they might be somewhat "disruptive"--but, although they would still unquestionably be protests, they would not involve transgression or rule-violation. It's a point actually worth considering, not just by way of disagreement with the "it's not a protest if" trope, but because it suggests that protests, demonstrations, and assemblies have a function in any liberal society, including a fairly just, and justly administered, one--and that this function is not limited to those gatherings that "defy the authorities."

In short, the whole trope, common though it may be, is wrong. At best, it involves either a vacuously large definition of "disruption," or is simply a misdescription, in which "protest" is treated, wrongly, as a synonym for "civil disobedience." At worst, to the extent it is common or frequently voiced, it encourages participants and onlookers (including professorial onlookers) to misunderstand free speech as a legal doctrinal matter.

Incidentally, for a careful discussion of these issues, check out this paper on demonstrations by Jeremy Waldron. He offers a definition of demonstrations on page 38 that includes the line above about defying the authorities. I don't agree with his definition, obviously, and would pick nits with other aspects of the paper. But it's very good.   

Posted by Paul Horwitz on May 24, 2024 at 01:21 PM in Paul Horwitz | Permalink | Comments (0)

Infield fly interference double play (Updated Twice)

A wild ending to last night's Orioles-White Sox game. It offers a new entry in the Berman/Friedman "jurisprudence of sports" canon and a nice example of all the problems when the public (including "the media") discusses law.

The White Sox have 1st/2d-one out in the bottom of the ninth. The batter hits a fly ball on the infield grass. Orioles shorstop Gunnar Henderson, stationed behind second base, moves to the ball. He momentarily stops and goes around Andrew Vaughn, the runner on 2d, as he retreats (slowly) to the bag; Henderson gets under and catches the ball. The second-base ump calls infield fly, putting the batter out. The third-base umpire calls Vaughn out for interference, ending the game on a double play. Chaos and nonsensical indignation from the Sox announcers ensue and continues onto the interwebs.

Continue reading "Infield fly interference double play (Updated Twice)"

Posted by Howard Wasserman on May 24, 2024 at 09:48 AM in Howard Wasserman, Sports | Permalink | Comments (0)

Wednesday, May 22, 2024

Shadow Docket Sunlight Act of 2024

Introduced by Sheldon Whitehouse with a number of Dem co-sponsors. It requires disclosure of votes and at least one written opinion for the Court explaining any decision granting, denying, or vacating injunctive relief or vacating a stay of injunctive relief. The bill makes clear this covers cases within the Court's appellate jurisdiction and thus is an exercise of the exceptions-and-regulations clause.

Two thoughts.

1) Different complaints about the Court trigger different solutions--and those solutions may contradict one another. The need for transparency on the shadow docket requires opinions and vote counts. But the need to get the Court to act  less like a body of self-serving individuals requires eliminating vote counts and limiting opinions.

2) Attempts to control what, when, and how the Court reaches and explains its judgments presents an interesting question about the line between Congress' exceptions-and-regulations power and the "judicial power"/Klein/dictating case outcomes principle. Previous discussions have focused on whether Congress can stop or limit the form and content of opinions; this bill presents the flip side of whether Congress can require opinions. But both go to the same idea--how much can Congress control the presentation of a decision once made.

I expect to use this in Fed Courts in the fall, even if it has no chance of ever becoming law.

Posted by Howard Wasserman on May 22, 2024 at 04:42 PM in Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Judge Reeves on Qualified Immunity (Updated)

Judge Reeves offers his second judicial takedown of qualified immunity. He hits the usual hits--atextual; ahistoric; fails to achieve supposed policy goals; contrary to intended text; judicially created and silently modified; a tool for injustice; inconsistent with every other area of law (e.g., a physician cannot avoid malpractice liability because no court of appeals had imposed liability on another physician who made that precise mistake). Shout-outs to the work of Alex Reinert, Joanna, Schwartz, Will Baude, Karen Blum, Andrew Pollis, and others, as well as to the string of the most absurd cases in which courts found QI. Reeves adds a new tool to his argument--Dobbs and why Justice Alito's arguments justifying overruling Roe provide stronger justification for overruling the entire QI line. For example, if women lack an abstract reliance interest in the ability to control their lives by controlling when and if to have children, police officers lack such an abstract interest in being able to violate the Constitution.

