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Wednesday, July 31, 2019

Sherry on the "Kardashian Court"

Suzanna Sherry has a new piece on SSRN, Our Kardashian Court (and How to Fix It). Sherry argues that partisanship can be reduced on SCOTUS by a law prohibiting concurring and dissenting opinions and having the Court issue one per curiam opinion, with no indication of how many Justices joined that opinion. The goal is to eliminate the opportunity for Justices to become celebrities or to push personal agendas.

This is a fascinating idea. I had the privilege of reading and commenting on an earlier draft. Some of my comments are after the jump:

• Sherry brackets whether this should extend to courts of appeals. But note that the concerns for both celebrity (Posner, Kozinski, many of the Fed Soc people that Trump has appointed) and partisanship (especially with the attention given to many of Trump’s appointees) are present on these courts. Dissents on the courts of appeals may help SCOTUS identify which cases to take, which is a positive. Otherwise, they raise the same problems Sherry identifies--celebrity and pushing individual agendas--while adding new ones, such as auditioning for SCOTUS.

• On this point: At SEALS, Donald Campbell (Mississippi College) presented a paper trying to measure how dissents and separate opinions reflect or undermine collegiality on courts of appeals, where there often is a a "norm" that judges write separately only in extraordinary cases. If collegiality is affected by dissents, then Sherry's proposal would be a welcome change for those courts, ensuring and re-enforcing that norm and that collegiality.

• Sherry would impose this by statute, so she spends time considering the separation of powers objections to such a law, concluding the law would be valid. This would be another opportunity to test concepts of judicial independence and what it means for Congress to tell the Court how to decide a case.

• The key weakness to the proposal might be that it is too late. The partisan divide is too sharp and the identities and positions of the individual Justices too well-known. Everyone would know who did and did not join a per curiam opinion overruling Roe/Casey. Had this proposal come in 1973--when Stewart, White, and Powell were the median justices and appointing party did not align with judicial ideology--it might have helped prevent us from getting to where we are now.

As Larry Solum says, download it while it's hot.

Posted by Howard Wasserman on July 31, 2019 at 01:13 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (10)

JOTWELL: Smith on Litman on remedial collapse

The new Courts Law essay comes from Fred Smith (Emory), reviewing Leah Litman, Remedial Convergence and Collapse, 106 Cal. L. Rev. 1477 (2018), exploring how recent doctrine has caused the exclusionary rule, habeas limits, and qualified immunity to converge, resulting in denial of all remedy for constitutional violation. Both are worth a read.

Posted by Howard Wasserman on July 31, 2019 at 10:36 AM in Article Spotlight, Howard Wasserman | Permalink | Comments (0)

Humans Out of the Loop?

As I mentioned a couple days ago, this summer's project has been a reflection on what humans and machines are likely to be able to bring to the lawyering party.  One of the "pro-algorithm" themes out there in the literature is the synergy between "computational law" developments and the insights of the "heuristics and biases" behavioral psychology, of which Daniel Kahneman's work is among the most notable (and popular).  To quote Thinking Fast and Slow, “Whenever we can replace human judgment by a formula, we should at least consider it.” (p. 233.)

Michael Livermore (Virginia) has a nice little essay about the possibility of computationally self-executing legal rules, notwithstanding the famous jurisprudential debates about the “open texture” of language.  Can natural language processing (NLP) and artificial neural networks (ANNs) get to the point where humans trust a computational system to draw conclusions about things like what it means to be a "vehicle" that is prohibited in the park?  (The system would be given lots of pictures of things that could conceivably be "vehicles" and would be trained to use activation functions and weights to learn what a "vehicle" is within the meaning of the statute.)

But I digress into substance when I really want to talk about the outtake.  Professor Livermore uses the phrase "the dream of removing human beings from the loop of legal reasoning." For me, what immediately came to mind was the view of the noted cyber-technologist and DOD consultant, John McKittrick, on the same subject in connection with launching ICBMs: “You can’t screen out human response! Those men know what it means to turn the keys, and some are just not up to it! Now, it’s as simple as that! I think we oughta take the men out of the loop.”  As we know, he prevailed in that view, bringing the world almost to the brink of destruction, to be saved in the end by Ferris Bueller's doppelgänger: 

Posted by Jeff Lipshaw on July 31, 2019 at 08:00 AM in Lipshaw, Odd World | Permalink | Comments (7)

Tuesday, July 30, 2019

Vertical Stare Decisis

Justice Thomas recently wrote an interesting separate opinion in Gamble v. United States outlining his views on stare decisis. In Footnote Three of his opinion, Justice Thomas stated: "I make no claim about any obligation of “inferior” federal courts, U. S. Const., Art. III, §1, or state courts to follow Supreme Court precedent."

I've been wondering about this. Suppose a conscientious judge is presented with an argument that a United States Supreme Court opinion is erroneous. The judge is ultimately bound by the Constitution and not by Supreme Court decisions interpreting the text. (At least this is the argument that Justice Thomas makes about why Supreme Court Justices should not follow their own erroneous decisions.) Why, then, should the judge not state his or her view of the law and present the question for a higher court? 

It's easy to think of practical answers to this question. Because the judge will get reversed most of the time. Because the judge will not get selected for a higher court. Because this will lead to more instability. But what is the principled difference between horizontal stare decisis, which is widely viewed as a flexible standard, and vertical stare decisis, which is widely viewed as an ironclad rule?

Perhaps the answer is that these forms of stare decisis were treated differently at common law. But this claim does not work if you think, as Justice Thomas says, that stare decisis must be understood differently under a written constitution than it was under the common law. Maybe the answer is that Article III's designation of "inferior" federal Cours implies that they must obey Supreme Court decisions strictly. At the Founding, though, Supreme Court Justices sat on "inferior" federal courts, which muddles the textual point. (In any event, this tells you nothing about state judges, who take an oath to the Constitution itself.)

There are some (though not many) instances of an inferior federal court or state court openly defying a Supreme Court precedent. Typically these opinions justify their departure by appealing to the text of the Constitution (though these efforts generally go nowhere). When we will see that move again?   

 

Posted by Gerard Magliocca on July 30, 2019 at 09:01 PM | Permalink | Comments (3)

Monday, July 29, 2019

Organizing a panel

As we enjoy SEALS at Boca Resort, some wise words for all academics from Yascha Mounk.

Posted by Howard Wasserman on July 29, 2019 at 10:29 PM in Teaching Law | Permalink | Comments (1)

Tax Chair Search

I'm pleased to announce that the Indiana University Robert H. McKinney School of Law is beginning a search for a new Chair in Taxation that will begin in 2020-'21. For more information, please contact Professor Florence Roisman at [email protected]

Posted by Gerard Magliocca on July 29, 2019 at 05:32 PM | Permalink | Comments (0)

Blogging with Outtakes - Existentialists, Asymptotes, and Parachutes

Photo-1540256986065-af6d17eab40bThe bad news is that I missed the start of the guest blogging I promised Howard by a full month.  The good news is that I had two excuses (a) our first grandchild was born on July 3 and I seem to waste inordinate amounts of time curating baby pictures, and (b) I was finishing this summer's project.  The upshot of (b) is that by the process of some fairly brutal self-editing I have the drafting equivalent of a portfolio of outtakes.

The piece isn't quite ready for prime time via SSRN, but its title is Unsure at Any Speed: Lawyering Somewhere Between Algorithms and Ends.  It's a contemplation of how we'll reconcile the capabilities of digital lawyering and human lawyering. That means I thought a lot about the differences between what it means to have a brain comprised of flip-flops and P/N junctions, on one hand, and neurons, on the other.  And as it's where science melts into philosophy, it's just made for metaphors that live for a time between drafts 1.2 and, say, 1.9.  Alas, they ultimately have to be sacrificed in the interest of the reader's patience with the filigrees of my cranial neurons.

The risk of metaphor overload is highest when you are wrestling with the very concepts of complementarity, irreconcilability, paradox, and  irreducibility. Those are at the core of what I think is the difference between not just thinking like a human versus a machine, but also being like a human versus a machine. Hence, my existentialist turn. I am more than the physical or social properties a third-person could observe about me. What makes me me” is that I am capable of having an attitude about my own objective existence, that I am engaged practically in the world, that I am a subjective agent capable of action by way of my own will.  Give that one a try, ROSS.  Unless a human like me programs you otherwise, you are doomed to be the two-handed lawyer ("on the one hand; on the other hand") that business people despise.

So I'm fascinated with the ways we can try metaphorically to capture the complementarity of just thinking or even deciding, on one hand, and acting, on the other. Think about that moment after you've clicked "Start New Submission" on SSRN, uploaded the draft and the abstract, chosen your journals, and are about to submit. If you are like me, that is the equivalent in academia to stepping out of the airplane in sky diving. No amount of thinking about it substitutes for the act itself.

I wrote and never used, much less edited out, a metaphor from mathematics.  "Discrete and continuous" is another irreconcilable complementarity. In mathematics, every real number is something of an illusion.  The simplest numbers to understand are “natural” or “counting” numbers like 1, 2, or 154.  They are discrete.  You could use your and other peoples’ fingers and toes to represent them.  Rational numbers are slightly more abstract: they are numbers that can be expressed as a ratio of two natural numbers.  A fraction like 1/9 is rational, even though its decimal representation is an infinite string of ones to the right of the decimal point.  Irrational numbers are those that cannot be expressed as such a ratio; examples are the square root of 2, pi, and e, the base number for a natural logarithm.  Real numbers are the continuum of all numbers that are not imaginary, i.e. any number you could think of that is rational or irrational or sits somewhere between any two rational or irrational numbers. 

But that is the very point of the illusion of continuity.  The mathematician Richard Dedekind showed that a real number is a cut or a slice – in the jargon of calculus, a limit or asymptote – that separates all the numbers below it from all the numbers above it.  In the case of a real number that is not rational, the set of all numbers below it does not have a greatest element; it merely converges on the real number. It is, paradoxically, both a spot on the continuum of all numbers and not a spot in the sense that you can ever actually reach it.

I wanted to say in the article that one's passage through time and the actions one takes at any moment µ in that passage create a similar illusion of discrete and continuous. A single moment µ in which we act separates the set of all past moments from the set of all the future moments. All past events converge on µ, a moment which is not a member of the set of all past moments. And in that moment µ randomness, luck, or will may operate.  Yet we are inclined to see past and future moments as one continuous set, most because we cannot re-experience µ.  By the time we are considering µ at moment β, µ is merely a member of the set of all moments preceding β.

I didn't say it then.  Now I will.  "Status: Publish Now."  "Publish."  Click.  Oh no. I hope the parachute opens.

Posted by Jeff Lipshaw on July 29, 2019 at 05:05 PM in Blogging, Legal Theory, Lipshaw | Permalink | Comments (2)

Saturday, July 27, 2019

New AALS Website on Becoming a Law Professor

Hopefully by now, many of you have seen the AALS’s new website for individuals interested in law faculty positions.  The vast majority of the work developing this site was done by the AALS staff (including Sean Scott, the former Associate Director of the AALS), but I served on the AALS Committee on Becoming a Law Teacher, which worked on the project as well, so I wanted to take a few moments to highlight the site and a few of its unique features.

First, I want to recognize that this site builds on the amazing work by Prawfsblawg’s own Sarah Lawsky over the past several years collecting data on entry-level law faculty hires.  The site relies on this data in various places, and it now does a better job of acknowledging her contribution to the site and the profession more broadly.  Thanks, Sarah, for all of your work over the years spearheading this data project!

Second, the site includes a wealth of information about the realities of the law teaching market.  Many of us have probably received phone calls from alumni of our schools or local lawyers expressing interest in law teaching, and it is difficult to convey just how hard it is to land a law faculty position while also explaining the necessary steps and the relevant processes.  This site lays out all of this information in a single place, with the goal of making this process more transparent.  We definitely didn’t want to sugarcoat the process, but we also want to make sure that people who are committed to this path know what they have to do to have the best chances to succeed.

Most interestingly, from my perspective at least, the site includes a mock video of a job talk, a video discussion about how to make the most of a fellowship, as well as sample CVs, research agendas, FAR forms, and teaching statements.  The goal was to make these steps in the process a little more familiar for people trying to break into the profession.  For longtime professors, it feels obvious what a good job talk or FAR form looks like, but for candidates new to the process, these steps can feel pretty foreign.   A huge thank you to the professors who agreed to let us post their materials for others to learn from, as well as to Kate Weisburd for giving a mock job talk and Aman Gebru for sharing his thoughts on the fellowship process!

My favorite part of the site is the personal narratives from three newly hired professors.  Hiba Hafiz at Boston College, Andrew Winden at the University of Florida, and Richmond Law’s own Rebecca Crootof all wrote amazingly heartfelt narratives about their own journeys into the profession.  We were inspired to include these narratives after we read Brad Areheart’s story on the University of Texas’s website, and his experience and advice is also valuable for prospective candidates to read.  Data and facts are helpful, but there’s something special about reading first-hand accounts of people’s journeys. 

And the site includes all of my interviews with fellowship and VAP directors.  There are more interviews to come,  and it will soon also include interviews about the Ph.D. in Law program at Yale and the Jurisprudence and Social Policy (JSP) PhD program at Berkeley Law.  These interviews were sparked by Sarah’s data showing that nearly all tenure-track hires today have done either a VAP or fellowship program or received a Ph.D.  Despite this reality, there was very little information out there about how these programs work and how to successfully land a position in them.  I am grateful that prawfsblawg was receptive to allowing me to publish the interviews on their blog, and I will continue to post them here.  If you are looking for all of the interviews in a single place though, you can find them on the AALS website. 

Finally, as I understand it, this site is just the beginning.  The AALS plans to develop similar materials for other types of law teaching, including clinical and legal writing positions, so stay tuned for even more information.  In the end, our goal is to demystify the process of becoming a law professor so that it doesn’t feel like a secret society that only some people can access.  With that goal in mind, if there is more information you think we should include, let me know!

Posted by Jessica Erickson on July 27, 2019 at 06:52 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (1)

Random snippets of law

Each too short for a stand-alone post. Maybe this is why we have Twitter.

Here is everyone's Evidence question for the coming semester: The government in the Roger Stone prosecution has moved in limine to admit the clip from Godfather Part II in which Frank Pantangeli recants his prior statement implicating Michael Corleone. The government argues this is relevant to explaining Stone's repeated references in his communications with Jerome Corsi and shows that Stone was urging Corsi to lie to Congress.

• This point is moot with the announcement by the House Judiciary Committee that it is investigating "possible impeachment." But following Robert Mueller's testimony on Wednesday, Adam Schiff and Nancy Pelosi stated that their preferred next step was to complete litigation over various subpoenas; if the President disobeyed an Article-III-final court order, that would be the last straw prompting a move to formal impeachment.

I did not understand why that is or should be the relevant line. Some have flagged this as the line that Nixon would not cross, so crossing it would make Trump worse than Nixon. But it is hardly the worst or most wrongful thing a President could do. And it is not obviously worse or more impeachable than the misconduct--some criminal, some representing abuses of office or prospective office--described in Mueller's report and testimony.

I would guess that Pelosi and Schiff believed that Mueller had not described, in sufficiently dramatic terms, a single flashing-red-light act that would rally the public. Or they bought the media spin that Mueller's testimony was too dull to do that. So the strategy became to wait for the next single flashing-red-light act. Or the one after that. Or . . .

Posted by Howard Wasserman on July 27, 2019 at 09:02 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics, Teaching Law | Permalink | Comments (0)

Friday, July 26, 2019

Junior Prawf Book Projects

Hi folks. This is the third in a series on being a junior, interdisciplinary, multi-subject prawf—you can find the first two posts here and here.

Following up on my last post (and on some emailed comments from other junior prawfs) I thought I would say more about one of my current publication projects: an edited volume for Cambridge on qualitative empirical approaches to studying gig work regulation. I’ll preface this by acknowledging that undertaking an edited volume in year 1 of a TT position is unusual and not necessarily something I would recommend. I hadn’t planned on doing any kind of book just yet, and I only let myself do this on the understanding that it would be in addition to the article projects I had already planned. As earlier Prawfs posts have suggested, a book—especially an edited one—probably counts around the same as a good article, so it’s not the most efficient use of one’s time. I also wouldn’t have done it if I hadn’t already written a handful of articles in the area. That, along with the process of creating an online bibliography related to gig work regulation, made me feel like I had a tolerable if constantly-catching-up grasp of the field.

The impetus for the project was this: scholarship on gig work regulation has been especially informed by qualitative empirical research and a volume dedicated to that intersection of method and topic would speak to two of my “selves.” As my first post suggested, keeping multiple flames burning is a perennial concern of mine so when this idea came to me I decided to run with it despite the slight risks involved. The process of assembling contributors has also helped me reconnect with existing scholarly friends and reach out to new folks doing exciting and relevant research.

It’s gone pretty well so far. Some of the contributors are housed in law schools while others are in disciplinary and interdisciplinary departments. I also have contributors who, for lack of a more elegant term, I’m calling “industry experts”—non-academics who have also learned immensely from conversations, interviews, attending panels and town-hall meetings, etc. This is somewhat unusual but given how much legal scholars who study gig work have relied on long-form journalism and think tank research, I felt an edited volume that excluded their insights would artificially present the field as solely the province of academics. (There was also a bit of “in for a penny…” thinking behind this choice.)

I can see now just how much doing edited projects (whether books or journal issues) requires a particular skill set. It’s about people management as much as it is about scholarship, and at this stage in my career it mostly involves managing people who are in various degrees of seniority to me. Although that’s probably one of many reasons to avoid this kind of undertaking early on in a TT position, I also think the timing has its benefits. You get an early sense of how to design and execute a project involving many people who have their own ideas about how things ought to be done. You learn how to tactfully guide or collaborate with others from a position of far greater equality than the law review editor/peer reviewer or junior-asker-of-advice roles you’ve probably inhabited to that point. You get a relatively low-stakes taste of the academic publishing world that will come in handy if you’re likely to pursue monograph projects later on. And you make editor contacts that may prove even more handy later on.

 

Posted by Deepa Das Acevedo on July 26, 2019 at 05:05 PM | Permalink | Comments (0)

"Amadeus" and the academy

Keith Humphrey (Stanford Medicine) discusses how the movie Amadeus reflects life in the academy--specifically, how fortunate one is to be Salieri even if he cannot be Mozart.

Posted by Howard Wasserman on July 26, 2019 at 10:03 AM in Howard Wasserman, Teaching Law | Permalink | Comments (3)

Interview with Miriam Seifter on the William H. Hastie Fellowship Program at the University of Wisconsin Law School

Next up in my series interviewing VAP and fellowship directors is Miriam Seifter, an Associate Professor at the University of Wisconsin Law School.  For the past two years, she has chaired the committee that oversees the William H. Hastie Fellowship Program at Wisconsin.  An edited transcript of our conversation is below, and I have invited Miriam to respond to any questions in the comments.  Thanks, Miriam, for participating in this series!

You can read more about the structure of these interviews and other caveats related to them here.   For more information about law faculty hiring generally, check out the section of the AALS's website devoted to this topic at https://teach.aals.org/.


Q. Tell me a little bit about the Hastie Fellowship Program, including its history.

A. The Hastie Fellowship is an academic fellowship program aimed to help prepare candidates for the law teaching market. The program is named in honor of William H. Hastie, who was a renowned lawyer, teacher, judge, and civil rights advocate who, among other things, championed the value of legal education. The Fellowship was founded in large part by Professor James E. Jones, who was a labor law expert and one of our celebrated professors here at Wisconsin. The program has been around for over 40 years, and it reflects a commitment to foster diversity and inclusion in the legal profession.

Q. That's great. Tell me your role with the program.

A. I have been on the Hastie Fellowship Committee for the past three years and was the chair of it for two years, although I am not on the committee this coming year.

Q. I'd love to move chronologically through the fellowship starting with the application process and moving to the fellowship itself and then the job market. Turning first to the application process, when does the committee start to accept applications?

A. We accept applications beginning October 1st each year, and the deadline is February 1st. I should note that we are currently hiring every other year and just hired a new fellow, so we will next open applications in October 2020.

Q. Are you reviewing those applications on a rolling basis?

A. We take a look periodically, but we do not make any decisions until the deadline actually passes.

Q. What materials does a candidate who wants to apply need to submit?

A. This information is on our website. It is a personal statement, a resume or CV, a research proposal, two or three letters of reference, and official transcripts from relevant higher education institutions.

Q. Can I just follow up, you said a personal statement?

A. Yes.

Q. Yes. Tell me, what do you want from that personal statement? What's the purpose of that?

A. We ask candidates to explain their interest in the legal academic field and legal scholarship and law teaching. We also ask them to explain how their involvement would contribute to the program's goal of increasing diversity and inclusion in the legal academy.

Q. What's the timeline for interviews? How many interviews do you typically conduct, and when do they start?

A. We don't have a set number of interviews that we conduct. We aim to conduct those interviews sometime around March, depending on the volume of applications.

Q. Is there only one set of interview, or are there first-round interviews and then second-round interviews?

A. Typically there is just one round.

Q. And are those done over Skype, or do the candidates come to the University of Wisconsin?

A. We have done them by Skype. If someone was local, we would be happy to speak to them in person, but we don’t ask applicants to incur the cost of a trip to Madison; Skype is perfectly adequate.

Q. By when has the fellowship typically filled all of the positions?

A. We generally hope to have responses out by March-April, depending again on volume and how the interview process goes.

Q. Is it one fellow per year?

A. We currently have one fellow per year. For many years we had two. I'm not sure whether the number will be one or two in the future.

Q. How long is the fellowship?

A. The fellowship is two years.

Q. How many applications do you typically receive in a given year?

A. This has varied over the years, but last year we received 23 applications for the one fellow position.

Q. Who actually selects the fellows? Is it that committee that you mentioned earlier?

A. Yes. We have a committee of faculty members and staff who review the applications and make the decisions. The committee sometimes consults with subject matter experts on our faculty if the research proposal is not in the field of the committee members.

Q. Does the Hastie Fellow have teaching responsibilities?

A. The Hastie Fellow has teaching opportunities, but not responsibilities. We really want to allow the fellow to focus on their research agenda and their scholarship, and for that reason they do not have ongoing teaching obligations. That gives them protected time to research and write.

We do offer the opportunity to teach, typically in the second semester of the second year, when hopefully the market process is mostly wrapped up. We offer that as an opportunity to get practice teaching before they start a teaching job. We invite the fellow to pick what they teach, which might be an existing course of ours or a seminar they design. We're not hiring them to fill a curricular need.

Q. Are you trying to gauge teaching ability during the application process? Is that one of the factors that you're looking at?

A. Not really. I think if there were red flags in the application or in the interview, we would take those seriously because we want our fellows to be contributing members of the legal academy. But we do not, for example, require the submission of teaching evaluations, primarily because most of our candidates have not taught before.

Q. How about practice experience, is that something that you're looking for? If so, how many years of practice experience do you typically look for?

A. We do not require practice experience and do not have any set number of years of practice or other experience that would be useful. Generally speaking, the program is looking for academic promise and a strong research agenda. Some of our fellows have helped establish that through years in practice that gave them great ideas for things they wanted to write about. But people could apply to the program with no practice experience and still be very successful.

Q. Let's turn then to the academic promise, the scholarly side of the fellowship. The successful candidate, how much scholarship do they typically have before they start? Is it one paper, a draft, more than one published paper? What's typical, recognizing that of course it varies?

A. We have had a very wide range. We have had people who are in the midst of or have completed a PhD program and have done extensive writing, though often not in legal publications. We have had people who have been in practice and have published maybe one article on the side while they were in practice plus a student publication, if they had one. We do not have a set number of publications that we require, and we definitely do not require people to be basically tenure-able at the time that they apply. We focus more on trying to help people develop their scholarly work.

Q. How do you compare a candidate who maybe has a PhD or is pretty far along in the PhD process and therefore has a pretty significant body of scholarly work with a candidate who's coming out of practice who may not have had that opportunity? It's not an apples-to-apples comparison, so I'm just wondering how as a committee you try to sort through that?

A. Other features of the application can help to shed some light on these dilemmas. The research proposal in particular can be very helpful. If that research proposal sounds interesting and novel and doable in the time that they have as a fellow, then that can work strongly in their favor even if they don't have a lot of existing publications.

We also consider letters of reference to get a sense of how diligent and productive and resourceful someone is likely to be. We consider the personal statement. We consider other things on their resume. We look at their transcripts. We try to the best of our ability to get a full picture of the candidate's academic potential, even though, as you said, it's never an apples-to-apples comparison.

Q. Sure. Let's circle back around to PhDs. Does the program have any preference for candidates with PhDs, or how do you weigh that in the application process?

A. We do not have a preference. I think it's just one of the possible markers of showing someone's academic interests and potential to generate scholarly work.

Q. Does the candidate's curricular area ever come into the mix on the hiring side? For example, are you saying, well gee, this is a candidate who's in a curricular area that's heavily in demand on the entry-level market; this candidate not so much?

