« February 2018 | Main | April 2018 »

Monday, March 12, 2018

Write Drunk, Edit Sober

That's Hemingway and its the quote I've had on my office door for the past eight years. I don't drink, but I do write drunk. And I edit both drunk and sober - until something great floats to the surface (which is tricky because, well, shit floats, gold sinks, as we say in Hebrew). This week I am speaking to my students in my two writing seminars about good article writing. They've all selected promising research topics and now they need to turn in first drafts (also per Hemingway: all first drafts are shitty). In preparation for what we'll be talking about, in addition to assigning them as always Eugene Volokh's Legal Academic Writing as a reference book, I pulled up some note files of mine which I had prepared for past years. I found a list of 22 pieces of advice from writers I admire which I gave the students as handouts - and which I might print out again this week. I thought I'd post them here as well. My favorites are #3, #5, #8, #9, #13, and #21. And all this advice does generally translate to legal writing, including #22. Of course, #2 makes me laugh because law review writing is especially prone. 

"Write drunk; edit sober." -Ernest Hemingway [1920x1080]

  1. The first draft of everything is shit. -Ernest Hemingway
  2. Never use jargon words like reconceptualize, demassification, attitudinally, judgmentally. They are hallmarks of a pretentious ass. -David Ogilvy
3. Notice how many of the Olympic athletes effusively thanked their mothers for their success? “She drove me to my practice at four in the morning,” etc. Writing is not figure skating or skiing. Your mother will not make you a writer. My advice to any young person who wants to write is: leave home. -Paul Theroux

4.I would advise anyone who aspires to a writing career that before developing his talent he would be wise to develop a thick hide. — Harper Lee

5. You can’t wait for inspiration. You have to go after it with a club. ― Jack London

6. Writing a book is a horrible, exhausting struggle, like a long bout with some painful illness. One would never undertake such a thing if one were not driven on by some demon whom one can neither resist nor understand. — George Orwell

7.There are three rules for writing a novel. Unfortunately, no one knows what they are. ― W. Somerset Maugham

8. If you don’t have time to read, you don’t have the time — or the tools — to write. Simple as that. – Stephen King

9. Remember: when people tell you something’s wrong or doesn’t work for them, they are almost always right. When they tell you exactly what they think is wrong and how to fix it, they are almost always wrong. – Neil Gaiman

10. Imagine that you are dying. If you had a terminal disease would you finish this book? Why not? The thing that annoys this 10-weeks-to-live self is the thing that is wrong with the book. So change it. Stop arguing with yourself. Change it. See? Easy. And no one had to die. – Anne Enright

11. If writing seems hard, it’s because it is hard. It’s one of the hardest things people do. – William Zinsser

12. Here is a lesson in creative writing. First rule: Do not use semicolons. They are transvestite hermaphrodites representing absolutely nothing. All they do is show you’ve been to college. – Kurt Vonnegut

13. Prose is architecture, not interior decoration. – Ernest Hemingway

14. Get through a draft as quickly as possible. Hard to know the shape of the thing until you have a draft.  The old writer’s rule applies: Have the courage to write badly. – Joshua Wolf Shenk

15. Substitute ‘damn’ every time you’re inclined to write ‘very;’ your editor will delete it and the writing will be just as it should be. – Mark Twain

16. Start telling the stories that only you can tell, because there’ll always be better writers than you and there’ll always be smarter writers than you. There will always be people who are much better at doing this or doing that — but you are the only you. ― Neil Gaiman

17. Consistency is the last refuge of the unimaginative. – Oscar Wilde

18. The difference between the right word and the almost right word is the difference between lightning and a lightning bug. -- Mark Twain

19. “Read, read, read. Read everything – trash, classics, good and bad, and see how they do it. Just like a carpenter who works as an apprentice and studies the master. Read! You'll absorb it. Then write. If it's good, you'll find out. If it's not, throw it out of the window.” - William Faulkner

20. If you have any young friends who aspire to become writers, the second greatest favor you can do them is to present them with copies of The Elements of Style. The first greatest, of course, is to shoot them now, while they’re happy. – Dorothy Parker

21. "It's a luxury being a writer, because all you ever think about is life." -Amy Tanh

22. Don’t take anyone’s writing advice too seriously. – Lev Grossman

Posted by Orly Lobel on March 12, 2018 at 01:11 AM in Books, Culture, Life of Law Schools, Orly Lobel | Permalink | Comments (12)

Sunday, March 11, 2018

May States Discriminate Against Federal Personnel by Selectively Withholding or Regulating State Property? A Reply to Ilya Somin

Ilya Somin has a thoughtful response to my earlier post about California's recent legislation imposing special duties or limits on people or facilities who assist the feds in implementing immigration law. I argued that the Supremacy clause normally prohibits states from undermining federal policy by discriminating against federal officials. Ilya replies that there is no such "anti-discrimination" principle implied by the Supremacy clause. As he puts it,

There is nothing to that effect in the text of the Constitution. The Supremacy Clause only requires the states (and others) to obey federal law. It does not require them to help enforce it or to give the federal government the same services and assistance available to private parties or to state and local officials. (emphasis added).
I emphasize that last sentence, not only because it highlights Ilya's and my disagreement but also because it shows how our dispute exists in Baseline Hell -- the place where disputants grasp at straws like the "direct" versus "indirect" distinction to distinguish invasions of rights from mere refusals to deal. Ilya takes the position that, just so long as state law does not "directly seize federal assets," state law can freely discriminate against federal officers enforcing federal law, even when the state law has the purpose and effect of impeding federal law enforcement. Precedent and common sense, however, suggest that this position cannot be right.


Start with precedent: SCOTUS has repeatedly that "State law may run afoul of the Supremacy Clause in two distinct ways: the law may regulate the Government directly or discriminate against it, or it may conflict with an affirmative command of Congress." North Dakota v. United States, 495 U.S. 423, 434 (1990) (emphasis added). SCOTUS, in short, expressly recognizes that, in addition to "direct" burdens, the Supremacy clause bars "discriminatory" burdens. Common sense requires this natural extension of intergovernmental immunity: Otherwise, the states could do "indirectly" what they are barred from doing "directly," which, as Ilya and I both know from innumerable other contexts, is the sort of thing that the so-called doctrine of unconstitutional conditions prohibits.

A few hypothetical problems, however, illustrate why one does not need a precedent to see that common sense requires a limit on states' power to impose "indirect" discriminatory burdens on the feds. Imagine that California barred federal employees from driving on state-owned roads: Is Ilya seriously contending that this selective prohibition would not violate the Supremacy clause? Or what about my original hypothetical: Suppose that state courthouses charged federal lawyers and law enforcement officers a special fee to enter state courthouses -- or barred them altogether from entering: Will Ilya bite the bullet by re-affirming his position that the Supremacy clause "does not require [states] to help enforce [federal law] or to give the federal government the same services and assistance available to private parties"? Of course not: these sorts of discriminatory refusals to provide the feds with services extended to all other parties practically amount to fines on the feds. If the "direct" fine is prohibited by the Supremacy clause, then the "indirect" discriminatory refusal to provide services must also be prohibited.

There is a larger point buried in this arcane dispute over the scope of Supremacy: Neither the good old "direct/indirect" distinction nor the good old "non-discrimination" principle can guide us out of Baseline Hell, because that infernal battlefield resist being navigated by merely doctrinal phrases. The point of my original post was to argue that there must be some limit on the Supremacy clause's non-discrimination principle in order to accommodate Printz. The point of Printz, after all, is to allow the states to resist federal policy priorities with which the states disagree, and such resistance requires some sorts of discriminatory refusal to lend state personnel and property to aid those priorities.

But which sorts of refusals are allowed? In Baseline Hell, there cannot be crisp answers to this question. Sure, we will invoke the usual hackneyed legal boilerplate -- "direct/indirect," "similarly situated," "proprietary/governmental," and so forth -- but beneath these phrases lies an inevitably raw policy decision: How much power should the states have to trip up the feds? Twenty years ago, I argued that the answer turns on the monopoly power of the states. Discriminatory refusal of the states to permit their police forces to enforce federal law should probably be fine, because the feds can hire a parallel federal force. Discriminatory refusal to let the feds use state roads, however, is too much state power: The feds cannot build a parallel road system on which to chase the bad guys (especially if the bad guys are driving on the other state-owned road system).

This sort of policy-laden distinction between a state's impeding federal policy "too much" by withholding state-owned resource for which there are insufficient substitutes and the states' impeding federal policy to a permissible degree is just too mushy and policy-laden ever to incorporate directly into the doctrine. The official Supremacy doctrine will, therefore, continue to limp along with conclusory phrases like "discrimination," "generally applicable laws," and so forth. That's how one feels one's way in the murky terrain of Baseline Hell: Pretend to "do law" with canned, empty magic words while legislating incrementally based on one's intuitions about what will make a federal system work.

In the context of these new California laws, the practicalities of the situation probably (IMHO) allow California to withhold the services of their law enforcement officers from detaining people for immigration offenses but do not allow California to harass private detention facilities by imposing additional inspections unjustified by any material difference between facilities that help the feds implement immigration laws and those that do not. (Ilya notes that immigration detainees aree frequently abused in custody. No doubt -- but more than ordinary inmates in California's wretched prison system? I doubt it). But I am not wedded to this ultimate legal conclusion.

The only point on which I will not budge is the general idea that the Supremacy clause contains some sort of "anti-discrimination" principle that imposes some sort of limit on California's power to withhold its property and personnel from the feds. That there is such a principle is simply well-settled law. That the principle's application in any given situation is a muddy mess is equally well-settled. Welcome to Baseline Hell!

Posted by Rick Hills on March 11, 2018 at 01:19 AM | Permalink | Comments (5)

Saturday, March 10, 2018

Legal Ed's Futures: No. 13

I am excited to (however belatedly) join the conversation to which Professor Madison’s postings have so thoughtfully invited all of us.

Over the course of forthcoming posts, I hope to variously engage implications of the world’s growing complexity for the future of legal education; the need for experimentalism in legal education; the importance of law, regulation, and even “legal reasoning” for an ever-widening universe of non-lawyer professionals; the potential benefits of re-thinking the targets of faculty governance, and the place of leadership education in law schools – among other things.  Along the way, I may even try to make the case that we stand on the precipice of a “Golden Age” of legal education.

For the moment, though, let me offer two introductory points:

First, as my talk of a golden age for legal education suggests, I am deeply optimistic about our future.  There is much work to be done, and no assurance of success.  And only those prepared to innovate – sometimes in big ways – are likely to succeed.  For those that are prepared to do so, though, the fundamentals are not merely sound, but very promising.

Professor Madison’s postings, with what he himself describes as their “occasionally grim tone,” might be read to the contrary.  In point of fact, as he likewise highlights in his concluding paragraph, he too is “optimistic about the future.”  And for the same reason:  “I also believe that our collective power to shape our own futures – and that of law and the legal system – is immense.”

Which points to my second introductory offering: 

In his postings, Professor Madison invites us (all) to a kind of “distributed collaboration” model of shaping the future of legal education (and law and the legal system more generally).  As with Wikipedia, Linux, and other settings in which the wisdom of groups serves to generate value, he suggests in Part IV that “[i]f done well, imaginatively and carefully, then extending, distilling and combining conversations [regarding law and legal education] should lead not only to conceptual frameworks for action but also to actionable guidance itself, drawn from multiple perspectives and looking to multiple audiences.”

We have a tendency, as lawyers and perhaps especially as law professors, to reify the value of individual insight and expertise.  And hence to offer our analyses, views, and recommendations as finished products to be either embraced (ordinarily) or rejected (rarely, if ever).  Against that backdrop, Professor Madison’s invitation might offer the opportunity not only to achieve greater insight as to the future of legal education (as well as the “actionable guidance” he describes), but perhaps also to rethink the way we think as lawyers.  And thereby the value that we bring to our social, economic, and political life.  And perhaps even our future.

Robert Ahdieh (Emory)

Posted by Dan Rodriguez on March 10, 2018 at 10:22 AM | Permalink | Comments (0)

Friday, March 09, 2018

Legal Ed's Futures: No. 12

Outrunning Niels

A range of commentators in this symposium have identified tech as an important driving force in the changes in legal education. It’s not hard to see that if we’re to make law school more relevant to our students, and if we are serious about making our graduates capable of operating in a fast-changing legal services marketplace, we clearly need to do something about the technology gap in law school education. But what should we do?

One response is to teach law students how to code. Two approaches to this have emerged in law schools. The first—exemplified by the excellent subject called “Computer Programming for Lawyers” run by Paul Ohm at Georgetown (https://cp4l.org/)—is a kind-of standard comp sci “Intro to Programming 101” class, but with a legal tinge. (Not just regular expressions, but regular expressions in legal search, etc) This approach is useful in imparting some new knowledge to law students, gives them a tiny bit of coding skill, and maybe changes their relationship with their computer a little. This approach has utility, I think, in the same way that a really good “Law & Literature” class has utility, providing the student with a bit of diversity of outlook and a welcome break from all those endless rules and cases that they have to study in their black letter classes.

