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Friday, August 30, 2019

Teaching leadership and addressing gender inequality

The following post is by Hannah Brenner, Vice Dean for Academic and Student Affairs and Associate Professor of Law at California Western School of Law ([email protected]) and Renee Knake, Professor of Law and Doherty Chair in Legal Ethics at the University of Houston Law Center ([email protected]) and is sponsored by West Academic.

Law schools increasingly acknowledge the importance of teaching students about leadership, many offering new courses and even specializations or certificates. (A quick search reveals numerous programs launched in the past handful of years at a range of schools, including Baylor, Columbia, Elon, Michigan State, Ohio State, Santa Clara, Tennessee, and the University of Chicago, among many others—please feel free to supplement this list in the Comments.) The Association of American Law Schools recently approved a new Section on Leadership. Two years ago, Stanford Law Review devoted its annual symposium issue to the topic. Given the prominent roles lawyers often take on in their professional lives and in their communities, we believe that this training is necessary and we applaud efforts like these to better prepare our future lawyers.

At the same time, the number of women rising to leadership ranks in the legal profession does not come close to reflecting the number of women who graduate from law school. For decades, women have entered the profession in numbers equal to men, but comprise only a fraction of leadership positions in law firms, the judiciary, corporate legal departments, government, higher education, and beyond.

In part as a response to this reality, we created and taught seminars on gender, law, and leadership, collectively, over a dozen times spanning the last fifteen years at three different law schools, in an undergraduate honors college, and undergraduate women’s studies and political science department. One of our constant frustrations comes from the reality that our female students, and especially those who are women of color, do not have access to the same opportunities to put this training into practice.

As we have done previously with other scholarly projects (like our empirical Supreme Court Media Study that explored media coverage of nominees to the Court through a gendered lens) we channeled this frustration into writing a new casebook: Gender, Power, Law & Leadership. The text is designed for a semester-long course in law school and higher education classrooms. In it we expose readers to intersections of gender, race, class, power, and law through both historical and contemporary works. We also explore post-feminism discrimination ignored by the modern legal system, including the glass cliff, shortlisting, emotional taxation, admin burdens, work wife syndrome, gender sidelining, imposter syndrome and other gender-based barriers in an effort to more adequately educate students about barriers that hold women, and especially minority women, back. Narratives about transformative women leaders appear throughout to educate, inspire, and mentor students. The text concludes with concrete guidance for students to consider as they pursue leadership paths, and it proposes reforms to create a world of leaders who reflect the public they serve.

It is our hope that by better educating our students about the gendered dynamics inherent in professional contexts like law, they will be better equipped to successfully navigate the pipeline to power and beyond.

Posted by Howard Wasserman on August 30, 2019 at 08:52 PM in Sponsored Announcements | Permalink | Comments (0)

Declaratory judgments and injunctions

The Fifth Circuit held that due process was violated by a system in which some portion of cash bail was used to fund court expenses and the magistrate deciding bail sits on the committee deciding how money should be spent. The remedies portion states as follows:

After recognizing this due process violation, the district court issued the following declaration: "Judge Cantrell's institutional incentives create a substantial and unconstitutional conflict of interest when he determines [the class's] ability to pay bail and sets the amount of [*8] that bail."

That declaratory relief was all plaintiffs sought. They believed that section 1983 prevents them from seeking injunctive relief as an initial remedy in this action brought against a state court judge. See 42 U.S.C. § 1983 ("[I]n any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable . . . .").7

That statutory requirement reflects that declaratory relief is "a less harsh and abrasive remedy than the injunction." Steffel v. Thompson, 415 U.S. 452 , 463 (1974) (quotation omitted); see also Robinson v. Hunt Cty., 921 F.3d 440 , 450 (5th Cir. 2019); Restatement (Second) of Judgments § 33 cmt. c ("A declaratory action is intended to provide a remedy that is simpler and less harsh than coercive relief . . . ."). Principal among its advantages is giving state and local officials, like Judge Cantrell, the first crack at reforming their practices to conform to the Constitution. Steffel, 415 U.S. at 470 .

One response to the declaratory judgment would be eliminating Judge Cantrell's dual role, a role that is not mandated by Louisiana law. In contrast, because Louisiana law does require that the bond fees be sent to the Judicial Expense Fund, LA. R.S. 13:1381.5(B)(2)(a) , the declaratory judgment cannot undo that mandate. Challengers did not seek to enjoin that statute, instead arguing only that the dual role violated due process. But given today's ruling and last week's in Cain, it may well turn out that the only way to eliminate the unconstitutional temptation is to sever the direct link between the money the criminal court generates and the Judicial Expense Fund that supports its operations.

I am unsure about the final paragraph. The challengers cannot "enjoin that statute" because courts do not enjoin statutes; they enjoin enforcement of statutes. The district court could have declared that the state-law mandate created the unconstitutional conflict of interest; to comply with that judgment, the defendants would have had to stop enforcing that statute, much as if they had been enjoined from enforcing.  The court issued a seemingly narrower declaratory judgment. Perhaps the point of the final sentence is that eliminating the defendant magistrate's dual role would not eliminate the constitutional violation, opening the door to an injunction because the defendants violated the declaratory judgment.

Two other cute procedural pieces in the case: It was certified as a class action, thus avoiding mootness when the named plaintiffs' criminal cases ended. The court also noted that it is not clear that the exceptions provision of § 1983 applies here, because it is not certain that the defendant judge was acting in a judicial rather than administrative capacity.

Posted by Howard Wasserman on August 30, 2019 at 06:08 PM in Civil Procedure, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Thursday, August 29, 2019

Norm Lefstein (1937-2019)

I want to note the passing of Norman Lefstein, the longtime former Dean of my law school. Norm was a leader of the criminal defense bar who did amazing work in improving representation for indigent defendants. Here is his obituary from the Indiana University Robert H. McKinney Law School. Rest in peace.

Posted by Gerard Magliocca on August 29, 2019 at 08:07 PM | Permalink | Comments (0)

The Criminalization of Private Market Competition

A couple of years ago Rochelle Dreyfuss and I wrote about the conflation, in rhetoric and practice, between trade secrecy and national security. We sounded the alarm that using the criminal justice system to prosecute run of the mill competition between employees and their former employers - even when such competition involves taking trade secrets - a category that as we see in civil litigation is subject to much dispute and factual ambiguity - is a risky extension of the risks employees face when leaving their employer. The Uber-Waymo case settled, with part of the settlement being Waymo, owned by Google, getting shares in Uber's venture. Competitors become collaborators. Innovation and the race to autonomous cars continue. But now the former employee of both - the one who moved between the companies and triggered the civil dispute is being prosecuted for his actions and may face up to 10 years in jail. We should worry about this development, as I argue in this new piece in the Wired.

Posted by Orly Lobel on August 29, 2019 at 12:30 PM | Permalink | Comments (2)

Faculty Hiring: FIU (two tenure/tenure-track positions)

Assistant, Associate, or full Professor of Law (two positions)

Florida International University College of Law, Florida’s public law school located in Miami, invites applicants for two tenured or tenure-track Assistant, Associate, or full Professor of Law positions to begin in the 2020-21 academic year. Our primary curricular interests are Cyber Law (focusing on cybercrime/forensics, interconnected cities, infrastructure security, and general cybersecurity training and education), Environmental Law, Wills & Trusts, and Torts. The Cyber Law position may be a joint appointment with another FIU School or College.

Candidates must have a J.D. degree or its equivalent (or a Ph.D. for the Cyber Law position) and a strong academic record. In addition, applicants should demonstrate a track record or promise of outstanding scholarly achievement and effective teaching. Successful candidates will be expected to engage in scholarship, teaching and service. Rank as Assistant Professor, Associate Professor, or Professor will be determined based on qualifications and experience.

FIU Law is the only public law school in South Florida, established in 2001 on the idea that a high-quality legal education should be affordable and accessible to a broad, diverse community. In 6 of the past 8 administrations of the Florida bar exam, FIU Law has ranked first in bar passage among the 11 law schools in the State. In 2018, 84% of graduates secured full-time, long-term bar passage required and J.D. advantage jobs. FIU Law ranks as the most diverse law school in Florida, and the third most diverse nationally.

FIU is Miami’s public research university and in less than five decades has become a top 100 public university, according to U.S. News and World Report’s Best Colleges. The university is focused on student success and research excellence, with nearly $200 million in annual research expenditures. FIU is in the Carnegie R1 category (“highest research activity”), and was recently designated by the Board of Governors as an emerging preeminent university in the State’s public university system. FIU has 16 colleges and schools that offer more than 180 bachelor’s, master’s and doctoral programs in fields such as engineering, international relations, architecture, and medicine. FIU has awarded over 200,000 degrees and enrolls more than 54,000 students in two campuses and three centers. For more information about FIU, visit http://www.fiu.edu/.

Qualified candidates are encouraged to apply to Job Opening ID 519267 at https://facultycareers.fiu.edu and attach a cover letter and curriculum vitae in a single PDF file.

Prior to a campus interview, applicants will also be required to submit a list of references. For any questions related to the position, please contact Appointments Committee co-chairs Jan Osei-Tutu ([email protected]) or Scott Norberg ([email protected]). To receive full consideration, applications and required materials should be received by September 30. Review will continue until the positions are filled.

FIU is a member of the State University System of Florida and an Equal Opportunity, Equal Access Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or protected veteran status.

Posted by Howard Wasserman on August 29, 2019 at 10:01 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Faculty Hiring: FIU

Lecturer in Legal Skills and Values

Florida International University College of Law, Florida’s public law school located in Miami, seeks applicants for entry-level or lateral appointments for the position of Lecturer in Legal Skills and Values. The start date for the position is August 2020.

The College of Law’s Legal Skills and Values program consists of two required courses in the first year of law school and an additional required course by the end of a student’s fourth semester. We are seeking dedicated legal writing and skills teachers to teach legal research, analysis, and written and oral communication skills, all with a heavy emphasis on professionalism.

