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Saturday, August 17, 2019

Hit Man Podcast

iHeart Radio has a new podcast titled Hit Man, which tells the story of the book "Hit Man: A Technical Manual for Independent Contractors," the murder it supposedly inspired, and the lawsuit against publisher Paladin Press, in which the Fourth Circuit held that the book was not entirely protected by the First Amendment under Brandenburg. Also worth reading is Eugene Volokh's Crime-Facilitating Speech, which sought to develop a speech-protective framework for speech that provides information that can be used for bad purposes but that does not incite or advocate (under which I believe the book would have been protected).

It is in eight parts. The first episode, giving some background to the book, was quite enjoyable.

Posted by Howard Wasserman on August 17, 2019 at 11:18 AM in First Amendment, Howard Wasserman | Permalink | Comments (0)

Friday, August 16, 2019

Nomenclature and the real issue on the scope of injunctions

A Ninth Circuit panel refused to stay a preliminary injunction prohibiting enforcement of new asylum regulations. But a divided court narrowed the injunction from its "nationwide" scope to the extent it applies "beyond the Ninth Circuit," because the district court had not found that beyond-the-circuit scope was necessary to remedy the plaintiffs' harm. The decision, while proper, illustrates the importance of the problems of nomenclature and the misunderstanding of what is at stake.

The plaintiffs in the action were four California-based organizations that represent asylum-seekers; the district court found they had organizational standing because they would lose clients and funding and be forced to divert resources as a result of the regulation.*

[*] The district court also found the organizations within the statutory zone of interest, although that no longer should be part of the standing analysis.

The focus of the scope-of-injunction analysis thus should have been the four organizations, not California. The injunction should have been limited to prohibiting enforcement as to these organizations. But it should have protected those organizations everywhere in the country--states within the Ninth Circuit as well as any other states in which they may represent (or seek to represent) asylum-seekers. Perhaps that means the injunction would reach California and Arizona only, if these organizations only represent clients in those states; outside-the-states application is not necessary to remedy their harm if they do not work outside those states. But to the extent they work outside California and Arizona, their harm is remedied only if the injunction protects them outside of Ninth Circuit states.

And that is why the term "nationwide" does not work. All injunctions should be nationwide in the sense of protecting the plaintiffs wherever in the nation they are--that is the only way to remedy their harm. The problem in this case (and others) is that the district court's injunction purported to prohibit the government from enforcing the regulation beyond these four organizations. The problem is that the injunction was not "particularized" to the parties to the case, but attempted to apply to the "universe" of people and organizations affected by the regulation.

The court thus should have "grant[ed] the motion for stay pending appeal insofar as the injunction applies" beyond the four plaintiff organizations in this action.

Posted by Howard Wasserman on August 16, 2019 at 02:25 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Interview with Gordon Silverstein about Yale Law School's Ph.D. in Law Program

For those of you who have been following my interview series, you know that it generally focuses on VAP and fellowship directors.  This interview, like my earlier interview about Berkeley’s JSP program, focuses on a related, but slightly different, trend in law faculty hiring—the increase in the number of entry-level hires with Ph.D.’s. I interviewed Gordon Silverstein, the Assistant Dean for Graduate Programs at Yale Law School, about Yale’s Ph.D. in Law Program.   An edited transcript of my conversation with Gordon is below, and I have invited him to respond to any questions in the comments.  Thanks, Gordon, for participating in this series!

You can read more about the structure of these interviews and other caveats related to them here

Q. Can you start by giving me a brief overview of Yale's Ph.D. in Law program?

A. I think it emerged from a few concerns – One was that with a growing number of students interested in law teaching were doing PhDs and other degree programs in addition to their JD, too often student would become great economists, or political scientists and sort of flip the script – instead of being legal scholars who used economics or political science, they became economists who used legal material. This may seem a subtle point, but it’s not: Consider normativity. You won’t get far in legal scholarship without serious normative concerns. But an economics PhD committee will strip the normativity out of your work. Some students can move back and forth, writing very differently for the different fields, but others end up stuck in the middle and satisfying neither.

The PhD in law also was meant to engage a conversation about the issue of disciplinarity itself. Is law a discipline like Economics or Chemistry with clear and agreed upon methods? Or more of a field like political science, bound together by the subject under study, the question rather than a uniform method. What does it mean to study the law and how should we go about doing that?

And it was designed to bring greater rigor to the process of training people to become professional students of the law. There would be specific course work, exams, writing requirements and the supervision of a three-member faculty committee among others.

Q. Is the idea that basically everybody who goes through the Ph.D. in Law program will then go on the legal academic job market?

A. Yes. The program is aimed directly at academic law. We expect some students may well end up in public policy arenas, or pursuing other related interests, but the objective is to prepare students for a life of legal scholarship.

Q. And what is your role with the program?

A. I am responsible for the program administratively. There is a faculty committee that oversees the program and a faculty member who serves as the Director of Graduate Studies – a role mandated by the Graduate School of Arts and Sciences which is the unit at Yale that is exclusively authorized to grant the degree of Doctor of Philosophy. Our students receive their degree from the Graduate School and for purposes of this program we function much as would any other PhD-granting department. Being a part of the Graduate School is a big plus for our students, who can take courses anywhere on the campus in any program, division or school, and they are welcome to teach in Yale College and across the campus. While this is not an explicitly interdisciplinary program such as the Berkeley JSP, we welcome students looking to the other departments and schools to supplement their studies in the law school.

Q. Okay. What I'd love to do is essentially move through the Ph.D. program chronologically, starting with the application process, then moving to the Ph.D. coursework and dissertation themselves, and then the job market. Can you tell me when the Ph.D. program starts to accept applications?

A. Applications open on August 15, and the deadline to submit an application is December 15. Though we don’t formally offer a rolling admission, we can provide an earlier decision for those facing hard deadlines with other programs.

Q. And what materials do applicants need to submit?

A. Candidates are asked to submit a personal statement about their motivations and qualifications, plans and interests. They are asked to submit a research proposal for their dissertation – which can take the form of a traditional monograph, or three related law review style articles. We ask for a writing sample – which might be a published article, an article in preparation, or perhaps an article they wrote in law school. In addition we ask for a CV, undergraduate and law school transcripts and letters of recommendation.

Q. And do you conduct interviews of applicants?

A. Not as a routine matter. There have been instances where the faculty admissions committee wanted to get more information and has conducted some interviews, but it's not a regular part of the process.

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

A. It has varied from about 30 to about 90.

Q. And how many people do you admit and then enroll?

A. We have a limit of no more than five students in each cohort, and some years we have accepted fewer than five. We have had the good fortune to have enrolled every student we have admitted, giving us a perfect “yield” to date – but the numbers are small so I don’t want to over emphasize that point!

Q. I'll admit, I don't know a lot about the financial side of Ph.D.'s, so I'm going to ask an open-ended question which is, how does that work? Is there financial aid? What are the stipends?

A. This is a fully funded program – students pay no tuition and are provided with a living stipend, and full health coverage. The living stipend – set by the Graduate School – currently is about $32,000 a year (which I have to say goes a good deal further in New Haven then it might in some cities to the north or west. Students should complete the PhD without any additional debt. We also provide them with research funding from the Law School, and access to a number of very generous research support programs across the campus.

Q. And is that stipend for teaching?

A. No. They do have a requirement of two teaching experiences, but these are quite explicitly meant to help them learn pedagogy and classroom technique. They can fulfil this requirement in a number of ways – but their stipend, which they can receive for three and sometimes four years, is not connected to the teaching.

Q. Okay. So let's go back to the application process. Who actually decides on the applications? Is that a committee?

A. Yes. I do an initial read and sorting of applications, and send along the most promising files to the faculty committee. Yale is still a remarkably hands-on faculty governed institution and the final admissions decisions rest with the faculty committee.

Q. And what is the committee and you looking for in this process?

A. It's a highly qualitative kind of an evaluation. We're looking for people who both have an original and creative cast of mind, as well as the quality of mind that we believe will thrive in an academic environment and allow them to make real contributions to important academic and public debates. We are looking for evidence of their capacity to write, to engage in serious analysis and make real contributions. We look to the writing sample and research statement to provide evidence for of these qualities, and the letters of recommendation to help us see the qualities of mind that we are after.

Q. So let's talk about that research statement a little bit. What are you looking for there to try to judge the quality of somebody's thinking and their promise as a scholar?

A. One could turn the question around and say when you finish a book or an important article, "Well, that was a really good piece." There are a lot of things that might go into that final evaluation. Was the question they tackled important? Did they understand the foundations under the work they were doing? Was it surprising in some way? Or, not at all surprising, but definitive, and compelling treatment of long and difficult problems? Was it convincing? Was it compelling? We don’t expect them to have the answers at this point, but we do hope we have enough to get a sense of their insight, their creativity, their cast of mind. It isn’t easy. You are making a guess about where someone can and likely will reach in 10, 20, 30 years. But do you see the spark? Is there evidence to justify taking a risk?

I think any of us who've been in a classroom, you know, have been struck time to time by a student question or comment. They help us to see something fresh and different than we have seen so often. We know a fresh perspective. We can spot (or we like to think we can spot) potential and raw talent. We wold love to see those students in our program and help them bring out and refine these raw qualities. Each case is quite independent of the others. And because it is a small program we have the luxury to take the time and really read deeply into their materials and the letters of recommendation.

Q. For the candidates to come to that level of knowledge that they can be asking these types of good questions and be familiar with the literature, where are they finding the time to do that? Where do they acquire that knowledge?

A. That varies a great deal as well. Some candidates come to us directly from a J.D.. Some from clerkships and/or private practice. Some from government or public policy. Where they found the time to do the writing they present is sometimes a mystery. For some the writing sample might be a law school paper, or perhaps an article written just after law school.
Some might have skimped a bit on their billable hours. Others just burned the midnight oil. And some are coming from VAPs or other fellowships where they were able to write.

But again, as I said it's not so much that we're looking for a finished piece by any means. It's just that we're really trying to get a sense of, how are they approaching this? Do they have a sense of the kinds of things they need to know, even if they don't know them yet? And as far as the literature mastery, no, I mean, there's no expectation of that.
That’s part of what they are coming to do in our program.

Q. How much does practice experience matter in the application process?

A. We have had some very successful PhD students who came to us from practice, but I’m not sure that practice has played a particularly central role for our candidates, though I suspect some have drawn on their experience to improve their questions and deepen their appreciation for the complexity of a number of important issues.

Q. Do you have any preference for applicants in particular curricular areas? And let me say I ask this question because obviously when it comes to the entry level job market there's more demand in certain curricular areas than others. Is that something you're taking into account?

A. No, not really. Yale has long subscribed to the objective of finding “the best horse in the field.” In part because we are making guesses about the market 3 or 4 years out. What was hot last year may be in the doldrums five years later. We do emphasize that our students should be comfortable and competent in teaching the basic courses, but in the end we can them to truly excel in their research and writing and that is hard to do if you are working on a paper in a field far from your own interest and commitment.

Q. Do you make any special efforts to recruit and admit candidates from diverse backgrounds?

A. We have been extremely fortunate and have discovered that the PhD program has been a real asset for students from diverse backgrounds. The traditional route to law teaching very much favored those with deep personal and family experience in elite education. For first-generation law students, the profession of legal academe may be unknown. By the time they realize the importance of personal recommendations, the utility of working with faculty on their research, and have gained a vague understanding of the process, they are well into their second or third year of law school. The PhD in law actually was particularly well placed for these students. Having discovered their interest late in law school, they could learn the professional ropes in a program that would give them structure, form and support. Our program gives them a chance to engage with their peers on a level playing field. And our program has attracted and very successfully placed a number of first generation law students, as well as other under-represented groups. It was not an explicit goal for the program originally, but it has been a very pleasant discovery.

Q. So how would you advise somebody who may not have gone to Yale Law School, or one of the equivalent schools, who didn't have an elite clerkship? How would you advise them to try to stand out in the application process?

A. It's the writing. Write, read, and try to get published. And it doesn’t have to be a giant law review article. Show us what you’ve got – maybe it’s a book review. Maybe it’s a law school paper. The advice is the same as we all give to all aspiring law professors – write, write, and write some more. Then take some of that writing back to your law school professors. Ask them to read – even if it’s just an abstract. Engage them. Get them excited about the work. And if you don’t have that sort of relationship with a faculty person at your own law school, you can even try to blindly engage faculty elsewhere. Read what they write. engage them on their own ground with questions, comments. Once you have their attention, ask if you could send an abstract. If that goes well – they will ask for the paper, or you can offer it. And you might just be off to the races.

Q. The successful candidates, how much writing do they typically have when they apply? Do they have a published article? Do they have more than one published article?

A. That varies a lot. Some have published articles – either as JDs or in the years since. Some have unpublished articles. And some present a set of shorter pieces. I think as a general rule the more writing the better.

Q. How many Ph.D. students in law are in residence in a given year?

A. Also variable. Course work is mostly in the first year in the program, and we have had students taking leave to take up a clerkship – making the PhD program flexible to adapt to the long lead time many students have with clerkships. And our cohorts are small. But I’d estimate that we have between 5 and 12 on campus.

Q. And how many at a given time are in the Ph.D. program total?

A. I would say about 10 to 12.

Q. Can you tell me what the Ph.D. program involves? In other words, you said there was one year of coursework. What courses do they take during that year?

A. The only course that's mandatory for all of the PhDs is a two-semester course on “Foundations of Legal Scholarship.” Beyond that, they are welcome to identify courses in the law school, or in any school or program at Yale University that will provide important foundations for their work. The number of courses and the specific choices are left to student to work out with their three-member faculty advisory committee. The ‘Foundations’ course is often led by two faculty members to provide two perspectives on some of the major works in legal scholarship. The first semester is focused on intensive reading across the literature of what you'd expect any credible legal academic should have grappled with, the materials that help define the enterprise of legal scholarship. The second semester is effectively a writing workshop where the students work with each other and the faculty instructors to build and workshop their first paper.

Q. Are they taking any other classes? You said only the foundation class is required, but are they taking other classes in the law schools or elsewhere?

A. Yes, and this will vary a great deal as I noted. For some they will look to the social sciences for methods training, others to History or Political Science, Philosophy or Sociology, the School of Management, Forestry and Environment, perhaps the School of Public health or even (though it hasn’t been done yet) the Yale Drama School. These choices are developed in conjunction with their committee. Each student has a three-faculty-member committee, a chair and two other members of the committee, and so they'll sit down with them and talk about what would be logical courses. And mostly, it has been courses in the Law School. So there is an expectation that they will take a total of four courses – some may take more, some may take less, as they work out with their committee. (It is important to note that all PhD in Law students must have a JD before matriculating to our program, so in effect they already have three years of law courses under their belts..

Q. How many years do they typically take to complete the Ph.D. program?

A. To date nearly all our students have completed the program in three years – though we are open to consider (and have granted) a fourth year in appropriate cases – to support research travel time, archival work, or specialized methods training. So it is set up as a three-year program with some flexibility. But that’s a misleading since, as I noted, all of our students have a JD in hand before starting the PhD – and we consider that part of the fundamental training that they must have in this profession. So you could see our program as something between three and six or seven years, though the time in the PhD program itself is three and sometimes four years.

Q. So the first year is primarily focused on coursework and getting their writing in that seminar off the ground.

A. Right, and we're kind of following the modern social science approach, which is to say that they can choose (in consultation with the their advisors) to complete a traditional monograph, a book-length piece, or three related law review-style articles. And I think all of them so far have chosen the three article approach, which probably makes sense given the market for law faculty and what hiring and then promotion committees will expect in the early years in their career.

Q. Is writing those articles the primary focus of the last two years of the Ph.D. program?

A. Yes. Writing, workshopping, in many cases presenting work at conferences and invited talks. They do have a teaching requirement to help them prepare for their future career, but this can be fulfilled in a number of ways – as a T.A. in law courses or in courses in Yale College or the other professional schools. We also have an arrangement with the Quinnipiac Law School that allows some of our students to go up and teach an independent course at Quinnipiac. They also have access to Yale’s programs and support for teaching which is offered to faculty and students involved in course teaching. This can range from informal workshops to a far more formal certificate program in which a few of our students have participated.

Q. Just focusing on that teaching side, can they teach an independent course at Yale Law School?

A. No. The faculty, I think to its credit, tries very hard to make sure that the vast bulk of the curriculum is taught by tenure-track faculty. Our students can co-teach a course with a faculty member and there are some informal courses they can lead, but if they want to teach a fully independent course they would either do that through Yale’s residential colleges which offer about 28 students a year the chance to develop and teach an independent course or pursue the opportunities we have arranged with Quinnipiac, where they also are video-taped and mentored by experienced faculty.

Q. And what do most, what's the norm? It sounds like there's lots of different options. What do most of the Ph.D. students do?

A. You know, I think it spreads right across the range a few have taught independent courses at Quinnipiac, others have taught in history and other cognate fields in the College and some have TA’d or co-taught at YLS.

Q. Okay, that's helpful. One of the conversations that we’ve been having right now on prawfsblawg is how much time Ph.D. students have to devote to their scholarship. I’m wondering if you were to try to break it out percentage-wise, of those last two years, how much of their time are they spending on writing and how much do they spend on teaching or other things?

A. I would say 60-75% on their scholarship.

Q. That's a lot. That's great.

A. This is one of the real differences between our program and some of the long-established Fellowships like Climenko and Bigelow which divide their Fellow’s time between teaching legal writing and working on their scholarship. I think it is great that there are a number of pathways to the legal academy, and the legal writing fellowships are superb opportunities that are perfect for many candidates. We think the PhD is just an alternative model.

So the idea is to put the maximum effort on their own scholarship, with direct support for them to develop as teachers as well as academic professionals. And the two – teaching and scholarship – often support each other. My own case is a good illustration – I had the opportunity to teach my own course as an undergraduate seminar during my PhD program. That course grew into my dissertation, which became my first published book. And I went on to teach that course off and on for about 20 years. So teaching can have a direct pipeline into the scholarship. But that aside, it is overwhelmingly scholarship, that's the focus of their time.

Q. And what does that mean in terms of where the students are actually located those last two years? I imagine they have to be in New Haven for the first year but do they tend to stay in New Haven for the last two years or do they spend some of it elsewhere?

A. Most of our students have been in New Haven for the full three years, but we have a couple of commuters and a couple who took up tenure-track positions in their second or third year, and are continuing their PhD writing from those campuses. While it would be wonderful to have everyone here for three years, this is a slightly older population than the typical PhD (because they already have three years of post-graduate education in their JD, and many have had clerkships and/or been in practice for a year or two. So some have spousal employment considerations and other reasons why they need to commute. Tele-conferencing has really helped make this work, and we have fully equipped seminar rooms that can bring all of our students together for workshops or presentations.

Q. Okay. Let's talk then about the workshop culture for the Ph.D. students since most of them are around to take advantage of it. Do the Ph.D. in law students get together professionally? Do they have their own workshop series, their own student organizations, something like that?

A. Well student organizations, I mean again it's just too small, to warrant separate organizations. But they are welcome to join – and have actively participated in – programs in the Law School and indeed, one of our PhD candidates actually launched a very successful new student organization that involved a number of JD candidates as well as JSD, LLM and PhD students. The second semester of the foundations seminar is effectively a workshop of their own work, and that's with other Ph.D. students and sometimes with some of our JSD students who join in, as well as students from related fields who might join from time to time. Our students – since they are students of the Graduate School of Arts and Sciences – also participate in graduate student organizations and participate in the intellectual life of related fields.

Q. Can they go to the Yale faculty workshop?

A. Yes. In fact we strongly encourage them to attend the Faculty workshop in their first semester and beyond. In addition they are urged to participate in other long-standing workshop programs at the Law School, such as the Legal Theory Workshop, Law and Economics, and Legal History. We encourage them to participate in these, as well as workshops in the ISP (Information Society Project) and other centers. It is a delicate balance – these workshops and the myriad of events at Yale Law School and in the University are wonderful, but can easily eat up enormous amount of time, so they have to balance these opportunities with their primary task of research and writing. But the workshops are an important opportunity for professionalization in the world of legal academe.

Q. You mentioned that each student has their own committee. How is that committee formed and what assistance does it provide over the three years?

A. Right. This was actually one of the dilemmas for those who built the original program: There is a logic in students seeking out their own committee – but this would be far more difficult for applicants who did not do their JD at Yale. We wanted to open the program both to Yale JDs and to others. And so what we came up with, which I think has worked very well, is that when the Committee has agreed to admit a student, the Committee approaches faculty members and builds an initial committee for each admitted student. Unless we can secure an enthusiastic committee for each student, we won’t admit them. Once they're here, they're welcome to change that committee as their project develops and they get to know the Yale faculty. But we actually put together the initial committee.

The committee is there to advise them on their coursework, it's there to provide feedback on their writing, it's there to advise them professionally in terms of preparing for the job market. As with any committee, the chair is going to carry the bulk of that but the other two are there to provide some alternate perspective as well. In addition the Committee administers the student’s oral exam – this is a traditional PhD with exams and other required benchmarks. And one role the committee plays is to put together a reading list with the student which becomes the basis for their oral exam in the fall of their second year.

Q. Are they then talking with their committee over summer between the first and second year about their reading list or are they just on their own there?

A. They build a list in conjunction with a committee and so that will vary. Some committees will say to the student, "you put together the initial list and we'll edit it," or they'll work collaboratively on building a list. it varies from faculty member to faculty member. And then it's a traditional Ph.D. oral exam. It's a 90-minute exam with the three committee members and the student. You know, and in an ideal world those just become terrific intellectual conversations and it's really an opportunity to sort of begin to knit together these different pieces that you've been preparing in the first year. And you know, it's certainly not an exam where we expect people to fail and it's certainly not designed to do that all, it's designed to actually give them an opportunity to begin to put things together and synthesize what they've been studying.

Q. We’ve been talking a lot about the scholarly side. Coming back to the teaching side for just a moment, is there any training or mentoring related to teaching specifically in the Ph.D. program?

A. There is. We observe them in the classroom, we tape them and review the tapes. And there is an extensive new center at Yale to help anyone in the classroom from TAs to Senior Faculty. They offer workshops and even a certificate program in teaching. This is not required but some of our PhDs have taken the certificate course and were very enthusiastic about it.

Q. Let’s step back and compare the Ph.D. in Law program with some of the other options that applicants might be considering. I imagine somebody applying to the Ph.D. in Law program is probably trying to decide between this program and perhaps a disciplinary Ph.D. program, Berkeley’s JSP program or a law school fellowship. What would you say to candidates who are weighing Yale's program against these other options?

A. That's a really good question. I think that these are all valid and effective pathways to law teaching, and different candidates will benefit more or less from different programs. But it is important to recognize that they are very different. I think the legal writing fellowships offer the most distinct contrast. These programs provide great support and access to academy, but those do come with an obligation to spend 50 percent of your time teaching legal writing. This is an incredibly important thing for law students to learn, but the odds are it is the one course these fellows will never teach again. So there is a sharp learning curve with a limited long-term benefit. That still leaves a lot of time and support for writing and research but it is a significantly different allocation of time. The PhD has a teaching requirement, but for most of our students, they can make use of that prep in the future.

There is an upside tradeoff which is that right now the leading fellowships do provide higher compensation than the Graduate level stipend we provide. But then again, half the Fellow’s time really is more like a job (a wonderful job, but a job) and that’s not the case with the PhD

Turning to the other PhD programs, particularly JSP at Berkeley. JSP is really unique. It's the quintessential (and successful) instance of interdisciplinarity and is, I think, the best at what it does. The faculty are comprised of sociologists and historians, philosophers and political science professors. It grows from and between these disciplinary traditionsl The PhD in Law at Yale is not designed to be an interdisciplinary program – though we welcome interdisciplinary work. It is otherwise structures quite similarly to our program – exams, committees, dissertations. I think the great difference there as I said is that (and I would say this about disciplinary Ph.D.s also) is that you're an economist who uses law as your subject matter. You are a historian who is informed by law or studying the history of law rather than a legal scholar who uses history or economics or statistics.That sounds subtle, but I think it's actually a little bit more profound. I think that a lot of what JSP does and a lot of what cogante disciplinary Ph.D.s do, is of course to train you in the method and standards of that particular discipline. So, as in the economics example, they will spend six years beating you in the head to stop any normativity from leaking out. Then you'll finish that. You'll get your great job in law and then you'll come over and people will say, "Well, what's your normative bite on this?"

Some people can do that. Some people can move between those two worlds. They can function in the hard social science world and then flip over and function in the more normative legal world. But, it's hard to do that. It's really hard to do that. And I do worry that people can flounder when they try to do that. You know, I think that as between a disciplinary Ph.D. and ours, what's been lacking all these years and what our program I think begins to address, is that starts with a very self-conscious question. What is it that we are doing as legal academics? Are we really training people to be practicing attorneys while we do a little theorizing on the side, or are we genuinely an academic discipline in our own right? I think that answer is clear. We are and have been academics for at least 60 or 70 years. But, unlike every other discipline, we haven't done any of that kind of self-inspection or retrospection on who we are and what we do and why we do it.