A. We do pay some attention to curricular area in making sure that we can provide good mentorship and support for the fellow. It’s a plus factor if we have faculty members who will be knowledgeable about and engaged with the candidate's areas of interest. Curricular area might, at the margins, also distinguish a research agenda, if the area appears to be under-written.

Q. On the Hastie Fellowship website, it says that the fellowship reflects a commitment to diversity and inclusion in the legal profession, and I'm wondering how you interpret that in the hiring process and the role that diversity and inclusion specifically plays in the hiring process?

A. Sure. The program is aimed at giving an opportunity to people who are underrepresented in the legal academy. A desire to create a more inclusive legal profession was important when our program was started, and we think it’s still crucial today. We invite people to explain in their personal statements why they would contribute to greater diversity and inclusion in the profession. We let people tell us why it is that they would advance those aims rather than imposing our own pre-set definitions. A list of our past fellows is available on our program website.

Q. As I've talked about this interview series on prawfsblawg, I've had many people reach out to me and say, "Can you ask, what about candidates from more nontraditional backgrounds?" In other words, candidates who may not have the traditional markers that law professors have often had. Maybe they didn't go to Harvard, Yale or Stanford. They didn't do an elite clerkship. What advice would you have for those candidates?

A. I'm glad you're hearing from those candidates. Our fellowship is targeted in part at candidates like that; part of what we hope to do is to provide a platform for people who have not already had a chance to prepare themselves for the law teaching market.

In terms of how to stand out if you are looking for ways to distinguish your application, we place a lot of emphasis on the research agenda because the timeline for a two-year fellowship is actually pretty tight. Particularly if you're trying to produce two works of scholarship, that requires you to come in and pretty much know what you're going to be doing from day one. Seeing a really coherent, well-thought-out research agenda and having the confidence that that candidate is going to be able to start and on their first day really dive in is part of what helps distinguish a successful application from one that isn't going to work.

Q. We’ve talked about scholarly potential, the research agenda, practice experience, and the personal statement. Is there any additional criteria that the committee uses to select the fellow? Anything else that might help an applicant stand out in the application process?

A. I think we discussed this, but we also ask for letters of reference.

Q. Okay, perfect. Let's turn to some of the nuts and bolts of the fellowship itself. You mentioned that it lasts two years. Does that mean essentially you're hiring every two years in general?

A. As I said, right now that's what we're doing. Having one fellow at a time has allowed us to really pour the institution's resources into one individual, which I think has its benefits. We just hired a new fellow, so we expect to hire again in 2020-21.

Q. Is that fellowship ever renewable for a third year?

A. I don't believe so.

Q. Are you comfortable sharing how much the fellows are paid?

A. Sure. I believe this is on our website, but the current stipend is $40,000 a year. We do say that it's increased from time to time to reflect the local cost of living, and there's a research support fund that the fellow gets, which is currently 4,000 per year for each year of the fellowship.

Q. Is that research fund meant to pay for both travel and research assistants?

A. Exactly.

Q. How about benefits? Do the fellows receive health benefits?

A. Yes. They are eligible for health benefits, including medical insurance, dental care and life insurance.

Q. Do they receive access to university or subsidized housing? This may be less of an issue in Madison, but I'm asking everybody.

A. Yes. We connect them with our extensive housing resources. Because they are technically enrolling as an LL.M. student, they are eligible for university housing, although many of them choose to live in grad student neighborhoods, which are not part of that program. Madison does boast very affordable housing compared to many other cities.

Q. Do the fellows receive any additional reimbursement for market-related expenses, for example, the costs of the AALS registration fee and attending the AALS bar conference, or does that come out of the $4,000?

A. I believe that that comes out of the $4,000 per year allotment, though fellows can apply for additional funds if they run out.

Q. Are they required to live in Madison? Or could somebody live in Chicago or New York and commute?

A. We ask them to reside primarily in Madison. We have had people who have spouses elsewhere and have done some traveling, but it's really helpful and important for the person to be part of the life and community of the law school.

Q. Let's turn to how somebody might make the most of the fellowship year. Are the fellows integrated into the intellectual life of the law school? Do they, for example, attend the faculty workshop series?

A. Absolutely. We think that that is really helpful to the fellows. They are invited to basically all law school events. They come to faculty workshops. They come to symposia and colloquia to the extent that they're available for those. They participate in an event we have that's called Big Ideas Café where people present often early-stage ideas of what they think they might work on next, and they're invited to workshop their own work at a faculty workshop whenever they are ready to do so.

Q. Do the fellows have any connections with other fellows at the University of Wisconsin? They are the only fellow at the law school, is that right?

A. Wisconsin is a great place for making connections across the university, if the fellow is interested in doing so. Recent fellows have participated in our Institute for Legal Studies Law and Society Graduate Fellows Program, which provides a community of fellows and graduate students who meet regularly, workshop their papers, receive mentoring on topics of interest, and host presentations by professors.

Q. You mentioned earlier that the fellows receive an LL.M. Can you tell me a little bit more about that? What do they have to do to get that LL.M., and what is it an LL.M. in?

A. Good question. It’s a general LLM (Master of Laws), not subject-specific, and the work product they would ordinarily do as part of the fellowship is typically sufficient for conferral of the degree, subject to approval by faculty members. The details are all in the LLM/SJD handbook on our Graduate Programs website – I can send you the link.

Q. Who actually supervises the fellows? Is it the committee? Is it the dean? Who's in charge of their overall experience at the law school?

A. The way that we envision it working in a typical year is that the committee provides general purpose mentorship, legal market support, and logistical guidance (like when articles should be submitted, when first drafts should ideally be done, etc.), and can provide another set of eyes on drafts. We also involve a subject matter advisor, someone who is knowledgeable about the fellow's area of work, who provides more substantive feedback on drafts.

Q. The subject matter expert, is that an assigned mentor, or is that a relationship that tends to develop more informally?

A. It's an assigned mentor. We ask someone to do that at the same time that we are making final decisions about the application process.

Q. Are they given any assistance in making connections with law faculty in their area of interest outside of the Wisconsin Law School?

A. Absolutely. That's one of the things that their subject matter advisor can help with, but it's also something that the committee or our faculty colleagues can help with. All of us feel a commitment to helping this person get their start in academia, and so to the extent that we know people who are working on things that are of interest to them, we'll try to make those connections.

Q. I assume that they have multiple faculty members sitting down with them reading their drafts, giving them feedback on their articles?

A. Yes.

Q. I know some fellowships differ on this, but I’d love to get your thoughts on the expectations around the scholarly timeline during the fellowship. You said that it is a tight timeline, those two-year fellowships. How do you recommend to your fellows that they use that timeline? In other words, are they coming in with a draft that they're trying to polish? Are they typically starting from scratch in that first summer? What's the norm and how do the two years work scholarship-wise?

A. I think it really depends on the candidate. I apologize for saying that over and over, but it is true. If someone is coming with an early stage draft, then of course that candidate is going to come in and pull out that draft and start to develop it. If someone’s research agenda said, "I've been in practice and I haven't had time to implement this, but here's my inquiry and here's how I want to pursue it," then they would begin doing that. Either way, it's really important that they be ready to get started on the first day of the fellowship and to adhere as best they can to the goals in terms of drafting that we set for them.

Q. Are they given any other support related to their research agenda? Obviously people are looking at their drafts, but how about on the overall research agenda?

A. We talk about with the research agenda from the beginning of the fellowship. We encourage the fellow to reflect on what they envision their scholarly profile looking like, and how they think their papers fit together. That conversation continues and evolves as the year goes on..

Q. Do you have any specific advice for fellows who come in with PhDs in terms of transitioning from their PhD program back to the norms of legal scholarship?

A. If fellows have or are completing a PhD, we connect with members of our faculty who have made that same transition. They can provide the best advice on how to make that transition, how to reach different publication outlets, how to change gears a little bit, and how to build on what they've already done.

Q. Let's go back to the teaching opportunity that you mentioned earlier. Is that something that most fellows take advantage of? Do most fellows teach a class in the spring of their second year?

A. Yes.

Q. How is the determination made of what course they might teach?

A. We let the fellow choose, though we are happy to provide input. Some fellows have wanted to teach an existing class that we offer, and others, like our most recent fellow, have wanted to create a seminar in their area of research. We're flexible on that choice.
The teaching opportunity is meant to provide the fellow with useful and relevant teaching experience rather than to serve a particular need that we have.

Q. Do they receive training or feedback on their teaching during that spring semester?

A. We welcome them to sit in, if they would like to, on other people's classes to get ideas, and we as a committee talk with them about teaching. We would be happy to provide additional feedback if the fellow wants it.

Q. Does the fellow have any other responsibilities other than their scholarship and teaching that course if they decide to do so?

A. No.

Q. We’ve now gone through a lot of the details of the program, but stepping back for a minute, imagine that you had a candidate who had several different fellowship options and they were trying to decide between them. What do you think makes the Hastie Fellowship particularly valuable, and how would you try to sell the candidate on that program?

A. I think that we are distinctly attractive in our commitment to allowing the fellow to focus on their scholarship and supporting them as they do so. We don't give them institutional responsibilities, and we provide extensive support as they prepare for the job market. We also have a really warm and welcoming community here at the law school. And Madison is a glorious place to work and live, so I think most of our fellows find it to be a really pleasant two years.

Q. That's great. What other advice do you have more broadly for fellows when it comes to making the most of a VAP or a fellowship? It could be the Hastie Fellowship or another one, just in terms of thinking about successful candidates and what they've done?

A. There are so many ways to succeed that it's sort of hard to answer that question, but I think that a willingness to share work early with lots of different people is a really useful practice for people who are in VAPs or in early stages of breaking into legal academia. It's so tempting to want to hang on to that draft until you think it's perfect, but talking about ideas at an early stage will help you figure out what you want to say while also giving you practice framing and conveying arguments.

Q. I could not agree with that more. I think the more people can share ideas early, the better. It was certainly transformational in my early years here at Richmond, so I always tell people, "Share as much as you can."

A. Yep.

Q. Let's turn to the job market. What type of mentoring does the Hastie Fellow receive related to the hiring process?

A. The first thing that we do early on in the fellowship is just describe that process to them--because again, many of our fellows are not on a legal academic track that gives them inside knowledge about the process. We describe the AALS conference, the timing of applications, and so on. We talk to them about the market documents, what does a FAR form look like, what does a research agenda look like.

As the market gets a bit closer, we have a variety of people give feedback on their application materials. Then as the market gets even closer, we do mock hiring conference interviews and mock job talks for them.

Q. Who's actually responsible for providing this advice and doing these mock interviews?

A. The core responsibility is with the Hastie Fellowship Committee, but for the interviews we involve broader members of our faculty, who are usually happy to volunteer.

Q. Do you happen to know the percentage of fellows, let's say, over the last 10 years who have received a tenure-track job offer at a US law school?

A. We have been at 100% in the three years I have been participating, and I know we’ve had a lot of success in prior years. I am not sure we have kept consistently formal records to allow for long-term percentage calculations, but a list of many past fellows is on our website, and you can see where they are now. It’s a very distinguished group.

Q. I'd love to link to that if you don't mind. [Here’s the link. Scroll down to the bottom of the page to see the list.]

A. Oh, absolutely.

Q. Perfect. What about fellows who may not get a job in that second year of the fellowship, how do you support those fellows?

A. That is not a situation that I've encountered.

Q. I'd love now to turn to VAPs and fellowships more generally and just get your thoughts on them if you're willing to share them.

A. Sure.

Q. I'm wondering what you think are the benefits of the rise of fellowship and VAP programs as an entry point into law teaching, and what do you think are the costs?

A. I don’t really have a long enough memory and experience in the academy to give an answer to that because I don't have direct experience with the pre-VAP world. Certainly a downside of the reliance on VAPs and fellowships is that it requires people to press on for years without job security or any certainty whether academia will work out for them. I can’t speak from experience about whether the alternative, prior system was truly easier or more of an equal playing field, or whether it actually had its own costs.

I do think that to the extent that the VAPs are selecting only people who are already totally ready for the market, then the status quo is insufficiently open and inclusive to people who actually would be wonderful law professors. I think that that's a gap that we hope to fill by hiring people who do not have traditional legal academic backgrounds but who have great academic promise.

Q. On a slightly different note, one of the criticisms that you often hear if you hang around with hiring committees a lot is a concern that VAPs and fellows may get too much help on their scholarship from the schools where they are serving as a VAP and that therefore it's hard for hiring committees to know how much of the work and ideas come from the VAPs and fellows themselves. Have you heard this criticism, and what do you think about it?

A. I haven't heard that criticism. That's interesting. There's a sense in which all legal scholarship is a collective enterprise. If you do 10 workshops, you're always going to be drawing on some ideas that didn't start with you. Certainly we as a fellowship program and the market generally want to make sure that it's the candidate who's driving the train, and I think we do that.

Again, just to come back to something I've emphasized, one of the ways we do that is by taking a really close look at the research agenda at the outset and making sure that the candidate has a set of ideas that they want to pursue that are theirs. Once that is in place, to the extent that we can help with polishing, workshopping, and network building, I think those are all to the good.

Q. Anything else you want to add either about the Hastie Fellowship specifically or any messages to pass along to hiring committees about the state of law faculty hiring more generally?

A. You've been really thorough in your questions, so I don't think I have anything to add, but I'll let you know if I think of anything.

Q. Great. Thanks so much, Miriam. Take care.

Posted by Jessica Erickson on July 26, 2019 at 08:18 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (1)

Thursday, July 25, 2019

Manners Matter: Updating George Washington’s Etiquette Book for the Culture Wars

Understanding that the term is probably an essentially contested concept, I nevertheless count myself as a “conservative.” One aspect of at least my brand of conservatism is respect for manners. By “manners,” I mean all of those artificial rules of self-restraint that keep people from saying and doing whatever they happen to have a mind to say or do out of deference to the likely reaction of onlookers. “Manners” include basics like the prohibition against picking your nose or flossing your teeth in public as well as conversational niceties like beginning any new conversation with a question to your interlocutor rather than a statement about yourself. Use of cutlery, tact about religion, waiting for others’ food to arrive before eating — all are part of that vast network of unwritten restraints drilled into well-mannered people in childhood.

What’s so “conservative” about manners? Behind this elaborate network of artificial restraint is a Hobbesian assumption about human nature peculiar to a certain brand of conservativism, viz: Humans are aggressive, self-loving primates, prone both to promoting their own comfort and self-esteem at others’ expense and to taking offense at such slights from others. Such creatures can live together safely only with artificial rules that keep each person wary about the dignity and disgust of others.

For American conservatives, one urtext of manners is teenage George Washington’s little notes on etiquette, entitled “Rules of Civility and Decent Behaviour In Company and Conversation.” The 110 rules copied out by young George in 1748 epitomize a basic aspect of Washington’s conservatism — his rigidly adhering to a complex code of Virginian deference and dignity designed to avoid duels and demagoguery. In a democracy, this code allowed him to rule without threatening others’ amour-propre by cultivating elaborate obeisances to social constraints that show self-control, self-respect, and respect for others. Washington’s notebook contains some now-quaint rules against (for instance) putting one’s hands in one’s pockets while in the presence of others. But the master principle that all such limits on fidgeting reflected is stated by Rule #1: “Every Action done in Company, ought to be with Some Sign of Respect, to those that are Present.”

If Washington were alive today and updating his notebook, I feel confident that he would include another rule of self-restraint: Do not talk about one’s own students’ 1L grades in a casually disparaging manner on a radio broadcast.

There are few topics touchier to dignity than 1L grades. Putting aside the practical material consequences, law students naturally invest a lot of their self-esteem in how they are academically evaluated. Any public discussion of one’s own students’ grades, therefore, must be conducted with the elaborate protocol of a professional diplomat at an embassy dinner.

There are, of course, formal rules like FERPA that protect students’ privacy against the indignities of having one’s academic record publicized. But manners goes beyond formal rules: The tactful professor should treat his or her students as if they are from Lake Woebegone: All above average. The notion that one would announce publicly that any group of students, however identified, has achieved scores in one or another percentile of the class is a vulgarity that would astound Washington. One might as well brag about one’s lineage at a Mount Vernon reception to humiliate the poorer or worse-connected guests. A better recipe for dueling pistols in Tidewater society can hardly be imagined.

It is all the worse to make statements about one’s own students linked to their ethnocultural background. To a conservatives like myself, heterogeneous societies from India to America are fragile things, because (recall the Hobbesian assumption above) each ethnocultural group naturally lives in mutual suspicion that one group will elevate their own dignity at the other groups’ expense. Make comparative statements about ethnocultural groups, then, at one’s own peril and the peril of social peace.

Do conservative manners mean one can never discuss matters sensitive to the dignity of one’s fellow citizens? No: Manners, as the noun implies, are about “how,” not “whether.” There is a time, place, and manner for every discussion necessary for every social decision. It is actually pretty important, for instance, to keep track of how different ethnocultural groups perform on tests, as a way to inform topics ranging from test bias to law school preparation. But the conservative discussant pursues these topics with lots of tact and aggregated, anonymized data, not offhand remarks about their own classrooms in broadcasts audible to those selfsame students. As George would say, “Every Action done in Company, ought to be with Some Sign of Respect, to those that are Present” — even if they are present on the receiving end of a radio. (I’d also commend Rule 71 (“What you may Speak in Secret to your Friend de­liver not before others”) and Rule 79 (“Be not apt to relate News if you know not the truth thereof”)).

I can imagine my critical reader is now asking: “Why must we adhere to the Augustan mores of Washington, when we live in a much more raucous democracy?” My reply: You needn't. I write from a grim Hobbesian assumption about the fragility of social relationships that you might not share.

But please do not tell me that the Left suppresses free speech on campus by ostracizing a professor who casually opines about their own students’ grades In a radio broadcast. There is nothing especially left-wing about the idea that those who offend against good manners should be ostracized. The idea that society is held together by decorum enforced by public opinion and cold shoulders is a conservative policy, not a left-wing cause.

I concede that there is always a tension between the artifice of good manners and democratic bluntness. The latter tends to erode the former. Those who want to radiate democratic authenticity cultivate strategic offenses against good manners to win over the crowd with their apparent down-home sincerity. Just ask our current Chief Magistrate.

But I suggest that we could today use a little correction in the direction of George Washington’s idea of decorum. Social media has unleashed demons of crude vulgarity — a great belching, farting id of unfiltered self-expression. I myself believe that these demons drown out or intimidate democratically useful discussion on blogs, Twitter, or the radio airwaves with their swaggeringly insecure bloviation.

As I say, I concede that I am a conservative kind of guy. You might not be. If you think that society needs more brawling and less civility, then go ahead and throw that stink bomb. Just do not be surprised when your colleagues hold their noses in disgust and give you a frosty reception. That’s just what Washington would have done. (Well, maybe not the nose-holding: See Rules 4 and 5).

Posted by Rick Hills on July 25, 2019 at 03:06 PM | Permalink | Comments (9)

American Society of Comparative Law: 5th Workshop on Comparative Business and Financial Law

AMERICAN SOCIETY OF COMPARATIVE LAW: YOUNGER COMPARATIVISTS COMMITTEE
FIFTH WORKSHOP ON COMPARATIVE BUSINESS AND FINANCIAL LAW
Submission deadline: October 25, 2019

The Younger Comparativists Committee (YCC) of the American Society of Comparative Law (ASCL) is pleased to invite submissions for its fifth workshop on comparative business and financial law to be held on February 7-8, 2020 at the University of Akron School of Law in Akron, Ohio. The purpose of the workshop is to highlight, develop, and promote the scholarship of new and younger comparativists in accounting, banking, bankruptcy, corporations, commercial law, economics, finance, and securities.

The University of Akron School of Law is located in the Cleveland/Akron area in Ohio and is conveniently served by two airports–Akron-Canton Airport (only a 20-minute drive to the law school) and Cleveland Hopkins International Airport (a 45-minute drive to the law school).

Up to twelve papers will be chosen from those submitted for presentation at the workshop pursuant to this Call for Papers. The workshop audience will include invited young scholars, faculty from the University of Akron School of Law and other law schools in the region, and invited guests.

Submissions will only be accepted from scholars who have held a full-time academic appointment for no more than ten years as of June 30, 2020.

Submission Instructions

To submit an entry, scholars should email an attachment in Microsoft Word or PDF containing an abstract of no more than 1000 words by 5:00 P.M. EST, October 25, 2019, to the following address: [email protected] Please title the email “YCC Business Law Workshop – [Name]” and attach a file named “FirstName.LastName.ASCLworkshop.” Abstracts should reflect original research that will not yet have been published, though may have been accepted for publication, by the time of the workshop. Abstracts should include a cover page with the author’s name, title of the paper, institutional affiliation, contact information, as well as the author’s certification that she/he qualifies as a younger scholar as defined above.

Scholars may make only one submission. Both individual and co-authored submissions will be accepted. For co-authored submissions, at least one author must qualify as an eligible younger comparativist.

Notification
Invitees will be selected via a blind review by the workshop program committee. Authors of the submissions selected for the workshop will be notified no later than November 15, 2019. There is no cost to register for the workshop but participants are responsible for securing their own funding for travel, lodging and other incidental expenses. A limited number of $200 travel stipends may be awarded to scholars from ASCL member schools who demonstrate financial need. If you would like to be considered for a travel stipend, please make that request in your submission.

Final papers for the workshop will be due no later than January 17, 2020.

Acknowledgements and Questions
The YCC gratefully acknowledges the support of the University of Akron School of Law. Please direct all inquiries to Professor Vera Korzun, Chair of the Program Committee, by email at [email protected]
Please feel free to share this Call for Papers with any colleagues who may be interested.

The Program Committee:
Martin Gelter, Professor, Fordham University School of Law
Virginia Harper Ho, Professor, University of Kansas School of Law
Vera Korzun, Assistant Professor, University of Akron School of Law (Chair)
Peter Oh, Professor, University of Pittsburgh School of Law
Timothy Webster, Professor and Director of Asian Legal Studies, Case Western Reserve University School of Law

YCC Board of Directors:
Ioanna Tourkochoriti, Lecturer Above the Bar, National University of Ireland (Galway) (Chair)
Antonia Baraggia, Assistant Profess of Comparative Law, University of Milan (Vice Chair)
Valentina Rita Scotti, Assistant Professor of Law, Koç University (Treasurer)
Kish Parella, Associate Professor of Law, Washington & Lee University School of Law
Vera Korzun, Assistant Professor of Law, University of Akron School of Law

Posted by Howard Wasserman on July 25, 2019 at 09:31 AM | Permalink | Comments (0)

Wednesday, July 24, 2019

Classifying Gig Workers Misses the Bigger Picture

I have a new article out today in the Harvard Business Review - The Debate Over How to Classify Gig Workers Misses the Bigger Picture.

I'd love to get your thoughts. The question of how to regulate platforms and how to classify workers is heated and as this post suggests, scholars have been suggesting middle categories for some time. As a non-American my first exposure to employment and labor law was through the law of work - defying categories and distinctions with an attempt to focus on the substantive goals of fairness and protection. I wrote an early piece drawing on that comparative experience, The Four Pillars of Work Law, Michigan Law Review. Since then I have written a trilogy of article on digital platforms: The Law of the Platform; Platform Market Power (with Ken Bamberger); and The Gig Economy.

I this short HBR piece today I address the current California negotiations and initiatives, after the California Supreme Court's Dynamex decision. I suggest we should focus on the underlying goals of each of the patchwork of rules, regulations, rights and protections and reject a one-classification fits all broad brush solution. 

Posted by Orly Lobel on July 24, 2019 at 04:34 PM | Permalink | Comments (6)

Meta Rankings of Law Reviews

Former guest Prawf Bryce Newell has updated his Law Journal Meta Rankings for 2019. This ranks mainline journals by combining US News ranking for the school, US News peer ranking for the school, Google Scholar rankings for the review, and W&L rankings for the review. It makes some of my recent or forthcoming pubs look better, others worse.

Posted by Howard Wasserman on July 24, 2019 at 09:53 AM in Howard Wasserman, Teaching Law | Permalink | Comments (1)

Classroom dress code?

In my post on the MAGA hat incident at Gonzaga, several commenters asked why the student was wearing a hat in the classroom. At some level, this is besides the point because the supposed problem is displaying offensive or provocative messages in class at a professor or colleague, not the medium. We would be having the same conversation over a MAGA t-shirt or whatever.

So the question is should we impose dress codes in the classroom (which would be dress codes in the building, since students are not going to change clothes all day)? As my daughter argued, we expect students to treat the classroom as a courtroom and to be prepared to engage at that level. If so, why allow them to dress in a way they would not be allowed in court. And if we do not go all the way to suits and dresses, at least "business casual."

I would not support such a move. They still are students and should be able to enjoy those comforts, even if we expect professionalism in other respects. But it is an interesting question, especially as politics get more divisive and people become more likely to be offended by the messages on someone's clothing. [Update: I should add that I wear shorts and a polo shirt on my non-teaching days, so I am not living what this would require of students]

Posted by Howard Wasserman on July 24, 2019 at 09:33 AM in Howard Wasserman, Teaching Law | Permalink | Comments (6)

Tuesday, July 23, 2019

Rapid Changes in Law & Scholarship: Gig Work Edition

I thought I’d take a short break from my junior interdisciplinary prawfs series (here are posts 1 and 2) to write about something from one of my substantive areas.