Lateral candidates should show a demonstrated record of teaching excellence. Entry-level candidates should show commitment to excellence in teaching and significant potential as law teachers. Experience in legal practice and/or judicial clerkships is preferred. JD required. This is a full-time faculty appointment, with an initial one-year term, with the possibility of successive three-year or five-year terms.

Qualified candidates are encouraged to apply to Job Opening ID 519269 at https://facultycareers.fiu.edu and attach a cover letter and curriculum vitae in a single PDF file.

Prior to a campus interview, applicants will also be required to submit a list of references. The Appointments Committee may request additional material such as teaching evaluations, writing samples, and letters of recommendation. To receive full consideration, applications and required materials should be received by September 30. Review will continue until position is filled.

Questions about the position can be directed to search committee co-Chairs, Scott Norberg ([email protected]) and Jan OseiTutu ([email protected]).

FIU is a member of the State University System of Florida and an Equal Opportunity, Equal Access Affirmative Action Employer. All qualified applicants will receive consideration for employment without regard to race, color, religion, sex, sexual orientation, gender identity, national origin, disability or protected veteran status.

Posted by Howard Wasserman on August 29, 2019 at 09:31 AM in Howard Wasserman, Teaching Law | Permalink | Comments (0)

Wednesday, August 28, 2019

Merits, not standing

I have no idea whether the Eleventh Circuit is correct that a single unsolicited text violates the Telephone Consumer Protection Act. But it highlights the absurdity of treating standing as something other than substantive merits. The heart of the analysis is the scope of the TCPA and congressional intent--what should be questions of whether a plaintiff has stated a cause of action under applicable substantive law.

Posted by Howard Wasserman on August 28, 2019 at 10:17 PM in Civil Procedure, Howard Wasserman, Judicial Process | Permalink | Comments (2)

Legal Methods Hiring at Utah

The University of Utah S.J. Quinney College of Law invites applications for one or more career-line faculty positions, on a presumptively renewable five-year contract basis, at the rank of assistant or associate professor beginning academic year 2020-2021.

The successful candidate(s) will teach one section of our year-long (6-credit) first-year legal methods course in addition to other teaching and program supervision responsibilities. Qualifications for the position include a record of excellence in legal practice, with a focus on strong writing and analytical skills, and successful teaching experience or potential as a teacher. Interest in scholarship will be considered but is not essential for this position. Interested persons should submit an application to the University of Utah Human Resources website: http://utah.peopleadmin.com/postings/91875.

The University of Utah is an Equal Opportunity/Affirmative Action employer and educator. Minorities, women, veterans, and those with disabilities are strongly encouraged to apply. Veterans’ preference is extended to qualified veterans. Reasonable disability accommodations will be provided with adequate notice. For additional information about the University’s commitment to equal opportunity and access see: http://www.utah.edu/nondiscrimination/.

Posted by Howard Wasserman on August 28, 2019 at 10:35 AM in Teaching Law | Permalink | Comments (0)

Monday, August 26, 2019

A real universal injunction

Equity famously cannot enjoin a crime. But can we agree that this injunction would be universal and not nationwide?

Posted by Howard Wasserman on August 26, 2019 at 11:02 AM in Howard Wasserman | Permalink | Comments (1)

Sunday, August 25, 2019

Qualified immunity and judicial departmentalism

The Sixth Circuit on Friday held that Kim Davis was not entitled to qualified immunity from a claim for damages by same-sex couples denied marriage licenses in the early weeks after Obergefell. Obergefell clearly established the constitutional right the plaintiffs sought to vindicate--to receive marriage licenses and a reasonable official should have known about that right. And Davis did not show her entitlement to a religious accommodation, as the court said:

Davis provides no legal support for her contention that Kentucky’s Religious Freedoms Restoration Act required her to do what she did. Her reading of the Act is a subjective one and, as far as we can tell, one no court has endorsed. In the presence of Obergefell’s clear mandate that “same-sex couples may exercise the fundamental right to marry,” and in the absence of any legal authority to support her novel interpretation of Kentucky law, Davis should have known that Obergefell required her to issue marriage licenses to same-sex coupleseven if she sought and eventually received an accommodation, whether by legislative amendment changing the marriage-license form or by judicial decree adopting her view of the interplay between the Constitution and Kentucky law.

Under judicial departmentalism, an executive official, such as Davis, is free to adopt and implement her "subjective" reading of the statute and judicial precedent. She does not need "legal authority to support her novel interpretation of Kentucky law"--the legal authority is her power as an executive official to act on her understanding of the law she is empowered to enforce. But qualified immunity is focused on precedent and the judicial understanding of precedent. So it could check executive officials going too far in a departmentalist direction, by tying them to judicial precedent on pain of damages.

Posted by Howard Wasserman on August 25, 2019 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (3)

Saturday, August 24, 2019

More on SLAPP laws in federal court

The Fifth Circuit on Friday held that Texas's SLAPP law does not apply in federal court on diversity, following the (correct) analysis from the D.C., 10th, and 11th Circuits that the state law conflicts with FRCP 12 and 56 by adding an additional hurdle to trial. This decision complicates the circuit split because the 5th Circuit had held in 2009 that Louisiana's SLAPP law applies in federal court. The panel held it was not bound by circuit precedent. It was pre-Shady Grove, which the panel says sharpened the proper analysis. And the Texas law is different than the Louisiana law; the latter uses standards that look like summary judgment, while Texas imposes higher standards that more "manifest[ly]" conflict with the Federal Rules.

I doubt this will be the case on which SCOTUS will resolve the question, at least not immediately. The first move will be en banc reconsideration on the Fifth Circuit to resolve its internal split.

My conclusion on the overall Erie question is that the "special motion" provisions should not apply in federal court but fee-shifting provisions should. The question is whether that sufficiently protects free-speech interests, by allowing litigation to last a bit longer (until the protections of NYT can do their work in an appropriate case), but allowing the defendant to recover attorney's fees, which recoups the defendant's major financial burden.

Posted by Howard Wasserman on August 24, 2019 at 11:26 AM in Civil Procedure, First Amendment, Judicial Process, Law and Politics | Permalink | Comments (2)

Friday, August 23, 2019

IJ Podcast on the Bill of Rights

The Institute for Justice, as part of its podcast series on the Fourteenth Amendment, just released the latest episode on the failure of incorporation in the late 19th century. It features yours truly and Michael McConnell. 

Posted by Gerard Magliocca on August 23, 2019 at 08:23 PM | Permalink | Comments (0)

We are Hiring!

Faculty recruitment is happening  early this year, with the FRC convening early October. Good luck to all and a note about University of San Diego Law School: we are actively looking to recruit both entry level and lateral scholars. We have a particular interest in corporate law but we are very open to any and every field. Our chair is Mary Jo Wiggins, resumes and inquiries can be sent her way - [email protected].

Again good luck to all the entry-levels heading to DC!

Posted by Orly Lobel on August 23, 2019 at 05:49 PM | Permalink | Comments (0)

Interview with Candace Zierdt about the Bruce R. Jacob Visiting Assistant Professor Program at Stetson University College of Law

Next up in my series interviewing VAP and fellowship directors is Candace Zierdt, a Professor at the Stetson University College of Law.  For the past decade, she has served as the Director of the Bruce R. Jacob Visiting Assistant Professor Program at Stetson.  An edited transcript of our conversation is below, and I have invited Candace to respond to any questions in the comments.  Thanks, Candace, for participating in this series!

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

Q. Can you start by telling me your role with Stetson's VAP program?

A. Yes, my role right now is that I am the director/coordinator of the program, and I have been that since its inception about 10 years ago. In August a colleague of mine is going to take it over, Professor Marco Jimenez. We'll be looking for a new VAP this year, and although I'll still be working with Marco, I wanted to cycle out because I have a lot of other things on my plate. After 10 years, I thought this would be a good time for me to get somebody else to help with it, and Marco has been intimately involved with the program since its inception as well because we have a cadre of faculty who always help our VAPs.

Q. That's great, and can you tell me just a little bit about the VAP program itself? How many VAPs do you typically have? How long do they stay?

A. Sure. We started out 10 years ago hiring two VAPs, and then we decided to go to one. Really, I think that decision was partially motivated by what was happening in legal education. The number of available jobs were becoming much smaller. Legal education had all these issues in the last five or six years when the number of law students started decreasing. We decided we didn’t want to hire any more VAPs than we could actually market and place in a tenure-track position.

So, we thought it would be a better idea to hire one VAP a year. Now, occasionally we'll have one that overlaps. Last year we did not hire a VAP, so, this year we'll be starting with a VAP who doesn’t overlap. We try to have one a year and have them overlap, so hopefully we'll be able to start back in that process again.

The program that we've designed is for two years. Generally, we try to start new VAPS the first of July, so that they can have time to prep their classes, get used to being at Stetson, and do whatever they need to do to get ready for the job. The first year, a VAP’s only responsibilities are to teach one class in the fall and one class in the spring. In the second year, the responsibilities include teaching one class in the fall, and then two in the spring. Generally, in the spring the VAP will teach a course that they really want to teach.

For example, two past VAPs designed wonderful seminars. They were basically about looking at documents, and looking at it in the business perspective, either from the UCC perspective, or because one VAP was an expert in blockchain, she brought some blockchain in, so that's in their second year. The only other responsibility they have is that we require our VAPs to produce a paper of publishable quality by the time they go on the market the second year and, honestly, every single person who has been in our VAP program has done more than one.

Part of the reason for that, I think, is because the responsibilities only require teaching one class a semester, and we really encourage VAPs to block out a few days where they work on a paper. Then, in the summer between the first year and the second year, we give VAPs a small research grant that helps them in terms of completing their paper. We want them to have a paper ready when they go back on the market, so they can use it for their job talk.

