PrawfsBlawg

MLK and Copyright

I just finished reading Jonathan Eig's excellent new biography of MLK. As you probably know, the King estate retains the copyright to his written works and is very protective of them. Thus, I was curious to see how Eig dealt with that issue.

The answer is that the parts of the book that discuss MLK's famous speeches do so in an elliptical way. Moreover, Eig goes out of his way in the notes to explain that he did not rely on the written texts. For instance, his comments on the "I Have A Dream" speech are drawn from a Motown recording of the March on Washington for Jobs and Freedom, which is apparently the best recording of the speech.

I don't think that the King estate's demands for tight control over projects (like the movie "Selma") are doing significant harm to our understanding of MLK, but that's a hard thing to evaluate. 

Higher Education and Institutional Pluralism

About a million years ago (well, 15, but still . . . ) I posted here at Prawfsblawg about then-AALS President John Garvey's theme-for-the-year of "institutional pluralism."  (See also here and here.) Confirming, I guess, my one-trick-pony status, here is a short essay, posted today at Law and Liberty about institutional diversity in higher education.  Here's just a bit:

Higher education in America, it is often observed, confronts serious challenges, even crises. True, many of the world’s leading research institutions are in the United States. And yet: Tuition-costs are soaring; the footprints and portfolios of human-resources, student-services, and other administrators are expanding; tenure-track faculty positions (especially in the humanities) are disappearing; reliance on (often exploited) adjuncts, graduate students, and short-term instructors is increasing; and regulatory burdens are growing. . . .

Arguments about diversity in higher education are, of course, both unavoidable and highly charged. Generally, these debates have to do with the use of race in the admissions practices of elite institutions or with the dramatically one-sided make-up of these institutions’ faculty, administration, and leadership. A crucial dimension of the diversity problem, however, is less noticed: In a nutshell, we should be concerned about not only intellectual diversity within institutions, but also meaningful diversity among institutions, that is, what John Garvey, the President Emeritus of the Catholic University of America, called “institutional pluralism.” . . . 

Our First Amendment institutions will do their important jobs less well, and fulfill their role less well, if they are all the same. The beautiful Gothic cathedrals, to avoid collapsing, employ a variety of strengths and supports; we all admire the windows, but recognize also that the flying buttresses and pointed arches do necessary work. Just as ecosystem is healthier, and an agricultural enterprise is more sustainable, if it is diverse and not a monoculture, so the landscape of higher education is better and healthier if it is characterized by institutional pluralism rather than sameness.

Our colleges and universities should not all look the same; they should (within reasonable bounds) have varying curricula and programs; they should develop different specialties and sub-fields; they should cultivate distinctive missions and aspirations; they may take on a range of characters; they should come in multiple shapes and sizes. Institutional pluralism means, among other things, that our colleges and universities may be public and private, big and small, research-focused or liberal-artsy. We can, and should, have land-grant institutions, historically Black institutions, single-sex institutions, and military institutions. Some can focus on music and the arts; others on engineering and technology. Some may be animated by religious traditions and aims, others by environmentalism or multiculturalism. An institution’s distinctive mission will shape its curriculum, its policies, its hiring, and its student body. And, these differences will, taken together, strengthen expressive freedom’s necessary infrastructure. . . .

What Did the Justices Say They Would Do?

The New Yorker only publishes a few letters each week, so submitting one is always a long shot (and they only respond to the ones they are going to use). So here is my letter from a few weeks ago, responding to Jeannie Suk Gerson's piece on "Justices and Money," in which she made a small but (in my view) important mistake:

Jeannie Suk Gerson mistakenly reports that the justices of the Supreme Court voluntarily agreed, in 1991, to “follow the ethics rules” and abide by the “Code of Conduct” adopted by the Judicial Conference of the United States (“Justices and Money,” May 22). In fact, the justices’ 1991 statement applied only to the gift and outside income provisions of the Ethics Reform Act of 1989. The Court has steadfastly declined to adopt, or modify for its own circumstances, the Code of Conduct for United States Judges, as declared by Chief Justice Roberts in his 2011 Year End Report and reaffirmed by all nine justices in their Statement of Ethics Principles and Practices, recently provided to the Senate Judiciary Committee. The distinction is important because the Code of Conduct, adopted by the Judicial Conference in 1973 and applicable only to the lower federal courts, covers many issues beyond gift and income disclosure, including political activity, soliciting charitable contributions, public comments on pending or impending cases, ex parte and leaked communications, and, as increasingly appears necessary, avoiding “even the appearance of impropriety in all activities.”

Closing a University

Today's Chronicle of Higher Education has the sobering story of Finlandia University, calling it "The College that Mortgaged Everything." It was actually worse than just mortgaging all of its real estate and buildings. It turned out that successive administrations had encumbered all of its assets multiple times, making the debts impossible to refinance or even untangle. Finlandia therefore shut down on short notice, informing faculty -- most of whom had elected to spread their nine-month salaries over twelve months -- that they were unlikely to receive payments for June, July, or August.

Of interest to lawyers is the notice that accompanied the bad news:

“While the University’s delayed payment may constitute a valid wage claim, if employees hire attorneys to pursue these claims it will only make the dissolution more expensive, leaving even fewer funds available to make employees whole,” he wrote. “Civil actions by employees could delay the payouts and reduce the total amount that the University can pay to employees. Please remember that even if various employees are able to obtain judgments ordering the University to pay further compensation, the cost of the litigation will have reduced the total amount of funds available to employees, and a judgment against an organization with no funds can’t be enforced.”

Is this a real-life prisoners' dilemma? Everyone is potentially better off without litigation (assuming the administration is being relatively straightforward), but the first actors, or their lawyers, might be better off immediately filing suit and pursuing a quick settlement while there is any money still in the bank. There are probably some bankruptcy and secured transactions complications that neither I nor the CHE reporter have considered.

The paywalled story is here.

Saturday Music Post - God Bless the Child

"God Bless the Child" was written by Billie Holiday and Arthur Herzog and initially released in 1942 on Okeh Records, the jazz and blues (then sometimes called Race music) subsidiary of Columbia. Holiday recorded it two more times for mainstream labels, Decca (1950) and Verve (1956). It was also a huge hit for Blood, Sweat & Tears in 1968. Diana Ross sang it in the 1972 Billie Holiday biopic "Lady Sings the Blues."

The clips are at The Faculty Lounge.

JOTWELL: Levy on George, et al. on SCOTUS Clerks

The new Courts Law essay comes from Marin Levy (Duke), reviewing Tracey E. George, Albert Yoon, & Mitu Gulati, Some Are More Equal Than Others: U.S. Supreme Court Clerkships, an empirical study of who clerks for SCOTUS, where they come from, and where they go.

Boudin, Berkeley Launch Center for the Study of the Matthew Effect

The actual name and purported goal of the center are different, but believe me, the interesting object of study here is the Matthew Effect. The fortunate Mr. Boudin will join countless other holders of sinecures at major law schools and more or less non-profit organizations. 

(Incidentally, this isn't the draft political post I mentioned earlier today. I deny that this is a political post. Noting the phenomenon by which social class, fame, connections, appropriate political views, and a completed or failed political career, or some combination thereof, ensure that one will always be gainfully and/or conveniently employed by fancy organizations is not political; it's merely descriptive. Cincinnatus was a sucker.)   

What is the Court planning for § 1983 "and laws"

My SCOTUSBlog case for this term is Health & Hosp. Corp. v. Talevski, asking the Court to reconsider precedent allowing enforcement of Spending Clause enactments through § 1983 "and laws" actions. The Court held arguments on November 8 and still has not issued an opinion. My reading on the argument was that there was no appetite for doing that. But the long delay suggests either 1) they are going to do it or 2) someone is writing separately to argue why they should do it. The case is not, all things considered, that controversial; I would not expect the Court to take seven months (and counting) or to hide it in the end-of-Term document dump.