Another approach is to give lawyers some training in how to translate legal rules into an expert system shell or how one can pour legal cases into a neural net simulator. I ran this kind of AI & Law class at Melbourne University Law School and then Chicago-Kent, around 20 years ago. The newer iterations of this sort of approach are exemplified in the Iron Tech/Apps for Justice classes that David Johnson pioneered at the center that I ran at New York Law School about ten years ago, which then found its way to Georgetown, Melbourne Uni, and places in between. This sort of course is useful to teach translational skills—from legal code into computer code—that are of significant value for the law grads who want to work in knowledge management departments or want to code expert systems.

While these approaches create great marketing copy, and are useful in the limited ways I mention above, they are hardly the panacea for students who are graduating into the new legal services marketplace. It is definitely a good thing for a law grad to know how to do code in Python or Neota (or, even better, in R), but that’s like saying it’s a good thing for a student to have taken a negotiation class or been on moot court. Valuable skills, to be sure, but hardly game-changers. I don’t think that one elective in programming is the solution to the problem the students face in navigating the new normal of a legal profession being eaten away at all sides. Also, because it’s an elective in an otherwise traditional JD, only a small number of self-selecting students will ever do it.

What, then, should a law school do?

Our approach has three layers. At the bottom, every student is exposed to (1) the concept of an innovation mindset, and (2) some applications of technology in legal practice. The first aspect focuses them on understanding how careers in law look these days, and seeks to give them some skills around managing their work life in a time of ruthless change. The second aspect is much more practical: in Contract Law we teach them about smart contracts and the blockchain, in Civ Pro we show them e-discovery and explain how predictive coding and AI will affect their early working life as litigators overseeing document review, and so on. These aren’t much, but they provide a foundation for the deeper layers. And they also mean that every student has some basic context of how technology and change will affect them, even if they choose to focus on other aspects or use their law degree for other purposes.

At the next level up, we give students a small range of electives that are focused on technology and innovation within legal services. This means that we have Legal Tech & Innovation units that focus on legal translational work, coding legal materials into computer systems. Students gain familiarity with AI & law, and with inference engines and representational formalisms. We also have a Business of Law class, that is aimed at explaining the structural changes that are going on in the legal profession, so that they know not only the basics of legal practice—can use an LPMS, understand how legal partnerships work, and why they are a poor business structure if you want effective investment in the future, etc—but they also understand the big structural changes that will affect them—the development of the “legal operative”, how managed legal services works, what LPO (legal process outsourcing) to South Africa and India means for them, the rise of private litigation funding firms and its effect on the legal system, and so on. About 30% of our cohort will undertake these sorts of opportunities.

The final layer (which suits about 10% of the class) is a Y Combinator-like incubator/accelerator for law firms, courts, and non-profits. The insight is to have a hosted innovation lab that generates intrapreneurial innovation within the firm/court/agency and which gives our students experience in managing and developing legal innovation. We have students work with a legal technologist, a startup mentor, and faculty from our design school to take the client from ideation through to product/demo. Students work as members of a team, being involved in every stage of the innovation cycle. They get exposed to design thinking, agile management techniques, lean canvas experimentation, coding, and the business challenges of innovating in law. They also typically build proof-of-concept computer systems for the legal client.

Is this the best (or only) way to provide students with the skills to succeed in the new legal environment? Of course not. But at the end of the day, it doesn’t have to be the best of all possible worlds. My approach is structured around the old joke about Albert Einstein and Niels Bohr, who find themselves stalked by a lion. When Albert pulls out his running shoes, Niels says, “Don’t be stupid, Albert, you can’t run faster than a lion.” Albert replies, “I don’t have to run faster than the lion, Niels. Just faster than you.” [1]

My students don’t have to be the platonic ideal of the graduates for the legal future. They just need to be better than grads from my competitors.

And, I’m proud to say, they are.

 

Dan Hunter (Swinburne Australia)

--Notes—

[1] I have heard this joke told in many different forms, sometimes featuring these two eminent physicists, sometimes just with generic hikers, sometimes with a bear, a tiger, and a lion. I have no idea why the joke is funnier with a lion, Einstein, and Bohr as the protagonists. But it is.

Posted by Dan Rodriguez on March 9, 2018 at 09:28 AM | Permalink | Comments (0)

A quick word on the speech controversy at Lewis & Clark

A quick thought on the students at Lewis & Clark Law School protesting Christina Sommers earlier this week. I confess to knowing nothing about Sommers or why she generated such anger from the students. I was surprised by the heat the event generated--the discussion on the ConLawProf listserv became quite stark. People may have been a bit surprised to see this happening at a law school (recall Heather Gerken's argument last summer that the nature of legal education affects how students go about protesting). There was some discussion of whether the protesters' actions warranted school code-of-conduct charges, which must be reported to the Bar and can create longer-term professional headaches than they would for undergrads.

Having watched the several videos, it appears there were two groups of protesters, inside and outside the room and the building. So this case illustrates the vision of counter-speech and heckling I have been trying to formulate. The latter group was engaged in protected activity. Although they made noise and made it more difficult for Sommers to be heard, they were not interfering with her use of a reserved space in which one speaker had priority right. It appears they were in an otherwise public outdoor space (although I do not know the details or rules about spaces at L&C); if so, their speech in that space should receive equal footing with Sommers' speech in the classroom.

Posted by Howard Wasserman on March 9, 2018 at 12:32 AM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (4)

Thursday, March 08, 2018

The Immigration Nexus: Law, Politics, and Constitutional Identity (Updated)

I am in Portland today for the 2018 Spring Symposium of Lewis & Clark Law Review, The Immigration Nexus: Law, Politics, and Constitutional Identity. I will be talking about universal injunctions (and the paper will undergo significant organizational changes in the next draft, as I incorporate helpful reader comments and a different focus that I discovered in preparing my talk) and Amanda Frost will present her paper in support of them (we actually are close on a lot of the underlying issues).

Video of the Event is here.

Spring 2018 Law Review Symposium: The Immigration Nexus: Law, Politics, and Constitutional Identity

Date: 1:00pm - 5:00pm PST March 9 Location: Erskine B. Wood Hall

 

 
 
 

1:00 p.m. PANEL ONE

(Moderator: Associate Dean John Parry)

OPPORTUNITIES & ANXIETIES: A STUDY OF INTERNATIONAL STUDENTS IN THE TRUMP ERA

Kit Johnson

THE CONSTITUTION AND THE TRUMP TRAVEL BAN

Earl Maltz

UNIVERSAL NOT NATIONWIDE AND NOT APPROPRIATE: ON THE SCOPE OF INJUNCTIONS IN CONSTITUTIONAL LITIGATION

Howard Wasserman

IN DEFENSE OF UNIVERSAL INJUNCTIONS

Amanda Frost

 

3:15 p.m. PANEL TWO

(Moderator: Professor Juliet Stumpf)

WHO NEEDS DACA OR THE DREAM ACT?

Susan Dussault

THE IMMIGRATION-WELFARE NEXUS IN A NEW ERA?

Andrew Hammond

THE 20-YEAR ATTACK ON ASYLUM SEEKERS

Kari Hong

Posted by Howard Wasserman on March 8, 2018 at 11:50 PM in Article Spotlight, Howard Wasserman, Teaching Law | Permalink | Comments (0)

Baseline Hell in the Sunshine State: Can California Subject Federal Immigration Agencies to “Special Burdens”?

Suppose that a state law’s restrictions on private persons or its own officials and facilities apply only when those persons, officials, or facilities assist the federal government. Does such a law constitute “discrimination” against the feds that violates the Supremacy clause? If the answer is “always yes,” the state autonomy protected by Printz v. United States could become a dead letter. If the answer is “always no,” then the feds’ immunity from subnational governments’ attacks becomes a dead letter. Between these two answers is “a darkling plain/ Swept with confused alarms of struggle and flight,/Where ignorant armies clash by night.” It is a place I call Baseline Hell.

This infernal battlefield is nicely illustrated by the United States’ lawsuit against California alleging that new state laws violate the Supremacy Clause by imposing discriminatory burdens on facilities and people who help implement immigration law.

AB 103, for instance, requires the California AG to inspect “county, local, or private locked detention facilities in which noncitizens are being housed or detained for purposes of civil immigration proceedings in California” to determine the “conditions of [the detainees’] confinement,” the “due process provided” to the detainees, and “the circumstances around their apprehension and transfer to the facility.” AB 450 provides that an employer or its agent “shall not provide voluntary consent to an immigration enforcement agent to enter any nonpublic areas of a place of labor,” unless “the immigration enforcement agent provides a judicial warrant” or consent is “otherwise required by federal law.” The United States argues that these provisions violate the Supremacy clause because they “constitut[e] an obstacle to the United States’ enforcement of the immigration laws and discriminat[e] against federal immigration enforcement” (para 35 of Complaint).

Two legal principles bear on this complaint: The “state autonomy” principle of Printz and the “intergovernmental non-discrimination” principle of the Supremacy Clause. (This latter principle does not have really a “leading case,” given that the role of discrimination in McCulloch’s holding was murky. If one wanted a citation, I’d recommend Davis v. Michigan Dep’t of Treasury, about which more below). The feds may not force the California legislature to enact state laws to help implement federal immigration policy, nor may they force state or local officials to execute federal immigration laws. But California may not single out federal policy for “discriminatory” burdens.

Has California so discriminated by subjecting detention facilities and private employers to a special regulatory regime if and only if they help implement federal immigration law? Ilya Somin has a typically thoughtful post in which he acknowledges that “it is far from clear how the federal courts will rule.“ Eight legal commentators at Vox (including Ilya) offer similarly equivocal conclusions.

I think that that the conflict between the “state autonomy” and “don’t-discriminate-against-the-feds” principles nicely illustrates the uncertainty of baseline hell. Ilya’s defense of AB 103 shows how obscurity of the baseline defining “neutral” treatment of federal policy makes it impossible to reconcile these two doctrines based on existing precedents. According to Ilya, because ”California clearly has the right to inspect its own state and local government facilities at will,“ AB 103 is permissible. But Ilya’s reasoning, I think, assumes that the baseline of neutral treatment is that states can do anything they like with their own property, even if states’ regulation of their own facilities singles out federal interests for discriminatory treatment.

I do not think that this view of the baselines is correct. To see why, consider an easier case. Imagine that California enacted a law requiring state courthouses to impose much more time-consuming TSA-style security checks only on federal officers, requiring federal officers (but no one else) to take off their shoes and take their laptops out of their briefcases before walking through the metal detector to enter the state courthouse. I assume that creating such a special procedure only for the feds would violate the Supremacy clause even though the California legislature would certainly be free to impose such enhanced security on everyone in a non-discriminatory way. Because the discrimination would manifestly serve only the goal of harassing the feds and impeding the execution of federal law, it attacks federal supremacy just as surely as if California had forced the federal officers to pay a special “federal employee fee” whenever they entered state-owned buildings.

So what counts as impermissible “discrimination” against the feds? In some contexts, the SCOTUS has defined impermissible “discrimination” with extraordinary breadth. For instance, in Davis v. MDOT, the SCOTUS held that Michigan’s exempting the income of retired state employees but not retired federal employees from Michigan’s income tax constituted a violation of the “nondiscrimination component of the constitutional immunity doctrine.” (Ilya suggested in Twitter exchange with me that Davis was really just an interpretation of a provision of federal tax law. Davis, however, makes it pretty plain that the decision is rooted in constitutional considerations of supremacy. See, in particular, Davis’s statement at page 813-14 that “[r]egardless of whether §111 provides an independent basis for finding immunity or merely preserves the traditional constitutional prohibition against discriminatory taxes, however, the inquiry is the same”). As Justice Stevens noted in his dissent, Michigan’s tax exemption did not literally discriminate against the feds, because federal employees received exactly the same tax treatment as private employees. Stevens reasoned that “[w]hen the tax burden is shared equally by federal agents and the vast majority of a State's citizens, ... the nondiscrimination principle is not applicable, and constitutional protection is not necessary” (pages 819). The majority, however, seemed to reason that federal employees were constitutionally entitled to be treated the same as similarly situated non-federal actors. Since there was no constitutionally relevant difference between federal and state retired employees, the former were entitled to the same state tax treatment as the latter.

Applying that reasoning to AB 103, it is easy to see how California law could be said to discriminate unconstitutionally against detention facilities that implement federal law. Yes, of course, the state has a duty to ensure that all state, county, municipal, and private facilities treat their detainees humanely. But why does this duty require that only those facilities housing immigration detainees receive special inspections? Is there some reason to believe that facilities are more likely to abuse their inmates after they enter into an intergovernmental service agreement with the feds? If not, then the Davis principle suggests that subjecting only such facilities to a special inspection regime undermines federal supremacy.

Against this broad understanding of the anti-discrimination policy, however, is the worry that, if taken literally, the broad reading of federal supremacy would undermine the “state autonomy” principle. The point of Printz, after all, is to allow states to pursue their own policy priorities by refusing to expend their resources on federal priorities. If states must implement federal law on exactly the same terms as they implement state law, then Printz is pointless.