We do have a possibility to extend the position by a year if, for example, somebody was not able to get a job. However, no VAPs can stay at Stetson. They always have to leave as part of their contracts. One reason for that is we always fall in love with our VAPs, and we want them to stay. That would defeat the program because we can't keep them all.

We've never had to use the third-year extension because all of our VAPs have gotten jobs. We're actually at 100% placement.

Q. That's great. What I'd love to do is essentially move through the program chronologically starting with the application process, and then going through the fellowship itself, and then the job market. When will you start accepting applications this year?

A. We start accepting them in August. In reality, the committee starts looking at them and working on them probably at the end of August. This year our classes don't start till August 25th, so it may be the end of August or the very beginning of September.

Our VAPS are usually teaching either bread and butter advanced courses or first-year courses. They've taught contracts, property, civil procedure, criminal law, professional responsibility, UCC courses, business entities, and just a whole array of courses.

Because we have our VAPs teaching those substantive courses, we actually hire our VAPs the exact same way we would hire any faculty member, although we know that they don't have the same experience, generally, and skills, and publications as a person who we would hire right off the bat. So, our process has us looking at applications starting the end of August and September, and we go through all of the FAR forms.

The committee reviews the whole FAR book and, I believe, almost every one of our VAPs have actually come from the FAR, instead of through the direct app process, I think we have a particularly good eye for looking at people who we think have great potential, but may not be able to quite make that leap into the market. So, we write them, tell them about our program, and see if they want to be considered for our program. We have two ways to get applications direct applications, and through AALS hiring conference.

There certainly have been some times when people have been in the FAR book and also sent us an application, but it's interesting that a number of our VAPs actually didn't apply directly until we reached out to them. We then interview all of our VAP candidates just as we would a faculty candidate.

If they're going to be at the AALS conference, we interview them there. If they're not, we'll have a 30-minute Skype interview, just as we would do if we were at the AALS conference. After we do those interviews, we then invite our top VAPs candidates to campus for a regular faculty visit. We bring them in the night before to go out for dinner with some faculty.

The next day they meet faculty and do a job talk. The job talk is really important to us because, and I know this is one of your questions, that's one of the ways that we gauge their ability to teach, if they don't have a lot of teaching experience. After we've brought everybody in, the full faculty votes on the VAPs.

The full faculty is involved because, as I said, we have our VAPs teach the same courses that any faculty member would teach. Not a lot of programs do that, so it's really important to us that the whole faculty be able to see that person before they're teaching classes. After the faculty vote, we make an offer. One of the things that we have done so far, and I'm actually very proud of this, is we have waited sometimes five or six weeks to see whether or not the person we've made an offer will get a job offer in a regular tenure-track position. If they do, they don't need us, and I wouldn't want them to have to come to Stetson. So, we are able to wait and give the candidates plenty of time to see how they would fare on the market.

Q. I'm intrigued when you say that you find a lot of the candidates through the FAR process, and I know there are other fellowships that do this as well. Tell me, when you go through the FAR forms, what are you looking for?

A. I'm looking for people that have mostly practice experience and usually have a small number of publications. It's important to us that they have something published or a good work in progress other than something they may have written as a law student. We're looking for people that have some practice experience. Sometimes we receive applications from people who look great, but they only have one or two years of practice experience, and, in my mind, that's not sufficient to really be a good teacher most of the time. If we're trying to teach our students about how to practice law, it helps if our faculty actually have practiced law.

We also consider marketability, where the person went to school and/or how well they did in school. That includes what kind of honors they received in school and that sort of thing.

Q. Let's talk about the scholarly piece. You say that you want somebody who has ideally published something or have a draft. Do you know, and I've been asking this question a lot, how do they find the time in practice to write a scholarly article?

A. I always say to some of our VAP candidates, "Wow. I don't know how you did that." But honestly, they always do, and to be truthful those are the people who are most motivated to get in academia, and I think they are the ones that are going to be the most successful.

We've had candidates and VAPs who have come to us who have families, small children, husbands, wives, some who are single parents, and they always find time to get something written. So, that also tells me that this is somebody who is really motivated and is going to continue to publish. I think that is something that law schools will look for when considering potential hires. We want to make sure that they get a job on the market.

Q. And how do you gauge their teaching abilities? You mentioned the job talk. Are there other ways?

A. The job talk is one. If they have taught, and many of our VAP candidates have taught either as an adjunct or in some other area, we get all of their student evaluations. When we check their references, we ask about teaching abilities, but, just like with any faculty member you're hiring, some of the main ways you can see whether they will be able to communicate with students and maybe build a rapport is by watching how they communicate at the job talk.

Of course, with VAPs, we're looking at VAP candidates who usually don't have the same kind of experience as a person interviewing for a regular tenure-track position. In fact, we've had people interview for a tenure-track position, where the faculty didn't vote to hire them for a tenure-track position, but they asked us to consider them for our VAP program.

Q. You mentioned on the practice experience side, that two years may not be enough. How many years are you typically looking for? What's the minimum that you would consider, and then what do you find is the norm?

A. First off, this is a committee decision, right? So, different people on the committee might think differently. I would think most of us would expect at least two to three years in practice. Now, in my mind, it should be a little bit longer. Of course, I practiced for 12 or 13 years before I started teaching, so that's probably where my mindset is. I think some of my colleague are fine with just a couple of years. It really varies on who is on the committee.

Q. And do you have any preference for candidates in particular curricular areas?

A. We do. When we first started this 10 years ago, we didn't. We just looked for the best person, but now we always have needs at the law school depending upon people who are on sabbatical, or areas of practice we're trying to develop. Generally, it's a pretty wide array of classes. It might be business law, the UCC and commercial law, civil procedure, or criminal law.

It seems like in the last two years, our needs have been more in the business and commercial law area, and so we've been looking at those. I'm not involved in the process for this year, and we have a new dean, so I'm not sure what we will need, but generally we put in our ad the areas of expertise that we're searching.

Q. Oh, interesting. Okay, and is there any preference for candidates with PhDs? How does having a PhD factor into your process?

A. There's certainly not a preference. I suppose sometimes I even think, well, people with PhDs might already have a little bit more experience, so they might not need a VAP program as much. It wouldn't hinder or help you.

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

A. We do. We do that for a variety of reasons, and I suppose one of them is because we think there's a need for a lot more diversity in legal education.

Q. We've talked about a variety of things that might come into the decision making. Is there anything that comes into your process that I haven't asked about?

A. Those are really the areas that we look for teaching and publications. I'm trying to think if there's anything else. We look at publications. We look at honors. One of the things you had actually asked in a question that I had thought about, is that we also consider research agendas and why they want to teach.

Q. What are you looking for in that research agenda? How many projects out do you expect them to have planned?

A. I'm happy if they've planned out one really good one.

Q. As I've talked about this series on the blog is I've heard from candidates who perhaps didn't go to Harvard, Yale, or Stanford. They didn't do an elite clerkship, and they're wondering how they can stand out in the application process. What advice would you have for those candidates?

A. Honestly, a lot of the Harvard, Yale, Stanford candidates, in my mind, are going to get jobs on the market, so I don't look at them quite as seriously unless they apply directly to us. I will, but that's not high on my list for a VAP candidate. I guess what I'm really looking at, if they're not from a top five, or six, or seven school is really looking at their ability to publish and when, or where, or what type of articles they've published in addition to how well they did in law school. That will help them stand out.

Q. How many applications do you typically receive for one of your positions?

A. We don’t receive that many, maybe 50 or 60.

Q. How many people do you tend to interview in the screening interviews, and then on the call-backs?

A. We do not have a set number ... I know we've had days in DC where we've interviewed 10 candidates, or over 15. Occasionally we have had one room for VAPs and one room for tenure-track faculty in DC.

Q. Let's turn over to some of the nuts and bolts of the fellowship itself. Just to make sure I understand how it works, the fellows are there for two years, and you tend to hire every year? So, you have two in the building at a time typically?

A. I would say our goal would be to hire every year. Now, as I said, we have a new dean who came in this month. So, part of that will depend on her. There have been occasions where we had a VAP for two years who was here alone without another VAP, but we were trying to hire every year. If we can do that, that's great for the VAPs because the ability to have another person who has gone through the program a year ahead of them is enormously helpful. They tend to become a tight group, and get to know each other really well.
Actually, two of our former VAPs who overlapped like that are writing a business book, a textbook right now.

Q. I know them both, and I'm excited to see it.

A. Me too.

Q. Yeah, and are you comfortable sharing how much the VAPs are paid?

A. Yeah. I know it's not a lot, but it's certainly competitive with other VAP programs. We also pay complete benefits, and we give them housing. The housing is a really big deal because that adds quite a bit that they don't have to worry about. One huge advantage of Stetson is that we own an apartment building, and 20 or more houses right around the law school.

So, every VAP has received housing and that just makes it so easy because you don't have to worry about anything. If you need furniture, most of the times we're able to give you something that has furniture in it. We have housing for dogs, cats, children, husbands, wives, and so it's a pretty wide array of housing. To me, that's probably one of the best perks that we have.

Q. Oh, that's a great perk.

A. And they get paid, TIAA-CREF, health benefits, and a small travel budget. We expect them to go to the AALS in January for the meeting. We pay, generally, for them to go to the SEALS Conference, and we'll send them to one other conference that will help them in their professional capacity. Then when they go on the market the following year, we pay for all of that.

Q. Wow. Those are very generous benefits, I can say now having talked to more than a dozen of these programs.

A. Oh, I know.

Q. Do they receive funding if they wanted to hire research assistants?

A. Yes. They get research assistants, just like any faculty member.

Q. Okay, and are they expected to live near Stetson? Obviously, they have their teaching responsibilities, but could somebody live in Miami, or in New York, and commute?