The delay has created bigger problems for the in-progress third edition of Understanding Civil Rights Litigati0n. The discussion of "and laws" actions covers the state of the law from 1980 (Maine v. Thiboutot) through summer 2023. It includes a paragraph that there is "doubt" about § 1983 and Spending Clause enactments, mentioning that the Court granted cert to decide the issue in Talevski this Term. I wrote that as a placeholder in January, expecting to change it during the editing process. But the final round of of galley edits passed; the only remaining piece of the process is indexing, if we hope to have the book available in August. If the Court does something crazy, it renders several pages obsolete (how obsolete depends on how crazy), with no opportunity to correct it.

We could say the same about Mallory and establishing general personal jurisdiction through business registration, argued the same day as Talevski--this is a long time to spend on this case, suggesting division and someone doing something wild.

A Few Thoughts on Our Delightful, Antiquated Enterprise of Blogging

Brian Leiter writes today in his indispensable (?) Leiter Reports blog that "While Twitter has taken a toll on blogs generally, this one is still going remarkably strong, averaging well over three million unique visitors per year, so it seems a good time to begin phasing into blog retirement while it's still widely read and influential." He adds that it will be a "multi-year phasing." It occasions a few thoughts on the nature of the enterprise. The first, quite simply, is that I am sorry. Not being a philosopher, my reading of that blog is a little like watching a game of inside baseball while not knowing the sport well. But many posts are for more or less general readers, and they are interesting and spirited. Indeed, I wish his law school blog was more like his philosophy blog, that it more frequently tilted against whatever he may see as failings in our own corner of the academy. But it has long been a valued daily read, and if and when the time comes for it to go I shall miss it. (I suppose I could always read the Daily Nous. But I jest.) 

Second, I continue to believe the legal-academic blog fills a potentially useful space between social media and full-dress academic writing. The most important way it does so is not, as it once was, in terms of immediacy, but in terms of length: not everything worth saying is worth saying, or can be said, in 280-character stretches. (In my view, nothing worth saying can be said in 280-character stretches.) The second value it serves is its availability as a space to write about the academic life. I find academia greatly interesting as a sociological, anthropological, literary, and economic enterprise. It's in the nature of things that most articles don't say much that's new or terribly interesting, novelty claims notwithstanding. The job of the scholar as reader is thus largely one of sorting and winnowing. But how we write (or teach, or serve, or lateral, or govern, or fail to govern) I find endlessly fascinating. And all this has a direct relationship to what we write, what we don't write, often enough to why we write, whether and where this writing is published, and how it is received. It is a truism, albeit one that is selectively recalled and applied, that judges are political actors, affected by their context and bias, by the cases that come before them or are ignored or avoided, by the means of production of both judges and cases, and so on. Of course the same is true of legal scholarship, among other things we do as academics. Selectively applied, as I say. I hear a great deal about Koch money, for example, and almost nothing about Proteus Fund or Soros money; writing in non-conservative spaces about the influence on the legal academy of left-liberal heirs and plutocrats tends to be acceptable mostly if it's devoted to the past, such as writing about the influence of the Ford Foundation on clinical legal education in the late 60s and early 70s. But our choices are influenced by much more than money, and I would like to see more writing about how fads, fashions, the love of fame, and other factors leave their fingerprints all over what we do, rather than treating our work as if it emerged fully grown from Zeus's head.