Can these two principles be reconciled? Yes, of course: Any two principles can always be reconciled with each other simply by changing one of the principles. As a federalism fan, I would construe the anti-discrimination narrowly and state autonomy broadly, by allowing states to discriminate against federal policies (albeit not federal personnel) in their regulation of their own property, funds, and personnel. This means that AB 103 would be permissible to the extent that it applies to state, county, and municipal facilities but not as it applies to privately owned facilities. (AB 450’s prohibitions on private employers’ cooperating with federal authorities is, alas, an unconstitutional burden on federal supremacy even under my narrow view of federal supremacy).

Such a reconciliation of state autonomy and federal supremacy is messily “legislative.” For frankly policy-oriented reasons, it limits the requirement that states be “neutral” with respect to federal choices in order to preserve a greater power for states to contest those policies using purely state resources. The underlying assumption of this broad reading of state autonomy is that, if the feds care so much about some goal, then they ought to create a parallel governmental system with which to implement the contested federal policy. If this obligation to use purely federal resources practically undermines federal law, well then, tough: Letting states challenge federal policy by withholding the states’ help is part of what makes American federalism a mechanism by which out-of-power parties can raise a little hell.

Note that my suggested reconciliation of state autonomy and federal supremacy is a legislative rather than interpretative choice. One could make a different choice based on different policy priorities. There are more decorous federal regimes — Germany's, for instance — in which subnational jurisdictions’ power to resist the central government is much more limited. (For an excellent discussion of how the German constitutional concept of “bundestreue” bars Länder from adopting a confrontational stance towards federal policy, see Daniel Halberstam’s classic article on the Political Morality of Federal Systems).

In short, the definition of constitutional “neutrality” required of states in the American federal system is up for grabs. It is not decided by Printz or McCulloch or any other precedent. In baseline hell, it is a waste of breath to argue about what the law “really” is. The only answer is that the law is contested and that some frankly legislative choice is needed to resolve a gap in our understanding about how entitlements ought to be divided up.

Posted by Rick Hills on March 8, 2018 at 11:43 PM | Permalink | Comments (5)

Happy International Women's Day and the Future of Pay Equity

I am trying to not blog or be online much at all this week with the goal of getting a good mid-semester spring leap on several of my new research projects. International Women's Day is a good exception though* - and this is an optimistic year for all of us law professors working to promote gender equality.

#metoo has certainly brought momentum to both the public debates and legislative/administrative efforts to create better work environments for all. And my latest book argues that law, including IP, contract law and antitrust laws, can be reformed in ways that would empower expression and disruption of dominant, too often problematic, images and messages that pervade our markets, including concepts of girlhood and womanhood. I've also argued here that by focusing on sexual harassment we should not lose sight of some of the most important aspects of employment discrimination, that are (alas I know this because I teach and write and consult about employment law) less sexy, literally and figuratively. 

I am writing a new law review article tentatively titled Flipping Transparency on its Head: The Future of Pay Equity. And I am honored to be named the keynote speaker in the annual upcoming Pay Equity Day celebration this April at the Lawyer's Club of San Diego. The talk, and this post, will definitely help shape the project. Pay equity, including equitable pay and promotion across non-identical positions, is perhaps the most difficult issue to tackle in the field of gender work discrimination and the contemporary gender pay gaps are even more pronounced when we examine the salaries of women of color. My article a very very (very) drafty draft though I will be happy to circulate some version soon enough, but my general argument is that the underlying logic of a successful pay equity reform will be to flip transparency structures on their head. The reality is that we've had pay equity laws on the books for decades, both federal and state prohibition on pay discrimination. And yet, the gaps persist and basically every economic study agrees that while some gaps can be explained by seemingly "private choices" (a problematic notion in itself) such as education levels, stereotypically gendered careers, and hours and years in the job market, there is a component of the gap that simply cannot be explained away and points to direct discrimination. The new path for pay equity is to look at what happens at the negotiation table and the information that circulates in the job market, including both intra- and inter-firm speech. Several new state laws/bills, some just passed and are taking effect this year (California, NY, Mass., Maryland), prohibit employers from asking prospective employees about their previous salaries and, at the same time, prohibit employers from preventing employees from sharing their salaries with others. The Paycheck Fairness Act which has been introduced in Congress for many years now, most recently in 2017, would also protect employees from being retaliated against when they reveal their pay to others. In the article I draw on the robust research (including my own) on judgement and decision-making and behavioral law to understand how information is exchanged, understood and used in market relations. I also look at NDAs, something that I have been studying extensively in relation to talent mobility and innovation (also see here and here and here), and propose a notice requirement about the ability to discuss pay similar to the NDA whistleblowing exception notice requirement adopted by Congress when it enacted in 2016 the Defend Trade Secrets Act (I've written about this new provision here). My goal is to add meat and layers to the new wisdom of flipping transparency and point out the promises as well as the challenges of current reforms.

Now is the perfect time in the writing to learn from your reactions, thoughts and related works – and so I'm looking forward!

*wow I'm reminded that blogging is super helpful to articulating new projects – I knew there was an exception to my rule about an online detox for my mid-semester jump-start writing week! We prawfs always find the good loopholes [and point out the bad ones]!

Image result for pay equity

 

Posted by Orly Lobel on March 8, 2018 at 05:15 PM | Permalink | Comments (5)

Legal Ed's Futures: No. 11

Across the discipline of legal education and across law schools, and without the blessing of appointed and delegated leaders, legal educators should act on their power to define, advance, and implement their own visions of law and legal education, in ways that make the changing conditions of the legal profession and its existing institutions relevant but not determinative.

--Mike Madison

In this post, I am conscious of not wanting to author a diatribe in the style of the Unabomber manifesto (read: “The Industrial Revolution and its consequences have been a disaster for the human race.”).  Instead, I’ll offer a more tempered version:  The tradition of legal education and its consequences have created a crisis for civil society.

Those of us in legal education and the legal services industry have for 150 years made legal education a precious commodity.  Jointly and severally, we have isolated the construction, interpretation, and operation of law away from its subjects and objects.  And we have done so at our peril. 

When I was a 1L, a professor remarked to my class that we would now be popular at cocktail parties.  (In retrospect, this could not have been farther from the truth—no matter how fascinating I thought I was, nothing screams “buzzkill” like Palsgraf and the Rule Against Perpetuities.)  But, the implication was that we would now hold the key to answer many questions that plague “regular people.”  While at the time it was heartening to think that I might be popular at cocktail parties, there was something inherently disturbing about the dynamic.  The function of legal education to create those in-the-know (and, consequently, those “out-of-the-know”).  The haves and have-nots. 

The haves and have-nots certainly factor into access to legal services, as well.  This is even true in BigLaw, outside of most access to justice conversations, where I worked in the late 1990s and early 2000s.  Through a series of mergers and acquisitions and the building of a global empire, local clients dropped off, no longer able to afford the services we offered.  Partners who relied on a local client base for business development struggled to find a new direction.

The intersection of the problems in legal education and the legal services industry intersect in the following illustration: A few years ago, I taught a class called Complex IP Problems.  Throughout the semester I brought in a visual artist, an author, the owner of a film production studio, an entrepreneur, and an inventor, all to talk about particular IP problems they had.  Despite the differences in background and interest, each of the class visitors had one surprising thing in common: None of them had consulted a lawyer to help them navigate their issues.  When the students interviewed them, they said things like, “Who can afford a lawyer?” and “Lawyers are the ‘no’ people.”

The market has responded to the precious nature of the law certification, and to the inflation of billing rates for lawyers, by creating an entire market for professions that are law-related but do not require a JD.  The single biggest growth area for law jobs is in jobs that do not require a JD.  A search on LinkedIn for contract manager in the US, a position that involves drafting, negotiating, and interpreting contracts but does not typically require a JD, leads to over 19,000 job postings. 

In his framing post, Mike Madison lists many of the silos we see within legal education these days.  But I want to go a step farther and suggest that the entirety of legal education has been its own silo—an ivory tower, if we want to make the silo fancy.  By keeping legal education for a precious few, and refusing to adapt like, say, the medical industry has, to a variety of roles for different types of legal professionals, we have become stuck in that tower, and the world has started to work around us.

It is a deep irony that while law schools have been isolated from higher education generally either de jure or de facto, law is inherently interdisciplinary.  There are legal issues, consequences, and problems, associated with every area of study.  Yet, a student earning a 4-year university degree may be required to take classes in language, writing, sciences, and math, but may never have any exposure to the legal frameworks and principles within which she lives her life every day.  It is time that law schools recognize that legal education for the people does not threaten the JD—rather, it places it front and center of a series of concentric circles emanating outward.  As leaders in legal education, we must recognize the widespread need for that education.  We must work to offer it to markets both broad and deep.  Legal education is critical for the functioning of civil society, and we must embrace that, or we all lose.  Rapunzel, Rapunzel, let down your hair.

Megan Carpenter (New Hampshire)

Posted by Dan Rodriguez on March 8, 2018 at 12:09 PM | Permalink | Comments (0)

Legal Ed's Futures: No. 10

Growing The Scope Of What We Do

I am grateful for the opportunity to be part of this important conversation.  I especially appreciate the framing - initiating a dialogue as a predicate step for future developments in legal education.  In all our busy lives, I believe we are intensely interested and motivated to work hard on behalf of our students and the profession. But it is useful to force ourselves on occasion to break out of the necessary day-to-day effort on immediate outcomes and pause for a moment to set guideposts for the industry’s future.

What questions do we need to think about in assessing the “futures” of the legal profession?  To open, a few:

Is the profession changing? 

Sure – it has changed before, and will always change.  The harder question is if there are trends that demand particular attention.  Here, I think the answer is clearly yes.

By even casual observation, it is clear that technology is beginning to set its grapple hooks into the business of law.  When I was a baby lawyer, I cut my teeth on discovery, often reviewing lots of documents in windowless rooms.  Now electronic discovery is now being handled in part by machine learning algorithms, which do a much better and more cost-effective job than I ever did.   JP Morgan, for example, has developed a machine learning system called COIN (Contract Intelligence), that purports to reduce to a matter of seconds work that would have taken lawyers 360,000 hours to complete.  A teenager in London created a chatbot lawyer that effortlessly overturned 160,000 parking tickets in New York and London, saving pleaders more than $4 million in fines.  LegalZoom has incorporated more than 1 million businesses through a simple online form, work that used to be the first introduction of a company to an attorney.

Similarly, as other contributors have noted, we have an access to justice crisis in this country.  People who desperately need lawyers cannot afford them.  Three quarters of those who go into state courts do so unrepresented.  Here in California, there is 1 legal aid lawyer for approximately every 20,000 eligible poor people.  People who do not have lawyers will have worse outcomes, and this undermines the legitimacy of our most prized possession, the rule of law.

Does legal education need to adapt?

Also, I believe, an easy “yes.”  We have adapted in the past, and stand poised for even greater innovation. 

An important first step is taking stock of our core values.  American legal education has excelled by teaching a mode of analysis and dispute resolution that works in the world, and I do not see that core mission becoming irrelevant in my professional lifetime.  Law schools deliver some tools and skills that are and will remain essential in any future still bound by law and legal norms, and it is dangerous to neglect that core.  But we ignore the trends above, and others other participants have framed, at our peril.  And although innovation will be non-linear and responses will be varied, I want to suggest a unifying theme:

We must enlarge the scope of what we do to become relevant to a broader universe of people in a complex world and changing profession.

This does not mean enlarging JD enrollments – indeed most law schools (including mine) have gone in the opposite direction.  But we have to do more, both within the JD program and outside of it. 

Inside the JD program, we need to train lawyers that have competencies to participate in and even guide the technological developments of the future.  As we know our students will have many jobs over the course of their careers (including some that do not exist yet), we need to invest in treating law school as an exercise in fostering life-long learning.  And a careful examination of access to justice needs to be an essential part of any JD curriculum – we must not only teach, but take advantage of the crucial aspect of professional formation to inspire our students to serve the most vulnerable over the course of their careers.  To accomplish these goals, we need more advanced partnerships – with employers of the future, with non-profit and governmental entities seeking to create a more just world.  We cannot meet these challenges inside our walls.

Outside the JD program, the challenges are even more visible but the opportunities more exciting.  Many schools have already broadened their relevance by taking what we do best as legal educators to new audiences, evidenced in the growth of master’s degrees and LLM programs (conceding that motivation for these have been declining JD enrollments and need to new revenue sources outside the JD program).  But more can and must be done.  Perhaps one day law schools will not be viewed merely as an institution granting JDs after 3 years of study, but rather as an essential core curriculum for professionals in any discipline.  And as more professionals interact with the legal system, we can make people better clients and consumers of legal services.  We will have to grapple with what advantages and capabilities we have in a world of unbundled legal services and where more and more people seek knowledge outside of the world of the traditional university.

I will expand on these themes, and discuss in more depth specific innovations, in future posts.

