PrawfsBlawg

Advice from an "Other Other Legal Academy" Tenure Committee Chair

Back in 2017, I found myself appointed to our Tenure Committee, the thirteen-person group that does the detailed work of tracking the teaching, scholarship, and service of pre-tenure professors on our now "unified" faculty (i.e., all "doctrinal," clinical, and legal practice skills professors).  The Tenure Committee makes recommendations to the full tenured faculty, which has the final faculty say on tenure decisions. I had to miss my first meeting because of a conference commitment and was horrified to find that, in my absence, the committee had elected me the chair.  That job ended this past June 30, when I went on phase-out, removing myself from the ranks of the tenured, and ending my eligibility to serve.

I was just going through some old computer files and found some bullet points that I must have written in 2018 as content for an internal program on pre-tenure scholarship we never formally conducted.  I'm sure I said all of these things informally to somebody at some point.  In the spirit of Jeremy Telman's views on scholarship in the "Other [non-elite] Legal Academy" and my response (to the effect that I never felt that level of distance from my perch in a law school ranked somewhere outside of the US News top 100), I offer them  in their almost unexpurgated original.  They are one person's view; your mileage (and that of equivalent committees or faculty members at your particular school) may vary:

1. Don’t get hung up on rankings when placing articles.  Yes, if you are on the faculty at a top 50 school, the placements may make a difference.  For everybody [else], except at the extremes, there are no significant pluses or minuses.  Yes, a placement in a T17 flagship will get you lots of points, and a T50 placement significant points, and a placement in a specialty journal in the unranked 4th tier will get some head scratching, but in between it doesn’t make a lot of difference.  The key thing is to be good and to be productive.  See histogram in the blog post.*  (I don’t like many of the heuristics, but the idea of placing articles in law reviews at schools ranked higher than your own doesn’t offend me.)
2. Aim for one traditional law review behemoth a year.  But don’t overlook short pieces - reactions, brief essays, and so on.  The online supplements are nice for this.  You read a piece and have 3,000 to 5,000 words (or fewer) to say about it.  Do it!
3. With the shorter pieces, take a shot at a peer reviewed journal.  It takes longer, but it really is a professional affirmation.  Steel yourself for evil reviewer #2, however, who hates your piece, your school, and you.  (Most peer reviewed journals have a word limit - usually 10,000.)
4. People react far more to the gestalt of your CV than to individual items.  Hence, a lengthy list of long and short pieces has a nice visceral impact to the point of “productive scholar.”
5. “Law and ....” is good.  So is borrowing from other disciplines of law.  But it is a two-edged sword.  If you are a tort specialist borrowing from Nietzsche, show the piece to somebody with Nietzsche chops and then put that person’s name in the starred footnote.  Disingenuousness is not your friend.
6. When you submit, you certainly can play the expedite game, but my personal view is that it’s moderately unethical to submit to law reviews for which you would not accept an offer if it were the only one you got.  
7. Network in your area.  If you read somebody’s article and like it, send the person a note with this in the subject line “Loved your piece....”.  Be a commenter on others’ work.
8. Blog.  PrawfsBlawg was founded as a forum for new (i.e. “raw”) professors.   Again, it’s a two-edged sword.  If your stuff is good, it helps.  If not, it doesn’t.  When I was unsure of a blog post, I would send it to a friend first.

* That is exactly what my notes say, and I've linked the PrawfsBlawg post from 2018 to which I was referring that included the histogram.

I Fought the Law (the IRS) and the Law Won

Perhaps you've read about the legislation to provide an additional $80 billion in funding for the IRS so that it can hire more agents to go after high income and corporate tax avoiders and evaders.  The first-world story you are about to read might not have occurred if I had been able to get in touch with one of those agents.

It is also a story that suggests perhaps, in my phase-out from full-time teaching, I have too much time on my hands.

The story is about a $311.82 issue I've had with the Internal Revenue Service since this past June.  Here is the punch line.  If the IRS penalizes you $311.82, you try to reach a live person via their 800 number.  But you cannot do so because there is no live person available at the other end. You write letters and get computer generated responses.  You contact the Taxpayer Advocate Office, and it declines to advocate for you.  

At that point, your only recourse is judicial and it turns out, as a practical matter, you have none.  Now that is probably an "access to justice" issue that affects millions of other cases - the legal system simply does not accommodate small matters very well.  And, as I just explained to my wife, there is no small claims court in the federal judicial system.  So even though I have cases indicating (if you keep reading, you can judge for yourself), that I have an open-and-shut winner against the IRS, unless I'm prepared to foot $640, more than double the amount at issue, to pursue it, I've reached the end of the line.  Hence, this cri de coeur.

And, to spare those of you who couldn't care less, it all comes after the break.

The story begins last April.  We have a CPA who does our taxes for us.  We are relatively old, so we've saved some money and it's invested in the markets.  2021 was a good year, but the first quarter of 2022 sucked, so the irony was that we had to pay a lot of money in federal income tax in April 2022 for investment gains that had long since disappeared.  (As I said, first world problem, but whatever....)  Our CPA e-filed four documents for which we were going to have write checks - 2021 income tax to the U.S. and Massachusetts and 2022 estimated taxes to the U.S. and Massachusetts.  On April 14, my wife wrote out four consecutive checks.  I put them in four correctly addressed envelopes and stamped them.  I walked down to the U.S. Post Office mailbox on the corner of Richdale Avenue and Walden Street in Cambridge and deposited all the envelopes.

Let's say that the four checks in the check register were numbered as follows:  1552 - Commonwealth of Massachusetts; 1553 - U.S. Treasury; 1554 - U.S. Treasury; 1555 - Commonwealth of Massachusetts.   When I looked at our bank statement two weeks later, I could see that checks 1552, 1554, and 1555 had cleared (including one of the checks to the U.S.).  Check 1553, the big one for 2021 income tax, had not.  

There is an 800 number to call the IRS about questions like this.  I tried it on several occasions.  One goes through a whole series of prompts before getting the following message and a hang-up: "We are sorry but due to volume we cannot take your call now."  I tried looking at my account in the IRS's online system and found that it was only current as of the end of 2020.

Now I felt like I was between a rock and a hard place.  I called our CPA. He told me the IRS was extremely slow because of COVID and its lack of staff.  The IRS website itself has a form for getting reimbursement for stopped check fees because it is so likely to have lost it.  But I didn't want to stop the check and pay again on the likely chance that the IRS was just ... slow ... and was ready to cash the check.

So I waited.

On June 6, the IRS issued us a CP14 notice for the unpaid taxes (i.e., the amount of check 1553), a late penalty of $311.82, and interest of $178.19.  I immediately stopped payment on the check, and paid via an electronic bank transfer the amount of check 1553.  I declined to pay the penalty and interest.  I looked up on the IRS website how to dispute a penalty.  It said that to dispute a penalty one should call the toll-free number in the upper-right hand corner of the notice.  The only problem was that the CP14 notice had no toll-free number.  And I called the general toll-free number (see above), which resulted in the same "sorry, too much volume" hang-up.  

Hence, on June 13, I wrote a long letter to the IRS office in New York that issued the notice (this time sending it certified mail).  It laid out all the facts and requested cancellation of the penalty and interest.  

There was no response until mid-August when I got a computerized form letter from somebody in the Memphis, Tennessee office of the IRS, acknowledging receipt of the June 13 letter, completely ignoring what it said, and stating that I now owed the penalty of $311.82 plus additional interest.  There was no phone number or any other instruction about how to dispute the finding.

I called my CPA.  It turns out there is a double-ultra secret practitioner phone number to the IRS.  We called it, and ended up with the same "sorry, too much volume" hang-up.

Then it occurred to me to contact my congressperson.  A real (and helpful) person in her office got back to me promptly and said he would contact the Taxpayer Advocate Office of the IRS on my behalf.  When I figured out what that was, I told him "thanks" but I could do it myself.  He told me it was already done and he'd get back to me with the answer.  

A few days later, the Taxpayer Advocate's response turned out to be: (a) I could submit evidence that I had sent the check (e.g. a certified or registered mail receipt), or (b) throw myself on the mercy of the IRS by filing the one-time in a lifetime request for waiver of a penalty for not having paid one's taxes.  I objected to (b) on the grounds that I had paid my taxes, and to (a), after a brief bit of research, on the grounds that (i) 26 U.S.C. §7502(a)(1) states that the date of postmark of something mailed to the IRS is the date of filing or payment, (ii) if the USPS or the IRS loses the envelope then there is no way to see the postmark, (iii) there is no requirement of mailing by certified or registered mail, (iv) in the normal course, the envelope should have been postmarked on the date I dropped it in the mailbox, and (v) there was evidence of mailing, i.e., my testimony that I had in fact mailed it.  That didn't get a rise out of the Taxpayer Advocate Office.

At this point, I was fed up and didn't want interest to keep piling up, so I paid the outstanding claim for penalty and interest with an electronic transfer.

But being, as I am, slightly obsessive about stuff like this, and a lawyer to boot,  I did some research. I quickly found several cases in which petitioners won against the IRS on the basis of their oral testimony that they had deposited the filing or the payment in the US mail.  (See Jones v. U.S., 226 F.2d 24, 28 (1955) ("We take judicial notice of the fact that the overwhelming majority of taxpayers who live elsewhere than in the centers where the offices of collectors are located make their returns and present their claims for refund, and the like, through the mails. Even great numbers of those living in the immediate neighborhood of a collector's office doubtless follow the same practice; and the procedure is encouraged by the collectors since it tends to conserve the time of those officials and their staffs. Reliance upon the mails as the medium through which such deliveries for filing are made may be said to be all but universal."; Wells v. C.I.R., 22 T.C.M. (CCH) 169 (1963); Walter M. Ferguson, Jr., 14 T.C. 846 (1950) ("The final issue has to do with the penalty determined for the alleged failure ... to file a return for 1945. The Commissioner makes and could make no sound argument in light of the evidence. It is unnecessary to decide whether there was a ‘filing.’ This would not be the first time that a collector had lost a return. Even if no return was filed, the failure was due to reasonable cause (failure of the mails) and not to willful neglect ..., so in no event would the penalty be proper.")

A miscarriage of justice and the law is on my side! Now I was prepared to do something I had never done in forty-three years of being a lawyer - file a lawsuit against someone on my own behalf. (The congressperson's office noted that, once I was litigating, House of Representative rules prohibited its further involvement.)

What I discovered is that filing a claim in the US Tax Court, particularly in the small cases division, is really easy.  You can do it in pro per even though I signed as the lawyer for my wife and me.  You can file electronically.  I checked off that I was filing in regard to a disputed notice of deficiency, put together a short but thorough statement.  The $60 filing fee seemed like a reasonable bet against my chances of winning this case.  On August 30,  I filed in the U.S. Tax Court, requesting trial in Boston, seeking reimbursement of the $311.82 penalty and the interest.  (I wasn't sure if the filing fee would be a taxable cost when I won, but I threw that in too.)

Let me note, at this point, that I understood I probably didn't have a good case on the interest.  It was set statutorily at five percent, and that seemed excessive to me versus what I would have earned on the money, but the government would have a reasonable position that I, and not it, had the use of the money for the couple months.  But I was prepared to go to the mat on the penalty.  Millions for defense but not a penny for tribute!

On October 4, I received an email notice that there was a new filing in my case.  I eagerly logged went into Dawson, the Tax Court case management system, expecting to see the government's groveling response.  What I found instead was a motion to dismiss my case for lack of jurisdiction in the U.S. Tax Court.  More quick research.  Well, it turns out I assumed (and we know what that stands for) that the August letter was a notice of deficiency for failure to pay the penalty and interest.  It was not.  Penalties are not deficiencies.  And the U.S. Tax Court has no jurisdiction over disputes about penalties.  I spoke to the lawyer for the IRS, agreed that he was right and that I would concur in the motion and a dismissal without prejudice, and vented to his sympathetic but powerless ear about the injustice of it all.

To be fair, even the Taxpayer Advocate Office within the IRS recognizes this particular unfairness, and have said so in a legislative recommendation recommending that the Tax Court be given jurisdiction over penalty disputes.

Nevertheless, where we stand now is this.  I recognize that I really only have a good case for recovering the $311.82 penalty.  There are courts with concurrent jurisdiction over this claim:  the US Court of Federal Claims and the US District Court for the District of Massachusetts.  The fee for filing a claim in either one of them is $402.  To use the electronic filing system in either one, I would need to become a member of the bar of that court (which I could do) at a cost of $238.  

I have thought about whether making the point is worth $640 and the burden of drafting and filing pleadings for a federal court, as well as burdening the dockets of already overburdened courts.  I decline to do that.  Rather, its value to me is as a story I can now use when telling others with relatively trivial claims that sometimes there's just no justice in the world, and the law can't do everything.

So I give up.

The Other "Other Legal Academy" - Scholarship

My friend Jeremy Telman (Oklahoma City University, left) has a series of three posts at ContractsProf Blog on his experience as a teacher and scholar in what he refers to as the "Other Legal Academy" or OLA.  His thesis is that there are at least two legal academies, one elite ("The Legal Academy") and one consisting of unranked law schools (the OLA) and they "meet fleetingly." (Full disclosure: Jeremy's post on scholarship has a picture without link to his edited volume Hans Kelsen in America - Selective Affinities and the Mysteries of Academic Influence (Springer, 2016).  I contributed a chapter.)

The posts deal, respectively, with hiring, scholarship, and teaching.  They are provocative, overly modest about Jeremy's own accomplishments, and fodder for my own promised reflections toward the end of a career in what Jeremy might think of as part of the OLA.

This sentence triggered my initial and visceral response to his distinction between The Legal Academy and the OLA:

But unless you are one of the few who can make the leap from the Other Legal Academy to The Legal Academy, do not expect that your scholarship will have an impact or even be read beyond a small circle.

I asked Jeremy how many OCU faculty had moved laterally since 2007 (when I started teaching), because my experience at Suffolk was that a substantial number of my colleagues who got tenure at Suffolk moved on to schools up the food chain - for example, Jessica Silbey to Northeastern and then to Boston University, Hilary Allen to American, Frank Rudy Cooper and Leah Chan Grinvald to UNLV (the latter as dean).  His answer was very few.  I have had colleagues whose scholarly work I know is widely read and influential, including David Yamada on workplace issues (such as bullying), Michael Rustad on tort law, John Infranca on housing communities, Marc Rodwin on health care, and most recently, Sarah Burstein on design patent law.  (There are others as well.)  

Yet for reasons best explained by the US News ranking algorithm, Suffolk currently sits in the #122 bracket along with Albany, Mercer, Baltimore, and Dayton, just behind the #118 group (Chapman, Hofstra, Tulsa, West Virginia) and just ahead of the #127 group (Cleveland State and St. Thomas (MN)).  Indeed, the impact of that algorithm (LSAT scores and bar passage rates) combined with past decisions on class size have caused Suffolk to flirt with over the last ten years, but never succumb to, the unranked list at the bottom where you find OCU and others.

There's no question that it's different being at Suffolk is different than being at Harvard, Yale, Stanford, or even BU. Nevertheless, and despite my unusual path to a faculty and perhaps even to tenure, I never felt like I was on the outside of The Legal Academy looking in as a scholar.  Below the break, I'll reflect on that. (And perhaps touch on Jeremy's reactions to hiring and teaching in later posts.)

1.  In 2004, I was the general counsel of a chemical company in Indianapolis.  For reasons too lengthy and, perhaps, sensitive, I had time on my hands and contacted the then-dean at the IU-Indianapolis law school (now McKinney) about teaching a course on entrepreneurship and venture capital as an adjunct.  I was shocked to find him recruiting me as a potential director of the school's nascent center on entrepreneurship and technology.  Even then, I could see that being a center director but merely as an adjunct faculty member was a losing proposition.  I said, "I'd have to be on the faculty."  He said, "That would be almost impossible; you've never published any scholarly work."  I had no idea what that meant, having been a lawyer in the real world for 25 years at that point.  I went home, and looked into what legal scholarship was.  I consulted a couple of law school classmates who were on "elite" faculties.  I had an idea for an article arising out of one of our board members' concern about being named as the Audit Committee Financial Expert under Sarbanes-Oxley.  I called the dean.  "Okay, fine, if I need a publication, I will write and publish one." I started writing it on Memorial Day, 2004 and finished it by July 4, 2004.  

I cannot now recall if I used ExpressO.  I have a vague recollection either of making hard copies and mailing them, or emailing them separately, in a fit of self-delusion, to law reviews at Harvard, Yale, Stanford, Columbia, Michigan, and for some reason I don't now recall, Wayne State.  Within a week or two, an editor at Wayne State emailed me to say that it had accepted the piece, and I went bouncing up and down around the house like I had just won the U.S. Open.  

One of those law school classmates (Douglas Baird) said to me, "You need to post it on SSRN."  I replied, "What is SSRN?"  I posted it.  Later, Avery Katz (who had summer clerked at my law firm in Detroit and knew my wife from when they were kids) sent me a note to the effect that Larry Solum had posted the article on his "influential blog." To which I believe I responded, "who is Larry Solum and what is a blog?" (NB: while there are portions of that piece I still like, I cringe every time I look at it or think about its puerile naïveté, notwithstanding the fact that it has been downloaded more than 1,000 times on SSRN, no doubt as a result of its truly bizarre and suggestively interdisciplinary title.)

At some point, one of the faculty members at IU-Indianapolis sent me a video file of a talk Ron Krotoszynski (now at Alabama) gave on how to play the law review placement game. The upshot of all this was my reaction to the process: "Damn, this is fun."  So, over the next six months or so, I wrote and placed two more pieces, one in the DePaul Law Review and one in the Temple Law Review.  (Those two pieces involved an email exchange I initiated with Richard Posner, who, to my complete shock, graciously responded, but that story will have to wait for another post.)

My point is that, while my initial forays weren't the elites, they weren't chopped liver either, and I felt like I had entered the mainstream of legal scholarship, whatever it was, even before I had a full time academic position.  

2.   A theme of Jeremy's post is his despair over the quality and the fate of his own scholarship: "very few people care about what I write as a scholar...." "I sent my babies off into the world and watched as they were neither nurtured nor savaged but left to waste away until totgeschwiegen.  Now I am resigned...." "I do regret that I don't think I will ever know if my scholarship is any good...."  First, I think his despair about being unread is unwarranted.  I speak from experience when I say that, if you decide to spend a lot of time writing about the work of Hans Kelsen, you are already speaking to a relatively limited audience.  Nevertheless, I went to his SSRN page expecting to see a mere dribble of downloads.  Instead I found thirty-four papers, twenty of which had in excess of 100 downloads, twelve in excess of 200, four in excess of 300, and one just about to reach 500.  [I have a question in at SSRN about the percentage of posted papers that achieve those benchmarks, so I won't guess, but I know I would be happy with that kind of reception for my own work!]

But, second, is it any good?  That is such an interesting and complex question, particularly in academia, because the criteria are not solely objective.  Another well-known blogger is currently posting the h-index of law professors.  The h-index measures a professor's productivity (at least on Google Scholar) as well as the citation impact - your h-index is the highest number h of your papers that have been cited h times.  As of right now, Cass Sunstein (there's a shocker) leads the pack with 172.  Understand what that means.  He has written 172 pieces that have been cited at least 172 times.   My h-index is 12.  I believe the highest h-index at Suffolk is Michael Rustad's 34.  Marc Rodwin's is 29. David Yamada's is 18.  John Infranca's is also 12 (and he's been at it not nearly as long as I) and Sarah Burstein's is 8, but they are both youngsters.  Google also uses something called the i10 index, which is simply the number of your pieces that have been cited ten times.  Cass Sunstein's is 692.  For that, there are simply no words.  My i10 index is 19, which I've justified with the notion that I've been writing academic articles since 2004, making it eighteen years, that I consider one significant piece a year to be on par for a productive law professor, and thus I have at least one ten-citation piece for every year I've been doing this.  That's my story and I'm sticking to it.

But, of course, we all know that you can write good stuff without having astronomical h-index numbers.  The subject matter makes a big difference.  And you can be widely cited as an example of getting something totally wrong!  

The far more fascinating subject (to me, at least) is the subjective assessment of scholarly legal work as "good," particularly in light of disciplinary boundaries.  Before I was a law professor, I was the chief legal officer for a couple big organizations, which meant that, in making my own decisions in hard cases, I often had to rely on the judgments of experts in fields I knew little about, and whose views either conflicted or were inconsistent with each other.  I have written about that.  Louis Menand and Michele Lamont have each written about the benefits and costs of disciplinary boundaries in academia.  Menand described interdisciplinary anxiety as being "about the formalism and methodological fetishism of the disciplines and about the danger of sliding into an aimless subjectivism or eclecticism." Lamont studied how judgments got made for interdisciplinary grant approvals, concluding that there is no canon for judging interdisciplinary work, and it "struggles with the concurrent polarities of “expert and generalist criteria (what one respondent [in Lamont’s study] defines as ‘virtuosity and significance’).” Indeed, Lamont wrote: "given the emergent quality of the standards of evaluation for interdisciplinary genres, panelists readily fall back on existing disciplinary standards to determine what should and should not be funded."