The puzzle comes at the end. Describing what he calls a "more democratic vision," Reeves argues that courts must "tell the jurors the truth." He lists a series of points on which jurors should be instructed--police may act in split-second, rapidly evolving circumstances; the law gives less deference to officers who engage in a pattern of misconduct or who act in a calculated fashion with advice of counsel; unnecessary suits against public officers divert energy and attention from the public business and deter qualified people from entering public service. The jury should be able to resolve these tensions and contradictions on a case-by-case basis.

But where is he getting this from? Is it tied to the constitutional right--the officer does not violate the Fourth Amendment in that fast-moving situation? Or does this retain the basic idea of qualified immunity (an officer avoids liability for policy reasons despite violating plaintiff's rights) but place the decision in the jury's hands? If so, the same criticisms remain--this sort of immunity has no basis in law, and putting the balance in the "more democratic" hands of the jury does not change that. Reeves wants "the People" to resolve the contradictions in "America's DNA," although without any actual law or legal basis for doing so. This new approach retains the analytical gap between when an officer can be liable for damages and when he can be liable for an injunction--a gap that similarly has no legal basis.

The opinion is a tour de force in identifying and illustrating, in plain language, the absurdity of modern qualified immunity. It has some unnecessary hyperbole--a reference to Southern trees bearing strange fruit and to the 3/5 compromise--but I'll law allow it. But the opinion also highlights problems in the "get rid of qualified immunity" discussion. What, if anything, replaces it--strict liability (as exists for prospective relief)? a different form of qualified immunity more in line with 1871 common law? narrower substantive constitutional rights? something else? And where does the replacement come from--if the Court does it, the  atextualism objection remains. Can we reform qualified immunity without addressing the other two legs of Judge Ho's "unholy trinity"--prosecutorial immunity and Monell?

The opinion offers an additional insight that I had not considered--its place in the backlash to the Civil Rights Movement, particularly to civil disobedience and public protest. Pierson v. Ray introduced qualified immunity (common law good-faith-and-probable-cause) in an April 1967 case arising from the arrest of several Black ministers who entered a segregated bus-terminal waiting area. The Court (except Justice Douglas) lost its stomach for protecting civil rights and undoing Jim Crow when it came to imposing damages on Southern officers enforcing constitutionally dubious laws against people who knowingly and intentionally violate those laws for political purposes. We might see Pierson of a piece with Walker v. City of Birmingham, decided two months later, where the Court applied the collateral bar rule to a First Amendment challenge to those who ignored a nakedly racist injunction against a public march. Or Adderly v. Florida (earlier in the term), rejecting a right to protest on the driveway of a county jail. Although raising distinct legal issues, all reflect the Court allowing government greater leeway and authority in stopping public protests.

Posted by Howard Wasserman on May 22, 2024 at 11:57 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Tuesday, May 21, 2024

Leiter on Academic Boycotts

Brian Leiter is a long-time and often sharp critic of "US-funded Israeli crimes." Nonetheless, he opposes the renewed call for an academic boycott, with this cogent explanation:

The scale of the unfolding atrocities in Gaza has given renewed momentum for calls by academics to boycott Israel, including Israeli academia.  I won't do that, but I also won't sign the circulating petition denouncing academic boycotts of Israel:   individuals should retain the right to protest what is happening in Gaza in any lawful ways they choose to do so, including boycotts.  From where I sit, Israeli academia still represents the most reliable opposition to government policy that has brought Israel to this point, and I don't want to be party to a collective punishment of Israeli academia that will have zero impact on the current war criminals in power there (Netanyahu and company already hate academia, just like they hate the courts).