Michael Waterstone (Loyola - Los Angeles)

Posted by Dan Rodriguez on March 8, 2018 at 10:21 AM | Permalink | Comments (0)

Legal Ed's Futures: No. 9

Let a Thousand (or at least a Hundred or More) Flowers Bloom!

This virtual symposium – and a great deal of writing about legal education – offers readers a lot of really good ideas about innovations in legal education, or extensions of nascent programs already in place somewhere. Indeed, maybe too many in one quite specific sense: It is unimaginable that any single law school will – or would be able to – adopt all or even more than a handful of the ideas.

That’s not a counsel of despair, though. Rather, it’s an argument in favor of institutional pluralism in legal education – an argument that conveniently dovetails with the observation that institutional pluralism exists and isn’t going to go away.

Institutional pluralism means that each law school will choose its own path. That path will be marked out in a complex process. A dynamic new dean will come in supporting some innovations. The dean will be supported by some members of the faculty, who see the institution as stagnating or failing to adapt to new market conditions, and opposed by others who see the specific innovations as inferior responses to new conditions than other innovations would be. The central university (“the provost”) will support the new dean or be skeptical about the initiatives. Alumni and students will weigh in, offering their views about which features of the old program should be preserved, which should be abandoned. And so on ….

Institutional leadership at the law school and university levels, faculty, student, and alumni “politics” – all will play out differently at different institutions, even at institutions with roughly the same location in the market for legal education. And of course that’s another feature of institutional pluralism: The market for legal education is segmented in ways that we all recognize but often fail to take into account when we discuss “legal education” tout court.

The inevitable effect is that good ideas will spread erratically and penetrate legal education incompletely. Some law schools will adopt some good ideas but reject others; others will take up ideas rejected elsewhere and ignore others adopted by their peers.

An optimistic social Darwinist or free-marketeer would say (hope?) that all will work out fine in the end. The ideas that turn out to work well will spread and those that don’t work will drop out of the competition. I’m not in either of those camps, in part because I think that the “environmental” conditions for legal education change too rapidly for evolutionary adaptation – a not terribly nimble process – to work well. Rather, we’re going to see repeated episodes of innovation, change, success and failure – not even cycles but simply episodes.

And, again, that’s either all to the good or a matter of indifference. All to the good because there’s a decent normative case for institutional pluralism (it would be bad were all law schools with religious affiliations to come to be indistinguishable from deeply secular law schools).[1] Or a matter of indifference because in an institutionally pluralist world, lots of people (law students, faculty members, those in the general society) will be able to get a lot of what they value from legal education even if no one gets everything she wants from any specific law school.

Mark Tushnet (Harvard)

[1] In an attempt to preempt some kinds of criticism (of the Association of American Law Schools among others), I note that the words “all” and “indistinguishable” carry a lot of weight in my formulation.

Posted by Dan Rodriguez on March 8, 2018 at 09:42 AM | Permalink | Comments (0)

Wednesday, March 07, 2018

Legal Ed's Futures: No. 8

Legal Education for a Changing Society

 

I am grateful to Dan Rodriguez for organizing and Mike Madison for inspiring this virtual symposium and including me. The very choice to make this symposium virtual embodies the important issue we will be reflecting on this month—how should legal education and scholarship evolve synergistically with our changing society?

As a first-year dean at a young law school within a public, land-grant Research 1 university (Penn State Law in University Park, PA), I am excited to have a chance to dialogue with this group of thought leaders and other thought leaders who join the conversation about the answers to this question.  I chose to become a dean because I hope to help us make progress on legal education for a changing society at my institution and beyond.

We are at a moment of profound social change in which technology, globalization and the need for cross-cutting knowledge are transforming the practice of law and the nature of legal services and information. It is crucial for law schools to acknowledge that change, and not simply respond, but lead in the face of it. Drawing from the themes of Mike’s posts and those so far, my first post will highlight four issues I would like to explore in more depth (among others) over the course of our conversation.

  • Transforming Legal Job Markets

I often say that as professional schools, law schools have an ethical obligation to prepare our students for their licensing exam and to help them launch fulfilling careers. But as Mike and others have detailed, career paths are rapidly evolving. Law firm jobs have not fully recovered post-recession and public interest jobs have remained a stable percentage. But “JD Advantage” jobs—those for which a law degree is useful but not required—have grown 14% over the last several years and likely will continue to grow.  While some of these jobs may not be positive pathways to fulfilling careers, others are and the preparation for them may look different than for traditional legal practice jobs.

Beyond the curricular implications of this transition that I hope we will discuss over the course of this symposium, I think it also needs to guide an evolving approach to career services.  At Penn State Law, we are examining how we can work more effectively in an individualized way with students to help support multiple kinds of career paths in a wide range of locations. An important piece of that is our initiative to provide comprehensive mentoring that begins at admissions.  I think that mentoring plays a critical role in supporting our students in a changing society.

  • Technology

The pace of technological change and its implications for law are staggering. I knew that before I started as a dean, but my conversations with practitioners and corporate leaders these last few months have reinforced that the pace of change is even faster than I had imagined. Artificial intelligence and machine learning, immersive technology, 3-D printing, blockchain, and technologies I am not even envisioning yet are both transforming legal practice and raising important legal issues that existing frameworks are not prepared to address. Online education and distance learning technology can play important roles in allowing us to innovate pedagogically and in how we support access to justice.

I look forward to learning from all of you about cutting-edge efforts in the legal-tech space. At Penn State Law, we have a major technology initiative that includes creating modular online courses for nonlawyers (with a shout-out to symposium participant Michele Pistone for inspiring this idea); exploring innovative uses of our advanced distance learning technology (externships everywhere, virtual conference, new partnerships); and launching a Legal-Tech Virtual Lab.

  • Interdisciplinary Partnerships

Law schools’ place in their universities (for those that aren’t stand-alone) has long been complex. A dichotomy has often been posed between practical education preparing students for a licensed profession and interdisciplinary scholarship and collaboration. However, in my view, building bridges between law and other disciplines is crucial to preparing our students for fulfilling careers and solving the world’s important problems. My conversations with practitioners and business leaders have only reinforced my sense that our next generation needs cross-cutting knowledge to lead, particularly at the interface of law with STEM.

 I am interested in perspectives on how this can be done well. At Penn State Law, one of our great assets is being on Penn State’s University Park campus and having the chance to collaborate across our colleges and campuses. These partnerships are crucial to the Legal-Tech Virtual Lab, major new centers we are launching in energy and security, our innovative approach to experiential education, and our collaborations in health, entrepreneurship, and engineering (just to name a few). I anticipate these partnerships not only producing cutting-edge research, but also practically preparing Penn State students to lead.

  • Leadership

I agree with Mike for the need for bottom-up efforts and believe deeply in collaborative governance. But I also want to reinforce that leadership matters and that we need talented innovators to lean in and lead. I was a reluctant dean candidate not simply because I needed to be convinced that I could contribute as much in this role—I also had decided I was not qualified.

I worry that many potential leaders, particularly women and people of color, opt themselves out for this reason. I have been going around the country sharing my story and encouraging people who are interested in leadership, but worry they are unqualified, to talk confidentially with me. I have been simultaneously heartened and concerned by the strength of the response—excited to talk with these potential new leaders and worried about how many talented leaders we lose. 

I reiterate an open invitation here to anyone (including those who are very junior) who thinks he or she might be interested in being a dean to reach out to me, [email protected].  I am happy to dialogue with you about your ideas and your concerns, and about how to gain the experiences that help prepare you for this role.

Hari Osofsky (Penn St.--University Park)

Posted by Dan Rodriguez on March 7, 2018 at 03:31 PM | Permalink | Comments (0)

Legal Ed's Futures: No. 7

A Fine Mess

With all the necessary thanks to the editors of Prawfsblawg and to Dan R and Mike M for organizing this symposium on the future of legal education, let me begin by making two obvious observations:

  1. The way that law schools are structured is a path-dependent accident; and
  2. The future of the legal services market doesn’t look like the past of the legal profession.

These two aspects are self-evident, and my colleagues in this virtual symposium will, no doubt, pull these ideas apart better than me. But I wanted to state them at the beginning of my posts in this symposium, because they are the twin suns by which I am going to navigate —my North and South Stars, if you will. Indeed, they are the two fixed points that have defined my current job.

I’m the foundation dean of a new law school, on the other side of the world. In a period when US law schools are closing, it might seem that I don’t have much to say about the future of US legal education. But the structural problems that the US system “enjoys” are the same ones that we enjoy here in Australia. (And I spent thirteen years working in the States, at Wharton and New York Law School, so I know the US system really well.) And I am more aware of these problems than most: When I agreed to start a new law school four years ago, there were already seven other law schools in Melbourne and there was a huge oversupply of law graduates. According to some commentators, as many law students graduate each year in Australia as there are practising lawyers. So, when I took on the job of foundation dean, literally no-one said “ah, just what we need, another law school.”

But this is a blessing, and not a curse. It’s great being a late entrant to a market (the runt of the litter, as I sometimes describe us): You have to work harder to get enough to eat, and literally no-one will cut you a break. This concentrates the mind wonderfully.

My background is computer science and artificial intelligence, and my university is one that has “Of Technology” in its formal title. (We’re like MIT and Caltech, just without any of the money or prestige or Nobel laureates.) Thus, the plan when we started the law school was to have technology and intellectual property in the core of our degree. I started with the idea that every one of my students would want to be like me, moving back-and-forth across the boundary between technology and law, for the course of their careers.  Surely, this is what a new, vibrant, technology-focused law school really needs to provide to its students?

Well, no.

The thing of it is that students come to law school for a range of reasons—and exactly none of them is because they were fantastic at math or computers at school or college, and so decided that the perfect use of their STEMM talents was to become a lawyer. I quickly discovered that most of my students didn’t want to study technology, few of them had much of an idea about legal practice management systems or predictive coding, and none of them saw themselves as primarily technologists.

At the same time, I was spending a lot of time talking to the legal profession and the judiciary and various other players in the law-space, in an effort to introduce them to my new school, and also to get an idea of how various legal actors saw technology, and what knowledge, skills and dispositions they wanted my graduates to have. I discovered that tech doesn’t have much of a foothold in the profession, and the real motivating force is change. Or, more specifically, fear of change. They see a range of “innovations” on the horizon, and they have no way of responding meaningfully to these changes. The legal profession doesn’t actually innovate, not the way that Silicon Valley and Shenzen and Tel Aviv do. There we see endless streams of 26 year olds, backed by VC or PE money, anxious to move fast and break things—things like the legal system. In law, we don’t see this so much. I often show two slides in my presentations about legal innovation. The first slide shows a depiction of a 17th C hospital, contrasted with a 21st C hospital. They are unrecognizably different. The next slide shows a picture of a 17th C court and a 21st C court. The main difference here is that the 21st C court doesn’t feature as many horsehair wigs.

Everyone I spoke with in the initial few years agreed that the legal profession is going to change. The most foresighted commentators recognized that the provision of legal services in the future will not be confined to lawyers from an anachronistic legal profession—instead, practising law will include new approaches and new entities, from technology companies delivering document generation systems and artificially-intelligent legal support systems, to multi-disciplinary practices providing a combination of professional services that defy 19th century conventions. Offshoring firms will be widespread, delivering technologically-mediated legal solutions across the globe, using the cheapest-and-best legal operators. Large companies will adopt a managed-service approach for their legal needs, an approach that doesn’t necessarily involve the law firm, or even lawyers.

Against this reality, law schools still look like something out of the early-20th century. They teach an old-fashioned curriculum in an old-fashioned way. They are extremely conservative, focusing on the transmission of legal content modelled on established law schools from the 19th or early 20th centuries, in order to appear “rigorous” and “professional.” Apart from some worthy experiments undertaken by motivated individual academics, the most significant innovations within law schools in the last twenty years are: (1) a greater commitment to skills; and (2) some limited use of online teaching. (Although, of course, US schools are waaaaaaaay behind on this front. Thanks, ABA.) As for involving technology in the curriculum, schools rarely commit resources to this arena, preferring instead to engage in a kind of innovation cabaret, creating media-friendly events like two day “legal hackathons,” or offering vendor-sponsored coding electives that provide no long-term value to law students.

So, this is the reality we face, or specifically what I face as the dean of a new school. This reality will form the background to what I want to talk about in subsequent posts. I want to focus on the obvious challenges that confront legal education globally, and discuss how we have approached these challenges/opportunities at my law school. I’ll focus on the two observations I opened this post with, and will chat about three main challenges to the legal profession and the law schools that serve it:

  1. The development of legal technology (and, in time, artificial intelligence systems) that supplant the special skills of legal graduates;
  2. The likelihood of systemic casualization of the legal profession, along with the increased cost of delivery of legal education; and
  3. The rise of transnational lawyering, where low-cost providers of legal services will be able to market directly into traditionally-protected high-cost and high-value jurisdictions.

Along the way, I plan on discussing how artificial intelligence actually works (and, as a result, which parts of the profession are going to die), why “programming for lawyers” electives aren’t a good answer to the question “what is to be done?”, and I’ll make some modest proposals about how US law schools can reduce the cost of delivery of legal educations. Maybe to zero…

Thanks for having me along for the ride.