 When I started writing about employment regulation in the gig economy—around 2014, back when it was fairly reliably called the “sharing” economy—it felt like the options for resolving the problems of gig work through classification doctrine were pretty limited. I remember initially floating the idea of a category in between independent contractor and employee (along the lines of the “dependent contractor” concept that crops up periodically in the USA and that actually exists outside the USA) and having more than one person respond that this was so out in left field as to not be worth pursuing.

Now, however, the overwhelming consensus among labor & employment law scholars, to say nothing of workers’ advocates, seems to be that it’s self-evident gig workers are employees—forget half measures like the dependent contractor. What’s more, (some) state actors are (very slowly) starting to agree—see the passage of AB 5 in California, codifying the ABC test for state law and all-but-guaranteeing that most gig workers will be considered employees.

I’ll admit I’ve experienced some minor whiplash from this sea change in opinion, even though I’m broadly sympathetic to it and even though this pace of change is hardly unusual (for instance, it sounds like something similar may be happening with the prison abolition movement among crim folks). I’m also not necessarily convinced that employee status for gig workers will “settle” any better than independent contractor status did, although if I have to choose between two ill-fitting options I prefer the more worker-protective one. Among other things, as I’ve argued with respect to gig workers—and as Veena Dubal has also argued with respect to taxi drivers and is going to argue with respect to Uber drivers in an awesome chapter for an edited volume I’m putting together (on which, more soon)—worker ambivalence regarding employee status is real.

Going back to the shift regarding gig worker classification: there’s lots to puzzle over with this kind of rapid scholarly and legal change. How common is it, really? Is there some sense in which these kinds of shifts are accelerating? And—especially pressing for me as someone who needs to collect and analyze raw data in addition to engaging with legal scholarship and material—what does all this mean for the viability of various kinds of empirical legal scholarship?

To elaborate on that last point, this isn’t just a challenge for ethnographically or, more generally, qualitatively-informed scholarship. For the first few years of the gig economy, it was hard to conduct large scale quantitative studies because there were no readily available data sets. The companies would not share data except with a select few researchers (and when they did share, that fact was regularly underscored in discussions of those researchers’ results). This meant that even economics-oriented work like Ben Edelman’s well-known Airbnb discrimination study didn’t appear until 2014–15, around 6–7 years after Airbnb was founded. To the extent we think various forms of data are useful in formulating policy should this kind of acceleration be worrisome to interdisciplinary legal scholars?

 

 

 

Posted by Deepa Das Acevedo on July 23, 2019 at 09:27 PM | Permalink | Comments (1)

The rise and fall of laptops in the classroom

A discussion on the Civ Pro ListServ on how attorneys take notes (by hand or computer) morphed into another discussion of laptops in the classroom. Based on people who posted, it was something like 6:2 in favor of the ban. I record classes and make the audio available for those who want to relive the class verbatim and a couple people do the same. Reviewing previous discussions of laptop bans among Perma-prawfs and guests, the results are more mixed.

The pervasiveness of laptop bans caused me to think about the rise and fall of laptops, which tracks with my life in legal education:

• I started law school in fall 1994. One student in my 100-person section used a computer to take notes and I recall one professor stopping mid-lecture to stare at the screen in wonder. I think the number was about to about 5 by the end of the year. Most students did not even have laptops for writing projects.

• I started teaching as a VAP in 2001 and probably 80-90% of students used computers to take notes. When I started at FIU in 2003, that number was probably at 100 %.

• In fall 2007, I “recommended” that students not use laptops and urged them to try to go the first month of class without them. No one in two Civ Pro sections took me up on the offer. Several students complained about my attempt in the end-of-semester evals.

• Around 2008, some law professors began writing about how much they disliked the prevalence of laptops in the classroom--citing concerns for students surfing, distraction of others, and ineffective note-taking. I recall a piece in the Washington Post by David Cole (Georgetown) as one of the first public arguments. Others quickly jumped on board.
• In Winter 2009, I prohibited them in all classes. (This was my first semester after my faculty tenure vote--I regret that I did not do it pre-tenure for fear of student blowback). There were slight murmurings, but nothing major. I was one of about five FIU profs who did this around that time, albeit without coordination. So I think the students had become used to it.
• Studies purporting to show that handwritten notes are better began cropping up around 2013-or-so. The big Oppenheimer/Mueller study appeared in early 2014. The studies over the past 5 years are mixed.
• I continue to ban them from my classroom and have no intention of changing. I believe, based on talk in the hallway, that about 1/3-1/2 my faculty bans them, including many professors teaching doctrinal courses in the first year. More generally, profs are all over the map; I cannot tell--either anecdotally or empirically--whether we have reached the point that a majority of profs ban them.
• None of my students complains or even questions it anymore.
• I allow laptops for students given that accommodation by our disability resource office (obviously). I have seen a slight uptick in students given laptop use as an accommodation--1-2 students a year in the past 2-3 years. I suspect the increase in professors banning laptops has triggered that increase in accommodation.

Posted by Howard Wasserman on July 23, 2019 at 08:53 PM in Howard Wasserman, Teaching Law | Permalink | Comments (8)

Submission Angsting Fall 2019

This is the post to share information or ask questions about submitting to law reviews.

The comments can be used to share information, complaints, praise, etc. about which journals you have heard from, which you have not, and so forth.

Additionally, a spreadsheet to gather information is here (and embedded below).

I won't update or watch the spreadsheet. You can go ahead and add your own information by going to the spreadsheet here. The spreadsheet is editable by anyone, except that a few columns and a row (the ones highlighted in yellow) are locked, either because they auto-calculate or because tampering with them has caused a problem in the past. (If something about them needs to be changed post a comment, and I will change them.)

Entering information in the column entitled "Username" is of course totally optional, but a way to make keeping track easier. For example, if you pick a username, you will easily be able to sort by your entries and update them, instead of trying to remember what day you submitted and sorting that way. This also adds information -- showing, for example, that all of the entries on the spreadsheet come from one person, or from lots of people, etc. At any rate, totally optional, and simply a way to add more information.

Rostron and Levit's extremely helpful guide to submitting to law reviews is available here (this is the January 2019 version). The article now also includes hyperlinks to law review websites.

For those wondering "when should I start submitting?", Scholastica has information through 2016. Here is a graph of submission dates as reported to PrawfsBlawg over three recent fall submission cycles. Remember that this information is drawn only from people who participate in PrawfsBlawg, who are not a random sample at all.

Fall Submissions 2015  2016  2018

And here is a graph of submission dates of articles that were reported as accepted.

Submission date of Accepted Articles - Fall 2015  2016  2018

A histogram-ish graph comparing when all reported articles were submitted and when accepted articles were submitted shows that these two groups match up almost exactly. Accepted articles were less than 10% of the total reported articles, so it's not that accepted articles are swamping the data:

Histogram Accepted Submitted

Fall Date of Submission Chart

You can see the data I used for this here.

[Updated 7/26/19 to remove graph with messed up labels; updated 7/27/19 to add graphs with hopefully not-messed-up labels, but please let me know if you see something that looks wonky.]

 

Posted by Sarah Lawsky on July 23, 2019 at 11:06 AM in Law Review Review | Permalink | Comments (377)

Monday, July 22, 2019

Faculty Hiring: Wayne State University

WAYNE STATE UNIVERSITY LAW SCHOOL is seeking to fill up to three tenure-track or tenured faculty positions. One position is for a tax scholar.  For the others, we will consider outstanding candidates in any field, but we are especially interested in scholars working in corporations (and related business subjects), civil rights and social justice, criminal law and procedure, and property.  We warmly welcome applications from women, members of minority groups, and others who will contribute to the diversity of the faculty.  Wayne Law is a vibrant intellectual community in the heart of Detroit.  Candidates not listed in the FAR and those with particular interest in Wayne Law should send a cover letter, CV, and any other materials they wish the committee to consider to Professor Christopher C. Lund, Faculty Appointments Committee Chair, at [email protected].  The law school will be participating in the AALS Recruitment Conference in Washington, D.C., but we will consider applicants outside the FAR process.

 

Posted by Howard Wasserman on July 22, 2019 at 03:53 PM in Teaching Law | Permalink | Comments (0)

Interdisciplinary Publishing

Hi folks. This is my second post in a series on being a junior, interdisciplinary, multi-subject prawf—you can find the first post here.

In my last post I said that “[i]f all I focused on during the next 2–4 years were projects that fit easily within the format and timeline of law review publishing it would be virtually guaranteed that much of what I bring to the table would fade away.” Recognizing that is one thing, figuring out how to avoid it via, among other things, one’s publications is entirely another. (I should also note that the law review cycle & format don't represent logistical challenges for all  interdisciplinary legal scholars who want to remain interdisciplinary.) 

After the jump, I’ll outline a few things that are beginning to make themselves clear to me. I'd love to hear from other interdisciplinary folks about their goals and their approaches to realizing those goals via publication strategy.

First, for me, being an interdisciplinary scholar means speaking to two very broad audiences (in my case, law and law & society) using both my disciplines (law and anthropology) and I can’t really do that if I don’t go to where those audiences are. This means I want to publish in both student-edited law reviews and peer-review law & social science journals. I also eventually want to produce books, which are increasingly a valid scholarly currency among legal academics and are necessary signals of credibility among social scientists. This isn’t the only way to be interdisciplinary—you might be primarily or solely interested in bringing discipline “A” into conversation with discipline “B,” in which case you would likely emphasize B’s publications, conferences, and internal debates to see where you can make an intervention using A. But it’s the approach I find compelling. 

Second, I recognize that publication outcomes may not be evenly distributed between both types of journals or between presses that specialize in one field or the other. There will almost definitely be an imbalance in any given year but there is also quite likely to be an imbalance overall, especially pre-tenure. I don’t really think this is cause for regret: I feel I owe something special to my primary affiliation (how successful I am at delivering on it is a different issue). But I don’t think—and I’ve had some pushback on this from fellow junior legal anthros—that the imbalance needs to be great or that having any kind of imbalance indicates some level of failure.

Third, at least as far as my own work is concerned, timing or spacing publications for each type of venue does not pose as much of a challenge as one might imagine. Because I am trying to maintain a commitment to both law as a topic and field research as a method, I don’t construct specific articles for peer review versus law review journals. Instead, I tend to think of “projects” that have life cycles of several years and that are centered on some kind of fieldwork in the expectation that these projects will generate publications suitable to each type of venue. (I would say I’ve gone through two such “projects” so far, but they are proving to have long after-lives and aren’t really over yet.)

Over the course of any project’s life cycle, the pieces that somewhat de-emphasize field research tend to appear at the beginning and at the end. This means that, for the bulk of the project, I’m working with at least one long-horizon writing task and one that has a short- to mid-range horizon, and it means that I can’t work sequentially on publications as I would probably prefer to do. But it also means that I can realistically hope to speak to multiple audiences over a limited period of time.

As that last point suggests, there are costs to making this particular type of attempt at interdisciplinarity. For me, the most immediately obvious cost has been the way my writing instincts now occupy a kind of no-man’s land. For instance, I find it very hard to write a paper that’s over ~ 35 pages in Word, but I also find it very hard to write a paper that’s not heavily footnoted (and when you’re writing an 8,000–10,000 word peer review article—not “essay”!—every footnote or bibliographic entry represents serious opportunity cost). There are also now at least two different sets of canned phrases and sentence structures that irk me. My introductions and abstracts are too short for law review editors and on the long side for peer review editors. And I have lost the ability to instinctively format footnotes in either Bluebook or Chicago Manual of Style; these days I have to sit down with a citation guide before I send off any manuscript whereas at various points in the past I could write in either format from memory. (I know I should probably use citation software but I’ve never gotten into it and the initial learning curve always puts me off.)

Much of this is a problem of imperfect code-switching, inasmuch as we think of bodies of scholarship as extended conversations one has with an audience of peers and with oneself. I’m hopeful that the ability to move between writing styles develops in the same way as the ability to move between languages or linguistic registers: with the kind of fluency that comes from time and practice. In the meantime… I have a book chapter, a law review article, and a peer review article to finish. 

Posted by Deepa Das Acevedo on July 22, 2019 at 12:05 PM in Jr. Law Prawfs FAQ, Peer-Reviewed Journals | Permalink | Comments (2)

Saturday, July 20, 2019

What makes history constitutionally relevant? Some Reservations about Baude and Sachs’ view of the past

I am alternately puzzled and exasperated by originalist scholars’ attitude towards eighteenth century history. On one hand, they flyspeck old documents unrelated to specific constitutional texts to figure out what those texts mean. (Consider, for instance, Jennifer Mascott’s painstakingly erudite analysis of how eighteenth century writers used the noun “officer” in various corpora of texts to figure out what “Officer of the United States” means in Article II). On the other hand, they mostly ignore the great partisan disputes about banks, monarchy, natural aristocracy, religion, and public debt and the like, that motivated these texts. The historical past in legal scholarship on “original public meaning” has this dignified but misleadingly monotonous look of a white marble Classical Roman statue — misleading, because those statues were originally painted in life-like colors that only washed away with the passage of time. Colorlessly apolitical constitutional interpretations, like colorless Classical statues, are just historically inaccurate.

William Baude and Stephen Sachs have helped me think about this attitude towards history with a typically lucid and analytically deep essay. They argue that lawyers should focus on “legal doctrines and instruments specifically, rather than intellectual movements generally” when trying to figure out what past laws mean, because our law today “grants continuing force to the law of the past,” not the cultural or intellectual movements of the past. Sure, cultural movements, partisan motivations, ideological fights might be the cause of those old legal doctrines, but our modern law “typically” does not incorporate these extra-legal forces. Instead, it incorporates only “legal doctrine (treatises, court cases, and so on).” Baude and Sachs cite Hart’s Rule of Recognition to support the idea that the “internal point of view” leaves out the political, partisan, cultural motivations for the law: In their view, modern law incorporates only this “internal point of view” of the law, not the law’s “external” causes.

As I explain after the jump, I think but am not quite sure that I disagree with almost every part of their argument. Baude’s and Sach’s essay is, however, by far the most careful effort so far to justify a scholarly practice that has previously been followed but not much defended by originalists. For those readers who want the short version, here are my two bones to pick. First, Hart’s “internal point of view” nowhere suggests that the law consists only of “legal doctrine.” Instead, ideological, cultural, even partisan platforms found outside conventional law sources, can just as easily be the basis for an elite’s “internal” consensus of what “law” is. Second, the ideological purposes and functions of constitutional language must be part of legal interpretation of constitutional text from the outset, because (as Ryan Doerfler has persuasively argued) the pragmatic function of words is just as much part of their meaning as semantic usage.


1. Does Hart’s Internal Point of View or Rule of Recognition suggest that we should focus only on doctrinal rather than extra-doctrinal statements of past officials?

Maybe I am misreading them, but Baude and Sachs seem to me to conflate Hart’s “internal point of view” with the doctrinal point of view. Here’s the relevant passage:

Present law typically gives force to past doctrine, not to that doctrine’s role in past society. How to identify legal doctrine is actively debated among philosophers; one standard view urges particular attention to the rules recognized by “the officials or the experts of the system.” A modern lawyer, directed to investigate how the law stood in the past, might thus focus on operative legal texts and on “internal” accounts of legal doctrine (treatises, court cases, and so on), rather than on “external ” accounts of law’s wider reception and operation—unless, of course, the doctrines themselves direct attention to these widespread understandings.
A lot depends on what exactly Baude and Sachs mean by “treatises, cases, and so on,” but, if they mean that Hart’s “internal point of view” is exhausted by conventional legal sources used by courts and lawyers, then I think that they misunderstand Hart.

For Hart, the “internal point of view” on law was simply the attitude of someone who accepted some system of rules as not merely prudentially, but also as normatively, binding. (I rely on Scott Shapiro’s gloss on Hart here). In Hart’s words, "it is possible to be concerned with the rules, either merely as an observer who does not accept them, or as a member of the group which accepts and uses them as guides to conduct.” An example of the former — the “observer” — is (for instance) Holmes’ “bad man,” that is, the person who recognizes the existence of rules only “externally,” as considerations affecting his power to achieve personal goals. The latter — “member of the group” — treats the rules as normative “guides to conduct” irrespective of the sanctions that might follow (or not) from violation of the rules.

Nothing whatsoever about this “internal”/“external” distinction has anything at all to do with the distinction between conventional legal materials addressed to courts and ideological or even partisan materials addressed to the public at large outside of courts. Both can establish norms to guide conduct that the elites of a system might recognize as binding in Hart’s “internal” sense. For instance, Jefferson’s and Madison’s Democratic-Republicans regarded private banking corporations as threats to republican equality, because financiers allegedly had special inside connections that could be used to corrupt government. They sought to make this belief a part of American constitutional law not through lawsuits but through elections. Andrew Jackson succeeded in making this suspicion of federal aid to corporations into a constitutional rule for roughly thirty years (between 1832 and 1862).

Nothing in the constitutional rhetoric of Madison and Jackson denouncing banks as threats to equal citizenship found its way into any legal treatise — not even into St. George Tucker’s treatise that was most sympathetic to this typically Southern point of view. But the anti-corporate principle was nonetheless a constitutional convention that guided political elites in control of the United States for three decades. From Hart’s “internal point of view,” the theory that Congress lacked the power to grant charters to private corporations was no less “law” in antebellum America than the statements found in treatises and the like, because the elites who ran the system “internalized” this principle as a normatively binding gloss on the Necessary and Proper clause of Article I.

More generally, to the extent that modern law today borrows from laws enacted in the past, modern law must take account of the partisan and cultural movements that formed part of the normative basis for elites’ internalizing those laws as guides for their conduct. I am not sure that Baude and Sachs disagree. To the extent that they concede the point, they should also recognize that modern law (and legal scholarship) needs to pay attention to the great ideological fights and fears of the 1780s and 1790s (about, for instance, insidious popish plots of the Anglican and Congregationalist churches, stockjobbers’ corrupting influences over Congress, machinations of the Society of the Cincinnati to create a Cromwellian monarchy, and Anglo- or Francophilic treason in foreign affairs).

2. Can we understand constitutional text without considering ideological function?

There is a second reason why I believe that modern law must incorporate old laws’ partisan and ideological functions. Those functions form part of the old law’s legal meaning. There is a tendency among originalists to use the good ol’ “plain statement rule” to arrange interpretative sources in lexical order: First, look at evidence of purely semantic usage to infer textual meaning, and examine the pragmatic functions served by the text only if the “plain text” is unclear. As Ryan Doerfler persuasively argued (see especially Part I of Who Cares How Congress Really Works?), this lexical ordering makes no linguistic sense: Interpretation of text must be based on “what [the lawmaker] is trying to do” rather than just on “what the [lawmaker] is trying to say,” such that consideration of practical circumstance is built into any interpretation of text from the outset. Once one considers pragmatic function, however, one must think about all of the normative motivations behind the old laws’ words, and those motivations extend far beyond the abstractions in legal treatises and judicial reports.

Here’s an example of how semantic form must follow political function. The old constitutional rule adopted by Andrew Jackson in his Maysville Road Veto Message was that the federal government could not fund intrastate roads, because they were local improvements that did not serve the “general welfare.” Jackson’s motivation was fear of corrupting federal patronage to road-building corporations as well as worries that infrastructure log-rolling would exacerbate sectional divisions between South and West. To the extent that those ideological motivations were voiced as part of the reason for the rule, they are part of the rule just as surely as old dictionaries and corpora of contemporary texts that use the phrase “general welfare.” To the extent that modern law seeks to incorporate such an old doctrine, it must also incorporate those purposes in order to get an accurate read of the old law. (Only such an incorporation of purposes can explain, for instance, why there were fewer constitutional objections to the federal government’s’ giving states land grants dedicated to the funding of railroad lines).

Again, I am not quite sure whether or not Baude and Sachs would disagree with any of this. (Baude is the co-author, with Ryan, of a brilliant essay attacking the notion that semantics can take lexical but not absolute priority over purpose in legal interpretation). To the extent that they agree with me, then I think they would have to enlarge vastly the sorts of texts that originalists typically consider as relevant to fixing the meaning of old laws.

3. Why do originalists want to de-politicize old laws?

I will end by asking a tendentious question and offering a speculative answer. Why do the “new originalists” seem to want to de-politicize old laws like the U.S. Constitution? They seem obsessed with all sorts of lawyerly semantic stuff — lawyerly canons of construction, corpora of texts having nothing to do with politics or the constitution, etc. — that was manifestly not the concern of 18th century constitutional disputants. For the most part, early constitutional interpreters from Madison to Marshall, from Hylton and the carriage tax to Chisholm and states’ sovereign immunity to McCulloch and the Second Bank, all invoked giant, disputed principles about liberty, citizenship, rule of law, and the like to settle constitutional disputes. They did not (indeed, could not) search vast databases to see how a particular word was used in apolitical contexts. Indeed, they rarely spent much time on semantics at all. Why, then, adopt a narrow focus on legal texts that was not shared by the people who wrote and initially enforced those texts?

One reason is that originalists, like formalists in general, want to sidestep heated political disputes in favor of stable, apolitical past settlements. In a typically eloquent passage, Baude and Sachs suggest such a longing for quiet stability: they write

if the legal slate were wiped clean with every new Congress, every election would be a “Flight 93” election. Relying on past law lets us give particular government officials particular limited authorities to affect that law, thereby lowering the stakes of any one official’s selection.

I share Baude and Sachs’ desire for legal repose. Like them, I’d like to find a trove of old documents that, like some ancient deed in the county register’s office, could settle our current fights over basic issues with bare semantics and obscure legal conventions. But I doubt that the U.S. Constitution provides much in the way of such calm. Going back to the 18th century for apolitical, legalistic settlements of big issues is like going to a saloon in 19th century Deadwood to curl up with a nice cup of tea for a quiet read. The 1780s and 1790s were a constitutional barroom brawl. The Federalist and Anti-Federalists managed to create a document together only by ducking the biggest issues with abstractions and ambiguities, strategically deferring fights that could have doomed the whole project of Union.

Maybe Baude and Sachs will be able to persuade us that all of those angry fights are not really part of our modern law today. If they do, however, I doubt that there will be much meaningful old law left over for originalists to ponder.

Posted by Rick Hills on July 20, 2019 at 02:03 PM | Permalink | Comments (13)

Faculty Hiring: Wash U.

WASHINGTON UNIVERSITY SCHOOL OF LAW invites applications from entry-level or junior lateral candidates for tenure-track positions, to begin in the fall of 2020. We are particularly interested in corporate & securities law and constitutional law.

Candidates must have at a minimum a JD, a PhD, or the equivalent in a related field. In addition, candidates should have strong scholarly potential and a commitment to excellence in teaching. Duties will include teaching assigned courses, researching and publishing scholarly work, advising students, and participating in law school and university service. Diversity and inclusion are core values at Washington University, and strong candidates will demonstrate the ability to create inclusive classrooms and environments in which all students can learn and thrive. The committee will be reviewing applications submitted through the AALS Faculty Appointments Register, but we are willing to consider materials outside of the FAR process.

Although we have no deadline, applications will have the best chance of full consideration if we receive them by August 19, 2019. Application materials should include a cover letter, a resume which includes at least three references, a list of publications, and up to three pieces of scholarly work. Please submit materials to Professor Susan Appleton, Chair of the Faculty Appointments Committee, Washington University School of Law, by emailing them to [email protected]

Washington University in St. Louis is committed to the principles and practices of equal employment opportunity and especially encourages applications by those underrepresented in their academic fields. It is the University’s policy to recruit, hire, train, and promote without regard to race, color, age, religion, sex, sexual orientation, gender identity or expression, national origin, protected veteran status, disability, or genetic information.

Posted by Howard Wasserman on July 20, 2019 at 11:57 AM in Teaching Law | Permalink | Comments (0)

Ceremony and change

This week's Torah portion iincludes Hashem telling Moses that he would die before the Israelites entered the Promised Land, to which Moses responded that Hashem should select a new leader and there should be a public ceremony in which Moses lays hands on him and creates that new leader. This prompted a discussion of life-cycle ceremonies (Brit milah, baby naming, Bat Mitzvah, wedding) in which the person enters the ceremony as one thing and emerges as something else, changed by the ceremony.

Listening to it, my mind drifted to Obama's First Inauguration, in which the Chief and Obama together flubbed the oath, creating questions of whether the ceremony had successfully "changed" Obama into the President. And to questions of what are the details that define a ceremony sufficient to affect the change and how precisely must those details be followed.

Posted by Howard Wasserman on July 20, 2019 at 11:24 AM in Howard Wasserman | Permalink | Comments (3)

Friday, July 19, 2019

PrawfHacks: Top 10 mobile productivity apps and tools for law professors

The following guest-post is from Matthew B. Lawrence (Penn State-Dickinson)

Out of necessity (I have a long commute) I have found a number of incredibly helpful tools for staying productive and organized in teaching, service, and especially scholarship on the “go.”  I often find myself explaining them to colleagues at conferences and the like, and just as often find myself getting great new ideas to improve my workflow from colleagues.  So I thought I would write up my favorites for the prawfsblawg audience and invite suggestions for other great tools I might have missed.
 