It is hard to understand why he won't sign the "circulating petition" (presumably this one, posted on Prawfs and elsewhere), on the ground that individuals should retain the right to boycott. There is nothing in the statement that remotely contradicts or challenges anybody's right to protest or boycott Israel. Instead, it says:

Regardless of how each of us currently analyzes the situation on the ground and evaluates the actions of the Israeli government and army, we want to make clear that we stand against all forms of boycotts targeting Israeli scholars and Israeli academic institutions.

We strongly believe that international exchange – especially in troubled times like these – is essential for maintaining an open and global academic community.

Of course, Leiter can sign or not sign anything he chooses, but the statement seems to coincide almost precisely with his own recognition that "Israeli academia still represents the most reliable opposition to government policy" and his opposition to "a collective punishment of Israeli academia." 

The statement now has over 5500 signatories, and is open for additional signatures here.

Posted by Steve Lubet on May 21, 2024 at 01:18 PM | Permalink | Comments (0)

Monday, May 20, 2024

Woodrow Wilson and the Senate

I came across an interesting bit of trivia today. President Wilson gave a speech to the Senate in 1918 urging them to ratify the Nineteenth Amendment after the House passed the proposal. As far as I can tell, this is the only time in modern history that a President gave a speech to only one House of Congress. Presidential speeches are, of course, usually to a Joint Session. George Washington did go to the Senate at the very beginning to get their "advice and consent" on something, but quickly realized that was not the right approach.

Posted by Gerard Magliocca on May 20, 2024 at 11:09 AM | Permalink | Comments (0)

Saturday, May 18, 2024

Statement Opposing Boycott of Israeli Academics [Signatories Now Released]

UPDATE: Names of over 6600 5500 3200 signatories have now been released and can be seen here. Additional names can be added here (scroll to the bottom).

Please consider signing the following "Statement against the Boycott of Israeli Academics." It was written by Anne Rethemann (Freie Universität Berlin), Helmut Walser Smith (Vanderbilt University) and Daniel Siemens (Newcastle University).  It responds to a report in Haaretz of growing cancellations and boycotts of Israeli academics, especially in the Humanities and Social Sciences. Here is a link to the Haaretz report (paywall): https://archive.md/pyavQ.

The statement opposes the boycott of Israeli universities and individual academics because it threatens academic freedom, while also undermining the most open and anti-authoritarian institutions in the country. This is not a statement of support for the Netanyahu government.

I have signed the statement and suggest that others sign it here as well. 

Statement against the Boycott of Israeli Academics
May 14, 2024
 
We, scholars from various fields of the humanities and social sciences, are deeply concerned about the increasing isolation of our academic colleagues in Israel. Calls for boycotts against Israeli academic institutions are not new, but since the brutal attack by Hamas on October 7th and the subsequent Israeli-Hamas War, these calls have taken on a new dimension. On April 12, 2024, the Israeli daily newspaper Haaretz published an article based on interviews with over 60 Israeli scholars and reported an astonishing range of discriminatory practices. These include the termination of scientific collaborations, cancellation of conference invitations, refusal to consider scholarly submissions to journals, rejections of promotion evaluations, and withdrawal of offers for academic appointments, among other instances.

Regardless of how each of us currently analyzes the situation on the ground and evaluates the actions of the Israeli government and army, we want to make clear that we stand against all forms of boycotts targeting Israeli scholars and Israeli academic institutions. We firmly advocate for intensive cooperation and continued work with them. We are also convinced that the gradual, often subtle exclusion of Israeli scholars contradicts fundamental principles of professional comportment and academic freedom. Moreover, an academic boycott against Israel is counterproductive regarding internal Israeli debates as well as Israeli-Palestinian dialogue, as Barak Medina argued in his compelling essay, Is it Justified to Boycott Israeli Academia?

We strongly believe that international exchange – especially in troubled times like these – is essential for maintaining an open and global academic community. The alarming trend of excluding Israeli scholars from international academic discourse requires unequivocal response on our part. We, the undersigned, call on scholars to stand in solidarity with our Israeli colleagues on this critical issue.

Statement Authors
 
Anne Rethman, Freie Universität Berlin, visiting at Hebrew University 
Daniel Siemens, Newcastle University
Helmut Walser Smith, Vanderbilt University
 
You can sign here.
 