Dan Hunter (Swinburne, Australia)

Posted by Dan Rodriguez on March 7, 2018 at 09:51 AM | Permalink | Comments (0)

Legal Ed's Futures: No. 6

As Michael “imagin[es] the future” of legal education, he does a great job imaging varying paths that the future might take.  I want to suggest that, in every case Michael presents, the most likely future path is the most pessimistic one. 

Law school culture is very strong.  As Michael notes, we basically still reside in the institution created by Langdell a century and a half ago.  That kind of institutional stability only happens when a strong institutional culture exists.  Now, as Michael also (correctly) notes, we live in a time when the necessity for change is “urgent.”  Who are the people who are going to act urgently to bring about this change?  Could it be the very same people who are the products of a strong culture of conformity and statis?  The possibility is extremely remote, and we would recognize it as such in almost any other context. 

In my view, law schools are unlikely to be up to the challenge of effecting necessary change absent a deliberate choice to hire people who provide some strong indication that they both disagree with mayor aspects of law school culture and appear willing to do something about it.  As they say in Washington, D.C. “personnel is policy.” I concede that my remedy is an unnatural one, for organizational cultures exist in order to replicate themselves.  The prevailing law school culture today highly favors the same qualifications it did twenty years ago, and thirty years ago, and forty years ago, and on and on (law review membership, prestigious clerkship, highly ranked law school and high class rank).  But persons with these qualifications are the very people who are most likely to find comfort in the existing system – after all, the existing system was made by and for people just like them.  Go ahead and hire Supreme Court clerks if you like, but only those willing to be, so to speak, “traitors to their class.”  Otherwise, find some less credentialed “rebels” instead.  If we really believe change is urgent, we have no other choice.  Only “traitors” and “rebels” will provide the ideas and energy needed to act urgently to overcome the inertia of the prevailing law school culture

Michele Pistone (Villanova)

Posted by Dan Rodriguez on March 7, 2018 at 08:57 AM | Permalink | Comments (0)

Tuesday, March 06, 2018

Legal Ed's Futures: No. 5

There are many promising ideas and invitations in Professor Madison’s recent postings about law’s future(s).  While continuing to appreciate the many and varied contributions that U.S. law schools make to law and justice, I share Professor Madison’s view that there is more we can do to better serve society.  Changes in the legal profession and broader challenges to law’s role in society are indeed upon us; the question is not so much whether those will continue but whether legal educators will participate as well as we might in steering toward positive directions.

To do so, we will need to embrace a refreshing aspect of the conversation Professor Madison has opened:  recognizing the complexity of the task of meaningful “constitutional” reform.  Many current reform efforts and conversations have failed to confront this complexity and, as a result, have been and are unlikely to be up to the task.  For instance, neither alone nor together are changes (or proposed changes) such as the following likely to accomplish much to celebrate:  e.g.,

  • teaching law students coding skills;
  • adding a few more required “skills” credits;
  • adding a new Leg/Reg (or any other single) required course;
  • recruiting more STEM students;
  • using a different or no admission test;
  • reducing ABA accreditation to narrow outcome measures such as bar pass rates;
  • or changing the credit allocation in first-year courses (again!).

To address wide justice gaps, keep up with technological innovations, and account for an increasingly global marketplace for all products and services, including law, changes will indeed need to be more constitutional in nature.  That does not mean that there are not strong aspects of our current system that should be retained.  But while we may all agree that we don’t want to toss the proverbial baby with the bathwater, we may not agree on which is which.  Complexity can be, well, frustratingly complex.  With that in view, we must start somewhere, so in the spirit of beginnings, I offer the following initial ideas (in briefest outline) for reform that might move us more toward the nature of change Professor Madison contemplates:

  1. Reframe legal education’s focus from educating lawyers to teaching law more broadly. This would de-center the JD focus in favor of a wider suite of degree and credential offerings along the entire educational spectrum and would also better accommodate the many students who use their legal education to advance careers outside of law practice.
  2. Refocus state bar organizations on professional development and move licensing to the national level; permit licensing of a wider range of legal services providers; require licensing processes to meet best practices in the assessment industry.
  3. Restructure university school/college organization to unite fields that would benefit intellectually from closer association, to provide more diverse revenue bases to support overall quality, and to better build the pipeline of talent for those fields (e.g., law, public policy/affairs, government/governance, economics, political science, criminal justice, international relations/affairs).
  4. Focus on fundamental skills and competencies required for success in these fields that will stand the test of continued advances in machine learning (e.g., critical and creative thinking, complex problem solving, compassion, resilience, teamwork) and align admission requirements, program expectations, and licensing standards with assessment of and learning in those skills and competencies.
  5. Encourage formation of the legal equivalent of “teaching hospitals” at major universities to recognize that legal services are likewise critical to the health of people and society.
  6. Redesign the role of law faculty so that duties include serving clients (defined broadly), educating students, and improving law through scholarship and research.
  7. Refocus government and foundation funding of academic research to include law and justice on equal footing with scientific and medical research.
  8. Redesign an accrediting system so that instead of one category of “ABA-Approved” there are multiple designations that convey meaningful differences in quality and mission to guide the public and institutional design.

These are surely not the only areas that need attention; I’ve confined my list to some most directly related to legal education.  In follow up posts, I’ll address ideas for change that reach outside of legal education to law more generally, including the structure of law practice, judicial appointments, funding for legal services, and legal technology.

Kellye Testy (Law School Admissions Council; University of Washington)

Posted by Dan Rodriguez on March 6, 2018 at 11:06 AM | Permalink | Comments (0)

Legal Ed's Futures: No. 4

How interesting for a symposium, and a virtual one at that, to be christened with calls to action.  But thanks to Mike Madison for encouraging us not just to expound, the usual focal point of symposia, but to act, for we in legal education should be ready for action.  There is much to be done.  I am reminded that here in North Carolina, our largest public university has adopted the mantra of “think and do,” a legacy of one of North Carolina State University’s most illustrious graduates, the former Governor James B. Hunt, Jr., known for his dedication to public education as the great equalizer.

With the guideposts of a call to action and a local educational focus on thinking and doing, I note that we as legal educators have spent much time recently thinking and expounding about our enterprise.  Indeed, the cottage industry that has arisen over the critique of legal education has spawned a robust debate over the focus and value of law school while contributing to a literature that need not be recited or repeated here.  Suffice it to say that the critics and supporters of what we do as legal educators are many and varied, bringing a passion to our work that informs the thinking about what we do, what we should do and how we should do it. 

This conversation of course is not limited to individual administrators, teachers, scholars and popular commentators (and even one President of the United States) but has attracted the attention and resources of the ABA (no fewer than 4 presidential activities devoted to legal education in less than a decade), AALS (at least one major study and public relations campaigns), LSAC (more frequent testing opportunities and greater data sharing), NCBE (participation in debates if not arguments over the causes of bar passage declines), and NALP (surveys to populate major studies on trends in employment).  As we undertake this virtual symposium some 150 years since the basics of our current system of legal education were implemented by Christopher Columbus Langdell, there is no shortage of expounding. 

 

What there may be, however, is a shortage of action, or at least action resulting in more fundamental change.  While even a quick perusal of viewbooks and websites and the dreaded “lawporn” that descends upon USN&WR voters each fall reveals much discussion of action masquerading as innovation in legal education, it is unclear that we collectively are undertaking little more than what Professor Madison might characterize as silos in action.  Much of that action refers to innovation through a new clinic or a new program that may offer a version of something new but does not really get to the fundamental aspects of teaching and learning and preparing students to practice.  The 1L year looks pretty much like it did when I started law school almost 40 years ago, let alone when my dad started law school almost 70 years ago or my grandfather almost 100 years ago.  Torts, Contracts, Civil Procedure and the rest taught in large sections with some legal writing thrown in remain the constant.  2L offers some opportunity for practical experiences with a few credits for clinical classes or moot court and 3L continues as an amalgam of electives while looking for a job.   

This aversion to serious action addressing the critiques of contemporary legal education that are bandied about is understandable if not lamentable.  For example, the dreaded bar exam, our profession’s barrier to membership, is stuck in the past with testing by and grading of antiquated essays and multiple choice questions rather than modern testing devices assessing capability to serve clients.  And isn’t that ultimately the rub?  Are we preparing lawyers capable of serving clients or are we educating for something else?   

This conundrum reflects the technological advancements of the information age over the past generation whereby legal information now is readily available to the masses, no longer limited to the confines of law libraries.  This trend means that law schools must do more than transfer “the law” from one generation of teachers to another generation of students aspiring to be lawyers.  Our task as legal educators now must be different, teaching use of the law, or what may be characterized as judgment.  Not all agree, of course, and so goes the conundrum, well described by Jerry Organ’s first post in this symposium.

Assuming that at least some of us adopt the perspective that our job as law teachers is changing due to this fundamental generational shift, then a call to action is apt.  But action to what?  Surely this action cannot mean doing more of the same, by just adding that extra clinic or another institute.  Rather our direction must be guided by more fundamental adjustments in our curriculum so that we can affect positively the preparation of our students to be lawyers and not just knowers of “the law.” To accomplish this task, we must act in ways that will accelerate our students’ professional maturation.  We must have them work not like the law students we were bellowing our newly learned rules of law but rather like the lawyers they wish to become. 

At Elon University School of Law, where I have served as dean since 2014, we have undertaken to do just that.  Our guiding principle is to address the prominent critiques of legal education as being too disconnected from the practice of law, too expensive and too long.  So we decided to think and do – we thought about those critiques and then we acted. 

Over the past four years, we have changed our curriculum to accelerate professional development through a logical progression of learning that requires each student first to observe, then to simulate, and finally to complete a full time residency-in-practice in a law office or judge’s chambers for academic credit.  This highly experiential curriculum, fully compliant with ABA standards, is accomplished in two and one half years, allowing us to reduce per student average debt by some 20%.  Having graduated the first class in this new curriculum last December, Elon Law stands in response to Professor Madison’s call to action.  We know we are not alone and are encouraged by efforts of some other law schools to alter traditional ways of preparing lawyers and thereby prove it is possible not just to think but also to do.  

In posts following, I will share the process by which we came to amend our curriculum, how we are assessing it, and what other activities remain to round out Elon Law’s efforts to act – to think and do so that we offer a contemporary path to our students’ preparation for a life at the bar. 

Luke Bierman (Elon)

 

Posted by Dan Rodriguez on March 6, 2018 at 08:50 AM | Permalink | Comments (0)

Monday, March 05, 2018

Legal Ed's Futures: No. 3

Who Do We Serve?

 The structure of our legal profession increasingly benefits elites. Although large companies and wealthy individuals grumble about the cost of legal services, they can afford the very best. Attorneys for these elites are accomplished professionals: highly educated, carefully mentored, and superbly connected (often through their elite academic backgrounds). Businesses, moreover, can complement their legal assistance with armies of non-lawyers performing legal tasks. Contract managers, compliance officers, HR specialists, and other employees do legal work for these companies without the higher salaries demanded by lawyers. These businesses are also in the best position to take advantage of technologies that streamline law-related tasks.

The majority of individuals living within the United States lack these advantages. Too often, they cannot afford to hire any lawyer—even when coping with life-changing circumstances like divorce, child custody, home foreclosure, or deportation. When these individuals receive legal assistance, their lawyers may lack the training, institutional support, and time to offer the first-class legal assistance routinely provided to elites. Most frustrating, individuals cannot purchase legal assistance from non-lawyers who could provide fruitful assistance. Our prohibitions on the unauthorized practice of law primarily harm individuals; companies avoid those restrictions by hiring non-lawyers as employees. Nor do individual clients have access to the technologies that help businesses meet their legal needs efficiently—often because bar associations aggressively attack non-lawyers who try to offer those technologies.

Law schools, sadly, have done little to disrupt this structure. The Rules of Professional Conduct languish in a doctrinal backwater at many schools; most professors lack basic knowledge about the structure of our profession and the rules that govern us. Only a few innovative schools and scholars are seriously exploring new means of delivering high-quality, affordable legal services to individual clients. Even fewer are challenging the assumptions of a profession that jealously guards its exclusive right to practice law—while failing to serve the majority of individuals who need legal services.

As law schools look to the future, we need to ask these very basic questions: Who does the legal profession serve? Who should it serve? How can we design educational paths that graduate professionals capable of offering those services? Is it time to abandon our cherished belief in a general law degree, rather than one that allows focus and specialization? Is it time to recognize that individuals with an appropriate college degree may be capable of offering a wide range of basic legal services to individuals—just as they currently offer law-related services to businesses in their compliance, contract management, and HR roles? What other educational paths would help fill the gap in legal services?

As the price of legal education continues to climb, the percentage of graduates employed in lucrative jobs stagnates, and enthusiasm for law school wanes, I fear that our profession will lapse into ever-greater service to elite clients. We will continue to feel good about high-profile pro bono efforts, but pro se litigants will continue to flood the courthouses while other individuals fail even to seek justice. How can we turn this tide?