Which brings me back to my experience.  In his post on hiring in The Other Legal Academy, Jeremy quotes Orin Kerr: "To have a realistic chance, a candidate usually needs either a VAP/fellowship or a PhD. — and everyone knows it."  (Jeremy's point is that may be true for Orin's Legal Academy, but not for Jeremy's.) Credentials are simply easier heuristics for expertise and what is good.  Historically, law professors, even those doing "law and ..." have been autodidacts with JDs, the prime example being Cass Sunstein himself, whose degrees (and their dates) look a lot like mine!  (Obviously, that is where the comparison rightly ends; see above h- and i10 indices.)  What I found from 2004 to 2007, while I was considering that odd late-career jump to academia, was that the world of legal academic split into two categories, one in which my lack of credential was the basis for ignoring me (or at least not returning emails), and a larger one that invited me into the conversations about which I was interested.  That has been no different at Suffolk.

3.  In 2007, we moved to Cambridge and were fortunate enough to buy a house next door to, and connected by a gate with, a wonderful family one of whom was and is a pretty renowned Harvard evolutionary biologist.  We have spent many a Saturday or Sunday late afternoon, going through the gate and sharing a bottle of good or not-so-good wine, comparing notes about research, peer-review and getting published, teaching, faculty dynamics, and our shared interest in ultimate questions (telos being a particular interest of mine, and telos or "purpose" being a fascinating aspect of adaptation).  Honestly, despite the gap in the relevant prestige of our institutions (and our respective careers), the worlds seem remarkably similar.

4.  In short (and this has been anything but), I think Jeremy has overstated the case by focusing on law schools at the extremes of the rankings.  I don't know whether Orin is right about the required credentials to be hired in today's market - it looks to me that the market favors applicants for the first time in years - but I suspect there is still a substantial job market where  you still have a good chance of being hired as a JD-autodidact.  A wise mentor back in 2005 or so told me that I was going to have a hard time getting hired because I wrote to please (or teach) myself rather than inserting myself into existing and ongoing debates.  That was simply a realistic assessment of credentialism back then and it's probably still true.

I agree with Jeremy completely about this: if you can get it, it's a great job, paying significantly more than entry level positions in most other disciplines. More importantly, as the explosion of journals has demonstrated over the last twenty-five or thirty years, unlike philosophy or history professors, the overwhelming majority of our students have no interest whatsoever in following in our academic footsteps, and unwittingly subsidize our ability to write about whatever we damn please and usually publish it somewhere.  Carpe diem.

An Old Law Prof Learns to Code - Part 1 - Introduction

I'm stretching for the segue, but references to Markie seem to be popular.  (I  took the video at the left to prove to my skeptical wife that he did in fact come when I called.) 

The horse segue is this: I had never gotten on a horse, except for maybe a pony ride when I five, until 2009, when I was 55.  A friend here in Michigan had a horse, there was a gorgeous riding facility nearby, and it looked cool.  I knew vaguely that there was a difference between English and Western riding but that was it.  I knew nothing about dressage versus hunter-jumper versus eventing versus equitation versus Western Pleasure versus barrel racing.  So I asked somebody "what discipline I should learn?"  The response was to learn English because it was easier to go to Western if one didn't like it than the other way round.

If you know anything about computer coding, I apologize for the ensuing naïveté. You are entitled to react "duh, of course that is how it works."  But, as with riding, I knew there was C++ and Python and Java (which I didn't know had no relation to JavaScript) but I had no idea what that meant.  As I mentioned before, my ventures in the guts of coding (since a couple days of BASIC in high school) were pretty much limited to inserting a hyperlink into a blog comment for the purpose of shameless self-promotion of articles I had posted on SSRN.  I certainly had no experience with anything that looked like this (see below the break for some more on this):

//Fahrenheit Celsius Conversion//
#include <stdio.h>

int main(void)
{
int Fahrenheit, Celsius;
printf("Enter a Fahrenheit temperature as an integer:");
scanf("%d", &Fahrenheit); Celsius = (Fahrenheit - 32)/1.8;
printf("\n %d Fahrenheit equals %d Celsius. \n\n", Fahrenheit, Celsius);
return 0;
}

When I started the exercise in June, I just wanted to see what coding involved, but I also wanted a goal. I came up with the idea of encoding the exercise I use in Business Entity Fundamentals to teach income statements and balance sheets to law students and then somehow to deliver it to them.  It's not pretty, but I created something you can see here.

More importantly, I had a number of "aha" moments about similarities both in (1) the logic of coding and lawyering, something I've written about extensively, and (2) the practice of each skill.  But I don't want to bury that lede, so wait for "Part 2 - Aha Moments."

If you are curious and are on a MacBook, try the following.  Good luck.

1. Copy this from the first // to the last } :

//Fahrenheit Celsius Conversion//
#include <stdio.h>

int main(void)
{
int Fahrenheit, Celsius;
printf("Enter a Fahrenheit temperature as an integer:");
scanf("%d", &Fahrenheit); Celsius = (Fahrenheit - 32)/1.8; //note the silent conversion
printf("\n %d Fahrenheit equals %d Celsius. \n\n", Fahrenheit, Celsius);
return 0;
}

2.  Open Word or Pages on your computer and paste it.  Save the document on your Desktop but as a .txt (Plain Text) file.  Call it something like "demo" (don't use the quotation marks).

3. It will show up on your Desktop as an icon.  Click on the name "demo" and change it to "demo.c" (without the quotation marks).  The computer will ask if you really want to do that.  Say yes, "use .c".

4.  Go up to the top right of the menu bar and open the search function (the magnifying glass).

5.  Where it says "Spotlight Search", type in: terminal  ... then hit "return".  A window will open up with a line that looks like this: ~>

6.  Type in:  cd desktop  ... then hit "return."  It should return a line like this: ~/desktop>

7.  You now are in your Desktop directory.   At the prompt, type in:  gcc -o demo demo.c   then hit "return." You have now asked the computer to translate that language you saved as demo.c into a new file called "demo" that consists of binary code of zeroes and ones.  If all went well, it will return a line like this: ~/desktop>   If you did anything wrong, it will spit out error messages.*

8.  If you type in ./ and then the program name at the prompt, the computer will execute the program.  So, at the ~/desktop> prompt, type in: ./demo

9.  You have written and executed a program that converts Fahrenheit temperatures to Celsius.  The computer will ask you to enter a Fahrenheit temperature as an integer.  If you do and hit return, it will give you the answer.

* My colleague and law and coding guru David Colarusso observes that computers are like the most anal and obnoxious cite-checking law review editor you've ever encountered.  Even posting this exercise, I made several mistakes along the way, like forgetting to include > after "stdio.h" (which, by the way, tells the program to include the standard input-output code from the C language).

Passages

Earlier this year, I signed a phase-out agreement with Suffolk University, probably two years earlier than I had originally planned.  You give up your tenure and agree to teach half-time for up to three years (at your option) and there's a small (nay, insignificant) financial incentive.  You have to take the deal before the end of the year in which you turn 70, which for me is still two years away.  But I think COVID and Markie (see left) pushed me to pull the cord sooner.  On July 1, 2022, I ended fifteen years of tenure-track and tenure (begun when I was 53), the longest I ever kept one job.

My relationship with PrawfsBlawg spans more than my academic career. I started as a frequent commenter back in 2005 or so, while I was still the GC of a chemical company. Dan Markel invited me to guest blog in the summer of 2006, just before I started a visiting gig at post-Katrina Tulane. The "raw" in Prawfs still lingers in the annual hiring and law review submission posts, but the raw profs I met in 2006 (particularly at the Law & Society meeting in Baltimore) are mostly now well-established mid-career or senior scholars and teachers.  Some are even deans.  Since I was already medium well done when I started this, I'm now well overcooked.  But I've succumbed to the self-indulgence of semi-biographical work along the way, like how to get hired on tenure track when you've been out of law school for twenty-six years or reflecting on law scholarship and teaching having gotten tenure at age 59.  Why stop now?

This is the first summer since 2008 (I think) that I've not committed myself to publishing a piece by getting a summer research stipend.  Over the last several years, I have written a lot about computation and lawyering. That included positing a robot lawyer that I named after Judge Amalya Kearse, predicting the persistence of "dumb" contracts, and comparing human and computer decision-making.  It involved digging deep into the differences between, on one hand, the discrete and binary and, on the other, the continuous and analog.  But my actual coding experience was limited to the Basic we spent learning in my high school pre-calculus class in 1971, some Boolean stuff on an Excel spreadsheet,

and knowing how to click "HTML" in the upper right corner of TypePad to code a block quote that looks like this.

Hence, my summer project was to learn enough computer coding to make something of practical use.  I started with "Hello, World" exercises in C, then Python, then Javascript and HTML (all in my Visual Studio Code text editor).  By the end of August, I'd created two online interactive exercises to teach accounting to my business law students and a self-executing practice exam review for first-year contracts.

So stay tuned if you like.  I am going to post a little bit this September about being in the September of one's career and about computer coding and lawyering.

Lawyering and Responsibility

Somehow I have managed to retain my back door into Prawfs, and with Howard's permission, I am sharing what follows.  It is my note today to my Contracts students who just finished their first two credit hours segment and will return for the remaining three credit hours in the spring semester.  I thought it might be of some interest to other law professors.

 Lawyering and Responsibility

I know that you will be consumed over the next hours and days with exams and grades, but I decided I wanted to pass along some thoughts about current events and their relationship to what we do together.  Somebody who hasn’t endured the first two credits of my Contract Law course might not understand the connection between the substance of the class and the political and social events of the last several months. 

My students, past and present, know that contract law is a logical model used to translate real-world narratives of desired outcomes into legal binding commitments.  Before the fact of disputes, lawyers use contracts to model, in fewer bits and bytes of information, an underlying analog reality, and do so in a way that permits parties to act together in the face of risk and uncertainty.  After the fact of disputes, lawyering is weaponized reason, sublimating (to repeat a reprehensible bit of recent incitement) trial by combat into an intellectual and non-violent game of winners and losers.  The rule of law is a cultural norm that says the loser of that game accepts the loss without resort to trial by combat.

I have spent my academic career trying to articulate the difference between the nature and logic of legal systems, on one hand, and moral imperatives, on the other, in situations far more mundane than we have been witnessing.  It began with the observation, in the wake of the Enron-WorldCom corporate scandals of the early 2000s, that there were significant limitations to the legislation of “good governance.” Courage, independence, integrity, humility, all essential characteristics of good CEOs, board members, Presidents, and Senators, resist being captured in the language of a statute or a contract.  Statutes and contracts embody fundamental characteristic of positive law: if antecedent conditions exist, rules of law establish inferences that particular legal consequences must ensue.  Both the thrill and the dark side of lawyering arise from the complexity of the real world narrative – we don’t always agree that the antecedent conditions exist, and even if they do, we don’t always agree on the particular rules that get triggered. 

Many business decisions (like many family or personal decisions) are not easy – closing an unprofitable plant, for example, creates distress but is necessary if the business as a whole is to survive.  Personally, I don’t love every professional decision I’ve ever made. Nor can I be sure my belief that I was appropriately reflective was not a rationalization.  But if I can’t recognize the clear cases of the clash between logic and moral imperatives, then the nuanced cases are hopeless. 

In the days since we last were together as a class, I have thought about saying something about lawyering that has gone beyond the pale, specifically the specious litigation undertaken by Rudy Giuliani, Sidney Powell, Jenna Ellis and other lawyers around the country.  Several weeks ago, I signed the Lawyers Defending Democracy letter calling for bar associations to pursue sanctions against those lawyers.  The license to employ the logical model to translate narratives into legal consequences is not a license to write fiction or spew fantasy.  The result of the litigation demonstrates that it was fiction and fantasy.  And the spewing of fantasy by lawyers who should know better – incompetents like Powell and accomplished lawyers like Cruz and Hawley – contributed to the violence.

You will get licensed as a lawyer for the same reason you get licensed to drive a car or carry a firearm.  You will have been entrusted with the weapon that I have now spent two credit hours teaching you to use.  How you use the weapon, if at all, is ultimately not a matter of legality (except in the most egregious cases), but one of conscience.  As we have seen in class, the challenge usually won’t be to differentiate between clear cases of good and evil – but rather to decide in close cases of the Venn diagram overlap how, if at all, to employ the intellectual gifts you brought to class and the professional tools that have been entrusted to you. 

I will never be able to give you a transcript grade on this particular lesson.  But it’s what I hope you remember long after you have forgotten the two old drunks who contracted on a napkin to sell the Ferguson farm for $50,000, title satisfactory to buyer.

I look forward to seeing you (via Zoom) on January 25.

Best,

JML

Adapting to the New Normal - Passover Version

Howard and Orly have graciously allowed me to re-appear on PrawfsBlawg to share a series of news reports I have been receiving over the last week or so.

URJ AND HEBREW UNION COLLEGE ANNOUNCE HAGGADAH FOR ZOOM SEDERS

By Amy Plotz, Special to the Chronicle of Higher Education

The Union for Reform Judaism (URJ), formerly known as the Union of American Hebrew Congregations, and the Hebrew Union College (HUC) in Cincinnati, its affiliated seminary, today announced it would be releasing a special Passover Haggadah for use in seders conducted via Zoom.

“We are dealing both with the substance of the seder as well as procedural changes necessitated by social distancing,” said Rabbi Aaron Moskowitz, Chair of URJ’s Ritual Committee. The Passover seder commemorates the exodus of the Hebrew slaves from bondage in ancient Egypt. It is still one of the most widely observed Jewish rituals, even among Jews who put up “Hanukah bushes” or eat Wonder Bread and mayonnaise.

“It’s not bad,” said Deborah Goldman, a Chicago nurse-practitioner who received a beta-test copy of the document. “My dad used to be ‘Leader’ and now he’s the ‘Host.’ My daughter plans on using the polling function for the Four Questions.”

“The best is being able to deal with Uncle Oscar,” said Ms. Goldman’s husband, Jerry Nelson. “Every year he does the multiplication of the Ten Plagues in the voice of Sean Connery and every year we tell him to cut it out. This year we just put him on mute.”

Changes to the text of the traditional service include insuring that the Lord’s mighty hand first uses Purell, and that His outstretched arm stays six feet away from any live participants. The washing of the hands, traditionally undertaken just before parsley is dipped into saltwater and without a blessing, now requires recitation of two chapters of Deuteronomy to ensure that the job gets done thoroughly.

Rabbi Moskowitz reported that HUC’s computer science department was working on a plug-in that would appear to make the wine in the kiddush cup move when Elijah was drinking it. “But we drew the line at changing Moses’s demand to ‘Let My People Go Outside.’”

When contacted, Bennie Rothschild, a wicked child, said, “Fine with me; I didn’t want to be included anyway.”

The Corporate "Trolley" Problem

I'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.

Getting to Know Peter Lederer

One 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.

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.

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

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

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

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

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

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

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

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

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

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

Paw Fruerlund: Partner, Kammeradvokaten Poul Schmith, Copenhagen

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

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

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

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

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

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

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

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

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

Dr. Christopher Markou: Affiliated Lecturer, University of Cambridge

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

Registration information is available here.

DeStefano on "the Adjacent Possible"

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

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

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

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

The connection to human creativity and innovation should be obvious.

More to come later.

Confusion of the Inverse??

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

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

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

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

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

What I mean by "confusion of the inverse"

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

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

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

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

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

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

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

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

So...

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

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

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

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

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

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

P(CIB/MW) = .16

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

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

Confusion of the inverse and contract fine print issues

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

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

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

Humans Out of the Loop?

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

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

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

Blogging with Outtakes - Existentialists, Asymptotes, and Parachutes

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

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

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

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

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

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

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

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

A Personal Law Review Article Submission Narrative

Before the end of the month, I mentioned to Howard the possibility I would have one more thing to say about what has become a theme this summer: the folkways of career advancement in legal academia and, in particular, the angst around law review submissions.  I recognize that my circumstances may not match anybody else's - I have a job, tenure, and I'm too old and sedentary to be thinking about lateral moves.  But, for what it's worth and with the consent of the editor of the journal in which I've just agreed to publish an article, I'm going to offer here a narrative about the submission process. 

My project this summer was a thought experiment that looked at the current embodiments of "smart contracts" - crypto-currencies as well as systems of legal documentation that can operate on blockchain technology - and considered what it would take for a traditionally negotiated complex and bespoke agreement to be "smart" in the same way.  (The title is a clue to the conclusion:  The Persistence of "Dumb" Contracts.).  I finished it to the point of public consumption and posted it on SSRN on June 25.  All things considered, it did pretty well there.  It's up to 222 downloads as of this morning, and made a bunch of the SSRN "Top Ten" lists.

In terms of hiring or tenure, it doesn't matter where I publish. I am pretty sophisticated about what is meaningful and what is not in a linear ranking like the US News list. But I'm as susceptible as the next person to the allure of glitzy branding, even if for no reason other than pure ego.  I am not on the faculty at a school whose letterhead sends student law review editors into spasms of fawning sycophancy.  Nor do I think my stuff is easy for student law review editors to assess.  (Dan Markel, of blessed memory, once told me I am "orthogonal" to most debates, something I took as a compliment even though I'm quite sure he didn't mean it that way. I think of it as "anything you can do, I can do meta.") Indeed, I've already noted that I've been asked to "peer review" articles for multiple super-elite flagship law reviews.  Each time I've done it, bitching all the while to my contact articles editors about the fact that my own submissions to their journals don't make it out of the submission inbox.

So, after the break, a short narrative about Persistence's submission odyssey.

As of June 25, I was suffering from the usual self-delusions, sitting on a completed 25,000 word article and thinking that it really did deserve to appear in a very "top" law review (see above).  I knew that submission season didn't begin until August 1 and that the peak for submissions would be roughly mid-August.

I had acted as a peer reviewer for an article in the flagship journal of a very highly ranked law school in the spring (the "XLR").  I contacted directly the XLR senior articles editor with whom I had dealt.  The editor encouraged me to submit when the journal opened on August 1, and said that if I gave a two week exclusive, the journal would guarantee a read of the piece.  That seemed to me a no-lose proposition because it would still allow me to submit in the Scholastica shotgun as of August 15 (by which date, I knew in those brief moments of being tethered to some fashion of cognitive lucidity, XLR would have rejected it).  

In early July, Northwestern announced an early submission period for those willing to give exclusives between July 15 and the end of the month.  Again, that struck me as a no-lose proposition, as upon its inevitable rejection at Northwestern, I could submit it to XLR as of August 1.  The inevitable Northwestern rejection came (a day early), and the piece duly went off to the XLR.  I related the story of its sojourn at the XLR here.  Suffice it to say that, as of the evening of August 14, I was ready to do the Scholastica thing.

Off it went in the wee hours of August 15 with a CV and a cover letter (including the classic sentences: "Let me put this bluntly.  Please put aside the usual heuristics based upon the letterhead of the submitting author.").  As I've noted, my peeve is submitting to journals and not being prepared to accept offers if they are the only ones you get.  On the first pass, I decided to do flagship journals of USNWR top 50 schools and two "specialties," the Columbia Business Law Review and the NYU Journal of Law & Business.  When I woke up in the morning, I had a few minutes of post-Nespresso clarity, after which I added submissions to the flagship journals of top 100 USNWR schools. I also decided, since I had submitted to specialty journals at Columbia and NYU, I'd submit to one "elite school" specialty journal that I had never seen before but which seemed appropriate for my topic: the Stanford Journal of Blockchain Law and Policy.  

That was it for the next couple weeks, except that I decided to submit directly to a couple flagships (you know who they are) that don't do the full Scholastica shotgun thing.  One of them (for whom I had done a peer review several years ago) rejected the piece within a couple days, but were thoughtful enough to look forward to my next submission.  Other than that, I lurked on the angsting post and contributed to the betterment of the world by recording my rejections on Sarah Lawsky's spreadsheet.  Based on what I was seeing in the comments, and knowing how little any of the tea leaves meant, I wrote something about my view of the realities of article placement.

I then experienced what I thought, at the time, was the corollary to my pet peeve about submissions, which I sometimes characterize as another one of Lipshaw's Laws.  It goes like this:  "If you submit only to law reviews you are prepared to accept, you can be sure that your only offer will come from the very last review you decided you were willing to put on the list."  As sure as the earth orbits the sun in an ellipse, I received a message last week through Scholastica from the very last review I had decided I was willing to put on the list, the Stanford Journal of Blockchain Law & Policy, that my article had received a favorable "peer review" and would be coming up for a vote of the board of editors.

What I am about to say may well be the epitome of rationalization or cognitive dissonance.  I did something I probably should have done at the outset, which is that I went to the SJBLP website.  There I discovered that the journal is not student-edited, that articles (i.e. pieces over 10,000 words) are sent out for peer review, and that the journal is affiliated with the MIT Media Lab and Stanford's Code-X (its Legal Informatics program).   Many people who are prominent in the "artificial intelligence and the law" community are affiliated with Code-X.

So we go back to the issue of substance, on one hand, versus heuristics and ego, on the other.  My piece got very granular about the nature of computer code and its relation to logic.  I said a lot of things about how computers work.  Even though I'm pretty good at math, I'm not a computer expert.  To have the piece accepted by a peer-reviewed journal in the academic "law and computation" community was, to me, a significant professional validation.  At that point, I realized that I would rather have it published there than in almost any other journal.  I say almost any other because the allure of publishing in a T14 or T17 journal, particularly when it is so rare on my faculty, was still strong.