Names will be published on Saturday, May 18.

Posted by Steve Lubet on May 18, 2024 at 06:24 PM | Permalink | Comments (0)

Saturday Music Post - I’ll Be Your Baby Tonight

Released in 1967 on Bob Dylan's Nashville album John Wesley Harding, "I'll Be Your Baby Tonight has been a staple of his live shows ever since.

The clips are at The Faculty Lounge.

 

Posted by Steve Lubet on May 18, 2024 at 04:59 AM | Permalink | Comments (0)

Friday, May 17, 2024

JOTWELL: Steinman on Baude and Bray on the expansion of standing

The new Courts Law essay comes from Adam Steinman (Alabama, headed for Texas A&M) reviewing William Baude & Samuel L. Bray, Proper Parties, Proper Relief, 137 Harv. L. Rev. 153 (2023), which argues for a move away from the mantra of standing to focus on causes of action and other features of the judicial role.

Posted by Howard Wasserman on May 17, 2024 at 12:47 PM in Article Spotlight, Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Globalizing the Intifada

This is the meaning of banners seen at Northwestern and other encampments:

As reported by CNN:

Police have shot dead an armed attacker who was trying to set fire to a synagogue in the northern French city of Rouen, according to authorities.

As reported in the New York Times:

The identity and motives of the man who attacked the synagogue were not immediately clear, but the French authorities were treating the incident as an antisemitic act. Local prosecutors have opened an investigation into “religiously motivated arson” and assault.

As reported by Reuters:

French police shot dead a knife-wielding Algerian man who set fire to a synagogue and threatened police in the city of Rouen on Friday in the latest antisemitic attack, officials said.

France, like many countries across Europe, has seen a huge spike in anti-Jewish acts since Hamas' Oct. 7 attack on Israel and Israel's military response in Gaza.

 

Posted by Steve Lubet on May 17, 2024 at 11:27 AM | Permalink | Comments (0)

Thursday, May 16, 2024

New SEALS Faculty Recruitment Platforms

Posted on behalf of SEALS:

The Southeastern Association of Law Schools is excited to offer a new set of free services to the law teaching community, including and especially prospective members who are interested in joining legal academia.  For it to be effective, we must get the word out and encourage candidates to register and schools to use it.  Please help us by circulating this information widely to your VAPs, alumni, and search committee members.

The SEALS faculty recruitment platform is now live with two new hiring portals.

  • The Faculty Hiring Portal allows faculty candidates to indicate their interest in finding an academic job and permits faculty hiring committees to search for candidates who meet the school’s hiring needs.
  • Meanwhile, the Visiting Faculty Portal allows current law school faculty to indicate their interest in visiting opportunities on a look-see, podium, or overload basis. Meanwhile, schools interested in hiring are able to create institutional accounts (a single law school account provides access to both portals) and view candidate materials.
  • Finally, the Job Postings site is a bulletin for schools to advertise their various hiring interests and position details.

We welcome your questions and suggestions for the SEALS Faculty Recruitment Committee, which can be directed to committee chair Linda Jellum at [email protected].

Posted by Sarah Lawsky on May 16, 2024 at 04:36 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Separation of powers memories of a bygone era

The Consumer Financial Protection Bureau gets up off the canvas after Seilia Law and lives to fight another day.  7-2 in favor of its core funding mechanism, with J Thomas writing that this arrangement is fully consistent with the Appropriations clause.  There will be interesting things written about the intra-originalist battle between Thomas and Alito, but here I just want to call out a small point in the grand scheme of themes.  Writing just for herself, the newest justice, J KB Jackson speaks about the value and virtue of Congress developing novel mechanisms to deal with emerging social and economic problems.  While not without constitutional limits of course, Jackson's concurrence hearkens back to a position that was of substantial power and resonance in the Court of past decades, illustrated, e.g., in Justice White's dissenting opinions in Chadha and Bowsher, in the Court's important decision in Schor, in some of the public rights & jury trial cases, and even in a broad sense in Morrison v. Olsen and Mistretta.  This view offered a functionalist rendering of our separation of powers tradition, noting that the key constitutional issues could hardly be resolved by staring at either the text or excavating remote history, but, instead, by looking at the overall scheme of checks and balances.  Is this a workable system?  And, as J Jackson's brief concurrence notes, we should encourage Congress to experiment, within appropriate guardrails, with structures and rules that can assist us to tackling new wicked problems.