Deborah Merritt (Ohio State)

Posted by Dan Rodriguez on March 5, 2018 at 04:39 PM | Permalink | Comments (0)

Request for Course or Bibliographical Information: "Law and Public Policy"

I am teaching a course in the fall titled “Law and Public Policy.” My rough goal is to give students a basic vocabulary with which to analyze, discuss, and advocate for or against laws and other public policy decisions and issues. Although there is of course great variation among the slowly growing number of Leg-Reg casebooks, part of my motivation was that the Leg-Reg casebook I used last year, although very good on issues like statutory interpretation, was not so good on the political process (roughly two pages in the casebook), or on public policy or regulatory analysis more generally.

My long-term goal is to put together an edited collection—not substantial essays, but an A-Z book of short explanatory descriptions of public policy terms and topics, forming a kind of “Public Policy for Lawyers: A Primer” text, similar to but no doubt less sophisticated than Jon Elster’s book(s) on Nuts and Bolts for the Social Sciences, and similar but more public-law and public-policy-oriented than Ward Farnsworth's The Legal Analyst—that might serve as an inexpensive supplemental text for teachers of Leg-Reg or other public law courses.

With that background (and implicit call for interested contributors to such a primer to reach out and let me know of their interest) in mind, I wonder if any readers can point me toward courses or syllabi at law schools on Law and Public Policy. My brief search found very few, although it found several on specific subjects, such as environmental law and public policy. There were far more “hits” for courses of this sort at schools of government or public administration than at law schools. Similarly, a search on Amazon found very little, and what there was was geared toward MPA students and students in similar programs.

Private emails are welcome, of course, in addition to contributions in the comments.

P.S.: I took “Foundations of the Regulatory State” from Prof. Richard Pierce as a 1L at Columbia, and found it immensely useful for the vocabulary it gave me. Without speaking for him, I gather that Pierce was not crazy about that short-lived curricular experiment. But he should know that at least one former student thought it was very good.  

 

Posted by Paul Horwitz on March 5, 2018 at 02:44 PM | Permalink | Comments (10)

Legal Ed's Futures: No. 2

The Importance of Focusing on “Being a Lawyer” – Professional Identity Formation in the 21st Century

In Part III of his series, Professor Madison discusses five themes that are the focus of “conversations about the state and future of legal education, and by extension about law and the legal profession as a whole.”  One of those themes is professional identity, a theme I believe is of profound importance but until recently has been underemphasized within legal education.

In the last millennium, when most of us went to law school, the lawyer identity was shaped largely by BOTH the legal profession’s monopoly on knowledge of and understanding of the law AND the legal profession’s monopoly on the provision of legal services.  Being a great lawyer meant one could focus largely on “thinking like a lawyer” because there was no one who could compete with lawyers for providing access to the law and to understanding what the law meant for a specific client in a specific situation.  This understanding of professional identity is the “first apprenticeship” mentioned in Educating LawyersEducating Lawyers highlighted that this was the “dominant” aspect of professional identity within legal education, which placed much more emphasis on “thinking like a lawyer” than “being a lawyer” -- much more emphasis on critical thinking and analysis than on developing a “fiduciary disposition,” and understanding the importance of relationship skills in building the trust relationship essential to provide wise counsel to clients.

As we move past the halfway point of the first-third of the 21st  Century, that first monopoly has disappeared completely as a result of technology and the internet.  Access to the law is now widespread and inexpensive.  Indeed, advances in coding and artificial intelligence are making it easier and easier for lay people not only to “find the law” but to get some idea of how it applies to them and their situation.  A well-structured series of yes/no questions can inform someone if their situation implicates a given statute or regulation.

But clients frequently need to know more than what the law allows or prohibits.  They frequently need to understand which of a range of allowable options makes the most sense given the clients specific interests and concerns.

For lawyers to have distinctive value in an artificial intelligence world, it will no longer be sufficient for law schools to produce graduates adept at “thinking like a lawyer.”  This will be necessary, but not sufficient.  Legal education will increasingly have to help produce graduates who are capable at “being a lawyer” – providing great client service in the interstitial spaces where they help clients explore among a range of legal options.

Lawyers are no longer going to be adding value by helping clients answer whether they “can” do something – whether the law allows them to do something.  Clients will be able to do more and more of this on their own.  Where lawyers are adding value and increasingly will be adding value is by helping clients work through the “should” questions.  Among a range of possible options, which “should” the client select given the client’s legal and non-legal interests and concerns.  “Being a lawyer” involves these type of “wise counsel” situations that require one to “think like a lawyer,” but even moreso require relationship skills – active listening, empathy, responsiveness, effective framing and exploration of alternatives.  These are the skills of “being a lawyer” – of building relationships of trust with clients in which they feel heard and believe their lawyers understand their interests and concerns and are helping them effectively and efficiently make decisions that will best serve their interests and concerns.

While the published learning outcomes of many law schools indicate that there may be a growing interest in many of these relationship competencies, whether law schools will invest in the educational and assessment infrastructure to make sure their graduates develop these relationship competencies remains to be seen. 

Jerry Organ (University of St. Thomas (Minnesota))

Posted by Dan Rodriguez on March 5, 2018 at 12:14 PM | Permalink | Comments (0)

Legal Ed's Futures: No.1

The posts for this symposium will be listed in order just by a number, with the author & affiliation at the end of the post

The Real Barriers to Access to Justice

               It’s an honor to comment on Mike Madison’s reflective manifesto on the future of legal education. Mike introduced me to legal blogging 12 years ago, and I have learned so much from him along the way. Few law professors better balance the scholarly detachment and commitment to justice that are the hallmarks of our profession. Mike’s humane invitation to imagine better methods in legal education is inclusive, timely, and well-informed. I hope he’ll forgive me for trying the broaden the conversation beyond his already expansive scope.

               I share Mike’s concerns about the need to adapt the legal profession to changing technology. I have written and taught extensively about the relationship between coders, managers, and lawyers in data-driven areas of finance and law. I teach venerable cases in my health law courses, but also keep up with the alphabet soup of highly technical ATCBs, RACs, and QIOs in the world of big data driven health care. We need to recognize where law schools are trying to meet this new reality, and to build awareness of that work. I agree with Mike that the median law school needs to do more to keep up with technological change—both because of the functional sovereignty of large firms, and the ways that software and data are changing legal practice.

However, I think Mike’s “Invitation” could benefit from a bit more realpolitik. In this document, the legal profession itself stars as the key barrier to access to justice: it is slow to adopt technology, restricts entry with excessive licensure requirements, and bogs down in technicalities. Let’s assume, for now, that these are fair charges.* Are they really the reason why so many consumers feel unable to fight giant corporations, or why employees feel trampled by the fissured workplace?

I’d like us to keep in mind a few other factors. The evisceration of class actions, the rise of arbitration, boilerplate contracts—all these make the judicial system an increasingly vestigial organ in consumer disputes. You cannot read a book like Lewis Maltby’s Can They Do That? without recognizing that the powerlessness of most workers is not the result of a paucity of lawyers (especially in an country with more per capita than almost any other), or greedy firms overcharging for services. It is, instead, the result of a web of rules woven by lobbyists and elite attorneys over decades with the intent of making the firm, in effect, a private government. Corporations have skillfully funded candidates in state judicial elections (or politicians who appoint judges) who promote their vision of a stripped-down, nightwatchman state. Make lawyers as cheap and skilled as you want—they can’t help victims access justice if the laws themselves are systematically slanted against them. The same goes for #legaltech: I expect every innovation to, say, create apps to help the evicted, to be overwhelmed by a tsunami of money backing services like ClickNotices.

On the criminal side, the underfunding of public defenders (and other advocates for those targeted by the carceral state) is shameful. From a supply-side perspective, the answer here may be to cheapen training and thereby double the number of public defenders, so that states could perhaps hire two at $24,000 a year instead of one at $48,000. I do not believe that’s a great solution. As long as there are $1.5 trillion tax cuts flying around (mainly to top income brackets), and 1412 households in the US making over $59 million annually, I’d put forward a vision for more spending on these vital services, at a good wage, with a strong Public Service Loan Forgiveness Program. The latter should not even be considered a subsidy, given the vast profits the government has made on student loans generally, and the market’s systemic undervaluation of public service work. I realize that policy is going in the opposite direction now—but let’s also realize how much that development is driven by private lenders’ lobbyists, who want to make the federal student loan program a quicksand of confusing paperwork and high interest rates in order to make their own products comparatively more attractive.

Moreover, even on the criminal side, we cannot begin to have a serious discussion about access to justice as a supply-side issue, without acknowledging the role of the powerful in society in reducing effective demand for these legal services. We could abolish licensure tomorrow, and let every person hang out a shingle—but there won’t be a proper level of work for, say, attorneys defending the wrongly accused (or excessively punished) if punitive neoliberalism simultaneously expands the criminal justice apparatus while cutting funding to defense attorneys (or capturing the resources of the accused via civil forfeiture). We will never have an optimal supply of lawyers promoting workplace rights, if the effective penalties for violating the law are negligible, or if litigation is too chancy and slow to guarantee some reasonable return for one’s efforts over time.

So I’d propose that we think more about the real barriers to access to justice. To be sure, many law schools could do more clinical work to help the poor in their community—but let’s always remember what happened to Tulane when they offended Louisiana polyvinyl chloride barons. Legal scholars can do more to identify structural injustice—but let’s also remember the BigLaw fixers who stand at the ready to deflect even minimalist reforms.

We can’t formulate solutions together if we don’t grasp a common set of problems. We can’t imagine a better future without an honest accounting of the present. But once we do, I think we can develop some visions for better legal practice that will respond to some of the key concerns raised by Mike—as I plan to do in a later post on AI & law.

* In academic work, I have challenged each of these characterizations, observing the ways in which parts of the profession have promoted troubling technology, ignored the real value of licensure, and embraced disastrously algorithmic forms of regulation. I realize that there are other examples that vindicate Mike’s telling, and they could outweigh mine. I just want to mark this disagreement on emphasis.

Frank Pasquale (Maryland)

Posted by Dan Rodriguez on March 5, 2018 at 08:07 AM | Permalink | Comments (0)

Saturday, March 03, 2018

The Future of Legal Scholarship - April 6 2018 Conference in Chicago

This should be an excellent conference, with keynote speaker Richard Posner and excellent participants including Mark Lemley, Darren Bush, Anthony Kreis, Eric Segall, Caprice Roberts, Spencer Waller, Nancy Leong, and prawfsblawgers me and Carissa Hessick. Topics include what makes a good law review article and does scholarship live in a vaccum. If you are in Chicago please join us! 

[also if you are in Chicago a couple of weeks earlier I'll be giving book talks March 22 at the Seminary Coop - details here and BookIt speakers series at Chicago-Kent details here.

 

Posted by Orly Lobel on March 3, 2018 at 11:50 PM | Permalink | Comments (5)

An Addendum to Rick Hills: DeGirolami on "Why Liberalism Failed" and "Legal Liberalism"

One of the things I admire about our Prawfs colleague Rick Hills's writing here and elsewhere is that it so often has an interesting and at least somewhat category-defying take on a broad range of issues. I'm glad that in his most recent post he calls attention to, and critiques, Patrick Deneen's interesting new book, Why Liberalism Failed. It's a book that legal academics, whether they are what legal academics and others would call "liberals" or "progressives" or "conservatives," ought to read and ponder. Depending on the press of other obligations, I hope (in vain, I fear) to have a more substantive set of reactions of my own, either to the book or Rick's post or both.

In the meantime, let me call attention to a review of the book by Marc DeGirolami. The review is titled "The Long Tail of Legal Liberalism," and its specific aim is to consider the relevance of the book to law and "legal liberalism."

Marc offers his own definition of that term, but a fairly standard one within the legal literature is Laura Kalman's: "confidence in the ability of courts to change society for what judges [and, I think one could add, lawyers and legal academics] believe is the better." It was generally associated with a specific reverence for and desire to defend the Warren Court, although one could surely extend that description taking into account later decisions and courts. William Simon has written that "There is no canonical definition of Legal Liberalism, but we know it when we see it," and adds that it is generally associated with general liberal politics: "Legal liberals are liberals in the broader sense that connotes, first, a scheme of values that gives priority to moderate versions of equality and liberty and, second, a position on the American political spectrum between the middle and the far left."

One might ask whether, to the extent that one sees modern "progressives" as different in some sense or set of positions from "liberals," rather than merely having adopted a re-labeling strategy, this definition applies to them as well. I personally think the "progressive" position on liberty and equality is different from the conventional or perhaps older "liberal" position, and that this can be viewed either as a meaningful difference between progressives and liberals or as a change in the values and substantive positions of liberals. Although I think these differences are important, in many or most respects I think of legal academic progressives as still falling roughly within the position occupied by legal liberals. From a critical (or Critical) or class-based perspective, I think one could conclude that legal academic progressives still 1) roughly represent the legal, or legal academic, establishment; 2) still think of themselves largely as representing the "consensus" position of reasonable educated lawyers; and 3) still position themselves, at least in some ways, as occupying a middle perspective between the middle and the "far left," one reason being that one can be (and generally is) a legal or legal academic "progressive" without being especially interested in questioning or upsetting things like one's own position, status, and professional and class prerogatives. As recent critics from both the left and right have written, they may be more interested these days in giving primacy of place to equality and voicing concerns about economic inequality, but their concerns are largely about "horizontal equality"; they are less interested in seriously attacking "vertical inequality" or the many pathways to elite status. I do not understand any of these definitions or positions to be incontestable. 