Yesterday, the SJBLP accepted the piece with a short deadline.  Last night, I withdrew it from all but nine journals, and expedited the rest.  This morning, again with the benefit of Nespresso clarity, I decided (a) it was highly unlikely any of the nine would abide the short expedite deadline; (b) it was highly unlikely that any of the nine would make an offer, but (c) most importantly, I really did come to believe the best home for the piece was where it was likely to be read by people who care about and understand the issues.  Ego and heuristics be damned!  Shortly thereafter, I clicked the "accept" button on Scholastica and withdrew it from the remaining journals.

Were I "on the market" would I have thought this through in the same way?  I don't know.  Fortunately, I don't have to test my self-honesty against that counter-factual.  I am quite sure, however, that, as someone who is obliged to consider scholarship by hiring and tenure candidates, this narrative would make sense to me if offered up by one of them.  Here, I'm simply putting it out to the community as one datum, for whatever it's worth.

Kai-zen and Poka-yoke in the Classroom

Even when I'm not doing a whole new prep, in the spirit of kai-zen ("continuous improvement"), I like to tinker with the form and the substance of a class.  Sometimes the tinkering is fairly substantial.  Several years ago, the authors of my contracts casebook decided to produce another edition.  I respectfully declined to adopt it, not believing that there were sufficient advances in the law of contracts to justify having students buy a newly-issued book.  But, upon discovering that there weren't enough copies of the old edition in circulation to be sure students could get them, I decided to scrap the casebook entirely, download and edit the cases myself, post them on Blackboard, and assign the very good Examples & Explanations book as the text.

If you aren't familiar with it, kai-zen is a fundamental aspect of lean manufacturing, something that had its roots in the Toyota Production System in Japan after World War II, and migrated to the United States and elsewhere in the 1980s and 1990s.  In first year contracts, I came up with two improvements yesterday, as usual in the several hours before the first class was to begin.

The first was substance.  I record all my classes and post my notes as soon as we are done with a unit.  I decided that I wanted the very first thing that I said on the very first day to be something to which the students could return when, as I put it, later in the semester they got frustrated with the material, me, the book, the cases, or why they made the decision to go to law school in the first place.

The second was form.  As I've mentioned, I don't impose a seating chart, and my cold-calling tends to be half-hearted at best, and tails off over the course of the year.  I do, however, start with "on-call" panels, and I do like to know something about my students.  In past years, I have simply given them blank index cards with the instruction to write their names and other information.  But, regardless of the instructions, students have managed to leave stuff out, write on the back of the cards, fill the cards so that I can't put pictures on them, etc. I have also struggled with how to take that information and use it (a) to organize the panels, and (b) have the information, including their pictures, readily accessible as I have to find them in the classroom (because I don't use seating charts). 

So I called on another lean manufacturing concept - "poka-yoke" or "inadvertent mistake prevention."  The idea on the manufacturing floor is that you set the process so that the operator can't make a mistake without shutting things down.  Instead of having two similar and identical holes for which the inserted piece could get reversed, you make the holes into different shapes and non-symmetrical.  It occurred to me that, if I just did a little poka-yoke on the cards, I would get the information just as I wanted it, and with a space in which to insert a picture.  

Voila!  What you see above, which took about 90 seconds in Word to create, and which could be duplicated on 4 x 6 index cards.  To create the panels, I just shuffle the cards and separate them into groups.  To call on students, I just reach for a card.

A Guide for the Perplexed - Law Professor Careers Edition

With sincere apologies to Maimonides, and having been a guest blogger through this year's fall article submission season, it seems like an opportune time for a short update to those classics, Memo to Lawyers: How Not to "Retire and Teach" and "Retire and Teach" Six Years On.  I wrote the former piece after getting a tenure-track law teaching job at the ripe old age of 52, reflecting on the idiosyncrasies of the hiring process, particularly for the superannuated aspirant, after having experienced the real world for most of a career. I wrote the latter piece shortly after I got tenure, reflecting mostly on what it really meant to do scholarship and teaching well.  

I now have the further experience of having participated on various career-related committees and the faculty meetings in which hiring and other career decisions get made.  (Disclaimer:  what follows are my views alone and do not represent views of my employer, any committee on which I sit, or any other member of our faculty.)  So, below the break, and for what it's worth, here are some random and personal thoughts about the role of scholarship in academic law careers and careerism, particularly for pre-tenured folks, from my particular perch at a respectable but certainly not an "elite" school.

• Why are you writing?  Presumably it's because you like doing it and see it as a way of making a difference in the world.  But from a career advancement standpoint, you do it for one of three reasons:  to get hired, to get tenure, or to move laterally.  What I'm about to say is based on intuitions about data because the data is not readily available.  The first and the last of those career objectives are difficult; the middle one, at all but a handful of institutions, is relatively easy.  My suspicion is that the lateral market is far less important as a factor in career advancement than it might otherwise seem - again the availability heuristic at work.  The AALS reports that there are over 10,000 full-time tenured or tenure-track law professors (makes sense - about 200 schools at an average of 50 faculty members).  Maybe there are 100 lateral moves a year?  A very well-known senior law professor/scholar told me years ago not to expect to move laterally - this person had spent 17 years at a lower top 100 school before making a series of significant jumps up the food chain.  My intuition (which I could test if I didn't think it was undue navel-gazing) is that the farther you go down the rankings, the higher the percentage of faculty that have spent their entire career at the school.
• CVs provide a gestalt.  My own experience is that I take it in as a whole and don't react to any particular item unless there is something truly exceptional about it.  For my money, the angst and mental energy I see reflected on this blog with respect to article placement is barely worth the effort.  The names of law reviews in which you've published are visceral heuristics that, in my experience, matter only when one is flipping through hundreds of FAR submissions.  Even then, it matters only to an extent and not at the level of granularity that people seem to think makes a difference.  Per the lumping of peer reputation scores I've highlighted before, if you've published in the elites it would cause me to notice, and it would probably cause me to notice if you published nowhere but specialty journals in the unranked USNWR category of law schools, but little else matters viscerally.  I don't keep a US News or Washington & Lee ranking in my head, and couldn't tell you where Tulane ranks in relation to Colorado to Temple.  And even noticing isn't the same thing as making an informed judgment that involves the subject matter of the writing, the apparent sophistication of the work (if one can tell from the title), or its originality, even if I make the judgment quickly.
• Once you get past the visceral, here's what I think really happens.  As Paul Caron wrote in an article over ten years ago, legal scholarship has an exceedingly long tail.  Paul relied on research done by Tom Smith at San Diego.  The top half percent of articles get 18% of all citations, the top 5.2% get 50% of all citations, and the tail gets truncated quickly as 40% of all articles never get cited.  I'm assuming that there is a relationship between citation and articles even getting read.  The times you can be sure some or all of your work will be read is when you've made it through the callbacks and are into the final several people being considered for the spot, when you are being reviewed for promotion or tenure, and if and when you were ever in the final stages of the lateral process.  Generally speaking, people doing that reading aren't idiots, and know exactly how the system works.  If the piece sucks, but somehow you managed to get it through the editorial board at take-your-pick top 50 flagship, very few people who know the area in which you are writing are going to think to themselves, "Hmm, this person missed the really important work on this subject and skated over the hardest responses to the argument, but my gosh it was placed in the Big Ten Other Than Michigan Law Review, so it must be good."
• While being perceived as a competent scholar is a but-for in the hiring, tenuring, and lateraling milieus, the make-or-break consideration is being perceived as a productive scholar.  If there is anything I find meaningful in visceral impressions, again it is the gestalt of a CV with a healthy list of publications the dates of which show consistency, all appropriately adjusted for the length of one's career.
• In creating the gestalt, aim for one traditional law review behemoth a year.  But don’t overlook short pieces - reactions, brief essays, and so on.  The online supplements are nice for this, as are the "essay" sections of traditional law reviews.  You read a piece and have 3,000 to 5,000 words (or fewer) to say about it.  Do it!
• With the shorter pieces, take a shot at a peer reviewed journal.  I really like the courage it shows. (Most peer reviewed journals have a word limit - usually no more than 10,000.).  It takes longer to place them, but it really is a professional affirmation.  And since it's likely that they don't count as "tenure pieces" under many schools' tenure standards, the wait doesn't matter so much.  Steel yourself, however, for what academics in other disciplines experience:  evil reviewer #2 who hates your piece, your school, and you, "revise and resubmit," and Chicago Manual of Style footnotes. 
• My thoughts on the substance of what gets written and the relationship of that substance to career advancement - issues of cross-disciplinarity, normativity, conformity, etc. - are at pages 71-80 of Retire and Teach: Six Years On, and I won't repeat them here.
• Network in your area.  If you read somebody’s article and like it, send the person a note with this in the subject line “Loved your piece....”.  Be a commenter on others’ work.
• Blog.  PrawfsBlawg was founded as a forum for new (i.e. “raw”) professors.   Again, it’s a two-edged sword.  If your stuff is good, it helps.  If not, it doesn’t.  When I was unsure of a blog post, I would send it to a friend first.
• Finally, a pet peeve. When you submit, you certainly can play the expedite game, but my personal view is that it’s inappropriate to submit to law reviews for which you would not accept an offer if it were the only one you got.  If somebody at my school were to tell me they were doing that, I would probably raise my eyebrows and look askance.

More Angsting about Angsting

So ... I entered a piece in the law review submission free-for-all.  It has caused me to reflect further on this system that generally causes academic jaws to drop in every other discipline when you describe it. Being at this stage of my career (see Further Reflections on the End of Ambition) where placements tend to be a matter of bucket list check-off and pure ego, my heart really does go out to those whose angst is related to getting or retaining a job. I thought "ctr" (the Appointments Chair at a T50 school) offered some wise counsel in the comments, consistent with the data, about not getting too hung up on the relative rankings of the schools in which you place your pieces.

I do not discount the angst.  I recently went through the five stages of law review submission grief.

Denial:  [Imagine thought balloon if this were a cartoon] "Oh wow, I've been called now by the fourth different Very Highly Ranked Flagship Law Review that Has Never Published Anything Written by Anybody Who Has Ever Been on Our Faculty to do a peer review of a submission.  I must be thought of as having scholarly chops well above the station otherwise indicated by the faculty letterhead on which I am obliged to submit my own work."

Bargaining:  "Dear Senior Articles Editor for Very Highly Ranked Flagship Law Review that Has Never Published Anything Written by Anybody Who Has Ever Been on Our Faculty:  I was flattered when you asked me several months ago to be an unpaid peer reviewer for the article submitted by [deleted] and was happy to turn around thoughtful comments in fewer than 24 hours because you were on an expedite deadline.  I did point out at the time the irony of your calling me for a review when all of my submissions to your journal have been rejected within hours, if not minutes, of their submission. Nevertheless, I did do it for you in the appointed time.  As you may recall, you commented on my comments as 'fascinating,' 'insightful,' and 'extremely helpful to our board's consideration.'  I now have a new piece ready for submission, and am willing to give it to you for an exclusive review for two weeks."

Depression:  "Dear Professor:  Thank you for submitting your article to the Very Highly Ranked Flagship Law Review.  Even though I found it fascinating and insightful, I am afraid that we will not be able to consider it for inclusion.  We wish you the best of luck in your placement of the article.  We hope, however, that you consider the Very Highly Ranked Flagship Law Review for future submissions."

Anger:  "Ungrateful little shits."

Acceptance:  American Samoa Journal of Bible Studies and Blockchain Technology.

[I promise more serious advice in a future post.]

Submission Angsting and the Availability Heuristic

I have not participated in the bi-annual feeding frenzy known as the student-edited law review submission season in several years.  I may this year, plus I'm blogging, so it's hard not to read the comments on "submission angsting" post (NB: autocorrect kept changing it to "submission ingesting" which I think is clever.)

This is a curmudgeonly but data-based contribution in aid of the reduction of angst. I vaguely recall posting something like this eleven or twelve years ago, no doubt when many young law professors or aspiring law professors were still in high school.  I direct it to those of you readers angsting significantly between, say, placements in law reviews at school ranked 65 versus school ranked 75.  Or some such similar consideration.

Paul Caron over at Tax Prof Blog does us the community service every year of re-ranking the schools by their "peer assessment" number, which ranges from 1.1 at the low end to 4.8 at the top.  I am assuming for this exercise that the peer assessment is meaningful even though I have my doubts.

My doubts stem largely from the likelihood that so much of this is determined by the availability heuristic, the term coined by Tversky and Kahneman for a mental strategy in which people make judgments about probability, frequency, or extremity based on the ease with which and the amount of information that can be brought to mind.  Hence, we bias our judgments based on available information.

Having said that, here goes.  One of the most available pieces of information is the linear ranking in US News.  It's really available.  It's available to the people who send in their votes for peer ranking and it's available to authors trying to place their articles.  What is not so available (thank you Paul) because you have to pay to get it isn't just the re-ranking by peer assessment but the actual peer score.

The histogram above shows the peer assessment scores from the 2019 US News law school ranking by the number of schools at each peer score from 1.1 to 4.8.  You can draw your own conclusions, but I think trying to thin-slice differences between scores close to each other is kind of silly.  It's pretty clear that whatever peer assessment means, the top 17 are in their own world.  As between 18 and 50, yeah, maybe there's difference between 18 and 50, but I wouldn't get too worked about about the difference between 30 and 40.  That effect is even more dramatic in the 50-100 range.  The point is that the rankings are linear, but the actual data sits on a curve.  So the differences between linear rankings mean different things at different levels.  (I'm pretty sure re-grouping the data in other significant categories like entering LSAT score would yield similar results.)

It's why I find it, what?, sad? odd? unthoughtful? when schools get lauded or dinged for moving eight or ten places one way or another between about 50 and 125.  Yes, the data are meaningful when you jump from 105 to 18 or vice versa.  But not when you "sank" from 50 to 62.

Okay, that's it.  Back to our regularly scheduled blogging.

UPDATE:  I'm going to close the comments here.  If this merits any discussion, it probably ought to occur at the angsting post.  

Further Reflections on the End of Ambition

Almost exactly three years ago, on the last day of my guest-blogging month, I posted a piece entitled The End of Ambition.  Sometimes I go back to what I wrote long ago and cringe (I was tempted to link the piece that most makes me cringe, but nah) but this one I like.  It started as a contemplation of what it's like to face the end of your career and turned into a broader assessment of what it means to grow up, to be an adult (something we've recently explored in connection with law students).

Well, here we go again, except now I'm 1000000 (Aside #1: as my friend Raffael Cavallaro said, "there are 10 kinds of people in the world, those who understand binary and those who don't") and looking pretty good for 1000000. (Aside #2: if horses ruled the world, "digital" really would mean "binary".)  But when you hit 1000001, you hit the normal age for filing for Social Security, and at 10000110 you have maxed out on the value of deferring your benefits.  (For those of you who have many years yet before this becomes an issue, it involves the uncomfortable evaluation of how long past 10000110 you and/or your surviving partner think you will make it.  The longer the period, the more sense it makes to defer.)

What prompted the re-reflection is being on this blog extensively at the same time the "submission angsting" and "hiring committee" posts have gone up, and my recent pontifications (sparked by Kaci Bishop's article) on fear and failure.  What I want to do here, from the perspective of one who has achieve the ripe old age of 10 to the 110th power, is link fear and failure to ambition.  My thesis here is that there is a continuum of ambition from the macro to the micro, and our brains don't do a great job of making that clear, hence causing our nervous system to spit out fear of failure juice in many of the wrong places. 

Here are prototypes of macro ambition:  getting hired as a tenure-track law professor or being awarded tenure.  Placing law review articles have a lot to do with both (so it seems).  I do very much understand macro-ambition.  My school and professional lives were a continuous series of them - grades, class standing, university admissions, law school admissions, getting a law firm job, making partner, getting the in-house job, becoming the GC.  I've said this before - when you attempt to break into academia and then climb the tenure ladder as a superannuated newbie, the actual consequence of failure is, I think, less significant in one's life than if you start out young.  I think there is also a lower fear factor - and thus more willingness to swing for the fences. (By the way, it's been around for well over a decade now, but you can find that particular story in Memo to Lawyers: How Not to "Retire and Teach".)

Here is my prototype of the micro-est of micro ambitions. When you get to be 1000000 and you worry about the increasing number of senior moments, you do things to assure yourself that you aren't losing it.  One of mine is doing the New York Times crossword puzzle every day.  Monday and Tuesday are too easy, so I do them online and see how fast I can complete them.  Wednesday through Sunday merit printing them.  I do them in ink and my goal is not to make a mistake.  I can annoy my wife no end by finishing the Saturday or Sunday puzzle perfectly and then proudly displaying it as though it is actually some kind of meaningful accomplishment. 

Now some people never stop having and acting upon macro-ambitions. Joe Biden is thinking about running for President, I'm pretty sure.  I am in the process of coming to terms with the end of mine. (Trust me, I had them and could tell you stories.) What I'm thinking now is that there isn't really an end of ambition.  It's just that most of the macros get taken over by the micros. Not going to be a CEO. Not going to be a university president. Not even going to be a lateral hire. It's now a bucket list.  Yeah, it would be cool to place an article in the Yale Law Journal.  It won't make a helluva big difference to anything, but it would be another thing to check off, somewhere between doing the Saturday puzzle completely correct in ink and being President.

The thing is the fear. I've already admitted publicly that I have the typical type-A failure dreams.  I'm not sure which is the chicken and which is the egg - ambitious goals or fear of failure - or if maybe they are the same thing.  But it has made me think about Woody Allen's observation on this in Annie Hall:  "You know, a guy walks into a psychiatrist's office and says, hey doc, my brother's crazy! He thinks he's a chicken.  Then the doc says, why don't you turn him in?  Then the guy says, I would but I need the eggs."

Woody was talking about relationships, but I'm talking about fear of failure. I still get slightly (not pathologically) annoyed at myself for screwing up the crossword. If you lose the fear, do you also lose the ability to achieve whatever it is you want to achieve?

UPDATE:  I corrected my age from the original posting (h/t Dean Andy Perlman).  I am 1000000, not 100000.   When you get to 1000000, it's hard to see all those zeroes.  Another damn failure!  There goes the brain again, releasing those fear of failure juices.

Failure, It Turns Out, is an Option, and a Pretty Good One Sometimes

In my last post, I promised to talk about fear not just in the horse but in the rider.  The point, of course, has to do with the relationship of fear to learning. Kaci Bishop's (North Carolina) recently posted article, Framing Failure in the Legal Classroom, provides a nice segue.  (H/T Paul Caron.) Failing, at least in the micro, is learning, and I agree with Professor Bishop's bottom line that academic and practicing lawyers tend not to be very good at connecting the subject and the predicate in those three words.

I have four very vivid memories of the subject of failure - in the abstract - coming up during my education and career.  I'm paraphrasing most of it.  The first was when I watched the moot court competition finals at Stanford.  The esteemed federal Third Circuit judge A. Leon Higginbotham was a member of the panel.  During the post-argument comments, he said something like "a well-prepared advocate can never lose; the client may not win, but the advocate never loses."  The second was when I was interviewing for my first job out of law school (the Dykema firm in Detroit).  One of the litigation partners said to me, "One of the things we have to do here is train people how to lose."  The third was when I left the firm to join the law department at what was then AlliedSignal (now Honeywell). One of the recruiting documents I received was the 1991 annual report, which contained CEO Larry Bossidy's first letter to shareholders (he had just come over from General Electric where he was second in command to Jack Welch).  The piece I remember most was about leadership and it went like this:  "Of course there will always have to be leaders who make the final decision, but the tyrant in the corner office, the guy with all the answers, need not apply here." (This much appealed to me because, in 13+ years at the law firm, both as associate and partner, I rarely felt that I had any answers to much of anything.)  The last was an interview with Steve Kerr, who had just been installed as GE's first Chief Learning Officer, on the tension between failure and Jack Welch's famous (or infamous) "stretch goals": namely, that if you set ambitious goals for people, you can't punish them if they fail to meet them.

At the risk of TMI, I'm sixty-four years old and still have the standard dreams about failure - for example, the one about missing the entire semester of a math class that met early on Tuesday mornings and now having to take the final.  I started as a litigator, and it became clear that it was easier to give Judge Higginbotham's advice (particularly if you were the judge) than to take it.  I took losing very personally.  Looking back, and then considering what I internalized as failure even in the deal-making or business context, I see it as an illusion (or delusion) of one's own ability to control circumstances.  You can't eliminate the fear; you have to learn to cabin it or manage it (and I think that is one of the points Professor Bishop is making).

I had a couple reactions that I'll talk about after the break.

First, I do agree that failing, in the micro sense, is integral to learning.  I also think that Professor Bishop is correct in incorporating Carol Dweck's distinction between the fixed and the growth mindset.  As I interpret it, it's the difference in the affective orientation to learning that precedes any learning.  If you want to learn, you learn.  If you don't want to learn, you don't.  The fixed mindset is one that has given up on learning; the growth mindset invites it.