Of course, that she speaks only for herself illustrates how far we have travelled from this functionalist approach to separation of powers.  On the front page is the dense scrutiny of old dictionaries and the relevance of the Glorious Revolution and . . . well, you know the rest of the script.

 

Posted by Dan Rodriguez on May 16, 2024 at 11:33 AM in Daniel Rodriguez | Permalink | Comments (0)

Wednesday, May 15, 2024

Bar reform in California. A promising start

Innovation in legal services is a slog.  One that rewards those who take the long view, and who can find some cautious optimism in a world of setbacks -- of protectionism, parochialism, inertia, and even the occasional crisis (financial; pandemic, etc) that knocks back fruitful experiments to the beginning or off the stage altogether.  This is at least as true of lawyer credentialing and the administration of the much-maligned bar exam.

And so we should welcome the interesting experiment just announced out of California.  The Golden State is eschewing its cooperation with the Nat'l Conference of Bar Examiners (NCBE), the organization based in Madison, Wisconsin -- peculiarly, given that this is the state that grants the diploma privilege to state law school grads, but I digress.  The NCBE has had an iron death-grip on the content, and many elements of administration, of the bar exams of states around the country.  The organization has not had a reputation for being especially innovation minded; nor has it been, in my experience, a constructive cooperator.  Anecdote: I was once in a meeting of twenty or so deans with the then-director of the organization, in the hopes of facilitating a useful exchange of student performance and bar data, data which has long been critical to a better understanding of where law schools fail, where NCBE and bar authorities come up short, and how we might improve the world for our students.  The response was, and this is mighty close to a direct quote:  "Well, we have high-level psychometricians at NCBE who work on these difficult issues and law schools (and other groups) couldn't possibly grasp the nuance of this performance information."  Us pea-brained deans got the message, and left without any optimism that law school/NCBE cooperation would be forthcoming.  About a dozen years later:  Same as it ever was.

Into this frustrating status quo comes California's decision to work internally on key matters of bar administration, including the possibility of an in-home version of the test -- something that so many grads pleaded for during Covid, and disabled grads would benefit from going forward.  Even more promising is the prospect that, in collaboration with Kaplan, Inc., California will develop some ambitious new types of content -- something that is really truly a "new generation" bar exam, which the NCBE has been touting with some fanfare for the last few years.  By way of context, I was involved in some conversations with state bar staff and an organization whose name I won't here disclose about the prospect of leveraging new ways of assessing knowledge, perhaps drawing from developments in gamification and AI/machine learning.  While I honestly don't know if this future-oriented discussion is part of this new initiative, I hope California will use all the big brains it can muster to give us novel, constructive ideas.

To be sure, this is a partnership with a company that has skin in the game.  I won't speak to either the incentives or the bona fides of Kaplan in regard, not for any cagey reason but just from a dearth of actual knowledge of the arrangement struck.  But I'll just say that the fact that California apparently knows what it doesn't know and seeks out external help from an organization other than one whose monopoly over bar exam ventures has hobbled innovation, is a promising development.  Many things betwixt cup and lip for sure, but we should watch with great interest what happens in California.  A failure will be a setback, but this natural experiment will yield valuable information.  That's what laboratories of experimentation are all about.  And if this succeeds, both in solving some serious financial problems that plague Cal Bar and in advancing the welfare of our graduates, that's a game-changer.  And change is what we need.

Posted by Dan Rodriguez on May 15, 2024 at 03:45 PM in Daniel Rodriguez | Permalink | Comments (0)

National pasttime meets Erie

Amazing story that I had not heard before: In a 1906 townball game in a town near Pittsburgh, outfielder B.F. Hicks was hit by a train while catching a foul fly ball. They found his body clutching the ball.