Marc wonders whether legal liberals will like the book--I wonder whether they will even read it or, given the narrowness of our epistemic communities and sources of information these days, know of its existence--and concludes that they won't:

Indeed, one might well suppose that the partisans of legal liberalism would be the least receptive to what Deneen has to say, devoted as they are to maintaining and enlarging the power structures and ideological commitments of the liberal status quo. Lawyers and legal academics will be particularly prone to dismiss Deneen. The legal elite is adept at inventing stratagems of self-validation. It is quick to enforce internal codes of civility, conformity, right thinking, and right speaking that mark membership in the club. It drives itself to distraction in the latest Supreme Court intrigues, investing its preferred justices with a superhuman heroism and a cult of personality (while demonizing the others). It jealously guards its own birthright. It will not like this book.

I tend to agree with him, to my regret. (Hence my opening compliment to Rick Hills for having a wider view of interesting topics and sources.) On that point, it's worth noting a passage in the foreword to the book, written by the editors of the Yale University Press series of which Deneen's book is a part:

Deneen’s book is disruptive not only for the way it links social maladies to liberalism’s first principles, but also because it is difficult to categorize along our conventional left-right spectrum. Much of what he writes will cheer social democrats and anger free-market advocates; much else will hearten traditionalists and alienate social progressives. Some of these readers nonetheless will be tempted to place the book in one or another familiar category, the better to manage and perhaps dismiss its critique. They should resist that temptation, which is itself a symptom of our polarized times and perhaps the chief reason why Deneen’s argument is precisely the kind we most need to hear now.

Although it's not written by Deneen, I think this is in some ways the most important passage in his book. Many early reviews of the book in mainstream and other publications suggest that the warning was not heeded. Readers sought to categorize the book, and praise or reject aspects of it, according to their position within the standard and tedious debates between "left" and "right" (a terribly general phrase that should generally be avoided) or "liberals/progressives" and "conservatives." They sought, in other words, to "manage and...dismiss its critique" of liberalism. I think most legal liberals, and for that matter most legal academics of whatever political stripe, are so locked in to those debates and their terms of reference that they will either read the book strictly through this lens or, having decided that it falls within the category of "conservative," ignore it altogether--that is, if they hear about it at all.

I may be wrong about that. If I'm right, it would be unfortunate. There's a lot in the book, and it is often written in the manner of a polemic rather than a careful academic exercise, so there is plenty to disagree with as well as much to agree with or find thought-provoking. (Marc has his own criticisms of the book.) It is certainly highly relevant to law, legal liberalism, and the legal academic project as many legal scholars understand or practice it. I encourage readers to look at Marc's review in addition to Rick's post.  

 

     

Posted by Paul Horwitz on March 3, 2018 at 09:34 AM | Permalink | Comments (0)

Friday, March 02, 2018

Summit on the Future of Legal Education and Entry to the Profession

Showing synthesis with this month's Prawfs Virtual Symposium on the Futures of Legal Education, on April 12-13, FIU College of Law and FIU Law Review will host a Summit on the Future of Legal Education and Entry to the Profession. The program is organized by my colleague Scott Norberg, who will be at Prawfs this month; several authors will participate in both programs, including Dan.

Posted by Howard Wasserman on March 2, 2018 at 10:56 PM in Article Spotlight | Permalink | Comments (0)

Entry Level Hiring: The 2018 Report - Call for Information

Time once again for the entry level hiring report.

I will gather the following information for tenure-track, clinical, or legal writing full-time entry-level hires: 

Basic Information: Name, Hiring School, JD Institution, JD Year of Graduation

Other Degrees: Type of Degree,  Degree Granting Institution, Degree Subject

Fellowship, VAP, or Visiting Professorship: Institution and Type (e.g., VAP, name of fellowship, etc.)

Clerkship: Court (e.g., 9th Circuit, Texas Supreme Court, etc.)

Areas of Speciality (up to four) (if you are a clinical or LRW hire, please list this as your first Area of Specialty)

Type of Position: Tenure Track or Non-Tenure Track (if you are clinical or LRW and also tenure-track, please indicate this)

The information will be aggregated on this spreadsheet (which is reproduced below and which you can view and download by clicking on this link); scroll across to see all of the information we will be aggregating.

Please leave the information in the comments, and, to protect those on the job market, please sign the comment with your real name. (Ideally, the reporting person would be either the hired individual or someone from the hiring committee at the hiring school.) If you would like to email information instead of posting it, please send it to Sarah Lawsky at sarah *dot* lawsky *at* law *dot* northwestern *dot* edu. Remember: you can't edit the spreadsheet yourself. To get your information into the spreadsheet, you must either post in the comments or email me.

I will also gather the names of schools that are doing no entry-level hiring this year (that's the second tab on the spreadsheet), so if you know for sure that your school is not doing entry-level hiring, please post that in the comments or email me.

If you see any errors, or if I have incorporated your information into the spreadsheet but you are not yet ready to make it public, please don't hesitate to email me, and I will take care of the problem as soon as I can.

Clarifications:

The list does not include people who were full-time non-tenure track clinicians who are now moving to a tenure track job at a different school, as these don't seem like true entry-level hires to me. This is the situation where a person is at a school that does not provide tenure to clinicians, and then moves to a school that does provide tenure to clinicians.

The list does include people who had a non-professor job in a law school and then moved to a professor job that was tenure track. Thus a person may have worked at a law school for many years, but still be considered an entry level hire. To indicate this situation, I will put their previous job at a law school in the "fellowship" category, and note "non-TT to TT" in the "Notes" category. This is not to indicate that this isn't an entry-level hire, but rather to give information about the nature of the item listed as a fellowship. (I.e., not a temporary position, as fellowships usually are.)

Other links:

This report follows in the tradition of Larry Solum's excellent work over many years.

2017 initial post, 2017 spreadsheet, 2017 report (with graphs).

2016 initial post, 2016 spreadsheet, 2016 report (with graphs). 

2015 initial post, 2015 spreadsheet, 2015 report (with graphs).

2014 initial post, 2014 spreadsheet, 2014 report (with graphs).

2013 initial post, 2013 spreadsheet, 2013 report (with graphs).

2012 initial post, 2012 spreadsheet, 2012 report (with graphs).

2011 initial post, 2011 spreadsheet, 2011 report (with graphs).

All PrawfsBlawg entry level hiring report tagged posts.

Posted by Sarah Lawsky on March 2, 2018 at 04:01 PM in Entry Level Hiring Report | Permalink | Comments (11)

The Futures of Legal Education: A Virtual Symposium

ith the blessing of the Prawfsblawg lead editors, I am pleased to present an interactive symposium on the wide lens topic of “the futures of legal education.”  Reflection upon this issue is always welcome, and underway daily in various forms and fashion. The impetus for this particular discussion is an interesting series of posts at the new year by Prof. Michael Madison of the University of Pittsburgh. Here are the posts: Part I, Part II, Part III, Part IV, Part V.

You will see that this Madisonian (!) missive is principally a call for engagement among myriad stakeholders on the critical issues of “what must be done?!”  This symposium for Prawfsblawg engages one key stakeholder group, law professors.  A number of professional colleagues from a diverse range of schools and backgrounds have kindly agreed to take part in this symposium.  They are:

Robert Ahdieh (Emory)

Luke Bierman (Elon)

Douglas Blaze (Tennessee)

Megan Carpenter (New Hampshire)

Dan Hunter (Swinburne, Australia)

Harold Krent (Chicago-Kent)

Scott Norberg (Florida International)

Jerry Organ (St. Thomas)

Hari Osofsky (Penn St.)

Deborah Merritt (Ohio St.)

Michele Pistone (Villanova)

Frank Pasquale (Maryland)

Eduardo Penalver (Cornell)

Gordon Smith (BYU)

Kellye Testy (Law School Admissions Council; U. Washington)

Mark Tushnet (Harvard)

Michael Waterstone (Loyola, L.A.)

Mike has provided a short paragraph to help in framing the symposium.  I include it here in verbatim:

Symposia can be both provocative and useful, but talk can be cheap. What follows the talk?  I have been frustrated for years by the dis-connected and siloed character of future-oriented conversations among both academic lawyers and legal professionals.  Like many of us, I see lots of silos:  elite silos and non-elite silos; student-centric silos and practice-centric silos; bar-related silos; legal tech silos; US silos; access to justice silos, “it’s the economy, stupid” and scholarly silos; incrementalist silos, etc.  I am simultaneously a little crazy (perhaps) and speculative (to be sure) in my optimism that there is a constituency out there for larger-scale, longer-term, deeply-rooted, integrative thinking and acting.  My posts in late December were the products of several years’ worth of conversation and reflection.  I think of them as calls to action. Thanks in advance to all who will post here and elsewhere and who will, I hope, carry our shared ideas forward in yet-to-be-determined ways.

 Please be on the lookout for symposium posts as they appear this month.  While the comment feed will remain closed for this symposium, readers who have a particular reaction which they would like to share as a comment, please send to me directly and I will post them as I think appropriate.

Yours truly,

Dan Rodriguez (Northwestern)

Posted by Dan Rodriguez on March 2, 2018 at 03:45 PM in Daniel Rodriguez | Permalink | Comments (0)

Upcoming (and Ongoing) Symposia at the University of Alabama School of Law

With what I hope is pardonable pride and an utter absence of institutional self-interest, I wanted to call attention to two events at my law school, one taking place today and one in a few weeks. 

We have been blessed this year by the presence at the Law School of Joyce Vance, formerly the U.S. Attorney for the Northern District of Alabama. With her hard work and that of others, today the Law School is hosting a symposium titled The Role of Lawyers in Good Government, in which a variety of distinguished current and former U.S. Attorney office-holders and other high government agency lawyers discuss the role of lawyers in government and public policy. I am sorry this was posted so late, but I think it's a terrific symposium and well worth celebrating.

In a few weeks, the Alabama Law Review will hold its annual symposium. This year, the subject is Life After Scalia: Justice Gorsuch and Modern Textualism on the Supreme Court. The speakers include Victoria Nourse, our own Heather Elliott, Christopher Green, Hillel Levin, Kristin Hickman, and Matthew Franck. The title might have added the words "(and More)" after "Modern Textualism," because in addition to that question, panelists will be discussing other issues, such as the judicial nominations process. It should be a great symposium and is certainly a timely one. 

 

Posted by Paul Horwitz on March 2, 2018 at 02:48 PM in Paul Horwitz | Permalink | Comments (0)

Are Liberals Anxious Puritans? Or Selfish Hobbesians? Some Thoughts on Patrick Deneen’s “Why Liberalism Failed”

Patrick Deneen’s Why Liberalism Failed is an eloquent but frustrating book that purports to define “liberalism,” provide an account of “liberalism’s” origins, and explain why “liberalism” is failing. The strength of the book is its pugnaciously gripping prose and simple story line. Basically, “liberalism” in Deneen’s lexicon is self-interested individualism. Somehow a handful of mostly British seventeenth century philosophers (Francis Bacon, Thomas Hobbes, Renee Descartes, John Locke) were able to persuade their contemporaries that humans ought to be regarded as “non-relational creatures, separate and autonomous” who ought to make decisions purely on the basis of their “calculations of individual self-interest… without broader considerations of the impact of one’s choices upon the community, one’s obligations to the created order, and ultimately to God.” (Page 32). Deneen eloquently describes the alienation produced by such rootlessness in the universities, politics, and the economy in four chapters (chapters 4 through 7): environmental degradation, indifference to one’s cultural inheritance, a trivial politics of consumerism, and an elite’s indifference to their national and local communities as they embark on a globe-trotting life of “deracinated vagabondage” (page 131). Basically, individualism devoured itself by destroying the social foundations — strong families, strong communities, strong churches — necessary for individual striving to produce good social outcomes. It is easy to see the appeal of such a simple yet sweeping storyline written in sizzlingly readable prose would become a sensation in venues like the New York Times.

There is, however, a frustrating mystery at the heart of Deneen’s argument: Why would a handful of seventeenth century secular philosophers of materialism and scientific method be able to persuade an entire civilization to adopt a self-evidently self-destructive individualism? What was the psychological appeal of seeing oneself as a “non-relational creature, separate and autonomous” to seventeenth century Englishmen?

My answer: Deneen has misdiagnosed the origins of liberalism along the familiar lines of Michael Sandel’s complaint about “atomized, dislocated, frustrated selves” without considering an alternative story rooted in Calvinist theology. Those Christians whom opponents derided as “puritans” but who called themselves “the saints” believed that any Christian could be as holy as any saint just by accepting the “double covenant” offered by Jesus Christ — grace in exchange for authentic, personal belief in their salvation. The individualistic catch was that one’s outward conformity to collective ceremonies would accomplish nothing without an inward change of heart. Each believer, therefore, confronted the anxiety about whether they were truly saved.