There's room for more full-length writing about this in legal journals. But it's understandable that most of us, most of the time, prefer to write scholarship about the ideas themselves and not about their production. The latter can seem self-indulgent, and in any event most scholars are more interested in ideas themselves, whatever the sources of their encouragement, mediation, and corruption, than about the production of those ideas. We're not really a reflective or introspective bunch. (Given our long interdisciplinary trend, one would think there would be more room to hire and publish sociologists and anthropologists of the legal academy. But those are not the most common fields we hire from, and most of those we do hire write about the world outside their own gates. In raw numbers we probably have more people qualified to study the nature of our own enterprise than ever before, but the high-water mark of writing of this sort passed when the Crits fell out of favor.) It also might seem rude or perilous--another way in which the behind-the-scenes element affects what is seen in print. And there's yet another factor that suggests the sociological/means-of-production influence on what we do as legal scholars: such writing would have to be seen as interesting by the law students to whom we have, oddly, delegated the job of making publication decisions. Moreover, a scholar who went down that path might well be cautious or selective, given that the students themselves would surely be a subject of study, sometimes with unflattering results. (Mutually unflattering results, since student choices reflect the willingness or unwillingness of faculty to do something about them.) That kind of timorousness doesn't vanish because the space for writing is the blog--or, for that matter, Twitter, where the audience is larger and the timorousness is if anything much greater--rather than a law journal. Nevertheless, one sees more writing about these kinds of subjects in blogs than in law reviews, and I would miss it if it vanished.

Third, for me at least, one generally unstated reason to keep Prawfs going is our departed, murdered friend Dan Markel. I like it that his baby is still here. Not that I doubt Dan himself would have taken to Twitter eagerly and over-enthusiastically. But even if that makes Prawfs itself rather a historically contingent artifact, I still feel the desire and obligation to keep it alive, long past that hoped-for time when the last culpable Adelson is in prison.

Finally, I'd like to add a word to what Howard wrote on this blog a few weeks ago about legal blogs (and the legal academy generally) and political diversity and polarization. Howard asked whether Prawfs "does okay on this" and answered "yes," with room for improvement. I was sympathetic to this view, which was discussed entre nous before appearing in a post. I still am. Granted, talking about diversity among a group of small-l liberals ranging in their views from A to C may be like describing M&M's as varied because there are so many colors. But within that category, there are political and subject-matter differences among us. We don't all write with the same frequency, and that matters. But Howard's posts are different from mine, even apart from questions of economy versus excessive length, just as Howard's posts are different from Rick's and Rick's are different from other-Rick's. 

That said, I don't think I fully appreciated at the time the importance of what we write about from our varied perspectives, and the dynamic that is created once anyone writes about politics. If a person with one set of views chooses to write a post that is openly political--or, more often, a post about the law into which politics enters through the stray remark, casual imprecation, or incidental overconfident assertion about supposed matters of fact--the way diversity enters into things is that a co-blogger with different views challenges those remarks. The result is a series of posts about politics, or political posts. And then the blog becomes a place of disagreement about politics, a site whose subject is politics. That's just a politically diverse downward spiral, inasmuch as politics itself is a blindingly boring subject and our best selves are rarely on display in such disagreements. It still polarizes, simply by focusing on politics, a subject that these days is almost inherently polarizing. It also plays away from our strengths, given that law professors, like everyone else, have a lot of confidence about, but very little expertise or insight concerning, politics. God save us from a legal blog about politics, or a political legal blog, diverse or otherwise.

So I think I'd have to revise my initial agreement with Howard's post, and at least make it a "yes, but." It's good that different perspectives can be found here. It would be nice if there were even more. But the best way to avoid both the unpleasantness and the tedious and blindered nature of polarization is not to field two or more teams, but to not play the game at all. (How about a nice game of chess?) Prawfs always focused more on writing about being a legal academic than on legal academics writing about, inter alia, political subjects. That gave it a real, albeit a narrow, focus and audience. I hope that continues to be our forte and, on the whole (and with the ironic knowledge that I have a post brewing that brings in politics) our primary area. The means of production and the background influences on our work continue to be relevant to what law professors do, and those influences continue to change. The rise of fellowships as the primary path to teaching means both that entry-level professors are better-informed, but also creates new reservoirs of quite incorrect shared lore. Changes in the student body create opportunities for new ways of teaching--and new student desires that ought to be resisted or rejeced. Changes in the mission of law journals--changes apparent to everyone but discussed less openly by the professors than by the students themselves--rejig the endless status game and deserve full treatment and criticism (or praise). Fads and fashions always change: Is the proper phrase "this is the first article to..." or "this Article, the first to...?" Is there any topic to which one can't append the phrase "The Political Economy of," and how many spots in the rankings that we all loudly reject will that title choice help the article climb? The money rolls in. or rolls out, each with attendant effects. Obviously, changes in technology create new topics to explore. So, even as we grow older and wiser and thus know less and less, there is still plenty to write about in what used to be our particular sandbox, rather than focusing on the world's oldest and most boring subject.  