On the baseball side, this beats the other great death-mystery catch in baseball history. During the 1925 World Series, Hall-of-Fame outfielder Sam Rice caught a ball just short of the outfield fence but his momentum carried him over the fence and into the stands. The play was ruled an out. Rice was coy about whether he held onto the ball. In a letter opened upon his death, Rice insisted he never lost control of the ball.

Posted by Howard Wasserman on May 15, 2024 at 11:44 AM in Civil Procedure, Howard Wasserman | Permalink | Comments (0)

Tuesday, May 14, 2024

Lawsky Entry Level Hiring Report 2024

Following is a data summary of Reported Entry-Level Law School Hiring as of Spring 2024. To remain consistent with past years, while the spreadsheet contains all hiring information received, the data analysis includes only tenure-track hires at U.S. law schools. The data analysis also includes several hires who requested not to be included in the spreadsheet as of the date of this posting.

This report and the spreadsheet are freely available under the Creative Commons Attribution-Share Alike 4.0 International license, cited as Sarah Lawsky, Reported Entry-Level Law School Hiring Spring 2024, PrawfsBlawg, https://prawfsblawg.blogs.com/prawfsblawg/2024/05/lawsky-entry-level-hiring-report-2024.html.

Here is the full spreadsheet:

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There were 106 tenure-track hires at U.S. law schools reported, at 72 different law schools.

Q: How does 106 reported hires compare to past years?

A: There are fewer hires than each of the last two years, but still somewhat more than usual compared to the years since the “new normal” began. The average number of hires since 2014 is 87. (I omit 2010 in this and all subsequent cross-year comparisons because insufficient data was collected that year to include it in the report.)

00_reported_hires_blog

It would useful to know the percentage of those on the market who got jobs. While the AALS does not provide that information, the number of forms in the first distribution of FAR AALS forms is not a terrible proxy. The x-axis here is Hiring Year; thus, for example, if the Hiring Year is 2024, the FAR forms were released in 2023.

00A_hire_far_count

As that graph suggests, the hires per FAR form were roughly comparable to 2019 and onward; last year seems to have been an anomaly.

Far_and_percent

As is true every year, some people who received entry-level jobs and are represented in this data did not participate in the AALS/FAR process.

Q: You say the hires were at 72 law schools. How does that compare to previous years?

A: Comparable to previous relatively recent years.

02_schools_hiring

Q: How many reported hires got their JD from School X?

03_jd_from

Yale: 23; Harvard: 12; NYU: 7; Georgetown: 6; Chicago: 5; Michigan: 4; Berkeley: 4; Hebrew University: 3; Baylor: 3; Penn: 3; Virginia: 3; Fewer than Three: 33

Schools in the “fewer than three hires” category with two JD/LLBs who reported hires: Minnesota; Northwestern

Schools in the “fewer than three hires” category with one JD/LLB who reported hires: Alabama; Arizona; Arizona State; Brooklyn; Cardozo; Chicago Kent; Columbia; FGV Direito São Paulo; Geneva; Houston; Kogi State University; LSE; Lahore University; McGeorge; Nanchang; Nat'l Law University Jodhpur; Notre Dame; Ohio State; Pepperdine; Reichman; San Francisco; Stanford; Tel Aviv; UCLA; UNLV; Universidad Torcuato Di Tella; Vanderbilt; Washington & Lee; William & Mary

A high percentage of hires every year get their degree from Yale, Harvard, Stanford, or NYU.

03A_YHSN

However, over time, many schools are represented as the source of entry-level hiring.

03B_jd_from_over_time

The schools with four hires include: BYU; British Columbia; CUNY; Cardozo; Indiana-Bloomington; Iowa; LSU; Tel Aviv; Tennessee; Tulane; USC; Washington (St. Louis).

The schools with three hires include: American; Arizona; Arizona State; Arkansas-Fayetteville; Baylor; Brooklyn; Chicago Kent; Davis; Emory; Florida; George Mason; Howard; Miami; Mitchell Hamline; Northeastern; Pittsburgh; Pontificia Universidad Católica de Chile; Washington (University of).