So, these great methodological debates that go on in other disciplines really don't happen in law. Many will look to other disciplines to set their standards, and still others write wihout a great deal of attention to method. And there are those who come from practice for whom these grand debates hold little interest.

I cannot imagine ever that law will be like the other disciplines, where everybody would have to have a Ph.D. in Law in order to be on the faculty. Law Schools will also be a mix of professional and academic and that is how it should be. So I can’t imagine that it would make sense for every faculty member to have a PhD in Law. But I can imagine a time when every law school would want to have one, or two or three faculty members who have a PhD in Law – to ask these questions and spark a real conversation about law. I think that would be a very, very valuable thing.

Q. Let’s switch over to the job market and the mentoring that the Ph.D. in law students receive as they head into the job market. Basically, everyone who goes through the program, is anticipating going onto the law teaching market. Is that right?

A. Yes

Q. And what type of mentoring generally do they receive?

A. Well, I think they're getting a lot. They're kind of getting a double bonus from Yale. Yale is already so small that they can’t help but have frequent contact with their Committee, but also with a wide range of faculty who may not be directly in their field, but offer real insight and useful challenges. It sometimes took me six months to get an appointment with one of my own PhD Committee members but here you're going to run into these people every day. I mean we're the size of a small high school. So, I think that that's a big factor. Beyond that though, we have a pretty extensive and well-developed program to help students, JDs, JSDs and Ph.D.s alike, who are interested in academic jobs and moving into the academy. It includes an extensive law teaching seminar series, including speakers from recent graduates and faculty. We offer mock interviews, mock job talks and expose them to the art of workshopping.

When they are ready to go on the market, we have a faculty committee that will help them from AALS strategy , to job talks to contract negotiations. We will help them polish abstracts and critique cv’s. The Ph.D.s are sharing in what is available to any Yale graduate. But beyond that, they're also getting, I think, the much bigger bang for their buck, because they work closely with a faculty team, not only on their exams, but on their papers.

What we all know is, it's not enough to have a letter of recommendation. It's got to say something. And to say something, it's got to be a faculty member who really knows your work and can actually comment on it. That's a useful recommendation to other committees. And I think this is one of the hardest things for students to understand, is that having a two line letter recommendation from Bill Clinton is not nearly as useful as a four page letter from an assistant professor who knows your work upside down. And can really help the committee to understand what it is that you do and what your contribution is. So, the fact that they've got this committee built in that they've been working with them, these are people that really can comment on the quality of their minds, the quality of their arguments, the quality of their writing and all the rest of that.

Q. So, thinking about that and how it's actually played out over the last couple of years, how long has the Ph.D. in Law program been in existence?

A. The first cohort got here in 2013 and graduated in 2016.

Q. Of the students who have graduated, do you know what percentage has landed in tenure track law jobs?

A. 96% of the PhD in Law students who went on the market have gotten tenure-track law jobs. One person didn't go on the market, and one person went on the market, but then decided to get some real world experience. I except that person to return to the market and to place well.

Q. Is there a list of the graduates online somewhere that I might be able to link to?

A. We have profiles of all the current candidates. [Here’s the link.]

Q. Does the program support candidates who may have to go on the teaching market more than once?

A. You know, the year this program was conceived and approved by the faculty, that was the high point of academic hiring. By the unofficial count first maintained by Larry Solum and now by Sarah Lawsky, there were 166 tenure track jobs in the market that year. The year that that first cohort graduated (2016), I think that was the year that we had 69 new jobs in the market.

So we are in a totally new world in law teaching. In 2009, 2010, if you didn't get a job, then there must be something wrong with you. In 2016 if you DID get a job, there must be something wrong with you.

Q. So, does that mean that students can stay on for, let's say, a fourth year if they need to, to go on the market a second time?

A. We are open to the possibility of fourth year. But, so far we haven’t needed that because people didn’t place, instead we’ve offered it for student’s whose research and writing proved more complicated, or perhaps there was a personal health issue or family issue. Would we consider a fourth year for someone who didn’t land a job their first time out? We certainly would consider it but, as I said, we have been fortunate in not having to face that decision.

Q. That’s a nice problem to not have faced.

A. Agreed. As I said, we’ve placed 96% so far … but this is a very small program. And it is a program that helps them produce the coins of the realm – original compelling research and writing, Our student fo on the market with two or three well placed articles and a third one well underway, which would be their job talk paper, possibly even already accepted.

They can really hit the ground running. They come out with extensive experience presenting to faculty and to peers. Some of them have coauthored with faculty. I think it's been refreshing that, we have both Yale JDs, but also people from other schools, which brings some fresh insight into the building. I think that's very useful.

I think it's really more a question of people making choices about what it is they want to spend their time doing. I think that there are people that will be very successful law professors that don't necessarily have that kind of deep, deep intellectual, passionate curiosity. And that's fine. But, as I said before, I think that you want both. You want people in a law school that are doing and training people for practice, for public policy, for every possible career out there, including legal academics.

Q. That’s actually a perfect transition into some of the broader questions.

A. Sure.

Q. I'd love to get your thought on about the rise of Ph.D. programs and VAPs and fellowships. What do you think are the benefits of the rise of these programs as an entry point into legal academia and what do you think of the cost?

A. I would put Ph.D.s and advanced degrees in a separate category from the VAPs and fellowships. I think the real leg up of the PhD and other advanced degrees is just the time and resources to write. Some of the fellowships do that as well. I think it can be enormously helpful intellectually, but it can also have the unintended consequence of leaving you in no-man’s-land between a cognate discipline and the field of law. But I think students who pursue a PhD now for purely instrumental reasons will be disappointed. The credential alone is no longer so unusual, and it is a long hard road to get a PhD and that’s an investment you have to want deeply in your soul and not just as a surface, instrumental factor.

On the demand side, I think in the go-go years before the great crash of 2008, there was a growing interest in interdisciplinarity, and a desire to build law schools on an ever-more academic and theoretical foundation. Schools were growing and a PhD was a luxury they were eager to obtain. But with the slashing of new jobs, the emphasis is really on what you have and can produce. If I PhD helps you produce, that’s great – but it’s not clear to me that a hiring committee much cares whether your productivity was due to the time and support you had as a PhD, or just your hyper efficiency in your down time. What matters is what you’ve produced which is also thought to be evidence of what you are likely to produce in the future.

Back to the supply side, I think more and more students who have the deep academic instincts began have a real hunger to read, to study to answer (and pose) hard questions. More and more people headed for an academic career were hungry for what a PhD had to offer. So it's unclear to me whether committees are saying we want somebody with a Ph.D. or it's just more people who are interested in academic law get themselves a Ph.D.. and they constitute a growing segment of the pool.

Q. Do you think there are costs to this approach? It’s obviously stretching out the timeline to try to become an entry level law professor.

A. Right. Here I would put in another pitch for our program. How much the PhD stretches out the timeline, I think, turns on how closely related the PhD is (and the writing in the dissertation) to law and to what a Law Faculty is looking to hire. If you wrote about some deeply interesting topic in Economics or Physics for that matter, can you immediately translate that into legal publications? If you can, the time line isn’t stretched at all. If it is a long hard connection to establish between your two halves, then you have the stretching you mention perhaps. If you're a legal historian, then going off and writing a legal history book as a Ph.D. program, is perfectly keeping you on track in a sense. And if you are doing a Ph.D. in Near Eastern languages and your academic work is in contract law, I'm not sure that there's an instrumental connection there. Though of course there may well be an intellectual connection.

So, I think if students are getting the message that gee, my odds are better if I have a Ph.D., so I'm now going to go off and invest five years in a Ph.D., I think that would be a very, very bad outcome. That's just not the reason to go and do a Ph.D. That's a reason to do a one year program. It's not any reason to do a five or six year program.

So, if students are misinterpreting that, I think that would be a real cost. As far as the institutions are concerned, I think you always have to be a little bit careful that there's always a little bit of a risk that what you really have is somebody who really wanted to be a philosophy professor, but there were more jobs in law, so they went off and became a law professor. That can work out, but it can also lead to frustration and a lot of other less attractive outcomes. And you can’t really sustain a five- or six-year PhD program on purely instrument motives. If you don’t love the material or have some burning need to be there, it’s going to be a pretty rough time

Q. Do you think that these Ph.D. programs have a responsibility to try to open up law faculty positions to people from diverse or nontraditional backgrounds?

A. I think all of our programs have that responsibility – from JD admissions to clerkships, from JSD and PhD programs and fellowships alike. Although our program wasn’t explicitly designed with that in mind it has worked out remarkably well on that score. Here is a new pathway to law teaching which well serves those who have planned this career their whole life, and those who never even imagined it as a possibility in the 1L or 2L year. It levels the field and makes the process turn on the quality of argument and idea and not simply hitting the marks of the traditional route – top grades in 1L, law review, RA for famous professor, clerkship, write your “tenure” piece and disappear for 50 years which tied so much to knowing how and who and went to push the right buttons.

The PhD in Law can help those students of course, but it can also help the student who needs some structure – they have a three person faculty committee, they are invited to participate in workshops, they take additional courses, they write, they teach all in an incredibly supportive environment. It makes sense that we have attracted some outstanding First Generation and traditionally underrepresented minorities as well as top-notch more traditional students.

Q. I don't know if you've heard this criticism, but there's a lot of fear out there among hiring committees that it can be hard when you have candidates who are working so closely with mentors, either in Ph.D. programs or fellowship programs, to tell how much of the work and ideas come from the candidates themselves and how much come from their committee or other mentors.

A. This is true in all fields. And one thing we definitely advise all the students, JDs and Ph.D.s alike is, that they've got to be very careful, particularly about co-authoring with a big-name faculty member, because, of course the assumption tends to be, "Well, the famous professor did the big idea and and you did the footnotes."

Q. Right.

A. So, there's a couple of things that you can do with that. I mean, what we recommend is, for one thing if you do co-author, make sure the big name professor writes an explicit letter that specifically states what was your contribution and what was hers. “Sections two and three are mine and sections one and three are the students.”
That's one way to deal with it. But, we have made it very clear to people that they've got to have something in their file that is not coauthored. I mean this is becoming a bigger problem particularly in the more empirical areas of law where co-authorship and multiple authors are common. As you said, you've got to have something where the committee can feel this really is the voice of the candidate and not their advisor.

Q. How about stuff that isn't coauthored? In other words, I'm just trying to write a dissertation and I sit down and talk with my advisor and the advisor over several meetings says, "Whoa, Whoa, your direction isn’t the right one? How about this other direction?" Then it’s hard for hiring committees to know how good the candidate is.

A. That is a perennial problem, but far from limited to a PhD … it would be as true for a JD co-authoring with (or serving as an RA to, or writing a paper under the supervision of a big-name professor. The only way to truly end any debate is to write a piece that confronts, challenges or disproves the Big Professor’s central thesis. But then again, many of us study with someone precisely because we are excited by the research path they have blazed. In that case you might write on a clearly distinct application of the famous thesis in a new place or new way. In short, you need to demonstrate your own independent capacity even if you are building along the same lines, or using the same theory in your foundation. And again. you might encourage the big name to write a clear letter as part of your file which is explicit about how or why teh student is not just the big name’s ‘mini-me’

In the end, having at least one paper that is unequivocally distinct and original would be the best way to confront this problem. Ultimately, the student who merely tills the field that was plowed by another is going to show very poorly. This might have generated a good paper that was well published, but when it comes time for Q&A at the job talk, they are very vulnerable. I was teaching at the University of Minnesota years ago and a student of a big, big name faculty member at Stanford came and gave a talk and the talk was fine. It was very impressive. Then the questions came and this person just couldn't answer anything that was even 3 degrees off the particulars of the paper. It was just obvious that, you know, they have no original idea, they are merely a workhorse for the big name. (Needless to say this candidate did not get the job).

Q. Last question for you.

A. Sure.

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

A. Well, you know, I think as with many things, it's not just those two things, right? So I think that law schools are still in the business, of training practicing lawyers, but also training public policy people and nonprofit people and consultants and business people and so much more. Toss a rubber ball in the U.S> Senate and you can’t avoid hitting a few JDs A PhD is a big commitment, and opening that door may close some others. Law has the advantage that it is thought to be great preparation for a huge number of careers. In this sense all of our students, JD and PhD alike, have so many options at ever point in their careers, that almost none of the PhDs in cognate fields have. So choices are choices. Do we need PhDs training the next generation of lawyers? Again – we don’t need them to be trained exclusively by PhDs, but I do think every law school would benefit from having a few on their faculty. As to tradeoffs, this just gives me a chance to repeat – if you are doing a PhD for purely instrumental reasons, I'm not sure that's the best idea.

If you have a passion for the kinds of questions. If you want to dig into those kinds of things, whether it's in a traditional discipline or in law itself, then by all means. Because, you will build a storehouse of questions and ideas and insights that you'll draw on for the rest of your career. And that's a pretty valuable thing. Also, I mean at this point, in a buyer's market, having published pieces of work that can demonstrate that you can and will be productive and a real contributor, is a huge asset on the market. And so, you know, if the way you can get those papers written, is because you're doing a fellowship, great. And if the way you can get those papers written, is by being in a Ph.D. program, that's great.

Writing is the coin of the realm in doctrinal teaching positions. As far as the practice goes, you know, I think again, it's going to really vary law school by law school. I see no reason why advanced degrees and practice need to be unrelated. The ideas, theories and arguments made in academic work can and does translate to inventive (and effective) theories of a case … or open doors to new contracts, new models of remedy and relief.

But the key is to find the means best suited to you that will allow you to think, and write and engage in original research. That writing will get you the job. It will get you the promotion. And, if this career is right for you, it will give you the satisfaction and the opportunity to make a difference.

Q. Yeah, I agree. I don't think the credential itself matters as much. Right? I think what matters is the quality of the papers when you come on the market.

A. Yep.

Q. Anything else you want to add either for the benefit of hiring committees or potential applicants about the Ph.D. in Law program?

A. Well, I think, as I said, two things. One is, I think that legal academia could profit from a richer debate about what it means to study the law. And I think that that's been lacking. And I think that the Ph.D. program is one route to trying to do that. There's a depth and a richness of work that needs to be seasoned and I think a Ph.D. program provides that seasoning and that time and that support. So, I think that's another big plus about it. I think that you want people that can engage deeply and across a wide range and so, thinking not just about their own sub specialty, but also thinking about how it relates into a bigger story of writing and thinking about and researching law and law's impact on society.

Q. Yeah. Thank you so much, Gordon. I really appreciate your time today.

A. Happy to do it.

Posted by Jessica Erickson on August 16, 2019 at 01:04 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (4)

Thursday, August 15, 2019

What about a tablet?

A question for those who do not allow laptops and do not allow students to type notes in class:

What about taking notes using a stylus and tablet (iPad, Surface, etc.)? On one hand, this is writing rather than typing, so the ability/temptation to stenography is absent; it is the same means of notetaking, with fewer dead trees. On the other, I presume the benefit is that the tablet program converts the handwritten notes into typeset notes, which can be cut-and-pasted into a study outline; this eliminates the need or use for retyping of notes, which is an important point at which learning and understanding occurs.

Thoughts? Does anyone familiar with the literature know of any studies comparing writing-on-tablet with writing-on-paper or typing?

(Note: I know many readers believe that my position on laptops is wrong. That is beside the point here, so please do not bother with comments to that effect. My question begins from the premise that laptops and typing for notes are out. Now what?)

Posted by Howard Wasserman on August 15, 2019 at 05:51 PM in Howard Wasserman, Teaching Law | Permalink | Comments (2)

N.C. court recalls opinion on the bird

Earlier this month, the North Carolina Court of Appeals held that flipping-off a police officer provided probable cause to conduct a traffic stop; it was a "rude, distracting" gesture that could cause a reasonable officer to believe a crime was being committed, such as disorderly conduct. This opinion was inconsistent with federal courts that have held that it is clearly established that flipping the bird is protected by the First Amendment. I did not blog about the case, but I had some interesting email exchanges about the case, including how it interacted with last Term's Nieves v. Bartlett.

Today, the court of appeals withdrew the opinion, with the panel retaining jurisdiction to dispose of the case. No idea what that means. It could mean a majority will hold that the officer lacked probable cause to stop the case. Or it could mean a new opinion finding a basis for probable cause that does not involve constitutionally protected expression.

While this is good for the First Amendment, it is hard not to wonder how much the universal derision the opinion received on the interwebs affected the judges and their decision to reverse course (as to reasoning if not result). And it is hard not to think that this is not a good thing for the judicial process. There are processes in place for reconsidering a decision. Those processes should not involve Twitter.

Posted by Howard Wasserman on August 15, 2019 at 01:11 PM in First Amendment, Howard Wasserman | Permalink | Comments (2)

Judicial Review in Britain

The latest chapter of the Brexit saga could lead end up strengthening Britain's Supreme Court. The new Prime Minister, Boris Johnson, says that the UK will leave the European Union on October 31st. Opponents of Brexit (or opponents of a Brexit without a withdrawal agreement) are threatening to bring a no-confidence motion in the Government and trigger a general election if the Prime Minister does not back down.

There is, though, a problem. Who is the Prime Minister during the ensuing election campaign? By tradition, the answer is the incumbent Prime Minister (unless he or she resigns). This means that Johnson could make Brexit happen even after no confidence is voted in his Government. It takes time to vote for no confidence and hold the election. Odds are that process will not be complete until after October 31st. Fait accompli.

Consider a comparable problem. Suppose President Trump is defeated for reelection. After his defeat but before the inauguration of his successor, he makes an important and irrevocable decision (for example, pardoning a zillion people). No one doubts that he would have the legal authority to do this. At some point there might be a crisis of legitimacy, though, for a defeated President taking an important decision.

What might happen in Britain? One extraordinary suggestion is that the Queen could dismiss Johnson as Prime Minister if his Government loses a confidence motion. This hasn't happened in forever, but the Crown retains some undefined powers that might include this. The more likely answer, though, is that someone will sue in the courts to have Johnson dismissed. The governing law is the Fixed Term Parliament Act, enacted in 2011. The Court would be asked to interpret this statute, which is silent about who serves as a caretaker Prime Minister after a no-confidence motion passes. Did the statute codify prior practice or change that practice?

This would not be judicial review in the American sense, as an Act of Parliament would be be construed rather than invalidated. The closest analogy would be the Court's ruling after the Brexit referendum, which said that the Government could not withdraw from the EU without some consent from Parliament (based on prior laws about Britain's relationship with the EU). Would the Court, though, actually says that Johnson could not be the Prime Minister and must leave office? That seems pretty far-out. Or would the mere prospect of that cause him to back down from Brexit until after a general election is held?  

Posted by Gerard Magliocca on August 15, 2019 at 09:00 AM | Permalink | Comments (4)

Law School Hiring Spreadsheet and Clearinghouse for Questions, 2019-2020

I. The Spreadsheet

In the spreadsheet, you can enter information regarding whether you have received

(a) a first round interview at a school (including the subject areas the school mentioned, if any, as being of particular interest, and whether the interview offer was accepted);

(b)  a callback from a law school and/or accepted it; or

(c) an offer from a law school and/or accepted it; feel free to also leave details about the offer, including teaching load, research leave, etc. A school listed as "offer accepted" may have made more than one offer and may still have some slots open.

Law professors may also choose to provide information that is relevant to the entry-level market.  

Anyone can edit the spreadsheet; I will not be editing it or otherwise monitoring it. It is available here:

II. The Comment Thread

In this comment thread to this post, you can ask questions about the law teaching market, and professors or others can weigh in.

Both questions and answers can be anonymous, but I will delete pure nastiness, irrelevance, and misinformation. If you see something that you know to be wrong, please feel free to let me know via email, sarah*dot*lawsky*at*law*dot*northwestern*dot*edu.

You may want to take a look at the many questions and answers in the threads from 2014-20152015-20162016-2017, 2017-2018, and 2018-2019. In general, there's quite a cache of materials relevant to the law job market under the archive categories Getting a Job on the Law Teaching Market and Entry Level Hiring Report.

Posted by Sarah Lawsky on August 15, 2019 at 09:00 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (16)

Wednesday, August 14, 2019

Junior Prawfs - developing new research arcs Part II

Hi all. This will be my last post—thank you all, and especially to Paul, Howard, and the perma Prawfs for this chance to think through some aspects of the junior interdisciplinary prawf experience.

In my previous post, I raised some questions that I consider (or have been asked) when trying to develop a second research arc. This post focuses a bit more on the process of actually developing that research arc—it’s naturally much more specific to my type of interdisciplinarity, but as always I hope it will resonate with others.

I’m in the early stages of developing a new set of projects in my line of work that focuses on Indian and comparative constitutional law. The first set grew out of my PhD research on Hindu temple management as a window into secular governance and citizen sovereignty in contemporary India. My new India arc will likely focus on the judiciary and especially on transparency and accountability with regards to the Indian Supreme Court.

So far, this project-development process appears to be following my usual pattern: I start out with an idea that X is interesting based on random academic and news reading, I do some focused research, apply for preliminary grants and IRB approval, conduct a scouting trip, and usually end up spending most of that trip learning about X1and Xwhich are adjacent but not identical to X. (As my earlier Chief Justice of India post suggests, serendipity is a real force in field research, for better and potentially for worse.) After the scouting trip I come home, write some more grant apps and IRB protocols for longer fieldwork, read up on and around X1and X2, and hopefully head back to the field. Major writing happens after the second trip but in between the two field stints, I usually end up writing a couple of articles, as I’m doing right now.

I explained an abbreviated version of this rhythm to schools where I did CBs but I always wondered about a few things. First, how much does it really sink in that fieldwork-based research requires several years’ planning and can (but need not!) lead to feast-and-famine patterns as far as publications are concerned? Second, assuming these patterns and peculiarities do sink in, are law schools willing to work with the interdisciplinary scholars who are constrained by them because those scholars want to continue doing interdisciplinary work post-hiring?

On the one hand, I can see this being especially uncomfortable for law schools since, until very recently, interdisciplinary legal scholarship largely involved data sets or written sources—in other words, things which do not, in general, require you to be away for several months at a time, not always during the summer. On the other hand, it doesn’t seem like disciplinary departments are themselves so great at accommodating these cycles: many anthropologists in anthro departments do non-fieldwork based “second projects” (sometimes “third projects” too) and few ever repeat the massive, multi-month/year fieldwork stint they did in grad school.

I don’t think this is exclusive to fieldwork-based research, either. As one of my junior prawf friends pointed out to me, archival work that takes place in far-flung locations or that requires transcription or translation is in many respects not so different from field research. The planning, the funding, the inability to make more frequent short trips to collect information—all of those exist there too.

For my part, much of this has been addressed via the trio of institutional support, happenstance, and personal interest that I discussed in my first post. As I mentioned there, I’ve arranged to use my pre-tenure leave to conduct fieldwork. 6+ months of fieldwork (essentially, a summer plus a semester) is pretty substantial even compared to what many of my departmentally-housed peers are able to do at this stage in their careers. Before I take that leave, I’ve received a couple small grants to conduct scouting fieldwork, which I did this summer. And it just so happens that things that I’m interested in are currently interesting to other people—I’ll have to figure out whether that’s ultimately good or bad given the time lag imposed by fieldwork, but it’s a start. So although it has taken some work and some luck, interdisciplinary work even of the tricky fieldwork type seems eminently doable within the law school context.


Posted by Deepa Das Acevedo on August 14, 2019 at 11:57 PM | Permalink | Comments (0)

Call for Submissions: AALS New Voices in Administrative Law and Legislation

The AALS Sections on Administrative Law and Legislation are pleased to announce their co-sponsored “New Voices in Administrative Law and Legislation” program for the 2020 AALS Annual Meeting in Washington, D.C. The New Voices program gives junior administrative law scholars and junior legislation scholars an opportunity to receive useful feedback on their work from more senior reviewers before submitting the work for publication.

Each participating junior scholar will be assigned two designated reviewers. The reviewers are senior administrative law or legislation scholars who will read the junior scholar’s paper in advance and offer constructive comments during the program. Each junior scholar and his or her assigned reviewers are seated together at their own table. Anyone else who is interested in participating in one of the discussions is welcome to join. The New Voices program is scheduled from 3:30 p.m. to 5:15 p.m. on Friday, January 3, 2020.

For Interested Junior Scholars

To participate, junior scholars must be full-time faculty members, including full-time visiting assistant professors or fellows, at AALS member schools. Papers that have been posted on scholarship networks such as SSRN, but not yet published, are eligible for consideration.

Please email Professor Kent Barnett, Chair-Elect of the AALS Administrative Law Section, at [email protected] by Friday, November 8, 2019, to be considered for participation in the program. In your email, please include the title of your paper and attach an abstract or working draft. Please also include in the email your school, tenure status, years in the position, any prior legal academic positions, and whether you have previously participated in the New Voices program for either the administrative law or legislation section.

If your paper is selected for participation in the program, you must submit a draft via email to the above address no later than Friday, December 13, 2019. This deadline is important to provide the designated reviewers ample time to read their assigned drafts before the program. The draft submitted does not need to be completely polished and ready for law-review submission; reviewers welcome papers in earlier stages when the author can most benefit from feedback about the project.