Law School Academic Impact Rankings, with FLAIR (Updated)

The following is by Matthew Sag (Emory); he has posted here about competing rankings systems.

I am pleased to announce the release of the Forward-Looking Academic Impact Rankings (FLAIR) for US law schools for 2023. I began this project two years ago because of my intense frustration that my law faculty (Loyola Chicago, at the time) had yet again been left out of the Sisk Rankings. The project has evolved and matured since then, and the design of the FLAIR rankings owes a great deal to debates that I have had with Prof. Gregory Sisk, partly in public, but mostly in private.

You can download the full draft paper from SSRN or wait for it to come out in the Florida State University Law Review.

How do the FLAIR rankings work?

I combined individual five-year citation data from HeinOnline with faculty lists scraped directly from almost 200 Law school websites to calculate the mean and median five-year citation numbers for every ABA accredited law school. Yes, that was a lot of work. Based on faculty websites, hiring announcements, and other data sources, I excluded assistant professors and faculty who began their tenure-track career in 2017 or later. I also limited the focus to what is traditionally considered to be the “doctrinal” faculty. The paper provides more details and the rationales for both of these decisions. 

How do the FLAIR rankings compare to other law school rankings?

Among their many flaws, the U.S News law school rankings rely on poorly designed, highly subjective surveys to gauge “reputational strength,” rather than looking to easily available, objective citation data that is more valid and reliable. Would-be usurpers of U.S. News use better data but make other arbitrary choices that limit and distort their rankings. One flaw common to U.S. News and those who would displace it is the fetishization of minor differences in placement that do not reflect actual differences in substance. In my view, this information is worse than trivial: it is actively misleading.

The FLAIR rankings use objective citation data that is more valid and reliable than the U.S. News surveys, and unlike the Sisk rankings, FLAIR gives every ABA accredited law school a chance have the work of its faculty considered. Obviously, it is much fairer to assess every school rather than arbitrarily excluding some based on an intuition (a demonstrably faulty intuition at that) that particular schools have no chance to ranking the top X%. Well, it’s obvious to me at least. But perhaps more importantly, looking out all the data gives us a valid context to assess individual data points. The FLAIR rankings are designed to convey relevant distinctions without placing undue emphasis on minor differences in rank that are substantively unimportant. This goes against the horserace mentality that drives so much interest in U.S. News, but I’m not here to sell anything.

What are the relevant distinctions?

The FLAIR rankings assign law faculties to four separate tiers based on how their mean and median five-year citation counts compared to the standard deviation of the means and mediums of all faculties. Tier 1 is made up of those faculties that are more than one standard deviation above the mean, Tier 2 is between zero and one standard deviations above the mean, Tier 3 ranges from the mean to half a standard deviation below, and Tier 4 includes all of the schools more than half a standard deviation below the mean. In other words, Tier 1 schools are exceptional, Tier 2 schools are above average, Tier 3 are below average, and Tier 4 are well-below average.

The figure below illustrates a boxplot for the distribution of citation counts for each tier. (There is a more complete explanation in the paper, but essentially, the middle of the boxplot is the median, the box around the median is the middle 50%, and the “whiskers” at either and are the lowest/highest 25%.) The boxplot figure below illustrates the substantial differences between the tiers, but it also underscores that there is nonetheless considerable overlap between tiers.