The schools with two hires include: Cambridge; Colorado; East China University; Florida State; Georgia; ITAM; Kansas; Kentucky; Lewis & Clark; Nat'l Law School of India; New Mexico; New South Wales; Nigeria Law School; North Carolina; North Dakota; Oklahoma; Oregon; Queen's University; Queensland; Reichman; San Diego; Seoul Nat'l U; Sorbonne; St. Louis; Suffolk; Thomas Jefferson; UNLV; Universidad Torcuato Di Tella; West Virginia.

The schools with one hire include: Ain Shams Fac of Law; Alabama; Aristotle U; Athens; Augsburg; Barry; Belarusian State U; Bonn; Catholic (Portugal); College of Mgmt Acad Stud; Cologne; Connecticut; Dayton; DePaul; Democritus of Thrace; Denver; Diego Portales; FGV Direito São Paulo; Freiburg; Fundacao Getulio Vargas; Geneva; Genoa; Georgia State; Ghent; Haifa; Hamburg; Hawaii; Hofstra; Houston; Humboldt; Idaho; Inter-American; Irvine; Kogi State University; LSE; Lahore University; Lisbon; Louisville; Loyola-Chicago; Loyola-LA; Loyola-New Orleans; Maine; McGeorge; McGill; Melbourne; Montana; Nanchang; Nat'l Chengchi U; Nat'l Law University Jodhpur; Nebraska; New Hampshire; Ohio State; Passac (Germany); Penn State; Pepperdine; Phillipines; Pontificia Universidad Javeriana; Richmond; Rutgers; SMU; San Francisco; Sao Paulo; Sapienza; Savannah; Shandong; Shenzhen; South Carolina; Southern; Southern Illinois; Sydney; Tehran; Toronto; Trinity; Tsinghua; Tulsa; UCL; Universitat Pompeu Fabra; University of Ljubljana; Utah; Vermont; Vienna; Wayne State; Whittier; William & Mary; Zimbabwe.

Again, this is a partial list, as over time I am certainly missing hires. This is just an aggregation of the information reported to me in the spring of the year in which I do each report.

And each year, there are relatively many unique schools represented.

03C_jd_unique_over_time

The number of unique schools may be in part a function of the number of hires. Unique schools as a percentage of total hires is comparable to recent years. (This graph represents the number of unique schools from which hires got their JD in a given year divided by total number of hires for that year. If in a particular year there were five total hires, and each came from a different law school, the graph would show 5/5 = 100% for that year. If in a given year there were five total hires, and three of those hires came from School X and two came from school Y, then the graph would show 2/5 = 40% for that year.)

03D_jd_unique_percent_list

This information comes with two related caveats.

First, the spreadsheet reports the number of hires who received a JD from a particular school who accepted a tenure-track job, but not the number of JDs on the market who received a tenure-track job offer.

Second, the spreadsheet reports the count of JDs from a particular school, but not the rate at which JDs received (or accepted) offers. A smaller school with a high placement rate thus might not appear on the chart, whereas a larger program with a low placement rate might appear. This caveat means that smaller schools may be undervalued if one relies only on this data, while larger schools might be overvalued.

Q: How many reported hires had a fellowship, degree, or clerkship?

81 (about 76%) had a fellowship; 54 (about 51%) had a clerkship; 63 (about 59%) had a higher degree. 5 people had none of these credentials. The percentage of each of these credentials was consistent with but slightly lower than percentages in recent years.

09B_percent_Fellowship_per_year

09B_percent_Clerkship_per_year

09B_percent_Higher Degree_per_year

Venn diagram. Of the five people who did not have a fellowship, clerkship, or advanced degree, at least four of the five had significant, extensive academic experience (three were non-tenure-track to tenure-track hires and one was a current professor in another field).

045_Venn_addl_text

Comparing two categories of the Venn diagram related to fellowships, degrees, and clerkships--hires that have all three credentials, and hires that have none of the credentials--last year seems to have been an anomaly.