A. No. I don't see how that would work; we want them integrated into the faculty and it is a full-time job. We sit in on their classes. We talk to them about teaching. We have, like I said, a whole cadre of people who will read papers, and help with advice. I think part of what's really important, to be honest, is to be part of the academic life, and get a taste for what that's like, so that when they enter into academia, it's not such a big, huge difference in terms of their previous job. Certainly, you could live in Tampa, but Miami or somewhere like that, just wouldn't work.

Q. Let’s switch over to how to make the most of the fellowship. Does Stetson have a regular colloquy series or speaker series that the VAPs attend?

A. Yes. We generally have a series of faculty exchanges with other schools that our VAPs attend. I think on one or two occasions we've sent VAPs, although I don't prefer that because I don't like them to go to other schools until they're really ready to give job talks. We also have several national speakers that all faculty are invited to attend.

Q. Who actually supervises the fellows?

A. It's been me, and this year it will switch over to Marco. I generally sit in on most of their classes during the first year and we spend time discussing teaching.

Q. That's amazing. Can I just follow up there and just say I almost don't know what to ask? Literally, you're in the room for every one of their classes in that first year? That's amazing.

A. Yes, and I will say the first semester, I try to do every single class. The second semester, if things are going well, I might not sit in on every single class. By the second year, it's more selective unless people are having issues, but again, it's one of the ways that I think our faculty feels comfortable with the idea that our VAPs are teaching any class that any other regular faculty member would teach.

It's good because we can talk about teaching. We also invite them to sit in on other classes. We have a number of different faculty who teach in a number of different styles, and they're welcomed into their classrooms. I always tell our VAPS, "What you can do in your two years here is develop your own style of teaching, so look at how other people teach. Sometimes it'll work for you. Sometimes it won't. Sometimes little pieces will."

But I think that's one other thing that's particularly helpful to them, and sometimes we'll have other faculty sit in on their classes, if they are going to be references for them when they go back on the market.

Q. Wow, and what type of feedback are you offering them? Is it after every class?

A. No. I would say it depends on them, unless there was a problem in class ... We had one person who didn't have a great class about the second week and was really upset. We talked the next day and I said, "We all have a bad class."

She turned into a fantastic teacher, but people need that confidence as well. I always try to explain, even if you've taught as an adjunct, it seems harder sometimes when you're teaching these classes full time and not always in your comfort zone. We’ve all had a bad class. Who hasn't had a class where you thought, "Oh, God. I wish that I could redo that one"?

So, it really depends on the VAP, but I've always tried to do it regularly, maybe every couple of weeks, unless they want to talk more. There have been occasions where we have talked more at the beginning while people are getting used to teaching in this environment.

Q. What assistance are you hoping to provide? What types of feedback specifically do you think is the most helpful in those early years?

A. In terms of teaching, or scholarship, or both?

Q. Teaching. When you sit in on the classes.

A. I'm looking to figure out ways to help them to impart information in ways that can be engaging, and also proactive in terms of not just sitting there and reading your notes, right? I have seen faculty members who will just literally read their notes in front of a class, and that might have worked 30 years ago. But I hope not. When, I started teaching 30 years ago it didn't work for me because I would have been bored out of my head. I think it's important to have an engaged class.

For example, one of my pet things is that, and this was something I had to learn, teachers need to learn to use the whiteboard, or blackboard, or whatever you have. If you're a person who uses PowerPoint, that's fine. If you're not, that's fine, but we get students who are a lot of different learners. There are visual learners. There are learners who will learn mainly from hearing. And some learners need both of those things. So, I try to help them think of ways that they can actually reach all of those students to the extent they can. Almost all of the VAPs who have come to us, at the beginning I've always harped on them using the board.

By the end, they usually say, "I can't imagine I ever wasn't using the board for something, or asking those sorts of questions." Trying to get them to see that it's perfectly okay to follow up, and it's also okay to say, "I'm not sure what the answer to that is. Let me think about that." A lot of times when you first start teaching, you think you can't say that, but I think you can, and I think it's important in how you do it, and students will respect you for it.

Q. I'll say I'm almost embarrassed to ask this question, but I'll say after 12 years of teaching, I still get a little nervous and self-conscious when somebody sits in on my classes. Do you find that the VAPs are self-conscious having you there? Do you think that that influences their teaching?

A. That's a good question. I suppose you would have to ask them because I don't really think they are. I sit off in a corner unobtrusively, as unobtrusive as I can be. I mean, I know what you're asking because I was in an LL.M. program 30-some years ago, and not only did they sit in on my class, they taped my class. They critiqued my class, and that was grueling.

Because I spend a lot of time getting to know our VAPs before I observe their classes, I hope they know that I'm only there to be helpful. It's just to try and help them think about ways to improve their teaching. I'm sure to some extent that's got to make you a little nervous.

Q. And I will say having asked that question, I think it's a tremendous resource and gift that this offers to the VAPs.

A. Well, the other thing, I tell VAPs is to, "Think about the two years here. You can make little mistakes that you don't want to make in your first permanent job, and we can fix them, and because somebody's observing, we can talk about it and say, 'Okay. Let's go back and think of a way to fix that.' And I'm not going to be writing a tenure report on you." I think that's a huge boon to be able to use that as a resource.

Q. Beyond the classroom visits, is there other assistance that the VAPs are given on their teaching?

A. Beyond the classroom?

Q. That's a big thing, but I wanted to make sure I caught anything else that might be out there.

A. I mean, we've helped them with picking books and that sort of thing, depending upon what they're teaching. There have certainly been times where we've had VAPs come in, and we've given assistance on different books, and pros and cons of different books. I'm trying to think of what else we could do and that I would have time to do.

Q. How are the courses that they're teaching selected? In other words, how does it come that they're teaching contracts or civil procedure or anything else?

A. We are generally looking for somebody who is teaching in a specific area. Recently has been in business law and commercial law. In the past we've had a need for contracts, crim law, civil procedure and business entities. We've tried to match our VAPS to their expertise and our needs before we’ve ever interviewed or hired them. They know when we make the offer what their classes are generally going to be.

Q. Let's turn over to the scholarly side. Are the fellows matched with a mentor, a scholarly mentor when they arrive?

A. We have a small group of faculty who always help mentor our VAPs. Let me think. Maybe about six or seven people that I can count on, and they're in every area you can imagine. We will read their scholarship and work with them. So, if somebody is in, say, the criminal law area, I'm going to ask Professor Ellen Podgor, who has worked tirelessly on this program and is a national criminal law scholar.

Additionally, we have faculty in almost all of the other areas. We also try to do more than have one person read scholarship because I think it's important to have people who aren't in your area read your work as well. Recently, it's been pretty easy because we've had a number of UCC-type people, and that's my area.

We also have helped talk through some topics for scholarships. I actually steered somebody away from one area of scholarship to a different area for them, because of the topic. I believe certain topics are more appealing to law review editors. It worked out really well because she got a great placement. Because of the wide range of people that we have that are intimately involved with the program, we've never really had a problem not having somebody who is in a VAPs general area.

Q. And what type of assistance would those mentors or other professors provide? You mentioned the feedback on the topic itself. What else are these people doing?

A. Not everybody will read every draft, but some people will read every draft and give feedback on that. We always will be able to find a few people who will read most every draft and give feedback. Plus, when VAPs go on the market, I require that they do a minimum of three to four job talks in front of faculty. After the job talks we all discuss what went well and what might improve the presentations.

A. I try to get different faculty to listen to the talks so that they can have people who don't know anything about the area, people who have never read their papers, and people who have read their papers. That way they get a wide range of feedback on their scholarship.

Q. Are they given any assistance in making connections outside of Stetson with people in their area of interest?

A. Yes. I think this is one of the things we are particularly good about. We expect them to go to the annual meeting of the AALS and SEALS, and we're good about taking them around and introducing them to people. Another thing that we do, that I don’t think a lot of VAP programs do, is that we send them to the AALS new law professors faculty conference in July before they start teaching. I think everybody has made lasting friendships from that meeting and lasting contacts.

Q. That's a great meeting. Yeah. We've talked through a lot of the details of the program. I'd love to step back for a moment. Imagining you had a candidate who had options who was deciding between Stetson's program and perhaps some of the other VAP or fellowship programs out there. What would you say to them about Stetson's program? What do you think makes it stand apart?

A. I think what makes us stand apart is we have 100% placement of every one of our VAPs. I don't think a lot of places can say that. I've had people here who had offers for a VAP or fellowship in legal writing. I tell them "If you want to do legal writing, that's actually what you should do," because although there has been a push sometimes for us to think about including legal writing, I have been very reluctant to do so. That is because I want to have as many tenure-track job possibilities as possible to place them in. There are fewer opportunities like that in legal writing.

Q. Let’s turn back to the job market. You mentioned that the candidates have the opportunity to give multiple job talks, which is fabulous.

A. And mock interviews, too. We generally do, again, a minimum of three. I try to do four to five.

Q. And are you coordinating this? Is there a committee?

A. No. It is just me coordinating it. This is part of the job of the person who runs the program to make sure all those cogs are happening. So, I coordinate all the job talks and all the mock interviews. Again, what I'm trying to do is consistently get different people because different people will have different questions, and different things that are important to them. I sit in on every job talk and every mock interview so that I can see them. Then I can say, "Look how much progress you've made here in terms of being able to answer different kinds of questions, either about your scholarship, or why you came into academia." I think it helps them. It can also let them see how they're doing better, or if somebody asks them something off the wall, I can say, "Don't worry about that. You're always going to have one of those people."

Q. They will. They will. I'm just curious, institutionally. Maybe I ask this question as an associate dean. These responsibilities that you've taken on sound like they must be an immense amount of time.

A. They are.

Q. How does this fit for you with all the other things that you must have on your plate?

A. It's something I'm committed to doing, and I get a course reduction in the spring, so they do give me certain benefits for being the person in charge of the program that have been very good. I feel like the administration has always taken that into account and been very supportive.