Here are my top ten #PrawfHacks:
  1. “Voice Dream Reader.”  This app, available for android and ios smart phones, reads .doc or .pdf files to you in a computer voice at any speed you wish.  It is invaluable!  I find that because of my legal training, if I am sitting in front of a book/case/law review article, I dissect it.  That’s good and important, but sometimes I don’t have that kind of time and just want to “read” legal scholarship or a case, to get a sense of it or to hear all its thoughts.  This is especially true of colleagues’ drafts, job talk papers, and when learning a new field or area.  Voice Dream Reader is great for those purposes.  One caveat: You’ll want .doc files, not .pdf, in most cases; otherwise it will read the footnotes.  You can get .doc versions of law review articles on Westlaw.
  2. Digital voice recorder.  See #3.
  3. Dragon Naturally Speaking.  This software has a “transcription” mode that will convert to text voice recordings you take on your voice recorder.  You can use this to record talks you give/classes, then transcribe them for later reference.  I find that to be super helpful if giving the same talk 6 months apart.  You can also use this to write—indeed transcription is how lawyers used to write!  I find I write differently when speaking, but not in a bad way; I’m more conceptual and free with ideas, less structured.  So it is perfect when developing a topic or flushing out the arguments.
  4. Wireless headphones/airpods.  Airpods are really, really useful for calls on the go or listening to podcasts and law review articles.
  5. “Bear.”  This is an app for writing on your phone or recording notes.  With Alexa on android or Siri on iphone, you can also use it to record notes on the go—“Hey Siri take a note in bear.”  You can also add hashtags to organize ideas.  Anecdote: I was waiting for security at BWI airport recently listening to a law review article on “voice dream reader,” and had an idea for a potential future paper.  So I just double tapped my airpods (they are useful!), said “add a note in bear,” and then “[insert the idea I thought was brilliant at the time here], #topics.”  It was thereby magically added to my “topics” category in Bear, which I consult whenever I’m thinking about/weaving together a project.
  6. Podcasts.  I got the idea for my most recently published article listening to an episode of “The Week In Health Law” while still in practice.  Ipse Dixit is also terrific.  Finally, many (but not enough!!!) schools post audio or video of events and workshops they hold that can make for great listening.  Chicago is particularly good at this.
  7. Ipad with Apple Pencil (or other tablet with stylus) and a cloud service (onedrive, box, or dropx box).  We have not even gotten to the Ipad yet!  This is a key tool because it unlocks the next several…
  8. iAnnotate PDF.  This is the pdf reader I have used for years.  When I’m not listening to law review articles, I’m reading them in iAnnotate.  It is searchable.  You can highlight or add comments or markup.  You can export ONLY your highlights and/or comments for future references.  You can have 12 tabs open at once.  It is great.  I also grade papers and mark up drafts, etc., with this.  There are times when the printed page is better, but the convenience of not having to print or lug around the things you printed, and being able to find them a year later (because saved to the cloud) is transformative.
  9. Good Notes.  I could go on, but I love to write notes in meetings, etc., by hand.  I can do this in good notes on ipad with an apple pencil.  It feels like I’m carrying around 12 notebooks at all times that I can quickly switch between.  One on the adjunct faculty committee, one on my current work in progress, and so on.  This app is also a great sandbox to draw diagrams, charts, sketches, etc., for inclusion in powerpoints or classroom use.  They might be really rough but they can get the point across!
  10. Office suite.  Microsoft office, excel, and powerpoint all have really good apps that works across phone, tablet, and pc or macbook.  They have come a long way and can now even handle track changes (though not macros).  I’m not proud: I have reviewed a law review’s (late round) edits on a draft article on my iphone while standing in the lobby waiting for my daughter’s ballet practice to finish.

That’s my list, but I’d love to hear others’ ideas for #prawfhacks!

Posted by Howard Wasserman on July 19, 2019 at 12:20 PM in Teaching Law | Permalink | Comments (6)

Interdisciplinarity in the Early Years

Hi folks. As I mentioned in my introduction, I’m a legal anthropologist at Alabama Law, and I work in the areas of labor & employment law (especially the gig economy) and comparative law (especially India). In this first post I want to address a concern that I’ve heard voiced by a handful of peers. I’ll limit my comments to my own experiences, but I’m interested in hearing best practices for both junior folks in this situation and for the law schools that hire them.

Even though I felt well-prepared for the market it took time for me to fully understand that I would indeed be employed as a professor after my fellowship* ended. Once it sank in, I started worrying that I would lose my interdisciplinary identity or one of my substantive areas of interest in the course of doing what early-career law faculty are mostly expected to do: publish a lot of high-ranking, mainline law review articles. (I still hold out hope that the worrying decreases post-tenure.) I value mainline law review articles—I’m working on a couple right now—but I also value fieldwork (which takes time), anthropological analysis, and my India work, with the latter two being largely oriented toward law-and-society type venues. If all I focused on during the next 4–5 years were projects that fit easily within the format and timeline of law review publishing much of what I bring to the table would fade away. For both personal and professional reasons, I do not want that to happen.

Fortunately, though it’s too early to make definitive predictions, it seems unlikely that this “atrophy” worry will come to pass for reasons of institutional support, complete happenstance, and of course my own desire to avoid the problem. After the break, I’ll give a couple reasons for my cautious optimism, both of which relate to my identity as a legal anthropologist.

Institutionally, our Dean has made it possible for me to use my pre-tenure leave to conduct fieldwork (rather than write), to use that leave earlier than normal, and to switch semesters for the leave when grant cycle snafus required me to do so. Likewise, our university-level grants committee awarded me a seed grant to pursue some preliminary research for a new set of projects in India—field research is cheap, but not quite free—so I was able to spend almost 6 weeks in Delhi at the end of this academic year. This kind of scouting trip is essential to developing competitive applications for major grants, but it also happened to give me ideas for the two law review articles that I’ll be working on in the immediate future.

Conversely, happenstance and my own interest in maintaining ties to other legal anthropologists have made it possible for me to expand a small experiment in scholarly community-building into what will become a formal event with publication outcomes. During my last fellowship year, I was thinking really hard about the intersection of law and anthropology in preparation for the market: what kinds of projects to pursue, what timelines to juggle, and even how to adjust my writing style while retaining some sort of voice that was recognizably my own. It just so happened that many really excellent junior legal anthropologists were thinking about these things at the same time. I started what I’ve been calling a “traveling roundtable” of young scholars who are seriously committed to thinking with both anthropology and law; the roundtables have been trying to arrive at some clarity—consensus is too strong a word—as to how this can and should be done. In other words, we’re asking both why anthropologists should care about law and why law folk should care about anthropology.

So far, we’ve held roundtables at the 2019 Law & Society Association meeting and the 2018 American Anthropological Association meeting. But—since there are only so many times you can hold a conference roundtable on the same topic—I’m now organizing a one-day symposium that will bring most of the roundtable participants to Alabama Law. We’ll workshop essays addressing the roundtable questions and, in keeping with the commitment to “speaking to both sides,” I’m planning for the essays to be published in two special issues (one law review and one peer review law & social science journal).  

It’s definitely been scary to do some of these things so early—special issues, continued fieldwork, event organizing—because doing so does not replicate the “play it safe” approach that many faculty candidates are understandably advised to take when they go on the market and that would be natural to follow as a junior prawf. As a candidate I also received some form of that advice and, to the best of my ability, I took it. As a first year prawf, I’ve tried to mitigate the risk of pursuing more unusual projects by also working on law review articles and other publications at the same time, although of course it remains to be seen whether this approach will work out. Nevertheless, once I started making the transition from candidate to prawf I felt strongly that ignoring any of my research interests or methods for too long would be both unwise and nearly irreversible.

But this is just one approach. Assuming that many interdisciplinary legal scholars want to remain interdisciplinary, and that it's not entirely feasible to put interdisciplinarity on "pause" for the years leading up to tenure, how should they—and their law schools—approach the issue?

 

*Shout out to the Penn Sharswood program, which was both structured wonderfully and introduced me to several people who have become much-valued friends and mentors.

Posted by Deepa Das Acevedo on July 19, 2019 at 10:35 AM in Jr. Law Prawfs FAQ, Life of Law Schools | Permalink | Comments (0)

Interview with Andrew Williams from NYU Law on NYU's Lawyering Program

Next up in my series interviewing VAP and fellowship directors is Andrew Williams, who is the Director of the Lawyering Program at New York University School of Law.  An edited transcript of our conversation is below, and I have invited Andy to respond to any questions in the comments.  Thanks, Andy, for participating in this series!

You can read more about the structure of these interviews and other caveats related to them here.  For more information about law faculty hiring generally, check out the section of the AALS's website devoted to this topic at https://teach.aals.org/.


Q. Can you tell me your role with the NYU Lawyering Program?

A. I am the director of the program.

Q. I’d love to take the fellowship program chronologically, starting with the application and then moving into the fellowship process itself and then the job market. When does the program start accepting applications?

A. We accept on a rolling basis. Our website job announcement says candidates are strongly encouraged to apply before October 1st. We actually have two different avenues.

First, we accept direct applications through our website, through Interfolio. Our website lays it out: the applications have to have a resume, a transcript, a writing sample, references, a cover letter. A research agenda is suggested but not required. Those applications come in directly, and again, we recommend them coming in before October 1st, but we accept applications after that depending on our hiring needs and how our interview process is going.

Second, we interview through AALS. We reach out to some people for applications based on FAR forms, so we go down to AALS every fall and do interviews there as well.
Those are the two ways that folks get in the door.

Q. I’d love to follow up on the AALS path. Are these candidates who are also simultaneously applying for entry-level positions? Or are these candidates who were in the AALS process solely or perhaps primarily to apply for a fellowship program?

A. Both. And I would say historically, we would often be interviewing people at AALS who were primarily not applying to other fellowships, but they weren't necessarily ready for the full teaching market yet.

Q. Do you reach out to them? Have they reached out to you? Obviously they applied through AALS, but have they also reached out to you directly?

A. Again, both. We go through the FAR forms and reach out to folks who may not know about our program and encourage them to submit materials, and then we review those materials and do interviews at AALS. Some applicants know about us and apply but through the AALS process. More and more, folks are aware of fellowships and the various opportunities, so I would say the number of people that we interview that are primarily looking for tenure-track positions at AALS has probably decreased. But we're still interviewing people who are applying for a range of positions.

Q. How are the interviews structured? Are there first round interviews? Second round interviews?

A. If we interview someone at AALS, that is a first round interview. It tends to be more informal. We're usually not doing a “summarize your job talk” interview. We're asking them why they're interested in the program, we're talking about what we do in Lawyering, we're asking them about their practice experience and teaching experience, and we ask questions about their scholarly work.

Then some of those applications from AALS join the direct applications, and a committee reviews all of those materials. The committee decides who's coming onto campus for an on-campus interview.

Our on-campus interviews typically last half of a day, and it's a series of interviews with two or three people in each interview. The interviewers are made up of the hiring committee, current Lawyering faculty, and students. Those interviews sort of take on the personality of the interviewers. Some interviews are more about scholarship, some are about experience teaching, and some are about practice. It depends on the makeup of any one of those particular interviews. But over the course of the time, candidates will need to be able to speak to all of those things.

Q. There's not a job talk as part of that, is there?

A. Not a formal job talk, no. It’s a half-day of short interviews. So we're generally looking for three things. Teaching experience and or potential as a teacher, which often means can you speak to working with junior attorneys or other mentoring experiences or actual teaching? We're looking at practice. Can you speak thoughtfully about practice? Do you have some rich practice experience? And scholarship, or potential for using this experience to build to something new, either specifically academic scholarship or it could be something else. And I can talk more about that later.

And so if a person comes in for a series of interviews in the morning, one of those interviews will be someone asking a series of questions about a scholarly piece. That's going to feel more like a job talk, but it's not going to be a formal job talk.

Q. Okay. Great. Let's take each one of those three things that you talked about one at a time, starting with teaching. What are you looking for on the teaching side? How are you gauging somebody's teaching ability?

A. I mean, that's the hardest of the three, frankly. But we're asking questions about work in a teaching/supervisory capacity. And so some folks do have some experience teaching, and that comes in a range of forms. Some people can really speak to the type of feedback or mentorship they gave in practice to more junior attorneys. Others can speak to the types of things that interest them about teaching and can articulate what they want to do but haven't had the opportunity to do before. So we ask questions in that world, and there's no one thing that we're looking for. There's a wide range of answers that people can give.

Q. How about on the practice side? How much practice experience are you looking for? I'm sure it varies, but in general.

A. Historically, we have a minimum of two years plus clerkship or three years. Our course is a simulation-based course. It's pretty teaching intensive, and it really is about thinking about practice and teaching the students to think about what it means to be a lawyer. And so we want to hire people who can talk about not just how do you write a brief, but also why does one write a brief this way, and what are you trying to achieve and what are your client's goals? We want someone who can talk about working with clients, and who can talk about those dynamics.

And we want someone who can speak to what it was like, what the pros and cons of being a lawyer were, what were the great things and the hard things? Someone who really shows some self-reflection about practice experience. Not everyone we hire will have done all of the things that we teach, but we want people who can really be thoughtful about what it means to actually be a lawyer.

Q. On the scholarly side, if we were to step back and think about your successful candidates, the candidates who make it into the Lawyering Program, how much scholarship do they tend to have before they start in the Lawyering Program? Do they have a published paper, more than published paper, just a draft? What's the norm, if there is one?

A. I don't know that there is a norm. If you can tell, we try to look pretty holistically at our candidates. Sometimes it has to do with where are they coming from and what is it that they want to do. And so it really is a wide range. We want folks who come in to be able to articulate what their interest is and what they're going to do with their time here. And often, that means, “I wrote a piece while in practice and I'm working on this other piece, and I've got this research agenda.” Sometimes it means, “I really just started thinking about what it means to do scholarship relatively recently. I want to do clinical teaching, and I've done some strong practice-oriented writing, but law review articles are new to me.”

Certainly, for any of those three things that we're looking at, the more the person can put forward, the better they're going to be as a candidate. But we've hired folks with a number of published pieces of scholarship, and we've hired people with no scholarship at all coming in.

Q. And do you have a preference for candidates with Ph.Ds.? How do you think about Ph.Ds. in the hiring process?

A. Again, it's going to be part of a package, right? Does the person have a Ph.D. but also have pretty rich practice experience? If they've been able to do both, that's a really strong candidate. But if they have a Ph.D. but they don't have any practice experience, then that's not someone that we're going to be in a position to hire. It's a good thing for a candidate to have, and we've hired plenty of people with Ph.D.s, but we've certainly hired significantly more without them.

Q. Does the program have any preferences for candidates in particular curricular areas? I've been a hiring chair for a long time. People often say that candidates in the corporate area or the criminal law area are in demand on the entry-level market. Do you take that into account when you're selecting candidates?

A. No. We do like to have a faculty with a range of practice experiences. We work as a faculty a lot. It's a very collegial faculty generally, but we also work together on curricular development. And so the more different areas of practice experience we have, the better. But I'm not sure I would say that necessarily plays a role in why any particular candidate gets hired.

Q. Okay. And do you make any special efforts to hire candidates from diverse backgrounds?

A. Absolutely.

Q. In what way?

A. We try to do as much outreach as we can. We reach out through listservs and organizations and alumni organizations. One of the reasons that we go through FAR forms and interview at AALS is to find candidates that might not know about us as a program, and who come from a wide range of backgrounds. Those are probably the two primary ways, but it’s definitely a priority for us.

Q. As I talk about this interview series on the blogs, one of the questions I keep getting is from candidates who say, "What if I don't have the traditional markers of being a law professor? Maybe I didn't go to Harvard, Yale, NYU, et cetera. I didn't do an elite clerkship. How can I stand out in the application process?" What advice would you have for those candidates?

A. We have absolutely hired from a range of experiences and a range of law schools. We're certainly looking for people who bring something, who are going to bring a richness to our program. And so if someone has some really interesting ideas and has done some really interesting practice, that is going to weigh really heavily for us. It’s not the most helpful advice, but I want to say that the way you stand out is by standing out, by having something about you that is interesting and compelling. That could come from any number of places. We certainly have hired candidates who haven't necessarily followed the most traditional path to academia, and we've then placed those candidates well on the other side. But to try to articulate what's the one thing or two things someone can do, that's a little bit harder.

Q. So we've talked about a variety of criteria that you and your committee use. Is there anything else? Any other criteria that candidates should keep in mind as they're submitting an application?

A. I think narrative matters. The committee wants a strong sense of who this person is, why this is what they want to do, and where they want to go from here, and a story that makes sense. It's a temporary position. It's a position that's practice-focused and teaching-intensive. And so someone who is able to articulate, this is what I've done and this is where I'm headed, and this is how this program really fits in that journey for me. I think that matters to our committee.

Q. Let's go back to some of the nuts and bolts. How many applications do you typically receive and how many candidates do you typically bring to campus to interview?

A. After reviewing the FAR forms and receiving materials for AALS, we usually end up doing initial interviews with about 8-10 people there. And then we receive, generally, 100-150 direct applications each year. We ultimately interview probably around 15 people on campus each year.

Q. How many fellowships are available total, and how many positions are available each year?

A. So it varies. We have 15 positions, 15 members of Lawyering faculty. And they stay two to three years, with a maximum of three years. So we hire roughly five every year. But it varies. We’ve had years where we've hired two and years where we've hired seven.

Q. And by when in the calendar year do you typically fill the positions? When would you say you're done?

A. We try to be done at the start of the spring semester. The reality is that, again, because we're a transitional program, we try to be flexible with our faculty as things come up. So if I have someone who is in the second year of the program and it's February and the perfect clinical job opens up, then we may end up with an opening that we didn't expect.
Typically we try to be finished hiring at the start of the spring, but we don't always get there.

Q. When you said that the fellowship lasts two to three years, what does that depend on? Is that at the fellow's discretion?

A. I've never had to make it not at the fellow's discretion. It's a series of up to three one-year contracts. I have not yet had to be in the position to not offer a contract for another year, so it has been at the fellow's discretion.

Q. Are you comfortable sharing how much the fellows are paid?

A. It’s $66,000 in the first year. And each renewal historically includes an annual merit increase, so a small percentage increase each year after the first full year.

Q. And do they receive health benefits?

A. Yes. They are eligible for the standard benefits of the law school, including health benefits.

Q. How about access to university or subsidized housing?

A. No. Occasionally we get lucky and an apartment opens up, but it's certainly not a guaranteed.

Q. How about travel funding or other professional development funding?

A. Yes. Conference funding. We try to fund as many conferences as we can.

Q. Is there a standard budget that they have for that?

A. Yes and no. The first conference for everyone is no questions. And then after that we look at how our collective conference budget is working and whether someone is presenting at the conference. That said, ultimately I think we are able to accommodate all conference requests. We try to make sure folks can go to any conferences they need to.

Q. And are they allowed to hire research assistants?

A. Yes. They are encouraged to.

Q. Obviously we know that going on the market is expensive. Are they reimbursed for AALS-related expenses?

A. Absolutely. AALS is treated like a conference. So it would be like going to any other conference.

Q. Okay. Now that was a lot of the nuts and bolts. Now let's turn to how to make the most of a fellowship year. How often do the fellows themselves get together, and in what capacity? Do they have their own workshop series or something like that?

A. So I'll start in June, because the position starts June 1st every year. We do a couple of weeks of introduction and curricular training and other workshops. The first week would be just the new people, and we go through the curriculum, and the second week, adding in the returning people. And then throughout the year, starting in mid-August and then as we approach each simulation throughout the year, we have Lawyering faculty meetings to talk about issues in the classroom, pedagogy, curricular decisions for the next unit, walking through it, different approaches different people have taken in the past, et cetera.

So that's sort of on the teaching side. During our June workshops, we also have sessions on making the most of your time in Lawyering: producing scholarship, getting to publication, and navigating the job market process. We also have a weekly Lawyering Scholarship Colloquium that happens all year. We invite other fellows from around the law school to participate in that as well, and the scholarship colloquium can be anything from “Hi, I'm brand new and I've got three ideas that I've got in abstract form and I want to talk them through with some people” to “I've got a job talk next week.” Most sessions fall somewhere in between, with a fellow circulating a draft or detailed outline before the session and getting detailed feedback during the session.

We also all work together in a Lawyering suite. It's a collaborative and collegial environment, so there's a lot of interaction. Stopping by each other's offices with questions and ideas for class or “I'm working on this paper, can I draw something out on the whiteboard and you let me know what you're thinking?”

Q. Do the other fellows from NYU participate in that scholarly workshop?

A. They do.

Q. Do the fellows participate in the broader intellectual life of the school? For example, NYU's broader faculty workshop?

A. Yes. So everything that is happening at the law school is open to Lawyering faculty, as with anywhere else. Informal faculty lunches and faculty workshops happen every week, and Lawyering faculty members are encouraged to attend. And, for example, the criminal law community here has the Goldstock Seminar every Tuesday and the Hoffinger Criminal Justice colloquium, and our faculty members are always really well integrated into that process.
How many different activities our folks are involved with in terms of the intellectual life of the law school sort of depends on how active that particular part of the life of the law school is. But everything is available, and it’s a very active place.

Q. Who actually supervises the fellows? Are you their direct supervisor? Is there a committee, someone else?

A. I am.

Q. Are they matched with a mentor or otherwise guided towards faculty in their area of interest? And if so, how? How does that matching happen?

A. There's not a formal mentorship. The guiding happens in a few ways, either through me and making connections with people in their practice area, or the practice area group itself if it's a particularly active one, or it could be a member of our hiring committee connecting them up with someone that they know. So we try to find different ways to connect people up to people here who will be helpful contacts for them to develop organic relationships with, but how that connection gets made sort of varies from person to person on both sides.

Q. And are they also given assistance making connections outside of the law school with faculty in their area?

A. For people who were not students at NYU Law, of course they are able to go back and reach out to the people from their former institutions. We also have an active network of former Lawyering faculty. I try to bring former Lawyering faculty in for our general workshops or during the year or set up opportunities at conferences.

Q. Okay. And how about assistance with their specific papers? You talked about the workshops where they can present their papers. Do they have people who will sit down, read their drafts, give them comments?

A. Yeah. And I think a lot of that does come through relationships developed here over time. Some of it is through these connections that we talked about, whether with former Lawyering folks or people here on the faculty. And then also our Academic Careers Program here at the law school has a number of different events that vary every year, including at least two opportunities each year specifically dedicated to being paired with a faculty member for detailed draft feedback.

Q. Let's transition over to the teaching side. You mention that they teach in the legal writing program. Tell me about those teaching responsibilities. How many students do they have? How many hours does that class meet?

A. It’s a yearlong course. It's 28 students, the same 28 students all year. And it's built around a series of simulations. So it starts with drafting an argument, and then interviewing a witness and drafting an affidavit, and then interviewing a client, doing the research memo for the client and counseling that client, often with a small mediation component. In the spring there is a transactional negotiation and then the traditional brief and oral argument. So there are a lot of writing components to it but also a number of non-writing components, other experiential components.

The course meets typically three times a week. There are certain times of year when we have, for example, student conferences on the writing, and we provide detailed feedback trying to get the students to reflect on their writing choices on both initial and revised submissions. So, especially in the fall, there may be conferences stacked up at different times of the day as well. We teach from essentially mid-August to just before Thanksgiving, and then we teach from mid-January until mid-April. There's no final exam. It's a for-credit class, not for a grade. And so when our work is done for the semester, we're done.
But certainly at the beginning of the fall, it's a pretty teaching intensive course, which is why we try to spend a lot of time thinking and talking about teaching.

Q. And are they the ones coming up with the assignments or the curriculum for those classes? Or are there other resources that they draw on for that?

A. It's a mix. We have a pretty hefty set of materials, both in the global sense of “These are the large simulations” and also “Here are some ideas of what you might want to do in your classes leading up to the simulations.” It is a course that you could come in and teach entirely from pre-existing materials.

That said, we have a lot of flexibility for coming up with new approaches and new ideas. It could be someone coming to one of our faculty meetings and saying, "I really don't love this third class that a lot of us do on how to counsel a client, and I've come up with this new idea.” Or it could be like today we were discussing as a group how to revamp our negotiation exercise and maybe come up with something new. So there is an expectation of civic participation, but also I try not to put the expectation on our folks that they're going to have to be doing a lot of curricular development on their own. I want them to be a part of the conversation, but I don't want that to become the focus of their time. Between the scholarship and the teaching, there are enough other responsibilities.

Q. Yeah. Do people ever sit in on their classes and give them feedback on their teaching?

A. I do. And we do informal, prose-based feedback from students in the fall that's not really meant to be a course evaluation, but more a series of questions that professor wants to ask their student about the semester. I go over those with our folks at the end of the fall, and then at the spring, at the end of our actual formal course evaluations, I sit down with folks and talk through those evaluations as well. And unless our schedules conflict, I try to sit in and observe the teaching, usually folks who are on the market first, so that I can get a last snapshot of their teaching before they go on the market, and then new folks, and then folks in the middle.