Second, Professor Bishop mentions classroom "failures" (i.e. that "law students have as a primary goal not embarrassing themselves in the classroom") but doesn't center her arguments on what I think is a particular aspect of law school culture: the difference between private failure and public failure.  The fear of public failure is what I recall most vividly from the very first class on the very first day of law school forty-two years ago.  It wasn't so much that I read the first case in the Dawson & Harvey contracts casebook (Groves v. John Wunder & Co.) and was mystified; it was that from the opening bell others in my 25-student small section appeared to understand it so well (yes, Robert Weisberg and Douglas Baird, I'm talking to you).

Dealing with public failure if you run a moderately interactive law school classroom is a challenge.  It is hard to be nurturing when a significant aspect of the job is the theatrics of it all.  If you believe in the non-paternalistic classroom, then you ought also to believe that your job as professor is to make the experience more compelling than what is available by way of internet, text, or Angry Birds. Nor is it easy.  Some things students say or ask in class are misplaced or wrong or distractions.  For each student that you try to accommodate gently, there's another one thinking you should have been more brutal.

My quibble, if I have one, with Professor Bishop's piece is that her focus on mindset is confined solely to that of the student.  Just as psychoanalysts need to experience their own analysis to be able to guide anybody else, I don't see how there's going to be much change in the classroom if the fixed mindset is in the mind that is behind the podium.  Over the years, one of the ways I have tried to put myself in the position of a fearful student has been to make myself learn in environments that are not my natural habitat.  The three things I've tried to pick up over the last ten years are playing the piano (I never learned to play any musical instrument) and two athletic endeavors.

All my piano failures are private and relatively trivial, ego-wise.  Not so the athletics.  To put it bluntly, I think I'm pretty agile mentally, but I really, really suck as an athlete.  My joke over the years is that I engage in athletic endeavors (golf, for example) for the massive doses of humility I get.  I think, more seriously, that the activities I've selected in the last couple years force me to confront not only fear of failure, but physical fear, and, more importantly, the delusion of control.  When you ride a horse in an indoor ring with other riders present, you are dealing with a thousand pound sentient being with a point of view, and one that often is not aligned with your own.  Several years ago I decided to start taking fencing lessons (epee).  I'm really bad.  And your opponent is waving a long thin sword around, trying to jab you with it.  Even with all the equipment, it can hurt.  Every one of my opponents' touches is a public failure, but also a learning experience.  Particularly when the opponent is a thirteen year old young woman who wins 10-2.  It's really hard to learn when you are afraid!

Even with all of this, the performance art of teaching law students causes me, unfortunately, to get in touch more often than I should with my inner smart ass and outer stand up comic. (One only need look at some of the things some students say about me in their evaluations to know that I am no paragon of virtue when it comes to making students comfortable with "failure" in class discussion.) Fear has to have its source in evolutionarily adaptive instincts that get housed deep, deep in the reptilian and pre-reptilian parts of our brains.  And, of course, what we are doing in class is the polar opposite. As the Carnegie Report observed,“[a]t a deep, largely uncritical level, the students come to understand the law as a formal and rational system, however much its doctrines and rules may diverge from the common sense understandings of the lay person.”  They are doing that because that is what we are teaching them to do!

I should conclude by observing that, contrary to some popular memes, the vast majority of law professors I've met in the last fourteen years care very deeply about the quality and effectiveness of their teaching.  Wanting to be better, wanting to learn, comes from the inside.  And there are external sources of fear.  Before tenure, there are student evaluations and classroom visits from tenured faculty that bear significantly on your career.  Even after tenure, getting lousy evaluations is like being criticized as a corporate board member from the shareholder activists.  It may not make a lot of difference, but it doesn't feel very good.

Perhaps the lesson from Professor Bishop's piece, at least for me, is to think about the failures that occur from my side of the podium.  One of those might be the failure to heed at least two tenets of Kant's Categorical Imperative: (a) to act in every instance in way that you would legislate the rule of your action as a universal rule (for you aspiring legal philosophers, the source of Rawls's "veil of ignorance" as the basis for justice), and (b) to see every other person as an end rather than a means.  To return to a theme of an earlier post, think about what that says about cold-calling on one student as a means of teaching another student!

The First Day of Class - A Horse's Perspective

During the summers, I usually spend a lot more time around horses and dogs than I do around students (or any people, for that matter).  I climbed on the back of a horse for the very first time almost to the day nine years ago at age 55, and life was never quite the same thereafter.  And about a month ago, I became responsible up here in Michigan for the care and feeding of a Half-Arabian - the other half is Hackney - with the barn name Markie (registered name: EQL Mark of Mine), below right.  (You can see the riding equivalent to a law student's first moot court oral argument here.  Last year, after eight years of coaching, I got up the guts to do what is known as a schooling show. It demonstrates the reason for my own barn name - "Tighty Whitey".  As I suppose often happens, my partner Markie saved my bacon.  Here we are a year later and a little less tighty.)

About this time of year, probably because of the impending transition back to the classroom and dealing with humans, it seems like I always go back to one of my favorite movies, Buck, about the horse trainer (and model for The Horse Whisperer) Buck Brannaman. I posted this several years ago on a blog called The Legal Whiteboard, but it doesn't exist anymore, so I'm resuscitating it here.

Five minutes into the movie, he's beginning a "colt starting" class, in which horse owners are learning how to get horses who've never been saddled, much less ridden, to accept the rider.  He narrates:  "Colt starting is always interesting because most of the youngsters never been saddled, never had anyone on their back, or a bit in their mouth, so there’s a lot of fear in both the horse and the human."  

Then the film cuts to his opening remarks to the owners who are themselves going to have to teach their horses:

“The way I do these colt classes, you guys, you’ll have to get ’em exposed to a lot of things that seem perfectly normal to you but it doesn’t seem normal to the horse.

“You walk up to ’em smelling like a Big Mac, you know, or somethin.’ Your diet is gonna make you smell different to the horse.

“And then you’re gonna tell the horse, ‘don’t worry, I want to crawl on you’ … in a similar posture to how a lion would attack and kill a horse. They jump right up in the middle of them and they reach their front claws around and as they’re biting down on their spine they’re cutting their throat with their claws. You’re asking the horse to let you be in that posture and crawl on him.

"And then about the time he says, ‘Alright, maybe,’ and then you say, ‘Oh one more thing. I want to strap some hides of other dead animals around you before I crawl on you.’

"Damn sure have to have some trust. He’s got to believe in you to let you do that. And amazingly enough, they’ll let you do it.”

I'm pretty sure there's a lesson there for all teachers, but particularly law professors facing a class of 1Ls on the first day.   More on the rider's (i.e. my own) fear to come.

Liz Magill, Stanford Law Dean, to Become UVA Provost

Liz Magill, who succeeded Larry Kramer as the dean of the Stanford Law School in 2012, will leave to become the new provost at the University of Virginia.  She will remain at Stanford until her successor is in place.

Her new boss will be UVA's new president, James E. Ryan, also a former law professor (most recently the dean of Harvard's Graduate School of Education).  

Those interested in filling her shoes should contact Persis Drell, Stanford's provost, who is organizing the upcoming search.

Classroom Without Paternalism?

As my last post on cold-calling seemed to stir the pot, I'm going to close out the month by trying to do it again.  But this time without being a nattering nabob of negativism ($200 in Jeopardy! if you can identify the source of that line - answer below the break).  (As to cold-calling as a means of generating participation, by the way, I admire the alternatives suggested in Steven Baicker-McKee's subsequent "Flipping the Classroom" post.  I mean to try some of that.)

One of Douglas Levene's comments in the earlier post captures my own bias perfectly: "I figure they are all adults and will get out of the class what they put into it."

Indeed, one of my lines on the first day of class, as I am walking through my own expectations of classroom protocol is the following: "Nobody in this building will care more about and work harder at leading you to water than I will, but nobody will care less than I about whether you choose to drink." That usually comes right before or after I tell them I don't care where they sit, how they take notes, or whether they surf the internet during class.

To be clear, I am not suggesting this is the way I would run a primary or secondary school or even an undergrad class. But I do believe pretty firmly that once you are a graduate student bound, even if prospectively, to a code of ethics and disciplinary rules and within three or four years of licensure and accountability by way of grievance or malpractice, you have first to be accountable to yourself and not to your professors.  That includes deciding, in the face of the performance standards you don't control (like what counts toward getting a good grade), how you want to go about meeting the standards.  That was the source of my nattering negativity about cold-calling. I believe oral participation in a first-year contract law classroom (as opposed to a legal practice skills class) is a means to an end, not an end in itself, and something of a paternal imposition on my part if I demand it without consent.  My primary learning objectives are (a) how to translate real world narratives involving promises, commitments, and transactions into legal theories that produce legal consequences, and (b) how to use some of the rules within the contract law canon to achieve that.  (Foolish Consistency is the Hobgoblin of Little Minds Disclaimer #1:  I start the year with on-call "panels" that tend to fade out over time.  Why bother at all?  I don't know.)

Below the break, some positive thoughts about running a moderately non-paternalistic class.  I will don my Kevlar "Jim Harbaugh khakis" and leave the comments open.

Seating charts.  Why bother?  There's a reason why Kingsfield is unrolling one at the beginning of The Paper Chase.  It's so he can know where the student on whom he wants to focus his attention is sitting.  If you don't really believe in cold-calling, then there is no reason at all to have one.  Or, worse, it's just a pure power play.  "I am the professor and can move wherever I want.  You are the student and have to sit where I tell you."

I much prefer Howard Katz's suggestion in the comments to the earlier post.  Our school issues the students name cards that even I can see when they are used up in the back row.  Now, in the early days, when I'm still using the on-call panels, it means I have to spend a minute before class begins scanning the room to find where the six or seven students are perched.  That gets pretty easy because, even without a mandatory seating chart, students tend to sit in the same place all semester.  Foolish Consistency Disclaimer #2:  Sometimes I will walk into class, not see very many name cards up, and announce that anybody without a name card showing is on call.  This usually has the effect of causing the name cards to go up.  I acknowledge, however, that this is my preference - wanting to know student names.  I suppose, taking anti-paternalism to its extreme, it's really up to the student to decide whether the student wants me to know his, her, or their name.  

Laptops.  I acknowledge, with some reservations, the controlled studies indicating that as to certain matters, the mean performance of a population of students who take handwritten notes exceeds, to a statistically significant extent, the mean performance of a population of students listening to the same material but taking notes on a computer.  Here are my reservations (with disclaimer that I am not an expert in the interpretation of statistical data - I have consulted with someone who knows a lot more about this than me and am waiting to hear back, so what follows could be wrong).  First, the studies do not show what I think is a problematic counter-factual - how would the specific student taking notes one way in the study perform if the student took notes the other way?  That is, the studies only speak to the average performance of populations, not to the impact of note-taking methodology on individual students.  Second, in my quick look at the studies, I cannot see whether there was any evaluation of the homo- or heteroscedacity of the data.  In other words, are the variances consistent across all sub-populations or do they vary?  Do better students vary less than poorer students when changing note-taking styles?

My real problem with laptop bans, however, is again the paternalism of it all.  I have not handwritten anything of passing importance in probably twenty-five years.  If bored students are going to surf the internet on their laptops, and I ban laptops, they can use their phone or their Apple watches to play games, text, disturb other nearby students, or otherwise ignore me.  Short of making the classroom door look like the security entrance at the airport, I think it's an illusion of control on the professor's part. (I am still waiting for laptop ban proponents to agree that they must deposit all electronic devices outside the faculty meeting room.)

I do do some things designed to encourage more thinking and less verbatim note-taking, whether by hand or keyboard.  All Power Point slides are available on Blackboard from the beginning of the year (or from when I create it if I make up a new one). I audio record all of my classes and make the recording available through a link Media Services creates on Blackboard.  I organize classes in units.  Upon the completion of each one, I post my class notes on Blackboard as well.  All of this is in the manner of "lead you to water."

Having thought this through as writing this post, however, I have decided to abandon my former "don't care if you drink" approach with disclosure regulation.  Starting this fall, it's going to be something like this:  "I don't care what your manner of note-taking is.  Be aware that there are studies showing that the mean performance of a population of students who take handwritten notes exceeds, to a statistically significant extent, the mean performance of a population of students listening to the same material but taking notes on a computer.  I do not know what that means for an individual student.  I know that I would prefer to take notes on a keyboard, but you need to make your own decision about what is best for you."

Verbal interaction.  I would agree that my classes tend to be more about what I have to say on a subject than what students have to say.  I pose questions to the class or even to individual students all the time.  I would agree with the Socraticists that I want each student in the class individually to be processing what the answer to the question should be.  My own experience as a student, again, recalling from many years ago, is that I tuned out most of the student responses, focused on my own working through of the problem, and waited to see what the professor had to say about it.  As a student, I certainly tuned out any student questions or comments that struck me as going far afield of the point being made.

I confess to not having a lot of patience merely to have students debate an issue capable of different outcomes depending on the rule applied or the manner in which a single rule gets applied.  My consistent point is that what makes non-trivial lawsuits non-trivial is that there is sufficient play in the fact situation to point the case toward one analogous prototype or another.  Hence my ubiquitous Venn diagrams of competing issues (the above picture on trying to figure out if a conditional promise creates a bargain or a gift being an example). Sometimes it takes one of those debates to demonstrate that play, but I don't believe that there are philosophically determinate answers in the Venn diagram overlap, so the debates quickly have diminishing pedagogical returns (at least in my view).

As I mentioned above, the "flipping the classroom" techniques look interesting as a way of promoting engagement without paternalism.

Evaluation.  I do a lot of evaluation.  All of the evaluation is completely open book and open note but must be completed individually (enforced solely by Honor Code commitment as to the quizzes). In first year contracts, there are eight units in the first semester and twelve in the second.  In Business Entity Fundamentals, there are nine units.  After each unit, I post an online multiple choice quiz that is generally due one week later.  So by the end of the year, the contracts students will have done 200 multiple choice questions and the BEF students close to that many.  There is an all-essay final at the end of each semester.  The quizzes count one-third of the total grade in each semester.  I design most of the quiz questions (particularly after the first couple quizzes) so that the student should be able to read the narrative and the call of the question and then think about what the essay answer would be before looking at the proffered answers and distractors.

The point is that I create all of the multiple choice and essay questions from my class notes.  Hence, students who don't engage (whether orally or otherwise) in what is going on in the classroom are at a distinct disadvantage.

Alright.  Kevlar khakis are on.

Suffolk Hiring Announcement

From my Appointments Committee colleagues:

Suffolk University Law School in Boston invites applications for up to three tenured or tenure-track faculty positions at the rank of assistant, associate, or full professor of law starting in the 2019-2020 academic year.  Candidates should have a strong academic background, a record or promise of significant scholarship, and a demonstrated commitment to excellence in teaching. Our primary curricular needs are Criminal Law and Contracts. We hope to hire candidates with combined expertise in one of those first-year subjects and one or more of our upper-level areas of need, which include Constitutional Criminal Procedure, Evidence, business law (especially Business Organizations, Securities Regulation, and Banking Law), Alternative Dispute Resolution, Health Law, and courses on race, gender, sexual orientation and the law. Consideration will be given to relevant practice experience.

Interested candidates should include in their application a resume or curriculum vitae and a cover letter addressed to Professors Joseph Glannon and Lorie Graham, Co-chairs of the Appointments Committee.  All materials must be uploaded to the Suffolk University website.

Suffolk Law is an equal opportunity employer and will give careful consideration to all qualified applicants regardless of race, color, national origin, religion, sex, age, disability, sexual orientation, gender identity, gender expression, genetic information, veteran status, or any other characteristic protected by law.  Suffolk Law is committed to a diverse faculty and strongly encourages applicants from historically under-represented groups. For more information on Suffolk Law’s commitment to diversity, please see this.  

Law School Classroom Techniques: Myth- or Reality-Based?

My friend Hadar Aviram's post about cold-calling awakened me from my anti-dogmatic slumbers.  Trigger warning: this is a "just asking'" post about accepted wisdom among law school professors about what it means to do a good job in the classroom.

I teach contracts to 1Ls (I think that's me on the day I taught the Frigaliment "what is chicken?" case) and business organization law to upper-class students.  Usually, these subjects do not generate impassioned views as to which students feel compelled to speak.  In upper-level classes, I do not call on students at all.  In the Contracts class, I start the year with "on-call panels" but my willingness to call on students generally fades out by the eighth or ninth week of the first semester and never appears at all in the second semester.  (I also don't do seating charts.  I do like it when the students have their school-supplied name cards out in front of them.  And I do tend to learn the names of the students who volunteer.)

Here's my just askin' question.  Does student oral participation in class actually make a difference to a desired learning outcome?

Invariably, when I finally get the results of the blind grading, several of the top performers turn out to be students who never said a word.  I harken back to my own experience.  I was never a shrinking violet in class before I went to law school.  Indeed, I have been described in the past as something of a manic expressive.  My law school organized our first-year class into small sections of about twenty-five students each.  I recall vividly the first day of class - Contracts - having read the case of Groves v. John Wunder and having no clue about anything when I was done.  Two of my classmates went on to distinguished academic careers. They and a whole bunch more in the class seemed to know what they were talking about, and had opinions from day one.  I was sufficiently intimidated on the first day never to say a word unless called on, particularly in large classes, for the next three years.

My suspicion is that the relationship of oral participation in class - and the pedagogical methods that encourage or require it - to learning outcomes or post-graduation success is grounded more in myth than reality.  I suspect the myth originates in the conception of lawyers as barristers and the purported efficacy of the Socratic method.  I have a further suspicion that it gets further support from the tenure process. That is, if you are a pre-tenured professor and being observed for tenure committee evaluation purposes, the observer is going to have a much harder time determining if you are effective if the students don't say anything but are nevertheless thinking deeply.  The availability heuristic is at work.  Orally participating students constitute available information, whether or not it is information on which one can reliably reach a conclusion.

Stay tuned for my next contrarian rant on the subject of banning laptops in the classroom. 

Now (or soon to be) in Paperback: Beyond Legal Reasoning: A Critique of Pure Lawyering

A brief pause for a semi-commercial announcement.  Actually, if we consider the royalties to which I am entitled from Routledge after deducting the cost of a professional indexer, there's very little commercial about it from my standpoint.

Beyond Legal Reasoning: A Critique of Pure Lawyering first takes a granular look at "thinking like a lawyer" - its logic and theory-making - and then at the perils of succumbing to it when one is not in the traditional "lawyer as warrior" mode.  My original title, Unlearning How to Think Like A Lawyer, still lingers in various descriptions.

Apparently the law library market is price inelastic and the publisher waits eighteen months before putting out a paperback edition.  That is now available for pre-order (release date: Aug. 24) at a fraction of the hard cover price.

But ... most of us write to be read, not for the several hundred dollars of royalties that an academic book generates for the author (translating into cents per hour for the time creating it).  If you are interested in a free taste, the preface is available on SSRN.   Or the entire book is available for free at any of these fine libraries.

Or, after the break, you can watch the presentation from last April at the Harvard Law School's Center for the Legal Profession:

There Is Nothing New Under the Sun - Xenophobia Edition

Part of this is recycled from something I posted (can it be?) on Christmas Day, 2007 over on Legal Profession Blog.  At the time it was a tribute to my wife Alene's grandfather, Nathan Milstein, one of the longest serving lawyers in the history of the Michigan bar.  (That is him on the left, Alene on the right, and our niece, Paris Franklin, in the middle.) The last couple paragraphs in that post prompt me to reprise much of it.

Nathan was born in 1907, graduated from Detroit Central High School in 1924, and attended the Detroit College of Law (then the Detroit City Law School and now the Michigan State University College of Law) and Wayne University Law School, receiving his LL.B. at age 21 in 1929.  Nathan passed away in 2003, having continued to practice until his late eighties.

Nathan's practice in the 1930s included, among other things, immigration.  That came up in a conversation Alene had with my colleague, Prof. Ragini Shah, who founded Suffolk's Immigration Clinic.

I am burying the lede here, so bear with me.

What prompted the post over ten years ago was the renewed interest in Diego Rivera and Frida Kahlo. Our family takes a special interest in all things Rivera and Kahlo as a result of a particular historical interlude:  their four year stay in Detroit, beginning in 1929, when, at the behest of Edsel B. Ford, Rivera painted his monumental murals on the walls of the Detroit Institute of Arts.  We have hanging in our living room three prints signed by Rivera, part of a collection of ten he gave to Nathan, who represented and befriended Rivera and Kahlo during their stay in Detroit.  (Family legend has it that Kahlo made a pass at Nathan, but this is unconfirmed.)  

After Nathan passed away (at 96), Alene and I spent many hours going through his voluminous files.  One truly appreciates the historian's and the biographer's art of distilling the story from the data when looking at records like these.  The documents are tantalizing. 

For example, Nathan was a bachelor until 1946, when he married Alene's grandmother, who was a widow with two children.  Before that, he was supporting his mother and sisters.  When the war broke out, he tried for years to find a way to serve without being drafted as a private (which in 1941 paid $21 a month, not enough to support the family.)  Ultimately he found a job as a civilian flight instructor, but the file of letters and rejections to almost every branch of the military and government agency is about two inches thick.  I have framed in my office my personal favorite:  the letter signed by John Edgar Hoover advising Nathan he had failed the F.B.I entrance exam, which I had first interpreted as having been on account of Nathan's being Jewish while taking it.

Back in 2007, the interest in Rivera inspired me to go back through some of Nathan's files. What became clear was that it was likely Hoover objected to Nathan not only because of his ethnicity, but also because he consorted, in the course of his immigration practice, with all sorts of "undesirables," and espoused public positions to which the FBI director of long memory must have objected.  (I like to think that Hoover's two issues with Nathan were related to each other.)

For example, there was a file of correspondence relating to his representation in late 1932 of one Halvard Lange Bojer, the son of noted Norwegian author, Johan Bojer.  The younger Bojer, an engineer who had emigrated to the U.S. in 1928, was working for General Electric in Fort Wayne, Indiana, when he was arrested by the Immigration Service, and transported to the Wayne County Jail in Detroit, on the grounds that he was a member of the Communist Party.  Bojer himself described it to a reporter as follows:  "They tell me that I'm a Communist. . .It so happens that I'm a member of the Communist Party Opposition, whose headquarters is in New York.  Members of that Party, though glad to take Moscow's advice, refuse to take Moscow's dictation.  There are other differences, such as our belief that the worker's solution is in the organization of a Labor Party, comprised of Trade Unions, similar to that of England.  Also, we disbelieve in Moscow's theory that existing labor organizations, such as the A.F. of L., should be wrecked for the formation of Communist units."

The American Civil Liberties Union attempted to intervene on Bojer's behalf.  (I couldn't tell if Nathan was already representing Bojer or if the ACLU retained him on Bojer's behalf.)  On December 12, 1932, Roger Baldwin, the ACLU Director, wrote to Nathan, urging Bojer to fight deportation as a test case.  Baldwin stated:  "The issue is far more than personal to him.  This is the first case, so far as we are aware, when a member of his particular Communist group has been held for deportation on the ground of membership.  It is worth fighting through because it offers a test of the application of the law to other than members of the Communist Party."  Nathan met with Bojer in the Wayne County jail, where Bojer, "a very affable and highly cultured young man," advised that he had no desire to appeal the deportation, and was willing to return to Norway.  He was released pursuant to a bond posted by his friends in Fort Wayne, and joined an "East bound deportation party" on December 29, 1932.

There was an interesting postscript to that story.  Bojer's son or grandson (I don't remember which) in Norway somehow saw the blog post, got in touch with me, and I ended up sending him copies of all the papers.

So finally here is the lede, which was something of an afterthought in the 2007 post, but which in the past two years takes on relevance if not prescience.  The files contained an excerpt from Nathan's tribute to Judge Arthur C. Denison on the occasion of his retirement from the 6th Circuit Court of Appeals in January, 1932:

Humanizing the enforcement of existing laws relating to admission and deportation of aliens has become a serious problem confronting social leaders throughout the country.  In the present delirium of unemployment when a vague terror seizes the nation, this fear is translated into alien hatred.  Public discontent must be directed away from the cause of the unrest and to accomplish this, a counter irritant is administered.  The ever oppressed alien is again victimized.  The term alien becomes synonymous with undesirable.  Deportation "drives" and "spectacular raids" then become common occurrences.  Wholesale deportation follows as a panacea for what ails the nation.  This national hysteria influences the action of public officials and finds expression in more rigid and relentless enforcement of deportation laws.  Even the courts are sometimes swept into the whirling cyclone, marring the annals of juridical science with unprecedented decisions.  To espouse the cause of the under-privileged requires great courage.  Those who bear the courage of their convictions and refuse to be swayed, belong to the school of Holmes and Brandeis.  So few do they number that a loss in the ranks is keenly felt by liberty loving citizens.

And here's more.

The recent resignation of Judge Arthur C. Denison of the United States Circuit Court of Appeals for the Sixth Circuit is such a loss.  As a student of social conditions, he has clearly recognized a festering condition to which the Congress of the United States has closed its eyes.  Dwelling above the sound of passing shibboleths, he has refused to harken to the murmur of the moment.  Recognizing that immigration statutes are very drastic and deal arbitrarily with human liberty, he has found it necessary to remind Immigration Authorities that aliens are human beings and as such have rights in any country in which they are domiciled, not under the principles of natural justice, but under the Constitution itself.  Aliens help to create the wealth of our nation; they are subject to its laws and must comply with all its demands of taxation.  Aliens, therefore, who have become part of our household and who have cast their lot permanently with ours, must be accorded the protection of law that is granted our citizens.

 Oh, and by the way, Nathan insisted to me many years ago that he was a Republican.

A Professor's Modest Dream

My undergraduate alma mater, the University of Michigan, holds an annual summer event up here in northern Michigan, generally highlighting an achievement of somebody affiliated with the university.  This year it was an interview with Hendrik Meijer, the CEO of the Meijer super-grocery store chain, but also something of a scholar, who just published a biography of Senator Arthur Vandenberg. (Michael Barr, long-time Michigan law professor and recently appointed dean of the Gerald R. Ford School of Public Policy, ably conducted the interview.)

But I digress slightly.  Absolutely my favorite course at Michigan was the fall 1973 edition of "Introduction to Film," taught by Professor Frank Beaver (left), only three years out from having received his Ph.D.  I remember that course chapter and verse, from conceptual montage to the shocking "gun" scene in Edwin S. Porter's The Great Train Robbery to the assessment of that neat new film, American Graffiti, to Professor Beaver's admiration of Haskell Wechsler's Medium Cool. (I wrote my paper for the course on Deliverance.)

A couple years ago, I recognized Professor Beaver at one of these events, introduced myself, and began spouting back to him chunks of lectures he had delivered more than forty years before.  Since then we catch up annually, as we did last night, on new movies.  Professor Beaver still writes on film for Michigan Today, the alumni publication.

I think I took his course in his fourth year of teaching.  I "accosted" him roughly forty years later.  Because of my late entry into academia, the equivalent for me would be a former student approaching me in roughly 2051, when I will be a spry 97 years old.  I can only hope.

Coase and Fireworks

In my continuing effort to demonstrate what the mundane world looks like through the eyes of a nerdy law professor, today we will talk about Ronald Coase, recipient of the Nobel Prize in economics, and fireworks.

Before we had dogs, I liked fireworks, at least the professionally staged kind.  Up here in Charlevoix, Michigan, every year in late July the town has a week-long event called Venetian Festival.  The highlight on Friday night is a spectacular fireworks show out over the lake for which our deck is effectively a front row seat.  For the last seventeen years or so, however, I have not been out on the deck nor have I seen the fireworks.  No, I am back in a closet with the door closed, comforting our dog(s) who is/are going batshit crazy.

With the professionally staged fireworks, at least I know when to go into the closet and when I can come out.  It's the private ones that really drive me crazy.  In Massachusetts, where we live nine months of the year, I don't have worry.  Private fireworks are illegal, end of story.  

Here in Michigan, however, we have to deal with one aspect of the state legislature's Year of Living Stupidly.  In 2011, the same year it passed the law eliminating the requirement that motorcyclists wear helmets, Michigan first permitted the sale of fireworks in the state.  In 2013, it amended the law to permit local units of government to ban the use of consumer fireworks, but not on national holidays, the day before or the day after a national holiday.  (It also allows any city in the state with a population greater than 750,000 - there is only one - to ban them between midnight and 8 a.m. on such holidays, and only between 1 a.m. and 8 a.m. on New Year's Day.)

The reasons for my sitting on the beach and, like a complete dork, reading Ronald Coase's The Problem of Social Cost follow the break. If he had the house next door, and had the same issues I do, what might he say about it?

Our local unit of government, the City of Charlevoix, and the surrounding Charlevoix Township each enacted ordinances banning the private use of consumer fireworks to the extent permitted by the Michigan statute.  Thus, for three of the days we are here during the summer (July 3-5), we have to deal with the possibility that some *)&(*^*^&$ is going to be responsible for random and unexpected fireworks activity that turns our dogs' brains into petroleum jelly and causes them to (a) howl madly, and (b) scurry around the house wildly under beds, couches, and other areas of perceived safety.  

The rest of the summer we can be fairly sure that our nearby neighbors won't be using consumer fireworks because of the local ordinance.  If they did out of a misunderstanding of the law, and they were to ignore our friendly suggestion that they obey the law, we would be within our rights to call out Charlevoix's Finest.

Here's the problem.  If you happened by my earlier discussion of riparian rights, you saw this Google Earth picture. It so happens that I took the above picture just about at the tip of the red arrow.  The city proper is largely to the left (west) of the tip of the arrow.  The township pretty much ends at the other end of the arrow.  Every thing else to the right, including that peninsula (known as Pine Point) that looks sort of like India, is in Hayes Township.  Hayes Township has never passed an ordinance banning fireworks.  So just after it gets dark, for much of the summer, we are treated to a fireworks display that carries very nicely, sound and otherwise, across the mile or so to our house.

Where our dogs, having dog-like senses of hearing and smell, proceed to have their brains turned into petroleum jelly and thereupon to (a) howl madly, and (b) scurry around the house wildly under beds, couches, and other areas of perceived safety.

Now, I know that the reason for all of this fireworks activity under the current legal regime is the result not of, as Coase might hypothesize, a railroad needing to run a railroad even if sparks cause crops to catch fire, or industries needing to burn fuel even if it causes air pollution nearby.  It is the product of market activity in which the total value of production exceeds the cost of such production, and consumer activity in which the utility engendered by playing with toys that make loud booms and bright flashes exceeds the cost of such activity, at least for those engaged in it.

The social cost occurs across the lake at my house, where I am contemplating the purchase of doggy Xanax.

The popular takeaway - the "Coase Theorem" - applied to my situation is this.  In a world of zero transaction costs, the total net social welfare of setting off fireworks, on one hand, and my distress in dealing with the dogs does not depend upon the initial allocation of rights.  Assuming that we valued noise and peace in the appropriate ranges, either the celebrants would pay me for the right to have the rockets' red glare or I would pay them to cease and desist. 

It works like this. Let's assume that the pricing system works costlessly and the only actors are A across the lake who wants to use fireworks and me.  The cost to me of insulating my house against fireworks noise is $100.  If the default rule is that the fireworks can't be used without my consent, and the value to A of his (and it's always a "he") activity is more than $100, then A ought to be willing to pay me up to $100 to shoot off fireworks (the cap being $100 because for that amount he can pay for the insulation of my house).  If there is no regulation against fireworks, and I value silence at more than $100, I ought to be willing to pay A up to $100 to have him stop.  In short, with a smooth and costless pricing system, you get the same result regardless of the initial legal entitlement. But, of course, the idealized world of zero transaction costs doesn't exist, and so even if the world only consisted of A and me, and the transaction costs of paying off A creates a total cost to me that exceeds the value of silence, I won't do it, even if without transaction costs it would have been the more efficient result.  And it's not just A and me.  It's many of the good citizens of Hayes Township and many of the good citizens of Charlevoix.

Is there a market solution to my problem?!!?  It turns out that Coase didn't articulate a theorem (or at least that wasn't his object in the article).  There were no helpful hints on how to articulate a default rule so as to minimize transaction costs with the aim of an optimal allocation of resources.  In fact, he never used the word "theorem" or the term "transaction costs."

I recommend Pierre Schlag's critique of the morphing of what Coase said in Social Cost into neo-classical law and economics.  At the beach the other day, I confirmed Pierre's statement that you can get the entire basis for what others now call the Coase Theorem by page 8 of Coase's original 1960 article and skip the remaining 36 pages (actually there's a piece of it at pages 15-16 as well).  Pierre's critique is not of Coase's article. His point was that the popular takeaways - mainly Chicago Law and Economics - have transformed Coase's point into something else entirely. It wasn't Coase who developed the L&E focus on using neo-classical economics to justify legal rules, or to focus on the reduction of transaction costs in pursuit of an idealized efficient solution.  Moreover, in a different piece, Pierre observed that the L&E approach to transaction costs itself is neither theoretically intelligible nor operationally applicable.

To the contrary, according to Schlag (and, by my reading of Coase, he is right), Coase had a far different goal in Social Cost. Coase wanted neo-classical economics to take account of the real world, in particular the effect of law and legal institutions on resource allocation.  Coase's main object was to criticize the prevailing acceptance among neo-classical economists of the idea of Pigouvian taxes.  He wanted to demonstrate the problem with Pigou's approach to externalities - namely, to impose taxes or bounties to the extent that the social cost of an activity exceeded the private cost to the actor.  

Coase was skeptical of Pigou's entire approach.  The bounties or taxes were likely to be overbroad.  Indeed, the focus on making an actor's private costs equal to the total social cost of the activity was misplaced.  In the foregoing example, suppose the social cost of fireworks noise is $200 to me.  Coase criticized the knee-jerk remedy merely of taxing the activity in the amount of $200, because it is possible, in an appropriately free market, that it would only cost $100 to achieve an optimal allocation of resources. In short, the appropriate way to judge externalities (Coase didn't use that term either) was to assess the total effect on social costs both for the actors and those affected by the actors and not simply to add costs to deter the unwanted activity.

But, wait. If the market is not going to work, am I out of luck?  I don't think so.

If Professor Coase lived next door and I were to walk over there and find him, like me, huddled in a closet with his batshit crazy dogs, I don't think, based at least on what he said in The Problem of Social Cost, that he'd rule out the idea of having government rather than the market decide how resources are to be allocated. Firms get organized when there are opportunities for value-enhancing transactions, but only under a scheme where less expensive intra-firm administrative costs substitute for higher costs of market transactions. And then there is the case of something like fireworks noise, "which may affect a vast number of people engaged in a wide variety of activities" and so "the administrative costs might well be so high as to make any attempt to deal with the problem within the confines of a single firm impossible.  An alternative solution is direct Government regulation."  Here, Coase observed that "[t]he government is, in a sense, a super-firm (but of a very special kind) since it is able to influence the use of factors of production by administrative decision."  Coase pointed out that the "government is able, if it wishes, to avoid the market altogether, which a firm can never do."

That is an interesting point up here along the lake. Yes, government regulation can be overbroad and inefficient. 

But equally there is no reason why, on occasion, such governmental administrative regulation should not lead to an improvement in economic efficiency. This would seem particularly likely when, as is normally the case with the smoke nuisance, a large number of people are involved and in which therefore the costs of handling the problem through the market or the firm may be high.

But you have to get down to cases and not deal in abstractions. Coase thought economists and policy-makers over-estimate the advantages of government regulation, but all that does is suggest that government regulation should be curtailed. "It does not tell us where the boundary line should be drawn. This, it seems to me, has to come from a detailed investigation of the actual results of handling the problem in different ways."  The problem even with local government regulation is that it doesn't fully account for all of the social costs, because the board of supervisors in Hayes Township has not enacted the same ordinances as Charlevoix and Charlevoix Township, and parts of Hayes Township are closer to my living room than parts of my own city.

So, here I am, 1,778 words into this blog post, and discovering that, if Ronald Coase were my neighbor, I might well get him to join me in an effort to get the county or maybe the state government to understand there is a social cost to fireworks.  Not everything needs to be dealt with in terms of markets.

In this article, the analysis has been confined, as is usual in this part of economics, to comparisons of the value of production, as measured by the market. But it is, of course, desirable that the choice between different social arrangements for the solution of economic problems should be carried out in broader terms than this and that the total effect of these arrangements in all spheres of life should be taken into account. As Frank H. Knight has so often emphasized, problems of welfare economics must ultimately dissolve into a study of aesthetics and morals.

I suspect he'd agreed with me that, for fireworks, as elsewhere, "[in] devising and choosing between social arrangements we should have regard for the total effect." We could gather up the dogs and all those suffering from PTSD and march on township hall to tell them just that.

Or maybe he would tell me that I had over-thought the issue and suggest reading more appropriate for the beach.

Self-Plagiarism (and the First and Second Laws of Textual Physics)

June is my intense writing month, by and large, and I just finished up a draft that, as I said elsewhere, may not be ready for Broadway, but is ready for out-of-town previews on SSRN.  (If you are curious, it's titled The Persistence of "Dumb" Contracts. It ponders the extent to which artificial intelligence could take over the non-blockchain contract drafting lawyers have been doing for hundreds of years.)

If you are like me, and have been at this for a while, you probably have developed a theme that pervades your work. Mine has to do with how people, and lawyers especially, make tough judgments in the face of uncertainty. Not tough judgments (although they may be) in adjudication, but what to do when your nicely developed lawyerly rationality can give you five good reasons for doing A and five equally good reasons for not doing A. A perfect example was Meryl Streep as Katharine Graham deciding whether to publish the Pentagon Papers (I rented The Post last night); you either take the leap or you don't.  Not to decide is to decide.

Sometimes a sentence or a paragraph or a long footnote from a previous piece seems like it fits in the new one. It's so easy to copy and paste and - voila! - you've written 200 words - a nice chunk of the day's quota. At least at some point in the drafting of Persistence, I did that. Is it okay?  (Spoiler alert: as far as I know I made it okay under even the most stringent standards.) Thoughts on self-plagiarism follow the break.

First off, let's define plagiarism.  I'll go with the definition we give our students: "taking the literary property of another, passing it off as one's own without appropriate attribution, and reaping from its use any benefit from an academic institution."

Second, self-plagiarism is indeed an issue,  There's a nice piece on this at the RIPS Law Librarian Blog, specifically about this issue in the law review context.  There are two sins that fall under "self-plagiarism" that are not what I'm talking about.  The first is creating many publications from the same study.  (Even that strikes me as overbroad - you can do a popular piece and an academic piece from the same material and not be committing a faux pas, as long as you disclose it.) The second is more serious, which is actually submitting the same work to different journals and permitting it to be accepted in multiple places.

The third issue is the one I'm most likely to encounter in my own work - what the RIPS bloggers call, in a less pejorative way, text recycling. That seems fair, because (apart from copyright issues if the journal holds it) you really aren't passing off someone else's intellectual output as your own. The RIPS bloggers are thoughtful about this.  If you are building on a body of work, it does seem silly to have to reinvent the wheel or have part of your article oddly set off in block quotes because you used it before.  On the other hand, they point out that editors and readers have a right to know if what they are reading is not original work, even if if originally it was yours. Not surprisingly, they advocate a sensible policy.  If you are using it again, disclose it either in a footnote, a in-text reference, or a general disclosure like you regularly see in a book preface when some of the chapters had earlier iterations as law review articles.

The lesson I learned this month, however, was slightly different.  I had inserted a footnote to the effect that much of the discussion on a couple pages had first appeared in my own piece, appropriately cited. The RIPS people would have been satisfied. The problem was one that, frankly, I didn't see, and it took another reader to point out.  I'm going to call it "textual inertia," or even better, "Lipshaw's First Law of Text Recycling." It goes like this:  "Every piece of text, once written, tends to remain in that state of drafting unless an external force is applied to it."

There is a Second Law as well: "The relationship between a text's mass (m), the ease by which it can be edited (a), and applied force (F) is F = ma, where a text's mass is directly proportionate to how pretty a word processor makes it look on the page."  What this means is that if you were to handwrite the text in a scrawl on a legal pad, you don't need much force to edit it.  But if you cut and paste the prior text into Eugene Volokh's wonderful law review article template, it becomes very hard to move.

That's why it's so hard to edit even a piece where you haven't recycled text. But when you recycle, chances are you really aren't making the same point that you made before.  It's the idea underlying the text that has relevance in this newer piece.  But it's so damn easy to cut and paste, and once you've done that, the First Law sets in.  And, as my friend who read the draft pointed out, that particular passage sounds like a tangent not quite related to the point of the article.

* By the way, my usual blogging home, at least on issues relating to legal education, lawyering, legal thought, etc. is now Paul Caron's iconic Tax Prof Blog.  This entry will be self-plagiarized, I mean cross-posted, over there.

Bard Signing In

Let me start my third visit to Prawfs Blog with warm thanks to Howard Wasserman and to my fellow bloggers for the work they have done keeping this forum going. As the public information about Professor Markel’s murder becomes increasingly lurid, I’d rather focus on his work than on the circumstances of his tragic death. And from the beginning his work on this blog was to provide legal academics a forum to talk to each-other about matters of interest to them—whether it was highlighting a new study, commenting on a case or talking about legal academe.  

As a brief self introduction, I’m starting my second year as the very proud dean of the absolutely amazing University of Cincinnati College of Law. Every day I hear something about what one of our faculty, alumni, staff or students are doing and I’m proud to have a role in sustaining the framework that allows these things to happen at our historic law school. So I’m going to talk about legal education. But as an engaged health law academic specializing in ethical issues in public health, the unchecked spread of Zika in the United States is also going to be a topic of discussion. Thank you for having me. It is a real honor to be included.

The End of Ambition?

I hear that sixty is the new forty.  I hope so.  It's the end of the month, and I'm thinking about ends.  And if the bromide is true, I'm premature.  But here's a trigger warning anyway: what follows is about "ought" fading into "is" or "becoming" fading into "being." It's also hopelessly self-indulgent, but my excuse is that I just got the schedule of faculty meetings for the next year.

By a quirk of career fate, I'm a bit older than most of my professional cohort (in this incarnation).  Next year  will be the fortieth anniversary of my first day of law school, something that flips me out, but also means that I was puzzling through Groves v. John Wunder before the majority (I suspect) of the readers of this blog were born. And it means that most of you will have no conception at all of the inner sense of being closer to the end than to the beginning. There's a hint of it in somebody like that young whippersnapper, President Obama, realizing that he has run his last campaign, but he really does have a whole career ahead of him still.  (On January 20, 2017, he'll be 55, which is only a year older than I was when I got a full time permanent faculty position.)

Running the last campaign is a nice metaphor, because campaigns are about becoming. Careers are a continuing series of campaigns - getting a job, making partner, getting tenure, getting promoted. NPR just ran an interview with Woody Allen, who turns 80 (!!!!) on his next birthday. To the extent that professors create through their writing, those pieces, like the movies that Woody keeps making, are becomings. But those are slightly different becomings, more like unfoldings, and not like steps up a ladder.

My friend, the philosopher Susan Neiman, has a new and neat little book about becoming and being, entitled Why Grow Up? Subversive Thoughts for an Infantile Age (New York Times Book Review by A.O. Scott here).  Susan is a fabulous translator of Enlightenment philosophy (particularly Kant) into practical wisdom. I don't necessarily share her outcomes (she's a lot farther to the left than I, a passionate moderate) but given her fundamental message, there's a lot of room for reasonable differences.  That's because adulthood is (to quote Scott's pithy summary) "the endless navigation of the gulf between the world as we encounter it and the way we believe it should be." Or as Susan says, it "requires facing squarely the fact that you will never get the world you want, while refusing to talk yourself out of wanting it."

So adulthood is also a mediation between simply being, on one hand, and continuing to become, on the other. Maybe being closer to the end than the beginning means that you have to be more selective about your becomings. The practical translation of that thought is the expression "life is too short," something that takes on more quantitative meaning the older you get, and particularly during faculty and committee meetings.

Even this blog post is a little becoming, because when I'm done with it, I've made the world a little more like it ought to be than it was (at least for me).  Each paragraph, each article, each book, each lecture, each student one influences is a little becoming.  But is accepting that as the rest of one's career also the end of ambition?

The Art of Lawyering and Beyond

Praveen Kosuri (left), the director of Penn Law School's entrepreneurship clinic, has a neat new piece, Beyond Gilson: The Art of Business Lawyering.  Here's the abstract:

Thirty years ago, Ronald Gilson asked the question, “what do business lawyers really do?” Since that time legal scholars have continued to grapple with that question and the implicit question of how business lawyers add value to their clients. This article revisits the question again but with a more expansive perspective on the role of business lawyer and what constitutes value to clients. Gilson put forth the theory of business lawyers as transaction cost engineers. Years later, Karl Okamoto introduced the concept of deal lawyer as reputational intermediary. Steven Schwarcz attempted to isolate the role of business lawyer from other advisors and concluded the only value lawyers added was as regulatory cost managers. All of these conceptions of business lawyering focused too narrowly on the technical skills employed, and none captured the skill set or essence of the truly great business lawyer. In this article, I put forth a more fully developed conception of business lawyer that highlights skills that differentiate great business lawyers from the merely average. I then discuss whether these skills can be taught in law schools and how a tiered curriculum might be designed to better educate future business lawyers.

What Professor Kosuri captures is that it’s a complex world out there, and trying to distill the essence of business lawyering through one particular science (rather than art) is going to be radically incomplete.

Nevertheless, his approach continues in an analytic tradition of identifying characteristics from the outside, and suggesting essentially that others, for want of a better word, mimic those characteristics. My view ups the stakes even more, because I think being a great business lawyer is not only beyond the acquisition of technical skills, it’s also beyond the acquisition of art. Stated more plainly, to learn the art, to acquire the characteristics Professor Kosuri describes, you have to want them first.

Which raises the question of teachability. I’m pretty sure we instill this affect, this emotional predisposition, more through our modeling of behavior than we do by way of teaching through our words.  There's been a lot of discussion of Atticus Finch in the last few weeks, and who knows how many people Harper Lee inspired to be lawyers through To Kill a Mockingbird (and, hence, the downer of finding out that he may not have been as godlike as previously thought). I confess that I have never read To Kill a Mockingbird, and have only seen parts of the movie. My lawyer hero was Henry Drummond from Inherit the Wind, the fictionalized Clarence Darrow, and his cross-examination (taken in large part from the Scopes trial transcripts) of Matthew Brady, the fictionalized William Jennings Bryan, was the apotheosis of lawyering.

Well, you grow up and it turns out that making a living as a litigator in, say, 1979 or 1985 isn't (for most of us) like trying the Scopes case. But that doesn't diminish the impact of "be like" as the source of one's desire to learn a particular way of practicing one's craft.

And isn't the hardest place either to teach or model "be like" from behind a podium in a lecture hall?

God Doesn't Play Dice, Spooky Action at a Distance, If You Have a Hammer, Everything Looks Like a Nail, Ships Passing in the Night, and Other Metaphors For Belief and Debate

This is a reflection about disciplines and theory, in particular, law and economics.  I preface it by saying that I think economics is a fascinating subject, I took a lot of econ classes in college (mostly macro), and I was an antitrust lawyer for a long time, which meant that I had to have some handle on micro as well.  What provokes this particular reaction is a new piece by Bob Scott (Columbia), a far more distinguished contract theorist than I, on the same subject, contract interpretation, on which I've been writing and blogging this summer.  Bob and I aren't just ships passing in the night. (If we were, he'd be the aircraft carrier in the photo at left.) We are sailing in different oceans. I have been thinking the last few days about why. (I should say that Bob and his frequent co-author, Alan Schwartz, have acknowledged my previous critiques in print. The sailing metaphor is about our concepts, not the fact of the dialogue!)

I'll come back to the specifics later. What I want to consider first is those circumstances in which reasoned discussion is or is not even possible. A couple years back I read a fascinating article by a philosopher named Brian Ribeiro, in which he assessed truly hard cases of conflicting belief, i.e., those instances in which the interlocutors disagree but are not ignorant of critical facts, are sufficiently educated, and are under no cognitive disabilities. A perfectly good example is religious belief. If you are a Mormon or a Catholic, you are going to believe things about which no amount of reasoned argument will change my belief. Rather, a change has to be the result of a conversion.  To quote Ribeiro, "If reconciliation is to occur, then one of us must forsake reason-giving (non-rationally) reject our old rule, and (non-rationally) accept a new rule, thereby ending the dispute."

It's pretty easy to see that issue in the case of religion, but my contention here is that it happens all the time in academia, i.e., we are ships passing in the night because we begin with an affective set of foundational beliefs upon which we base our sense-making of experience, and the affect is simply not amenable to anything but a conversion experience if there is to be a change.  The first part of the title is a reference to Einstein's famous quip about quantum mechanics, and has to do with something very fundamental about how you believe one event causes another (like particles influencing each other simultaneously at distances greater than light could travel in that instant - the issue of "entanglement" that Einstein called "spooky action at a distance").

I'm not saying that one can't be converted. I suspect there would be some experiment that could have brought Einstein around, just like Arthur Eddington's experiment brought Newtonians around to Einstein's general relativity. The issue arises at a meta level, when you don't believe that there can be evidence that would change your belief. Sorry, but I don't think even my believing Christian friends whose intellects I  respect beyond question are going to get me to believe in the divinity of Jesus Christ.

I'm pretty sure that there's no bright line that cabins off the meta issue of belief solely to matters of religion, however. My friend and next door neighbor, David Haig, is an esteemed evolutionary biologist at Harvard. He and I occasionally partake of a bottle of wine on a Saturday or Sunday afternoon, and come around at some point to the "hard question of consciousness." This is the unresolved scientific and philosophical question of the phenomenon of consciousness. At this point, the debate is not so much about whether there is a reductive explanation, but whether there can ever be one (that's why it's still as much a philosophical as scientific debate). David and I pretty much agree to disagree on this, but my point is that reasoned discussion morphs into belief and conversion at some point.  That is, if presented with a theory of consciousness that comports with the evidence, I'd be pretty stupid not to be converted (just as if Jesus showed up with Elijah at our next Passover Seder and took over reading the Haggadah). But for now, he believes what he believes and I believe what I believe. (There's a philosophical problem of induction buried in there, because usually the basis of the belief that we'll solve the problem is our past experience of solving heretofore unresolvable problems.)

How this ties back to something as mundane as contract law after the break.

First, I owe it to Bob to plug his forthcoming Marquette Law Review article, Contract Design and the Shading Problem, the abstract of which is as follows:

Despite recent advances in our understanding of contracting behavior, economic contract theory has yet to identify the principal causes and effects of contract breach. In this Essay, I argue that opportunism is a primary explanation for why commercial parties deliberately breach their contracts. I develop a novel variation on opportunism that I identify as “shading;” a behavior that more accurately describes the vexing problems courts face in rooting out strategic behavior in contract litigation. I provide some empirical support for the claim that shading behavior is both pervasive in litigation over contract breach and extremely difficult for generalist courts to detect, and I offer an explanation for why this is so. In contrast to courts of equity in pre-industrial England, generalist courts today are tasked with the challenge of interpreting contracts in a heterogeneous global economy. This has left generalist courts incapable of identifying with any degree of accuracy which of the litigants is behaving strategically. I advance the claim that ex ante design by commercial parties is more effective in deterring opportunism in litigation than ex post evaluation of the contractual context by generalist courts. I illustrate this claim by focusing on the critical roles of uncertainty and scale in determining how legally sophisticated parties, both individually and collectively, design their contracts. By deploying sophisticated design strategies tailored to particular environments, parties are able both to reduce the risk of shading and to cabin the role of the decision maker tasked with policing this difficult to verify behavior. I conclude that judges and contract theorists must attend to the unique characteristics of the contracts currently being designed by sophisticated parties because it is the parties, and not the courts, that reduce the risks of opportunistic shading in contract adjudication. 

What Bob is wrestling with is how to fit the problem of contract language into the law and economics of contracts.  "Theory" would predict that contracts are a check on opportunism, and therefore we ought to see a reduction in opportunistic behavior, particularly as between sophisticated parties who write complex agreements. But we see LOTS of opportunistic behavior and so how do we explain it? Well, it must be because somebody is acting opportunistically, and pushing an ex post interpretation of the language that couldn't realistically have been what it meant when the parties agreed to it ex ante.

 

Economic theory of contract law - i.e., the relationship of contracting behavior to the reduction of opportunism - demands a causal relationship between the act of making a contract and the application of that contract to resolve a dispute that occurs later in time.  Moreover, if the contracting parties are rational, they ought to trying to make their contracts as "complete" as possible, that is, to anticipate as many "state contingencies" as they can. To quote Bob Scott: "Faced with this wide gap between theory and reality, the answers to a critical empirical question remain elusive: how do sophisticated parties adjust ex ante to the prospect of breach ex post?"

 

Bob and I don't disagree that the world is rife with opportunistic behavior, and it occurs as much in the case of sophisticated market actors as with anybody else.  Why we are ships passing in the night has to do with our respective orientation to theory and causation. I'm being presumptuous here, but I think for an economist to delink the ex ante contracting behavior from the ex post opportunism is, like Einstein, to accept spooky action at a distance. The theory is the hammer and, if you have it, the problem looks like a nail.

 

As I've written (ad nauseam, but at least here and here), I have a completely different view of the causal connection (or, to put it more bluntly, the lack of one) between the creation of ex ante contract text and ex post contract opportunism.  All law and economics scholars would (I think) agree that "complete contracts" - i.e. contracts that can in theory anticipate every state contingency - don't and will never exist in the real world. I think the concept, as a matter of fundamental belief, is so ephemeral and fantastical that I can't accept it even as the basis from which to begin an argument. Similarly, I believe the phrase "mutual intention of the parties" is right up there with "the present King of France" in terms of nominally coherent descriptions of non-existent things.  On the other hand, I can understand if an economist would look at my view as saying, in essence, God plays dice with the world, or as contending that I've reduced the behavior to something like spooky action at a distance.

 

What's interesting about all of this is my suspicion (confirmed by my exchanges with Bob offline) that we'd probably face practical problems as pragmatic lawyers in very similar ways. The dialogue is really about fundamental orientations to making sense of the world.

"We Begin with the Assumption that Contracts Matter...."

One of my reads this summer, because it's relevant to my piece on "lexical opportunism," has been a fascinating little book by Mitu Gulati (Duke, left) and Robert Scott (Columbia, right), The 3 1/2 Minute Transaction: Boilerplate and the Limits of Contract Design (Chicago, 2012). The subject matter is a puzzler: why did sophisticated law firms keep including a particular contract provision (the "pari passu" clause) in sovereign debt agreements when (a) almost nobody could present a credible explanation of its purpose, and (b) a highly publicized case affirmed an interpretation of the clause that threatened to undermine all attempts to restructure sovereign debt?

Let me start with words of praise. This is a good read and good work. Anybody seriously looking at issues in contract theory ought to be reading it. But it's refreshing to read the results of an academic, empirical piece where the authors are so frank about their bemusement and their inability to come up with a satisfying explanatory theory. Professors Gulati and Scott come at the problem with a neoclassical economic perspective, and find that "these hard-nosed Wall Street lawyers told us stores about rituals, talismans, alchemy, the search for the Holy Grail, and Zeus." (5)  It's pretty clear 173 pages later they'd agree that the conclusion - sticky boilerplate and herd behavior - is a whimper rather than a bang.

I confess that Ayn Rand's The Fountainhead and Atlas Shrugged were staples of my intellectual youth. I've since come to terms with some of the hokum and inherent contradictions in the philosophy (she hated Kant, and I kind of know why - her response to the limits of reason was to opt for an orthodoxy of logic, including the foundational posits that logic requires), but many of her bon mots come back to me at opportune times.  The apropos quote here is from Francisco d'Anconia to Dagny Taggart: "Contradictions do not exist. Whenever you think that you are facing a contradiction, check your premises. You will find that one of them is wrong."

So.... One of the fundamental puzzles for Gulati and Scott is why sovereigns incur any costs toward lowering the cost of capital by way of contract design, and yet economists seem to think that contract design is irrelevant. The bridge from that to their assessment begins as follows: "In any case, as contracts scholars, we begin with the assumption that contracts matter." (23)

That bothers me.  Let's try these variants.  "As philosophers, we begin with the assumption that metaphysics matter." "As human anatomy scholars, we begin with the assumption that appendixes matter." "As physicists, we begin with the assumption that phlogiston matters." What's going on is a demonstration of the subtle ways in which descriptive theory has a normative component, even if the normative element is as basic as something like "this activity should be amenable to explanation by way of theory." If you start with neo-classical welfare-maximizing as the default in human decision-making - i.e., ceteris paribus, that's how the world ought to operate - no wonder it's a puzzle when it doesn't turn out to work that way. (I'm not sure if old Ayn ever got to the part of the Critique of Pure Reason that works through this - it's buried in an Appendix to the Transcendental Dialectic, beginning at pages A643/B671.)

If we check our premises, maybe contracts don't matter.

"No Contracts"

For all that lawyers and law professors traffic in language, sometimes I think language is to lawyers as water must be to fish. That is, if you live in it, it's kind of hard to step back and realize the universe could be constituted out of some other medium.

Up here, the cable provider is Charter, and it runs a lot of commercials. The actor in the commercial for its business services trumpeted yesterday that one of the benefits of subscribing was "no contracts!"  Well, you and I both know that there HAS to be a contract. God knows Charter will be disclaiming SOMETHING - like, for example, the potential for consequential damages to a business if the internet connection goes down.  

What we all know is that "no contracts" actually means something other than its literal meaning.  "No contracts" means only that the subscriber won't be held to a fixed term, and will be able to cancel its service without much notice to Charter. OMG, the plain meaning is precisely the opposite of the plain meaning!

The particular conceit of the smartest people in our profession - and I mean both practitioners and professors - is that words and sentences are capable, with the right skills, of exactitude that approaches an asymptotic limit. Within a certain school of contract law theorists, this gets expressed as the idea of an "incomplete contract," as though the idea of a complete contract, one that contemplates EVERY possible state contingency, is something any more conceivable than the Kabbalists' notion of God (the Ayn Sof - "there is no end"). I put the term "complete contract" in the same conceptual category as I do non-words like "gruntled," "dain," and "combobulated." 

Below the break, I fulminate on this idea - that plain meaning is like Schrödinger's cat, existing and not existing at the same time - in the context of statutes (i.e. King v. Burwell) and contracts. (Full disclosure: I'm the guy who, when any student in my contracts class says the words "mutual intention of the parties," starts making "woo-woo" noises and acting out the Vulcan mind-meld.)

I don't usually wade into the great issues of the day, but I thought I ought to read the King v. Burwell opinions.  If you put aside the politics, Chief Justice Roberts's opinion is a pretty well-trod exercise in the interpretation of a text: what does it mean for a health care exchange to be "established by the state"? Does that mean state itself  has to put the exchange in place under its law, or does it also mean an exchange that the federal government has established for the state as the default?  

For contracts professors, it's not too surprising.  If you read Justice Traynor's opinion in Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co., a seminal case in the law of interpretation, it's the same "literal reading" versus "contextual reading" of an indemnity clause. Indeed, if you look at the language in PG&E, it's the equivalent of Charter's "no contracts," and the court says, "Oh no, it can't possibly mean that!"

Two implications come to mind.

First, whether language ever really maps even an individual purpose or intention, much less the elusive "mutual intention of the parties" in a contract or "congressional intent" is the subject of the piece I posted on SSRN several weeks ago: Lexical Opportunism and the Limits of Contract Theory. My point there is that the elusiveness of language as map undercuts attempts to make broad economic or moral theoretical statements about contract law; I suspect it's the same for statutory interpretation. The text is the text and, in any hard case about its application, we are all opportunists.

Second, it's also almost impossible to state a rule for when you ought to abide by the plain textual meaning or look at the context. Sometimes "no contracts" could really mean "no contracts." There are some documents whose very value is in their formalism - letters of credit, negotiable instruments, promissory notes - and you really do do a disservice by allowing a contextual reading of the language.  Hence, Judge Kosinski's criticism of the PG&E rule in the Trident case: it "casts a long shadow of uncertainty over all transactions negotiated and executed under the law."

Personally, I don't know what the hell "established by the State" was supposed to mean, and was relieved to have the ACA once again upheld because I think it's good policy (or better than the non-policy that existed  before). 

But in terms of the language issue, I can't help hearing the debate as though I'm listening to two fish argue how wet the water is.

Wine, Soda Pop, and Law Schools - More on "Law Review Lift (Drag)"

Some time this month I will get to a relatively more serious topic, like textual opportunism, but for right now I'm still fiddling around with Al Brophy's ranking system.  

So  that I don't bury the lead, let me say up front that I have played some simple-minded statistical games with Al's data.  What I come up with is that, among academics, "brand," as with soda pop, means a lot, and it is relatively sticky and independent of what is going on with the students.

I also think it's pretty obvious that there is a relationship between the "brand" and student data (i.e. high correlations between any ranking system and LSAT scores, for example). What got me interested, however, as I noted a few days ago, was the differential when Al included or didn't include a different and interesting stat: how often the school's main law review (not its faculty) got cited. My intuition is that what other profs think about placing articles in a school's review (based on my own experience) is a lot like the peer reputation score, except that it does measure a revealed preference (i.e., when you rank "peer reputation" as a participant in USNWR, it doesn't cash out to anything; placing an article does!)

The problem with all of these systems, in which we are "ranking" something with many complex factors (like wine) is that the judgment is qualitative, even if it looks quantitative. Often it's qualitative simply because it's qualitative (e.g., "peer reputation"), but even when it's fully quantitative it's qualitative because of the judgments one makes in weighting the quantitative factors.  I was once a partner in a big law firm. Our partnership agreement called for compensation to be determined by a committee, which in turn used a list of factors like "billable hours," "service to the firm," "client responsibility," etc. Every two years the committee turned out a ranking that set your compensation relative to all the other partners. Similarly, if you aren't a hermit during early March of each year, you hear about a double ultra secret committee in Indianapolis deciding which of the "bubble teams" gets into the NCAA basketball tournament. Same thing.  Recent results? Body of work? Bad losses? Good wins?

In any event, I played with Al's data and made some scatter plots and regressions in Excel, all of which follow the break.

I should note that I ran my little exercise by one of the toughest critics of empirical work I know, not for an endorsement, but to see if it was okay to "bin" the data into that 10+, 20+, and 30+ differentials between Al's 2 variable and 3 variable results. My interlocutor (who will remain nameless to protect the innocent) said that binning was okay if there was some theory behind it, but his or her very, very fulsome and thoughtful reply to my question reaffirmed my belief that data without judgment is blind (and judgment without data is empty, to be fair, in each case paraphrasing Kant). The big issue is whether just a few outliers are responsible for the outcomes (which you can see by eyeballing the scatter plots). That may be true here. So with that disclaimer, and recognizing this is a blog post, for God's sake, and not a peer reviewed research paper, here's what I came up with.

If you plot law review "lift (drag)" of 10+, you come up with a positive correlation to law review volume number (.339).  See chart above the break.

If you do the same for "lift (drag)" of 20+ and 30+, you come up with even higher correlations, .42 and .55, respectively.  (See above left and right.)

What do I conclude? Probably nothing more than common sense would tell me: "brand" makes a difference; it takes a long time to develop one; and once you have it established, it sticks around enough to bias other data.

Playing With Al Brophy's Alternative Law School Rankings - Student Centered vs. Student/Scholarship Centered Results

I have all sorts of analytic issues with law school rankings - e.g., reputation means a lot, but it really is based on feedback loops and is really, really sticky; linear rankings by number hide the fact that it's a bell curve on things like reputation, and linear differences in the middle of the pack don't mean much). But it's still interesting navel gazing, and makes a big difference (I think) in professional and academic careers.

Yesterday, Al Brophy (UNC) posted an update to his alternative to USNWR, Ranking Law Schools, 2015: Student Aptitude, Employment Outcome, Law Review Citations.  He uses three variables, entering median LSAT score, employment outcomes (JD required; no school-funded jobs; no solo practitioners), and citations to the school's main law review.  That latter one is interesting because it doesn't measure the scholarly influence of the school's faculty, but instead the school's brand for purposes of law professors placing their articles.  

Al did two analyses, one using only the student variables (LSAT and employment - the "2 var" rank) and one using all three (the "3 var rank").  His Table 2 shows the relative 2 var and 3 var rank for each school, but his comparison are all as against USNWR.  I was interested in "law review lift" versus "law review drag."   So I made a list from Al's Table 2, arbitrarily taking a difference of ten or more as the cutoff.

After the jump, you can see a list of schools whose ranking with their law reviews improves by ten spots or more (law review lift) or whose ranking drops by ten spots or more when the law review gets included (law review drag).  I'll leave it to you to theorize about meaning, if any.

Law review stats enhance student stats ten spots or more

Illinois

Indiana

Florida State

Houston

Utah

George Mason

Cardozo

Cincinnati

Lewis & Clark

Pepperdine

Hastings

Connecticut

San Diego

Brooklyn

Chicago-Kent

Albany

Indiana - Indianapolis

Hofstra

Oregon

DePaul

William Mitchell

American

Catholic

Howard

Akron

Michigan State

Marquette

Seattle

Cleveland State

Vermont

Santa Clara

New York Law School

Ohio Northern

Widener (Delaware Journal of Corporate Law)

McGeorge

Toledo

San Francisco

Suffolk

 

Law review stats drag student stats ten spots or more

 

Georgia

Arizona State

UC-Irvine

Kentucky

Baylor

Georgia State

New Mexico

Oklahoma

Montana

Tulsa 

New Hampshire

Florida International

Rutgers-Camden

Drexel

Syracuse

Hawaii

Idaho

Stetson

South Dakota

Campbell

Duquesne

Chapman

Northern Illinois

North Dakota

Samford (Cumberland)

CUNY

Wyoming

Nova Southeastern

Texas A&M

Oklahoma City

Arkansas-Little Rock

Dayton

Liberty

Elon

Faulkner

Florida A&M

Is "Intellectually Vacuous" the Right Expression for Veil-Piercing Doctrine?

Over at his blog, Steve Bainbridge endorsed a view, inspired by comments from Steve Bradford (Nebraska) at Business Law Prof Blog to the effect that every time he got to teaching "veil-piercing," he was reminded again how "intellectually vacuous" the doctrine was.

I sympathize.  I have the same reaction when I teach veil-piercing.  Why?  It's the tempest in a teapot problem that affects much of what commercial and business lawyers learn in school, on one hand, and what they practice, on the other.   Were you inside the teapot of an idiosyncratic case that ends up as an appellate decision on veil-piercing, it would seem like a Category 5 hurricane.   You read five or six cases with outrageous facts and try to reconcile how the doctrine for why corporations legitimately exist (individual use them to shield themselves from liability) is exactly the same as the doctrine under which individuals can be tagged (individuals used them to shield themselves from liability).  Blow winds and crack your cheeks, rage, blow!  But piercing cases are rare, idiosyncratic, and usually marked by some outrageous conduct that makes the decision, in retrospect, not particularly surprising.

But I disagree that the proper description of the problem is intellectual vacuity.  The problem is trying to reduce to propositions something that propositions can't reduce.   I've been teaching first year contracts and I've encountered this same "vacuity" problem every time the standard is "justice" (as in promissory estoppel), unconscionability, or mistake.  Analogical reasoning doesn't work because it is inductive analogy - the cases are supposed to describe a rule - rails in a Wittgensteinian sense - that point you to the next result, and there are no rails, or there are too many rails, or they aren't parallel (metaphorically speaking).   The better way to approach this is to understand that (a) we have a non-propositional conception of the prototypes of corporate legitimacy and corporate legerdemain, (b) the prototypes sit in polar opposition on a continuum, and (c) the rationalizing propositions follow the non-propositional and intuitive metaphoric leap from the specific case before us to a prototype.  Another in my series of Venn representations of this kind of polarity is at left - this on unconscionability.

Shameless self-promotion alert:  I discuss this cognitive process at length (giving credit where credit is due - I didn't make this stuff up) in three recent papers:  Metaphor, Models, and Meaning in Contract Law;  The Financial Crisis of 2008-09:  Capitalism Didn't Fail But the Metaphors Got a "C" (Minn. L. Rev., forthcoming), and The Venn Diagram of Business Lawyering Judgments (46 Seton Hall L. Rev. 1 (2011), forthcoming).

Metaphors, Models, and Meaning in Contract Law

As I mentioned to Dan Markel offline, I have been less active as a blogger so far this month in part because I've been focused almost entirely, as I have since last September, on two things:  (a) prepping for my full-year six credit contracts class, and (b) developing a thesis (embodied in an article) that merges the theory and doctrine of the class prep with what I know about how the real world of "contract practice" works.  Like most one-track people, I have been a total bore.

For a number of reasons I've been reticent to post the article until today, but Metaphors, Models, and Meaning in Contract Law is now available on SSRN.  I alluded to it in a post on The Faculty Lounge as I was starting the project last September; 23,000 words (it was above 31,000 at one point) and two major "start from scratch" rewrites later, I have decided to let it go public.  (I will do a post in the next few days on the five stages of assimilating even favorable and constructive comments:  denial, anger, bargaining, depression, and acceptance.)

The gist of it is this:  the dominant metaphor for contract in practice and the academy is "contract as model."  One upshot of this metaphor is an article of faith (among lawyers at least) about the rational linkage between what is going on before the fact in the creation of the contract, and what gets litigated after the fact.  Sometimes the metaphor is appropriate, and sometimes it is not.  I've played with my intuition and admitted casual empiricism that the contract, even in a heavily negotiated deal, is as often the "thing" that Arthur Leff conceptualized in his iconic 1964 American University Law Review article as it is a model or map of the transaction .  I've proposed an alternative metaphor of "journey" in which the objectification of an agreement in the contract (a milestone, metaphorically speaking) is often as important as the content itself.  The piece contains illustrations I use in class (see Wood v. Lucy, Lady Duff-Gordon, above, but you have to read the article to get the context), as well as a discussion of how I use the fundamentals of metaphor theory to explain hard cases in which the parties assert, and judges must choose between, competing legal "algorithms".

The abstract follows the fold.

The abstract:

Why does there seem to be such a wide gap between the subject matter of the usual first-year contracts course and what practitioners (particularly transactional lawyers) actually experience? My claim is that it is the result of a powerful theoretical system whose hallmark is a closed linguistic system—in the coinage of one noted scholar, “an epistemic trap.” The subject matter of contract law requires dealing with legal truth not just as a coherent body of doctrine, but also correspondent in some way to actual self-legislation of the parties. I propose escaping the trap with a turn to metaphor theory. The underlying metaphor common to prevailing conceptions of contract law, and which demands some form of correspondent truth from the contract (and contract law), is “contract as model of the transaction.” I suggest alternative metaphors of categories as containers, ideas (including “the meeting of the minds”) as objects, and the transaction life cycle as a journey. The goal is to focus on the “subjective to objective” process of the transactional life cycle, and to consider the perspectives of the participants in or observers of the transactional life cycle, and the models and metaphors that shape the conceptual frames from within which those participants and observers perceive and make use of the legal doctrine.

Interdisciplinary Angst? - A Response to Boyden

I started to write a comment to Bruce's very interesting post, but it started to get long and then I realized I'm a guest blogger.

There are probably a dozen books, not all of them necessarily well known, that have had a fundamental impact on my thinking.  One of them was a little piece by a organizational behaviorist by the name of Barry Johnson, entitled Polarity Management.  The thesis is that some problems are only manageable, not solveable.   The hallmark of such problems is that they demonstrate a conflict between interdependent but mutually exclusive polar values, each of which has an upside and a downside.  A good example in a business organization is the polarity of teamwork versus command-and-control.  Teamwork's upside includes buy-in, energy, synergy of ideas, innovation.  Its downside is its lack of speed, bureaucracy, "camel" creation.  At the other end of the polarity, command-and-control is alienating and often bereft of esprit, enthusiasm, but it is decisive and clear.  Moreover, organizations show a tendency to move from the downside of one value by adopting the other, taking the benefits of its upside until the ill effects show up and then repeating the process to the other end of the polarity (over and over and over).  (I saw this when "Total Quality" showed up in the early 90s to replace hierarchical management - you couldn't change the brand of coffee in the break room without a brainstorming session.  So there was the counter-revolution.)  The trick is to manage the polarities, not solve them.

When we talk about any professional or academic discipline, we are talking about a construct that is some mix of concept and social organization.  There is no reason to think that the disciplines that have spun off from philosophy over the last 150 years cut nature at the joints (as some people are want to say).   Or to put it another way, "independent discipline" compared to what?  The "problem," if it is one, of disciplinary boundaries involves the interdependent but mutual exclusive values of (a) professional certification and authority (note the irony of my including a bibliography below, by the way giving weighty authority on interdisciplinarity) versus interdisciplinary exploration, and (b) deep and focused study versus creativity and innovation.  It seems to me what leaders of academic institutions ought to be doing is managing the polarity rather than seeing it as a problem to be solved.   It's obvious that there's huge value in both deep doctrinal competence and cutting edge weirdness (neuroeconomics, as a case in point).  Against the downsides, respectively, of stultification and dilettantism.  Certainly highlighting the issue (as in Bruce's post) is the first step to managing it, but it's not a problem that has an answer.

At the risk of stepping on Patrick O'Donnell's bibliographic toes, there's been some interesting work assessing disciplinarity both generally within academia (Michele Lamont, How Professors Think: Inside the Curious World of Academic Judgment; Louis Menand, The Marketplace of Ideas: Reform and Resistance in the American University) and law (Peter Goodrich, "Intellection and Indiscipline").  Also on the issue of the rise of social science disciplines generally and history as a discipline specifically, see Thomas Haskell, The Emergence of Professional Social Science:  The American Social Science Association and the Nineteenth Century Crisis of Authority, and Objectivity is Not Neutrality:  Explanatory Schemes in History.  And what would a guest blog post be without some self-promotion:  my thesis ("The Venn Diagram of Business Lawyering Judgments", forthcoming, 46 Seton Hall L. Rev. 1 (2011)) that effective business lawyering demands a skill in being interdisciplinary, a discipline I have coined "metadisciplinarity," otherwise known as the deep art of being meaningfully shallow.

Lived (and Dated) History

I've been waiting patiently for the rotations to rotate; I should have posted this on January 20, 2011, the fiftieth anniversary of John F. Kennedy's inauguration.  For some random reason about a month ago, I pulled Theodore H. White's Pulitzer Prize winning The Making of the President 1960 off the bookshelf and have been leafing through it.  The 1960 Presidential campaign is one of my earliest memories of the world beyond the immediate surroundings of a pre-schooler (I was six and would have been watching it all on the black and white Muntz television while sitting on the Naugahyde couch in our living room).  (I have been trying to translate this into how it would sound to me if told to me by my parents; the equivalent would have been my father describing to me a memory of that tumultuous election battle between FDR and Alf Landon in 1936.)

Aside from historical datedness like the amazing Democratic coalition of northern liberals and southern racists, or the fact that it was the liberal wing causing headaches for Republican Party regulars, I was struck by tidbits of mundane datedness as I read the first chapter.  It is Election Day in 1960.  Kennedy has voted in the West End branch of the Boston Public Library, then been driven through the "grimy blight of Scollay Square"--now the Government Center T stop and the plaza in front of City Hall--to an airplane that takes him to Hyannisport, where:

- The Democratic National Committee was insolvent and only had $800 to set up a press center at the Hyannis National Guard Armory; most of the materials to outfit it came from local donations - the local lumber company and Ford dealer.  A local carpenter volunteered to build the partitions and platforms.

-  There are no women except for wives and girls who operate the mimeograph machines.  At 11:30 p.m., Jacqueline, in her ninth month of pregnancy "was sent up to bed."

- "Upstairs Lou Harris worked his slide rule...."

- At midnight, the candidate is wearing "white shirt, tan twill trousers, green necktie, white wool socks" [???!!!]

For a comparative backward-looking view, and one that imports the modern merging of media, entertainment, and politics, see this Vanity Fair retrospective on the Hollywood aspect of the Kennedy inauguruation published last month.  Again, I was struck by the mundanities:  on January 18, Kennedy had breakfast at the Carlyle in Manhattan, then boarded a commercial flight from LaGuardia to D.C.!

Jeff Lipshaw: Things You Ought To Know If You Teach Contracts

I'm going to follow Paul Horwitz's lead and mix resources with opinion.  This is simply one person's view; reasonable minds may differ and I invite debate!

 1.         Four credits or six credits (and other issues of coverage)?

 The most fundamental question facing a new contracts teacher is whether he or she needs to plan a six-credit course (i.e., two three-credit courses spanning the entire first year) or a single semester four-credit course.  Most of the casebook teachers' manuals will suggest syllabi for either; the one casebook of which I'm aware designed specifically for a four-credit is Frier and White, The Modern Law of Contracts.  (That teachers' manual also has the added benefit of an analysis I wrote of Richard Posner's opinion on liquidated damages in Lake River v. Carborundum.)

 The fundamental units of contract law pedagogy run something like this: 

             - Legal enforceability of private promises (promises, objective theory of contract, consideration, promissory estoppel, quasi-contract)

            - Contract creation (offer and acceptance, reliance, electronic contracting)

            - Contract performance and interpretation (parol evidence, implied terms)

            - Defenses (statute of frauds, unconscionability, duress, mistake, impossibility and frustration)

            - Breach

            - Remedies

 

I'm not a coverage junkie, but even in a four-credit course, I'd try to make sure I did something in each of those units; depending on how fast you traverse the material, in a six-credit course you could even get to assignment and third party beneficiaries.

 

2.        Consideration or remedies first?

 

The basic dichotomy in teaching contracts (and hence the approach of the casebooks) is whether you teach "legal enforceability" or "remedies" first.  This is right up there with other crucial decisions like "paper or plastic."  There's a rationale for each:  teaching consideration first appeals to the theorists because it plumbs the question why and under what circumstances the state gets involved in enforcing promises at all.  Teaching remedies first highlights the different aims of contract law – reliance interests, expectation interests, and restitution interests.    Some of the most popular casebooks (Knapp, Crystal, and Prince, for example) take the former approach; the latter approach is classically Kingsfield because you start with cases like Hawkins v. McGee (what is the value of a good hand?) or Groves v. John Wunder (do you measure damages by the actual harm to the non-breaching party or by the literal terms of the contract?)

 

3.        How much UCC and CISG?

 

This probably depends in part on whether you have a four-credit or six-credit course, and whether your curriculum (like Tulane's, for example) explicitly calls for teaching the UCC either in the second semester of the first year or as an upper level course.  This is a matter of personal preference; there are some contracts professors who eschew much of "classical" contract law in favor of the UCC, even in the regular contracts class.  I think there are some pieces of the UCC that you almost have to teach, like the battle of the forms under 2-207 (particularly as it now applies to shrink wrap or electronic contracting).

 

I'm going to go public and say that teaching the U.N. Convention on the International Sale of Goods (the international equivalent of the UCC) is, in my view, a "nice to do" but not a "gotta do."  This is a somewhat politically incorrect view.

 

4.        How much real world?

 

I'm also willing to go on record (having done it already) to say that nothing highlights the tension between the legal academy and the practicing profession as much as the subject of contract law.  You can graduate from law school and actually use the doctrine you learn in torts, civil procedure, criminal law, etc.  That is far less true of contracts.  First, contract law as taught is really about contract litigation, not contract creation.  Moreover, you can go thirty years in practice and never see a case or a transaction that invokes the law of consideration, offer and acceptance, duress, etc.  I am generally disdainful of contract doctrine as a means of explaining what is actually going on in the business world.  (See my article Models & Games, for example.)  Although there are some admirable casebooks out there that attempt to do so (e.g. Epstein, Markell, & Ponoroff, Making and Doing Deals), my concern is that pushing traditional contract doctrine into a real business setting is a square peg in a round hole (the metaphor is apt for all sorts of reasons).   You don't really teach the business world, and you don't really teach traditional doctrine.
 
No, were it not for the bar exam and inertia (i.e., Langdell was a contracts teacher), we probably wouldn't bother with most of contract law as we presently teach it.  Or, as I have often said, practice is 5% doctrine and 95% interpretation; the course is usually 95% doctrine and 5% interpretation.

 

I do not have a good answer for this.  My inclination still is to disabuse students of the idea that what they are learning maps on the real world.  It is more helpful to think of contract law as the default rules upon which the legal consequences of a binding promise will be imposed on parties after the fact when indeed there is no subjective evidence of an intent to be bound at all, or legally, or on what specific terms.  Hence, teaching the subject, by my way of thinking, requires a jurisprudential approach, one that says "what you are about to learn is a particular way of modeling human interaction."  Said with more jargon, contract law may or may not map well onto the reality of private ordering, and the mistake most students make is to try to make the map work.  No - an integrated law of contracts, if one exists, is a figment of the Langdellian or Willistonian or even the Corbinian or Llewellynian imagination, a way of trying to make unified sense of the whole of private ordering, whether that sense-making is by way of formalism or contextualism (or efficiency or the promise principle, to bring the debate forward in time).

 

Having said that, particularly if you have the luxury of a six-credit course, interjecting classroom exercises that tie to the doctrine seems like a really good idea.  There is a burgeoning industry in such exercises; see Resources below.

 

5.        Resources

 

-  Sign onto the list serv of the AALS Section on Contracts.  Carol Chomsky at the University of Minnesota is the list serv administrator.

 

-  Make sure that you are on the desk copy mailing list for contract law materials at Thomson West (West and Foundation Press), LexisNexis, and Aspen.  You can only use one casebook, but the other books are rich with resources.

 

-  Get the RSS feed for the ContractsProf Blog, edited by Frank Snyder at Texas Wesleyan, and ably assisted by Miriam Cherry (McGeorge), Meredith Miller (Touro), Keith Rowley (UNLV), and Jeremy Telman (Valparaiso).

 

-  Immediately find out who Tina Stark (Emory) is, and why she is one of the most forward-thinking and innovative transactional law teachers in the country.  Get yourself access to the Emory Exchange for Transactional Training Materials, which includes tips for integrating real world situations into the first year contracts course.

 

- The Legal Information Institute of the Cornell Law School maintains an online and cross-linked version of the UCC.  (Note:  the Cornell license doesn't include the comments so you have to get them elsewhere).

 

- The Pace Law maintains an online full text version of the United Nations Convention on the International Sale of Goods.

 

- Order a copy of Contract Stories, edited by my classmate Douglas Baird (Chicago), which contains essays providing the context of many of the chestnut cases.

 

- Attend the annual Spring Contracts Conference, an event instituted by a group of committed contracts professors, including Frank Snyder and Keith Rowley.  I don't have a link for the upcoming conference to be held February18-19, 2011 at Stetson University (perhaps somebody can provide a link in the comments).

 

- Plan to attend Suffolk University Law School's March 25, 2011 daylong symposium in Boston to mark the thirtieth anniversary of the publication of Charles Fried's iconic "Contract as Promise.  After reflections from Professor Fried, some of the academy's foremost contract theorists will offer papers and commentary, with ample opportunity for questions and discussion.  Participants presently scheduled include the Honorable Richard Posner, Randy Barnett, Barbara Fried, T.M. Scanlon, Jean Braucher, Richard Craswell, Avery Katz, Henry Smith, Lisa Bernstein, Seana Shiffrin, Daniel Markovits, Juliet Kostritsky, John C.P. Goldberg, Rachel Arnow-Richman, Curtis Bridgeman, Nathan Oman, Roy Kreitner, Gregory Klass, Carol Chomsky, Jody Kraus, Alan Schwartz, and Robert Scott.

 

- You may or may not want to get familiar with some of the supplements.  Brian Blum's Examples and Explanations (Aspen) is very popular.   Keith Rowley's Questions and Answers: Contracts (LexisNexis) has lots of multiple-choice questions.  I know there are lots of other good ones, and invite recommendations in the comments.  (I try to keep an arm's-length relationship with the supplements, mainly because I don't want to have to try to explain what another professor means about a subject in addition to what I and my casebook are saying.)  One huge benefit of getting on the desk copy mailing list is that you get these resources as well.

 

- One of the most helpful things for me was the session at the AALS Workshop for New Law Teachers on pedagogical methods other than Socratic or lecture (e.g., brainstorming or "pair-square-share).   

Leadership, Judgment, and Reduction at the Harvard Business School

This morning's Wall Street Journal reports that the Harvard Business School has named a current professor, Nitin Nohria as its 10th dean.  The article describes Nohria as "a vocal critic of management education and the leaders it produces," and quotes Nohria's recent conference call comment - one that without some unpeeling sounds a little odd:  "I believe that management education has been overly-focused on the principles of management."  But maybe not.  Would it sound so odd to say that legal education has been overly-focused on the principles of law?  Not at all.  But consider the next quote in the article, this from Jeffrey Sonnenfeld at the Yale School of Management:  "Mr. Nohria is someone who's been asking the tough questions. . . .  While there is a lot of soul searching going on, he has been taking the steps to give MBAs judgment as well as knowledge."

To paraphrase Mark Twain, everybody talks about judgment but nobody does anything about it.  It's hard to be both thorough and brief when giving quotable comments to reporters, so I don't knock Dean Sonnenfeld at all, but, obviously, instilling or teaching or demonstrating judgment is a task far more challenging than the mere "giving" of it.

What's intriguing to me is the implicit polarity of (a) over-focus on principles of management and (b) judgment.  Some thoughts on principles (or rules) as reduction, something I've been considering recently, below the break.

I can't recall if I have blogged about this, but I have mentioned it in a couple papers.  My next door neighbor and very good friend, David Haig, is a theorist in evolutionary biology at Harvard.  He is a very smart guy.  His groundbreaking work was in genomic imprinting, and particularly the theory underlying certain outcomes in maternal-fetal conflicts (it's a game theoretic approach that hinges on the selection of the mother's or father's gene, particularly when it's a zero-sum game as to resources as between the mother and the fetus).  The theory has practical impact because it helps explain conditions like preeclampsia in pregnancy.  Every couple weeks, usually late on a weekend afternoon, I open the gate in the fence between the houses, walk up the steps, and David and I share a bottle of wine and solve all the problems of the world (usually his house because he has small children.)  There is one continuing theme:  David thinks science will get us most, if not all, of the answers (eventually), and I am what we have come to refer to as a mysterian (Colin McGinn may have coined it, but I am happy to adopt it.)

Much of our conversation, then, is expressly or implicitly about reduction, and more specifically, epistemic reduction. Reduction is of particular interesting to biologists (or philosophers of science interested in biology) because of the seeming loss of explanatory power as one moves from molecular biology to the physics of the atoms and particles that make up the cells. Hence there is a Stanford Encyclopedia of Philosophy entry on Reductionism in Biology and it defines epistemic reductionism as "the idea that the knowledge about one scientific domain (typically about higher level processes) can be reduced to another body of scientific knowledge (typically concerning a lower and more fundamental level)."  The Theory of Everything orientation to the world is necessarily reductive, even if not deterministic (hence the hope of somebody like Roger Penrose who hopes that consciousness and free will are ultimately explained by quantum physics, and therefore as reducible or irreducible as our ability to understand particles). 

I just saw a paper on BEPress from Hanoch Dagan and Roy Kreitner with a pithy quote about legal doctrine: "Langdellian legal science envisioned law as an autonomous discipline governed by three characteristic intellectual moves: classification, induction, and deduction."  This strikes me as classically reductive in the sense of isolating from the data what constitutes in language, the medium of the law, any particular element of any particular legal consequence, whether it be, for example, duty, negligence, mens rea, an investment contract, monopolization, or apparent authority.   Focusing on the Kantian idea of judgment as the "faculty of subsuming under rules, i.e., of determining whether something stands under a given rule ... or not,” there's really no difference between scientific judgments in biology and scientific judgments in legal doctrine.  The real question is whether in adopting a particular rule or theory or model (the skill in judgment that Kant didn't view as something that could be "given" by way of teaching, but could only be practiced) we've adopted one with optimum power for explanatory or predictive purposes in resolving the question at hand.

Hence, when we acquire knowledge, we are necessarily selecting rules that themselves tag only pieces of all the data available to us, and those rules allow us to predict consequences whenever the relevant conditions present themselves.   Right now (but that could change), the selection of particle physics as the model (with its coherent assemblage of rules) is not going to help a biologist explain pollination, notwithstanding all of the explanatory power of particle physics for those operating the Hadron collider.  It strikes me that Nohria is right about business people (and I extend it to lawyers in business):  if we over-focus on the rules and principles of management or law, we've over-reduced, and will necessarily find our judgments to be problematic.

Slicing Prosciutto and Other Metaphors

Marc has joined the fray and I don't think he's a wet blanket at all.  I started to write a comment and quickly concluded it would turn into a post of its own, suggesting that he's a catalyst.  Moreover, wet blankets aren't fun, and I've just spent an hour writing this post, which I wouldn't do if it weren't fun (or if I had a life, but such are the benefits of empty-nester-dom:  I can do whatever I damn please on a Saturday afternoon).

I understand Marc to be saying he does not teach the moral "ought" that stands behind values, and I am sure that's true.  The metaphor for the method he describes is "slicing the prosciutto," which evokes understanding in finer and finer detail the components of the particular human behavior that constitutes his subject area, and the laws, rules, norms, lore, and customs that have arisen to regulate that behavior. I agree that has little to do with a moral "ought."  Nevertheless, the metaphor invokes another kind of "ought", an epistemological "ought," one that suggests a relationship between knowledge and reduction:  we ought to know more as we slice the prosciutto more thinly.   Thus I want to peel some leaves off the artichoke of the metaphor of the slicing of the prosciutto, first, to address generally what Steven Pinker calls the "metaphor metaphor" and, second, within the prosciutto metaphor itself, to address what happens if you keep slicing.

First, what does the use of a metaphor like slicing prosciutto tell us?  The extreme exponents of the metaphor metaphor are George Lakoff and Mark Johnson (Metaphors We Live By) in cognitive science and Steven Winter (A Clearing in the Forest) in law.  You cannot read the work of either of them and not be taken with their intellectual horsepower, but it is an extreme position.  The main idea is that all thinking is metaphor (hence, the metaphor metaphor for thinking) arising out of our having embodied minds in physical bodies: there are no a priori concepts or universal truths and all concepts arise from basic hardwired physical relationships (e.g. TIME IS MOTION; LOVE IS A JOURNEY).  Pinker criticizes the extreme metaphor metaphor (as I have, using a slightly different metaphor), but nevertheless is taken (as am I) by its seeming explanatory power in many cases.  Pinker writes in The Stuff of Thought:

Another fallout of the metaphor metaphor is the phenomenon of framing. Many disagreements in human affairs turn not on differences in data or logic but on how a problem is framed. We see this when adversaries "talk past each other" or when understanding something requires a "paradigm shift.". . . Each controversy hinges on a choice between metaphors. . . .

The most recent example of this is the Goldman Sachs inquiry, where the duty and materiality issues depend entirely on whether you use a bookie metaphor or an investment adviser metaphor to frame the controversy (see Larry Cunningham's invitation a few days ago to come up with the best analogy).

There is an implicit "ought" in Marc's inculcatorium (or non-inculcatorium) that asks us to take the metaphor SLICING IS STUDY, and the implicit analogy THINNESS is to PROSCIUTTO as REDUCTION is to KNOWLEDGE.  How about this metaphor?  Elements of a legal claim are TREES in the legal FOREST and law itself is a TREE in the FOREST of human understanding.  Don't lose sight of the FOREST for the TREES.  That suggests you want to teach not by slicing prosciutto but by stepping back.  What I am suggesting here is that we are indeed inculcating more than we think. It may not be a moral inculcation, but it is an epistemic inculcation.

Second, my use of the artichoke was only slightly in jest.  As to the prosciutto metaphor, can you slice it (the prosciutto or the metaphor) too fine?  Does it lose its taste if the slice is only a couple molecules thick?  I think prosciutto slicing has a highly non-foundational, scientific feel to it.  We are reducing to the very atoms or nuclei or quarks of the meat.  If you are a foundationalist, perhaps you do want to use artichokes rather than prosciutto because you finally get to the heart, it's all the same green mushy stuff, and there's no point in reducing any further. 

I think Langdell wanted to be a prosciutto slicer, and generally law as practice and academic pursuit for the last 100 years reflects that.  My impression is the Stanford program and other interdisciplinary or metadisciplinary efforts are attempts not to lose sight of the forest for the trees.

"The Most Significant Curricular Change Since Langdell": Stanford's New Model for Legal Education

Howard's last post about common sense is on to something, though I'd engage with him on whether you can just tell lawyers, after three years of law school inculcation, just to employ common sense.

So was Larry Cunningham's post yesterday at Concurring Opinions, discussing Louis Menand's essay on the anxiety inherent in academic interdisciplinarity.

I've gone on record as suggesting the professional judgment of a business lawyer requires not just interdisciplinary skills, but a "meta" ability to deal with many disciplines, something I call the discipline of metadisciplinarity (or, as I referred to it in a talk at Boston College a few weeks back, the very deep art of knowing how and when to be shallow).  Metadisciplinarity asks one to engage, as a practitioner, with the interplay between technical expertise and common sense, or, as an academic, with the tension between specialized knowledge and dilettantism.

So it was that Larry Kramer, dean of Stanford Law School, in Boston last week meeting with small groups of  alumni, caught my attention.  Usually, I'm in those meetings as a target (cha-ching), but when Larry claimed that Stanford might well be undertaking the most significant change in legal education since Langdell, I was interested more as a legal educator.  Stanford's changes are not new news; they began well before the financial crisis and its domino effects on the businesses of law and law schools. It's one thing to say you are going to fiddle with the curriculum; it's another to say one school's change is important enough to, as they say, shift the paradigm across all of legal education (as Langdell's case method did).  That hit me where I live now, particularly after digging into the rationale for the change, which has everything to do with lawyers going beyond doctrine, or even pure legal judgments, and engaging in the interdisciplinary judgments that occur any time they interact with clients. 

For the micro view, see my paper, The Venn Diagram of Business Lawyering Judgments:  Toward a Theory of Practical Metadisciplinarity (forthcoming, Seton Hall Law Review, 2011, also to be presented at the Law & Society meeting later this month).  Below the fold, however,I want to raise some questions on the macro issue:  what cascading institutional changes in legal education, if any, this portends.

There is a fair amount of public material on this:  the 2006 press release, "Larry Kramer Wants a Revolution in Legal Education" from the Wall Street Journal Law Blog, as well as a much more recent memorandum Larry's assistant sent me the other day, which I've reproduced below the fold.  I can, however, summarize this in just a few bullet points:

1.  The first year of law school largely works, and that will continue largely unchanged.
2.  The second and third years of law school largely don't work.
3.  The law school will be a portal to the university in the second and third years, giving students tremendous flexibility in designing course and clinical packages that take advantage of ALL of the university's graduate and professional programs.  This isn't just more joint degree programs (but many are available), but the opportunity to make the education underlying even the J.D. as interdisciplinary as the student wants.  The educational impetus is that it's no longer true that a lawyer can obtain the skills he or she needs to succeed merely by studying legal doctrine with law professors and other law students.
4.  All students will get an opportunity to spend at least one quarter in a full time clinical experience - with no competing classes or projects.

I don't think one can fairly compare Stanford's resources with all law schools, and I don't mean to, but I did start thinking about this vision of legal education, and how schools from the top to the bottom of the surveys and rankings mights be affected. The "beauty" of the Langdell model for years and years was that a law school education didn't look fundamentally different within the four walls of any law school you chose to visit.  When a law school paints a very different picture to its incoming students - "we are going to put the full power of the university to work on your education in a meaningful way" - that seems like it begins to separate the field.   For example:

- Size matters . . . when you are committing to give every student a full quarter's worth of full time clinical experience. Stanford has 160 students per class; some of the top-ranked schools (e.g., Harvard, Michigan, and Georgetown have three or four times as many).  Can the big schools make the same experience available?

- Resources matter . . .  while free-standing law schools could certainly work to replicate university-like resources, that isn't going to be easy.

- Location matters . . . when you are offering opportunities, as Stanford's materials mention, "within walking distance" of the law school.   How will schools like Northwestern, Georgetown, Fordham, BC, etc., where the schools are physically removed from the main campus, react?

- Students matter . . . when you are worried about things like your bar passage rate and you migrate away from the traditionally required upper level doctrinal subjects, like evidence or business associations. 

- Reputations matter . . . Larry told me about a program in which Stanford law students will be working cooperatively with a major corporation in which law students fill a particular need.  Will every school be able to make that opportunity available?

Let's assume that the Stanford model indeed is the most significant change to legal education since Langdell, or, at the very least, it's a game-changing marketing plan.  Here are some of my questions.

    - Is it an elite school phenomenon?  (That was the view of one of my colleagues.)

- How does it measure up against other changes to the paradigm, like Northwestern's two-year plan?

- How will the "aspire to be elite schools" react?

    - How will the lower "first tiers" react?

- What will the effect on independent schools be?

   - What adaptations will result in the third and fourth tiers? 

- Will there be consolidation?

Here's the memo from Larry's assistant:

Stanford Law School revised its first-year curriculum decades ago (in the 1980s), and it successfully teaches students how to think like a lawyer through rigorous courses in legal reasoning and case analysis. But law students need more today than the traditional second- and third-year law school curriculum offers them. It is important for 2Ls and 3Ls to learn more legal doctrine, but it is equally important for them to learn how to think like their clients during the upper years.
 
Our curriculum changes are a response to a changing legal profession. Because business, medicine, government, education, science, and technology have all grown immensely more specialized, legal practice has had to adapt by growing more specialized. At the same time, lawyers have to practice in a globalized context--transnationally.  And, while lawyers have historically been looked upon and trained to spot problems, now lawyers are being asked to solve problems. In order to contribute to solutions, lawyers have to be able to work collaboratively as part of cross-disciplinary professional teams. They have to be able to think like their client, which means, in part, they should develop subject matter expertise in their area of practice. (e.g.  Environmental law / environmental sciences.)
 
Stanford Law School is unique in that no other law school can match the breadth of excellence we can offer students who want to study across disciplines. Stanford University ranks in the top 10 in 17 academic categories; in the top five in 16 of 17 categories; and the top three in 14 of 17 categories.  In rethinking our curriculum, we saw that our students have a lot to gain by taking courses outside the law school--among the other top ranked programs at Stanford University that afford them subject matter expertise; that teach them to work in problem-solving teams (such as taking a team who can take an engineering product to market); and that teach them to operate in a global context.
 
Accordingly, we began to revamp our revamp our second- and third-year curriculum starting in 2006:
 
We revamped our course offering, changed our academic calendar, and broadened the degree. We’re encouraging students to find their direction while in law school, helping them to choose the right courses, and connecting them with alumni who can serve as mentors in their field. (To facilitate mentoring, we built SLS Connect – a proprietary social network tool specifically for Stanford Law School alumni and students.) We’re providing real research opportunities to students through research centers, and directing their research on projects that have real-world impact (such as the Afghanistan Legal Education Project). We made a huge commitment to clinical education and have expanded our program, to enable students to do real work on the ground (including practice in international law).
 
Specific Changes:
 
We are educating students more broadly through courses outside the law school and through joint degree programs. We synchronized our academic calendar with the rest of the university, which is on quarters not semesters, so our students can take advantage of the fact that Stanford University houses top-rated graduate programs and departments all within walking distance of the law school. We now offer 27 formal joint degrees and we continue to allow students to tailor their own joint degree in practically any discipline.
 
We have developed team-oriented, problem-solving courses that are co-taught by faculty from the law school and Stanford's other top-rated schools. For example, student teams from the law, business, and engineering schools will learn how to bring an invention to market--evaluating the technology, drafting a business plan, protecting intellectual property, and managing the regulatory process.
 
We are rapidly expanding our clinical education program so that every law student is able to take a clinical course some time during their three years here that will teach him/her how to work with clients and colleagues-- and how to address the ethical dilemmas that arise in practice in the context of real-life client representation scenarios where they can be mentored by seasoned practitioners before they graduate. We are broadening the range of practice areas of our clinics, and introducing a clinical rotation, based on the medical school model--with no competing exams or courses.
 
On May 28, 2008, the law school faculty voted to adopt a grade reform proposal to change the law school’s grading system to an honors, pass, restricted credit, fail system for all semesters/quarters. The new system includes a shared norm for the proportion of honors to be awarded in both exam and paper courses. The policy became effective beginning fall 2008 starting with the class of 2010.
 
Timeline:
 
The curriculum changes have taken place over the last several years--with a formal announcement of them in November 2006 and a "joint degree expansion" announcement in May 2007 (see links below). We switched fully to the quarter system in the fall of 2009. We modified our grading system effective 2008 for the class of 2010.

It's the Most Wonderful Time of the Year - Reprise

Thanks to Dan for inviting me back for the fourth year in a row.  I'm soon going to turn my attention to REALLY SERIOUS STUFF and the kind of shameless self-promotion that comes from posting on a mega-elite Top Twelve Blog as opposed to my merely Tier 1 home blog (Legal Profession Blog:  A Member of the Law Professor Blogs Network) where I've been pontificating over the last few weeks about God's gift to securities law professors:  synthetic CDOs, SEC v. Goldman Sachs, and the metaphor war in the Senate.  I am pretty sure I was the first person either in the blogosphere or the MSM to use the "bookie" metaphor and I am really happy to see others coming around.

But first, I want to reprise an old post. I wrote this song about this time last year when I saw a colleague (who will remain nameless) bouncing his way down the hallway with a disgustingly cheerful air, and what we used to refer to as a "[Senator Levin's favorite unfortunately used adjective to describe a synthetic CDO]-eating grin."  I asked him why he was so happy, and he said "it's my favorite time of the year."  Immediately, a little Andy Williams in a devil costume popped up on my shoulder, and gave me these lyrics without stopping to take a breath.  So this goes out to all the students in the 4:00 p.m. edition of Agency, Partnership, and LLC this semester who were wide awake enough to laugh at my jokes:

It's the most wonderful time of the year 
The 3Ls are cramming
And take-home examming, with 1Ls in fear.
It's the most wonderful time of the year 
It's the hap-happiest season of all
With the summer approaching and no class encroaching
At least until fall,
It's the hap- happiest season of all 

There'll be stipends for writing 
With no deans to be fighting,
And grading will all have been done. 
There'll be times of clairvoyance;
We're free from annoyance when
Faculty meetings are none.

It's the most wonderful time to stay here 
There'll be much profound thinking 
On essays we're inking 
When students steer clear 
It's the most wonderful time of the year 

There'll be federal granting 
And no colleagues ranting
In committees to which we belong
We'll be teaching in Florence
And free from abhorrence
Of everything we know is wrong.

It's the most wonderful job you can get. 
While the law firms are bleeding
And markets receding
The one thing we never forget
It's the most wonderful job
It's the most wonderful job
It's the most wonderful job you can get. 

IKEA Meditations

One of the charms of being able not to retire and teach is being just a little unstuck in time with respect to my professional peers.  While Dan and Wendi get ready for the bris of their little boy, I'm in Ann Arbor helping the boy through whose bris I kept my eyes tightly shut move into a new apartment as he prepares to start medical school on Monday, following his White Coat Ceremony tomorrow.  (Note to self:  why don't we do something like this for entering law students?  But what would we call it?)

I have helped him move each of the last couple of years, and the routine is always the same - rent a truck for a couple of hours, move the 500-pound bookshelf from hell, pack and unpack the boxes, wake up the next morning (as now) wondering why I went seven rounds with a welterweight boxer.  This year was slightly different, as we decided to go to IKEA to buy another bookshelf and a dresser (which we assembled late last night, and which may account for the sorry state of my lumbar this morning). 

As I fade into blog sunset once again, I want to reflect just a minute on the IKEA experience, which I can only describe as a kind of Swedish Disney "It's a Small World", except that you get to buy the dolls at the end.  (The map, right, courtesy of Wikipedia, shows the places in the world you can find an IKEA store.) First, I couldn't understand why the place had to be halfway back to Detroit when every other self-respecting big box store has managed to find a place on the Ann Arbor outskirts.  The reason is, I think, that the place is the size of a small state itself.  Second, like being at a Disney park, you can't help think about the hours of mental energy that went into designing the layout.  You go up an escalator, like that first ascent on a roller coaster, and then go wooshing through a maze of rooms (complete with "short cuts"), looking at the displays, and writing down aisle and bin numbers.  Third, you can't escape.  It's been a long time since I was at DisneyWorld, but what I remember was how the designers kept you from actually seeing how long the line ahead of you was by snaking you back and forth until you turned a corner and realized there was a whole 'nother room of cordons and lines.  All you want to do is get to the "Raiders of the Lost Ark" warehouse with the aisles and bins to put your "some assembly required" bookshelf and dresser on a cart, and you cascade from lighting to plants, to glassware.  Fourth, the books in the office and family room displays are real, and in Swedish.  There must have been 500 copies of Jonathan Franzen's The Corrections in Swedish.  And finally, there's a cafe serving Swedish food, including something in lingonberry sauce.

All I can say is that I really was shaken up, and that was before I started assembling the dresser. 

Thanks for the month, and see you again soon (New Orleans in January?)