Q. Okay. Good. That was part of my question. I just thought, "Wow. It's a lot to take on." You mentioned that 100% of your fellows or your VAPs have placed in tenure-track positions. Were those all at U.S. law schools?

A. One person, when the legal education market was at its lowest, went to a tenure-track business school, and then after a few years moved over to a law school. So, they're all in tenure-track law school positions, yes, in the U.S. now.

Q. And do you happen to have a list of those people online, so if someone was trying to see that track record for themselves, they could look at it?

A. I don't, but if they asked me, I would get it. They always seem to find it. I always have candidates who have said, "Wow. I talked to so-and-so or so-and-so and I really want to do this program now." So, they always seem to find it.

Which is curious, now that I think about it, because they do. A candidate last year found one of our very first VAPs and spoke with him. Another reason I also really like to have a VAP overlap is so the person who is coming to interview for the VAP position can talk to our current VAP. That way they can just talk to the current VAP alone without us around, and get the real scoop on what they're thinking about the position.

Q. That's great.

A. I just don't happen to have a list of former VAPs online. I have it in my head, which is probably not a good place for it. So, maybe we can add that to our website

Q. While I have you on the line, I’d love to talk about some of the broader questions related to the rise of VAP and fellowship programs. As we know, it's basically a de facto requirement these days to have either done a VAP, fellowship, or a PhD. What do you think about that trend? With do you think are the benefits and what do you think are the costs?

A. I think the benefit for a law school is that they're getting people generally with some sort of experience and often it is inexpensive labor compared to a tenure-track faculty member. I think the cons, the things I worry about, is that I don't think all the VAP programs support their VAPs as much as we do. I think some of the VAP programs over the years had developed these programs as cheap labor.

Those really, really bother me because one of the things I will always tell a VAP if they have other possibilities in a VAP program or a fellowship is to talk to other people and find out what kind of support they are going to get. Maybe it would be a good program for you. If it is closer to your family or whatever, but make sure you're going to get the support.

If they are not going to get the support they need and they spend two years of their lives earning much less money only to find out they didn't get the support they needed, or a job that would be very unfortunate. So, I think what bothers me the most about them is worrying whether or not schools are using those programs for cheap labor or they're using them to really support new people and help them try to get into academia.

I was in the Temple LL.M. program 30 years ago. It was one of the few around, and that was instrumental in enabling me to make the move into academia, which is probably part of the reason our VAP program has been so important to me, I have tried to take all the good parts of the LL.M. program that I was in, and use those. But when I did it 30 years ago, I think literally there were a handful of these programs.

Now it seems like everybody wants to have a VAP or Fellowship, and some schools are doing them right. Don't get me wrong. They really are doing a great job. I've had a number of schools call me and ask what we do because they've heard about our program. And they try to establish programs that give a lot of support, but my biggest worry is that we're bringing people in with high hopes not knowing how hard it is to get a job in the academy right now.
I don't want to give people false hopes.

Q. What is the responsibility of these programs to try to open up law faculty positions to people from diverse or non-traditional backgrounds? Do you think these programs have a responsibility to do that, and how do you think they're doing if we judge them on that metric?

A. Yes. I think everybody has that responsibility, not just VAP programs. I think law schools have that responsibility because it makes a huge difference. I taught at another school where the diversity that we really needed were Native American faculty. When we finally hired a Native American faculty member, it made such a huge difference to our students. It's enormous to have those sorts of role models for our students. I can't really say how other VAP program are doing because I don't really pay much attention to them. I hope that they're thinking about it, but I really don't know.

Q. Yeah. Yeah. I don't know if you're heard this criticism, but you'll often see it on the blog. It's the concern that the VAPs or fellows may get so much help on their scholarship, that's obviously one of the benefits of these programs, but they may get so much help on their scholarship that it's then hard for hiring committees to know how much of the work and the ideas come from the VAPs or fellows themselves.

A. I think that's silly.

Q. In what way?

A. I think that's ridiculous, and I will tell you why. We give our VAPs the same help that we do any other faculty member. So, they give us a complete paper and we say, "Have you thought about this or that?" That's not any different than any other faculty member who is sending out articles for comments. I mostly write books now, but when I was writing articles, I sent them out to people and said, "Give me a sniff here. How is this looking? Do you have any other ideas?"

I hope any new faculty member, or even a senior faculty member, would try to get ideas about things they might do better. It's not like you're sitting there writing the paper for them. Nobody would have time or want to do that, certainly at this school.

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

A. In terms of the trade-off for law schools, I think it's great for law schools who have VAPs. When I went from practice to teaching, it was such a different mindset, and trying to learn to even handle that different way of working was difficult for me at first. I kept staring at my phone waiting for it to ring and it rarely did. So, I think the trade-off for law schools is great because they get people who know what academia is like and what to expect. They know that you have to be a self-motivator, and be on your own in terms of making sure you sit down, write, prep for classes and those sorts of things.

I think for the person in a VAP or fellowship that it is a difficult decision because they are spending two years of their life without a certain job at the end. They came from practice, so they are earning a lot less money. They're doing work that's very different, and if for some reason, at the end of the day, they don't get that job they want they've lost two years and they have to go back into practice.

Now, I've never had a VAP who had to do that, but I've often thought about that, and thought how hard that would be for the person. So, for the person coming into the program, I think she has to be very, very motivated, really want to get into academia, and realize that nobody can guarantee a job at the end. Part of it is being in the right place at the right time, where the schools have the right need.
And you can't predict that.

Q. Well, is there anything else that you want hiring committees or perspective candidates to know about Stetson's VAP program, or about the state of law faculty hiring more generally?

A. We've covered so much of it. I think the main thing is that I really hope that people who are either going into VAP programs or running VAP programs are doing it for the right reasons in terms of really trying to help people get into legal education. That's really important to me. When we first started this program, just between you and me, I argued against it.

Q. Oh, that's funny.

A. I was worried that we would wind up being one of those cheap labor schools, but as it turned out, our faculty and our administration have been incredibly supportive. I don't think any schools give more support than we do financially, even, in terms of where we send people. There may be a school that does these things, but I don’t know about it.

I also hope that schools realize that there are some really good people out there that can't afford, because of families or whatever, to move. They're having to move themselves, and possibly a family usually to a different place for one to two years in the hopes that they get this job. Some folks cannot do that twice—once for a VAP program and again for a permanent job.

I thought the vast majority of people that were being hired either had PhDs, or had been in VAPs or fellowships and it doesn't surprise me, but it worries me that we discount those that haven't had that experience, and I think we're probably missing some good people that way.

Q. Yeah. Yeah. I agree. Well, thank you so much, Candace. I really appreciate you taking the time to talk with me today.

Posted by Jessica Erickson on August 23, 2019 at 07:51 AM in Getting a Job on the Law Teaching Market, VAPS & Fellowships | Permalink | Comments (0)

Thursday, August 22, 2019

Popehat on free speech

Ken White (a/k/a Popehat), a criminal-defense and First Amendment lawyer, has a piece in The Atlantic exposing free-speech cliches. He is spot-on, as always.

Posted by Howard Wasserman on August 22, 2019 at 03:07 PM in First Amendment | Permalink | Comments (2)

Wednesday, August 21, 2019

Rosencrantz and Guildenstern vote Democratic (Further Updated)

• Isn't the President's problem that Denmark is finally governed by someone who can make up their mind (about Greenland not being for sale, if not about whether to kill Claudius). I am surprised (and somewhat disappointed) by the absence of Hamlet jokes in all of this.

• I have a different take on the President's "any Jewish person who votes Democratic shows great disloyalty." I don't think he was trafficking in the dual-loyalty stereotypes that Rep. Omar was accused of. Nor do I think he was accusing American Jews of disloyalty to the United States (at least more than he would say that anyone who votes Democratic is disloyal), although the latter risks giving crazies another reason to target Jews.

I think he was calling us "Bad Jews." But this shows his ignorance more than anything else. As Julian Zelizer put it, "Judaism has revolved around debate, disagreement and deliberation;" there is no official source defining who is a good or bad Jew based on their views and ideas. And certainly not an orange-tinted shaygets.

Update: The President reiterated his point today, saying "If you vote for a Democrat, you’re being disloyal to the Jewish people and you’re being very disloyal to Israel.” So he is saying "disloyal," because it is the only word he knows. But he is really saying we are bad Jews.

Further Update: Tying together this post and the news of the day: Denmark saved 90 % of its Jews during the Shoah.

Further, Further Update: Jordan Weissmann at Slate echoes my point that this is about labeling bad Jews. It would be an odd twist on the dual-loyalty trope to stay the problem is that Jews are insufficiently loyal to a foreign country. The problem is more tied to Jewishness:

[T]hey are implying that they are disloyal to their own ethnic interests, American interests, and even the almighty’s. It’s the 2019 version of calling liberal Jews a bunch of heretics. And we all know what happens to heretics in the end.

Posted by Howard Wasserman on August 21, 2019 at 10:45 AM in Howard Wasserman, Law and Politics | Permalink | Comments (8)

Using Reddit for Law School seminar?

A question for the Prawfs hive-mind:  Could it work well, for a seminar-style course, to create a (private, I assume) subreddit for class-related links, posts, discussion, etc.?  Or, are there excessive risks of distraction (or worse) from some of Reddit's more . . . colorful content?  Does anyone have any experience with this kind of discussion-mechanism?  (I am, I admit, trying to avoid having to learn how to use TWEN or Sakai for this kind of thing.)

Posted by Rick Garnett on August 21, 2019 at 08:53 AM in Rick Garnett, Teaching Law | Permalink | Comments (4)

Tuesday, August 20, 2019

MLS bans "political" signs

Deadspin destroys MLS's policy prohibiting "Using (including on any sign or other visible representation) political, threatening, abusive, insulting, offensive language and/or gestures, which includes racist, homophobic, xenophobic, sexist or otherwise inappropriate language or behavior." The league and teams have interpreted that language to prohibit signs protesting racism, fascism, etc., as well as signs using racist language.