Q. And are they ever allowed to teach a class outside of the legal writing program? A course, for example, in their doctrinal area of specialty?

A. It happens. It's not a guarantee. But a range of opportunities along those lines have occurred, from supervising a team of students within a clinic or teaching a unit in a clinical course, to co-teaching an externship with a member of our faculty, to co-teaching a doctrinal law course with a member of the faculty. So yes, there are a range of opportunities that have come up, and as with any new opportunity, I always try to stay open to how we can make those things work, but there's not a formal process in play for making it happen.

Q. Do you have a sense of the percentage of time that they should spend, or they tend to spend on their scholarship versus their teaching versus any other responsibilities that they have?

A. I don't. And in part because I think it varies a great deal. It varies a great deal based on the interest of the person. It varies from year to year. It varies based on time of year. We have some people who every Tuesday is the day that they really focus on scholarship all year long, and other folks who make it a point to do it a little bit every day, and some folks who say all I'm going to do this summer and over winter break is write, but during the heart of the semester I'm going to focus on teaching. It does vary from year to year as well, where they are in the program. So yeah, it's a tough thing to figure out how to average out. Over the course of the year, however, Lawyering faculty have almost 4 months in the summer and another 7-8 weeks between semesters when they aren’t teaching at all; so that gives folks a lot of independent time as well.

Q. I've noticed a couple times you've talked about clinical faculty teaching the program. What's the breakdown between Lawyering professors who are interested in the doctrinal path and those interested in the clinical path?

A. So historically, I would say probably 40% doctrinal, 40% clinical, and 20% a wide range of other choices, which might mean shifting from being a public defender to doing criminal justice policy, or going into working in law school administration or legal research and writing or going back to practice. So it's probably 40, 40, 20, sounds about right.

Q. We’ve gone through a lot of the details of the program. Let's step back for a moment. What do you think makes the NYU Lawyering Program stand out from other VAPs or fellowship programs? Imagine you were talking to a candidate with lots of fellowship options, how would you try to sell the Lawyering Program?

A. Our community is really outstanding. I think we've done a really nice job of hiring over the years. The result of that is, I think, it's a really strong group of people, and it's a pretty large group of people because we have 15 folks at any time who are here full-time. And they really are an incredible resource for each other. Again, whether that's an issue in the classroom or a thought about teaching or scholarship or the market or how do I pitch this piece to journals, or whatever it is. Once folks have left to go on to tenure-track positions and go elsewhere, they usually miss the colleagues the most. I think is one of the biggest strengths that we have.

I think the second is really teaching. For folks who really are focused on being in a place where there's a conversation about what actually works in a classroom and how do we teach, and how do we think about pedagogy, and really want that experience of doing a lot of teaching in the classroom, I think it's a really great opportunity.

Q. And do you have any other advice for fellows when it comes to making the most of their time in a fellowship or a VAP? What have you seen the people who have been really successful on the entry-level market do?

A. I mean there's just so many ... and I know I keep coming back to this, but there's just so many different journeys. Obviously putting in the time and doing the scholarship matters a lot. Being engaged and having an entrepreneurial spirit and really doing the outreach to get to know people in your area, and frankly people outside of your area, to just talk about ideas for scholarship helps a great deal. But other than that, I really do think there are a lot of ways to do this well and do it in an interesting way. And we've placed people who have taken a lot of different approaches. And it's been really interesting, frankly, to see how that plays out, that there isn't necessarily only one right or one best way.

Q. That provides a good transition over to the job market process. What type of mentoring do the fellows receive related to the hiring process?

A. I think it's drawn from the sources that we've talked about. It's going to be a mix of people here and at the institution you came from if you were somewhere before, the Academic Careers Program, current faculty, and Lawyering alum. ACP pairs people going on the market with people who were recently on the market. During our Lawyering workshops this last week, we brought in former Lawyering folks, some who have been on hiring committees or are on hiring committees at different schools to talk about their experiences and the process and what they've learned since then. We send candidate materials out to our former Lawyering faculty. So it's going to be drawing from all of those different resources.

Q. And are they given an opportunity to moot their job talk? You talked about an opportunity within the fellows workshop. How about in front of faculty or others?

A. Absolutely. And that's all arranged through our academic careers program. ACP puts on a Job Camp in early fall where Lawyering fellows going on the market that year do a mock job talk, they have faculty member specifically assigned to them to moot the job talk and give them feedback, and often there are other fellows and sometimes other faculty in the room participating as well.

Q. Okay. And does that include opportunities to do moot mock screening interviews as well?

A. Yes, ACP arranges mock screening interviews with a faculty member as part of Job Camp.

Q. Do they receive feedback on their application materials, on their FAR form, etc.?

A. Absolutely.

Q. Yeah. Do you happen to know the percentage of Lawyering fellows, let's say over the last 10 years, who have ended up in entry-level tenure track positions?

A. We’ve been lucky, and as the market has changed we’ve continued to be able to place well. Almost all, and maybe all, of our people that have gone on the market have ended up in either tenure-track or long-term contract positions, (given that a particular school may not have, say, tenure-track clinical positions.) For example, in 2016 we hired an unusually large group. After two years, two took teaching positions and a third found a great appellate practice opportunity. This year, three more went on the market and took full-time faculty positions while one chose to apply for (and received) a more specialized fellowship. Every year looks a little bit different because we encourage people to find the right opportunities for them, but looking back over the 50 or so people who have come through over last ten years, we’ve placed roughly 20 doctrinal faculty, 20 clinical faculty, and then a handful of people who have chosen to continue on with skills positions, move into law school administration, or return to practice. Whatever path they choose, we’ve been very fortunate that our people are able to use their time here to transition into the next step they want.

Q. I would love, if you're willing, to ask a couple of questions related more broadly to the rise of VAPs and fellowship. I don't know if you saw the data from this past hiring year, but 96% of people hired for entry level doctrinal positions have either a VAP, a fellowship, a Ph.D. What do you think are the benefits of this process, and what do you think are the costs?

A. It's interesting. I don't know if I've thought of it in terms of benefits and costs as much as the fact of watching it happen. I think there's a real benefit to having some space and time to work on scholarship and on teaching. The legal profession, when done right, and especially because we're hiring people from practice, takes an incredible amount of work. I mean, to do the job well, it can be consuming. And so having, at least on this fellowship side, having these transitional programs makes a lot of sense to me for people to reflect on and reframe how they're thinking about things.

I feel like the Ph.D. question is a different question. One of the really interesting things about legal hiring right now is that law schools seem to be hiring for a range of positions that require a range of backgrounds and skillsets. And so I think it makes sense to have people who are taking a number of different paths and taking the time to develop expertise in a range of areas. So you would have clinical fellowships, Lawyering, Ph.Ds., a combination, et cetera. It makes sense to me.

Q. Have you heard the criticism that VAPs and fellows may get too much help on their scholarship from people on the faculty wherever they're doing their VAP or fellowship, and therefore it's hard for hiring committees to know how much of the work and ideas come from the VAPs or fellows themselves?

A. I have not heard that before.

Q. Okay. So it's one of the things you often hear when you're on the hiring side, is people wondering, essentially, how much of these ideas really come from the fellow, and how much of this is being fed to them from the faculty at the school where they are? Do you have a sense on that?

A. I mean, I may be speaking naively here, but I don't know. I would be surprised. I guess I can put it this way. When we're interviewing folks, whether directly or through AALS, we tend to see people who don't just have interesting ideas, but who are also really invested in those ideas. They're pursuing these scholarly interests that they've often had for quite some time and have been working on. And the pieces of scholarship that those ideas develop into, that become their published pieces and the things they take on the market, tend to follow ... obviously there are tweaks and developments and people change course, but they tend to follow who we thought they were. In a good way. So I don't know. I would say that has not been my experience.

Q. Last question for you. Given that life is zero sum in so many ways, obviously time spent in a fellowship is not spent in, for example, in practice. What do you think about that trade off, especially given that we're in the business of educating lawyers?

A. I mean, because I am specifically in a program that is all about thinking about practice, and we really hire for folks who we feel like can be thoughtful about practice … my bias is toward hiring people who can be thoughtful about practice in order to educate people on how to be lawyers. That said, as is probably not surprising from the rest of this conversation, I do think there are any number of approaches. I don't think it's a terrible trade-off that some folks are going to have more practice than others, and people are going to approach legal education and legal theory and legal practice in different ways. I think that is part of what makes a law school really interesting, the mix of ways of approaching the ideas, some that are more practice-oriented and some that are more theory-oriented. I think that's part of the genius of law school. I think one of the real benefits of the Lawyering program is in encouraging people to really emphasize pedagogy and becoming thoughtful, skilled teachers as well as understand their own scholarship and the scholarly community generally. So that when the Lawyering faculty members go on to permanent academic positions they are prepared to incorporate both.

Q. Anything else that you want people to know about the NYU Lawyering Program or about the state of law faculty hiring more generally?

A. I don't think so, but anyone thinking about applying or who wants to know more should feel free to reach out to me. I’m always happy to answer any questions that come up.

Q. Okay, that's great. Thanks, Andy. Take care.

Posted by Jessica Erickson on July 19, 2019 at 06:39 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (2)

Thursday, July 18, 2019

Remembering John Gardner

The following guest post is by Eric Miller (Loyola-LA)
 
Many of you will have heard the sad news that John Gardner died on July 11, 2019. John was the Senior Research Fellow of All Souls College, Oxford, and former Professor of Jurisprudence at Oxford, one of the major positions in legal philosophy in the Anglophone world. He was a kind, generous, brilliant, fun person, and influenced, directly and through his writings, a generation of legal scholars.
John and I lived on the same street in Glasgow, and went to the same school (Glasgow Academy), and he was my thesis supervisor when I went to Oxford. He stood on the side of social justice in ways big and small, and strove to include and support the people in his orbit. For example, I got the impression during our time together at Brasenose that he was was working behind the scenes to transform the college's deserved reputation as a bit of an upper-class sporty frat house into a place where students of all backgrounds could flourish. He taught a wonderful jurisprudence seminar with Anthony Honoré, and the two of them together produced an amazingly kind and supportive intellectual environment for those lucky enough to attend. His work ranged from the most general of analytic jurisprudence into the specific duties of police officers, and he covered topics in tort law, criminal, criminal procedure, constitutional law, discrimination law, and beyond. 
 
We didn't see much of each other after I left Oxford except for a brief sabbatical of mine in 2012. I am sure there are many others on this listserve who were closer to him academically and personally. But I have continued to be greatly indebted to his work and his example as a person and a professor, as I am sure have many others, and I wanted to make sure that his many friends and admirers had a chance to celebrate his life. 

Posted by Howard Wasserman on July 18, 2019 at 06:23 PM in Teaching Law | Permalink | Comments (0)

Wednesday, July 17, 2019

CFP: The Resiliance of International Law

EMERGING VOICES PANEL - CALL FOR PROPOSALS

International Law Weekend 2019: The Resilience of International Law

DEADLINE: JULY 29, 2019

International Law Weekend 2019 (ILW 2019) calls on scholars and practitioners to address the resilience of international law. The conference will explore international law’s capacity to preserve the rule of law, promote both peace and justice, and maintain stability in the face of growing fault lines. The world is changing. ILW 2019 seeks to answer whether its theme—The Resilience of International Law—is a question or an affirmation.

The ILW Organizing Committee invites the submission of abstracts relating to “The Resilience of International Law.” We will select several abstracts for presentation at ILW 2019 as part of a panel of new professionals. The abstracts may be based upon ongoing work. While all submissions are welcome, preference will be given to papers not already published. Eligibility is restricted to applicants working in the field of international law for five years or less. Applicants should be ABILA members at the time of their presentation. (To join ABILA, please visit: https://www.ila-americanbranch.org/accounts/reg_plans/.)

Applicants must submit the following in a single PDF document:
(1) a 500 word abstract of their paper;
(2) a cover letter describing their professional development and a statement explaining how their submission fits with the conference theme; and
(3) a curriculum vitae.

The submission deadline is July 29, 2019. Submissions should be sent to [email protected] with the subject line “Emerging Voices - ILW 2019.”

Questions may also be submitted to: [email protected]

Submissions will be competitively selected in a peer review process. Applicants will be notified by August 30, 2019.

ILW 2019 is scheduled for October 10-12, 2019 in New York City and will be held at Fordham Law School. Accepted applicants will be invited to present their papers at the Emerging Voices panel, which will be chaired by a senior scholar or practitioner. Accepted applicants will be required to pay for their own travel and lodging. A panel member who is only attending their individual panel is not required to register for the conference or pay the registration fee. If they plan to attend other panels, we do ask that they register for the conference and pay the fee.

Posted by Howard Wasserman on July 17, 2019 at 06:23 PM in Teaching Law | Permalink

My civil rights course, in one case

This opinion by Judge Easterbrook is a fantastic encapsulation of most of my civil rights course.

Dad loses custody of kids because of state court decision, made in part on testimony of court-appointed psychologist; court strips custody, limits visitation to supervision-only, and twice declines to rescind supervision-only. Dad sues psychologist in her "official capacity," alleging that state child-custody law violates the First and Fourteenth Amendments.

Spot the many, many doctrinal problems with this lawsuit. I think I may use this as one grand, theory-of-everything hypo at the end of class.

(I especially like that, in rejecting plaintiff's argument that he has sued the state through an official capacity suit, Easterbrook talks about Will and states not being § 1983 "persons," rather than the Eleventh Amendment. Courts consistently get this wrong in § 1983 cases).

Posted by Howard Wasserman on July 17, 2019 at 06:14 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink | Comments (0)

Tuesday, July 16, 2019

Remembering Justice Stevens

Justice John Paul Stevens died Tuesday, at age 99. He is a big deal around Northwestern Law, where I went to school. The award for top GPA is named for him and his official Court portrait was on display in the library until his retirement. And in Chicago, where he was at Wrigley Field for Babe Ruth's "called shot" in 1932 and got to see the Cubs finally win the World Series in 2016.

On an instant reaction, how will Stevens be remembered as a Justice? He is the third-longest serving Justice, just shy of 35 years, trailing Douglas and Field. The easy political story is that he was a Republican appointee who became a leading liberal light on the Court, following in the shoes of Brennan and Blackmun, but on a more sharply divided Court. For purposes of one of my current projects, he spent 16 Terms as senior-most Associate Justice in frequent disagreement with the Chief, one of the longer such periods in the Court's history; this gave him the assignment power in divided cases in which a swing Justice (usually O'Connor and/or Kennedy) switched.

I wonder what opinions will define his legacy on the Court. We do not associate him with particular doctrines (as with Scalia) or particular opinions (as with Blackmun and Roe). He stuck us with Pacifica. He famously dissented in the flag-burning cases, "flipping" positions with Scalia, and in Citizens United, where the majority opinion outraged him. He wrote Reno v. ACLU, which, while not rhetorically memorable, was a more significant decision in allowing the internet to thrive as an open medium. He wrote Claiborne Hardware, which may gain new relevance in challenges to anti-BDS laws and attempts to use civil liability against Black Lives Matters protesters.

I did a Westlaw search for his most-cited opinions. He wrote Apprendi, the first move in the push to returning control over sentencing to juries. He wrote the opinion establishing Chevron deference, a doctrine in danger of overruling by the current Court, but not associated with him by name. He wrote the opinion in Sony v. Universal, which held that VCRs did not infringe copyrights. He wrote Clinton v. Jones for a unanimous Court, which had significant political consequences, but will not stick to him. And while not an opinion for the Court, his "ask me later" concurrence in Asahi means the Court did not, and still has not, solved the stream-of-commerce v. stream-of-commerce-plus problem for personal jurisdiction.

Update: In the realm of opinions that angered people, Linda Greenhouse's Times obit points out that Stevens wrote the majority in Kelo. She also suggests that Stevens' long period as senior-associate will be key to his legacy, elevating him from relative obscurity into a role that he enjoyed.

Posted by Howard Wasserman on July 16, 2019 at 11:40 PM in Howard Wasserman, Law and Politics | Permalink | Comments (10)

Hiring Committees 2019-2020

Please share in the comments the following information related to the 2019-2020 law school faculty hiring season:

(a) your school;
 
(b) the chair of your hiring committee (please note if you have different chairs for entry level and lateral candidates--we hope that this information will be useful for both entry level and lateral candidates);
 
(c) other members of your hiring committee (again, please note if there is a distinction between entry level and lateral committees); and
 
(d) any particular subject areas in which your school is looking to hire.

Additionally, if you would like to share the following information, candidates might find it helpful to know:

(e) your committee's feeling about packets/individualized expressions of interest (affirmatively want to receive them, affirmatively don't want to receive them, or don't care one way or the other); 
 
(f) your committee's preferred way to be contacted (email, snail-mail, or phone); 
 
(g) the website, if any, that candidates should use to obtain information about the position or to apply;
 
(h) the number of available faculty positions at your school; and
 
(i) whether you are interested in hiring entry-level candidates, lateral candidates, or both.

I will gather all this information in a downloadable, sortable spreadsheet. (Click on that link to access the spreadsheet and download it; you can also scroll through the embedded version below.)

If you would like to reach me for some reason (e.g., you would prefer not to post your committee information in the comments but would rather email me directly), my email address is sarah dot lawsky (at) law dot northwestern dot edu.

Remember, you cannot edit the spreadsheet directly. The only way to add something to the spreadsheet is to put the information in the comments or email me directly, and I will edit the spreadsheet.

Posted by Sarah Lawsky on July 16, 2019 at 07:41 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (53)

Sponsored Post: Reproductive Rights and Justice Stories

The following guest post is by Melissa Murray (NYU School of Law), Katherine Shaw (Cardozo), and Reva B. Siegel (Yale) and is sponsored by West Academic.

Reproductive Rights and Justice Stories (Foundation Press® 2019) examines the field of reproductive rights and justice, with attention to the dynamics of legal change inside and outside of courts.

Where reproductive rights are often defined as negative liberties that protect individuals against government coercion, reproductive justice thinks holistically about the conditions in which individuals make decisions about having and not having children. The field examines how relations of race, class, language, citizenship, sexuality, and gender shape decisions about reproduction and intimate life, inside and outside of law—in the organization of communities, markets, health care, religion, and other structures of social life. Pursuit of reproductive justice is not limited to greater access to contraception and abortion, but instead includes conflicts over sterilization, pregnancy, and assisted reproductive technologies. Critically, reproductive justice cannot be attained in courts alone, but instead requires action across many bodies of law, and in many social domains, to redress inequalities in intimate life.

The stories collected in this book present legal change broadly to capture the multiple social contexts in which these conflicts occur. This method for understanding constitutional change—what one of us has termed “democratic constitutionalism”—recognizes that debate over constitutional meaning unfolds inside and outside of courts and inside and outside of the state. Obviously, courts matter. But so do other actors and institutions—from grassroots organizations, NGOs, and political parties to state and federal legislatures to administrative agencies and bureaucrats to interested individuals.

Many chapters shed new light on cases that are very much part of the constitutional law canon—Griswold v. Connecticut, Roe v. Wade, Planned Parenthood v. Casey, Geduldig v. Aiello. Others introduce the reader to less well-known cases from state and lower federal courts that illuminate paths not taken in constitutional law. All of the chapters contain lessons for contemporary controversies. (Indeed, a recent symposium, hosted by the Take Care blog, featured a number of response essays tying the chapters to developments in the law and politics of reproductive rights and justice.).

Contributing authors include: Melissa Murray, Neil Siegel, Linda Greenhouse, Reva Siegel, Deborah Dinner, Maya Manian, Khiara Bridges, Serena Mayeri, Priscilla Ocen, Sam Bagenstos, Kate Shaw, Cary Franklin, and Doug NeJaime.

Posted by Howard Wasserman on July 16, 2019 at 05:21 PM in Sponsored Announcements, Teaching Law | Permalink | Comments (1)

AALS on Entry Level Hiring

Update, 7/16/19: I have been directly in touch with AALS, and they were extremely willing to update the site. I am going to leave this post up, because I'm generally opposed to putting things down the memory hole, but I will close comments.

I have long hoped that the AALS would report on entry-level hiring. After all, they are the ones who collect all the information. They are well positioned to do true statistical analysis on the candidate pool and the successful candidates. (They used to do so but stopped for some reason and scrubbed the information from the website, though of course it's available through the Wayback Machine.)

So I was happy to see that they have created a new website, which will, they promise, "mak[e] the process of obtaining a teaching job as transparent as possible, and provid[e] as much information to potential candidates as we can."

Imagine my surprise when I clicked through to the website and found, not statistical analysis based on actual information to which they have direct access, but rather the data and graphs that I, Sarah Lawsky, have been posting on this blog for the past ten years. My work is acknowledged through a single asterisk, which leads to this text at the bottom of the page: These data, which are self-reported by recently hired law faculty or, in some cases, their schools, was collected by PrawfsBlawg and provided as a downloadable spreadsheet. PrawfsBlawg data include “information for tenure-track, clinical, or legal writing full-time entry level hires.” (There is a link to the spreadsheet through the words "downloadable spreadsheet," but there's no formatting to indicate it's a link.)

To be clear: I want people to use this data. That's why I make it downloadable. But it would be nice if AALS would name me, because PrawfsBlawg does not actually collect anything: it's a website. And it would be nice if they link to the website, as well as to the data. It would have been really nice if they had reached out first to talk to me about the data, using it, and perhaps even collaborating, but I guess I understand why they didn't(?).

I've sent an email to AALS, and I hope they make changes to their webpage. More importantly, I really, really hope that instead of just taking self-reported hiring information, they use their vast store of information and give us accurate information about the pool of potential hires, the success rates of various groups, and so forth. They are uniquely positioned to do so.

Posted by Sarah Lawsky on July 16, 2019 at 12:17 PM in Entry Level Hiring Report | Permalink | Comments (6)

Interdisciplinary Junior Prawf-ing

Thanks to Paul, Howard, and the rest of the folks at Prawfs for having me; I’ve been reading the blog since I was in law school and it’s both fun and slightly surreal to be writing here.

I’m a legal anthropologist at Alabama Law where I mostly (but not always) teach work law courses. Last year I taught Employment Law and Employee Benefits, but this year I’ll be teaching Leg Reg and a cross-listed Legal Anthro seminar. My work law research has centered on the gig economy (ask me about getting hired by Instacart or being a dog walker on Rover -- two job experiences I never expected to have, even for research purposes). I also have a significant and ongoing interest in India and comparative constitutional law; this grows out of my PhD research on temple management and religion-state relations, but it's evolving in new directions that I hope to talk about here.

My posts here will mostly focus on things that have stood out to me during my first year prawf-ing as an interdisciplinary, multi-subject scholar—not unlike some earlier series, especially the awesome Junior Law Prawfs FAQ that Chris Walker ran a few years ago—but I’ll also try to work in a couple substantive posts on the areas I write in.

Posted by Deepa Das Acevedo on July 16, 2019 at 11:14 AM in Jr. Law Prawfs FAQ | Permalink | Comments (2)

Monday, July 15, 2019

Free speech: Change or leave?

A fascinating thing about the President's remarks this weekend about four female Democratic reps of color, and of many responses from several congressional Republicans, is the model of free expression they represent. That model amounts to "if you don't like it, leave the country." This is not new. The President and Republicans have said similar things about Colin Kaepernick, Megan Rapinoe, and other athletes who kneel during the national anthem.

In this vision, there is no room for someone to criticize government policies or actions with the goal of prompting change. Nor is there a need to respond to criticisms by explaining why those critics are wrong and that the current action is the proper course. There is no need or room for discussion or debate--critics should shut up or get out.

Of course, the President's critics are seeing something good (i.e., anything he does) and purposely writing or saying bad. That, we learned last week, is not free speech.

Posted by Howard Wasserman on July 15, 2019 at 11:11 PM in Constitutional thoughts, First Amendment, Howard Wasserman | Permalink | Comments (7)

Faculty Hiring at Richmond Law

Richmond Law is hiring! We are in the market for up to six new faculty members this year--3 tenure-track positions in a variety of areas, an endowed joint position with our leadership school, and directorships for new programs in professional identity formation and legal innovation.  The full ad is below the break:


The University of Richmond School of Law seeks top-notch scholars who are passionate about their teaching and research, who will thrive in an environment of engaged faculty, and who view the success of their colleagues and students as their own success.  This year we have openings for as many as three entry-level tenure-track professors.  We are open to a range of areas of interest but are especially looking for expertise in criminal law and procedure, critical legal studies, immigration, legislation and regulation, corporate law, cybersecurity, and data analytics/empirical legal studies.

We are also working with the Jepson School of Leadership Studies at the University of Richmond to fill the Tyler Haynes Interdisciplinary Professorship.  For this endowed professorship, we seek candidates with a distinguished record of scholarship and teaching who would be appointed as a tenured faculty member and would teach in both schools.  We are especially interested in candidates whose research addresses areas of applied law and leadership, including criminal justice, housing, immigration, educational policy, health care, and institutional design and analysis.  While we are open to candidates with either a J.D. or Ph.D., the ideal candidate will be a full professor with both.