For Senior Scholars Interested in Serving as Reviewers

If you are interested in serving as a reviewer this year, please email Professor Jarrod Shobe [email protected] as soon as possible.

Please be aware that selected participants and commentators are responsible for their own travel expenses to the AALS Annual Meeting, including the AALS registration fee. Please submit any questions about the New Voices Program to Professor Kent Barnett at [email protected].

Posted by Ethan Leib on August 14, 2019 at 04:30 PM | Permalink | Comments (0)

Punishing female attorneys

The Supreme Court of Missouri suspended the licenses of two female former assistant prosecutors in St. Louis who helped cover up a police officer beating of a suspect in 2014. A third female prosecutor, who was more directly involved by filing false charges against the victim, was disbarred in 2016. The officer pleaded guilty to a § 242 violation and was sentenced to 52 months.This represents the exceedingly rare case in which police and prosecutors faced sanctions for their roles in misconduct within the criminal-justice system.

But it is difficult not to notice that this rare case involved three female prosecutors. It thus echoes the fallout from the Central Park Five, in which the only people facing professional consequences (informal, but still) were two female assistant prosecutors, but no man involved in the case.

Posted by Howard Wasserman on August 14, 2019 at 11:43 AM in Howard Wasserman, Law and Politics | Permalink | Comments (5)

Tuesday, August 13, 2019

Welcome back 1Ls

We see similar things every year around this time. This is from Lawprofblawg, an anonymous prawf writing at Above the Law. It is good advice.

Posted by Howard Wasserman on August 13, 2019 at 10:18 PM in Teaching Law | Permalink | Comments (1)

Monday, August 12, 2019

Chief Justice Classifications

We are familiar with the practice of describing the Supreme Court by reference to the Chief Justice at the time. The Marshall Court, the Warren Court, the Roberts Court, etc. But when did this practice get started. And why?

I don't know the answer. But it's an interesting question. A quick search indicates that this sort of terminology was not used by law review articles or by the Supreme Court until the 1930s. Perhaps the usage came earlier in books or treatises, but that will take more time to check. Why this change occurred is even more elusive. Some Chief Justices, of course, do wield great influence over the Court. Most, though, do not. The urge to classify can be irresistible, but is that the best explanation? 

Posted by Gerard Magliocca on August 12, 2019 at 08:53 PM | Permalink | Comments (4)

Getting to Know Peter Lederer

UnknownOne of the benefits of publishing or blogging is the chance to connect with fascinating people. One of those, in my case, is Peter Lederer (pictured, left), who is an adjunct professor at the University of Miami School of Law, and one of the founding members (along with Michele DeStefano) of LawWithoutWalls.

From Peter's bio at Miami, here are the bare bones:

He served many years as a partner of Baker & McKenzie, the global law firm, having joined the firm as its 17th partner. After seven years in Zurich, where he opened the Firm’s office, he returned to New York, serving as the Senior Partner of that office until 1994. He also served for many years as a member of the Firm’s top global management bodies. For some 25 years Peter served as general counsel to the electric utility owned insurance company, Nuclear Electric Insurance Limited. He also acted as counsel for the establishment of Deloitte Touche Tohmatsu, the international accounting firm, then serving as its general counsel from 1989 to 1994.

Being the 17th partner at Baker & McKenzie ought to tell you something, but that short description belies the richness of his life journey, involving modern world history, an iconic figure in legal academia, the explosion of the global legal profession, and a mind that doesn't rest just because the body is aging.  

He introduced himself to me a couple years ago by way of a couple emails, mentioning a couple people we knew in common. The first note expressed a certain frustration with academic book pricing. In his words, "I have the temerity to ask: how does your new book wind up on Amazon with a sticker price of $118.33? With even the ephemeral Kindle version nearly $50?  I may have to spring for it.  One of the reviews suggested parallels to some of Karl Llewellyn's thinking; I was his research assistant ages ago, and that's a sure hooker." Then later asked who had turned me on to Llewellyn, as Peter "had worked for him for a couple of years when he was doing The Common Law Tradition, and that was certainly one of the shaping experiences of my life."

I did answer the question about pricing* but at some point the arithmetic dawned on me.

I replied: "Unless you are 100 years old, you must have been at Chicago in the last few years of his life?  My publication date for The Common Law Tradition is 1960, which if you graduated then would make you 19 years old than me and I am 64.  83?  If so, my hat is off to you - I aspire to keep at it in the same way."

Turns out the estimate was off by five years, because Peter was then 88, now 89, born in Austria, and fled with his parents to the US in 1938, just after the Anschluss, and a year before my grandparents (with my five year old mother and one year old aunt) left Frankfurt, Germany for the same destination.  

And we shared some experience and outlook regarding business lawyering, particularly when it crossed borders. From the oral history he co-authored with John Flood in the Fordham Law Review, Becoming a Cosmopolitan Lawyer:

The lawyer-client relationship is replete with uncertainty because of the nature of legal work, and managing that uncertainty is part of the lawyer’s skill set. In this respect, a lawyer is not just a legal technician applying knowledge to problem areas; the lawyer assumes the role of trusted advisor. This role is the hardest to describe in terms of discrete skills, as it requires not just legal proficiency, but also the traits that [Charles] Fried highlighted, such as empathy, the ability to listen, and a cultural sensitivity to others.
Part of our argument is that a cosmopolitan lawyer is also a trusted advisor and that the two are intertwined by necessity, for one cannot exist without the other. The reason for this interconnectedness is that globalization increases risk and uncertainty, which is, in part, a function of the scale of business as it grows, both domestically and internationally. The global professional service provider—accountant, consultant, lawyer—must ameliorate this risk and give succor. This role is crucial to the smooth functioning of business.

Michael Madison tells me that he has interviewed Peter for an upcoming segment of The Future Law Podcast.  Keep an ear out for it!

*The answer on pricing, I think, has a lot to do with price inelasticity for library buyers and exploiting the downward sloping demand curve to avoid deadweight loss.  In any event, you can now get the book in paperback from the publisher or on Amazon for under $50.

Posted by Jeff Lipshaw on August 12, 2019 at 10:06 AM in Deliberation and voices, Lipshaw | Permalink | Comments (0)

Protest (and be punished) like it's 1968

At the Pan Am Games, fencer Race Imboden knelt on the gold-medal podium during the anthem and hammer-thrower Gwen Berry raised her first. Both face sanction, because not much has changed since 1968. The U.S. Olympic and Paralympic Committee offered this internal contradiction: "Every athlete competing at the 2019 Pan-American Games commits to terms of eligibility, including to refrain from demonstrations that are political in nature,” although "[w]e respect his rights to express his viewpoints.” No, you clearly do not respect his rights to express his viewpoints when those viewpoints are political in nature. Because standing at attention during a national anthem while playing "for your country" is never political.

The USOPC (did not realize the "P" had been added) is not bound by the First Amendment and can restrict athlete speech however it wishes. But do not pretend that you also respect the athletes' rights to express their views.

Posted by Howard Wasserman on August 12, 2019 at 09:39 AM in First Amendment, Howard Wasserman, Sports | Permalink | Comments (7)

Junior Prawfs - developing new research arcs

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

In this post, I’d like to consider what comes after a capstone project in a particular research area, when it’s time to develop a new research arc. Many of us face this at some point pre-tenure, and some may even face it during the period before their first major internal review (i.e., before year 3-4). Since the job market essentially requires candidates to develop a research arc in the form of an agenda you’d think doing so again within a few years would be easy enough. In my experience so far, however, that hasn’t been the case—it’s not harder, but it comes with a slightly different set of considerations than the first time around.

In my mind, a new research arc is different from a “next article”: articles are discrete projects within an arc, while an arc is a relatively coherent set of projects (probably with the odd outlier or two, and including non-article outputs like online essays, chapters, and even monographs). It may be that this way of thinking about research trajectories is more common among interdisciplinary folks who have to work with a data set, an archive, or a body of fieldwork and to try to exhaust that material before moving on. But I don’t think it’s exclusive to interdisciplinary scholars since we all do move on at some point.

Some of the things I’ve considered when shifting to a new research arc include:

  • How does this fit with the scholarly profile I’ve created for myself so far? Is it an understandable shift within a broad area (e.g., “employment law” or “comparative constitutional law”) or is it a shift to an altogether new broad area?
  • (if it’s a thickly populated area) Are there a few types of questions or ways of studying problems that I can focus on? Do I have specific questions—plural!—that I want to answer, either because answers don’t exist or because I think they leave room for expansion? My general thinking is that if I have at least 2–3 such questions at the outset, I’m likely to find more later on even if I can’t think of them right now.
  • (if it’s a thinly populated area) Is there a reason why it hasn’t generated a lot of traction? Is it that it’s generated traction in other fields but not in law?—and if so, is that for good reason?
  • What am I bringing that’s new? New solutions? New information, especially via an interdisciplinary method? New analytical/theoretical framework? A comparative perspective?

… and—this is a big one for me specifically, although I suppose it’s an amalgam of some of the above:

  • Does this area seem to have the potential to produce both classically legal questions and interdisciplinary questions where fieldwork in particular has something to offer?

Some of the questions I’ve had to answer, directly or indirectly, about developing new research arcs include:

  • How do you find a new line of research? (This was a very common job market question for me.)
  • How long does it usually take you to settle on something new? For me, I would say 9–12 months, although I'm somewhere in the middle of one and at the start of another so the truth is "TBD."
  • Once you’ve identified a broad area, what are some of the steps involved in settling on a new series of projects within it? (This is a more focused version of #1.)

In my next post, I’ll pick up this issue and talk a bit about a transition I’m in the early-middle stages of right now, as well as some of the ways this process might be unusual for certain kinds of interdisciplinary junior prawfs.


Posted by Deepa Das Acevedo on August 12, 2019 at 08:23 AM | Permalink | Comments (0)

Sunday, August 11, 2019

One inning, three runs, three true outcomes (non-law)

Thinking about baseball today, so that prompts this non-law post.

Baseball analysts emphasize the concept of "three true outcomes"--walk, home run, or strikeout. These are the possible results of a pitcher/batter confrontation that reflect the "true" results of that one-on-one encounter, unaffected by any other players. The focus on these outcomes drives recent concerns for style and pace of play. Batters look to hit home runs, are less willing to offer at pitches out of the strike zone, and accept increased strikeouts as a cost. All three true outcomes are up, creating a slower and (some believe) less exciting game.

In Saturday night's Braves-Marlins game, the Braves scored three runs in an inning featuring nothing but those three true outcomes. The inning went: Walk, Strikeout, Walk, Strikeout, 3-run HR, Walk, Walk, [pitching change], Strikeout. No fielder other than the pitcher and catcher was involved in any play. No baserunner was at risk of being put-out on the basepaths.

I have never seen anything like that.

Posted by Howard Wasserman on August 11, 2019 at 07:51 PM in Howard Wasserman, Sports | Permalink | Comments (4)

Saturday, August 10, 2019

"The Grievance Studies Affair," purpose, and result

FIRE's So to Speak podcast interviewed the three authors (Jim Lindsay, Helen Pluckrose, and Peter Boghossian, the latter of whom is on the faculty at Portland State) behind the "Grievance Studies Affair." The three wrote and submitted a series of papers designed to show that certain humanities disciplines, which they call "grievance studies," lack scholarly rigor and feature a broken peer-review process. Seven papers were accepted, four were published, and seven were still in play when everything was exposed last fall. Boghossian was sanctioned by his university (subscription required) for failing to obtain IRB approval for a study on human subjects (the editors and reviewers who read the papers).

Critics of the the authors and their hoax accused them of  trying to get people fired and departments shut down, comparing them with Hungarian Prime Minister Viktor Orban's efforts to ban gender studies at Hungarian universities. The authors reject this criticism; they insist they respect academic freedom and did not want to see anyone fired or any departments closed. Instead, they hoped universities would use the information they exposed to recognize the defects in these fields and thus discount scholarship in these fields and these journals when making tenure and hiring decisions.

But what is the difference between people being fired and people being denied tenure or not hired? The result is the same--scholars who publish this stuff in these journals should not be working as professors in these universities. And if these departments cannot (or should not) hire these scholars, the departments will close. The difference is motive. Orban want to control what academics write and wants to close gender studies because of political and ideological objections to the field; Lindsay, Puckrose, and Boghossian want these journals to do better in their peer-review and publication decisions and want these scholars to do better in their research and writing. One opposes academic freedom; the other protects academic freedom by ensuring that a university is place of intellectual rigor and serious truth-seeking--that academic freedom serves its purpose.

So Lindsay, Puckrose, and Boghossian would like certain people not to have jobs in academia--those who write what they believe (and what they believe they have proven to be) poor scholarship undeserving of publication and tenure. They claim to have a good reason for that goal and we can debate the means and ends (I am largely agnostic over the whole thing). But it is disingenuous to suggest that lost jobs and empty departments are not the logical conclusion of what they believe they have shown and what should happen.

For what it is worth, I am somewhat surprised that FIRE cared about this case, except perhaps for the sanctions imposed on Boghossian, which are somewhat specious. And I am surprised FIRE approached the hoax and this interview as the typical culture-war/tyranny-of-the-left/silence-the-right campus-speech issue. The authors wrote papers reaching (sometimes silly) left-leaning conclusions, which fits the ideology of the journals and the fields. But FIRE usually does not care if lefties say or write silly things and it generally does not care about the vigor of  discourse in scholarly journals. FIRE cares about viewpoint discrimination, when one position is allowed and the other shut down or when one position is foisted on unwilling listeners. But the hoax did not show such discrimination--that otherwise similarly rigorous scholarship reaching a right-wing conclusion was not published. One of the authors described this as his one regret in the project--they never wrote a paper reaching that reverse ideological result to see if it would be published. Had they done so and the piece been rejected, they would arguably have shown the sort of political biases about which FIRE cares. Without that, this really looks like a take-down of silly lefties and silly academics--fun for many, but not FIRE's typical bailiwick.

Posted by Howard Wasserman on August 10, 2019 at 02:17 PM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (1)

Friday, August 09, 2019

Lawyering Somewhere Between Computation and the Will to Act: The Last Outtake

I've now posted my summer project on SSRN (it's my contribution to the "Lawyering in the Digital Age" conference I mentioned earlier). The title has changed since I first posted a week or so ago - and that turns out to be one of last outtakes.  It's now Lawyering Somewhere Between Computation and the Will to Act: A Digital Age Reflection, with the following abstract:

This is a reflection on machine and human contributions to lawyering in the digital age. Increasingly capable machines can already unleash massive processing power on vast stores of discovery and research data to assess relevancies and, at times, to predict legal outcomes. At the same time, there is wide acceptance, at least among legal academics, of the conclusions from behavioral psychology that slow, deliberative “System 2” thinking (perhaps replicated computationally) needs to control the heuristics and biases to which fast, intuitive “System 1” thinking is prone. Together, those trends portend computational deliberation – artificial intelligence or machine learning – substituting for human thinking in more and more of a lawyer’s professional functions.

Yet, unlike machines, human lawyers are self-reproducing automata. They can perceive purposes and have a will to act that cannot be reduced to mere third-party scientific explanation. For all its power, computational intelligence is unlikely to evolve intuition, insight, creativity, and the will to change the objective world, characteristics as human as System 1 thinking’s heuristics and biases. We therefore need to be circumspect about the extent to which we privilege System 2-like deliberation (particularly that which can be replicated computationally) over uniquely human contributions to lawyering: those mixed blessings like persistence, passion, and the occasional compulsiveness.

The deleted title (before the colon) was Unsure at Any Speed, a bit of just-a-tad-too-clever wordplay on my part.

As you can see, the piece is an exploration of the upsides and downsides of, in Daniel Kahneman's coinage and book title, Thinking Fast and Slow.  My little joke was/is:
Over a forty-year professional career, in Kahneman’s lexicon, my thinking has been both fast and slow. What that really means is that often I was unsure at any speed. At the same time, I made binary “go/nogo” decisions in the face of complexity and uncertainty.

What I thought was really clever was the play on Ralph Nader's Unsafe at Any Speed, his classic 1965 takedown of the Chevy Corvair. One of my reader/editor/commenter/friends, clearly far too young to catch the allusion, tagged it with a big question mark.  A good reason to have a reader/editor/commenter/friend, because her suggestion that I perform a pre-colon-oscopy on the title was well-taken.

The ultimate outtake.

Posted by Jeff Lipshaw on August 9, 2019 at 10:33 AM in Article Spotlight, Legal Theory, Lipshaw, Web/Tech | Permalink | Comments (0)

Money talks

People are calling for a boycott of Equinox in the wake of disclosure that owner Stephen Ross is hosting a Trump fundraiser. Expect more of this following the release by Texas Rep. Joaquin Castro of a list of Trump donors. Ross issued a nonsense statement that first tries to shame critics for, unlike him, "sit[ting] outside the process and criticiz[ing]." He then insists that he supports the President's economic policies (read: big tax cuts for him) while supporting racial equality and inclusion, and that he is not ashful about disagreeing with the President or about expressing his opinions (although he did not specify whether he expresses those contrary opinions to Trump--given what we know about Trump, I doubt it).

One issue we discussed during a SEALS panel on expressive conduct is how we handle the fact that consumers increasingly base their choices on their politics and conscience--avoiding businesses that support certain causes or that are owned by individuals who support certain causes. Contrary to Ross's statement, that is a form of direct engagement and support for (or opposition to) the things one deeply cares about (since we can't all put on million-dollar fundraisers).

But if buyers can express their political preferences through their consumer choices, why not sellers? Is it the difference in power, since the seller often is the only game in town? Is it because a seller's choices would look not like political preferences but like identity-based discrimination, which customers are allowed but businesses are not? We did not reach any great theoretical resolution on the panel. The question shows that it is not as simple as "this is a business transaction," because so much more is involved in both sides of that transaction.

Posted by Howard Wasserman on August 9, 2019 at 06:57 AM in First Amendment, Howard Wasserman | Permalink | Comments (2)

Interview with Adam Feibelman about the Academic Fellowships at Tulane Law School

I’m excited to announce the next latest interview in my series interviewing VAP and fellowship directors.  This interview is with Adam Feibelman, the Sumter Davis Marks Professor of Law at Tulane Law School and Director of the Program in Regulation and Coordination at Tulane’s Murphy Institute.  Adam has historically helped manage Tulane’s academic fellowships, although he is quick to note that Kristin Johnson, Tulane’s incoming Associate Dean for Faculty Research, will have a significant role with these fellowships going forward.  An edited transcript of our conversation is below, and I have invited Adam to respond to any questions in the comments.  Thanks, Adam, for participating in this series!

You can read more about the structure of these interviews and other caveats related to them here

Q:  Can you tell me about the different fellowship programs at Tulane?

A:  Until this year we've had two programs. One is the Forrester fellowship, which is a long-standing part of our legal research and writing program.  A  few years ago, we created a visiting assistant professorship, which is funded by the Murphy Institute’s program in regulation but dedicated to the law school.  This year, we created a Yongxiong fellowship, which is a component of our new Yongxiong-Tulane Center for International Credit Law, a partnership with Xiangtan University in Hunan Province, China.

Q:  You mentioned that the Forrester fellow teaches in the legal research and writing program.  Can I ask you to briefly describe the other two fellowships, starting with the VAP with the Murphy Institute.  Does the VAP have teaching responsibilities?

A:  Yes, it's designed to be a two year position but it's formally structured as one year position with renewal. The person in that position teaches three of their four semesters in residence and has one semester off, which is generally their first semester that they're here.  That's how we envision it, and what we advise, and what people have done, but it's not technically a requirement.  People can pick which three semesters they teach while here.

Q:  What do those VAPs teach?

A: What they teach is determined through discussion between that person, the vice dean, and whoever is advising the VAP. That has tended to be me, both in my capacity as (outgoing) associate dean for faculty research and as the director of the Murphy program.

Q:  Tell me about the new fellowship -- the Yongxiong Fellowship.

A:  That's a very exciting new position. It’s a hybrid of those two others, so the fellow will teach in our LLM legal research and writing program in the fall semester, and then in the spring they'll teach a substantive course that is associated with our new center on international law and finance.

We're going to be relying on our initial fellows in the program to participate in discussions about developing this center, our partnership with Xiangtan University and a new related LLM.  I think the first few of these fellows will have a very interesting window into these institutional developments, which are increasingly common around the country as lots of U.S. schools are partnering abroad with other institutions.

Q:  Let's take these three programs and essentially move through them chronologically, starting with the application process and moving to the fellowship itself. When do these programs start accepting applications?

A:  This tends to be a little bit different each year, but generally we have posted the positions sometime in mid to late December or early January.  We generally wait to begin reviewing them for about a month, a month and a half.  There's a committee for each of these positions that then reviews applications and schedules interviews, generally Skype Interviews.   And we tend to make our offers in mid to late spring.

Q:  What materials do candidates need to submit to apply to these positions?

A:  We generally request a cv, a list of at least three references, post-graduate transcripts, copies of any scholarship completed or in-progress, and a letter explaining their teaching interests and their research agenda.

Q:  I should've clarified this earlier, but obviously there's one Murphy Institute fellow at a time, one for the new fellowship program, how many Forrester fellows are there at a time?

A:  We have two at a time, and we have tried to stagger them.

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

A:  That fluctuates, but I would say between 20 and 30 in recent years.

Q:  Who selects the fellows?

A:  Yep, so we have a committee assigned by the dean for each position.  Each committee generally includes three or four people, has a chair, and functions roughly like an appointment committee.

Q:  If you're looking at teaching at the teaching side of a fellows responsibilities, how do you gauge teaching ability during the interview process?

A:  That's tricky. In some cases candidates will have had teaching experience, especially people who are coming from PhD programs.  Other candidates will have done some adjunct teaching during their time in practice. Those are obviously the easiest cases to evaluate someone's potential as a classroom teacher. We'll have student evaluations. We'll have evaluations or comments in reference letters that talk about their teaching.

When people don't have teaching experience, we rely fairly heavily on their recommenders’ estimations about their capacity and potential as classroom teachers.  And then, in any event, trying to assess teaching ability is an important component of our interviews.  I think the things that are most important in an interview for this purpose are someone's ability to communicate their teaching and research interests very clearly and succinctly, especially the substance of their past and current research and their research agendas.

Q:  Let’s turn to scholarship.  Do successful candidates tend to have a published paper when they're applying, a draft of a paper, more than one published paper? What's the norm for candidates who are successful?

A:  I'd say that, increasingly, candidates will have published work, but that is definitely not a requirement. I know that we've hired a few people who have had work in progress that had not yet been published, like a draft article or a dissertation. Whether we are considering work in progress or something published or something that is on an agenda, our committees focus on evaluating the work or the ideas as an indication of someone's scholarly potential.

Q:  How about their research agenda? How fully developed do you expect that to be?

A:  That's also a hard question to answer generally.  I think it's important to us that someone has a research agenda and an idea of work that they would do with the time and resources allowed to them in a fellowship or VAP.  But I've found that many people adjust their actual research agendas in the course of their fellowship or VAP, so that really it's not so much that we're looking at this as an actual roadmap for what they're going to do, but as an indication that they have an idea of what kinds of things would be interesting and valuable contributions to make in their fields of inquiry.   

Q:  How about practice experience? How much does practice experience matter in the hiring process? And how much practice experience are you looking for?

A:  That is something that differs across the positions. With the Forrester, we’ll really only consider applicants who have at least two or three years of practice, including clerkship experience.  We've made the institutional decision that we want people who are part of the first-year legal writing and research program to be able to draw upon some meaningful experience in the practice of law as a baseline requirement.

For the VAP, experience in the practice law is a factor that we weigh with others, and many of the people who've had that position have had substantial experience. I don't think we've discussed a policy in that regard with respect to the new fellowship, but I’m confident that, at the least, experience in the practice of law will be weighed heavily in assessing candidates for that position.

Q:  Do you give a preference for candidates from particular curricular areas or candidates with a PhD?

A:  Definitely not for the Forrester fellowship.  The new Yongxiong fellowship is designed to fill some curricular needs within the broad category of law and finance.  The VAP is again, part of our program on regulation, which defines the scope of the position and the kinds of research and teaching interests that we are drawn to, but we've historically defined regulation very broadly for this purpose.

Q:  As I've announced this interview series, I've gotten a number of comments asking, essentially, what if a candidate does not have the traditional markers that you might think of for prospective law faculty— they didn't graduate from one of the top 5 or 10 law schools, they didn't do an elite clerkship. What advice would you have for them in terms of standing out in the application process?

A:  First of all, I would strongly encourage people in that position to apply.  We look at every application on its merits and some of our strongest candidates have been people who fall outside of the conventional checklists of credentials in one or more ways.

With that in mind, the first thing I would encourage people to do is contact law faculty members who they know -- perhaps who were their professors in law school or who they may have gotten to know in other contexts -- to get advice about the process but also to get a sense of whether they might be advocates for them. Even the briefest note from a faculty member here or at another law school encouraging us to look at an application weighs very heavily in our process.

Q:  Do you make any special efforts to hire candidates from diverse backgrounds?

A:  Yes and in a number of ways, both through formal and informal networks.  That has been a deliberate part of every search here I can recall.

Q:  Let’s move more into the terms and conditions of employment.  Are each of the fellowships one year and then renewable for a second year?

A:  Yes.

Q:  Are you comfortable sharing how much the fellows are paid per year?

A:  No, sorry.

Q:  Do you fellows receive health insurance?

A:  Yes.

Q:  How about access to university or subsidized housing?

A:  No.

Q:  Do you fellows receive travel funding or other professional development funding?

A:  Yes.

Q:  Do you mind sharing that amount?

A:  No, but in any event, when the amount is exhausted it can be supplemented upon request for particular opportunities.

Q:  Do they receive funding to hire research assistants?

A:  Yes.

Q:  Do they receive reimbursement for market related expenses when they're on the job market?

A:  Yes, up to a certain amount, generally to reimburse expenses related to attending the AALS faculty recruitment conference.

Q:  Are fellows expected to live in New Orleans? Obviously there are teaching obligations, but could somebody live in Miami or New York and commute?

A:  Well, to begin with, as with other faculty, we certainly expect that the fellows and VAPs need to be in residence at least enough to satisfy their responsibilities as faculty, which generally entails being in town during the week during the terms.  But we’ve had people in these positions who, like other colleagues, have traveled regularly over the weekends and who have spent a good deal of holidays and summers with family or partners elsewhere.  We definitely have tried to be as accommodating and supportive in that regard as possible while making our baseline expectations clear, that we think the value of these positions ultimately derives from being a full and present member of our academic community.

Q:  Let's talk about how to make the most of the fellowship and the extent to which fellows are incorporated into the intellectual life of the school. How often do the fellows themselves get together? Do they have their own workshop series, anything like that?

A:  The degree of interaction among the fellows and VAPs has differed a bit over time and is somewhat a function of the people who are in these positions, their substantive interests, and their schedules.  But they have all consistently been very much included in the intellectual life of the school and, generally, treated as faculty alongside everyone else.  The fellows and VAPs participate along with all the faculty in our regular faculty workshops, including as presenters.  We also have another workshop series that is part of our Murphy program that is a bit smaller and designed in large part to be a node of interaction among the fellows and VAPs as well as students and alums who are interested in the possibility of an academic career.  I'd say that these workshops are the main formal opportunities for the fellows and VAPs to interact with each other and with other faculty, but there are countless other informal opportunities as well, both professional and social.

Q:  Are all the fellows invited to the Murphy Institute Workshop Series?

A:  Oh yes, and they are encouraged to participate in programming the series as well by recommending people to invite.

Q:  Who actually supervises the fellows?

A:  That’s been something our associate dean for faculty research has coordinated, and there’s a core handful of tenured and tenure track faculty who are heavily involved in mentoring and supporting the fellows and VAPs.

Q:  Okay, and does that include people necessarily in their area of interest or are they given help in connecting with faculty in their area of interest?

A:  Both.

Q:  Are they given assistance in connecting with faculty outside of Tulane?

A:  Yeah, that's something that we spend a good deal of time doing. We try to do that in part through involving them in programming our faculty workshops, both the main series and our Murphy series.  We also try to help people get to know people in their own fields in other ways as well, especially by sending out drafts and attending conferences and similar events.

Q:  We’ve now talked about the workshop series and mentoring opportunities. What other assistance are fellows given related to their research?

A:  In addition to the development fund and research assistants that they get along with other faculty, I'd say the main thing that we do to help our fellows and VAPs is engage with them as they do their research and writing.  If people are at the stage where they're trying to decide what to write or shape an agenda, we have had lots of conversations, say over lunch or coffee, to help them decide among projects and help them frame their research queries or projects.  This also involves reading works in progress, something that our group of faculty here take very seriously, and identifying people in the building and outside the building to read their drafts.  Then I'm fairly certain that everyone who's been through as a fellow or VAPs has had the opportunity to present their work in one of our workshops, in addition to any moot talks they’ve done in preparing for the faculty recruitment process.

Q:  I want to ask a question that keeps coming up on the blogs.  People have wondered if VAPs or fellows receive assistance placing their work. In other words, is there any assistance with the actual placements itself?

A:  The assistance that we provide in that regard is the same assistance that we provide each other as colleagues, which is just advice on how to try to navigate the confusing system that we have for submitting articles to journals.  But beyond that, I don't know what people may have in mind.

Q:  I think they think we call up law reviews and say you should really accept X and Y piece.

A:  No, the extent of the help that we give is just the general advice that we provide on strategic aspects of submitting work to journals.

Q:  Let's turn over to the teaching side.  What training, feedback, or mentoring do fellows receive related to their teaching?

A:  We do a variety of things in that regard, much of it informal.  And most of what we've done has been, frankly, is the same kind of advice and help that we give to our incoming  tenure track faculty. To begin with, we provide a good deal of help and feedback at the preliminary stage when people are preparing to teach a course for the first time and, especially, when they are designing substantive courses. They get help with things like preparing a syllabus, selecting a casebook or materials, and thinking about what kind of teaching style or various teaching approaches they may want to take.

Then we attend classes that the fellows and VAPs are teaching, and provide feedback and assistance as we think might be useful, and certainly in response to any questions that arise.

Some people who've come through have also sought advice from people we've identified to them as especially successful classroom teachers, and we generally advise everyone to sit in on other classes taught by other permanent faculty who are successful in different approaches.

Q:  Let’s talk more specifically about the teaching responsibilities in the three fellowship programs. The Forrester Fellows, do they just teach in the legal writing program? Do they have the opportunity to teach outside of that program?

A:  Yes, they teach exclusively in that program.

Q:  How many students do they tend to have in their section?

A:  They have approximately 25 students in two different sections.

Q:  Just to clarify, 25 in each section?

A:  That’s right. We’re aiming to reduce the number of students or sections per fellow when we have resources to do so.

Q:  Okay, so a total of say 40 to 60? 

A.: Yes. That number is higher than we’d like ideally and we hope to reduce it over time when resources allow.  But our experience is also that our Forrester Fellows have been successful in managing the teaching responsibilities and launching successfully onto the tenure-track market.

Q:  How do they manage the grading and the teaching for those two sections along with trying to develop their own research agenda and manage their writing?

A:  As with most legal research and writing programs, there's a predictable schedule of spikes in the work in both the fall and spring semesters, as opposed to other courses where the work is spread more evenly across the term. We help the fellows plan their research and writing activities in between the spikes in grading and having student meetings, and we encourage all of the fellows and VAPs to have enough of a running start towards the end of summer so that, over the course of the term, it's easier for them to pick up where they left off.

Q:  Are the Forrester fellows coming up with the assignments and curriculum?

A:  No, that's a key feature of the program that is very important for the fellows. The most time-consuming aspects of substance of the course are consistent across the sections, so the fellows are not coming up with the topics for the memos and so forth.

Q:  How about the VAP program? You mentioned that they teach in three semesters, how many courses do they teach in each semester?

A: They teach one course in each of three semesters.

Q:  Do they repeat at all? How many total preps?

A:  We have encouraged, and I think it has consistently been the case, that the VAPs tend to repeat one of their courses. So they'll generally teach a new prep their first spring, then another prep the next fall, and then teach the course they taught the previous spring a second time.

Q:  You mentioned that the fellow in the new Yongxiong fellowship will be teaching two courses. Is that, like the Murphy fellowship, one course a semester?

A:  Yes, the course in the fall will be the legal research and writing course with LLMs and then a substantive course in the spring.

Q:  Do the fellows have any other responsibilities? We've talked about the teaching side, the scholarly side, is there anything else that's on their plate?

A:  No.

Q:  Stepping back, if you were talking to a candidate with multiple options between different fellowship programs, what do you think makes Tulane programs stand out?

A:  I think the thing that makes us stand out is that we have a critical mass of faculty in the building who are very invested in helping our fellows and VAPs be successful while here and in landing tenure-track positions.  Over the years, I think our fellows and VAPs have really benefitted from a lot of hands on advice and counsel.

As an institution, I think we have fully appreciated that the successes of the program and the benefits that we get from having fellows and VAPs is largely a function of their success, both while here but especially in obtaining tenure track position.  So, pretty much every decision that we've made institutionally regarding those positions has been designed to do whatever we can to help with both goals.

Q:  Do you happen to know off the top of your head, what percentage of the fellows over the last say 5 or 10 years have landed?

A: We're at roughly 90%, and that’s been mostly during a difficult period for law faculty hiring.

Q:  Yeah, and what types of mentoring do they receive related to the hiring process?

A:  Very hands on. Different people have different appetites for input, but basically we provide as much as people can take, and at every stage of the process. This start with strategizing in the first year on things like their job-talks and reaching out to faculty at other schools in their fields to try to build a group of formal and informal recommenders. And then, in the run-up to actual process itself, we spend a ton of time with people on their FAR forms.

Q:  Who are the people who are doing this? Who are the faculty, not necessarily by name but in terms of position, who are responsible for helping with this type of mentoring?

A:  There's tended to be a core group that includes our associate dean for faculty research and often our own recent tenure track hires, who are very eager to share all of the advice and counsel they got along the way. We also have a number of other colleagues who are very active mentors to whom we steer people for advice on all sorts of questions, and who generally participate in moots for interviews and job talks.  Many of those colleagues are people who have served on our appointments committees over the years and who have lots of good experience and insights that they're able and willing to share with our fellows and VAPs.

Q:  Do fellows have the opportunity to do a new job talk or a new screening interview in front of the faculty?

A:  Yes.

Q:  Does the school support fellows who may need to go on the teaching market more than once? Is the fellowship renewable ever for a third year?

A:  Well, in any event, we are committed to continuing to provide support for our fellows and VAPs until they get tenure-track offers.  But we’re pretty firm in our expectation that these positions are for two years.  We have made a rare exceptions to this once or twice over the years, but frankly, that has been because of particular needs we’ve had or in benefits to us in extending the position. 

Q:  Let’s step back and look at the rise of fellowships and VAPs more generally.  What do you think are the benefits of the rise of fellowships and VAPs as an entry point for so many law faculty positions?  What do you think are the costs?

A:  Yeah, that's an interesting question. I definitely think there are benefits for the people who are in these positions and for the schools. It's very difficult to get a sense of what is expected of a candidate for a faculty position unless you've observed what faculty do, and you really can't do that as a student, not in any meaningful way, I don't think. So, it's very valuable to have that sustained exposure to a law faculty from the inside, and then extremely valuable to get all of the insights from people within the school about how to prepare to be a candidate and then how to navigate the system. And the opportunity to get a lot of feedback on one’s scholarship and on one’s research agenda and one’s teaching is, I think, quite valuable for fellows and VAPs who are at programs where they get that kind of feedback.

From the school's perspective, our fellows and VAPs tend to be in some of the most dynamic faculty in the building at any given point in time. They tend to be extremely focused and driven and haven't been part of a faculty long enough to get a little jaded.  I think schools really, really benefit from having people in the building who are fresh to the profession and very focused and driven and ambitious.

Q:  What about the costs?

A:  I think the main costs is that it may create a divide between and among candidates who do these positions and those who do not.  But I have to say that, over the years, I've definitely participated in appointment committees that have identified very strong candidates who did not come up through this process although as your data indicates, maybe that's increasingly less common.

Q:  There's always the outliers, right?

A:  Yeah.

Q:  Do you think that the fellowship or VAP programs have any responsibility to try to open up law teaching positions to people from diverse or nontraditional background?

A:  Absolutely, yes. I think that especially as they’ve become a more common pathway into the profession, the responsibility that law schools have in that regard in general is now shifting heavily to these positions.

Q:  You may have heard the concern that VAPs and fellows receive so much help on their papers and developing their ideas when they're in the fellowship programs, that it can be hard for hiring committees to know how many of the ideas comes from the fellows themselves.  What do you think about this concern?

A:  Yes, that's interesting. I saw that as one of the questions in your preview and I really don't recall any one having articulated that before.

Q:  Interesting.

A:  Yeah. Sometimes it's come up where a candidate, for a fellow, or a VAP, or a tenure track position has a good deal of coauthored work, and sometimes there’s been a question about what the candidate’s contribution to the work has been, but there are ways to delve into that and get a pretty good idea.  You’re asking about something slightly different, about whether work attributable to a candidate is really their own.

At least in my experience, fellows and VAPs get essentially the same kind of advice and feedback on their research and scholarship that many entry level of tenure track colleagues do, if perhaps a bit more of it at an earlier stage.  In general, I think a significant part of the scholarly project is collaborative, and oftentimes good ideas emerge out of conversations or interactions that you have with faculty colleagues or, if you're in practice, with partners, or with your judge if you're clerking.  And those influences inevitably help shape one’s scholarship.

I certainly always felt that the core ideas and analysis in our fellows and VAPs work were entirely their own.  Beyond that, I think that the input they get on their work is a main part of the benefit of the program and hopefully has contributed to their development as scholars.

Q:  Last question.  Given that life is zero sum, obviously years that people spend in a fellowship are years that people are not spending, 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:  Well, on a personal level, having done a fellowship myself and having known a lot of people who've done them, I've found that there's a great deal of heterogeneity in how people do these trade-offs, so I find it hard to generalize. The one thing that I feel confident about, at least at this stage, after all of the time that I've spent both as a fellow and with the other fellows, is that these positions, if they are well designed and well-functioning and involve meaningful faculty participation, do provide a benefit and are generally very enjoyable professional experiences.

Q:  But to the extent that we have an increasing number of people who have done a Ph.D. or a fellowship or both, that may well mean that people don't have as much practice experience when they start an entry-level position.  Do you think that is a concern?

A:  My sense of the way our profession is developing is that there's a strong interest in having faculty members, not necessarily every single faculty members, but in general, having faculty members who have significant experience in the practice of law, and I don't think that's ever going to change.

My sense is that the market for tenure and tenure track positions in going to, at least to some significant extent, expect or demand that candidates by and large have some experience in the practice of law. Again, not necessarily every candidate, and but my assumption is that it is going to continue to be an important component in the factors that many or most schools will assess. And so, I think that people who are interested in getting into teaching are going to have a motivation, in addition to their own interest in practicing law, to gain that experience.

I guess I'm not worried that the proliferation of these positions is going to reduce the overall amount of practical experience among law faculties in general.

Q:  Anything else you want to add? Obviously you've been in the trenches on the fellowship side for a while, anything you want to pass along to the hiring committees about the state of law faculty hiring? Or about the fellowships at Tulane?

A: I guess one thing I would re-emphasize is that people who don't have all of the conventional credentials should not be deterred from thinking of this as a potential career path. I think that faculty hiring committees are getting better at evaluating the quality of a candidate’s work, the promise of future work, and their capacity for effective instruction.  So, increasingly, candidates’ actual scholarly work and promise and their professional experience after law school can outweigh credentials or lack thereof.

There is one very specific and practical piece of advice that I've found myself giving people who I think could be strong candidates for a tenure track position, which is to avoid a rush to publish articles in preparation for applying for academic jobs.  I think this strikes some people as rather counter-intuitive, since they’ve heard that they need some scholarly work to land a job, which is largely true.  I’ve found, though, that some people are very eager to publish as much as they can right out of school, so they’ll beef up seminar papers or write up things that emerge from their experience in practice and get them published.  Sometimes that's valuable, but it has its own perils, especially if they're not getting much feedback on the work their doing from scholars in the relevant field for example or even from other colleagues or scholars in other fields.  Once they are being considered by hiring committees, their recent work will get read very carefully and assessed in ways that they may not yet appreciate; it will likely be their calling card when they go on the market for academic positions.

So, my advice to someone who is thinking about an academic job and who is thinking about publishing something they have in progress is to be sure, as much as possible, to reach out to people, ideally to scholars in the field, and get as much feedback as possible.  And they should particularly seek feedback about whether their work is best publishable in its current form or something they might want to develop over a longer period of time to make a stronger impression when they candidates for academic jobs.

Q:  I could not agree with that last part more. I think the focus should be quality over quantity every day of the week.

A:  Yeah, now there are so many journals and there are so many opportunities for publishing, which I happen to think is a good thing, but it makes it a bit dangerous for people who have something that is solid and publishable, but not necessarily what they would want as their calling card as a candidate for a fellowship or VAP or a tenure track position.

Q:  I completely agree. Thank you so much Adam I know this one has been a long, but we had the three programs to talk about so, I appreciate that you took the extra time with me today.


Posted by Jessica Erickson on August 9, 2019 at 06:39 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

MAGA student speaks (with minor edits)

So now we know. The MAGA-hat-sporting student that Gonzaga Prawfs Jeffrey Omari described is Austin Phelps, a rising 3L who has taken to the pages of the same ABA Journal to give his side of the story.

Phelps' version differs from Omari's in two important respects. Phelps makes it sound as if the MAGA hat was not a late-semester sartorial one-off; it sounds as if he had worn the hat and a Trump-Pence 2020 shirt at various points in the semester and that his laptop was festooned with similar stickers.* He also says Omari did not call on him "with the frequency that left-leaning students enjoyed." Omari described a conservative student who participated in class (enough to make his views known) but how had to that point "not  . . . donned any political paraphernalia in the classroom."

[*] Yet another reason to ban laptops.

He also complains about called out for wearing a build-the-wall t-shirt to his "university-affiliated internship," which he attributes to Omari's op-ed. The internship enforced a neutral (although never-before-enforced) rule banning t-shirts with slogans while at work.

The rest of the piece combines a defense of free speech, with an explanation for his support for the President (including filling two SCOTUS seats "with conservative posteriors," so glad he writes like a serious future lawyer). All of which reflects "my struggle" as a conservative law student--which might not have been the best choice of phrase, considering the context.

Posted by Howard Wasserman on August 9, 2019 at 06:23 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (6)

Junior Prawfs - advice on advising

Hi folks. Since we’re at the end of summer as well as the beginning of application and job market season I thought I’d consider a slightly different aspect of junior prawfing. Specifically, I’d like to get some advice on… giving advice. Over the last couple of years I’ve found myself speaking to aspiring legal anthropologists. Sometimes they’ve been referred to me, sometimes they find me on their own. The conversation lasts anywhere from 45 minutes to 1.5 hours and, in almost all cases, I know I’ve left them feeling more than a little shattered even though that is not what I intend to do.

The initial communication usually goes something like this:

Them: I’m interested in law and anthropology, in being a professor and in making a difference, and in XX and YY substantive areas (e.g., human rights and the environment). What’s your experience been like? How’d you get to where you are? What advice do you have for me?

Since I’m still developing my response my initial reaction varies from call to call, but it’s starting to shape up something like this:

Me:  I hear at least 2 different big questions: (1) should I be an academic [of any kind] or instead should I pursue a non-academic career (2) if I want to be an academic, should I pursue both the JD and the PhD in Anthro or just one, and if so which one?

Also, tell me a little bit about (1) your GPA (2) your standardized test history [have you taken the GRE and/or LSAT? If so, what are your scores? If not, when will you take them?] (3) do you have any geographic restrictions?

I have also started asking about

  • How much they value working as part of a team vs working solo as a default (to help me get at the academic/non-academic question—I know, plenty of academics collaborate regularly, but we’re talking defaults)
  • Whether they’ve considered and are willing to pursue the non-academic paths that are mostlikely to be available to them from either degree program if they cannot get a faculty position (e.g., NGO/policy research positions for the PhD, corporate law practice for the JD) **I know these are not easy to get either; the question is meant to indicate the need for a plan B and to suggest some of the possible plan Bs that may occur to me.

Usually, the person I’m speaking with

  • Really wants to do the PhD, is somewhat more ambivalent about the JD.
  • Really wants to be an academic but is less sure whether they want to be an anthro or law professor (I know this doesn’t fit with point #1 above, but it is what it is).
  • Never contacts me again after we’ve spoken, although I always say multiple times that they’re free to do so.

My question is this: is there any way to spot the line between being honest about the realities of both academic job markets—which are different, but neither is good—and being excessively discouraging? Besides law professor blogs like this one I tend to read InsideHigherEd, Chronicle Vitae, and The Professor Is In (although the last one less and less), so I’m regularly exposed to horror stories from across the disciplines. A lot of the folks who write in these non-law venues also struggle with the ethics of advising someone to pursue a PhD in [most of] the social sciences and humanities. But because I’m talking about both law and anthro, and because faculty jobs are not easy to come by in either field, I think I come across as doubly discouraging—when, again, I just mean to be very frank. Beyond this, I have some war stories from the (still fresh) job market, which probably adds color and terror in equal measure. I always emphasize that it wasn’t a traumatic experience for me and that things obviously worked out. Nevertheless, I’m very conscious of the fact that for every moment where I made a reasonable choice that led me to where I am there’s at least one other moment where I just lucked out… and so I emphasize that “luck” aspect too.

At the same time, I’m starting to feel like I’m kicking the ladder out from underneath me and that’s not a comfortable sensation either. “Yes it worked out for me but that doesn’t mean anything” doesn’t seem much more reasonable than “Yes it worked out for me so it’ll be fine for you too!” Is there a happy medium? I’d be interested to hear how others handle these kinds of encounters with an aspiring prof/prawf, especially before that person commits to a degree program.

Posted by Deepa Das Acevedo on August 9, 2019 at 12:42 AM | Permalink | Comments (4)

Hiring: The Ohio State University College of Law

The Ohio State University Moritz College of Law is conducting four separate faculty-line searches this year. Here are the details:

Williams Chair in Civil Rights & Civil Liberties

The Ohio State University Moritz College of Law seeks an established teacher and scholar to serve as the Gregory H. Williams Chair in Civil Rights and Civil Liberties. Candidates should be tenured professors with a demonstrated record of excellence in scholarship and teaching. The research of the Williams Chair should focus on civil rights and civil liberties, which may include race law, critical race theory, gender and the law, sexual orientation and gender identity law, constitutional rights, or other related areas, including First Amendment freedoms, human rights, disability law, poverty, or economic or criminal inequality. The position will begin in the 2020-21 academic year. A J.D. or the equivalent is required. The successful candidate must satisfy Moritz’s requirements for tenure and promotion to full professor.


Entry-Level or Junior Lateral Tenure-Track Position with Drug Enforcement and Policy Center

The Ohio State University Moritz College of Law seeks an entry-level or junior lateral tenure-track faculty member in the criminal justice field who will be part of its Drug Enforcement and Policy Center (DEPC). The faculty member will be expected to help advance the Center’s mission. Criminal law and procedure are closely intertwined with drug enforcement and policy; from police stops and searches and seizures, to sentencing and post-conviction forfeitures and disabilities, to concerns about disparate impact, the law of criminal justice and drug enforcement and policy mesh. The new faculty member will work with the Executive Director and other associated faculty to advance the Center’s mission. The position will begin in the 2020-21 academic year. A J.D. or the equivalent is required.


Entry-Level or Junior Lateral Tenure-Track Position

The Ohio State University Moritz College of Law seeks entry-level or junior lateral candidates for at least one tenure-track position. Our primary areas of need are Dispute Resolution, Business Law, and Race and Law. Secondary areas of need include Antitrust, Banking/Insurance, Civil Procedure/Complex Litigation, Commercial Law, Evidence, Immigration, Intellectual Property/Law and Technology, Natural Resources/Energy Law, Poverty/Social Welfare Law, Property/Real Estate, and Wills & Trusts. The position will begin in the 2020-21 academic year. A J.D. or the equivalent is required.


Entry-Level Legal Writing Position

The Ohio State University Moritz College of Law seeks entry-level candidates for a clinical-track faculty position teaching legal writing. The faculty member will be part of Moritz’s nationally recognized legal writing program. Candidates should have relevant occupational experience and strong potential in all relevant areas of performance, including classroom teaching, feedback on student work, public service, and maintaining knowledge in the field. The faculty member will be hired for a 3-5 year probationary period, then eligible for promotion to a long-term renewable contract that permits removal only for cause or financial exigency. The faculty member will be eligible for a summer research grant and a research budget. The position will begin in the 2020-21 academic year. A J.D. or the equivalent is required.

*          *          *

The Ohio State University Moritz College of Law is committed to building and maintaining a diverse and inclusive community to reflect human diversity and improve opportunities for all. Diversity, inclusion, and equity are essential to the excellence of our community, culture, and curriculum, and the pursuit of this excellence is critical to our educational mission. We value diversity in all of its dimensions, including gender, gender identity or expression, race, ethnicity, religion, age, sexual orientation, physical and learning abilities, socioeconomic status, veteran status, and viewpoint. We seek to reflect multiple perspectives, backgrounds, and interests in all facets of our community. The Ohio State University is committed to equal employment opportunity and does not discriminate on any basis prohibited by law in its activities, programs, admission, and employment. All qualified applicants will receive consideration for employment without regard to a protected status.

Candidates should send a cover letter and C.V. to Daniel Tokaji, Associate Dean for Faculty, [email protected], stating that they are applying for this position. Applicants are encouraged to submit the Equal Employment Identification Form.  

Posted by Howard Wasserman on August 9, 2019 at 12:27 AM in Teaching Law | Permalink | Comments (0)

Thursday, August 08, 2019

Number of FAR Forms in First Distribution Over Time - 2019

The first distribution of the FAR AALS forms came out this week. Here are the number of FAR forms in the first distribution for each year since 2009.