The question should be who owns the stadiums MLS teams play in and the terms of ownership and operation of these facilities. If they are publicly owned and leased to the teams or if there is a substantial public involvement in the financing, building, and operation, it might trigger arguments that MLS teams act under color of state law and thus are bound by the First Amendment. A ban on political signs in a public space opened for expression should not survive constitutional scrutiny. Particularly where, as the Deadspin piece argues, MLS has encouraged "European-style, community-minded soccer fandom," where fandom and expression about community matters (beyond the team) are intertwined.

Posted by Howard Wasserman on August 20, 2019 at 10:23 PM in First Amendment, Howard Wasserman | Permalink | Comments (4)

National Conference of Constitutional Law Scholars 2020

The Rehnquist Center is pleased to announce the third annual National Conference of Constitutional Law Scholars. The conference will be held at the Westward Look Resort in Tucson, Arizona, on March 20-21, 2020. Its goal is to create a vibrant and useful forum for constitutional scholars to gather and exchange ideas each year.
Jack Goldsmith will deliver a keynote address. Distinguished commentators for 2020 include:
Mitch Berman
Joshua Chafetz
Vicki Jackson
Maggie Lemos
Melissa Murray
Jane Schacter
Lawrence Solum
All constitutional law scholars are invited to attend. Those wishing to present a paper for discussion should submit a 1- to 2-page abstract by October 1, 2019. All constitutional law topics are welcome, and both emerging and established scholars are strongly encouraged to submit. Selected authors will be notified by November 1, 2019. Selected papers will be presented in small panel sessions, organized by subject, with commentary by a distinguished senior scholar.
The Rehnquist Center will provide meals for all registered conference participants. Participants must cover travel and lodging costs. Hotel information will be provided as the date approaches. There is a conference registration fee of $200, which will increase to $250 after March 10, 2020. Registration fees will be waived for conference presenters and for students and faculty at UA Law. In addition, a limited number of scholarships are available to those unable to attend the event otherwise.
Please send all submissions or related questions to Andrew Coan: [email protected]
For logistical questions please contact Bernadette Wilkinson: [email protected]  
Andrew Coan, Arizona
David Schwartz, Wisconsin
Brad Snyder, Georgetown
REGISTER NOW: bit.ly/conlaw2020


Posted by Gerard Magliocca on August 20, 2019 at 08:17 PM | Permalink | Comments (0)

The Corporate "Trolley" Problem

Trolley_problemI'm amused by some of the reactions to a front page news story from the corporate world, the announcement a couple days ago by the Business Roundtable (signed by 200 CEOs) to the effect that it was amending its Principles of Corporate Governance to eliminate the statement that the "primary purpose" of a corporation was to serve its shareholders.  The CEOs want to reconcile the statement of principles to what they feel they actually do - namely, balance the interests of a number of corporate stakeholders, including customers, employees, suppliers, and communities.

This has stirred up some strong feeling, from Steve Bainbridge (aghast), the Council of Institutional Investors (also aghast), the Wall Street Journal (it's Elizabeth Warren's fault), and Andrew Ross Sorkin in the New York Times (it's about time).

I've spent a lot of time at the corporate C-level, and my amusement stems from the reality that any statement of principle like this one, like most mission statements, is so broad as to be meaningless when it comes down to the vast majority of real world decisions.  To fight about it, you need a zero-sum hypothetical, like the one Steve is marketing, posing the corporate equivalent of the decision to pull the lever and let either one person die or six people die from the onrushing trolley.  

Those are nice academic problems to ponder in an ethics class or in Corporation Law 101, but the reality is that the zero-sum choice between the shareholders and some other constituency rarely presents itself as in the hypothetical, just as people are rarely asked to choose between diverting the trolley or not.

To propose a metaphor here, a business that creates value is a goose.  If it's a really big capital intensive business, chances are it needed a lot of capital, and investors don't invest without the prospect of a competitive return - i.e. a piece of the goose.  But everybody wants a piece of the goose.  Customers want lower prices, and if the business has a unique value proposition, they won't get them.  Employees want higher wages.  Communities want taxes and support of local institutions.  Suppliers want higher prices.  Managing the business is the process of making the goose as big as you can so that there's something worth fighting over.

And here's the reality: management can rationalize almost any decision to favor any stakeholder in terms of the long-term return to the shareholders.  Nobody (except maybe old Chainsaw Al Dunlap, and he was disgraced) operates in the Bainbridge Hypothetical.  "Let's see here.  The Topeka Art Museum would like a $100,000 corporate contribution, but if we do that we can't use the cash to buy back shares or issue a dividend."

No, management looks at the dashboard with all dials measuring the value going out to customers, employees, communities, suppliers, and shareholders, and adjusts them. For example, we have that request from the museum. To return value to the shareholders, we need good employees.  Hence we might conclude, "It's hard to recruit to Topeka.  It will help if we have first-rate cultural institutions. To whom do we make out the check?"

I agree that the Business Roundtable release was good politics.  But it didn't change anything, except to lay bare the meaninglessness of principles like "primarily serving the shareholders." Anybody who has ever drafted an organizational mission statement knows that dynamic.  By the time you get past the short term tactics, long term strategies, and multiple goals of any dynamic organization, you end with pap like:  "XYZ Corporation will provide stellar returns to investors by focusing on innovative products, incomparable service to customers, and employees who are vested in the success of the organization."  Right.  WTF does that mean?

Since the original Business Roundtable governance principle was close to meaningless anyway (outside of the thought experiments that are the law professor's stock in trade), and this new statement doesn't change what was happening in the board room or the management suite, the CEOs who signed it really did offer up the sleeves from their collective vests.

Posted by Jeff Lipshaw on August 20, 2019 at 06:49 PM in Corporate, Current Affairs, Lipshaw | Permalink | Comments (3)

N.C. Court blows the mulligan

I was right that the withdrawal of the original opinion in the "flip-off-the-cop" case could have been for the majority to find a new basis to justify the traffic stop without having to accept that flipping the officer off was constitutionally protected. Which it did, although now with a dissent.

The court does recognize case law (it somehow missed the first time around) that the finger is protected and less likely to constitute fighting words when directed at an officer. But the  majority offers a new theory: The officer could not tell who the defendant was flipping-off: the officer (which would be constitutionally protected speech) or another driver (which somehow would not be; if the latter, the officer could have believed that the situation between the defendant and the other driver was "escalating" and, if left unchecked, might have become disorderly conduct. Importantly, the officer needed only reasonable suspicion, not probable cause, to make the initial stop and determine if the defendant was trying to provoke another motorist.

The dissent calls out the majority for, essentially, making up facts. The officer testified that he saw the driver wave at him, then turn the wave into the middle finger directed at him; there was no testimony about the situation escalating or about concern for a gesture at another car. The dissent insists that flipping a middle finger is protected by the First Amendment and thus cannot provide reasonable suspicion. Although he does not say it, that should be true regardless of at whom the gesture was directed.

Posted by Howard Wasserman on August 20, 2019 at 01:51 PM in First Amendment, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

Open Rank Faculty Position in Constitutional Studies at Notre Dame

Open Rank Faculty Position in Constitutional Studies

Department of Political Science

University of Notre Dame

The Department of Political Science at the University of Notre Dame invites applications for an open-rank full-time, tenure track/tenured faculty position in Constitutional Studies. The department seeks applications from promising and distinguished scholars with a research focus in American constitutionalism, which includes but is not limited to public law, the history and philosophy of American democracy, and American constitutional development.

The successful candidate will be a member of and offer graduate-level courses in the Department’s Ph.D. subfield in Constitutional Studies and core classes in the University’s undergraduate minor in Constitutional Studies, such as: “American Constitutionalism,” “Constitutional Government & Public Policy,” and “The History and Philosophy of Constitutional Government.”

The successful candidate will also contribute to Notre Dame’s thriving Program in Constitutional Studies, a center of research and teaching devoted to the production of distinguished scholarship and the cultivation of knowledgeable and civically-minded citizens. The Program directs the University’s growing 100+ student minor in Constitutional Studies and sponsors many lectures, seminars, and colloquia each academic year.

Application Instructions

All applicants are required to submit a letter of interest, a C.V., three letters of reference, and a teaching statement which includes a summary of any teaching evaluations available.

Apply by October 1, 2019 at https://apply.interfolio.com/66463

Posted by Rick Garnett on August 20, 2019 at 11:41 AM | Permalink | Comments (0)

Monday, August 19, 2019

The street is never the place to argue the appropriateness of an arrest. That is what our courts are for.”

This, from the NYPD Commissioner, is scary. And it is wrong. Given modern Fourth Amendment doctrine, limits (to say nothing of arguments to eliminate) the exclusionary rule, and the expansion of qualified immunity, the courts rarely conclude that an arrest was inappropriate. And even when they find the arrest inappropriate, they more rarely provide a remedy beyond the dropping of charges, which provides nothing for the collateral consequences of the improper arrest.

What the Commish really should have said is "Don't argue the appropriateness of an arrest. Just give in to police power."

Posted by Howard Wasserman on August 19, 2019 at 07:03 PM in Constitutional thoughts, Howard Wasserman, Judicial Process, Law and Politics | Permalink | Comments (0)

No, Slave-Based Cotton Plantations Are Not the Model for “American Capitalism”

I do not have any position on the oft-debated question of media bias, whether towards the left, right, or center. Putting aside the question of any general ideological leanings in the press, Matthew Desmond’s contribution to the New York Times’ “1619 Project” seems determined to test the intellectual laziness of Times readers with anti-corporate cliches against “unbridled capitalism.”

Desmond’s thesis is that “American capitalism” is modeled after the slave-based cotton plantation. “The cotton plantation was America’s first big business, and the nation’s first corporate Big Brother was the overseer,” Desmond writes, and the “culture [that] would drive cotton production up to the Civil War…has been a defining characteristic of American capitalism ever since. It is the culture of acquiring wealth without working, growing at all costs, and abusing the powerless.” How are slave plantations the model for modern American business enterprises? Matthew Desmond observes that slave plantations were (1) often large-scale economic enterprises (2) that used new managerial and accounting techniques (3) and took advantage of scale economies (4) while speculating wildly on the rising value of cotton, and (5) tightly controlled their labor force. Since modern American business corporations also are large enterprises reaping scale economies with modern managerial techniques that engage in speculation and monitor their cubicle dwellers, it follows that the “brutality” of latter is modeled on the brutality of those cotton plantations, QED.

It seems trite to point out the glaringly obvious, but Desmond’s analogy ignores one distinction between slave-powered enterprises and a modern corporate employment: Slavery prohibited workers from quitting and moving to a new job. This ban on workers’ freedom to choose their work made slavery distinctive in the 19th century, not speculation in cotton and not Alfred Chandler’s “Visible Hand” management techniques. Nineteenth-century Americans moved a lot, seeking the best monetary and psychic returns on their labor by quitting their current job and migrating to more rewarding work. Slavery threatened this system of free labor not just by barring the movement of slaves but by threatening the mobility of whites with slave-based enterprises’ competition. The propagandists of slavery understood what Desmond chooses to ignore: George Fitzhugh’s Sociology for the South (1854) rooted its defense of slavery in an attack on Adam Smith’s theory of free labor.

How could the Times publish a piece that attacks American businesses enterprises as analogous to slave-based cotton plantations yet never mentions legal impediments to labor mobility of the defining feature of the latter? Only, I think, the publisher’s confidence that their readers’ intellectual laziness would allow them to overlook leaps of logic just so long as the essay delivered an apparently “Left” moral. By overlooking the actual mechanism by which slavery operated, however, Desmond also overlooks the moral and economic ambiguity of labor regulation that defies easy categorization as “Left” or “Right.”

Consider Desmond’s diagnosis of American capitalism as “uniquely severe and unbridled” because it lacks legal protections for “workers’ rights.” As evidence of this absence of protection, Desmond notes that, compared to most OECD nations, American law does not much regulate temp work very stringently: On a scale of regulatory stringency ranging from 5 (very strict) to 1 (very loose), the OECD rates America at 0.3. Desmond regards this lack of regulation as a sign that America has taken the “low-road approach to capitalism.”

Desmond never pauses to consider that regulations of labor markets might possibly be harmful to workers by impeding labor mobility and protecting incumbent employees from competition by the under- or unemployed. Sweden, after all, is not ordinarily considered to be a hellhole of worker exploitation, but its OECD rating for regulation of temp work is 1.2, not much higher than the USA’s 0.3 rating when compared to the OECD rating for that workers’ paradise, Brazil (4.1). (New Zealand, another deregulating government with a decent reputation for workers’ welfare, gets an 0.9 from the OECD).

The source of Sweden’s low ranking is no mystery: In the 1990s, the Swedes reduced regulation of the employment relationship to facilitate labor mobility. (Sweden famously lacks even a minimum wage, relying on collective bargaining and contracts to set the price of labor). The result, according to the OECD, was a boost in worker productivity.

Someone who took seriously slavery’s legal impediments to labor mobility would not have so uncritically embraced regulation of employment as an unadulterated boon for equality. Some regulations of labor markets, after all, protect incumbent workers who enjoy legal entitlements like licenses at the expense of competitors. Those rules earn rents for incumbent workers at the expense of the excluded. Jason Furman, the Obama Administration’s Chair of the Council of Economic Advisers, championed elimination of occupational licensing as a remedy for income inequality. David Schleicher has written a scathing indictment of the elaborate network of rules that prevent workers from migrating to cities where their labor would earn the highest wages, a network that include not only occupational licensing but also zoning rules that cut off the supply of new housing. Some economists believe that those zoning rules’ impediment to worker mobility is responsible for a large share of present inequality of wealth, by fencing workers into low-wage regions.

Someone who took labor mobility seriously might conceivably draw a loose (albeit hyperbolic) analogy between 19th century law of slavery and the zoning and occupational rules that fence workers into low-wage areas. Whatever the force of Desmond’s indictment of modern business, however, it gains nothing from his oddly analogizing modern corporate employment to a nineteenth labor system that, far from being “unbridled” in its “capitalism,” relied on elaborate rules and state violence to harness Black labor to the cotton field.

Posted by Rick Hills on August 19, 2019 at 02:25 PM | Permalink | Comments (8)

Sunday, August 18, 2019

Malcolm Gladwell has chutzpah (too bad he does not know what it means)

You would think that after the first seven episodes of this season of Malcolm Gladwell's podcast, I would have learned my lesson. But the eighth episode was titled Chutzpah v. Chutzpah, so my interest in all things Jewish got the better of me.

The episode is about . . . I am not entirely sure.

Points of discussion include:

    • The difference between chutzpah as we use it "in America" (pronounced KHUTS-puh) and chutzpah as used in Israel (pronounced khoots-PAH). He says, interviewing his Israeli-born neighbor, that the former means audacity or nerve or guts, while the latter indicates a lowness or shamelessness.

    • Lots of anecdotes: 1) The creator of "Hogan's Heroes," Al Ruddy, walking into a meeting with CBS chair William Paley with no prior experience or qualifications, pitching a comedy about Nazi soldiers by acting out the roles and casting Jewish actors as Nazis; 2) Mafia boss Joseph Colombo founding the Italian-American Civil Rights League to counter stereotypes of Italians as criminals, extorting NBC to broadcast the Columbus Day Parade by threatening a hit on Johnny Carson (Carson had hit on Colombo's wife), and attempting to derail "The Godfather" until the producer, Ruddy, agreed to remove the word "mafia" from the script (which appeared only once in the original script, in any event).

    • Israel is a low-hierarchy, in-your-face society. This explains Abraham bargaining with Hashem over Sodom and Gomorrah, the Hebrew word "nu" as a conversation-rusher (a kind of "go on" or "get to the point already"), and Gladwell's neighbor confronting school administrators about closing the school because of snow (having the kids at home on these days made her life difficult).

    • Oral argument in the appeal of the Flores litigation, in which the DOJ lawyer argued that toothbrushes, soap, and decent sleeping conditions are not within the ordinary meaning of "safe and sanitary."

It does seem worth deconstructing how much is wrong here.

1) Gladwell never mentions that chutzpah originates in Yiddish; he repeatedly talks about how the word is used "in America," as if it is an American concept. American English absorbed the word and concept into Yinglish. That explains the different pronunciations. Yiddish places the emphasis  on the next-to-last syllable of words (SHA-bos); Hebrew places the emphasis on the last syllable of words ("sha-BAHT). English also places the emphasis on the next-to-last syllable, which is why Yiddish words slide into English so well. It makes sense that modern Hebrew (a language that did not exist until the late 19th century) would incorporate the Yiddish word, but with Hebrew pronunciation. So we are dealing with the same word, but in different languages having different pronunciation rules.

2) The bigger problem: I am not sure Gladwell understands what chutzpah means. Gladwell's premise is that the Al Ruddy story illustrates what we "in America" call KHUTS-puh, but would not be what Israelis call khoots-PAH; only the Joe Colombo stories qualify as the latter.

But would a Yiddish speaker call what Ruddy did chutzpah? Leo Rosten's "The Joys of Yiddish" offers several illustrations of chutzpah--the boy who kills his parents and pleads for mercy because he is an orphan; the man who shouts for help while beating you up; and the beggar who, given a choice between free challah and free black bread, chooses challah, and when told that it is more expensive, says "it's worth it." All reveal not simple audacity or guts, but shamelessness and self-servingness, perhaps with a touch of irony thrown in (what Gladwell says is khoots-PAH but not KHUTS-puh).

None of Rosten's examples is analogous to what Ruddy did. He was ballsy and audacious, because he had no business being in that room pitching a TV show. It also was potentially offensive for its time (this was a different era of comedy two years before "The Producers"), even though everyone in the room was Jewish. But it lacked that irony. Colombo, on the other hand, was a chutzpanik. Rosten would have been happy to include "Italian criminal forms group to protest media portrayal of Italians as criminals" in his definition.

In other words, KHUTS-puh (Yiddish) and khoots-PAH (Hebrew pronunciation) are the same: Neither would include Ruddy, both would include Colombo. Now some might disagree with this and argue that both do qualify. Fine. Then we are debating the meaning of one word (however pronounced), not the difference in meaning between two words.

3) Suppose Gladwell's premise is right: English-speakers in the U.S. would talk about Ruddy as chutzpah (even if Rosten would not), while Hebrew speakers in Israel would not. But that suggests that the Yinglish chutzpah has evolved and broadened to cover all instances of audacity or nerve or guts, without the shamelessness. Then, as my wife pointed out, we have a nice illustration of cultural appropriation, how a culture or language alters a word or concept by absorbing it. The lesson is not that Israel has a different word than we have "in America;" the lesson might be that American English altered or expanded the meaning of a word taken from a different language, while Israeli Hebrew maintained the original meaning. So talk about that. Or at least acknowledge a different explanation for the phenomenon.

4) The discussion of nu has the same problem. Gladwell describes it as a uniquely Israeli verbal push to move a conversation along. But, again, the word was part of Yiddish, was spoken in Eastern Europe, and was brought to America by millions of Yiddish-speaking immigrants a century ago. What is interesting (but not mentioned in the podcast) is that nu has not been absorbed into Yinglish as has, for example, oy vey. It thus died off as people stopped speaking Yiddish. Meanwhile, Hebrew has maintained the word.

5) As for his neighbor's tangles with the school administration over the inconvenience of snow days: I would describe them as obnoxious, inconsiderate, and selfish, to say nothing of clueless as to how broader institutions and the social compact operate. I can imagine the "are you kidding me" conversations school administrators had about her phone calls.