Finally, we are looking to hire directors for two new signature programs—one in the area of professional identity formation and one in the area of legal innovation and entrepreneurship.  These directors will oversee the design and implementation of each program, as well as teach courses and direct co-curricular opportunities related to the program.

The University of Richmond, an equal opportunity employer, is committed to developing a diverse workforce and student body and to supporting an inclusive campus community.  Applications from candidates who will contribute to these goals are strongly encouraged. 

Inquiries regarding entry-level hiring should be directed to Professor Jim Gibson at [email protected].  Inquiries regarding the Haynes Professorship should be directed to [email protected]. Inquiries regarding the professional identity formation and legal innovation positions should be directed to Professor Jessica Erickson at [email protected].

 

Posted by Jessica Erickson on July 15, 2019 at 11:02 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Stupid rules, baseball edition

The independent Atlantic League (which used a Doppler radar plate umpire for its All Star game) has, with MLB support, implemented a new rule: Any pitch not "caught in flight" is a live ball, allowing a batter to run to first base or to be put out. People have described it as "stealing first," although that is not quite accurate. It happened in a game on Saturday. Others have described it as an extension of the uncaught third-strike rule, under which a batter becomes a runner if a third strike is not caught. I am not sure what the point is. I guess it adds excitement by offering a new way to reach first base, away from the home runs and walks that are increasing (and, some argue, making the game boring).

This seems stupid for several reasons.

The rule represents a departure from the game's basic structures. There are, famously, 7 (or 8, depending on how you count defensive interference) ways for a batter to reach base (unless you fine-grain it into 23). However you count, all are based on the batter putting the ball in play and the defense having to catch the ball to complete an out, or on the pitcher not being able to throw too many pitches out of the strike zone (there is no magic number, but it is not one). This rule introduces a new idea--reaching base on one pitch, not batted into play, that is not otherwise significant and would not otherwise produce an out.  I agree with the commentators who wonder whether the source of this rule actually likes or understands baseball.

The uncaught third strike analogy does not work. A batter becomes a runner on an uncaught third strike because that third strike is an otherwise significant pitch that would have produced an out had the catcher done his job. Moreover, the batter does not always become a runner on an uncaught third strike--he is out on strikes if first base is occupied with less than two out (for fear of creating Infield Fly-like perverse incentives). So there is a logic to when a batter does or does not become a runner. The new rule does not correspond to that logic and it is facile to label this a simple "extension" of that rule.

The new rule gives batters choices about when to try to reach base, which is otherwise unheard of in the game. A batter who hits the ball in fair play cannot "choose" whether to run--he must run. A batter cannot "decline" a walk to continue batting. The batter's choice begins and ends with whether to swing a bat. A batter cannot even decline to become a runner on an uncaught third strike--he must run. The game does not otherwise recognize the concept of a batter advancing "at his own risk"--at his option rather than forced; the batter is always forced to run when certain things happen. There is no logic to introducing this one optional situation.

The stories I have read do not explain what happens on a ball  that goes to the backstop with force-outs in effect on the bases (e.g., bases loaded or 1st/2d) and less than two out. Under ordinary rules, the runners can advance at their own risk on what would be a wild pitch or passed ball and they would have to be tagged. But if the batter attempts to run to first, that would force the runners to advance. Does this play now become a force on the lead runner at home? And how will anyone--the runners or the umpires--know? What if the runners do not plan to run (thinking the ball did not roll far enough away from the catcher) but the batter does run--now the runners are forced to advance but were not expecting to. There is no other situation in which everyone does not know in advance of the play what is a force-out and what is not, because the batter usually does not have a choice between running or not--this potentially adds some confusion. Or the new rule is limited to non-force-out situations--again, for no good reason.

This rule is part of a package that the Atlantic League and MLB are piloting. Two others are liberalizing what constitutes a check swing and allowing two foul bunts with two strikes before it is a strikeout. Again, all are designed to help batters and create offense, although at the risk of prolonging games that are already (it is said) too long. There is no obvious logic.

Posted by Howard Wasserman on July 15, 2019 at 09:25 AM in Howard Wasserman, Sports | Permalink | Comments (6)

Friday, July 12, 2019

MAGA in the classroom (edited)

This complaint from Jeffey Omari (Gonazaga) about a student wearing a MAGA hat in his classroom is absurd, as Jonathan Turley (GW) shows. I will leave aside whether "MAGA is an undeniable symbol of white supremacy and hatred toward certain nonwhite groups" or what this says about anti-conservative discrimination in legal education.*

[*] Although I cannot let this pass: Omari writes "Being a law professor, I understand the complexities of academic freedom and free speech. I respect students’ rights to freely express their political beliefs and values within the framework of the law. Yet, at the same time . . . " You could see that "yet" coming from a mile away.

I want to focus on classroom management, after the jump.

Omari writes:

law schools are inherently institutions of professional training. Just as faculty and staff are required to maintain professional formalities to aid the training and matriculation of their students, it seems only logical that students, too, should maintain similar businesslike etiquette. . . .  But when students fail to live up to such professional expectations, what are the professors’ options? . . . Surely, there must be protocol when African-American professors—whose presence is scarce in most law schools—find their authority defiantly undermined by an insensitive student.

In what way did this student fail to maintain businesslike etiquette or to meet professional expectations? A professor or school could prohibit baseball hats in the classroom (one of my colleagues does this), but neither Omari or Gonzaga has  done this. A professor or school could require students to dress in a professional or business-casual fashion in the classroom (i.e., no baseball hats or t-shirts with writing), but neither Gonzaga nor Omari requires this. I suppose a private school or professor at a private school could ban clothing with political messages or even conservative political messages in the classroom, although that would raise some concerns for academic freedom and basic common sense; but neither Gonzaga nor Omari has done this in any event.  So if, under the rules of the school and the professor, student can wear a baseball hat with any political message in this classroom, in what way did this student fail to meet his "professional expectations"? Other than by wearing a hat with a message the prof does not like.

As Omari describes his behavior, the student does not appear disruptive, disrespectful, unprofessional, or undermining. The student raised his hand to participate in class discussions, so he seems to be an engaged student who adheres to the rules of the classroom. Omari does not say the student's comments were unprofessional, provocative, or poorly thought out or expressed, or that the comments in any way interfered with the conversation or with the professor's authority. Since I expect Omari would have said so to support his case against the student, I infer from silence that the student's contributions were good, relevant, and well-stated remarks that furthered the classroom dynamic. Omari also says he "knew this student’s political leanings from our various class discussions throughout the course of the semester," without saying that this was revealed through prior irrelevant, disrespectful, or disruptive comments; again, his silence suggests an engaged student participating in the learning experience throughout the semester within the rules of the forum and not acting in an inappropriate or unprofessional way. Arguably, in fact, Omari, not the student, disrupted the class when he took the time from the substantive discussion to comment on the student's sartorial choices.*

[*] Turley makes a good point on this: The prof tells the student he likes the hat and the student smiles and says thank you. But the prof --who was untruthful in saying he liked the hat, describes the student as being the one using a mocking tone.

According to Omari, this incident occurred with three weeks left in the semester. He draws a lot from the fact that the student had not worn this hat or anything political to that point. But so what? No one wears the same hat or clothing every day. Moreover, I doubt Omari would be in less high dudgeon had the student done this on the first day rather than 75 % through the course. Which raises a more telling point. This was not the first encounter between professor and student, where this hat provided the professor's first impression of the student. This student had been in this class for most of the semester, participating  frequently enough that Omari knew his political leanings (which he obviously does not share) but without (apparent) incident. But none of that context comes through or affects Omari's telling. Regardless of anything that happened the previous weeks of the class, regardless of the student's overall performance and behavior, donning that hat, without more, rendered this person an "insensitive student" who "defiantly undermined" this professor.

Gonzaga dean Jacob Rooksby issued the following word salad: "The School of Law diligently works to provide a respectful and inclusive environment that welcomes all students, faculty, and staff. We respect the points of view of all members of our community. This situation presents an opportunity for our community to listen to and learn from each other." Frankly, I think the dean, who presumably knows something about law, has a bigger problem: One of his faculty members took to a national publication and called a student--unnamed but readily identifiable within a small institution (Gonzaga has about 350 students)--unprofessional, insensitive, disrespectful, and racist. For engaging in constitutionally protected speech supporting the sitting President.

Posted by Howard Wasserman on July 12, 2019 at 11:54 PM in Howard Wasserman, Teaching Law | Permalink | Comments (46)

Two Faculty Searches at Kansas

Below is information about two faculty search at University of Kansas School of Law.

Search # 1:

The University of Kansas School of Law invites applications for a tenure-track, associate professor to begin in the fall of 2020.  We are interested in candidates specializing in any field of law, but we are particularly interested in the fields of business, corporate, finance, transactional, and securities law, including both traditional and alternative approaches to these disciplines.

Applicants should possess a J.D. from an accredited US law school and evidence of potential for engaging in high quality research and teaching.  In a continuing effort to enrich its academic environment and provide equal educational and employment opportunities, the Law School actively encourages applications from members of underrepresented groups in higher education. Women, minorities, and candidates who will contribute to the climate of diversity in the school, including a diversity of scholarly approaches, are especially encouraged to apply.

Review of applications will begin September 3, 2019 and continue until the position is filled.  Applications should be made online at https://employment.ku.edu/faculty/14901BR and should include a cover letter, a curriculum vitae, a detailed statement of research interests and future plans, and the names of three references.

The law school will participate in the AALS Recruitment Conference in D.C. October 3-5, 2019.  For further information, contact Professor Uma Outka, University of Kansas School of Law, 1535 West 15th Street, Lawrence, KS  66045-7608, 785-864-9241, [email protected]

KU is an EO/AAE.  All qualified applicants will receive consideration for employment without regard to race, color, religion, sex (including pregnancy), age, national origin, disability, genetic information or protected Veteran status.

Search # 2:

The University of Kansas School of Law invites applications for a tenure-track, associate professor to begin in the fall of 2020.  We are interested in candidates specializing in any field of law, but we are particularly interested in the fields of digital privacy law; law and technology; health law; insurance law; natural resources law (which includes water law and land use); and human rights law.

Applicants should possess a J.D. from an accredited US law school and evidence of potential for engaging in high quality research and teaching.  In a continuing effort to enrich its academic environment and provide equal educational and employment opportunities, the Law School actively encourages applications from members of underrepresented groups in higher education. Women, minorities, and candidates who will contribute to the climate of diversity in the school, including a diversity of scholarly approaches, are especially encouraged to apply.

Review of applications will begin September 3, 2019 and continue until the position is filled.  Applications should be made online at https://employment.ku.edu/academic/14903BR and should include a cover letter, a curriculum vitae, a detailed statement of research interests and future plans, and the names of three references.   The law school will participate in the AALS Recruitment Conference in D.C. October 3-5, 2019.  For further information, contact Professor Uma Outka, University of Kansas School of Law, 1535 West 15th Street, Lawrence, KS  66045-7608, 785-864-9241, [email protected]

KU is an EO/AAE.  All qualified applicants will receive consideration for employment without regard to race, color, religion, sex (including pregnancy), age, national origin, disability, genetic information or protected Veteran status.

Posted by Howard Wasserman on July 12, 2019 at 09:32 AM in Teaching Law | Permalink | Comments (0)

Interview with Michael Heller from Columbia Law School on the Associates-in-Law Program

Below is the latest interview in my series interviewing VAP and fellowship directors.  This interview is with Michael Heller, the Lawrence A. Wien Professor of Real Estate Law at Columbia Law School.  Michael oversees the Associates-in-Law Program at Columbia.  An edited transcript of our conversation is below, and I have invited Michael to respond to any questions in the comments.  Thanks, Michael, for participating in this series!

You can read more about the structure of these interviews and other caveats related to them here.  For more information about law faculty hiring generally, check out the section of the AALS's website devoted to this topic at https://teach.aals.org/.


I. Introduction

Q. Tell me your role with the Associates-in-Law program.

A. I chaired the Associates committee last year and am chairing it again this coming year.

Q. What does the committee do?

A. We select the Associates, support them while at Columbia, and help guide them to tenure-track faculty positions. The committee includes four to six faculty, the dean of graduate legal studies, and the director of legal writing programs.

Q. Columbia has a lot of post-graduate fellowships. Where does the Associates program fit in?

A. The Associates program is Columbia’s chief post-graduate teaching fellowship for promising scholars preparing for entry-level legal academic careers. Columbia also offers a range of specialized fellowships, such as fellowships associated with our research centers and programs, and these too can serve as a transition to a career in legal academia.

We designed the Associates program to have a light teaching load (fall only) so Associates can focus their time producing academic scholarship, connecting with faculty, going on the job market, and participating in the Fellows Workshop, which all post-graduate fellows attend. The Fellows Workshop is the core of the Associates community. It’s part of what sets the Associates program apart from the other top fellowships, and helps makes Columbia, I believe, the strongest and most collegial launch pad for people entering law teaching. The Workshop is a weekly boot camp for presenting early ideas and polished drafts, reviewing research agendas, mooting interviews and job talks—in short, for inculcating the academic norms and intellectual habits of mind that aspiring law faculty will need throughout their careers. The Associates also attend, and are active participants in, our twice-weekly faculty workshops. We believe Columbia’s intense workshop culture is what sets our program apart from others.

II. Application Process

Q. Let’s start with the Associates application process. Then we can move into the fellowship itself. When does the program start accepting applications?

A. We’ll start accepting applications in early September for the following academic year.

Q. What materials does a candidate need to submit?

A. Detailed instructions are on the application website.  Materials include: cover letter, academic CV, research agenda (usually three to five pages detailing upcoming writing projects and academic trajectory), scholarly writing samples, a brief teaching statement, and law school transcript. We also ask for up to three recommenders to send us letters separately.

Q. So candidates can start applying in September. What does the timeline look like from there? How many interviews are there and when do they tend to occur?

A. We review applications on a rolling basis. The current Associates are heavily involved in this initial screening process, along with the committee. Usually, we begin inviting candidates for preliminary interviews in the late fall, start holding on-campus interviews in late-January, and begin making offers in mid-February. The process can run later – we don’t know how many slots we can fill until the current Associates finalize their plans. For example, this past spring, one Associate elected to return for a third year on the way to a Supreme Court clerkship for 2020-21.

Q. And staying for a third-year is an option Associates can exercise at their discretion?

A. Yes. The Associates Program is a two-year fellowship. However, we guarantee Associates the option to stay for a third year, if necessary. In other years, Associates have availed themselves of the option in cases of parental leave or if they have needed a second year on the entry-level market.

Q. That’s unusual. That’s great. Can you give some more detail on the hiring timeline?

A. We aim to hire approximately three Associates each year. We start looking at files once they are complete, including recommendation letters. The preliminary interviews include several members of the committee and at least one current Associate, and are usually done on Skype, or in-person if the candidate is in the New York area. For the second round, we bring candidates to New York for an intensive day of on-campus interviews, similar to the process for entry-level candidates.

Q. For the second round of interviews, can you walk me through what that day looks like for candidates who come to Columbia?

A. They usually arrive on campus around 10 am. During the day, the candidate meets in small groups with the committee members and current Associates, and with at least one faculty member close to the candidate’s field. Even at the interview stage, we want to ensure that Columbia will be able to connect the candidate with strong mentors. Interviews are usually scheduled in 40-45 minute blocks. At lunch, instead of giving a job talk, the candidate attends a workshop – either the Fellows Workshop (on Wednesday) or a Faculty Workshop (on Tuesday or Thursday). After lunch, there’s usually one or two more rounds of interviews, and the day wraps up around 3-4 pm.

Q. And then who are actually the decision makers at the end of the day?

A. Everyone who interviews the candidates provides their evaluation and is involved in the decision, but the committee has the final say. It’s similar to regular entry-level hiring decisions, in that there are multiple vetoes. We do not make an offer unless there is a consensus of enthusiastic support among the committee members, the current Associates, and faculty in the candidate’s field.

Q. How many applications do you typically receive?

A. We typically receive between 70-100, mostly in the early fall, with a second wave in late-January.

Q. Do you make any special effort to hire candidates from diverse backgrounds?

A. Absolutely, yes. Entry level slots are scarce and precious. Part of our responsibility is to imagine what the profession can look like in a generation. We aim to ensure that diverse and non-traditional voices are a robust part of the entry hiring pool. We actively reach out to faculty at Columbia and elsewhere to encourage a diverse applicant pool for the program and to help us evaluate candidates whose work is outside our areas of expertise. Ensuring diversity is a focus at every stage of our process, from initial screening to final offers.

Q. Any additional criteria? Anything else that helps an applicant stand out in the application process, other than the things that we’ve talked about already?

A. The core of what we are all looking for is a certain quality of mind, a spark that’s likely to lead to a distinctive and productive scholarly voice. Second, we want to make sure that the applicant will be a major contributor to the intellectual community here at Columbia, including at the Fellows Workshop, skilled both at giving and receiving feedback across a range of substantive areas and methodologies – e.g., someone who we believe will make for a wonderful colleague. Finally, we only hire people if we are confident that we have Columbia faculty who will be deeply invested in mentoring them.

III. Scholarship

Q. You say the Associate’s program has three components – scholarship, teaching, and community. Let’s start with scholarship. Describe that component.

A. Scholarly potential is our single most important criterion for hiring. We will not hire unless we are confident the candidate will be ready to succeed on the academic job market after the fellowship.

Q. How are you gauging that on the scholarly side?

A. Exactly the same way entry-level hiring committees gauge potential. We are looking for people for whom two years at Columbia will be jet fuel for their intellectual development. We are looking for candidates poised to be major scholars. More concretely, we put the writing samples and the research agenda at the center of our evaluation in screening candidates and at the interviews. Do the published articles and draft pieces make important contributions? Can we see an original, exciting, and feasible trajectory in the candidate’s writing and agenda?

Q. How much do people tend to have in terms of writing already? Do most successful candidates have a full paper, more than one full paper?

A. More than one full paper, usually. Not always, but usually. We often see applicants today who have as much published writing as faculty had a generation ago when they got tenure. There’s been a steady ratcheting up in credentials on the entry market, and that has translated to the fellowship market as well. We are much less concerned with the quantity of papers, however, than with the quality. One powerful, creative, and original paper carries a lot of weight. Sometimes, we have even hired people just with a smart paper in draft and an inspiring agenda. But, the more writing we can read, the easier it is to make an offer.

Q. Obviously some of these people are coming from PhD programs where they’ve had the time to write a lot. People who are not coming from PhD programs, do you have a sense of how they are finding the time to write that many articles?

A. People who are determined to be scholars make the time to write, even if they come from practice. It’s difficult, yes, but that’s part of what makes it so much more impressive when we get a candidate who has been able to produce exciting scholarship on nights and weekends while working full-time. Yes, PhDs have a stream of articles in hand and a coherent scholarly trajectory mapped out. That’s why they do so well on the market. But we work hard to ensure that we are selecting the best future scholars, and that regularly includes candidates from practice who have that scholarly spark. Often, their research will be directly related to their practice experience, and so their research will reflect a high level of subject-matter expertise.

Q. When you talk about practice experience, how much are you typically looking for?

A. More than a year or two is great, but difficult to find these days. Ideally, candidates from practice bring some real mastery of, and insight about, their legal practice area.

Q. How do you evaluate the tradeoff between legal practice and PhD routes? The PhDs seem to have a built-in benefit.

A. Yes, in part because PhDs have a structured path to write and to develop methodological expertise. In that sense, it’s not surprising they do well in entry-level hiring. But PhD candidates can sometimes lack a deeply textured understanding of the law itself, and that’s where applicants from legal practice can shine. Because practice experience is often generative for rich and nuanced scholarship, we definitely value practice experience in our hiring. Indeed, this year, two of our four non-PhD incoming Associates had significant practice experience. And “practice experience” need not be only at law firms or clerkships, by the way—one of our incoming associates brings significant work experience at the highest levels of the federal government relevant to their field.

Q. But out of curiosity, just because I know people would want me to ask this question, given that hiring committees often want more practice experience, why not put less weight on the PhD, require less scholarship coming into a fellowship program, and give even more preference to practice experience?

A. We have some discretion to shape the pool of entry-level applicants, and we do use that to expand the pipeline in ways we believe matter, including giving more weight to practice experience. But Columbia is an unusual position. With a collegial workshop culture, ample time for the Associates’ own writing, and strong mentorship of candidates, Columbia offers what we believe is the best fellowship in the country to prepare people for the entry market. So realistically, we are choosing among outstanding candidates, and we don’t generally feel we face tradeoffs in who we are considering.

Q. What advice do you have for applicants who do not have PhDs?

A. Write seminar papers during law school that you can develop later and write drafts while clerking and practicing so you have a pipeline of material. People coming out of practice are often poorly advised before they apply. They do not realize they have a short clock between when the fellowship starts and when they have to be ready to go on the job market – just a year. Yet they often submit fellowship agendas that will require more time than that. Those applications generally aren’t credible. For people coming from practice, we usually look for, at a minimum, advanced drafts. But ideally, candidates from practice should probably aim to have a law review publication (an article or a note) before applying. If your experience was particularly substantive, or otherwise allows you to write law review articles that could only be written by someone with the deep practice knowledge you bring, so much the better.

Q. How about people coming off Supreme Court clerkships?

A. That’s definitely a plus, and we have had several clerks in the past few years, but it’s a shrinking pool. That was a traditional route to entry hiring, but now there are few Supreme Court clerks among our applicants or who go on the entry market. Perhaps they have too many other great options – though it’s hard to see what’s better than a life as a legal scholar. We’d love to see more Supreme Court clerks back in the mix.

Q. Any advice for PhD applicants?

A. People coming out of PhD programs have a story. They have an agenda that says, “I’m the person who does this, I’m at the cutting edge of this particular methodology, here’s three articles I’ve written, and here are the next five that I will be doing between now and tenure. Together, my agenda adds up to this major scholarly contribution.” Hiring committees know more or less what they’re getting.

However, PhD applicants sometimes trip up in making the pivot to legal scholarship. Many have been immersed in their dissertation world and have strayed from core concerns of current legal scholarship. These candidates can have a hard time understanding what questions matter in law schools, to law faculty, and with law students. And they don’t realize how short a time they have to reframe their research —just that one year from their start date to when the FAR forms are due.

My strong advice to applicants coming from PhD programs is to think hard, before they apply to us (or anywhere else), about how their research agenda connects to the law and to prevailing legal scholarship. It’s too late to begin this process only once a fellowship starts. They should already have started translating their dissertation work for law audiences and have received detailed feedback on their research agendas from their law faculty recommenders. If possible, they should begin the fellowship with an advanced draft of their job talk paper and legal research agenda already in hand.

Q. Let’s turn to people without these traditional markers, people without a PhD, perhaps who didn’t go to one of the top law schools, didn’t do an elite clerkship, what advice would you have for them in terms of trying to break into the law teaching world?

A. All the traditional elite markers of success are proxies for writing specifically and for scholarly potential more generally. So, you can get there directly by doing the writing. We read everything. And the writing comes first.

Q. In the application process, in the hiring process, do you give any preference, however slight, to different curricular areas? Do you ever give a thumb on the scale to candidates in curricular areas where there is more demand on the entry-level market?

A. No, not at all. True, there’s more demand for people in certain areas, and the fields vary a bit from year to year. But we have the luxury of hiring the very top candidates on the market – so we are looking for people who we expect to be academic stars, who will contribute to legal scholarship at the highest level, whatever field they teach.

Q. A last point on scholarship. If you look on the blogs, there’s criticism that VAPs and fellows may get too much help on their scholarship, so hard for hiring committees to tease out what’s original to the VAPs and fellows themselves. What do you think about that criticism?

A. I don’t agree at all, at least as that statement applies to Columbia’s process. We hire Associates because we are confident in their ideas and in their potential. We would be doing our Associates a disservice by importing our own ideas into their work. I can maybe understand the potential issue for candidates who have written co-authored articles, but even then committees look at the piece as part of a larger mosaic with other articles, drafts, the research agenda, recommendation letters and calls, and multiple interviews. Nobody is getting bamboozled.

IV. Teaching

Q. Let’s move on to teaching. What does the teaching load look like at Columbia?

A. By design, the Associates have a light teaching load – our intention is to give Associates time to write and to prepare for the job market. In the fall, the Associates teach two sections of legal writing and research; each section has about 22 students. Six Associates teach LLMs; one teaches JDs. For the LLM sections, there’s two intense weeks in August, when they introduce students to American law and the class meets every day. After that, Associates teach each section once a week and hold individual meetings with students to review their writing. All teaching for the year is done before Thanksgiving.

Q: How important is teaching in your hiring decisions? And how do you try to determine if you think someone will be a good teacher?

A. We expect the Associates to be superb classroom teachers and we make that a priority in hiring: we won’t hire people unless we are confident in their teaching ability. Many candidates already have teaching experience, and some have won teaching awards or even worked as a full-time teacher at some point in their career. Additionally, in our experience, time spent mentoring younger lawyers while in practice translates well to the classroom. We look at candidates’ teaching statements in their applications and how they handle themselves during the interviews. In short, we are looking for people who are skilled, passionate, and thoughtful about teaching.

Q. Do Associates have the opportunity to teach other types of courses?

A. Yes, although we encourage a cautious approach. We deliberately protect the Associates from too much teaching so they can turbo-charge their writing. At this crucial and delicate moment in their careers, there is a much higher payoff from having more and better papers than from having prepped and taught one more course or seminar. In my view, every extra minute should be spent writing and engaging with scholars and scholarship. That said, Associates who are excited to develop new course offerings related to their scholarly passions have had the opportunity to do so. We are proud of the teaching component of our program and, combined with the sort of Associates we hire, are confident of the quality of teacher that we produce.

Q. What mentoring or feedback do they receive on their teaching?

A. Columbia offers a range of resources to improve teaching. If you want, specialists will come and do focus groups with your students, videotape your class and give you feedback. That’s available, but we hire Associates who are already, by and large, great classroom teachers. We’ve been successful in hiring an outgoing, student-oriented, passionate fellows, and that’s reflected in their typically strong student evaluations.

V. Fellows Workshop and Community

Q. Let’s go into the Fellows Workshop series, and then we can talk more broadly about Columbia’s workshop series. But the fellows only workshop, tell me about that.

A. The Associates run the Fellows Workshop, at lunch each Wednesday year-round, sometimes with an extra session during peak hiring season. This Workshop is at the core of the Associates program. The expectation is that all the fellows will attend, be prepared, and contribute to the discussion. The fellows use the lunches for varied purposes at different points in the year. Often, they present early stage work. Sometimes more polished papers. They moot interviews and job talks. Our Associates community is incredibly intellectually vibrant, and Associates regularly report that the Workshop is one of the most important parts of being at Columbia; it’s an experience that grounds the community, and offers a home base for the Associates to compare notes as they extend their networks throughout the law school and the wider legal academic world.

When we hire Associates, we think a lot about how they will contribute to this community. We look for people who are broadly curious, who will be interested in engaging with all the other fellows. As a young scholar, it’s important to be able to comment on one another’s work from an external perspective, to offer your methodological expertise. And it’s equally important to be skilled as a sympathetic reader, to be able to offer internal critiques from within the framework where your colleague is operating. The Workshop is intended to help Associates develop both those skills, to learn how to engage intensely, productively, and sensitively as a scholar.

Q. We’ve hired a couple of people out of the Associates program, and I’ll say, they excel at that. I do think it’s great training for being active members of an intellectual community.

A. It is, absolutely. Being acculturated into the workshop environment is a skill people don’t get in law school and often miss in PhD programs. But workshop skills are, I believe, crucial to success as an academic. It’s central to being a sought-after and respected colleague. You have to know how to ask a question and to offer constructive comments. And just as tricky, you have to be skilled in being able to hear criticism and revise your own work in response. You have to learn what counts as a good legal academic argument. This workshop is the place where that happens.

Q. Do Associates participate in the broader intellectual community at the school? So, for example, Columbia’s standard faculty workshop.

A. Yes. They are full participants in our two main faculty workshops. Usually, at Thursday lunch, Columbia faculty workshop fairly polished papers; at Tuesday lunch, faculty present early stage ideas, just a few pages with open discussion. Associates are active and valuable contributors to both.

In addition, Columbia has a huge range of specialized faculty workshops – there’s the legal history workshop, legal theory workshop, law and economics workshop, blue sky securities law workshop, critical thought, courts and legal process, tax, and several more. All told, there are more workshops than days in the week – so I encourage Associates to be mindful of how they divvy up their time and attention. Associates are welcome and active participants in these field-specific workshops, and regularly serve as commenters, discussants, and agenda-setters, in collaboration with faculty colleagues. Also, across the street, the University is full of on-point events. And Columbia is part of the greater New York legal academic community, with NYU, Fordham, Cardozo, and other area schools within easy reach. There are a number of cross-school workshops – which are a bonanza for Associates in particular fields. After two years, Associates can leave Columbia deeply enmeshed already in the academic networks that define their field(s).

Q. All this activity makes a two-year fellowship seem so short.

A. Yes. You arrive in July and start teaching in August. During that fall, you also have to write, revise, and polish your job talk article so it’s ready to submit, ideally in the February cycle. And in the late spring you have to complete your full FAR package, so it’s ready by August. This is why I encourage Associates to draft their job talk paper before they start the fellowship, if at all possible – the timeline is so compressed. In the fall of their second year, Associates are on the market, flying around giving job talks in the fall and winter while completing their teaching. We hope Associates use the spring of the second year, after they have accepted a tenure-track offer, to get more paper drafts in the pipeline, so they start the tenure clock primed for success. Every day during these fellowships should be a writing day. Every day is precious.

VI. Nuts and Bolts

Q. Let’s shift over to some of the terms and conditions of employment. Salary, benefits, and the like.

A. The Associates’ salary is competitive with the other top fellowship programs. We also offer subsidized housing and benefits. Our goal is to ensure that Columbia remains the top choice for the strongest candidates on the market.

Q. Tell me about that subsidized housing. What does that mean? Is that guaranteed?

A. Yes, we guarantee subsidized Columbia housing. We offer a wide range of options, depending on the person’s family situation, and ranging from studios to larger apartments, including Morningside Heights three-bedroom apartments. They are all within an easy short walk to the law school. You get to live comfortably in a great part of New York City – it’s quite a good deal. We aim to make the transition to Columbia hassle-free, so Associates can focus on their scholarship.

Q. Do the fellows receive health benefits?

A. Yes. Columbia provides generous health insurance plan options, on par with what our faculty receive. Also, miscellaneous benefits, like inexpensive gym membership, and the like.

Q. How about travel funding or other professional development funding?

A. Yes. We cover reasonable conference and research travel. Additionally, we cover expenses and fees for the AALS hiring convention in the fall, and for the regular AALS convention in January, reimbursed on the same terms as regular faculty.

Q. How about funding to hire research assistants?

A. We don’t have separate funding for RAs, but we do have some funding available for other research related expenses, like specialized computer access, data sets, or survey research.

Q. Tell me about library support.

A. That’s a huge strength at Columbia. Associates have full access to one of the best law libraries in the world. And they can rely on our incredible law librarians. In recent years, we’ve been able to get library access for Associates even before they start the fellowship. This has helped a few Associates who need access, for example, to specialized archives or expensive databases. And it’s meant they can advance the work on their job talk paper in the months before they take up residence in July.

Q. Are fellows required to live in New York City?

A. Yes, we generally require Associates to be in residence in the New York City area. The core of our program is the Associates community – not just the Workshop, but the informal back and forth with the law school’s scholarly community. And for that to work, people have to be around the building. There is no requirement that Associates spend particular hours here, but folks are usually around, in and out of each other’s offices. It’s a hard-working group, as it should be.

VII. Mentoring and Placement

Q. In terms of engaging with faculty, how do the fellows find mentors? Are they assigned a mentor? Are they given assistance there?

A. We haven’t assigned formal mentors. However, we build mentorship into the program right from the start, with the hiring process. We identify who are likely to be the crucial people for that candidate’s scholarly development and bring them into the on-campus interview process. After the interview, we ask the potential mentors, "Is it someone you want to work with?" We won’t hire an Associate unless we are confident they will have faculty to mentor them.

Q. Then what assistance are they given once they arrive?

A. The committee members and I always stand ready to make introductions and smooth the way to faculty here at Columbia and elsewhere. That said, we choose Associates whom we know will succeed: self-starters with articles and research agendas that excite current faculty members. This ensures a strong base of organic support for our Associates, and means that Associates go on the market with Columbia recommenders who authentically believe in their potential and are committed to their success. Additionally, the existing Associates are a great source of information for each other. They know who likes to see early ideas, who prefers more polished papers; who will read multiple drafts, and who wants to see just one; who prefers to read just an intro, who reads whole drafts, and who likely won’t respond at all—you know, the same dynamics we experience as regular faculty with our own colleagues!

Q. Are you the one who’s directly supervising them? Not necessarily in an employment capacity, but in terms of day to day life, or is there someone else on the faculty?

A. Yes, that’s me for day to day life, like help with getting extra research funds, or early access to library databases.

Q. And on the job market?

A. For the job market, we have an Academic Placement committee that helps make phone calls for Associates, get in touch with recommenders, and reach out to entry-level hiring committees at other schools. They also run Columbia’s “Moot Camp” each fall. At Moot Camp, each fellow gets to present their job talk as if it were a regular entry-level talk, with a 20-minute presentation followed by faculty questions. Usually, one faculty member asks questions from within the candidate’s field, another from outside, so it mimics the entry-level talk. After the Q&A, the faculty then give feedback to the fellow.

VIII. Why Columbia?

Q. We’ve gone through a lot of the details. Let’s step back for a moment. If you had a candidate who was choosing between the Columbia program and some of the other top programs out there, how would you sell them on Columbia’s? What do you think makes it stand apart?

A. First, the most exceptional part of the Columbia program is the Fellows Workshop, along with our broader faculty workshop culture. The Fellows Workshop, in particular, turbocharges the Associates’ teaching skills, presenting skills, and workshop skills. It hones their intellectual development, their papers, and their readiness to be tenure-track faculty. Finally, it facilitates a collaborative, collegial community among the Associates, one that carries on even after they leave the program for tenure-track positions. Many former Associates who are now tenured law professors themselves remain very fond of the program and are eager to mentor our current Associates.

Second, I think we offer the right balance between teaching and writing – which is to say, less teaching, more writing. Since we are able to hire the very top candidates on the market, they are, by and large, already great teachers. By limiting teaching to a short burst in the fall, we make space for the Associates to hone their writing. Scholarship comes first.

Third, we offer wide-ranging support for Associates as they go on the market. As a large faculty, Columbia usually has several people who are expert in each Associate’s field. So, Associates are not dependent on any one relationship, and can usually get varied feedback. Also, by being in New York, Associates have access to the leading faculty in their area, all within lunch or workshop distance. Being known by the core people in your field matters not just in the hiring process, but in your life as a scholar.

Fourth, and perhaps more mundane, we try to make being at Columbia seamless and frictionless. You don’t have to waste time house hunting. Everything is walking distance, the gym is across the street, the park a block away, the library gets you anything you need. We work hard to strip away irritations so Associates can focus on their scholarly development.

Q. Do you happen to know off the top of your head the percentage of fellows over, say, the last five years, who have landed in tenure track positions at law schools?

A. All of them, I think, with the caveat that one or two took parental leave, which shifted back their entry-level hiring timeline. Here’s the link to recent Associate placements.  The four Associates who went on the market this past year accepted great tenure-track law academic jobs.

Posted by Jessica Erickson on July 12, 2019 at 07:55 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (4)

Wednesday, July 10, 2019

JOTWELL: Vladeck on Thomas on O'Connor

The new Courts Law essay comes from Steve Vladeck (Texas), reviewing Evan Thomas, First: Sandra Day O'Connor (Penguin Random House 2019) and arguing that the bio reveals O'Connor as likely the last true centrist on the Court.

Posted by Howard Wasserman on July 10, 2019 at 10:05 AM in Books, Howard Wasserman | Permalink | Comments (0)

Tuesday, July 09, 2019

Stare Decisis Is Undertheorized

A major theme of the most recent Supreme Court Term was stare decisis. Several cases either overruled precedents (over dissents) or refused to do (over dissents) with each side chastising the other for its approach to precedent. After reading these opinions, as well as other judicial and academic commentary, I'm struck by how little useful analysis there is about stare decisis. In some future posts, I'll try to explain what I mean by that, as it will help me think through some aspects of the doctrine. 

Posted by Gerard Magliocca on July 9, 2019 at 10:22 PM | Permalink | Comments (9)

Friday, July 05, 2019

Mueller Report: The Play (Updated)

What started as a joke and emerged as parody was done as a serious piece of theater , titled The Investigation: A Search for the Truth in Ten Acts. It features A-list actors including John Lithgow, Joel Grey,* Annette Benning, Kevin Kline and Justin Long; it was written by award-winning playwright Robert Schenkkan. A video of the show (running about 1:15) is embedded in the LawFare piece and at the Law Works site.

[*] "Willkommen! Dobro Pozhalovat! Welcome!"

The author of the LawFare piece (Mikhaila Fogel) explains how dramatization shows how members of Congress should (and should not) approach next week's hearing. In short: Do ask "deliberate, narrative-driven questions about the text of the report [that] will tell a powerful and credible story;" do not rely on "[s]entiment, indignation and pontification." In other words, act like trial lawyers or judges, not grandstanding politicians.

Update: Having watched watched the performance (from late June), I see Fogel's point about melodrama. But if House Dems see themselves as speaking to the American People--specifically those portions of the American People who are neither convinced of Trump's culpability nor unpersuadable that Trump did anything wrong--there is a nice legal question of how to understand that audience. Is it a jury or a panel of judges? And does that affect how you ask the questions to present the case? And should it?

Also: If a similar reading  of the Starr Report had been staged in 1998, imagine the accompanying soundtrack.

Posted by Howard Wasserman on July 5, 2019 at 02:43 PM in Current Affairs, Howard Wasserman, Law and Politics | Permalink | Comments (2)

French defamation (Corrected)

Three groups of Michael Jackson fans (sorry, writing in a train station) have sued the men featured in Leaving Neverland accusing Jackson of sexual assault. The lawsuit was filed in France, which, the article repeats, recognizes defamation of a dead person.

But the story does not discuss what to me should be the real issue about French law: How have fan groups suffered a compensable injury, or using unfortunate U.S. terminology, how do fan groups have standing? Even if a dead person can be defamed under French law, how is a group of people who like his music (perhaps too much) injured by that?

Anyone familiar with French tort law?

Posted by Howard Wasserman on July 5, 2019 at 09:22 AM in Howard Wasserman | Permalink | Comments (6)

Interview with Jeanne Merino on the Thomas C. Grey Fellowship Program at Stanford Law School

Here is the next interview in my series interviewing VAP and fellowship directors.  Thanks to Jeanne Merino, the Director of the First-Year Legal Research and Writing Program at Stanford Law School, for participating in this series!  She oversees the fellows in Stanford’s Thomas C. Grey Fellowship for Legal Research and Writing (LRW).   An edited transcript of our conversation is below, and I have invited Jeanne to respond to any questions in the comments. 

You can read more about the structure of these interviews and other caveats related to them here. For more information about law faculty hiring generally, check out the section of the AALS's website devoted to this topic at https://teach.aals.org/.  Full interview below the break. 


Q. Tell me about your role with the Thomas Grey C. Fellowship program.

A. I direct the legal research and writing program and supervise the Grey Fellows, who teach in the LRW program. I hire the fellows with the LRW faculty committee, train them, and supervise their teaching.

Q. I would love to take the fellowship program chronologically, starting with the application process, then moving through the fellowship itself and how to make the most of it. When do you start accepting applications?

A. We start accepting applications in August of each year for the following year. This August 2019, we'll start receiving applications for 2020-2021.

Q. And if somebody wanted to apply, what materials do they need to submit?

A. There are two different ways to submit materials. Applicants who are attending the AALS hiring conference should send us a letter of interest by September 15. We will review the materials hosted on the AALS Faculty Appointments Register and ask for interviews the weekend before the hiring conference. In some years if there aren’t a lot of candidates for AALS and I will skip the trip and funnel those candidates into the direct application system.

Applicants who are not attending AALS can apply directly to our program. We have a job announcement on our website. Applicants submit materials to [email protected] Required materials are a cover letter describing the candidate’s interest in the program, a CV or resume, publications, a writing sample from law practice, a law school transcript, letters of recommendation (preferred) or the names of references, and a research agenda. We don’t expect the research agenda to be as sophisticated an agenda as produced by people who are going on the tenure-track market. But we want a sense of the scholarly interests of the applicants, the connection between those interests and their law practice, if any, what methodological approaches they are considering, and a little bit about what the trajectory of their work is going to be. Fellows don't stick 100% to their research agendas. We just want them to start thinking about the arc of their career as law scholars.

We don’t have openings every year. We have five fellows, and since the fellows decide if they will stay for two years or three years we don’t consistently hire every year. Our unpredictable timeline can be frustrating to applicants, but it pays off in flexibility for fellows. We are hiring this year.

This year I will start reviewing the direct applications around mid-October. I summarize the applications and the LRW faculty committee and I decide whom to interview. The committee is chaired by Larry Marshall, and current members are Shirin Sinnar and George Fisher, all of whom are tenured professors. I first schedule a phone interview with candidates. Occasionally if an applicant shares academic interests with the chair of our legal research and writing committee they might also have a phone interview with him, but usually that call is with me.

The phone interview tends to be on the long side, like an hour or so. I cover all the territory, including what do you like about being a lawyer? Why do you want to make a transition to law teaching? What are your research interests? How do you want to study your areas of interest? Why do you want to teach? What do you love about writing? How did you learn to really write like a lawyer? I want to hire people who love to write, and not just in a scholarly voice. Some of our current and former fellows are poets, journalists, fiction writers, and photographers—people who think about how to communicate complicated ideas in nuanced and sophisticated ways. I want to hire people who are enthusiastic about being lawyers, because I want that enthusiasm to come through to our students. And I want people who have a real appreciation for what lawyers do.

We schedule callbacks usually starting around the end of November or beginning of December. Depending on the number of positions we have to fill, we might have callbacks in January and February as well. How late we interview depends a bit on how our own fellows are doing on the market.

We schedule a lot of meetings for the callbacks. We schedule meetings with a group of current fellows, so they can get a sense of how the applicant would work together with the team, and how the interests of the applicant would complement the interests of the current fellows. We have individual meetings with some members of the legal research and writing committee and with members of our faculty who are in the same discipline as the candidate.

The purpose of those meetings is two-fold. First, we need feedback from scholars who can tell us if the applicant’s scholarship fills a gap in the body of work, is well-researched and considered, and whether there are likely to be openings in that area when fellows complete their fellowship. Second, we want to know if those faculty members are interested in working with the applicant. We need faculty to support our fellows’ research interests. We expect fellows to be working hard on teaching, and the quid pro quo for that hard work is to give them access to faculty who can comment on their scholarship.

Q. As for the final decision, is that made by the committee or by you?

A. The committee. In the past the chair and I would write a memo recommending hires and the committee would usually endorse our recommendation. The current committee is more involved in all aspects of the fellowship, so now it will be a committee decision.

Q. How many applications do you receive in a typical year?

A. The number of applications has gone down. I'm doing more outreach and PR this year, and I hope this interview gets an audience, and I’ll see if the number of applications goes up. We used to get about 75 applications. This last year, we got like 26 applications.

Q. Oh, wow. That is a big difference.

A. Yes, the number has gone down a lot. I indicated on our website last year that we might not have an opening, and in fact we did not have an opening this year. If we hired more consistently we might have more applicants. It’s also been awhile since I did outreach, so I'm doing that again this summer.

Q. During the application process, how do you gauge who will make a good teacher?

A. Moving forward, we will ask people to teach a class when they come in for the callback. We don’t expect perfection at the outset, and honestly, I think LRW is a really hard class to teach to a group of students. But I do want to know if candidates can reflect about how to analyze the law and connect with students.

As teachers, our primary job is to teach students how to think like a lawyer, strategize like a lawyer, use authority the way that lawyers do, and communicate concisely and precisely. The most successful teachers convey a real enthusiasm for lawyering as a process and thoughtfulness about what it means to be a lawyer in the world today, which is complicated and multifaceted and has lots of pros and cons. And LRW teachers should appreciate the work that lawyers do.

In terms of connecting with an audience, a good law professor has to listen hard, probe students' comments, be open to lots of different points of view, and be able to facilitate a conversation where students feel comfortable putting their points of view in.

We also have to shape students' thinking when they say something that's off the mark. How can we interrupt wrong thinking without dissuading students from participating in the conversation?

We also make better teachers if we're thinking hard about how indispensible communication is to our profession. We communicate orally. We communicate in writing. And if we can't do that, our ideas stay in our brains doing no good for anyone. So, we look for people who can be really thoughtful about the work of the law and the skills of writing and speaking, and teach that clearly, but also in nuanced and interesting ways.

Q. How much does practice experience matter in the hiring process? Relatedly, how much practice experience are you looking for?

A. It weighs a lot. I think it weighs more in our program than most other fellowship programs because our courses are taught as simulations where students are acting in the role of lawyers. Part of the process in the simulation is to think strategically about the lawyering context and litigation process. What does the client want? What are the lawyers' options, including litigation and other lawyering choices? What does the law say, and what is the room to play in the joints of the law?

We hire fellows who have had experience with that legal process. We require fellows who have at least two years of lawyering experience. Clerkship counts as part of that lawyering experience. I'm really looking for candidates who are advanced enough in their career to think strategically and not an assignment at a time. They're looking at the lawyering process as a whole; they're thinking about how lawyers help clients make decisions when the law is uncertain and the facts are in flux. Frankly, that’s a big part of the fun of our classes. It's pretty common for us to have applicants and to hire applicants who have a tremendous amount of experience, like eight, nine years of lawyering experience or more.

We hire fellows with diverse experience. We have fellows with criminal law backgrounds, civil law backgrounds, public interest, public service, private law firm, transactional backgrounds. Although we do emphasize litigation in class, so some exposure to litigation is pretty important. But a lot of our students go into transactional law and fellows with a background in transactions have helped us “translate” our litigation simulations so students see the benefit of learning the basics of analyzing law, writing, and oral communication. Also, since we work collaboratively, I rely on others’ experience to help fill in the gaps of my knowledge. I’ve never worked for a law firm, for example, so it’s important to have faculty who know what the expectations are in that practice area.

Q. Now let’s turn to the scholarly side. What are they typically expected to have scholarship-wise when they apply? In other words, is it a full paper, more than one full paper, just an idea?

A. Because there are so many different factors we consider, there is no fixed requirement. But strong candidates might have a substantial paper in production and a few other ideas, and many have much more. An applicant might have a student note, but since our applicants have some work experience, some of the student notes are a little bit dated and may not reflect what they're thinking about and what they're capable of. That said, since our program welcomes fellows who plan to stay for three years, it’s okay to have somewhat less scholarship as long as there’s enough to show the fellow is able and sincerely interested in producing scholarship.

The tenure-track teaching market has changed a lot in the last ten years, and successful candidates on the tenure-track teaching market must have more publications than they used to have.

Q. Yeah, absolutely. And does that go for the research agenda, too? Are you looking for a pretty well-developed research agenda?

A. No, I would say, I'm looking to understand who candidates want to be as scholars, but that’s a process and I know that will change over the course of the fellowship. I also use the agenda to try to figure out which faculty I should loop in on the hiring process.

Q. One of the comments that keeps coming up on the blogs is people expressing frustration that so many law faculty and so many law fellows have the same or similar backgrounds. They went to Harvard, Yale or Stanford. They had an elite clerkship. If you were an advising a candidate, perhaps without those traditional markers, how would you advise them to try to stand out in the application process?

A. Yes, I’ve seen that question raised. And I will say, we’ve had fellows who have gone to Harvard, Yale, and Stanford, but we also have a fair number of very successful fellows who are now in tenure-track positions, who did not go to those 3 schools, or top 15 schools.
We've had fellows from UCLA and Northwestern and UC Hastings and GW. And I'm not going to say, because it would be a damned lie for me to say that the law school doesn't matter on the tenure-track teaching market. It does. If you didn't go to one of the elite schools, you have a lot more that you need to show.

But if you were a standout at one of those schools and you have mentors who know you as smart and curious and interested in ideas and teaching, then I think you could be a really great candidate for our program. If you've done great work as a lawyer, if you've demonstrated a real commitment and interest to writing, not just doing a fellowship to escape litigation but taking what you learned and developing ideas from your lawyering experience that are real, deep interesting things that lawyers should be thinking and reading about, I hope you’ll consider us. If you're open to the idea of joining an intellectual community and participating in how other people develop their ideas, then we're interested in you.

And so far this approach has worked for us. Nearly all of our fellows have gone on to tenure-track teaching. But I do have to keep an eye on the market, and fewer of our fellows are getting the many multiple offers that they were before the crash.

At some point if we have a hard time placing people from our program, then we will have to consider a change. It doesn’t make sense to have people leave their well-paying, satisfying jobs for a comparatively low-paying job if chances are low that they will achieve what they hope to achieve. We pay more than most—maybe all?—fellowships, but everyone takes a cut when they take this job.

Q. Do you make any effort to hire candidates from diverse backgrounds?

A. Yes. We hire women and people of color, and they are successful here as teachers and on the market. Ten years ago we renewed our efforts to hire fellows who are dedicated to tenure-track law teaching after the fellowship. Since then nineteen fellows have graduated from our program and gone on the tenure-track teaching market. All but one got a tenure-track teaching job. Of those nineteen, eleven are women and eight are people of color.

Q. That's great.

A. Currently, our five fellows are all women, but that is rarely true.

Q. I saw that.

A. Women are still underrepresented in the legal academy, and I’m proud of the role we’ve played in promoting them professionally. Three of our current fellows are women of color. Considering the twenty-four former and current fellows together, sixteen are women and eleven are people of color. Two of those fellows or former fellows are Latinx and two are of African descent, ethnic groups that are particularly underrepresented in the academy. And in addition to ethnic diversity, two of our former fellows are gay men. We’ve had plenty of straight white men, or course. I’m Latina so I have a personal commitment to diversity. But it’s also a part of my professional obligation, as a lawyer and someone who cares about justice. We’ve got to diversify our law faculties so they reflect the communities we serve. And that takes a conscious effort.

Q. That's fabulous. Let me turn over to some of the terms and conditions of employment. I saw on the website, it said fellows for this last year were paid $72,000 a year. Is that still the right number?

A. That's the right number. Our salary goes up $2,000 in the second year and another $2000 in the third year. So, salary ranges from 72k to 76k.

Q. Okay. And do fellows receive health benefits?

A. Yes.

Q. And how about access to the university or subsidized housing? I imagine that could be a big deal in Palo Alto.

A. It's a big deal. It's a huge problem.

Q. I bet.

A. It's a huge problem all over Stanford University for absolutely every job. There is access to housing, but not all those who apply get it. Several of our fellows have lived in subsidized housing now and in the past. It's still not cheap, but it is cheaper than market-rate housing. The on-campus housing for staff and faculty is actually very nice.

Q. And how about travel funding or other professional development funding?

A. Fellows get a total of $3,800. $800 from the university for professional development but there are a lot of constraints on how we can use that money. The other $3,000 can be used for conferences, books, hiring a research assistant. And everyone uses that money up.

Q. Does that include, in their second year or possibly in the third year, market-related expenses?

A. Yes, and frankly, the whole 3,000 bucks is sucked up by AALS.

Q. Are fellows expected to live in or around Palo Alto? Obviously, there are teaching obligations, so it is tough to live too far away, but if someone wanted to commute, could they?

A. I wish I could lie and say they had to live here, but that's not the case. A number of our fellows commute from the East Bay. It's super difficult, because I do think it's important, for both the teaching goals and the scholarship goals, to be on campus regularly. And I do require that they come to campus regularly, but that doesn't mean five days a week. That usually means something more like three days a week.

But we can't expect fellows to live close to Stanford, or we would be closing the fellowship to all but those who are independently wealthy or who owned a software company before they went to law school, or something. Housing prices are too high in the Bay area right now.

Q. Let’s turn to the fellowship itself and how to make the most of the fellowship year. I'm going to start with the intellectual life of the fellowship. How often do the fellows get together and in what capacity? For example, is there a fellows' workshop at Stanford?

A. The Grey fellows are a pretty collaborative group, working together on both teaching and also gathering informally to discuss their scholarship. In addition, there is a fellows' workshop that includes not just the Grey fellows, but also Stanford Law School’s fellows in the centers for constitutional law, law and biosciences, law and history, CodeX, the Rock Center for Corporate Governance, and the like. In addition, our Dean just appointed an Associate Dean for Research and Intellectual Life who will organize informal workshops with fellows, junior faculty, and JD/PhDs.

Fellows are encouraged to attend our weekly faculty lunches where faculty, visitors and sometimes folks from outside the legal academy give a talk and Q&A. Faculty lunches provide a key opportunity to ask questions of faculty and observe how professors give feedback to shape and refine the presenter’s thinking.

In addition, for the last five years the law school has sponsored the Grey Fellows’ Forum, a meeting for current and former Fellows to share their work and create an opportunity for the former fellows to get to know the current fellows, who will soon be on the market for a teaching job.

Q. Okay, that's great. Who supervisors the fellows? Who's their direct supervisor?

A. I am.

Q. And when it comes to support for their research, you talked about the assignment of a mentor. Who sits down and talks through their papers with them?

A. Two members of the faculty LRW committee advise fellows about their research and help match fellows with faculty who share interests. Fellows are encouraged to reach out to other faculty members. It’s good to have two or three faculty who are familiar with the fellow’s work to provide guidance and feedback and possibly be a recommender on the market. Of course, producing scholarship is mostly not a super-collegial endeavor. It takes a lot of sitting down and mulling over your own ideas and putting them down on paper and writing and revising and thinking.

We don’t really assign mentors, other than the LRW committee members. Some marriages don't work all that great so we have to be flexible and persistent to find the right fit.

Q. Mentoring has to be organic, in some ways, at least, right?

A. Yes.

Q. Do you have any special advice for candidates who come in with a PhD in terms of transitioning to legal writing and the norms of legal scholarship?

A. Boy, that’s a good question. Two of our current fellows have PhDs and I will ask them. I usually consider the more difficult transition to be from thinking like an advocate to thinking like a scholar. That is a huge transition and one that fellowship programs help with immeasurably. I will have to think more about the transition that PhDs make.

Q. That's fair. Let's switch over to the teaching side. Obviously, the fellows are teaching in your legal research and writing program. How many students do they typically have at a time?

A. In the fall, they have 30 students. In the winter and spring, they have 18 students. And the fall is hard, because 30 students is a fair number of students.

Q. What is their role, in terms of coming up with the assignments or coming up with the plans for the quarters?

A. I come up with the assignments, which are uniform across the program, and draft a syllabus. We share an electronic work site, where I, former fellows, and current fellows post class notes. I share in-class exercises and teaching ideas, but fellows have a fair amount of discretion about how they teach particular topics. I also give guidance about the kind and amount of feedback we give to students.

Written feedback is our opportunity to shape how students express themselves in a way that lawyers recognize as legal analysis. We provide a lot of formative feedback to students. We also meet with students individually for an hour of individual conferences with in the fall and a half-hour in the winter. No required individual conferences in the spring, but we have to be available for our students and that usually means we meet one-on-one with almost all the students.

Q. And how does that calendar work with the job market calendar?

A. The early October date has been on my calendar since the AALS published it. We might be able to cancel the class scheduled at the end of the week. But we must minimize rescheduling classes, so I hope prospective employers are flexible.

Q. Do they have opportunities to teach classes outside of the legal writing program?

A. Not really. An occasional exception is made, but for the most part, no. Our workload is heavy and the only time that it really makes sense is after the fellow has a job. But beforehand given the demanding nature of the teaching aspect of the work, nearly all other time should be spent on scholarship.

Q. Do you have a sense of the breakdown in time for fellows--what percentage of their time they tend to spend on teaching, on their own research, on other things, if there are any in the fellowship?

A. Yes. It's super lumpy. The summer is mostly available for fellows’ scholarly work, other than roughly two weeks of time devoted for getting ready for the fall quarter. In the nine weeks of the fall quarter, teaching is pretty nearly a full-time job. If someone already has a research project that's going, there might be some time when fellows can research and write. In other words, teaching in the fall is a full-time job and to attend to the scholarly agenda as well takes more than full-time effort.

Grading for the fall quarter is over by the middle of November, so fellows can focus on scholarship from then until the first full week in January—about 7 weeks. Fellows will need to spend about a week preparing for the winter quarter, and most everyone will take a week or so of vacation time then, but that leaves 4-5 weeks for scholarship. And then, because we have smaller classes in the winter and spring, I do think that it's possible to spend an average of 25-30 hours a week on teaching in the winter and spring, leaving quite a bit of time for research.

We have a long spring break, because we stop teaching after about seven weeks in the quarter. In sum, fellows have about 12 weeks in the summer, 4-5 weeks over winter break, and 3-4 weeks over spring break, for scholarly activities.

It's possible to get some work done during the term, especially during the winter and spring. But that’s very different from a fellowship where there's no teaching obligation.

Q. Circling back to teaching, what type of training or feedback do fellows receive on their teaching?

A. We have a teaching workshop over the summer. The workshop is different each year. Last year our focus was on looking at interventions to help deal with stereotype threat and how to promote diversity and inclusion in the classroom. This year, we'll focus on how to use classroom time to accomplish our course goals, with a focus on using in-class teaching techniques like how to facilitate a class conversation, how to use interactive exercises in class, how to use a Socratic dialogue, and how to lecture most effectively

I work other university programs to organize these workshops. The university has a robust Center on Teaching and Learning, and teaching is valued and respected, not just at the law school but in other parts of the University. I also often work with folks at the Hume Center—the writing tutorial center—and the Program on Writing and Rhetoric.

Then we each teach an example class, debrief it and talk about what worked well, what didn't work well, how can we improve it. We will also all mark up the same paper and pass it around to make sure we are all looking for roughly the same thing, and get ideas about how to identify analytical and writing problems and suggest improvements.

The length of the workshop varies. It's usually about two weeks or parts of two weeks. This year, we have no new teachers. So, our workshop will be just four days.

When classes are in session we meet about once a week to talk about our curriculum, pedagogy, what classes we are teaching, what problems are people having, that sort of thing.

And then, during the quarter, fellows' classes will be observed by faculty, who then review the class with the fellow.

Q. So, let's take a step back for a moment. If you were talking to a candidate with lots of different options in the fellowship market, how would you try to sell them on the Grey fellowship? Or to ask it another way, what do you think sets the Grey fellowship program apart?

A. Several things set us apart. First, and perhaps most importantly, Stanford's a really, great warm place with a fantastic group of law scholars and a vibrant intellectual life. Fellows' ideas are taken seriously.

Second, if you're interested in writing, not just to communicate your ideas to other faculty members but to write to persuade and to write for a lay audience, you should consider our fellowship. Our program teaches not just the conventions of legal writing, but how to communicate our ideas to different audiences generally.

Third, ours is a more teaching-focused fellowship. If you're not interested in teaching, and there are some law scholars who aren't that interested in teaching, this isn't the fellowship for you. But legal writing is one of the hardest things to teach in the law school. If you can teach legal writing, you can teach anything.

Quite a large number of our recent fellows have won teaching awards in their new academic institutions. Of those 18 fellows who graduated from our program and went on to tenure track positions, seven that I know of have received teaching awards at their law schools. Andrea Roth who's at Berkeley, just got the All-University Teaching Award. Beth Colgan at UCLA got the teaching award for UCLA Law School. Shirin Sinnar, who’s here at Stanford, received the faculty teaching award. Kaipo Matsumura, who's at the Arizona State University College of Law, got a teaching award. Thea Johnson, who's at the University of Maine, got a teaching award. Hillel Levin at the University of Georgia and Brooke Coleman at Seattle University received teaching awards – Brooke three times.

We hire fellows who will be good teachers and who value teaching, and we have a deserved reputation for producing fellows who will be good teachers. I know that's not the coin of the realm, but teaching is increasingly important at law schools. Most law schools care about teaching more now than they did 10 years ago.

Q. Yeah, that's fabulous. So, let's talk about the job market. Who mentors these fellows through the job market process?

A. Mentoring fellows through the job market process starts with those faculty members who have already been in touch with fellows about their scholarship generally, but we also have instituted processes to support fellows in the six months before the AALS hiring conference. Fellows should review their FAR forms, CVs, and research agendas with a couple of different people. One person who is familiar with the FAR forms and knows how to get the right information in a small space, how to make strategic decisions about what you highlight, what boxes you check about geographic preferences, all of that stuff. And then, someone in the fellow's area who knows something about the market. We have an academic prospects committee that can help review those forms.

Like some other schools, Stanford also has a Moot Fest—days set aside to moot job talks, AALS interviews, and callback interviews

Q. So, do they have an opportunity, then, to do a moot job talk?

A. Yes.

Q. Who would attend that – other fellows? faculty?

A. Faculty are designated to attend and fellows can go as they choose. And most fellows do choose, because it's really useful to watch other folks’ job talks.

Q. And do they have the opportunity to do a mock screening interview?

A. Yes.

Q. All right. Do you support fellows who have to go on the market more than once? You mentioned earlier that the fellowship can be renewed for a third year. How does that work?

A. The third year is nearly automatic if performance is good. We don't necessarily extend the fellowship past three years. Occasionally, we've given folks a fourth year if a fellow has had a baby in the middle of the fellowship, or because they’ve been truly exceptional teachers and things just haven’t quite come together to go on the market.

We've had fellows who have gone on the market more than once. It's not optimal. And I say this some from my perspective as the person in charge of the legal writing program. It's not optimal, because going on the market is a distraction from teaching. One of the things I like about the three-year fellowship is it gives fellows a second year teaching, which is usually people's most successful year. The first year teaching is really hard. People don't know the ins and outs of the assignments, the ins and outs of what students know and what students don't know. The last year teaching is also hard, because that's when you're on the job market. So, we don't necessarily support, but in circumstances, we might support someone going on the job market a second time.

Q. Okay. Now, I'd love to talk with you less about Stanford's program and more about the rise of VAPs and fellowships more generally. Obviously, there's a lot of debate about this development. What do you think are the benefits to VAPs and fellowships and what do you think are the costs?

A. The benefit is that we prepare prospective law teachers for the work they will have to do when they get a tenure-track job. As one of my colleagues says, the fellowship—like a tenure-track teaching position—is a both/and job. You have to teach. You have to do scholarship. That's a heavy lift for anybody, and our fellows have demonstrated they can do it.

We also do a great job of getting fellows who haven't been imbued in a scholarly environment to think and write like an academic: what legal academia looks like and how professors and others create an intellectually stimulating environment. Closely related to that, for our fellows who’ve come out of law practice, particularly a social change law practice, fellowships help fellows develop an academic voice and an academic approach to legal questions that is quite different from the lawyerly advocacy voice and approach.

But there are downsides. I worry that the availability of fellowships has made them nearly a requirement and has made obtaining a tenure-track teaching job more costly. Have we just created another obstacle that makes it more difficult for law students to repay their loans? Have we created a market where law schools can pretty much insist that candidates have many publications before hiring? And does this make it harder for low- and moderate-income lawyers to become law teachers? I wonder if we are reinforcing that you have to be a member of a privileged class before you even go to law school, if you're going to be a law professor.

Q. Can VAPs and fellowships help address those costs by opening up the program to candidates from nontraditional backgrounds, or other diverse backgrounds?

A. Yeah, but I think you have to make that decision self-consciously, because it's not going to happen naturally. We have a couple of fellows with PhDs, and I am thrilled to have them. But it’s problematic if fellowships only or mostly hire fellows with both law degrees and PhDs. Then you’ve created a huge barrier to entry into legal academe, because law schools will insist on it.

Q. You may have seen on the blogs that there’s a perception VAPs and fellows receive so much help on their scholarships, that it can be hard for hiring committees to know how much of the work and ideas come from the VAPs themselves and how much comes from the school.

A. Yes, I’ve heard that’s a concern, but I don't think it's a problem, at least not at Stanford. I just don't think a faculty member who would ever take that kind of responsibility for somebody else's work.

Q. Last question. Given that time is a zero sum, time spent in a fellowship is time that's not spent, for example, in practice. What do you think about that trade-off, especially given that law schools are in the business of educating lawyers?

A. We've resolved that problem by hiring people who have substantial law practice experience. Lawyers with practice bring so much to our students. I'm not a big fan of the trend of hiring exclusively PhD's on law faculties. That will increase the divide between law practice and legal scholarship, entrench a certain disdain that some law professors have for law practice, and make it less likely that students will learn the skills and ways of thinking that they will need to be excellent advocates.

We've successfully hired and promoted fellows with law practice experience whose scholarship is informed by that experience and who are in conversation with law as it's practiced and as it affects peoples’ lives.

But I don’t mean to say that a PhD doesn’t have a place in a law school. I’ve heard lawyers and judges say derogatory things about legal scholarship that misses the point of the academic enterprise and is blind to the kind of impact that legal scholarship can have, even if it doesn’t touch most lawyer’s day-to-day practice much.

Q. Is there anything else you want to add? For example, anything you want hiring committees or prospective candidates to know about the fellowship? Or anything you just want to pass along about the state of hiring in the legal academy?

A. I want to send a message to hiring law schools that our fellows are really working hard. They have a lot of obligations on their plates in addition to legal scholarship, so they are already accustomed to balancing teaching and scholarship.

Q. Thank you so much for your time today. I really appreciate it.

Posted by Jessica Erickson on July 5, 2019 at 08:47 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (11)

Thursday, July 04, 2019

Must agencies be sincere?

I think that the answer must be “yes.” It is reversible error for an agency to justify a decision with a reason that the agency does not really believe. This rule against pretextual agency reasons is implied by 1) the rule against upholding agencies’ decisions based on post hoc rationalizations, 2) the analogy between agencies and juries in Chenery I, and 3) the role of political accountability and expertise in justifying agency authority.

But Justice Thomas’ dissent in Dep’t of Commerce v. New York gives me a chance to ask (both of) my readers whether or not I am correct. Is Justice Thomas really rejecting my intuition about agencies and pretext? Or is he simply making a much less controversial point about administrative procedure and evidence that the majority does not really question? Your thoughts are especially appreciated, as I am trying to throw together a memo on Dep’t of Commerce for my Leg-Reg students for next spring.


In Dep’t of Commerce, Justice Thomas decried the majority for “an unprecedented departure from our deferential review of discretionary agency decisions” that would, “if taken seriously as a rule of decision, … transform administrative law.” The alleged novelty? “For the first time ever, the Court invalidates an agency action solely because it questions the sincerity of the agency’s otherwise adequate rationale.” On Justice Thomas’ view, so long as agencies give “a reasoned explanation for his decision” in the administrative process that has sufficient support in the administrative record, the courts ought to uphold the agency, regardless of the agency’s sincerity. Nothing in Arbitrary and Capricious review under section 706(2)(A), according to Justice Thomas, “instructs the court to inquire into pretext.”

I cannot see how these statements, taken literally, could possibly be correct. My intuition is that agency officials’ findings must be sincere in order to sustain their decisions, meaning that those officials must really, actually believe the statutorily appropriate reasons that they cite for their decisions.

Here are three reasons — maybe just my own post hoc rationalizations — for this intuition.

First, consider Chenery I’s rule against courts’ upholding agency decisions on the basis of reasons that were not articulated in the administrative record. Justice Thomas quotes the relevant language from Chenery I: “[t]he grounds upon which an administrative order must be judged are those upon which the record discloses that its action was based.” Requiring agencies to articulate reasons in the administrative process, however, makes sense only if the agency really, actually believes those reasons. Otherwise, post hoc rationalization in a brief written up by DOJ lawyers ought to serve as well as the agency’s own “pre hoc rationalizations” in internal agency documents. The problem, in either case, after all, is rationalization — i.e., insincere reasons that are not truly motivations causing a decision.

Second, consider Chenery I’s analogy between agencies and juries. “Where the correctness of the lower court's decision depends upon a determination of fact which only a jury could make but which has not been made,” Frankfurter observed, “the appellate court cannot take the place of the jury.” Likewise, “[i]f an order is valid only as a determination of policy or judgment which the agency alone is authorized to make and which it has not made, a judicial judgment cannot be made to do service for an administrative judgment.” This analogy suggests the insufficiency of pretextual reasons as justifications for agencies’ decisions, because juries cannot support verdicts with pretextual reasons, even if those verdicts are supported by substantial evidence in the trial record. Imagine, for instance, that a jury were to deliver a verdict against a defendant because they learned (say, by way of cell phone Google searches) that the defendant was an unpleasant, disagreeable person. Assuming that unpleasantness and disagreeability were legally irrelevant to the question being tried, the jury’s basing their verdict on such improper considerations would be reversible error, even if there were ample grounds in the trial record allowing the jury to rule against the defendant for other, legally relevant reasons.

Third, consider the justification for agency power in either or both expertise or political accountability. Neither expertise nor political accountability can be advanced by insincere reasons. An expert that offers an opinion that the expert does not really believe cannot confer any authority on that opinion by virtue of his or her endorsement of it. Consider a homely analogy: Suppose that some doctor tells you that you do not need to lose weight in order to avoid a heart attack, citing some study suggesting that people with your body-mass index are not at higher risk of coronary problems. If that doctor then later informed you that she did not really believe the study, then the value of the doctor’s endorsement would evaporate. Of course, the doctor’s insincerity would not undermine the value of the study itself, but you could read the study yourself without paying the doctor’s fee. To the extent that the doctor’s opinion was supposed to confer additional weight on the study, that opinion becomes weightless the moment that doctor herself states that she does not actually believe it. The same goes for political accountability. If the point of reason-giving is to give voters the opportunity to evaluate the real reasons for an agency’s decision, then pretextual reasons undermine such political accountability, because voters cannot see the real reasons hidden behind the pretexts.

The case against upholding agency actions based on pretextual reasons, in short, seems to me overwhelming. I am inclined, therefore, to give a charitable reading to Justice Thomas’ dissent. He cannot really be arguing that pretextual reasons suffice to justify an agency action. He is instead arguing that courts must adopt a super-strong presumption against inferring that agencies’ stated reasons are pretextual.

It is hard to disagree with this basic evidentiary assertion — so difficult, in fact, that I do not think that the majority disputes it at all. Chief Justice Roberts simply states that there must be some limit to even the strongest presumption of sincerity. The analogy to juries, again, is helpful. Ordinarily, lawyers cannot challenge a jury’s verdict by demanding discovery on the jury’s internal deliberative processes, because there is a super-strong presumption that the jury bases its verdict on the judge’s instructions on the law and the trial record. If, however, jurors’ misconduct (say, decision-making based on legally irrelevant facts discovered through Google searches) comes to light through, say, post-trial interviews of individual jurors, then that misconduct can be the basis for further inquiry. If further inquiry reveals that, yes indeed, the jurors all relied on a Google search of irrelevant matter to reach their verdict, then the court can order a new trial based on such misconduct.

Likewise, courts do not ordinarily allow extra-record discovery into an agency official’s thought processes when reviewing agency action. But if the record itself indicates that the stated reasons were not the agency’s real reasons, then the court cannot shut its eyes to record evidence of pretextual reasoning that is staring the court in the face.

The majority opinion, so far as I can tell, accepts the super-strong presumption that Justice Thomas’ (charitably reconstructed) dissent demands. So I am at a loss as to how the majority opinion “transforms administrative law” as Justice Thomas alleges. But I am counting on you, gentle reader, to set me straight by explaining to me (and my students) what I am missing.

Posted by Rick Hills on July 4, 2019 at 03:49 PM | Permalink | Comments (5)

It's the district court order, not the SCOTUS affirmance

On the eve of Friday's hearing on the next steps in the census case, more thoughts on nomenclature: The concern about the should not be framed as "The President is disobeying a Supreme Court decision."* The concern should be framed as "The President is disobeying a court order."

[*] Decision is an imprecise word, in any event. The court issues a judgment/order and the court issues an opinion explaining that judgment. I suppose a decision encompasses both of those. But when the judgment/opinion distinction matters, as it does, the specific words are preferable.

The key is that an injunction, entered by the district court, is in place and prohibits the printing and use of a census form with a citizenship question. That order prohibits the government from proceeding with a census containing that question and that order is what the President, Commerce, et al. violate if they proceed with the question.

That the Supreme Court affirmed the district court injunction is beside this point. SCOTUS affirmance means the government has nowhere left to turn within the judiciary. But it does not add greater force to the district court's injunction. Government officials violate the order by proceeding with the census-with-citizenship-question--whether they had proceeded the day before SCOTUS affirmance or the day after SCOTUS affirmance.

Posted by Howard Wasserman on July 4, 2019 at 12:29 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Independence Day is not military

The President has added military elements (including tanks that may damage the bridges into the district) to the Independence Day celebration on the National Mall. Many argue that this reflects the ostentatious military parades staged in the former Soviet Union, North Korea, and other authoritarian regimes trying to convince their people and the world of their power and greatness (which they usually lack in reality).* Unfortunately, these are the governments and leaders the President likes and respects and wishes to emulate.

 [*] As Tom Nichols puts it in The Atlantic, Trump "has blown through the romance of Bastille Day and past the stodgy opera of the Soviet May Day reviewing stand, and is now squarely in the North Korean 'Because I feel like it' mode." 

I want to offer a different criticism: A  military display does not reflect what we commemorate and celebrate on Independence in the U.S. The signing of the Declaration was an expressive and political act. And it was nominally grounded in theoretical and philosophical terms of consent of the governed, the law of nations, the purposes of government, and human rights--all decidedly non-militaristic ideas. This holiday should not be celebrated in militaristic terms because it does not mark an historic military action.** I reacted the same way several years ago when the m.c. at the small-town celebration I attended announced that the day was about the men and women in the military.  The evolution of the world from 2011 to 2019 can be seen in the evolution of this militaristic conception from the uninformed remarks of the speaker at a celebration at the Delaware beach to the President commandeering the Capitol concert and fireworks for his own display of military force, while threatening to ignore court orders.

[**] France's historic act of independence was a military event, so it makes some sense to celebrate with a parade. The equivalent for the U.S. might be commemorating Yorktown, the culmination of the military force that was necessary to secure what we mark on the 4th of July. But we do not do that. Or it might be Lexington and Concord, somewhat analogous to the storming of the Bastille. But Boston celebrates that by running a long race and playing a baseball game.

Rather than tanks and planes, the best move would be to return to Mark Twain's suggestion that public celebrations include a reading of the Declaration.

Posted by Howard Wasserman on July 4, 2019 at 09:31 AM in Howard Wasserman, Law and Politics | Permalink | Comments (4)