FAR Forms Over Time.20190808
(All information obtained from various blog posts, blog comments, Tweets, and Facebook postings over the years and not independently verified. If you have more accurate information, please post it in the comments and I will update accordingly.)

First posted August 8, 2019.

Posted by Sarah Lawsky on August 8, 2019 at 02:09 PM in Getting a Job on the Law Teaching Market | Permalink | Comments (7)

Workshop on Comparative Business and Financial Law - Call for Papers

Posted on behalf of the Younger Comparativists Committee:

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 deadline to submit proposals is October 25, 2019.  For more information, please see the Call for Papers.

Posted by Sarah Lawsky on August 8, 2019 at 08:48 AM | Permalink | Comments (0)

Wednesday, August 07, 2019

University of Alabama School of Law Faculty Hiring Announcement

I'm delighted to pass along this hiring announcement for the University of Alabama School of Law:

The University of Alabama School of Law seeks to fill one or more entry-level/junior-lateral tenure-track positions for the 2020-21 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship; junior-lateral candidates should have an established record of excellent teaching and distinguished scholarship. The primary focus of the search is criminal law, however, qualified applicants in other areas may be considered. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods. The University embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community.

Interested candidates should apply online at facultyjobs.ua.edu. Salary, benefits, and research support will be nationally competitive. All applications are confidential to the extent permitted by state and federal law; the positions remain open until filled. Questions should be directed to Professor Jenny Carroll, Chair of the Faculty Appointments Committee ([email protected]).

Link to Ad:



Posted by Paul Horwitz on August 7, 2019 at 12:42 PM in Paul Horwitz | Permalink | Comments (0)

Legal innovation website -- a valuable new resource

The ABA Center for Innovation (whose council I chair) has collected information here about regulatory innovations in legal services delivery.  This includes, but is not limited, to lawyer regulation and various reforms to the Model Rules.  The picture painted is of a large amount of business as usual, with some tantalizing examples of forward-looking reform efforts.

Among other contributions, this legal innovation survey should be of value to legal scholars looking closely at issues of access to justice and the delivery of legal services in the contemporary U.S.  Much more careful research in this space is required and the data provided here is one important step in facilitating such research.

Shout-out to the Open Society Foundation which supported this project financially.

Posted by Dan Rodriguez on August 7, 2019 at 12:10 PM in Daniel Rodriguez | Permalink | Comments (1)

Tuesday, August 06, 2019

Second Circuit revives Palin defamation suit

Decision here. I wrote about the case here.

The court of appeals correctly criticized the district court's weird use of an evidentiary procedure (testimony from the primary author of the challenged editorial) to evaluate the complaint. When a court considers information outside a complaint, it either must exclude the information and continue as a 12(b)(6) or convert to summary judgment; it cannot use the information and continue to treat the motion as a 12(b)(6). The Times argued that the testimony was background information that was "integral to" the material in the complaint; but that could not be right, because the information was obtained after the complaint was filed, as opposed to information the plaintiff could have relied on in drafting the complaint.

The problem with the decision was in holding that Palin's Amended Complaint (drafted with the assistance of that testimony) was plausible. This is bad for First Amendment purposes but procedurally interesting in two respects.

The court found that the district court had credited the editorial writer above the allegations in the complaint, which was improper. The district court had stated that the author's conduct was "much more plausibly consistent" with a mistake than with actual malice. But it "is not the district court’s province to dismiss a plausible complaint because it is not as plausible as the defendant’s theory. The test is whether the complaint is plausible, not whether it is less plausible than an alternative explanation." Twombly and Iqbal contain language that a complaint is implausible where there is a reasonable alternative explanation for the conduct (in Iqbal, the alternative was "protecting the nation after 9/11" rather than "invidious discrimination"). Lower courts have generally ignored that language; here, the Second Circuit flatly rejects that analysis, at least in this type of defamation action.

The court closed the opinion as follows:

We conclude by recognizing that First Amendment protections are essential to provide “breathing space” for freedom of expression. But, at this stage, our concern is with how district courts evaluate pleadings. Nothing in this opinion should therefore be construed to cast doubt on the First Amendment’s crucial constitutional protections. Indeed, this protection is precisely why Palin’s evidentiary burden at trial—to show by clear and convincing evidence that Bennet acted with actual malice—is high. At the pleading stage, however, Palin’s only obstacle is the plausibility standard of Twombly and Iqbal. She has cleared that hurdle.

But this raises an important point. The clear-and-convincing evidence standard has been incorporated into summary judgment, because whether a reasonable jury could find for the plaintiff must account for the standard. Should the same be true for 12(b)(6)--must it be plausible by clear-and-convincing evidence? This would twist pleading from its purposes, but Twombly and Iqbal did that in trying to make it a weed-out point. The question is whether we follow that to its logical conclusion.

The standard of proof may define how much of a problem this case will be for The Times and the First Amendment. The bulk of the analysis defines this as a case of competing factual inferences--Palin's facts show actual malice, the author says it was a mistake; if so, then this case cannot go away on summary judgment, because the court is equally prohibited from deciding witness credibility as would be required in this case--only a jury could resolve those questions.* That last paragraph of the opinion, emphasizing the standard of proof that will apply at trial and summary judgment, may have been a signal to the lower court about what should happen next.

[*] The court declined to treat the district court decision as one for summary judgment because, even as a summary judgment decision, the court impermissibly made credibility determinations.

Posted by Howard Wasserman on August 6, 2019 at 06:56 PM in Civil Procedure, First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (1)

Conference: "Lawyering in the Digital Age" - Amsterdam, Oct. 17-18, 2019

Screen Shot 2019-08-06 at 4.37.17 PMI'm pleased to be participating as a presenter in a conference entitled "Lawyering in the Digital Age" at the Allen & Overy office in Amsterdam on October 17-18, 2019. It is sponsored by the Centrum voor Postacademisch Juridisch Onderwijs (Center for Professional Legal Education) of Radboud University Nijmegen, and organized by Radboud's Faculty of Law along with a group of other distinguished academics and practitioners from Europe, the United States, and the Middle East.

The program will be both practical and academic, with discussions of legal tech advances generally and specifically in ADR, consumer law, and the public section, as well as a discussion of the practical and ethical implications of digital law practice.

Organizers/participants (in addition to yours truly) include:

Prof. Larry A. DiMatteo: Huber Hurst Professor of Contract Law & Legal Studies, Warrington College of Business, University of Florida

Prof. Florian Möslein: Professor of Contract Law, Company Law and Capital Markets Law, Philipps University Marburg

Jiaying Christine Jiang: SJD Researcher, Emory University School of Law; Attorney, New York

Prof. André Janssen: Chair Professor of Private Law, Radboud University, Nijmegen

Dr. Pietro Ortolani: Assistant Professor, Radboud University, Nijmegen

Dr. Benjamin Werthmann: Attorney, Werthmann.legal, Berlin; Advisory Board Robotics and Artificial Intelligence Law Society (RAILS), Berlin

Paw Fruerlund: Partner, Kammeradvokaten Poul Schmith, Copenhagen

Raffaele Battaglini: Chief Legal Officer, JUR, Zürich Area; Partner, Battaglini De Sabato, Turin

Dr. Mateja Durovic: Lecturer in Contract and Commercial Law, King’s College London, The Dickson Poon School of Law

Dr. Jin Ho Verdonschot: ODR developer; Member Supervisory board Justice Leadership Group, The Hague

Prof. Martin Ebers: Associate Professor of IT Law, University of Tartu (Estonia); Permanent Research Fellow, Humboldt University of Berlin; Co-Founder and President, Robotics and Artificial Intelligence Law Society (RAILS), Berlin

Prof. Francisco de Elizalde: Professor of Private Law, IE University Law School, Madrid

Prof. Sofia Ranchordás: Professor of European and Comparative Public Law and Rosalind Franklin Fellow, University of Groningen

Dr. Georgios Dimitropoulos: Assistant Professor, Hamad Bin Khalifa University, Qatar

Dr. Jean-Marc Van Gyseghem: Director of Research Centre Information, Law and Society, University of Namur; Associate Partner, Rawlings Giles Law Firm, Brussels

Prof. Michel Cannarsa, Dean, Faculty of Law, Catholic University of Lyon

Dr. Christopher Markou: Affiliated Lecturer, University of Cambridge

Dr. Mathieu Guillermin:  Associate Professor, Catholic University of Lyon

Registration information is available here.

Posted by Jeff Lipshaw on August 6, 2019 at 05:17 PM in International Law, Lipshaw, Web/Tech | Permalink | Comments (0)

Hiring Announcement: Suffolk University Law School Transactional Clinic Director

My school is undertaking a search for an entry level assistant clinical professor to launch and direct a Transactional Law Clinic.  From the job description: 

We seek candidates with strong academic records and a commitment to excellence in teaching and scholarship. Prior experience in clinical education is preferred, and at least three years of transactional law experience is required. Applicants must be admitted or eligible for admission to the Massachusetts bar.
The Transactional Law Clinic will provide students with the hands-on, practical experience they need to navigate the rapidly evolving field of transactional law. At a minimum, the Clinic will provide free legal services to underserved clients on transactional issues and collaborate with several existing clinics at the Law School on transaction-related issues.
The ideal candidate will be a self-motivated individual who can launch and grow the Clinic by developing relationships within the greater Boston community, the University community, and the academy and Bar.
In addition to directing the Clinic, the faculty member will be expected to teach one non-clinical course in a related field, contribute to the Law School and community, and produce scholarship.
The Transactional Law Clinic, once launched, will be one of Suffolk’s 12 in-house clinics, adding depth and breadth to Suffolk Law’s nationally regarded Clinical Programs. Suffolk Law’s Clinics have been ranked among the top 20 such programs in U.S. News & World Report for more than a decade. The Clinic also will be a part of Suffolk Law’s successful Business and Financial Services concentration.
Applicants should submit a curriculum vitae, a list of references, and a cover letter addressed to Professor Sarah Boonin, Co-Chair of the Clinical Committee, Suffolk University Law School.

I can add that we have a "unified" tenure track that includes clinical and legal practice skills professors.

Posted by Jeff Lipshaw on August 6, 2019 at 03:10 PM in Getting a Job on the Law Teaching Market, Teaching Law | Permalink | Comments (0)

Monday, August 05, 2019

#MeToo at the Indian Supreme Court

I thought I’d take a break from my series about junior-prawfing to talk a little bit about a current project—rather, part of a future project. This draws from a preliminary “scouting” field trip I did in Delhi this April/May in order to refine ideas for a new research arc on the Indian judiciary. (One of my later posts may discuss the process of developing or shifting research arcs.)

The Indian Supreme Court is widely considered to be among the more progressive and powerful apex courts in the world, and at least for much of the last 40 years it’s enjoyed a remarkable reputation for being more trustworthy and “pro-people” than the executive and legislative branches. (I should note that this view of the Court is by no means universally endorsed, but it’s proven to have considerable reach and lasting power.) In recent years, the Court’s reputation has been getting tarnished for a number of reasons—the ongoing conversations about reforming SCOTUS have strong parallels in India right now—including one reason that I ended up inadvertently learning quite a bit about during my recent scouting trip.

The Chief Justice of India (CJI) is exceptionally powerful, and not “just” in the sense of representing and heading the highest court in the country. For example, the CJI is significantly involved in the elevation of both High Court and Supreme Court judges, has the power to form benches on the Court (the Indian Court does not sit en banc), and—most relevantly for this post, is charged with handling discipline matters involving other Supreme Court justices. But there’s no procedure for handling discipline matters involving the CJI himself. This proved to be a problem when, earlier this year, a former staffer accused the current CJI of sexually harassing her, following which she was demoted, fired, and otherwise intimidated. Incredibly, the Court’s first response was an informal (and closed door) “inquiry” comprising a panel of 3 justices, during which (1) the complainant was not allowed counsel or even a support person, (2) the CJI was present, and (3) the CJI’s presence was redacted from the proceeding’s records.

There were protests. Obviously. It just so happened that, on the day of the first protest, the journalist I was scheduled to have coffee with  had to cover the protest. Since it was broadly relevant to my interest in the Court, he suggested I attend myself. I did, and I ended up having some interesting conversations, making some more contacts, and barely managing to avoid getting scooped up when the Delhi Police and Central Reserve Police came to enact some thoroughly unnecessary crowd control. (I’m in a few photos from news coverage of the day, hanging out at the back and trying to look innocuous and student-like.)

There’s a lot to unpack here and I’m working on an article that will help me tackle a very small part of it as well as help me think about the larger research arc that this will be a part of. But the CJI scandal has been something of an unexpected introduction into the study of courts-as-institutions after a decade of studying issues that frequently land in the courts. I had no particular intention of diving into—or avoiding—India’s version of the judicial #MeToo until it impacted my other plans for the day. Attending the protest and following up with some of the folks I met there has convinced me that the CJI scandal has an important role to play in understanding the broader relationship between the Indian Court and Indian democracy. And that, in a nutshell, is the beauty (and risk) of fieldwork: like all work with primary source material—archival documents and data sets included—you never know how your inquiry will proceed, but unlike these other types of research your material is both unknown at time zero and constantly susceptible to change.

Posted by Deepa Das Acevedo on August 5, 2019 at 10:47 PM | Permalink | Comments (5)

DeStefano on "the Adjacent Possible"

Michele-DeStefano_cropLast week, one of the SSRN journal emails included a new piece by an old friend, Michele DeStefano (Miami, left) - Innovation: A New Key Discipline for Lawyers and Legal Education. From the abstract:

It begins by demonstrating that clients' call for innovation is really a call for transformation in service from their lawyers. It then explores why answering this call can be problematic for lawyers. It seeks to show that lawyers' professional identity, training, and temperament (along with extrinsic and intrinsic motivation) make it difficult for lawyers to adopt the collaborative, creative mindset and skillset of innovators. This chapter recommends that innovation be incorporated as a new key discipline at both the law school and executive education (continuing education) level because in the process of learning how to innovate, lawyers hone the mindset, skillset, and behaviors that clients desire. In support of this contention, it reveals that, as an added benefit, by honing the innovator's DNA, lawyers also grow into inclusive leaders our society needs us to be. The chapter concludes with some suggestions for lawyers to help them better collaborate towards innovation along with a pie-in-the-sky call to the legal universe to make innovation the new key discipline for practicing and aspiring lawyers.

This is music to my ears - because it's about the self-imposed limitations, for better or worse, that can be the result of the frames or presuppositions from which many lawyers (and law professors) see and make sense of the world (e.g., deliberately, logically, algorithmically, dispassionately, syllogistically). Michele's point here (and in her book Legal Upheaval: A Guide to Creativity, Collaboration, and Innovation in Law) is that kind of square-cornered thinking is just the beginning; clients will demand as well a collaborative and creative mindset in order to craft solutions to problems.

What was particularly delightful was finding Michele's incorporation of a coinage from Stuart Kauffman, M.D., theoretical biologist, and complexity researcher (University of Chicago, University of Pennsylvania, Santa Fe Institute, among other affiliations), about the "adjacent possible." I also recently came across Kauffman's work, and I've used it in the piece (title has changed but that's another blog post to come) from which I've been out-taking this month. The "adjacents possible" are the possible next states from the one in which we are in or which we are observing. Kauffman's point was to distinguish the adjacent possible in physics (or cybernetics) from that in a complex biological or economic system.  In a physics or computational system, all of the adjacents possible in either direction, all state changes, are predictable. But not so in biology (and I would add, in human thought). There, the move to the adjacent possible (the set of all possible next states), while not random, is not predictable. (I like this particular observation: the universe has constructed every possible stable atom, but not every possible protein.)

The connection to human creativity and innovation should be obvious.

More to come later.

Posted by Jeff Lipshaw on August 5, 2019 at 09:37 AM in Article Spotlight, Lipshaw, Teaching Law | Permalink | Comments (0)

Judgments we like yielding precedent we hate

In a post on Friday, I mentioned Rosenberger v. Rector and Visitors of University of Virginia as a case in which a conservative victory (the Court held that the university could not deny student-activities funding to a religious organization) produced liberal victories in lower courts (holding that universities could not deny funding to LGBT organizations). In other words, the judgment in the case was great, but the judgment was accompanied by an opinion that established a principle that provided precedent for other courts to produce not-so-great judgments in later cases.

Consider this a bleg: I am looking for a particular situation--Case I established a general principle that yielded one outcome, then that general principle yielded a politically opposite outcome. Can people think of other examples of this, in either direction?  And are there examples outside of free speech/press? I think this would make an interesting study.

Posted by Howard Wasserman on August 5, 2019 at 09:31 AM in Howard Wasserman, Judicial Process | Permalink | Comments (10)

Sunday, August 04, 2019

Is Blogging the New Resume?

I learn a lot about career planning through the observation of others’ successes (and failures). I have observed lawyers and non-lawyers alike carve professional niches through blogging and podcasting. The two best examples are On Reserve, a Wine Law blog, and The Gen Y Lawyer podcast.

Lindsey Zahn started On Reserve in law school as a means of writing about her passion in the regulation of alcoholic beverages. It grew a following, and led to opportunities as an alcoholic beverage lawyer. The blog also allowed her to showcase her prolific scholarship in wine law.

The Gen Y Lawyer podcast went down a similar path. A way to express the feelings of a new generation of lawyers by interviewing legal professionals, it provided Nicole Abboud with the opportunity to become a legal marketing consultant.

I do not advocate every aspiring lawyer to create their own blog or podcast. There are logistical issues with attracting readers and listeners (both of the aforementioned were profiled by the American Bar Association). There are, however, some takeaways for establishing a blog or podcast to show one's legal acumen. First, content must be continuous. People will lose interest in your online media if there is nothing new to see. This ties directly into my second observation. It must be born of passion. Both On Reserve and The Gen Y Lawyer were products of the visions and interests of their creators. On Reserve became not only a resource for those interested in wine law, it was also a way to demonstrate Zahn's skills as a writer, scholar, and experience. The fact that both are still going strong today is a testament to this.

Posted by Scott Maravilla on August 4, 2019 at 03:04 PM | Permalink | Comments (0)

More on Malcolm Gladwell

Mike Dorf critiques the fourth season of Malcolm Gladwell's Revisionist History, which contains several episodes relevant to law and legal education. In particular, the first two episodes criticize the LSATs as the gateway into legal education. The basic argument is that the test's tight time constraints favor "hares" who think and react quickly over "tortoises" who take longer to think and analyze a problem, while the practice of law is more for tortoises.

But at least the first two episodes (I am midway through Ep. 3) are worse than Dorf suggests. The problem is that Gladwell tends to pick a thesis, find evidence that undermines one variable in furtherance of that thesis, then conclude (or assume) that his thesis has been proven, without exploring the other variables or other obvious explanations for the result. Dorf describes this as Gladwell "overclaim[ing]." Three glaring examples in these episodes.

The first is the story of Sixth Circuit Judge Jeffrey Sutton. Sutton attended The Ohio State University for law school because he did not get into Michigan, because it is assumed (without stating) his LSAT scores were not high enough. From this, Gladwell assumes that Sutton is a tortoise. And Sutton might have been overlooked for a clerkship by Justices such as Scalia (to whom Sutton was assigned as a clerk for the retired Powell) who hire based on law school (which is based on hare-favoring LSAT), which rewards hares over tortoises. This despite the fact that Scalia praises the tortoise Sutton as one of his best clerks because clerking and judging are jobs that favor tortoises. So the LSAT--and thus law schools, judges, and law firms--fails to identify, benefit, and reward brilliant tortoises such as Sutton.

There are many gaps in this logical progression. First, poor LSAT performance does not necessarily mean Sutton is a tortoise; it may mean he is a hare who had a bad day (the episode does not say how many times Sutton took the test). Second, we do not know that his LSAT scores kept him out of Michigan, as opposed to his undergrad grades or quality of his essay (Gladwell relies on the strong inference from LSAT being such a significant part of the admission calculus). Third, Sutton has some hare-like qualities--he did extraordinarily well in law school, which (Gladwell argues in Ep. 1) is framed to favor hares by using time in-class exams (this was even more true when Sutton was in law school in the late-'80s, where it was one end-of-semester in-class exam).*

[*] The reliance on timed exams in the first year is why the LSAT predicts 1L performance--both rely on time constraints in testing.

The second is a story told by Bill Henderson (Indiana-Maurer-Bloomington) about a 3L who booked his class, which relied on a take-home exam (I think it was 8 hours); this was that student's highest grade in law. The horror, Gladwell says. The school had labeled this person as an average student  by giving hare-like exams, when he was just a tortoise who, given the chance to take his time, could write a beautiful, well-organized essay.

Again, however, note the gaps and assumptions. I agree with the basic idea that ideal grading combines times and untimed assessments and I try to give both kinds within any class. But I have not not noticed a massive divergence in performance on the two types--good students do within a small range of well on both, weaker students do within a range of less well on both. And the testing format does not necessarily alone explain this one performance. Maybe the student related to that course's material (Gladwell does not identify the course, although Henderson teaches corporations and bus-org classes). Maybe the student responded well to Henderson's teaching style and learned well from him, which might produce stronger exam performance. We do not know how other IU professors assess--whether Henderson was the only prof giving take-home exams--and we do not know how this student performed in any other classes that used something other than in-class exams.

The third story discusses law practice. Gladwell describes a study showing that success in big-firm practice (especially rainmaking) is not correlated to the law school attended--the most successful attorneys attended night law school and schools the person never heard of. But big law firms continue to hire based on law-school prestige to bring in people who "look like them" (what Gladwell's subject called "mirrorocracy"). But that assumes that the people doing the hiring at big firms are the t-14-grad partners rather than the most successful attorneys at those firms--the hiring partners are t-14 grads looking for more t-14 grads, while ignoring the success of their partners who are non-t-14 grads but do the best work. But why aren't those non-t-14-grads who are the best lawyers also doing the hiring? Gladwell does not say.

Finally, not a criticism but a question: Gladwell describes the high enrollments of the three most prestigious schools in Canada--Toronto has 70k undergrads, British Columbia has 50K+, and McGill (the small, intimate school) has 25k. How do they avoid the problems that plague similarly large U.S. pubic schools--not enough teachers, over-reliance on adjuncts, massive classes, limited writing assignments that do not prepare students for the next level, etc.?

At some level, criticizing a podcast for not following and tying down every argument is similar to doing that to a blog post or twitter thread (although not fully--the first two episodes ran 79 minutes, time enough to tie-up obvious loose ends). But Gladwell purports to uncover the real story and offer real understandings, theories, and solutions to problems. It seems fair to hold him to the obvious flaws or incompletions in his arguments.

Posted by Howard Wasserman on August 4, 2019 at 01:48 PM in Howard Wasserman, Teaching Law | Permalink | Comments (11)

Law in Popular Culture

With Avengers: Endgame now the highest grossing film of all time  and Spiderman: Far From Home raking in $1 billion at the world wide box office, we are firmly in an Age of (Super) Heroes. Now that our (popular) culture is immersed in the superhero/comic book genre, it is a good time to reflect on its place in legal culture.

Scholars and practitioners have begun to dissect the themes and portrayal of the legal profession in fantasy-based popular culture. Law and the Multiverse, I believe the first blog on the subject matter, routinely examines the law as it’s portrayed in comics and the films based on them. Editor, James Daily, is co-author of the landmark work, The Law of Superheroes. The first to examine the place of those “with powers far beyond mortal men” in the legal landscape. The subject has also drawn interest at industry conventions. This past April, Awesome Con in Washington, DC featured a panel called Law and Order in Comics.It bought together scholars, practitioners, and writers.

Many of these discussions revolve around the heroics of the blind lawyer turned vigilante, Daredevil. Netflix wove three critically acclaimed seasons of intense storytelling around the character. Albeit, the show turned in a poor outing with its accuracy in its portrayal of the law. Matt Murdock (DD’s alter ego) and his law partner, Foggy Nelson, routinely violated the attorney-client privilege as did every other lawyer in the show. The main bad guy, The Kingpin, is actually convicted based on information he provided to his own lawyers. Law school fares no better with our heroes studying Spanish, and appearing to take other undergraduate classes.

Notwithstanding the portrayal in television and film (let’s not getting started with a private attorney prosecuting a criminal in the Ben Affleck starring movie version), the profession has been well served by the writers of DD. Charles Soule is an attorney and writer, most famous for his work with Marvel, brought his experience as an attorney to the written page. Daredevil, for example, takes a job as an Assistant District Attorney.She-Hulk accurately portrayed the titular heroine losing her BigLaw job for a lack of billing because she’s off saving the universe with the Avengers. 

Louis Rosen, a reference librarian at Barry University School of Law, argues that comics, Daredevil specifically, provide an opportunity to educate the public on the role of lawyers in society through accurate portrayals across mediums. His article can be found here, and an interview with him here.

I have found it interesting to examine real world legal issues through this lens as well. I wrote my own piece on the ethics of Matt Murdock representing criminals he captured as Daredevil. Analogizing to off duty police officers, I examined whether it was ethical for Matt Murdock to represent criminals who he caught as Daredevil.

As it looks like we will be enjoying the fruits of the MCU for the foreseeable future, we can draw from it for legal discourse.


Posted by Scott Maravilla on August 4, 2019 at 12:37 PM | Permalink | Comments (3)

Visiting Again

I want to thank Howard Wasserman for providing me the opportunity to guest blog. As a long time reader and fan of the site, it is always a dream come true to be a member of this wonderful community. As we are approaching the AALS teaching market, I want to wish all of the aspiring law professors the best of luck.

As a re-introduction, I am an administrative judge and writer of legal scholarship. I am also an elected member of the American Law Institute, and have been an active participant on the Restatement (Fourth) of Property Law project. I plan to blog on a variety of topics including the portrayal of the law in popular culture, reviewing a new book on using technology in the classroom, and on some recent Supreme Court decisions.

Posted by Scott Maravilla on August 4, 2019 at 12:21 PM | Permalink | Comments (0)

Good guys with guns

I think Sunday's events should end the idea that the answer to bad guys with guns is good guys with guns.

Texas is an open-carry state and Wal Mart stores are happily open-carry. So there is a good chance that someone in the store was or could have been armed. No one shot back. The two "heroes" were the veteran in Wal Mart who reacted to the shooting by pulling children to safety and the guy in Dayton who wrestled the gun from the shooter. No one tried to get into a firefight with the guy. Which is smart, because the chances are that the policy would misidentify the good guy as the bad guy and shoot him (especially if he possessed certain traits).

Everyone is praising the police in Dayton for taking out the shooter in less than a minute. But in that minute, the shooter killed 9 and injured 27. The GGWG argument always has rested on the idea that some early victims will be sacrificed; we not know the BGWG until he starts shooting, so there will be a few victims until the situation reveals itself and the GGWG can spring into action. The GGWG prevents a small tragedy from becoming a big tragedy.  But in Dayton the GGWGs (the police) quickly sprung into action--and the casualties already were enormous. So the only way to prevent mass casualties is for the GGWG to act before the shooting starts, with police being hare-triggered in their suspicions about who might be a BBWG. And we know at this point that the people the police identify do not look like the people who did the shooting this weekend.

The early Republican talking point is that violent video games are causing these mass shootings, so they should be regulated (along with more compulsory school prayer and flag salutes). This is so stupid and vacuous that it should be embarrassing. And the reason I stopped watching mainstream media outlets is that they fail to challenge the stupidity and they keep inviting the same people to repeat the same vacuous talking points.

Posted by Howard Wasserman on August 4, 2019 at 12:17 PM in Howard Wasserman, Law and Politics | Permalink | Comments (0)

Saturday, August 03, 2019

Divorce and the Contracts Clause

Next semester I'm teaching a seminar on the Marshall Court. In preparation for that class, I reread Dartmouth College v. Woodward. One fascinating subplot in the argument was whether the Contracts Clause barred a state from making divorces easy to obtain. New Hampshire argued that the Contracts Clause could not truly apply to all contracts and should not be read to cover Dartmouth's charter. If the Contracts Clause were read so broadly, then a state law permitting something like no-fault divorce would be very problematic. After all, divorce laws do undercut the obligations imposed by a marriage contract.

Chief Justice Marshall discussed the point in his opinion. He said state divorce statutes were not liberal (in other words, someone needed to prove specific wrongs by their spouse to obtain a divorce). Thus, they tracked fairly closely with the common law exceptions to a contract. (fraud, duress, etc.). He also said that the divorce issue need not be addressed--Dartmouth's charter was a contract no matter what you thought about divorce.

Justice Story, in a separate opinion, went further. He said that no-fault divorce laws would be unconstitutional. Whether anyone else ever took that view, I do not know. (Justice Washington, characteristically, declined to talk about what amounted to a hypothetical in his separate opinion concurring in the judgement.

I do not know why Dartmouth College generated multiple opinions (unlike the typical Marshall Court opinion). But disagreements about divorce among the Big 3 (Marshall, Washington, and Story). may be the answer.    

Posted by Gerard Magliocca on August 3, 2019 at 08:38 PM | Permalink | Comments (2)

Administrator bias and legal frameworks

I have posted a draft of an article entitled Bias in Regulatory Administration.  Comments welcome.

The larger questions of which this article is a part are not at all new:  How ought we to think about the sacred principle that We the People are entitled to an open-minded, neutral decisionmaking in administrative agency decisionmaking -- especially in the context of administrative adjudication, but even on occasion in rulemaking?  Should the principle be different in the regulatory context than in the traditional courtroom, given unique features of the administrative state?  Lon Fuller famously opined on this question in "Forms and Limits" and Judge Friendly's famous unpacking of the requirement of "some kind of a hearing" furthered helpfully the discussion in an earlier era.

Although my paper doesn't address, except in passing, this issue, there are some important reasons to reconsider the entire matter of administrator bias, both at the level of principle and of administration, given the rise and impact of machine-learning mechanisms in the regulatory administration context.  Discussions of algorithmic bias is all the rage, and rightfully so.  My hope is that we can tie together more ambitiously the deep questions underlying discussions of AI, its promise and pitfalls, to ubiquitous issues of bias, interest, and influence as they have arisen in the doctrinal context for a long while in administrative law.  That, in any event, is the more global question of which this paper is a small part.

Posted by Dan Rodriguez on August 3, 2019 at 01:40 PM in Article Spotlight, Daniel Rodriguez | Permalink | Comments (3)

Friday, August 02, 2019

Judicial immunity can be shocking (sorry)

In the judicial immunity section of my civil rights book, I use a puzzle that I blogged about years ago: A judge in Mississippi cited for contempt and jailed an attorney for refusing to recite the pledge of allegiance prior to court proceedings. I spun that off into several hypos (inspired by a comment from Jack Preis), including the judge ordering the bailiff to tase the lawyer and the judge tasing the lawyer himself. The question is where judicial immunity runs out.*

[*] The attorney did not sue the judge, so this never became a real issue. The judge was disciplined--one of many, many disciplinary actions against him.

This story discusses the use of stun belts to control unruly defendants in court. The problem, besides the extreme pain these devices inflict, is that some judges use (or threaten to use) them not to control security threats, but to get defendants to pay attention to the judge or to stand while addressing the court. States vary as to who controls the device--the courtroom deputy acting on the judge's order or the judge herself.

So here is my hypothetical, brought to life. The arguable immunity turns on  the nature of the judge's action: Ordering the bailiff to tase the attorney would be immune, tasing the attorney himself would not be (nor would Jack's example of the judge shooting the attorney for refusing to comply. Giving orders to maintain courtroom control is a judicial function, with bailiffs and deputies executing those orders; tasing someone to maintain order is not a judicial function because not something done by a judge as judge. But at least some jurisdictions give the judge (not the bailiff) control over this device, making its use--not merely ordering its use--something that the judge is doing in her role as a judge while on the bench.

The story linked above discusses the problems in the use of these devices and how they affect criminal trials, as well as efforts to enjoin their use. No one has yet sued a judge for damages for employing the device, which is where judicial immunity would kick in. Stay tuned.

Posted by Howard Wasserman on August 2, 2019 at 12:10 PM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Confusion of the Inverse??

At JOTWELL, Omri Ben-Shahar has a review of a forthcoming article in the Stanford Law Review claiming to have shown in a study that consumers are cowed by a consumer contract's fine print even if they believe they have been defrauded by the seller - i.e., have been expressed guaranteed A and learn later that (i) they aren't getting A, and (ii) the fine print says they have no legal right to A. (The reviewed piece is Meirav Furth-Matzin & Roseanna Sommers, Consumer Psychology and the Problem of Fine Print Fraud, 72 Stan. L. Rev ___ (2020)).

I've been blogging with outtakes from the not-quite-ready-for-prime time Unsure at Any Speed . Here the outtake intersects with another subject on which I have gotten involved recently: how to deal with the spread of detailed and unread consumer contract fine print, particularly given the ease by which it can appear to be made binding via internet click-throughs.

The question is not whether the conclusions Furth-Matzin and Sommers draw from their laboratory experiments are correct.  First, I don't know enough about qualitative research methods to assess their hypotheticals and questions to test subjects. Second, from what I can tell, they have given enough detail about the methodology to allow the tests to be repeated and therefore falsified. So I accept them for what they seem to say: people seem to take the fine print seriously even when they know they have gotten screwed.

My question is rather about empirical statements that underlie the study to begin with. Is it the case that widespread non-readership of fine print leaves consumers open to exploitation by unscrupulous firms? Is it true that sellers can outright lie about their products and services and then contradict the lie in the fine print?  The Stanford article takes the answer "yes" to those questions as a given, and then proceeds to assess the impact of fine print, given that there was fraud.  I cannot find, however, at least in the footnotes on the first six pages of the article anything other than a couple of anecdotes in support of the proposition that unscrupulous firms are a widespread problem.  I'm not saying they aren't; I just don't see any evidence one way or the other.

Is this an example of "confusion of the inverse," the subject of my outtake?

What I mean by "confusion of the inverse"

I cut from Unsure a detailed explanation of the "confusion of the inverse." It is, along with things like availability heuristic, the law of small numbers, hindsight bias, and confirmation bias, an example of the predictable divergences from actual probabilities to which Kahneman, Tversky, and others demonstrated humans are prone. My particular heuristic/bias peeve has to do with academic assumptions about the morality and competence of corporate oversight (Caremark doctrine for you governance nerds), exacerbated perhaps when, my having recently been been a corporate executive, a colleague blithely characterized corporate executives as "turnips" at a workshop shortly after I joined the faculty.

Here is the confusion of the inverse applied to my peeve.  Conditional probability is the quantification of the following question: given the probability that A is true (P(A)), what is the probability of B given A (P(B/A))?  The formula for deriving the answer is:

P(B/A) = [P(A/B) x P(A)]/P(B)

What we are trying to derive is the probability that we have a corrupt/incompetent board given that we have observed material corporate wrongdoing.

The probability of MW among the set of all corporations is P(A).

The probability of MW given CIB is P(A/B).

The probability of CIB is P(B).  Note that you can have a CIB even if you don't have MW, and you can have MW even if you don't have CIB.

Our formula now looks like this: P(CIB/MW) = [P(MW/CIB) x P(MW)]/P(CIB)


Let's assume the following.  It turns out MW among all corporations is very rare.  Say P(MW) = .01 (one in a hundred).

The probability of material wrongdoing, however, is very high, IF you have a corrupt/incompetent board.  Say P(MW/CIB) = .95

The formula gives us the following numerator:  .95 (the probability of MW given that we have a CIB) x .10 (the probability we have MW).

But remember you can have a CIB even if you don't have MW, and you can have MW even if you don't have CIB.  So the denominator P (CIB) has to take all possibilities into account.

Hence, P(CIB) = [the probability that there is MW given CIB times the probability of MW] plus [the probability that there is MW with no CIB times the probability of no CIB].

So... P(CIB/MW) = (.95 x .01) /[(.95 x .01) + (.05 x .99)]

P(CIB/MW) = .16

So given that you observe material wrongdoing, the probability of also encountering a corrupt or incompetent board P(CIB/MW) is .16.  The confusion of the inverse is to believe P(CIB/MW) is .95.  It is not to say that you can't have corrupt or incompetent boards. It is to say instead that it is wrong to assume board members are turnips just because you observed material wrongdoing.

There are even more malignant examples of the confusion of the inverse.  When a police officer pulls over a car, what is the probability that there are drugs in the car, given that the driver is African-American?  When TSA does a search, what is the probability that the individual is a terrorist, given that he/she appears to be Middle Eastern?  When you are tested for a rare disease, what is the probability you have it, given that the test is positive?

Confusion of the inverse and contract fine print issues

As I said, I express no view on the study in the Stanford Law Review article.  I just don't see any evidence about the prevalence of out-and-out fraud. My intuition is there is probably less of it than the article seems to suggest.

That isn't to say there aren't real fairness issues with fine print. I have engaged with Rob Kar on his Harvard Law Review article with Margaret Radin, the thesis of which is to ground an attack on over-reaching boilerplate on a demarcation of the "true" agreement between the contract drafter and the consumer by way of Grice's "conversational maxims" and an actual shared meaning.  (Theirs is Pseudo-Contract and Shared Meaning Analysis; my response, just published in the Australasian Journal of Legal Philosophy (Vol. 43, pp. 90-105) is Conversation, Cooperation, or Convention? A Response to Kar and Radin.)

What I take from the Stanford Law Review study is that consumers aren't completely led down the primrose path by the fact of "fine print" - they expect there to be terms and conditions even if they don't read them.  The study seems to bear that out, even in the extreme where the consumer really does believe he/she/they got screwed. The real question is to what extent should the fine print be binding.  I agree with Omri that disclosure is not likely to be helpful - oy, more fine print disclaiming the fine print. Nor do I think trying to find the actual agreement or shared meaning is going to be fruitful.  Rather, there is a convention about what is and is not fair, and that probably ought to be reflected in regulation.

Posted by Jeff Lipshaw on August 2, 2019 at 11:45 AM in Article Spotlight, Corporate, Culture, Law Review Review, Legal Theory, Lipshaw | Permalink | Comments (2)

Free speech on campus

A random assortment of free-speech controversies on campus. Some were discussed in programs at SEALS.

• Complaints about MAGA hats (and other clothing) in the classroom are becoming a somewhat common thing for deans to deal with, complaints coming more from students than faculty. For the moment, everyone seems to conclude that the clothing is permitted as protected speech that, while offensive and derogatory to many, is tied to the sitting President and within the bounds of allowable public discourse. Although one colleague wondered about a time we could have said the same about a swastika, when that changed for the swastika, and when that might change for MAGA. The only true solution is a school or classroom dress code, which nobody seems to want.

• What is worse--the epithet or the offensive idea behind the epithet? Should it be impermissible for someone to use a derogatory word--even when that word is contained in course materials being discussed--but permissible for someone to use the precise language describing an idea we now regard as offensive? Is it possible to distinguish them?

For example, what is the difference between quoting from cases the derogatory words for African-Americans, people with mental disabilities, or undocumented immigrants, and quoting  the derogatory ideas about women in Justice Bradley's concurring opinion in Bradwell v. Illinois. For another example, what is the difference between one student calling another student a derogatory name and one student spouting, approvingly, derogatory ideas as part of the class discussion (e.g., minority populations causing more crime); the former should be sanctioned because students should not attack one another, but what about the latter?

On one hand, it seems odd that the word is worse than the idea. On the other, if you treat them the same and sanction (as opposed to challenging and exposing) the expression of "wrong" ideas in a class discussion, it really does interfere with the supposed academic mission of exploring ideas and seeking truth. And you can respond to, challenge, and demonstrate the wrong-headedness of an idea; you cannot do that with an epithet (this is the justification for the fighting-words doctrine).

• I learned about an ongoing controversy at the University of Tennessee. The state and the university have been trying to defund the student group Sexual Empowerment and Awareness at Tennessee (SEAT) and its signature event, "Sex Week." The legislature passed a law prohibiting state funds from being used for Sex Week. This was not a huge deal, because most of SEAT's non-private funds came from the student-activities fees program. Under Rosenberger, the university could not deny funds to SEAT because of disagreement with its sex-positive (and sex-provocative) viewpoint.*

[*] Rosenberger remains my favorite unintended-consequences case, in which a victory for one political position has been used as precedent to provide victories for the opposite political position. Religious conservatives cheered the decision, which held that the state could not deny activities funds to religious organizations. But the case's staunch prohibition on viewpoint discrimination has been used to stop university efforts to defund all manner of liberal student groups. I think this may make an interesting article, especially in showing the difference between judgment and opinion/precedent.

The university's solution, imposed after SEAT refused to "compromise with university administrators who have asked it annually to 'tone it down' and consider the impact of its language choices"** was to eliminate the student-activities fee pool, replacing it with a system in which the university approves and funds all speakers and programs. The university hopes this converts all student programs into the university's speech, allowing the university to pick and choose based on viewpoint or any other considerations. The new program has not been implemented, so it remains to be seen how it plays out.

I think it is a matter of allies. Right now, most student groups oppose the program; College Democrats and College Republicans both hate it. If many student groups do not get money under the new scheme, SEAT will continue to have many allies in the fight. If everyone gets money except SEAT (which is what the university and state hope will happen), SEAT may find itself alone in the fight.

[**] In other words, compromise by changing your speech to make it more palatable to the government.

• Last spring, three white University of Mississippi students posed holding weapons in front of an Emmett Till memorial the was riddled with bullet holes; the photo was taken by a fourth, unknown person, and posted on the private social-media page of one of the students. The identified students were suspended by their fraternity. The university referred the matter to the FBI, but did not continue its investigation because, it claims, it was unaware that the FBI had completed its investigation (the FBI concluded that the photograph was not a specific threat). News stories question how the university responded to that initial bias report in March, particularly whether the university knew the identities of the students at that time (they are Ben LeClere, John Lowe and Howell Logan). The university says it will resume its student-conduct investigation, although it initially said the photo did not violate the code of conduct because it happened off-campus in a non-school setting. And the story seems to be wrapped in broader discussions of removing Confederate monuments on campus.

Is there any doubt that the photo and posing in front of the monument are protected by the First Amendment? This is not an unprotected "true threat" because it is not targeted at "a particular individual or group of individuals." It occurred off campus and was posted to a private social-media page; so even if we allow a university greater leeway to regulate racist speech on the quad or in the dorm, it does not extend to these actions. The photo is racist and offensive and I am glad their fraternity expelled them. I would like to see the university take more seriously, in word and deed, its obligation to engage in counter-speech. And perhaps the three will crawl back into hiding. But a public university's speech code is limited by the First Amendment, which prohibits government from sanctioning someone for engaging in protected speech, no matter how much we hate what they say.

Update: An Ole Miss faculty member pointed to this 2016 story of two students who pleaded guilty to civil rights violations for hanging a noose and a Confederate flag around the campus statute of James Meredith. Other than one happening on campus and one off (which is irrelevant to the criminal charges), it is hard to see a meaningful distinction between this and the current case--they are equally threatening or equally non-directed.

Posted by Howard Wasserman on August 2, 2019 at 10:25 AM in First Amendment, Howard Wasserman, Teaching Law | Permalink | Comments (4)

Interview with Calvin Morrill about the Jurisprudence & Social Policy Ph.D. Program at Berkeley Law

For those of you who have been following my interview series, you know that it generally focuses on VAPs and fellowship.  This interview, however, focuses on a related, but slightly different, trend in law faculty hiring—the increase in the number of entry-level hires with Ph.D.’s.  I spoke with Professor Calvin Morrill, who is the Stefan A. Riesenfeld Professor of Law and Professor of Sociology at UC Berkeley, about Berkeley’s Jurisprudence and Social Policy (JSP) Ph.D. Program.  Cal has served as the Associate Dean for the JSP Program, although he is rotating out of that position this summer.  Thanks, Cal, for participating in this series!  An edited transcript of our conversation is below, and I have invited him 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.

Q. Can you give me a brief overview of the Jurisprudence and Social Policy program at Berkeley?

A. Sure. JSP is a multi-disciplinary, interdisciplinary Ph.D. program that's focused on the study of law and legal institutions. It’s housed within Berkeley Law, but is a relatively autonomous unit like a department. The program has about 60 Ph.D. students and 17 core faculty members, all of whom hold primary appointments in Berkeley Law, and also typically hold a secondary appointment in a disciplinary department at Berkeley. The goal of our program is to train academics for positions in law schools, interdisciplinary programs, and disciplinary programs. Students come to JSP either with only a BA, or with a JD, an MA or an equivalent graduate degree, and they spend about five to six years studying toward the Ph.D.

Rather than organize the program by traditional law school curricular areas such as torts, or contracts, or intellectual property, for example, JSP is organized by research disciplines and their intersections. Our hubs of organization within JSP are law and society/sociology of law, criminology and punishment in society, law and economics, law and political economy, legal history, law and political science/public law, law and political theory/philosophy, and law and psychology. Multiple members of our core and affiliated faculty also draw on critical perspectives of law, including feminist theory and critical race theory. Our faculty embraces methodological pluralism that ranges from advanced quantitative methods to advanced qualitative, historical, and critical methodologies.

Let me also note that JSP is responsible for an undergraduate major, Legal Studies, which is an interdisciplinary liberal arts program housed in Berkeley Law, but officially a part of the Berkeley College of Letters and Science.

This year, we’re especially excited about two new faculty members we hired at JSP as part of a spectacular faculty recruiting class of nine new hires at Berkeley Law. One is David Grewal, who was Professor of Law and Political Science at Yale Law. He studies law and political economy, international law, law and political theory, and social inequality. A second is Rebecca Goldstein, who just received her Ph.D. in Government (political science) from Harvard, and studies the politics of criminal justice and inequality (especially policing) using advanced quantitative and mixed-methods.

Q. I had no idea the program was that large. When you said 60 students, that surprised me. How many of those students hope to become academics at law school some day?

A. About 80% of our students go into academia. It used to be about one-third of our students who go into academia teach in law schools, but over the past decade or, approximately two-thirds ultimately teach in law schools. Parallel to this pattern, about two-thirds of our graduates also ultimately earn both JD’s and PhD’s. So they're joining an increasing hiring trend, especially in top-14 law schools, but even beyond the top-14, to hire JD/PhD’s.

The vast range of dissertation topics that JSP students pursue underscore and help shape the diversity of scholarly interests in the program, including works on law and social inequality, immigration law, business law, law and markets, human rights and comparative law, policing, mass incarceration, law and bioethics, law and religion, law and education, law and technology and intellectual property.

Q. What's your role with the program?

A. I’m the Associate Dean for JSP and the undergraduate Legal Studies program. Together with a small administrative staff, I'm responsible for the day-to-day management of the program plus strategic planning, faculty and student recruitment, budgeting, etc. I should mention that after six years – I've served two consecutive terms as associate dean – I’ll be rotating out of the role, as planned, and back to the faculty as a civilian, so to speak. My JSP colleague, Professor Taeku Lee, will be rotating in as Associate Dean this summer. He's the former chair of Berkeley Political Science and a specialist in law and racial and ethnic politics, as well as survey methodology.

Q. I’d love to move through the Ph.D. program chronologically. Starting with the application process, moving to the Ph.D. itself, and then the hiring market.

A. Great.

Q. When does the program start accepting application for the following academic year?

A. December 15th is our deadline for applications each year, and students apply through what's called the graduate portal at the UC Berkeley Graduate Division. Information on applying is available on our website at Berkeley Law where we have an information page.
There's also information available through the main UC Berkeley website as well. People interested in applying can also contact JSP directly through [email protected] or at 510-642-3771.

Q. What materials does a candidate need to submit as part of that process?

A. Applicants need to have official transcripts sent from all previous undergraduate and graduate institutions where they've been enrolled. They need to take the GRE, but they do not need to take the LSAT. If they have taken the LSAT that's great, but it is not required. They need three letters of recommendations. There are two short essays as part of the application. One is called the “statement of purpose” in which applicants should lay out their goals for graduate study and beyond, why they want to be at JSP, what they hope to get out of our Ph.D. program. The second essay is the “personal statement,” which is a brief biographical essay about how the applicant’s experiences have led them to be interested in applying and pursuing a doctoral degree with JSP.

A. And then, finally, applicants can also submit samples of their written work from coursework or publications that they have. Publications are not necessary, but a sample of written academic work is.

Q. What's the typical educational background of a successful applicant to the program? Did I hear you say earlier, that two thirds of the students in the program have JDs?

A. Most students don't come into JSP with JDs. About one-fifth or a bit more who enter the program already have a JD, an MA or an LLM. About a third of our students come right from a bachelor's program into the Ph.D. program. Another third of our entering students don’t have degrees beyond their undergraduate degree, but have work experience of some sort before entering graduate school. So there are a lot of different pathways into JSP. Many of the students who do not have a JD when they enter JSP will earn one either at Berkeley Law or at another law school while they're completing their Ph.D. Ultimately about two-thirds of our graduates have a JD along with their Ph.D.

A. JSP graduates who don’t earn a JD are typically interested in going into an interdisciplinary or disciplinary program for which a JD is not necessary. But, just to underscore, a JD is not necessary to apply for the JSP program.

Q. Does JSP interview applicants?

A. No. There are no interviews to be admitted to JSP, although prospective applicants can visit Berkeley, and we're happy to set up meetings with faculty and students, if they like. Once students are admitted to JSP, we do have an admit day for JSP admits in March each year. And we provide travel and lodging support for each admit to come to Berkeley, to check out the program, to check out their cohort, to meet other students and faculty, and so on.

Q. How many applications does JSP typically receive?

A. We receive between 80 and 110 applications per year, and our admit rate is somewhere between 8 and 12%, depending upon the number of applications we get. We're looking for cohorts between 8 and 10 each year, and our yield rate is about 70 to 80% of those admitted. So, if people get into JSP, they generally come.

Q. Let's talk about what you're looking for, then, to select that cohort. What matters the most? If you were to look at somebody's application materials, what do you go to first?

A. We do a holistic review of each application, but what we're really looking for are clues about the applicant’s promise of being an outstanding academic, whether as a faculty member in a law school, or in an interdisciplinary or disciplinary program. An applicant’s grades and the kinds of courses that they’ve taken in their previous academic programs matter. A JD or an MA may help signal an applicant’s promise, but it's not determinative in terms of the admissions process. More important are how an applicant signals they are interested in committing themselves to the theoretical, substantive, and methodological training offered at JSP that will enable them to do cutting-edge research and teach at the highest levels of academia.

We gather clues about a student’s promise from different parts of the application. The statement of purpose, for example, can tell us how students frame what they're interested in, what they're committed to. They don't have to have a fully developed research agenda.
They don't have to have their dissertation plan all worked out. That's what they're going to figure out while they're in the Ph.D. program. Letters of recommendation can tell us how others view the applicant. And samples of academic writing tell us how students actually set up scholarly questions they're interested in and the way they try to answer them given their prior levels of training.

We also try to gauge how their background experiences, whether it’s in law or another field, inform their professional goals. We have a number of students who come to us with professional experience, but a number who don't. Whatever an applicant’s background experiences, we’re interested in how that has shaped an applicant’s orientation, and their excitement and promise for doing exciting graduate work at JSP.

Q. And you said they don't have to have their dissertation topic picked out when they apply?

A. Not at all. In fact, we actually prefer that they don't. Going through a Ph.D. program is importantly about learning how to ask significant research questions that are important theoretically and, especially in JSP, are relevant to policy and law in the deepest possible ways. Almost every dissertation out of JSP seeks to push underneath the assumptions that inform a law, a policy, or a popular conception about law, policy, or social problems. What students learn at JSP is how to answer research questions regarding law, policy, and society in a cutting-edge way, in an innovative and illuminating way, and in a manner that might matter for social and institutional change.

A. This is an important value-added aspect of coming to JSP. This is what we help and facilitate students to form -- a research agenda and to gain research tools in order to execute that agenda.

Q. And, how do you gauge their ability to do that type of high level research? I'm just thinking about your yield rate. Obviously, you're only taking a small percentage of the total applicants. You mentioned the statement of purpose, you mentioned the letters of recommendations. Just wondering, what types of things are you looking for to say to you, "This is the extraordinary candidate, who will thrive in this program."

A. It’s a tall order to gauge an applicant’s promise. We use everything in the application – the academic record to date, the letters of rec, statement of purpose and personal statement, any sample academic work they provide, the test scores. Again, it’s a holistic assessment. We don't do interviews, although sometimes students do visit us, and we do get to know them. Based on all the evidence we have through the application, we try to put together a picture. A sense of who the student is right now, and who they might become. The admissions committee is looking for certain clues that their experience tells them will translate into success in the JSP program and importantly beyond the program in a career.

We’re constantly asking questions about the applicants, as represented in their application materials. One of the important questions is how do people write? How do they express themselves? Even though they may not have an advanced degree, how sophisticated are they given where they're at in their personal and academic development? How have they negotiated the academic experiences they have had? How do they frame the issues that they're interested in?

The other thing that we look for are applicants who are quite committed to an academic experience. Again, we're looking for applicants’ promise in terms of how they put together the kinds of issues and questions they're interested in. How they write, how they express themselves. The kinds of academic experiences they've had. The letters of recommendation are really important because we're looking for recommenders who can actually comment on an applicant’s academic promise. One of the things that I always tell potential applicants is, "It may be better to get a letter of recommendation from somebody who really knows your academic potential, with whom you’ve had meaningful professional engagement, and has really seen your academic performances, rather than going for the most famous person who may not you as well."

Sometimes a prospective applicant will say to me, "I know an important judge on the federal bench." Or, "I know a Supreme Court Justice. Could I get a letter of recommendation from them?" My answer is, "That would be wonderful to receive a letter from Ruth Bader Ginsburg, but does she really know your academic record? Does she really know what you've done in your academic career thus far? And, can she really comment in a substantive way about your promise as an academic? If she can, awesome! But don’t get the letter unless that super high-status can write a meaningful letter about you.”

Q. On the academic/scholarly side, how much do the successful candidates tend to have already when they come in? Are these candidates who have already been doing academic writing? And, I'm thinking here beyond what they wrote in their college classes, obviously. Have they done really sophisticated legal writing already?

A. Some applicants have and some haven't. I would say most have not. We do get some applicants who have already published a paper or two in a law review, but I would say the vast majority, 80%, 90% of our students have really not yet done that kind of work. So, in that regard this is very different from a fellowship program where people might be returning to academia from practice having perhaps published something in a law journal or another academic venue.

Speaking of practicing law, we do have applicants who have considerable experience as attorneys, but they generally haven't done high-level scholarly research prior to applying to JSP. This is why they're coming to a Ph.D. program, to get that training and to get immersed into that world. Now you might say, "Well, how do they know if they want to commit to academia?" How does anyone truly know about committing to a career until one is in the middle of it? It's tough to know. And again, this is where we try to discern clues from the application materials, such as letters of recommendation, where the recommenders speak to evidence of applicants’ commitment and interest in coming to JSP and academia.

I also think that applicants who have been out of school for a while, who have had practical experience, be it in law or another field, have had a chance to reflect on what their strengths are, what their sustained interests are, what their passions are. They may be better able to express those kinds of aspects of their identity than younger students. Although, again, we have a mix of students, as I said before, students coming right out of undergraduate programs, students coming in with JDs, students coming in with practice experience. This is another interesting and exciting part of the program. All these kinds of students meet and exchange their experiences and their interests within and across their cohorts.

Q. Does the program have a preference for applicants in particular curricular or research areas?

A. No, we're interested in all the areas of inquiry we have represented on the faculty. As much as possible, the JSP Graduate Admissions Committee tries to balance the areas that we accept students in. I think this is also one of the strengths of JSP. When you enter the program, you’re going to encounter peers in your cohort, in other cohorts, who are interested in law and philosophy, legal history, law and economics, sociology of law, law and politics, critical perspectives, and more. They're interested in qualitative and quantitative empirical work. They're interested in work that is not empirical in nature.

That's one of the strengths of JSP – having this all under one roof. It also can be a bit unsettling, I think, for first year students to experience that kind of intellectual diversity. But over time this is what we think makes our program unique. JSP students learn to move and work across various boundaries and to think about how to ask research questions that might connect or address puzzles that span multiple areas of inquiry.

This aspect of JSP connects to another thing that we're looking for in applicants – students who are willing to experiment in their thinking. To not be confined and siloed in particular research areas, or particular fields, or particular areas of law. We're interested in students who are willing to try out different ways of looking at legal questions, legal problems, social issues, and social problems.

Q. Does work experience matter in the application process?

A. It really doesn't, except that sometimes students come in with background experiences that can help them with their research. If somebody, for example, has worked in international human rights and in their statement of purpose writes that they're interested in doing research in that area, that experience may help them in forming interesting questions. Background experiences can also help sometimes with access to particular settings if a student wants to do research, for example, in that field. Otherwise, what one has done in their background simply signals how an applicant has navigated the world.

Q. Do you make any special efforts to recruit applicants from diverse or non-traditional backgrounds?

A. Yes we do. We direct market JSP to about a thousand colleges, including historically black colleges and universities in the United States, and universities in Canada, Europe, and other regions. We reach out to scholars who are well positioned to identify and recommend diverse applicants to JSP. We make efforts to link diverse students with relevant affinity groups, both within the JSP student body, and Berkeley Law, and on the Berkeley campus more generally. We have a standing JSP Diversity Committee that is chaired by the Chair of the Graduate Admissions Committee, and has a number of faculty and students on it. That committee is charged with working with the JSP Graduate Admissions Committee, as well as working with Berkeley Law, more generally, to recruit and retain diverse students.

Our efforts along these lines have paid off. Just taking the last five years, for example, we've admitted the most diverse cohorts in the 40-year history of JSP. Over these five years, the cohorts are over 50% women, and 40% self-identified, under-represented minorities. We also have a very low attrition rate from the program. Ultimately, we believe our efforts will lead to the placement of an ever more diverse set of JSP graduates into academia and increasingly into legal academia.

Q. Is that committee that you just referenced, is that the same committee that actually selects the Ph.D. candidates?

A. No, it's a different committee. The committee that selects applicants into JSP is the JSP Graduate Admissions committee. The faculty member who’s chaired that committee most recently is Professor Catherine Albiston, and she's rotating out of this position as well this year, after two consecutive two-year terms. Professor Rachel Stern will Chair the committee for 2019-2021. I addition to the Chair (who also acts as the Head Graduate Advisor), the JSP Admissions Committee comprises three other faculty members, plus a JSP graduate student representative -- an advanced student who is selected by their student peers to sit on the Committee. The Graduate Student Affairs Officer (GSAO), Margo Rodriguez, provides administrative support. She is our chief liaison between JSP, the Berkeley Graduate Division, and the Berkeley Law Registrar.

Q. Let’s transition over to the financial aspect of a JSP PhD. This program is obviously very different from a VAP or fellowship program. Tell me how it works – tuition, stipends, etc.

A. Right. All JSP students are guaranteed a multi-year funding package in the same way that any of our usual Ph.D. program competitors might offer. Typically, we're competing for Ph.D. students with other top doctoral programs in political science/political theory, sociology, history, economics, and psychology at a lot of top universities, including Harvard, Stanford, Princeton, Chicago, UCLA, Michigan, Yale, Columbia, Wisconsin, and Northwestern.

The JSP multi-year base funding package includes graduate tuition, health insurance, a living stipend, an annual travel allocation, and two years of summer funding. The initial package is five years, although students often times can get more than that, but the base package is five years. If they're studying for the JD/PhD, there's also some funding support for the JD, and Berkeley Law – with full support of our dean, Dean Erwin Chemerinsky – is committed to increasing the level of support for JD tuition and the funding support in the JSP Ph.D. program.

JSP students are also quite successful at applying for extramural sources of support for their dissertation research. They routinely receive grants from places such as the National Science Foundation, Robert Wood Johnson Foundation, and other private foundations.
So, funding is, I think, improving at JSP to support graduate education. It certainly could be better, given the cost of living here in the Bay Area, but it is improving.

Q. When you say JSP students receive a stipend, are you comfortable sharing the amount of that stipend, generally?

A. Our stipends for the incoming JSP cohort are in the lower thirty-thousand range plus additional stipends during the first two summers. Health insurance is included. It's very expensive to live in the Bay Area, as I mentioned, and we’re committed to increasing the stipends of every student in the program to keep up the cost of living. But it’s difficult to do so. In addition to the stipend, JSP students also receive graduate tuition support, and if they are in the Berkeley Law JD program, there is some additional support available for JD tuition.

Q. You mentioned that they get health insurance.

A. Yes.

Q. How about access to any subsidized or university housing?

A. All Berkeley graduate students have access to university housing. It is not subsidized, although it is less expensive than the market rate for this area. There is some priority given to students with families, and the housing is good. There's not enough of it, but we have many students who live in that housing, and I know they find it to be good.

Q. You mentioned travel funding, what's the amount of that funding?

A. It's $1,000 per year for the amount of time that you're in the JSP program. This amount allows students to go to at least one academic conference per year which is really important for professional development. And, there are other sources of funding on the Berkeley campus for academic travel funding, especially for international conferences.

Q. Let’s turn to the quid pro quo side of receiving this money. Are JSP students teaching while they're completing their PhD’s?

A. Yes they teaching, which is also part of professional development, but they typically don’t start until their second year in the PhD program. During the first year, JSP students are on fellowship because we consider that year a transition year into the Ph.D. program. In the second, third, and part of their fourth years, JSP student funding comes through a graduate student instructor (GSI) appointment, which are teaching assistantships in our undergraduate Legal Studies program. The summer funding for the first two summers is through a research apprenticeship in which students select from a number of potential projects to work with a JSP faculty member.

Towards the end of their careers, students also have other opportunities for campus fellowships so they don’t have to be teaching at all or as much while they're conducting research for or writing their dissertations.

Q. So, I should have followed up earlier on the summer stipend amount. How much is that amount? And, when you say that they're working on particular research projects with professors over the summers, does that mean that they can't work on their own projects related to their PhD?

A. The summer stipend for the first two summers is three thousand per summer. After their first summer, some students combine the apprenticeship with teaching, another GSI or other work. What we found is that at least in the early parts of the program, students are really interested in getting involved in research with a faculty member. And one of the best ways to do this is to work with a professor on a project that the professor's got going. There are also publication opportunities there, depending upon the type of project it is and where the project is in terms of its development.

We put students with professors through matching process in which professors supply an abstract of the project they’re working on, their project goals for the summer, and the expected activities for the research apprentice. Students see the array of abstracts and rank their top two or three choices. Almost every student gets matched up with their first or second choices unless we have a shortage of projects compared to the number of students in the first or second-year cohorts. If that happens, sometimes we have multiple students working for the same professor.

Q. Let's go back to the teaching side. How many courses are they typically teaching?

A. As a GSI, a student will be attached to one lecture course per semester, teaching two smaller break-out sections of that course. They’re also obligated to attend the larger lecture, hold office hours, and participate in the grading of assignments and exams. There may be periodic meetings with the faculty member teaching the course. This is what we call a 50% appointment, which means that total number of hours that the GSI works is not more than 20 hours per week, which includes all the activities I mentioned and any prep time for the sections.

Q. Okay, and do they ever have the opportunity during their Ph.D. program to be the primary instructor for a course?

A. Yes, there are some opportunities. For more advanced students, there are smaller, writing-intensive freshman/sophomore seminars that they can teach. In the past, we've sometimes had opportunities for students who already have their JDs to teach some sort of JD seminar and we’re looking to see if we can make that a more general opportunity for JSP students with JD’s, although we’re not sure whether this can be done or not.

More generally, there are University of California policies that limit the opportunities that Ph.D. students have to teach standalone courses.

Even so, there are some unique GSI possibilities in JSP beyond teaching at the undergraduate level. Our introductory Ph.D. statistics course and our doctoral pedagogy course have GSIs assigned to them. Students who are interested in teaching statistics at the graduate level are often interested in being the GSI for the stat course.
The pedagogy course is really interesting. Every graduate student at Berkeley, before they teach, is required to take a semester-long pedagogy seminar in their home or another program on campus. We offer a pedagogy seminar in JSP and the course is really co-taught seminar by the GSI and a JSP faculty member.

Q. What topics are covered in the pedagogy seminar?

A. The course is geared to help a graduate student prepare to lead break-out discussion sections of larger lecture courses. But it covers all the foundational aspects of teaching, from how to structure a course, to how to lead course discussion, to questions of inclusions and diversity. The course covers evaluation and grading, formulating assignments, developing syllabi. Giving lectures, handling questions, troubleshooting in classes. Working with folks who require special accommodations. All of it. The JSP student who is selected to co-teach the course is generally an advanced JSP student who’s won a campus-level teaching award for their work as a GSI in Legal Studies courses. JSP always has a superb group of GSIs and every year we have two or three doctoral students win teaching awards.

In addition to discussions and presentations led by the instructors, the course is also organized around a series of panels for which we bring in advanced doctoral students who have been teaching for a while to talk about their experiences. We bring in undergraduates to talk about their experiences, as well. We also have a small panel with other faculty and doctoral students on work-life balance as it relates to professional careers and teaching in academia. That panel covers questions like how can one best managing commitments across teaching, across research, and across all the other responsibilities that adults have outside of the workplace.

The pedagogy seminar also sometimes has panels with award-winning instructors from the JD faculty who come and talk about best practices for teaching a 1L course. They also discuss the more general challenges of teaching JD courses in law schools and how they manage those challenges.

Q. I wish more law faculty had the opportunity to take a course like that. That sounds great.

A. Well, actually, the reason why Berkeley implemented this requirement at the Ph.D. level is because traditionally there was no training for doctoral students who were going to go out and spend a good portion of their academic careers teaching. They received a world-class education and experience in research, but training and education in teaching was hit and miss at best. I would think that almost every American university or college has programs that support teaching of some sort, but I still think that systematic training to teach at the doctoral level is relatively uncommon. And courses that teach law professors how to teach might be even rarer. Having a semester-long course on pedagogy and a requirement that students take it before they teach is really an advance along these lines.

Q. It feels like it should be more mainstream. I'm glad it is at Berkeley.

A. Yeah. That we have the requirement is a testament to folks at Berkeley wanting to take college teaching more seriously than in previous generations.

Q. It's not our norm for sure.

A. Yeah.

Q. Let’s skip over to the intellectual community in the JSP program. You mentioned that there's about 60 JSP students at Berkeley at a time. How do those students get together professionally, intellectually? Do they have, for example, a workshop series where they present their work to each other? Is there anything like that?

A. In any given year, there about 45 JSP students in residence with the rest perhaps out collecting data for their dissertations or on a fellowship somewhere else. In addition to a lot of social events, JSP students get together at all kinds of professional events.
There are student-led events that students organize through the JSP Law and Society Graduate Students Association (LSGSA). Even though the title of the organization contains the words, “law and society,” the association is more inclusive intellectually than that title might suggest. Through the LSGSA, students organize what they call the Friday Forum at which they present research to each other. The LSGSA also organizes what students call the Gateway Conference for first-year JSP students, which provides a chance for the first-year students to present their work and receive feedback from more advanced JSP students and faculty.

JSP funds and supports all these events. The annual conference travel funds provided to JSP students also means that they're getting out really early in their careers to present and learn about research at other schools, and they're developing professional networks.
They're also connecting to the global network of JSP students. There are about 150 graduates from the program, and they're on the faculties at law schools, interdisciplinary programs, and disciplinary departments throughout the U.S. and more than two-dozen countries around the world.

There are also many other ways that JSP students can participate in the intellectual life of JSP, Berkeley Law, and the Berkeley campus more broadly. There are multiple ongoing workshops at which students can fully participate, including the speaker series at the Center for the Study of Law and Society; the Law and Economics Workshop; the Law, Philosophy and Political Theory Workshop; and the Law and History Workshop. There are also vibrant topical workshop groups that include JSP faculty and students, and faculty and students from other programs at Berkeley. These include the Carceral Studies Group that focuses on research about punishment and society, criminal justice, and mass incarceration; the Berkeley Immigration and Migration Initiative (BIMI); or the Law, Text and Machine Learning Workshop. And then there are the countless speaker series that Berkeley disciplinary departments and other units hold on a regular basis that are all open to students. There are always opportunities to not only hear the presentations, but also meet the presenters in small groups or one-on-one, over a meal or coffee, or in other gatherings. Students also can receive academic credit for going to the first set of workshops I mentioned.

There’s also the Berkeley Empirical Legal Studies (BELS) Fellowship, which is run through the Center for the Study of Law and Society, that JSP students can apply to. BELS is a competitively-awarded research fellowship that brings together Berkeley doctoral students conducting quantitative and/or qualitative empirical projects on law and legal institutions into a year-long workshop. Each cohort typically has about ten students, representing multiple programs around campus (including JSP). The BELS Fellowship comes with research money, as well, but not graduate tuition.

Berkeley, in general, is kind of an intellectual interdisciplinary cornucopia of talks and conferences, and they're all open to JSP students. JSP faculty and faculty in other programs are always interested to help JSP students connect with these talks and conferences. So, there's a lot of opportunity there.

Q. So, would that include, for example, the Berkeley Law faculty's regular colloquium or speaker series?

A. Yes, there is a regular Berkeley Law workshop, which I don’t believe is open to students and is organized by the JD faculty in the law school. However, JSP students and JD students are welcome to attend any of the faculty job talks that are given throughout the year as part of the Berkeley Law faculty workshop. Going to these talks is an interesting and valuable experience for students. As I mentioned earlier, this year we hired nine new faculty members to the Berkeley Law faculty, including two specifically in JSP. There were probably 25 or so job talks throughout the year in order to successfully pull off that scale of recruitment. I would say that there was a good half a dozen JSP students at every single job talk, and they weren't always the same students. Who attended depended upon the topic and student availability, but there were a lot of students at each of the talks and, of course, a lot of faculty members.

Q. Let’s talk about advising in the JSP program. As students are moving through the program, choosing dissertation topics, starting their own research agenda, what type of advising are they receiving through that process?

A. Every first-year JSP student is assigned a temporary advisor based on the student’s interests. We call these advisors temporary because we want to make sure that when students come in to the program they have at least one faculty member they can begin talking with about getting settled in the program academically and to begin thinking through their trajectory in the program. But we don't expect temporary advisors will necessarily be permanent advisors. I would say that in about half the cases the temporary advisor becomes the permanent advisor while in half the student's interests change, or what have you, and student shifts advisors.

In addition to temporary advisors, the Chair of the JSP Admissions Committee also acts as a general advisor to Ph.D. students. And then there are several milestones through a JSP student’s movement through the program at which they receive professional advice. There's a review at the end of the second year, for example, with two faculty members. This is not an opportunity to weed students out of the program. This is simply a chance to take stock of where the students have gone, what courses they've taken, what things they've done thus far, and how they might want to plan out their next few years in the program might look as they begin looking toward a dissertation or even toward eventual job markets that might be attractive to them.

In the second and third years, students also work closely with faculty members and peers to prepare for two written doctoral exams. One of those is in a discipline, such as law and economics, or legal history, or sociology of law. And then, one is in an interdisciplinary field which is chosen and formulated by the student. That disciplinary field is generally a topic that will be aligned with the dissertation topic, ultimately.

In the third and fourth years in the program the students select their primary dissertation advisor, and they form a Ph.D. dissertation committee that will have a core of JSP faculty members, but may often include a member from the JD program at Berkeley Law. And then, by Berkeley graduate division requirement, it also must have a so-called “external” member, who is a member of the Berkeley faculty, but not appointed on the Berkeley law faculty.

The composition of the doctoral dissertation committee tells you a little something about Berkeley. Berkeley, in general, is an interdisciplinary campus at every level, but especially with regard to Ph.D. education. The requirement of having someone on the dissertation committee outside one’s own program is over and above the interdisciplinarity within JSP, and adds yet another layer of interdisciplinarity to our program. And then, finally, in the fourth and fifth years, students write the dissertation.

So, at multiple points in the program, there are multiple mechanisms and sources of advising that students get. Temporary advisor, graduate studies admissions chair, second-year review, doctoral dissertation chair. You might think that such a structure would be a recipe for a lot of conflict or at least conflicting advice. Sometimes that’s the case. But mostly, it means that students are able to hear and try out ideas with multiple scholars, which we think strengthens students training. It also means that students have to find their own voice and who to rely on for what kind of advice. Mostly though, I find that advising in the JSP program is a collective effort. I find that students can always go to faculty members in the program who aren't on their committees, or who aren't helping them with their written exams, and get advice. This is a very open and advice-friendly kind of place. It doesn't always work perfectly, to be sure, and it doesn't work smoothly for every student, but in general, we strive to offer multiple kinds of mentoring and advice for students.

Q. What type of feedback is the Ph.D. advisor, or the Ph.D. advising committee providing on drafts of the dissertation throughout this process?

A. There’s multiple types of feedback. First of all, there's the substantive advice that students receive leading up to and during what we call the “qualifying exam” or simply the, QE. In JSP, the QE is really a 2-3 hour face-to-face discussion of the dissertation prospectus among the student and their committee. The dissertation prospectus is a proposal that advances the key research questions or research hypotheses that the student expects to address in their dissertation research. The prospectus lays out a plan for answering those questions, or for testing those hypotheses. The dissertation committee, by the time the student is formulating that prospectus, will have read multiple drafts, and given feedback, both oral and written, on that prospectus. They’ll provide feedback on the research questions/hypotheses themselves and the significance of it all to relevant literatures, theories, events in the world, and law or policy. They’ll provide a great deal of feedback on the methods used, whatever they might be. Another important aspect of the QE is to make sure that everyone involved – the student and their committee – is aligned in terms of the expectations for the dissertation. This doesn’t mean that the dissertation might not change as the student works on it. They almost always do in some way. The key thing is that the student comes out of the QE meeting with a clear path forward for doing their dissertation research and if they do change paths, they know where they’ve been so that they can chart a new path forward in communication with their committee.

For JSP students, the QE can and should be an exciting discussion to facilitate students setting sail, if you will, on the dissertation journey in best shape possible. Depending upon what the student and the dissertation committee agree to, the student might produce a dissertation that consists of three publishable articles or more like a research monograph, like a book. What form the dissertation takes depends upon the disciplinary audiences to which the student is trying to speak.

Students and dissertation committees will have different preferences on form and timing of feedback as the student writes the dissertation. Some dissertation committees want to see each paper or chapter as it's completed. Other dissertation committees will want the primary advisor to look at each paper or chapter as it's completed, approve it, and then look at an entire draft of the dissertation down the line to provide feedback. Different dissertation committees will work differently, but there's always an iterative process of feedback and advice, oral and written for the student, along the way.

Of course, the primary dissertation advisor is a key person in this process. They're the person who ultimately is responsible for facilitating the student writing the best dissertation they can. But they and the entire committee will be

A second kind of feedback that the student receives is more strategic about how to position their work for the various job markets their interested in entering or as a piece of scholarship in what the relevant field or audiences might be. Students receive this kind of advice throughout the program, but it’s especially intensive and important as they produce their dissertation, which is or should be their signature research up to that point in their career.

Q. And what types of formal training do JSP students receive in these interdisciplinary areas. So, to the extent that somebody wants to go into law and economics, or law and history, what type of methodological training are they receiving in these different areas?