But not chutzpah. However pronounced.

I promise this will be my final Gladwell-related post. I think I am hate-listening at this point.

Posted by Howard Wasserman on August 18, 2019 at 09:32 AM in Culture, Howard Wasserman | Permalink | Comments (7)

Demerara Rebellion Day: Figuring out how to commemorate the British Anti-Slavery Movement

There are lots of obviously apparent reasons why Americans seem to know next to nothing about the British Empire’s war on slavery. (Americans, after all, do not know much about their own history). One apparently trivial factor, however, might be the lack of an obvious beginning or ending date. At some moment between Lord Mansfield’s Somerset decision in 1772 and the anti-slavery treaties following the 1815 Treaty of Vienna, the British government gradually made the elimination of slavery throughout the world a central military and diplomatic goal. There is no discrete moment defining this campaign which, in any case, proceeded in fits and starts, deflected by other more self-interested motives like economizing on naval expenditures.

In the interest of promoting awareness of what I regard as one of the world’s great social movements, I am nominating today, August 18th, as a date worthy of holiday recognition. On that date in 1823, slaves of the sugar island of Demerara launched a rebellion inspired by an order from British Colonial Office imposing various limits on the sugar plantation owners’ mistreatment of slaves. Despite the sugar lords’ efforts to suppress the news, word leaked out. Jack Gladstone, a Guianese cooper and slave owned by Sir John Gladstone (yes, the father of the future Liberal Prime Minister), organized an uprising to enforce what the rebels mistakenly took to be an order abolishing slavery. The resulting rebellion broke out on August 18th at dozens of plantations involving thousands of slaves. The colonial militia and troops brutally suppressed the uprising in a matter of days, but the viciousness of the masters’ retaliation (hundreds of slaves executed after laughably unjust trials) so alienated British public opinion that the flagging anti-slavery movement in England was revived. At its center was a mass boycott of sugar consumption and an Evangelical-led petition movement that culminated in the abolition of slavery throughout the British Empire in 1833.

The Demerara Rebellion and its aftermath strikes me as worthy of special remembrance, because it combines the three jointly necessary but individually insufficient aspects of social movements that are so familiar today but arguably were invented jointly by enslaved Africans and the British Evangelicals in the 1820s: “Top-down” bureaucratic nudging; “Bottom-up” networks of apparently powerless people; and ideological mass-mobilization of consumers and voters. These are the hallmarks of our social movements today, and they are all presaged by the British anti-slavery campaign triggered by the Demerara Rebellion.

1. Bureaucratic insiders

The Demerara Rebellion was triggered by an order from the Colonial Office protecting the rights of slaves to religious worship and limiting the power of masters to use corporal punishment in the field. These reforms were ostensibly minor and, absent some enforcement mechanism, were likely to be ignored by the sugar lords. They were, however, part of a strategy pressed by bureaucratic insiders associated with the “Clapham Sect,” a social network of British evangelical reformers with personal and family ties to the elites who ran the Foreign Office. The idea was to create a legal framework allowing missionaries to visit slave plantations, reporting back to the British public about the misery that they witnessed. Such eyewitnesses were essential for mobilizing public opinion against sugar lords who, like Sir John Gladstone, had often never visited their plantations and professed that they maintained humane labor practices.

The strategy of these bureaucratic insiders in the Colonial Office back in the 1820s was similar to the role of, say, DOJ lawyers and HEW bureaucrats in 1967: Use technical rules (regulations implementing ESEA and Title II of the ‘64 Civil Rights Act in ‘67, dispatches implementing various Parliamentary humanitarian mandates) to overcome massive local resistance to racial equality. The obscurity of the rules made them all the more potent: Sugar Lords, potent in Parliament, had little traction in the Colonial Office, and white supremacists with seniority in Congress had less pull on HEW’s Office of Education.

2. Networks of the apparently powerless

Obscure bureaucratic maneuvers by themselves do not create a social movement, but they can help inspire one. The Colonial Office’s dispatch, arriving at the island of Demerara on June 6th, became the catalyst for a slave uprising. Despite apparently constant surveillance by the slaveowners, the slaves managed to create elaborate networks for communicating news from house to field. (Those church services protected by the colonial office’s order was one important source for communication). Jack Gladstone’s coordinating a simultaneous rebellion of thousands of slaves on dozens of plantations was an extraordinary logistical feat of surreptitious organization.

Yet that rebellion, without outsiders acting as witnesses and consumers and voters ready to be aroused by injustice, would have achieved little. There had been numerous slave rebellions in the Caribbean from the Jamaican Marroons, the Guianian Berbice Rebellion, and the Haitian Revolution. Several were more militarily successful than the Demerara Rebellion, but none sparked an anti-slavery movement that transcended the particular grievances of the rebels. (Toussaint Louverture, the leader of the successful Haitian revolution, was, in fact, a slave-owner himself prior to the rebellion and only belatedly converted to the anti-slavery cause of the Black Jacobins. He never attempted to create a social movement against slavery as such, and his support for the Jacobins’ cause was rewarded with Thermidorian reaction — death in Napoleon’s prison).

3. Ideological boycotts and petition drives by consumers and voters

The Demerara Rebellion, by contrast, sparked a massive social movement from an audience of consumers and voters outraged by reports from the London Missionary Society and its allies in the Colonial Office. The chief witness, Reverend John Smith, had been arrested by the slave lords and died of tuberculosis in prison on Demerara. Wilbur Wilberforce and his allies had just established the Anti-Slavery Society to abolish slavery throughout the British empire; the Society publicized Reverend Smith’s martyrdom and the mock trials and brutal execution of the rebels, all of which sparked a massive anti-slavery campaign in England. Middle-class activists kept alive their sense of participation in a mass movement not only by boycotting slave-produced sugar and any shop that sold slave-produced goods but also by buying tea sets with anti-slavery slogans and circulating thousands of petitions calling for the abolition of slavery in the colonies.

Again, the 1820s evangelicals were pioneers, using mass consumption to enlist people geographically distant from a struggle to feel like they were part of a movement bigger than themselves. That technique is commonplace today, and we typically associate it with secular liberals, but our buyers of Fair Trade Coffee and boycotters of sweatshop-made shoes are imitating, consciously or unconsciously their evangelical predecessors.

The anti-sugar mass movement paid off in Parliamentary elections. The 1820s and 1830s saw near-constant legislative inquiries into the conditions on slave plantations. Networks of missionaries spread out in the sugar islands to monitor compliance with bureaucratic rules and report back on oppression of slaves. In 1831, Samuel Sharpe, an enslaved Baptist minister, organized a strike of plantation slaves in Jamaica. The subsequent suppression of the strike by plantation owners was witnessed by Sharpe’s missionary allies whose reports sparked two Parliamentary inquiries leading directly to the Abolition Act of 1833, banning slavery throughout the British Empire.

I do not know whether or not the Demerara Rebellion ought to have pride of place in the long sequence of events that led to the Parliament’s abolishing slavery in the British Empire. That abolition, after all, encompassed a lot of important dates: It stretched across a century, from Thomas Clarkson’s 1785 Essay on Slavery to the anti-slavery cruises of the British Navy’s African Squadron up through the 1890s. But I cannot think of any date better than August 18th to commemorate one of the greatest social movements in the last two centuries of revolutions.

So here’s hoping that someday people will commemorate Demerara Rebellion Day with at least as much enthusiasm as Bastille Day. The latter is more famous, of course, but is its legacy more of an egalitarian boon? Bastille led to a drearily familiar model of Revolution as Purge: Not just the purge of people (e.g., the Terror) but also the the self-conscious remodeling of all social customs in Year One only to have a man on a horse — Napoleon, Stalin, innumerable caudillos and generalissimos — ride in to purge the purgers and impose a brutally rationalistic order at the hands of a secret police without much equality beyond the shared silence of the equally cowed. By contrast, the patient bureaucratic sapping of oppression from the center, the carefully coordinated uprising by the enslaved at the periphery, and the response of boycotts and petitions from rank-and-file consumers and voters — these seem to me truer hallmarks of successful egalitarian movements. Such techniques were invented by church-going slaves and their allies among British Quakers, Baptists, Methodists, and Evangelical Anglicans who are now mostly forgotten even though their techniques live on. Spare them a thought, then, today on Demerara Day.

Posted by Rick Hills on August 18, 2019 at 09:00 AM | Permalink | Comments (9)

Saturday, August 17, 2019

Hit Man Podcast

iHeart Radio has a new podcast titled Hit Man. It 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 (6)

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, VAPS & Fellowships | Permalink | Comments (22)

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 (4)

N.C. court recalls opinion on the bird (updated)

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.

Update: I was briefly Twitter-famous last week (despite not being on Twitter) when people found this post and criticized me for "bemoaning" the restoration of rights caused by Twitter saying mean things about the decision. Other then piled on to suggest I was trying to take away their right to criticize the government. And one commenter here--in a more-thoughful and less-character-constrained way--suggested that sometimes this is necessary, if imperfect, to snap courts out of the assumption that every case is the same and routine.

I see the latter point. But if rights can  (in a tweeter's view) be "restored" by Twitter pressure on a court, then rights can be taken away by Twitter pressure on a court. I cannot remember the judge or the case. But in 1995, a judge in the S.D.N.Y.  suppressed evidence in a criminal case, saying that a person running upon seeing a police officer does not give probable cause to stop, because people of color in New York have learned from experience not to trust the police and to avoid all interactions. The judge was lambasted and threatened with impeachment; he withdrew the opinion (not sure if it was in response to a motion to reconsider) and held the search was valid. Imagine the Twitter response, had it existed.

Posted by Howard Wasserman on August 15, 2019 at 01:11 PM in First Amendment, Howard Wasserman | Permalink | Comments (4)

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 (6)

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 (883)

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, VAPS & Fellowships | 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 (8)