05_Venn_compare

Q: From what law schools did people get these fellowships?

I count here any law school at which a person reports having a fellowship. So one person could account for two schools’ being listed here. For example, if a single individual had a fellowship at Columbia followed by a fellowship at NYU, that would be reflected below as +1 to Columbia and +1 to NYU.

06_fellowship_school

Harvard: 14; NYU: 13; Penn: 4; Columbia: 4; Stanford: 4; Chicago: 4; Gonzaga: 3; UCLA: 3; Yale: 3; Georgetown: 3; George Washington: 3; Fewer than Three: 40

This information comes with the same two caveats as the JD numbers.

First, the spreadsheet reports the number of hires who received a fellowship from a particular school who accepted a tenure-track job, but not the number of fellows who received a tenure-track job offer. This caveat likely applies to all or nearly all fellowship programs. Presumably, someone choosing between fellowships cares more about how many people received tenure-track job offers than about how many people accepted those offers.

Second, the spreadsheet reports the count of fellows, but not the rate at which fellows received (or accepted) offers. A smaller program with a high placement rate thus might not appear on the chart, whereas a larger program with a low placement rate might appear. This caveat means that smaller programs may be undervalued if one relies only on this data, while larger programs might be overvalued.

Q: Tell me more about these advanced degrees.

Okay, but first a caveat: Although some people had more than one advanced degree, the following looks only at what seemed to me to be the "highest" degree someone earned. For example, someone with a Ph.D. and an LL.M. would be counted only as a Ph.D. for purposes of this question. (This tracks the "Other Degree (1)" column.)

That said, looking only at what seemed to be the most advanced degree, and including expected degrees, the 63 “highest” advanced degrees broke down like this:

07_highest_degree

Doctorate: 37; Masters: 19; LLM: 6; MBA: 1

Topics ranged all over the maps. For the 37 Doctorates, a number of topics had multiple hires, including Law: 13; Philosophy: 6; Political Science: 6; History: 4; Health: 2. The other doctorate topics, each of which had one hire, were Education; Psychology; Literature; Religion; Sociology; Environment.

Q: That's a lot of doctorates, and that goes along with a lot of fellowships! How many people had a doctorate, or a fellowship, or both?

84% of the hires had either a doctorate (Ph.D., SJD, JSD, D.Phil.), a fellowship, or both. The percentage of reported hires with doctorates is roughly comparable to years since 2017, though still below 40%.

09_doctorate_and_or_fellowship

The percentage of doctorates who also had a fellowship is 78%, which is comparable to recent years (except for last year).

12_doctorate_and_fellowship

Q: How long ago did these reported hires get their initial law degrees?

10_year_of_jd

Zero to Four Years (Graduated 2020-2024): 14; Five to Nine Years (Graduated 2015-2019): 47; Ten to 19 Years (Graduated 2005-2014): 40; Twenty or More Years (Graduated before 2005): 5

Q: How do the "years since initial degree" numbers compare to previous years?

Consistent with prior years.

11_year_of_jd_over_time

Q: This is all wrong! I know for a fact that more people from School Y were hired!

Yes, this report is certainly missing some information. It is without question incomplete. If you are aware of an entry-level hire who is not reported, please let me know and I will add that person.

If you want to know about real entry level hiring, I commend to you Brian Leiter's report (hiring 1995-2011), the Katz et al. article (all law professors as of 2008), the George and Yoon article (entry level, 2007-2008 hiring year), and the Tsesis Report (entry level, 2012-2013 hiring year). This is just a report about entry-level hires reported to me as of the spring before the school year starts.

Originally posted 5/14/2024. Updated 5/15/24 to fix the JD school over time graph and add text for schools with fewer than five hires over time. Updated 5/16/24 to add hires and add text related to NTT to TT hires. Updated 5/19/24 (approximately), 5/23/24 to add hires.

Posted by Sarah Lawsky on May 14, 2024 at 03:54 PM in Entry Level Hiring Report | Permalink | Comments (0)