A. There are courses and training in both social science methodology and in the substantive fields represented in the JSP program. In terms of methods, JSP students are required to take an introductory doctorate level statistics class. For some JSP students, this course may be more about gaining what you could call statistical literacy. For those students who are interested in doing advanced quantitative work, they will generally regard the intro course we offer as a foundation or gateway to more advanced courses. We also offer a more advanced statistics course that covers causal inference with special application to the study of law and legal institutions

Some JSP students are especially interested in learning quantitative methods in the context of particular disciplines to which they want their research to speak. These students may take the econometrics sequence in the Department of Economics, for example, or they may take advanced statistics courses in the Department of Political Science or in the Sociology Department. Some of our students take their quantitative training even further by earning a MA in Demography or Biostatistics. In terms of methods, however, it is not only quantitatively-oriented students who take additional methods courses in departments on campus. The Department of History, for example, now offers a course in historical methods and JSP students have taken that course. And Berkeley is renowned for the variety of qualitative field methods courses offered across multiple departments, including the qualitative field methods course offered in JSP that is jointly taught with the Department of Sociology.

Within JSP, we also offer an introductory-level research design course. This is not another statistics course. It's a course that teaches students how to formulate research questions and pair them to appropriate kinds of methodologies, be they quantitative, qualitative, or otherwise. This course helps students begin thinking about how to make the transition from being a student to being a scholar, and about how to ultimately formulate a dissertation topic and research questions.

In addition to the methods training, JSP has a number of distribution requirements in what we call foundations areas that represent the areas of inquiry that we cover in the program. You have to take courses in at least three foundations areas, such as in law and economics, sociology of law, legal history, or law and philosophy. And then, students build on those foundations courses by either taking additional courses in JSP in those areas, or taking additional courses in other departments.

We advise students to take courses in the disciplines that they're interested in and virtually every JSP students takes some proportion of their coursework in other disciplinary programs on the Berkeley campus. And, of course, JSP students can take courses in the JD program with many students earning their JD’s at Berkeley Law. What this all means is that in addition to the unique courses students take in JSP, they are taking courses in our excellent JD program and can take courses in any of the world-class Ph.D. programs that we have on the Berkeley campus. If a student is going to specialize in law and economics, for example, we urge them to take economics courses in Economics Department, the Goldman School (of Public Policy), the Haas School of Business, or other units on campus that offer courses in aspects of economics. And, the same thing with history, sociology, political science, psychology, etc. And if students are studying a particular topical area, such as punishment and society, they might knit together a series of courses in the topic that cuts across JSP, Berkeley Law, and multiple programs on the Berkeley campus, which happens to be really strong in this area.

So, students are taking courses in JSP, and they're taking courses in the JD program, and they're taking courses in other Berkeley doctoral programs.

Q. Would it be right, as I listen to you talk about this, is it right to say that students have a tremendous amount of flexibility in choosing their specific course work within the JSP program?

A. Yes, absolutely. Unlike a program that has a unit minimum or maximum, JSP has distribution requirements. Students must take three foundations courses in different fields; then two additional seminars, one of which can be outside the program, and then can take additional seminars on top of all of that.

In a doctoral program, there is always debate about what the right amount of coursework is, about whether there’s too much or not enough and which courses are absolutely necessary. Doctoral programs go through cycles that lead to them review and change their requirements about every decade or so to introduce more or less “structure” or more or less “flexibility.” Some of these changes are informed by cycles in styles of research that wax and wane, some of this results from broader fads and fashions in graduate education, and some of this results from changes in the world that demand attention or new methodologies and technologies. Think about how much changes in computing technology has changed education and research over the past few decades. I think in JSP we’re in a good position to take advantage of all these changes, to keep at the vanguard of graduate training in the interdisciplinary study of law and legal institutions.

One thing I should also mention, too, is that the JSP program offers financial support for students to take additional offsite methods training, such as at the Institute for Social Research at Michigan or the Institute for Qualitative and Multimethod Research at Syracuse.
We also provide support for additional training for students pursuing work oriented toward the humanities, such as special training in languages or other research tools. So, students might go to a summer language institute, statistics workshops, or data science workshops offsite.

Q. In terms of the number of years, how many years does the JSP program typically take, and how many of those years are course work, and how many are exclusively working on their dissertation?

A. It's generally six years to finish the Ph.D. or seven if a student earns their JD at Berkeley Law with the JSP PhD. JSP courses are law courses and can double count for both the Ph.D. and JD programs. If a student does their JD at another law school – taking a leave from JSP to do so – it may add 2-3 years on to the total time to early the JD/Ph.D., depending upon how and whether that other law school counts any of the coursework completed at JSP. Focusing just on the JSP Ph.D. program, it's about two and half years of coursework, about a year of independent and small group study related to the written disciplinary and the topical exams, and two and half years or more devoted to the dissertation.

Q. We've gone through a lot of the details of the program. Let's step back. What do you think makes JSP standout from other law-related Ph.D. degree programs, or interdisciplinary Ph.D. programs, or even law school fellowships around the country?

A. JSP is unique in providing the rigor of a top-flight Ph.D. training, but in an elite law school setting, all embedded in one of the world's great academic research institutions. There isn't another interdisciplinary Ph.D. program in law and legal institutions like JSP in the world. There are pieces of our program all over the world, partly because of our graduates start and lead different graduate programs at the universities where they work. In terms of being in a top-flight law school, being at a top-flight research university, and then being a well-structured and successful Ph.D. program, JSP is unique.

I think a second issue is that, because we're in a law school, JSP students receive training that's more integrated with law, rather than siloed in a discipline. So, if you think about JSP versus a disciplinary Ph.D. program, what typically happens is that you get your Ph.D. in the discipline where you put on your disciplinary hat. Then you go over to do your JD and you put on your law school hat. It's up to the student, basically, to figure out how to bridge the two fields in their research and teaching. In JSP we're structured to try to bridge the two. We provide training in the disciplines and we provide training to integrate, and to be interdisciplinary. And then we're housed in a law school, so we're very, very close to the law.

This means that JSP students learn different ways of formulating and answering research questions about law and legal institutions, and importantly learn how to navigate across law school, disciplinary, and interdisciplinary fields of research. We like to say that people learn how to “speak law,” they learn how to “speak JSP,” and how to “speak discipline.” Their ability to speak these different languages enables them to navigate across and thrive in different academic worlds, and understand the perspectives of diverse scholars and students.

Q. So, once they've received this training, obviously the goal for most of them, I assume is to get an academic position. Focusing on those students who want to get an academic position in a law school, what type of mentoring do they receive related to the job market?
JSP students receive both one-on-one mentorship from their advisors and through ongoing professional development workshops. JSP holds workshops that cover such topics as the job market, publishing, getting the most out of one’s advising relationships and so on. We urge students to begin attending these workshops in their second or third years, and to begin thinking ahead about job markets rather than waiting until the last moment. In addition to these sources of information and mentoring, there is also the Berkeley Law placement committee that is responsible for facilitating Berkeley JD student success on the academic law market, and the chair of that committee coordinates closely with the chair of the JSP Graduate Admissions Committee, and the chairs of individual JSP dissertation committees in positioning students on the market.

Not to be too clichéd, but it’s true, in addition to excellent credentials and potential as a scholar and teacher, it takes a village and active networks to get someone a job in academia. The real advice is that students after their first couple of years need to begin to think proactively and look forward at the market that's coming up. They need to be attending conferences and meeting relevant scholars in their field; they need to be begin thinking strategically about Berkeley faculty with whom they’ve taken classes and who might interested in being on their dissertation committee and who might eventually write letters of rec or call someone on a hiring committee on their behalf. Students can't wait until you're getting ready to go on the market to position themselves for it if they want to be successful.

Q. Do the students have an opportunity to do a mock job talk?

A. Yes, they do. They can do multiple talks if necessary. Those talks are generally attended by members of the student’s dissertation committee and JSP student peers. There may be other faculty present who are on the dissertation committee, but have been deemed by the student or the dissertation advisor to be really important to be in the room so that they can replicate some of the questions that the student may receive in a job talk setting.

Mock job talks are really interesting in that in addition to the formal presentation by the student they typically have two kinds of Q&A sessions. The first replicates the front stage questions that the student may receive wherever they’re going to interview and the second goes backstage to presentation and Q&A response styles and strategies or the visuals, if any, that are used.

Different academic job markets, as you might suspect, have different norms in terms of job talks. They also require really different kinds of framings for one’s research, and somewhat different presentational styles. To begin with, in political science or in sociology, the job talk is typically 40 to 45 minutes, plus about 30 minutes of questions. Whereas in law, the job talk may be 15 to 20 minutes plus 55 minutes of Q and A. So, that difference in and of itself requires a very different way of framing one’s research in order to be successful in communicating what is interesting and important about one’s research. The key thing we try to communicate to JSP students is that in whatever market one is trying to get a job, it’s important, in addition to doing excellent research, to signal what one’s valued-added is as a JSP graduate. What does one bring to the table as a graduate of an interdisciplinary doctoral program focused on law and legal institutions?

Q. Do the JSP students receive feedback on the application materials themselves?

A. Absolutely. Again, they’ll receive multiple layers of advice from their dissertation advisor, from the members of their dissertation committee, and the Berkeley Law placement committee, and other JSP and Berkeley Law faculty. JSP faculty members may be differently positioned in different academic markets. Some may be more familiar with the history market, or the political science market, or the sociology market, whatever it may be. This is where it's really important for the primary academic advisor and the student to strategize about who they need to connect with in order to get their application materials to the appropriate framing, and in the right hands.

This is where peers can play important roles, as well. Especially peers who have just been on the market. The network of JSP alumni also can play a role. They’re not only important in perhaps getting a hiring committee to take a look at a JSP student’s application materials, but also and perhaps even more importantly in giving feedback on a student’s application materials.

Q. If you had to look back on the JSP students who wanted to go into a tenure-track, law teaching job, what percentage of those students do you think succeeded in landing in one of those jobs?

A. Well, over the 40 years of the program, we’ve graduated over 150 students, and about three quarters have gone into academia. Of those students, about three quarters have tenured or tenure track positions. So, JSP is a good bet if you want to go into legal academia or a law-related area in an interdisciplinary or disciplinary program.

Let me be more specific. Over the past five years, JSP has graduated 30 students, and 17 or 57% currently hold tenure-track positions, seven have postdoctoral or VAP positions, and six are not working in academia. Of the JSP graduates in academia, both those in tenure-track and those in temporary positions, 16 are in law schools. By contrast, in the most current survey of Berkeley doctoral alumni over the past five years, about 44% of Berkeley doctoral graduates hold tenure track positions. So, we're doing well in terms of placement even when compared to other world-class doctoral programs at Berkeley, most of which are ranked at number one or at least in the top 5 in their respective fields. We also do well comparatively in terms of being one of the top sources for law faculty in the country. We had an especially robust placement record this year, including a student who accepted a tenure-track position at Stanford Law, another student who accepted a tenure-track position at the London School of Economics, and another who accepted a prestigious UC Presidents postdoc at UCLA Law. We had still another JSP graduate accept a clerkship with Justice Ruth Bader Ginsburg (with great support and thanks to the very effective Berkeley Law Faculty Clerkship Committee).

Overall, it’s important to keep in mind that all of these placement statistics should be calibrated in light of the fiscal recession in 2008-09, which really constrained academic hiring and especially law school hiring for several years, and I think continues to reverberate even to the present.

Q. Let's turn to just a few broader policy questions.

A. Sure.

Q. Increasingly today, candidates on the law teaching market have Ph.D.’s, and often many of them also have completed VAPs or fellowships.

A. Right.

Q. Focusing just on those with Ph.D.’s, I'm wondering what you think are the benefits of the rise of Ph.D.’s on the law teaching market, and what do you think are the costs?

A. A benefit to law schools is that you can hire an entry-level faculty member who has a more defined research agenda than a candidate who did not go through a Ph.D. program. What you get of a Ph.D. program is the ability to formulate a research agenda and to pursue it – the research tools, the theory, and all that it takes to do that. It’s not that entry-level law school candidates with Ph.D.’s are smarter than those without a Ph.D. It’s that they are further along in developing their research agendas and how to pursue their agendas.

One cost is at the level of the candidate. It takes a lot longer to secure a law professorship. It used to be that a Ph.D. might substitute for some other experience, but what we're seeing now are JD/Ph.D.’s who have been a VAP, who have had a fellowship, who have clerked, and who may have practice experience of some kind. Securing a law faculty position is beginning to look like getting a faculty position at a medical school. In the medical school context, one might not secure an entry-level position at an elite institution until one is their mid-30s because of all of the internships and externships that one has to complete prior to becoming a full member of a medical faculty. The process through which has to go and the milestones that one has to achieve is prolonged in legal academia as it has been for decades in the field of academic medicine.

Another cost is institutional. There has been a sea change in law school hiring over the past several years with more JD/Ph.D.’s than ever being hired into top law schools, especially, but increasingly in non-elite many law schools. These hiring changes have led to a growing tension on law school faculties between hiring candidates with and without Ph.D.’s. Some law faculties frame these two trajectories as a trade-off. These arguments go something like this. Those who have PhD’s will not have practice or clerkship experience, and these experiential differences create differences not only in how legal research is conducted or defined, but how law is taught. There are trade-offs. JD/Ph.D.’s, so the argument goes, teach law courses in less practical ways. Yet the currency of a Ph.D. becomes more valuable as law schools, especially at the elite levels, want to up their research capacities. So there’s a tension between having entry-level folks come in with Ph.D.’s who have better developed research agendas than entry-level folks without Ph.D.’s.
As I said earlier, having a Ph.D. doesn’t make you smarter, but it may enable you to hit the ground running faster and perhaps to look more polished as you come through the door.

Does a Ph.D. trained law professor approach their 1L courses differently, for example, than a non-Ph.D. trained faculty member? Perhaps. I know that I can certainly see some differences here on the Berkeley Law faculty among my colleagues with and without Ph.D.’s who teach in our 1L curriculum. But the differences don’t always play out as one might expect. Faculty members sometimes compartmentalize how they're teaching a 1L contracts course, for example, or a 1L crim law course, compared to how they approach their research. They also shift how they teach a more advanced seminar where they might bring in work from law and society, or criminology, or sociology, or whatever it might be, or economics, to look at that topic. On the other hand, some of my colleagues who have it all – a Ph.D., a JD, and practice experience – and who teach in the 1L curriculum are some of the best instructors we have precisely because they offer practical perspectives and stretch the boundaries of conventional legal teaching to offer insights from their research or other interdisciplinary sources.

Q. I want to circle back to the discussion about practice experience, because one of the things that's interesting about a Ph.D. program versus a VAP or fellowship, is that at least for students who aren't entering the JSP program with a JD, it's impossible for them to have practice experience as a lawyer before they enter the program.

A. Right, sure.

Q. So, what does that mean for them when they go onto the job market? Does that mean that typically the student coming out of the JSP program does not have any practice experience?

A. There are trade-offs, as I just noted. I would say that if anything's going to drop off for a JSP student it's probably the practice experience. But we have a number of students who come into the program with JD’s and have substantial prior practice experience. We also have students, for example, who have earned their JD, but haven't finished their JSP Ph.D., and take time off to practice law. They then come back to finish their Ph.D. and go on the academic law market. For students who interrupt their Ph.D. to practice law, one always wonders if they’ll return to finish their Ph.D. But we have multiple examples where that has occurred and the students have succeeded quite well on the academic law market.

More typical would be students who finish both the JD and the JSP Ph.D., and then go into a clerkship or a VAP. That’s not practice experience, but it is experience apart from their Ph.D. program prior to going on the academic law job market. Again, I'm seeing more and more candidates who seem to have it all, which means that they've gained practice experience either prior to coming to JSP or interrupted their doctoral studies to practice.

Q. So, obviously for the students who have checked all the boxes, they would probably be very attractive candidates on the law faculty hiring market.

A. Sure.

Q. As for the candidate who, perhaps, has just completed the JSP program straight through, who doesn't have that practice experience, what do you think about that trade off, given that law schools are in the business of educating lawyers?

A. Well, law schools are in the business of educating lawyers. But as I said, especially for many law schools, they're trying to up their research game. I also don’t think that practice experience guarantees hiring a dynamic instructor or an instructor who can quite capably prepare a law student for legal practice. My sense is that law schools need to think about their faculties not as monolithic, but, as an integrated team on which different faculty members with different backgrounds bring different strengths. So, it may be that some faculty members will have JD/PhD’s and less practice experience, and they bring that formal research training with them. Other faculty members who may not have PhD’s or who may have Ph.D.’s, but also have practice experience, bring that experience with them. It’s also unclear to me how having Ph.D. influences the long-term research career that one has. Having a Ph.D. can certainly alter one’s style of research or where one wants to publish – only in law journals, for example, or in both law and peer-reviewed journals. Again, background is not always destiny. I have colleagues at Berkeley Law who have Ph.D.’s and who publish almost exclusively in law journals. There are colleagues with JD’s without Ph.D.’s who publish in peer-reviewed and law journals. Maybe it’s just situation at Berkeley Law, but it’s not clear how these changes in the academic preparation of law faculty will shake out in terms of where the field is going. It will be interesting to see!

I hope that one of the things that our interdisciplinary training in JSP does for our students is facilitate them being more conscious and sensitive to these changes and tensions, and to be respectful of future colleagues with very different backgrounds from their own.

Q. Last question for you, Cal.

A. Sounds good.

Q. So, as there's been this rise in PhD’s, VAPs, and fellowships on the law faculty hiring market, I think a lot of hiring committees have struggled when it comes to evaluating candidates’ work, because it's hard to tell how much of the work and ideas come from the candidates themselves, and how much comes from their mentors, advisors, and faculty at the school where they were fellows or Ph.D. students. How should we be thinking about that criticism?

A. This issue can be a challenge in any academic field. In any Ph.D. program, there's a lot of mentoring. Questions can be raised about whether the ideas that one sees from an entry-level candidate are the candidate’s or the mentor’s. I think that one of the key things that we teach students in JSP is to signal what are their signature ideas. Students have to stand and deliver, so to speak, in the job interview situation and in their application materials. In those contexts, it is important for candidates to compellingly signal their own potential for sustaining the level of research accomplishment they've demonstrated in their Ph.D. program. If a student can’t do this effectively, they’ll have a difficult time being hired.

Q. Any last comments on either the JSP program, or the state of law hiring more generally?

A. JSP offers law schools incredible opportunities in terms of its graduates. Students who graduate from JSP come with world-class research training, training in teaching, and well-formulated research agendas. They can move across the boundaries of legal and disciplinary scholarship. They can teach traditional law school courses, such as in the 1L curriculum, and more advanced or interdisciplinary seminars. We've also found over time that a JSP education also equips our graduates for successful, longer-term careers. As law schools become more interdisciplinary in their research aspirations, my sense is that JSP graduates will become even more attractive on the law school market than they have in the past – and they’ve done quite well in the past.


Posted by Jessica Erickson on August 2, 2019 at 07:09 AM in Getting a Job on the Law Teaching Market | Permalink | Comments (0)

Thursday, August 01, 2019

Richard Re on the "Law of Clarity" and Constitutional Avoidance:

As numerous scholars (see, e.g., Brian Slocum's fine piece) and even one judge (Justice Kavanaugh in a widely cited book review) have noted, few concepts are less clear than the concept of legal clarity. (The problem can be equivalently restated as legal ambiguity’s being ambiguous). Given that a lot rides on a determination that a statute is plain, clear, unambiguous, etc., one would think that courts would spend more time analyzing the concept(s) in judicial opinions. Alas, no — and perhaps predictably so: Keeping the concept of ambiguity ambiguous gives judges discretion that intelligible analysis of ambiguity/clarity might eliminate. Using an unanalyzed concept of clarity, judges can turn Chevron off and on like a spigot, hedge on how much notice to give to criminals about what the law forbids, or vary their deference to state judges in habeas proceedings — all without having to engage in a lot of pesky, tiresome reason-giving.

Leisure-seeking judges beware (but Leg-Reg profs like myself, rejoice): Richard Re has just posted a razor-sharp analysis of the concept of legal clarity. Richard’s piece is full of insights, but its most basic point is also the most important: Legal clarity, he argues in Part I, “is not an empirical or linguistic fact but rather a legal characterization that ultimately rests on normative premises.” Legal clarity is not a linguistic concept at all: It is a legal conclusion dependent on the purposes of the law. So one needs to know the normative goal that any clarity doctrine (e.g., lenity, Chevron, qualified immunity etc.) seeks to accomplish before one can define “clarity.” Different doctrines define clarity in different ways, relying on different levels of confidence about how different sorts of interpreters would read some allegedly clear phrase. The “Law of Clarity,” therefore, is characterized by “clarity pluralism,” about which Richard has ambivalent thoughts.

There is so much to like about Richard’s article that it would be churlish of me to pick nits about his treatment of constitutional avoidance, a topic to which he devotes four pages. Naturally, after the jump, that’s what I am going to do. In brief, I think that Richard might have overlooked what I call the “Lazy and/or Scared Judge” theory of clarity, viz.: Sometimes the point of a clarity doctrine is neither to make the law more predictable nor to insure that legislative purpose is more faithfully carried out but instead to save judges the politically troublesome, intellectually vexing task of resolving disputes about what the law means. By demanding high levels of semantic clarity in statutes from lawmakers, judges (try to) force those lawmakers to do the work that the judge wants to avoid doing.

The Constitutional Avoidance canon is the best example of such prescriptive clarity rules designed to change the behavior of lawmakers. Take, for instance, Gregory v Ashcroft (a case that Richard does not discuss). The Gregory Court held that, contrary to the implication of noscitur a sociis, the Age Discrimination in Employment Act’s exemption for state officials “at the policymaking level” applied to state judges. According to the Court, the statute was just not plain enough, even though it was canonically unambiguous, because Garcia’s requirement that Congress take seriously its constitutional duty to protect federalism required a plainer statement to extend federal protection from age-based discrimination to the state judiciary. Quiting Larry tribe's treatise, Gregory stated that "'[T]o give the state-displacing weight of federal law to mere congressional ambiguity would evade the very procedure for lawmaking on which Garcia relied to protect states' interests."

Richard suggests that Gregory-style “clear statement rules” “might require an especially high level of confidence about legislative intent before impinging on legally recognized interests or purposes.” But that characterization of Constitutional Avoidance raises a bit of a puzzle. State governments do not actually enjoy any “legally recognized interest” to protection from ADEA in Gregory, if, by “legally recognized interest,” one means a “judicially protected interest.” The Gregory Court was actually pretty clear that it would not strike down the extension of ADEA to judges if Congress explicitly enacted it. (In 1991, Congress quickly eliminated most of the exemptions for state officials " at the policymaking level" not themselves directly elected by voters). Moreover, once Congress, acting as the relevant constitutional decision-maker, decides that extending ADEA to state judges is necessary and proper for executing Article I powers, then the states actually have no “legally protected interest” of any sort whatsoever to be protected from ADEA: The authoritative interpreter — Congress — has clarified that the the burden on state autonomy is indeed “necessary and proper” for carrying out Article I, such that the extension of ADEA “impinges” on nothing at all.

Richard’s account of constitutional avoidance, in other words, does not explain Gregory, at least as Gregory explains itself: According to Gregory, its federalism "clear statement rule" protects only a procedural entitlement to legislative due process, not a substantive interest in state autonomy. This means that Gregory has nothing to do with prediction or certainty about legislative intent/purpose. Even if the Court were 100% “ confident about legislative intent,” it would rule the same way in Gregory, because the point of the doctrine is to prescribe rather than predict Congress’ behavior: The Court wants Congress to speak plainly to save the Court the trouble of judicially deciding a constitutional issue that the Court deems more fit for Congress to decide. In effect, the Gregory Clear Statement Rule is a judicial prod to Congress to force it to do a constitutional job that the Court wants to avoid — namely, making a decision about the exact scope of state autonomy.

Gregory might possibly provide an addition to Richard’s taxonomy of clarity rules. Richard divides up Clarity Rules into rules that promote legal “certainty” and legal “predictability.” The first aim for accuracy in the interpretation of the law; the second aim to enable third parties like businessmen, cops, or criminals to predict how the law will be applied to them. It is not obvious that Gregory-style Clear Statement Rules aim in either direction. Such rules are not trying to “predict” how Congress

There might be a third category of clarity rules that are designed to affect the incentives rather than predict the decisions of lawmakers. Richard notes that clarity rules can be prescriptive: Courts could demand, for instance, that police officers seeking qualified immunity make more accurate predictions about the law that actually (rather than just “clearly”) applies to their actions. Using clarity rules to prescribe proper behavior for lawmakers as opposed to the subjects of laws, however, does not quite seem to fit into his binary division.

So consider this post a friendly amendment to Richard’s article, a clarification that Richard’s taxonomy might not be 100% complete. The article, however, does not purport to offer a comprehensive taxonomy of clarity rules: It provides a foundational analysis to clear the ground. In clarifying that the Law of Clarity is a prescriptive body of normative legally rules rather than an empirical body of linguistic data, Richard's Clarity Doctrines needs no further clarification: It is an unambiguous success.

Posted by Rick Hills on August 1, 2019 at 05:07 PM | Permalink | Comments (3)