Our modern liberals are cut from the same anxious cloth as the seventeenth century Saints. As I will argue after the jump, modern liberals, like their Calvinist forebearers, are driven to quarrelsome behavior by their anxiety about their personal salvation. This is spiritual individualism of a certain stripe: It drives believers to abandon their birth home, family, and traditions in a restless pilgrimage for spiritual purity — to Geneva, the Netherlands, Plymouth, or (nowadays) some Intersectionally Feminist Vegan Food Co-op. Contrary to Deneen’s claim, however, this neo-Calvinist brand of individualism has nothing whatsoever to do with selfish individualism of a Hobbesian variety. If my diagnosis is correct, then Deneen’s antidote of having more tradition-minded people form their own communities that reject “liberal individualism” will do nothing to address our current malaise.

1. How does Deneen neglect the seventeenth century puritan roots of modern liberalism?

In construing seventeenth century English writers, Deneen completely ignores the Protestant Reformation, the English Civil War, and the Commonwealth. He refers to puritans exactly once (in a two-page paean to the New England township). Yet these were the titanic events and religious movements that defined the context in which (for instance) John Locke wrote. Explaining (for instance) Locke’s Second Treatise while ignoring the great Puritan civil war is like explaining Winston Churchill’s speeches while ignoring World Wars I and II.

Consider how Deneen’s neglect of Locke’s religious context could distort Deneen’s reading of Locke’s Second Treatise, turning a book rooted in Christian equality into a sort of early modern Fountainhead of selfish individualism. On the Christian reading, Locke is less “Hobbes’ philosophical successor” (page 32) than the successor of Reform Protestants who believed that Christians have a duty actively to all civil authority just as they must actively consent to God’s promise of salvation. Deneen quotes Locke’s famous statement in section 73 of the Second Treatise that children must consent to the conditions imposed by their parents on their estate, arguing that this position shows that Locke saw even family obligations as rooted in cold, calculating self-interest. The alternative Calvinist reading, however, is that Locke is extending the covenant of grace to childrens’ relations with their parents: Just as humans must actively consent to accept God’s grace, so too, they must actively consent to accept parental love. (In the extreme Anabaptist form, the obligation of active consent foreclosed infant baptism). Far from being an indication of calculating self-interest, this obligation of active consent was supposed to transform cold, empty, outward compliance into willing obedience.

Did Locke’s theory of consent have such religious roots? One cannot judge from Deneen’s barebones argument, which rests exclusively on that single sentence in section 73.
Jeremy Waldron, however, has provided an extended argument that Locke’s theory of consent and equality is inexplicable except as an expression of Locke’s Christianity. Likewise, Richard Ashcraft showed back in 1986 that Locke’s theory of property was likely derived from Leveller radicals steeped in the Independent Protestantism of the Commonwealth period. Deneen’s ignoring Locke’s Christian and Commonwealth context is especially odd, given that Deneen classifies Milton, Locke’s near-contemporary, as a Christian writer whose ideas are consistent with a pre-Modern tradition of virtue and faith. What makes Milton a successor to Calvin but Locke a successor to Hobbes? Deneen does not explain: He merely asserts, ignoring not only the secondary literature but also any careful reading of Locke’s writing.

2. Does Calvinist saintliness still really echo in modern liberalism?

Of course, Ross Douthat, Adrian Vermeule, and other public intellectuals do not really care about what Deneen has to say about Locke. They are interested in his views about today’s liberals. Today, liberals are secular, for the most part. So how can Calvinists’ now-defunct yearning for spiritual authenticity have anything to do secular liberalism nowadays?

This objection underestimates how easily the yearning for grace through a personal salvation can be secularized. Just leave out Jesus but keep the anxious uncertainty about the sufficiency of one’s virtue. The old Calvinist Saints tried to prove their Election by rejecting frivolities like Morris dancing and the celebration of Christmas. The new secular Saints volunteer at the Park Slope Food Co-Op, buy fair trade coffee and locally grown food, recycle their compost, and bike to work. To achieve the thrill of spiritual authenticity, the old Quakers interrupted Anglican ministers during their sermons. The new secular Saints achieve the same thrilling sense of being “woke” by protesting Eurocentrism while college professors are trying to give a lecture. The old Calvinist Saints rejected the the Anglican Book of Common Prayer as a corrupting traditional text written by inauthentic oppressors. The new secular Saint rejects the freshman Humanities Core Curriculum as similarly inauthentic and oppressive. Adrian Vermeule (correctly in my view) describes the religious character of “liberalism” as a religious passion play pitting Reason against Bigotry. But he misses the more specific connection. Calvinist saints detected “popery” in the most harmless social customs (say, bowing at Christ’s name or singing in four-part harmony), because every aspect of the pre-Reformation Church was tainted by superstition that insidiously conveyed “papist” meaning. Compare that worry to a modern feminist trying to purge her vocabulary of patriarchy-tainted pronouns and prefixes. There is the same anxiety over the past’s covertly infecting the present’s quotidian routines, with a different “P” word to serve as the epithet for the infection.

Lest one think that this comparison is merely a cute analogy rather than a genealogical relationship, keep in mind that those counties with the most intense streak of liberal moralism today are also the counties where a Yankee diaspora of reforming pietist Christians, stretching from Boston through upstate New York to the Western Reserve of Ohio to Ann Arbor, MI and beyond to San Francisco, spread social reforms from abolition of slavery to prohibition of alcohol. The late Daniel Elazar and his students documented how this “moralistic” political subculture followed in the tracks of the “Presbygational” New England Christian reformers. Modern Saints are not just imitating their chronological predecessors: they are literally following in the footsteps of their ancestors. The nineteenth century Saints from Lyman Beecher to Anthony Comstock attacked slavery, alcohol, dueling, prostitution, cruelty to animals, pornography, tobacco, disenfranchisement of and violence against women, and dancing. Aside from the omission of dancing and alcohol, has liberalism’s list of sinful behaviors really changed all that much?

The Saintly roots of modern liberalism help explain an otherwise jarring discord in Deneen’s story. Deneen concedes that liberal elites – the “liberalocracy” in his phrase — tend to be sexually abstemious, diligent, conscientious practitioners of middle-class virtues. As Deneen concedes (page 132), liberals are actually quite attached to their families and communities: They form non-profit associations with Tocquevillean gusto. Where, then, is the atomized individualism that Deneen bemoans? Characterizing the tree-huggers of Portlandia as dedicated to a cult of individualistic self-interest seems too perverse even for an academic striving to be clever. Deneen praises Wendell Berry’s celebration of rural localism — but does Deneen really believe that liberals congregating at Brooklyn’s green market disapprove of Wendell Berry? Evidence, please!

Deneen offers up a sort of conspiracy theory to explain away liberals’ apparently abstemious behavior and apparently communitarian ties. Liberals, according to Deneen, inculcate their children with a “set of cooperative skills” merely for the instrumental end of enriching their kids through the practice of bourgeois virtues. This apparent communitarian zeal, however, is really just individualistic social climbing that somehow — Deneen never explains how — “requires the disassembly of norms, intermediating institutions, and thick forms of community” (Page 142).

Really? In my experience, campus liberals are inveterate joiners of mediating institutions, from the local chapter of the Sierra Club to the Green Market board. Moreover, they have weaved a network of complex norms worthy of Cotton Mather, as anyone knows who has ever tried to engage them in conversation with the wrong pronouns or unorthodox political opinions. It defies plain evidence that the ascent of these liberals or their children is built on individualistic anomie rather than a hothouse of the thickest sort of the most earnest communities. Indeed, it is precisely because they impose their thick communities and norms on the rest of us that they can sometimes be so annoying.

This jarring note in Deneen’s account disappears as soon as one understands modern secular liberals are not individualistic in any social sense. Rather, as the lineal descendants of the Calvinist Saints, the new liberal saints are individualistic only in their intensely self-absorbed pursuit of personal purity. Just as a Calvinist Saint could never be sure of salvation merely by joining a church and attending services, so too, liberal Saints cannot achieve personal salvation without constant heresy hunts against oppressive superstition and drives to engage in evermore virtuous consumption. Born-again Calvinists confess to sinful spiritual complacency to awaken themselves from spiritual sloth. Born-Again liberals engage in ritual of self-flagellation over their complicity in racism, sexism, ageism, classism, etc. This virtuocracy owes nothing to Hobbes’ and Bacon’s scientific materialism and everything to Increase Mather’s New England. True, this old school Calvinism has evolved over the last four hundred years. It has been stripped of dour predestination by the First Great Awakening of the 1740s, infused with social activism by the Second Great Awakening of the 1820s, mostly freed from “Jesus Talk” by the Social Gospelers of the 1890s and TR’s Bull-Moose Progressives of 1912, and finally converted entirely into a Brookline or San Francisco Progressive’s secular morality of personal redemption through socially uplifting introspection and consumption. But the same spirit of salvation through personal purity in individual consumption and freedom from superstition is still there, recognizable after all those years.

3. How does Saintly liberals’ pursuit of individual spiritual authenticity undermine custom and community?

The modern Saint’s incessant quest for spiritual purity can be grating on a sense of community rooted in customary neighborliness. In the seventeenth century, Anglicans accused Calvinist Saints of being “separationists” (“Donatists,” when they were feeling their theological oats), because such “puritans” (to use the Anglican epithet) destroyed the fellowship necessary for a well-functioning community by segregating themselves off into their own religious enclaves. By rejecting traditional entertainments and liturgy (maypoles, Morris dancing, Christmas, the Book of Common Prayer, choir music, surplices on clergy, kneeling at communion, and other communal rituals), saintly Calvinists undermined human fellowship rooted in convention. By trashing all pre-Reformation religious texts, they encouraged uncouth barbarism.

Does not the same sort of accusation lie against modern liberal Saints? Ben Jonson ridiculed Busy Zeal-of-the-Land, Jonson’s puritan character in Bartholomew Fair, for disrupting the Fair’s fellowship with his carping piety. When conservatives attack liberals for their oppressive political correctness, are they not making a bit of the same claim? It is not just that liberal Saints quarrel too much with their neighbors about guns, landfills, inequality, and cigarettes. They are also prone to acrimonious schism with each other. (Consider, for instance, twitter wars among feminists of various stripes).

If the problem with Saintly liberals is their penchant for acrimonious purity rather than selfish individualism, then none of the antidotes suggested by Deneen will make a dent in our current malaise. Having traditionalist-minded people retreat to communities practicing what Deneen calls “counter-anticulture” of customary virtues (page 179-80) will do nothing about the aggravation caused by those liberals already intensely involved in their campus communities and foisting their sanctity on everyone else outside those “anticulture” enclaves. Adrian Vermeule suggests that Deneen’s antidote will fail because crusading liberals will suppress such counter-anticultural communities. Perhaps, but I doubt it. America has long history of tolerating dissenting communities, and Amish and Hasidic Orthodox communities stand as living disproof of Vermeule’s worries. The real problem is that Deneen is diagnosing the wrong remedy for our current ailment, because he misunderstands the disease. Populist rage at our modern liberal Saints’ meddling with their customary practices, from their guns and cigarettes to their Coca-Cola, will not be solved by other people retreating into rural enclaves and practicing a different and more customary brand of virtue. The Red Staters do not want to retreat Amish-style from modernity: They want the meddling to stop where they live in their ordinary suburbs and towns.

My own remedy, as any regular reader of this blog will guess, is thorough-going federalism and localism. To reduce Red State anxiety about the Blue State virtuocracy’s destroying Red Staters’ community ties, from guns to Confederate flags, we need to erect powerful legal boundaries against either side’s nationalizing their values. But whatever the right remedy, we cannot think about the problem of liberalism until we get the history right. Deneen is right that liberals’ attacks on tradition can be destructive. He has, however, misdiagnosed the cause and, therefore, does not have a reliable cure.

Posted by Rick Hills on March 2, 2018 at 10:12 AM | Permalink | Comments (14)

Thursday, March 01, 2018

To Hide or Patent: Two IP Conferences today and tomorrow in San Diego

Today and tomorrow the American IP Law Association (AIPLA) is holding its Trade Secrets Summit here in town. I spoke on a panel this morning about non-competes, why Talent Wants to be Free, and how companies expand post-employment restrictions using a wide variety of contractual clauses, as in the case behind the epic tale of You Don't Own Me.

This evening also marks the beginning of a three day Patent Conference that we are hosting at University of San Diego. So tonight I have two choose between two conference receptions + dinners. Never has the choice between patents and trade secrets been so acute, ever since I wrote this Harvard Business Review article on the topic.

But then again, why choose? I think I can dance in both weddings, as we say in Hebrew...[and between my talk and the reception I got to run with my dog to the beach - it's a beautiful low tide day - here's a picture].

 

Lowtide gili

Posted by Orly Lobel on March 1, 2018 at 06:45 PM | Permalink | Comments (0)