The FLAIR rankings

The next figure focuses on Tier 1. The FLAIR rank for each school is indicated in parentheses. The boxplot next to each school’s name indicates the distribution of citations for each doctrinal faculty member within that school.

Readers who pay close attention to the U.S. News rankings will note that the top tier consists of 23 schools, not the much vaunted “T14”. The T14 is a meaningless category; it does not reflect any current empirical reality or any substantial differences between the 14^th and 15^th rank. Attentive readers will also note that several schools well outside of the (hopefully now discredited concept of the) T14—namely U.C. Irvine, U.C. Davis, Emory, William & Mary, and George Washington—are in the top tier. These schools’ academic impact outpaces their overall U.S. News rankings significantly. U.C. Davis outperforms its U.S. News ranking by 42 places!

Looking at the top tier of the FLAIR rankings as visualized in the figure above also illustrates how misleading ordinal differences in ranking can be. There is very little difference between Virginia, Vanderbilt, and the University of Pennsylvania in terms of academic impact. The medians and the general distribution of each of these faculties are quite similar. And thus we can conclude that differences between ranks 6 and 8 are unimportant and that it is not news if Virginia “drops” to 8^th or Pennsylvania rises to 6^th in the FLAIR rankings, or indeed in the U.S. News rankings.

The differences that matter, and those that don’t

In the Olympics, third place is a bronze medal, and fourth place is nothing; but there are no medals in the legal academy and there is no difference in academic impact between third and fourth that is worth talking about. Minor differences in placement rarely correspond to differences in substance. Accordingly, rather than emphasizing largely irrelevant ordinal comparisons between schools only a few places apart, what we should really focus on is which tier in the rankings a school belongs to. Moreover, even when a difference in ranking suggests that there is a genuine difference in the overall academic impact of one faculty versus another, those aggregate differences say very little about the academic impact of individual faculty members. There is a lot of variation within faculties!

Objections to quantification

Many readers will object to any attempt to quantify academic impact, or to the use of data from HeinOnline specifically. Some of these objections make sense in relation to assessing individuals, but I don’t think that any of them retain much force when applied to assessing faculties as a whole. If we are really interested in the impact of individual scholars, we need to assess a broad range of objective evidence in context; that context comes from reading their work and understanding the field as whole. In contrast, no one could be expected to read the works of an entire faculty to get a sense of its academic influence. Indeed, citation counts, or other similarly reductive measures are the only feasible way to make between-faculty comparisons with any degree of rigor. What is more, aggregating the data at the faculty level reduces the impact of individual distortions, much like a mutual fund reduces the volatility associated with individual stocks.

One thing I should be very clear about is that academic impact is not the same thing as quality or merit. This is important because, although I think that the data can be an important tool for overcoming bias, I also need to acknowledge that citation counts will reflect the structural inequalities that pervade the legal academy. A glance at the most common first names among law school doctrinal faculty in the United States is illustrative. In order of frequency, the 15 most common first names are Michael, David, John, Robert, Richard, James, Mark, Daniel, William, Stephen, Paul, Christopher, Thomas, Andrew, and Susan. It should be immediately apparent that this group is more male and probably a lot whiter than a random sample of the U.S. population would predict. As I said, citation counts are a measure of impact, not merit. This is not a problem with citation counts as such, qualitative assessments and reputational surveys suffer the same problem. There is no objective way to assess what the academic impact of individuals or faculties would be in an alternative universe free from racism, sexism, and ableism. A better system of ranking the academic impact of law faculties will more accurately reflect the world we live in, that increased accuracy might help make the world better at the margins, but it won’t do much to fix underlying structural inequalities.

Corrections and updates

Several schools took the opportunity to email me with corrections or updates to their faculty lists in the past three months. If I receive other corrections that might meaningfully change the rankings, I will post a revised version.

Further Update: The original post did not include the figures. Here they are: