PrawfsBlawg

13th Annual Junior Federal Courts Workshop

The George Washington University Law School will host the 13th Annual Junior Faculty Federal Courts Workshop on March 8-9, 2024. The workshop pairs a senior scholar with a panel of junior scholars presenting works in progress. It is open to untenured and recently tenured academics who teach and write in the areas of federal courts, civil rights litigation, civil procedure, constitutional law, and other related topics. The program is also open to scholars who wish to attend, read, and comment on papers but not present. There is no registration fee.

The conference will begin on the morning of Friday, March 8, and conclude by early afternoon on Saturday, March 9. Each panel will consist of three to four junior scholars, with a senior scholar commenting on the papers and leading a group discussion.

The workshop will take place at the George Washington University Law School, which is located in the heart of Washington, DC. GW will provide lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs. A discounted block of rooms will be made available at a nearby hotel.

Those wishing to present a paper must submit an abstract of no more than two pages to [email protected] by Friday, November 17, 2023.

Questions about the conference may be directed to Professor Chas Tyler at [email protected].

Maybe I'm part of the problem

With Yom Kippur upon us, it is time to confess my sins in response to Paul's post, because I am part of the problem:

Prior to COVID, I wore slacks and a tie when teaching (often a tie linked thematically to the day's class), although I wore shorts, a polo, and a quarter-zip on non-teaching days (I live in Miami, where it is hot 49 weeks a year and very warm the other three weeks).*

[*] A former student sued me a few years ago. The complaint, alleging a due process violation, included allegations about how I dressed).

When I taught online during COVID, I adopted my non-teaching outfit for the video classroom space. The shorts were out of camera and the quarter-zip-and-polo looked nice enough. I lived in Philly and taught online during fall 2020; John Fetterman was running for Lt. Governor, and, needless to say, I became a fan.

I continued wearing that outfit when I returned to teaching in-person-but-masked in fall 2021. For precedent, I pointed to basketball coaches--who used to wear dress clothes on the sideline, from Pat Riley's Armani suits to the unfortunate 1970s:

That is until COVID, when coaches insisted on wearing comfortable clothing (warm-up pants, quarter-zips, sneakers) to go along with masks. And there is something weird about a mask with a suit or otherwise nice clothing. So, I told my students, I would continue with shorts and a polo and a mask in the classroom. With the lawsuit fresh in mind, I assured them this did not reflect on how seriously I took teaching or how the class would be conducted.

When I removed the mask in fall 2022, I said the hell with it. I had become comfortable (again, wearing pants and a nice shirt in Miami is miserable), it did not change the quality of my teaching (for whatever that is worth), and it did not change how students interacted with me in the classroom or their seriousness in preparing and engaging in class.

As Paul said, a classroom is not the U.S. Senate. And I dress "appropriately" in other contexts, such as commencement or when serving as moderator of a school-wide lecture with a visiting judge. I think about whether this is the wrong choice and whether to go back to wearing slacks (or at least jeans--which I probably would in a place that had seasons), if not all the way to wearing ties. The recent dust-up and the resulting discussion of "professionalism" puts this back on my radar. So far, my desire for comfort in hot weather prevails. 

S'lach li.

More in memory of JoAnne Epps (Guest Post)

The following post is by my FIU colleague Kerri Stone; Kerri served as a Freedman Teaching Fellow at Temple prior to joining FIU.

I met JoAnne Epps when she was not yet President JoAnne Epps, nor Provost JoAnne Epps, nor even Dean JoAnne Epps, but Associate Dean and Professor JoAnne Epps, and I was a teaching fellow at Temple University’s Beasley School of Law. Although fellows were not eligible to be hired onto the faculty from the teaching market, JoAnne, along with others on the faculty, spent time and energy mentoring us and making sure we could handle ourselves everywhere from a classroom to an academic conference, to a faculty meeting. Because she was a generous mentor, we were the beneficiaries of her vast wisdom, advice, and stories.  We learned from her example that a law professor could be simultaneously warm and funny, but also rigorous and formidable. We all turned to her for advice countless times, and as busy as she was, she made the time for us. Having spoken to others over the years, I now know that she made everyone—her students, her most junior colleagues, and her friends, even those she hadn’t seen in years—feel like she had all the time in the world for them. That is a real gift.  I was reminded of this gift of hers again just a few years ago, when JoAnne came to Miami and made the time to visit my law school to address our faculty. I was lucky enough to be invited to lunch with her and a mutual dear friend of ours on our faculty, Professor Joelle Moreno. Sitting with the two of them, laughing and discussing our lives and careers, is something I still remember vividly. JoAnne Epps was a true mentor and friend whose graciousness and generosity one-on-one will always be her legacy alongside her tremendous accomplishments in the legal academy.

Some Thoughts on the Remarkable JoAnne Epps (Guest Post)

JoAnne Epps--former faculty member, law dean, provost, and acting president at Temple--died Tuesday. The following remembrance is by my FIU colleague Joelle Moreno. If you have and would like to share remembrances or experiences with Prof. Epps, feel free to email them to me; I am happy to post a collection.

JoAnne Epps is the reason I am a law professor.

We met 30 years ago this summer. I was a new(ish) DOJ prosecutor sent to Boulder, Colorado to hone my trial skills. I’m not sure what I expected from NITA Nationals, but teaching was not a priority at my law school, and it showed. After three years of boring, self-important, pedantic performances from my own faculty, I was wholly unprepared for JoAnne.

JoAnne was, and I choose this word carefully, unique. 

When she walked into the room, JoAnne scared the shit out of you. It wasn’t just her poise, charm, and easy sense of humor. JoAnne immediately sized us up, this room of blowhard junior litigators and proto trial lawyers seeking to prove ourselves at big firms or government offices. She saw our strengths and weaknesses and, as we rose in turn to make our opening statements and summations, each of us pretending that our egos were not on the line, JoAnne cut through the nonsense with inarguable truths and incisive criticism. I’d never seen anything like her, as sharp and useful as a knife but indelibly herself. Hard to imagine today in our academic reality of eggshells and Stepford faculty.

If you knew JoAnne or even if you just heard her speak, her passion was unforgettable. Whether she was in class, explaining exactly why your theme and theory of the cases would never fly, or lingering over a glass of wine to describe a San Diego NITA faculty all-nighter to Tijuana, where they arrived back in the U.S. just in time to start teaching the next day, she was exuberant. At a youthful 72, JoAnne’s enthusiasm, dedication, and brilliance never diminished. She was irrepressible a few years ago when we co-hosted a boot camp at FIU on teaching and presentation skills. JoAnne taught by example that truly excellent teaching requires perception, self-acceptance, and candor.

JoAnne was recently enticed out of a planned retirement by her deep commitment to Temple University which she served with such dexterity for so long. Her passing is a blow to her family, friends, school and to everyone lucky enough to have known her. I am grateful for her friendship and saddened by her loss.

Is a hedgehog a momentary fox?

A quick thought on Gerard's post:

Is everyone a hedgehog in the moment of working on one large project or series of connected projects, before turning to the next (perhaps unrelated) project. Gerard is a hedgehog on § 3 for now. Come 2024, when this is resolved, he becomes a hedgehog on Youngstown. Big picture, of course, he is a fox across projects. And it seems as if many of us operate that way.

Blogging allows some foxiness to come through. While hedgehogging over a particular book or series of papers, I can write, however briefly, on outside subjects.

What makes a career?

Congratulations to Jenny Martinez on her appointment as provost at Stanford. According to the Chronicle of Higher Education (paywalled), Martinez's main accomplishment as dean and main qualification for the job was "defending free speech" in the Judge Duncan debacle. In fact, "[b]y elevating Martinez to its top academic post, Stanford is making a statement in the continuing free-speech debate. Leaders across the country will look to Martinez to uphold that stance, particularly as she assumes jurisdiction over not only the law school but also Stanford’s entire student body."

I praised Martinez's letter at the time, particularly for recognizing the expressive nature of heckling and in-the-room protest. But the idea that this one event was central to her appointment or that education leaders nationwide will read this as some endorsement of an approach to campus speech is laughable.

Teaching Tips for New Law Professors, August 23 (Moved to Top

Moving to top:

Join West for Teaching Tips for New Law Professors: How to Incorporate Professional Identity Formation in Your Teaching webinar, 3 p.m. CDT., tomorrow, Wednesday August 23.

The panel of award-winning law faculty members and casebook authors will provide guidance on developing and teaching a law school course with an emphasis on integrating Professional Identity Formation into your instruction. There will be time at the end for participants to ask questions.

Register here

3d Annual "Law v. Antisemitism" Conference (February 25-26 2024) (Moved to Top)

Posting this one final time, with the deadline two weeks away. Please submit if interested and spread the word to people who might be.

FIU College of Law will host the 3d Annual "Law v. Antisemitism" Conference, Sunday-Monday, February 25-26, 2024. I am co-organizer with Rob Katz (Indiana-Inianapolis) and Diane Kemker (visiting at DePaul). The CFP and details after the jump.

Reposting with the deadline on September 1.

CALL FOR PAPERS/PRESENTATIONS

3rd Annual “Law vs. Antisemitism” Conference (February 25-26, 2024)

FIU College of Law, Miami, Florida

You are invited to submit a paper or presentation for the 3rd Annual Law vs. Antisemitism Conference. The Conference aims to provide a platform for researchers and practitioners to present research and developments on the intersection of law and antisemitism -- how law has manifested and perpetuated antisemitism, and how law has been and can be used to combat it.

Areas of interest for the conference include, but are not limited to, the following themes and topics.

• The Working Definition of Antisemitism developed by the International Holocaust Remembrance Alliance (IHRA), its legal implications, critics and competing definitions (e.g., Nexus, JDA)
• Legal efforts in the U.S. and abroad to curtail expressions of antisemitism, e.g., by regulating hate speech, hate speech online, Holocaust denialism, and hate crimes
• Laws that authorize religious expression in public spaces, laws that target Jews and other religious minorities, and generally applicable laws that burden Jewish observance, including abortion bans (in the context of Dobbs)
• Legal responses to the Boycott-Divest-Sanctions (BDS) movement and other efforts to counter boycotts of Israel
• Comparisons between antisemitism and bias and discrimination based on race (including African Americans and Asian Americans) gender, sexual orientation and gender identity, or other categories
• Jews and whiteness, including white privilege, white nationalism, and white supremacy
• Intersectional issues (Jews as a religious/ethnic group; LBGTQ Jews; Black Jews, Jewish women)
• Official discrimination against Jews, both historic and contemporary, including bars to holding office, immigration restrictions, housing and zoning restrictions
• Jews and antisemitism in the legal profession
• Jews as a protected class under federal and state civil rights statutes
• Jews and employment law, including employment discrimination, religious accommodations, and the ministerial exception
• Jews and antisemitism in higher education, including anti-Jewish quotas, Jewish perspectives on affirmative action, Title VI and hostile environments, faculty and student expression and actions concerning Israel and Zionism
• Law and the Holocaust, punishing the perpetrators, restitution for the victims
• The legal construction of Jewish identity (e.g., defining who is a Jew for purposes of the Law of Return, the Nuremberg laws)
• Case studies in antisemitism, e.g., the Dreyfus Affair, the Leo Frank trial
• Translating research on law and antisemitism into practical strategies for countering antisemitism through law
• Pedagogical approaches to teaching about the relationship between law and antisemitism

We invite scholars to reflect on the relationship between antisemitism, Jews, and the law, historically and in the contemporary environment, especially but not exclusively in the United States. We especially welcome papers and presentations that propose changes in law and policy with promise for ameliorating antisemitism and its effects. Please submit an Abstract of 300-500 words to [email protected]. Selected papers from the Conference will have an opportunity to be published in an upcoming issue of the FIU Law Review dedicated to the Symposium. (Questions may also be directed to [email protected].)

Proposals due September 1, 2023             

Presenters will be notified by October 1, 2023

9th Annual Civil Procedure Workshop

Ninth Annual Civil Procedure Workshop

Understanding Civil Rights Litigation (3d edition)

I am happy to announce that the third edition of Understanding Civil Rights Litigation has been published with Carolina Academic Press and is available for use in Civil Rights and Fed Courts classes the world over. I think (hope) the third time is the charm--I got it where I want it in terms of writing style, structure and organization, and balance among doctrine, case discussion, commentary, and problem sets. I am looking forward to using it in class in the spring.

The book was delayed by about a month because I had to make a series of changes as courts did new things that either changed or supplemented what I wrote. The Court taking seven months to decide Talevski did not help. Naturally, judicial decisions continue to outstrip the book. The Ninth Circuit overruled circuit precedent and joined every other court that § 1981(c) does not create a private right of action and plaintiffs must pursue § 1981 claims against municipalities through § 1983. A divided en banc Fourth Circuit overruled circuit precedent to join every other circuit that preliminary injunctive relief can make a prevailing party entitled to § 1988 attorney's fees.  Two Fifth Circuit judges got into it over whether circuit precedent can clearly establish a right for qualified immunity. All cases would have been helpful to how I wrote pieces of the new edition. I suppose it is inevitable.

Hiring Announcment: Florida State

Florida State University College of Law invites entry-level and lateral candidates to apply for tenure-track and tenured positions to begin August 2024. Candidates in all academic areas are encouraged to apply, although criminal law/procedure, environmental law, international law, and business law are priority hiring areas.

FSU Law also invites applications and nominations for the Tobias Simon Chair in Public Law. The Chair was established in honor of Tobias Simon, a well-known civil rights lawyer and late professor at the College of Law. Candidates must hold a J.D., Ph.D., or equivalent degree, have significant experience (5 years minimum) in teaching and/or practice, and be qualified for appointment as a tenured, full professor. Candidates must have a distinguished publication record in a public law field, including, but not limited to, civil rights and civil liberties, international law, and public policy.

If interested in either/both opportunities, please send a letter of application and curriculum vitae to:

Professor Wayne Logan, Chair

Appointments Committee

Florida State University College of Law

Tallahassee, FL 32306-1601

[email protected]

 

FSU is an Equal Opportunity/Access/Affirmative Action/Pro Disabled & Veteran Employer.

FSU’s Equal Opportunity Statement can be viewed at: http://www.hr.fsu.edu/PDF/Publications/diversity/EEO_Statement.pdf

 

Bryce Newell's 2023 Meta Rankings of Law Journals

Just in time for the new season (barely).

Second Michael Olivas Summer Writing Institutte

Announcement and Zoom info on Faculty Lounge.

A comment on Northwestern football and student journalism

I stopped watching football about a decade ago, finding the game too gladiatorial. For about five years I maintained a "Northwestern Football" exception, but that dissolved. Nevertheless, the reports of hazing and other misconduct within the program and Fitzgerald's firing sadden me. Fitzgerald was Northwestern football and a successful football team (even if somewhat sporadically) did great things for Northwestern as an institution. I do not know what happened in the lockerroom over the years--my best guess is the stories are substantially true, but how people looked at them ran the gamut, at least until the team stopped winning.

The Daily Northwestern story published on Saturday marked the turning point in this. Prior to that, it appeared the situation would resolve quietly--the university received an investigatory report that found the allegations "largely supported by evidence," suspended Fitzgerald for two weeks in July, and planned to keep the details internal. The Daily story* publicized the details, while opening the floodgates to more stories, more people, and more details.

[*] One of the four bylined authors is a friend's daughter.

Many people frame this as Northwestern's journalism program prevailing over Northwestern's football program or Northwestern's football program being no match for Northwestern's journalism program. This is pedantic, but I do not like the framing. The Daily Norhtwetsern, which reported and published the stories, is independent of Northwestern's Medill School of Journalism (of which I am a graduate). Medill does not run the paper; Daily reporters need not be journalism majors; and most journalism majors (including myself and many of my friends) never worked for it. I do not know much about the publication process or about any faculty input into the publication process, but I expect the students made the key decisions on their own. So I am glad for the praise on student journalists and on the students running the Daily, but separate it from the journalism school.

CFP: Article III Standing to Sue

The University of Chicago Law School's Constitutional Law Institute will host a conference on Article III Standing to Sue on September 22.

 

The Constitutional Law Institute invites draft papers on any aspect of the doctrine of standing. Article III of the Constitution confines the federal judicial power to "cases" and "controversies." Under modern doctrine, courts enforce that requirement by demanding that plaintiffs in every case demonstrate "standing" to sue. In recent years, the doctrine has transformed and raised many new questions -- legal, historical, and practical. Future decisions may well transform it still further.

 

Papers will be presented and discussed at the conference. Please submit any interested papers by August 1 to [email protected]. Chosen papers will be notified by August 15.

3rd Annual “Law vs. Antisemitism” Conference (February 25-26, 2024)

FIU College of Law will host the 3d Annual "Law v. Antisemitism Conference, Sunday-Monday, February 25-26, 2024. I am co-organizer with Rob Katz (Indiana-Inianapolis) and Diane Kemker (visiting at DePaul). The CFP and details after the jump.

CALL FOR PAPERS/PRESENTATIONS

3rd Annual “Law vs. Antisemitism” Conference (February 25-26, 2024)

FIU College of Law, Miami, Florida

You are invited to submit a paper or presentation for the 3rd Annual Law vs. Antisemitism Conference. The Conference aims to provide a platform for researchers and practitioners to present research and developments on the intersection of law and antisemitism -- how law has manifested and perpetuated antisemitism, and how law has been and can be used to combat it.

Areas of interest for the conference include, but are not limited to, the following themes and topics.

• The Working Definition of Antisemitism developed by the International Holocaust Remembrance Alliance (IHRA), its legal implications, critics and competing definitions (e.g., Nexus, JDA)
• Legal efforts in the U.S. and abroad to curtail expressions of antisemitism, e.g., by regulating hate speech, hate speech online, Holocaust denialism, and hate crimes
• Laws that authorize religious expression in public spaces, laws that target Jews and other religious minorities, and generally applicable laws that burden Jewish observance, including abortion bans (in the context of Dobbs)
• Legal responses to the Boycott-Divest-Sanctions (BDS) movement and other efforts to counter boycotts of Israel
• Comparisons between antisemitism and bias and discrimination based on race (including African Americans and Asian Americans) gender, sexual orientation and gender identity, or other categories
• Jews and whiteness, including white privilege, white nationalism, and white supremacy
• Intersectional issues (Jews as a religious/ethnic group; LBGTQ Jews; Black Jews, Jewish women)
• Official discrimination against Jews, both historic and contemporary, including bars to holding office, immigration restrictions, housing and zoning restrictions
• Jews and antisemitism in the legal profession
• Jews as a protected class under federal and state civil rights statutes
• Jews and employment law, including employment discrimination, religious accommodations, and the ministerial exception
• Jews and antisemitism in higher education, including anti-Jewish quotas, Jewish perspectives on affirmative action, Title VI and hostile environments, faculty and student expression and actions concerning Israel and Zionism
• Law and the Holocaust, punishing the perpetrators, restitution for the victims
• The legal construction of Jewish identity (e.g., defining who is a Jew for purposes of the Law of Return, the Nuremberg laws)
• Case studies in antisemitism, e.g., the Dreyfus Affair, the Leo Frank trial
• Translating research on law and antisemitism into practical strategies for countering antisemitism through law
• Pedagogical approaches to teaching about the relationship between law and antisemitism

We invite scholars to reflect on the relationship between antisemitism, Jews, and the law, historically and in the contemporary environment, especially but not exclusively in the United States. We especially welcome papers and presentations that propose changes in law and policy with promise for ameliorating antisemitism and its effects. Please submit an Abstract of 300-500 words to [email protected]. Selected papers from the Conference will have an opportunity to be published in an upcoming issue of the FIU Law Review dedicated to the Symposium. (Questions may also be directed to [email protected].)

Proposals due September 1, 2023             

Presenters will be notified by October 1, 2023

Law School Academic Impact Rankings, with FLAIR (Updated)

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

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

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

How do the FLAIR rankings work?

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

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

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

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

What are the relevant distinctions?

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

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

The FLAIR rankings

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

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

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

The differences that matter, and those that don’t

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

Objections to quantification

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

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

Corrections and updates

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

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

Dean Angela Onwuachi-Willig at FIU

FIU will host our Sixth Decanal Lecture (the first since COVID), with Angela Onwuachi-Willig (BU), on How To Build an Antiracist Profession, 12:30 p.m. EDT today (Tuesday). Livestream here.

Still more on Stanford (Updated)

 Steve (welcome!) reports (with a copy of Dean Jenny Martinez's letter) on the for-the-moment resolution of the Stanford-Kyle Duncan debacle. A couple of points.

Martinez recognizes that some protesters--those who waved signs, those who snapped or hissed, those who asked provocative or even obnoxious questions--engaged in protected counter-speech for which they should not be punished. The letter also references a "non-disruptive level of audience reaction" as protected and appropriate in the forum, an important recognition of the gradations at work. Within the space reserved for a speaker event, it is not a simple binary between silently listen, display signs, and ask questions on the one hand and complete chaos on the other; oral counter-speech remains permissible prior to the point of disruption (wherever that begins). FWIW, Judge Duncan has not made similar distinctions; he expressed particular annoyance with the snapping.

As to my point about asymmetry: The President of West Texas A&M prohibited student organizations from putting on a drag show (scheduled for next Monday), calling it "derisive, divisive and demoralizing misogyny" and akin to blackface, and insisting that, despite the adult audience, drag shows cannot be harmless. The student group has sued and should win the TRO allowing them to hold the event. (Interestingly, the President recognizes that his decision violates the First Amendment but says he does not care). So again--obnoxious counter-speech v. formal state prohibition on student speech. Yes, there are counter-examples on both sides. But a trend is developing. Plus, I wonder how Judge Duncan--and his insistence that speakers be allowed to speak without interruption no matter how offensive the speech--would rule if he is on the Fifth Circuit panel for any appeal in that case.

Update: Popehat weighs in and again gets everything right.

UCLA Seeks Legal Research and Writing Faculty

UCLA School of Law is seeking a full-time lecturer to teach two sections of the first-year J.D. course in Legal Research and Writing. The opening is for the 2023-24 academic year. The appointment will be effective July 1, 2023.

Each section of the Legal Research and Writing is a year-long five-credit course, designed to introduce students to the fundamentals of legal reasoning, the structure of objective and persuasive arguments, legal research methods, statutory interpretation, and additional skills, such as oral advocacy, fact investigation, and client counseling. Students complete a variety of written assignments, both graded and ungraded, designed to reinforce the overarching lessons of the course.

This is a full-time academic, non-tenure track appointment as a Lecturer in Law.

For a complete job announcement, see here.  The deadline for applying is April 21, 2023.  Please contact Dave Marcus, Vice Dean for Curricular and Academic Affairs, with any questions ([email protected]).

CFP: Continuing Legal Education and the Professional Education of U.S. Lawyers

Announcement here.

The AALS Journal of Legal Education invites abstract submissions for a symposium on “Continuing Legal Education and the Professional Education of U.S. Lawyers.” The Villanova University Charles Widger School of Law and the Pennsylvania Continuing Legal Education Board will host the in-person symposium on Friday, October 6, 2023, at the Inn at Villanova University. Accepted final articles will be published by the Journal of Legal Education in a symposium issue.

The symposium will take a broad and deep look at the continuing legal education (CLE) landscape. The themes of the symposium are the purposes of continuing legal education and how effectively those purposes are achieved, including the measurement of teaching and learning.

Areas of exploration could include, but are not limited to: adult learning and engaging pedagogy — i.e., best practices in delivering legal education outside the law school classroom; innovation and experimentation in the delivery of CLE, including best practices for developing and delivering online education in synchronous versus asynchronous formats; the relationship between CLE provider accreditation, program quality, and learning outcomes; legal ethics education and moving the needle on professional compliance; diversity, equity, and inclusion (DEI) in the context of both mandatory and non-mandatory CLE, including access to quality programming and compulsory substantive content on DEI and anti-harassment content; state-by state experimentation with alternatives to fulfilling mandatory CLE, including “CLE for pro bono“ programs; and, in keeping with the spirit of the comments offered by legal education pioneer John Mulder, the important role of law schools in ensuring quality continuing legal education, Continuing Legal Education, 1 J. Leg. Ed. 378, 385 (1949).

The Journal seeks contributions and perspectives from a wide array of potential authors, including legal educators, CLE regulators and providers, and consumers of continuing legal education.

Submission Guidelines

The deadline for abstracts is March 31, 2023, and authors will be notified of acceptance by May 1, 2023. All submissions must be in English. Your abstract should be under 500 words and should identify the author(s) of your proposed presentation. If you are submitting a proposal for a panel, include the names and contact information for all participants. Submissions will be reviewed on a rolling basis. Late submissions may be considered if space remains available. Publishable quality submissions are due to the Journal of Legal Education by December 6, 2023.

To secure broad and strong participation, the symposium convenors will cover authors’ reasonable travel expenses and offer a $500 honorarium for authors who participate in person at the symposium and submit a manuscript that meets the Journal’s editorial standards.

Please submit abstracts as Word documents or in PDF to: [email protected]

Questions should be directed to:

Professor Steven L. Chanenson
Faculty Director

David F. and Constance B. Girard-diCarlo Center for Ethics, Integrity and Compliance

Villanova University Charles Widger School of Law

299 N. Spring Mill Rd.

Villanova, PA 19085

[email protected]

Whittington on the new Florida higher-ed bill

The filed version of HB 999 matches the principles DeSantis announced several weeks ago. Keith Whittington (Princeton and chair of the Academic Freedom Alliance) analyzes the constitutional and academic-freedom problems. His analysis is spot-on. I will highlight two things.

First is his closing line: "In the name of prohibiting political litmus tests for faculty, the reform will wind up imposing political litmus tests for faculty." That is the point--DeSantis and his minions do not intend or desire to prohibit political litmus tests or stop indoctrination; they want to impose their preferred indoctrination and litmus tests.

Second, he says in the closing ¶: "Hard to imagine that this kind of micromanagement of how universities operate will be very workable in practice, even if it were a good idea." Much depends on the university presidents. If they decline to exercise this new power and allow faculty governance to proceed as it has, this may do less practical than rhetorical damage.

Life and the Court marches on

I have mentioned that I end each Civ Pro class by telling students to Remember someone associated with that class. We did Twiqbal today, so it was "Remember David Souter." Students had to google him.

More on oral assessments

Following on this exchange on oral assessments: My Civil Rights class this semester (first meeting this morning) will not include a large end-of-semester writing project, only oral arguments (plus three short in-semester papers and class participation). The three papers are worth more than the arguments, as school rules require. But students can focus all attention to the arguments as the capstone to the class.

I am curious to see if it makes a difference in the quality of arguments or in my ability to evaluate overall performance.

Whither laptops in the (in-person) classroom? (Updated)

Pre-COVID, the trend in higher ed, particularly legal ed, was to prohibit students from using laptops to take notes in class. Early studies showed students learned and retained information better when handwriting notes compared with typing often-verbatim notes. I had banned them from my room since spring 2009, based on a combination of those studies, a general belief that students were better prepared off handwritten notes, and a desire to create habits of engaging in a conversation while taking brief notes followed by a recording or transcript sometime later (i.e., what happens at a trial or deposition). About half the 1L faculty at FIU (7-8 people) did the same.

COVID changed a lot. Student habits of using computers became more entrenched, with students creating multi-screen, multi-device systems for online classes. Although I encouraged students to continue reading and taking notes on paper during my year+ of remote teaching, I doubt they listened.

So where do things stand on the other side (more or less) of COVID? I returned to my old system the day I returned to the classroom (Fall 2021); I heard no complaints. But an informal survey of my colleagues reveals four of us still ban; the rest allow computers, including several who previously did not. Early studies about notetaking have not been replicated in full.

What are faculty at other schools, especially those who did not allow computers pre-COVID, doing? Have student expectations changed and hardened, so they push back against bans? Do accommodations make this an impossible general policy?

Comments left open.

Update: Heard from one more colleague. He allows students to use devices for e-books and materials (which are cheaper and more available) but requires they take notes by hand, the computer reserved for reading and searching materials. I followed this approach by necessity one year in Civil Rights, when the new edition of the book was available electronically but not in print when class began in January. Students followed the no-notes rule, which was easy to enforce in a small (5 students) class; it becomes more challenging with 60+ students. Eboks made it more difficult and time-consuming for students to jump among materials (an issue in code classes). But that may be worth lowering the cost of books. Perhaps an intriguing middle ground for next year. In any event, that does mean five of us remain in the no-laptops-for-notes camp.

In Memoriam, Megan Fairlie (Updated)

I am sad to announce that my FIU colleague Megan Fairlie died Tuesday, following a lengthy illness. She leaves two daughters, Aileen and Maca.

Megan came to FIU in 2007. She taught Crim, Crim Pro, and PR almost every year, so she taught and touched the vast majority of COL students the past 15 years. She wrote extensively on the ICC and international criminal law. She also was a wonderful friend and colleague; I will miss her contributions to the school's intellectual community.

More details, including about a memorial service sometime in the spring, to come.

Update: The family created a Go Fund Me for Megan's daughters. Please share the link.

Oral assessments (if not exams) (Updated)

Responding to Gerard's post: In Fed Courts and Civil Rights, a chunk of the grade (about 30/165 points) is based on oral arguments. I usually have 20-30 students in each. The class gathers for a full day at the end of exams. Each student argues one case and judges one case. A petitioner and respondent argue the case before a panel of 3 students and me. It is a lot of fun and the students enjoy it. And it allows me to test them in real-time--to push back and/or correct their understandings and arguments and thus to measure how well they get stuff.

I have not been able to pull the trigger--which I think is what Gerard is suggesting--on making it the sole big assessment. That comes from a written opinion on a third case (as well as two smaller in-semester papers). I am not sure our internal academic policies on the curve and blind grading allow it. But it is an interesting thought would make my life easier. And that other people, such as Gerard, would consider it suggests it is worth thinking more about.

PS: A colleague described doing oral exams years ago at another school, in Fed Courts. He met with each student and had a conversation about some subjects or issues. Sometimes, to ease student discomfort, he took it outside--they walked around campus talking about federalism.

Update: One more thing, perhaps against the idea. In litigation, the balance between oral and written has shifted overwhelmingly towards the latter--fewer appeals get oral argument, fewer trial motions get oral argument, district judges spend less time on the bench. So do we do a disservice by emphasizing oral over written in getting them ready to practice?

Yale withdraws from US News

Dean Gerken's announcement. I do not think about legal education and metrics enough to predict what this will mean. I am curious to hear other people's thoughts, in particular for schools in the middle of the US News pack. Update: Harvard, too.

Affirmative action alternative? (Guest Suzanna Sherry)

The following post is by Suzanna Sherry (emerita at Vanderbilt and friend of the blog).

On Monday, the U.S. Supreme Court heard oral arguments about the legality of affirmative action. Some time before the end of June, the Court may well hold that it is illegal – either under the Constitution, a federal statute, or both – for colleges and universities to use race as a factor in deciding which students to admit. Conservatives hope, and liberals fear, that this will mean the end of affirmative action in educational institutions.

It won’t. Elite colleges and universities will quickly adapt, changing their admissions policies to achieve their goal of a racially diverse student body while purporting to be race-neutral. It will take only three easy steps.

Step one: Make the submission of SAT or ACT scores optional (some universities have already done so). This will break the applicants for admission into two pools. One, the test-submission pool, will consist of students who earned high scores on the tests. It will be almost entirely white and Asian-American. The other, the no-submission pool, will consist of students who either did poorly on the tests, or did not take a test because they feared they would do poorly. This second pool will contain applicants of all races and ethnicities.

Step two: Establish criteria for admission from each pool. For the test-submission pool, the criteria will presumably be the traditional ones: test scores, high school grades, recommendation letters, and interviews. For the no-submission pool, the criteria will sound good, but they will be vague and infinitely malleable: drive to succeed, the ability to overcome obstacles, a commitment to making the world a better place, and the like. And, surprise, surprise, it will turn out that Black and Hispanic applicants meet these criteria more frequently that white applicants do, at least according to the admissions officers’ evaluations.

So the students admitted from the submission-pool will be almost all white or Asian-American. The largest percentage of students admitted from the no-submission pool will be Blacks and Hispanics, who are currently being admitted through affirmative action program. Admittees from this pool might also include applicants with other desirable attributes, such as offspring of alumni or big donors or celebrities, royalty from around the world, and the occasional prize-winning oboist desperately needed by the school’s orchestra.

Step three: Determine the distribution of students who will be admitted from each pool. This can be a fixed percentage (60% from one pool and 40% from the other), or a minimum or maximum (at least 40% from one pool, which is the same as no more than 60% from the other pool). The distribution can be stated as a goal – which allows some deviation – or as a mandatory result of the admissions process.

It might take a year or two to get the criteria and the distribution just right. But in short order, these elite colleges and universities will have the same racial distribution that they do now. And because there will be two separate pools and no objective criteria by which to compare applicants in the no-submission pool, there will be no way to prove that race played any role deciding who gets admitted.

Civ Pro Halloween

Civ Pro is a spring class around here, so no in-class costumes. Still, I got a visit from a student in my office. She is 4'11" tall; she wore a white t-shirt with the word "statement" on it.

Yale responds to Judge Ho

NLJ story here. The school revised its free-expression policies to include three conditions on protesting/disagreeing with a speaker: no blocking access to the event or facility; no disrupting the event and university operations; no compromising the safety of those attending or other members of the community. Dean Gerken sent a letter to the community highlighting the hiring of a new dean of students, the revision to the code of conduct prohibiting surreptitious recording of classes and other school events and activities, and a commitment to students resolving disagreements in-person.

I do not know whether it satisfies Judge Ho's complaints about free speech on campus, which I found disingenuous; they equate protest and criticism of an invited speaker with cancellation or drowning out. Free speech means sit-and-listen and hope the speaker deigns to engage with you or go away; anything else violates free-speech norms. The new policies seem to leave room for that sort of counter-speech so long as they do not "disrupt" or "block access," vague and capacious terms that could create problems if applied too broadly. (For example, a sufficiently large peaceful protest outside a building forces people to navigate a crowd to get inside--I would hope the school does not treat that as prohibited blocking).

Law Review Meta Rankings, 2022

Annual update of law review meta rankings from Bryce Newell. A separate chart compares five years of studies.

Law School Exceptionalism

One more thought on the Yeshiva case. Cardozo Law School has LGBTQ+ student organizations and responded to the university's recent appeals with a public statement reaffirming support for the community and student organizations and stating that the university's efforts "do not pertain to the Cardozo School of Law and will have no impact on law school policy." This is consistent with the position of Albert Einstein Medical School and some graduate programs, whose student populations are less Orthodox and whose curricula are less steeped in Orthodox teachings.

This offers an important example of "law-school exceptionalism"--central universities recognizing that law schools are unique entities and treating them different than other campus units in terms of faculty governance, student life, student control, etc. It was a central feature of the late-2oth/early-21st-century heyday of legal education. It allows a law school to have an LGBTQ+ student organization where the university has decided that such a group--and the rights for which it fights--runs contrary to the institution's core educational values. Whatever its views on the merits of anyone's position, the university will not micro-manage the law school on such matters and will leave it to its choices and preferences. Some is accreditation-driven--law schools can argue that requiring it to eliminate such groups would run afoul of the ABA and AALS. Some is competition of the market--law schools can argue that they cannot attract sufficient top students in New York if they run a school perceived as unwelcoming to LGBTQ+ students.

Law-school exceptionalism also is, in some places, a vanishing virtue. As the nature and perceived value of legal education have changed, so has (some) university willingness to allow law schools to operate with such procedural or substantive independence. This could provide an interesting test of Yeshiva's commitment to this ideal. Cardozo's statement on the litigation suggests the dean feels confident the university will not turn this into a larger issue of central control. But it is a piece worth watching as this case proceeds.

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).

CFP: Memphis Law Review: (How Much) Should We Pay Them?

The University of Memphis Law Review writes to share our call for papers for our upcoming Spring 2023 Symposium with you, your faculty, and your colleagues.  This year’s Symposium is titled “(How Much) Should We Pay Them? The Shifting Legal Landscape of Collegiate Competition” and will take place on February 24, 2023.  We hope that you will share this call for papers, which can be found here, with your law school’s faculty.

While the Supreme Court’s recent decision in NCAA v. Alston marked a major shift in the way collegiate sports operate in the United States, the full ramifications of that decision are not yet apparent.  Although the broad question of whether college athletes may be paid has been answered, there are still significant issues that should be raised and addressed now, before a new system of athlete compensation at the collegiate level begins to fully take shape.  Possible topics to be addressed may include:  frameworks for collegiate sports gambling; resolution of employment and labor disputes; and regulation of name, image, and likeness (NIL) compensation.

The University of Memphis Law Review invites manuscripts from all points of view for publication in Volume 53 and presentation at our Spring 2023 Symposium.  We hope that you will send this Call for Papers to your colleagues, as we seek to meaningfully contribute to the national discourse on collegiate sports and competition.  If you or a colleague wishes to participate, please submit a manuscript or abstract to our Symposium Editor, Alex Daichman, at [email protected] with “Collegiate Competition” in the subject line.  The deadline for submitting a manuscript or abstract is October 15, 2022, but we are happy to work with any interested authors or speakers who anticipate any difficulty in meeting this deadline.  Should you have any questions, please direct them to Alex Daichman, who will be happy to answer them in a timely manner.

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.

CFP: Financial Restructuring Roundtable

The Financial Restructuring Roundtable (formerly the West Coast Bankruptcy Roundtable) will be held in person on April 6, 2023 in New York City. Spearheaded by Tony Casey, Samir Parikh, Robert Rasmussen, and Michael Simkovic, this invitation-only event brings together practitioners, jurists, scholars, and finance industry professionals to discuss important financial restructuring and business law issues.

The Roundtable invites the submission of papers. Selected participants will receive a $2,000stipend and have the opportunity to workshop their papers in an intimate, collegial setting. Last year’s attendees included Ken Ayotte, Douglas Baird, Bruce Bennett, Jared Ellias, Anna Gelpern, Marshall Huebner, Ed Morrison, Mark Roe, David Skeel, and Jamie Sprayregen. 

We seek papers exploring diverse topics and will be interested in interdisciplinary perspectives. Papers will be selected through a blind review process. Scholars are invited to submit a 3 – 5 page overview of a proposed paper. Submissions may be an introduction, excerpt from a longer paper, or extended abstract. The submission should be anonymized, and – aside from general citations to the author’s previous articles – all references to the author should be removed.

Please submit proposals by October 1, 2022. Invitations will be issued via email by November 1.  Working drafts of papers must be available for circulation to participants by February 10, 2023.  

Proposals – as well as questions and concerns – should be directed to Samir Parikh at [email protected]. 

Return of the Junior Faculty Federal Courts Workshop

The University of Florida Levin College of Law will host the Twelfth Annual Junior Faculty Federal Courts Workshop on December 1-2, 2022. The workshop pairs a senior scholar with a panel of junior scholars presenting works-in-progress. After a long COVID-related hiatus, we’re excited to bring together the Federal Courts scholarly community in person in Gainesville, Florida.

The workshop is open to untenured and recently tenured academics who teach and write in the areas of federal courts, civil rights litigation, civil procedure, and other related topics. The program is also open to scholars who wish to attend, read, and comment on papers but not present. There is no registration fee.

The conference will begin on the morning of Thursday, December 1, and conclude by early afternoon on Friday, December 2. Each panel will consist of three to four junior scholars, with a senior scholar commenting on the papers and leading a group discussion.

The workshop will take place at the University of Florida Levin College of Law, which is within 15 minutes of the Gainesville Regional Airport and less than two hours from the Jacksonville International Airport and the Orlando International Airport. The College of Law will provide lunches and dinners for those attending the workshop, but attendees must cover their own travel and lodging costs. A discounted block of rooms will be made available at the Hotel Eleo at the University of Florida. Those wishing to present a paper must submit an abstract of no more than two pages to [email protected] by Monday, September 12, 2022. Papers will be selected by a committee of past participants, and presenters will be notified by no later than October 3, 2022.

Questions about the conference may be directed to Professor Merritt McAlister at [email protected] or the Strategic Academic Programs Manager Ruth McIlhenny at [email protected].

What is so bad about Saul Goodman and other questions

Two questions about the penultimate Better Call Saul, with spoilers, after the jump.

What is bad about Saul?

As I wrote several episodes ago, the theme of BCS that decent Jimmy McGill becomes irredeemable Saul Goodman and we have moved deep into that. Last night included a flashback to a Rosencrantz-and-Guildenstern-type meeting, early in the BB timeline, between Kim and Saul and between Kim and Jesse, both of which are designed to show how far Saul has gone.

Here is Rolling Stone' Alan Sepinwall, a critic I love reading and listening to and seems a generally liberal person, as far as he shows in his writing, on the Kim-Jesse interaction:

Jesse is only there because his buddy Emilio — a.k.a. Walter White’s first murder victim — has come to Saul seeking legal representation. (In the “Better Call Saul” episode of Breaking Bad, Jesse tells Walt that Saul got Emilio out of trouble on two different occasions, despite the cops having him dead to rights.) Like Kim’s various interactions with Saul and/or Gene in this episode, she says very little, just waiting for the nicotine to kick in and hoping that the rain will stop before she has to listen to too much of this overgrown kid(*) bragging about ways for criminals to evade the justice system. She believed passionately in her work as a public defender, but guys like Jesse, Emilio, and Combo are the dark side of that work — the ones who present an ongoing danger to others each time a lawyer like Kim or Saul gets them off. And she really can’t stand listening to the future Mr. Driscoll praise the legal chicanery of the man she hopes to never see again.

This is disturbing. On Sepinwall's framing, Saul is bad because he does what a defense lawyer is supposed to do--he defends clients and forces the state to prove its case beyond a reasonable doubt before putting them in prison.  Sepinwall talks of "evad[ing] the criminal justice system" and "legal chicanery." Maybe Saul did something illegal or unethical in helping Emilio, Combo, and these other clients. But (again in the spirit of "show, don't tell") we have not seen it, nor have we seen it as different in kind from what "Jimmy" did. Jimmy/Saul did a lot of illegal stuff--lied to the court about Lalo's identity, helped deal meth, provided information on a murder, and laundered money. And maybe that illegal stuff is part of the representation he is does here. But, again, we have not seen it. Successfully representing even obviously "dead to rights" people in court should not be mentioned in the same breath.

Worse, Sepinwall distinguishes the criminal defense Jimmy does from the criminal defense Kim wanted to do (before she threw it away on the scheme that resulted in Howard Hamlin's murder), framing the latter as noble and the former as the corrupt work of the evil Saul Goodman, the "dark side" of criminal defense. In fact, it is the core of the work of a defense lawyer. A lawyer who only wants to defend innocent people needs to find another line of work. Kim wanted to limit her defense to indigent people who committed small-bore crimes and were caught in the system. Which, fine. But her work is not nobler or more moral than what Saul does (again, assuming he stays within legal lines as to in-court representation).

Could Saul and Kim be charged with a crime?

I pose this to crim law people out there. In last night's episode, Kim goes to the DA and signs an affidavit detailing their scheme (which she also show to Howard's widow): They falsely made it seem that Howard was abusing cocaine, caused his work on a case to implode, and destroyed his personal and professional reputation; when he confronted them about the scheme at their apartment, Lalo (who was there on a separate matter and not connected to the scheme) murdered him. There is some talk about whether she will be charged with anything; she says she does not know* and that hers is the only evidence of what happened.

[*] Howard's widow is angry about this, pointing out that she is supposed to be a great lawyer. Yes, because great lawyers know everything about all law. That is why Law Twitter is the way it is.

The question appears to be whether they could be charged in Howard's death. Could she (or they) and for what? Can felony murder extend that far--to murder by an unconnected person after the underlying felony was complete?  Is there some other theory of criminal liability for Howard's death? What about for the underlying scheme to destroy his reputation, separate from his death.

There is a separate prospect of a civil suit (which the widow mentions, although Kim does not have much money). Maybe defamation or IIED? Something else? There is a statute of limitations problem--six years elapsed in the BCS/BB universe--although I imagine a good argument for tolling based on fraud.

Leaving comments open because I would like to hear from some crim folks.

Assiging pre-1L summer reading

Have law schools begun assigning law-related books to incoming 1Ls--for example, books on how law shapes society,  lawyer mindfulness, and other topics that frame law, legal practice, and law school in some broader framework. Is your school assigning something? If so, what book(s) and what are you doing with them (discussion during orientation, integrating into 1L courses, etc.)?

Leave answers in comments or email me. (Irrelevant comments will be deleted--please don't fuck up a genuine question about legal education).

Call for Nominations: AALS Section on Federal Courts

The AALS Section on Federal Courts is pleased to announce the annual award for the best article on the law of federal jurisdiction by a full-time, untenured faculty member at an AALS member or affiliate school—and to solicit nominations (including self-nominations) for the prize to be awarded at the 2023 AALS Annual Meeting.

The purpose of the award program is to recognize outstanding scholarship in the field of federal courts by untenured faculty members. To that end, eligible articles are those specifically in the field of Federal Courts that were published by a recognized journal during the twelve-month period ending on September 1, 2022 (date of actual publication determines eligibility). Eligible authors are those who, at the close of nominations (i.e., as of September 15, 2022), are untenured, full-time faculty members at AALS member or affiliate schools, and have not previously won the award. Nominations (and questions about the award) should be directed to Prof. Diego Zambrano at Stanford Law School ([email protected]).

Without exception, all nominations must be received by 11:59 p.m. (EDT) on September 15, 2022. Nominations will be reviewed by a prize committee comprised of Professors Merritt McAlister (University of Florida Levin College of Law), Richard Re (University of Virginia), Mila Sohoni (University of San Diego School of Law), Steve Vladeck (University of Texas), and Diego Zambrano (Stanford) with the result announced at the Federal Courts section program at the 2023 AALS Annual Meeting.

ICYMI: Teaching Tips for New Professors

I wrote these tips a few years ago and reviewed them before reposting for anyone who is interested.

1.  Begin a little more strictly than you mean to go on.  If you start out strict and stern, you have room to lighten up. If you start out lax, you will pay a real price if you need to impose order later on.

2.  If you put a policy in the syllabus, stick to it even if you think you might have been wrong.  I learned this the hard way.  The first time I taught Professional Responsibility, I stated in the syllabus and in class that the exam would be a two-hour exam.  After I wrote it, I decided it was a bit too hard and I would be "nice" and give them an extra hour to complete it.  I had a young woman in my office 30 minute before the exam so angry I thought she would spit on me. I told her she was welcome to finish in two hours instead of three, but that didn't placate her. I finally told her she'd have to take it up with the associate dean, and I'll be damned if she didn't march down there and do just that.  Thankfully, he backed me up, but I never again made a major policy shift midstream.  She wasn't the only disgruntled student that day, either.

3. Put everything you can think of in the syllabus, even things that should go without saying.  For example, if you are teaching a seminar, you should consider a policy stating that plagiarism is a ground for failing the course, and you should have an extended explanation in the syllabus explaining what plagiarism is.  You might think that everyone accepted to law school already knows what plagiarism is, but you would be wrong.  More importantly, by explaining what plagiarism is in the syllabus, you deprive the student of the ARGUMENT that s/he didn't know s/he was committing plagiarism.  Another example of something you might want to put in the syllabus is a statement that it is rude and disruptive to come late to class, to come and go during class, or to leave class early without notifying the professor beforehand.  Frankly, I'm not sure I realized how distracting these habits are before I started teaching, and many of your students won't, either.

4. "Don't be moody." 

This is a piece of advice I received early on from a relatively new law teacher, and it has always stuck in my head. The person who gave me the advice was male, and he evidently had gotten burned by violating it.  What the advice boils down to, I think, is that students desperately need you to be predictable. It is comforting to them when they know roughly what to expect each day. I thought of this advice a lot as dean, too. The Dean's "mood" affects the whole institution, and it is important to remain predictably but not Pollyanna-ishly optimistic no matter what comes along. As an aside, I think this is important as a parent, too. My motto: We'll deal!

5. Students decide very, very quickly whether you're on their side or not. If they decide you are, they will forgive a multitude of mistakes. If they decide you're not, nothing you do will be right.  I've been teaching for 28 years, and I only had one class that hated me.  They decided early on that I was mean, and everything I did provided confirmation.  They even hated how I started the class and what I wore. (I'd given birth the month before the class started, and my wardrobe was limited). Frankly, I grew to dislike most of them, too.  However, in telling this story, I'm violating the next tip in my list.

6. Be careful about generalizing how "the class" feels.  A communications researcher would probably insist that, in fact, there is no such thing as a "class." (See Ien Ang).  Instead, a "class" is a collection of individuals with disparate needs and interests and judgments about the classroom experience.  That said, it is easy to assume that outspoken students represent the feelings of the entire group.  It so happens that what I think of as "the class that hated me" (discussed above) included two especially delightful students, who took one of the most fun Media Law classes I ever taught. I still keep in touch with them even though they graduated more than two decades ago.

7. Watch out for group dynamics.  Let's say you have a student who is engaging in disruptive behavior. You may be tempted to call the student out for his or her behavior in front of the whole class, but this is usually a bad idea.  Even if other students started out being annoyed at the disruptive student, they may turn on you if you come down too harshly on the student or make him lose face. What should you do instead? I use what I call "class regulation by raised eyebrow."  For example, if a student is late, I may visibly lose my train of thought and stare at him with a completely blank expression on my face for a few seconds--just long enough to be socially awkward.  That does the trick 99 percent of the time.  If you try informal means of "discipline" and they don't work, however, the next step is to call the student into your office. The student won't lose face, and you won't run the risk of having the entire class turn against you for being "mean." Also, you don't know what's really going on with the student. Often, it's not about you or your class at all, and seemingly rude behaviors can be a sign of a student who is in serious distress, especially if the behaviors begin suddenly.

8. Try not to project insecurity. In other words, fake it until you make it.  Although you may be tempted to reveal to the class that you are brand new or are learning the material for the first time, you certainly don't have to and some would argue you shouldn't.  Remember that the students are lucky to have a teacher who is energetic and curious and enthusiastic and can reach them at their level.  Also remember that as little as you think you know, you still can read a case far better than even your brightest student.  So project confidence, but . . . [see next rule.]

9. When you make mistakes, fix them.  When I first taught Torts, I slept with the Prosser & Keeton hornbook by my bedside.  I would wake up in the middle of the night thinking "what if they ask me X?" I would then flip through Prosser & Keeton, read it, perhaps even take notes, and then go back to sleep.  I realize now that every first-time teacher makes mistakes; it is just a question of how you handle them.  Sometimes you will just have to say, "I don't know. Let me research that and get back to you tomorrow." [But make sure you have the answer when you promised it.]   One classic dodge is to say:  "Hold that question. We'll get to that later in the class (or tomorrow or next week)." [Make sure you research the answer and come back to it when you said you would.]  If you realize you didn't explain something well or your explanation was misleading, one way to handle it is to say at the start of next class:  "I'd like to begin by clarifying X that we were discussing yesterday." [Then give your 5-10 minute summary/totally correct explanation.]  Occasionally, you will realize that you said something completely wrong, and you will just have to apologize and fix it. As consolation, remember that you are modelling for them how to handle mistakes, and it may be one of the most valuable lessons you can teach future lawyers.  Law is a complicated business, and we all make mistakes from time to time no matter how hard we try or how smart we are.

10.  Trade-offs are inevitable.  More depth or more coverage? Encourage participation and intellectual curiosity, or hew to an organizational scheme?  Stick to your syllabus, or spend more time on the things the class seems interested in or doesn't understand readily? There are lots of other trade-offs of this sort that you'll have to make and then re-make when you realize you've tilted the balance too far toward one value at the expense of another. 

11. Make ideas "sticky." Try to come up with ways to make the material you teach memorable.  Silly is sticky.  Graphics (pictures, drawings on the board) are sticky. Funny is sticky. Music is sticky. Videos can be sticky. My Trusts and Estates professor even danced on the table to reinforce a principle, and I remember it (the dancing) 30 years later.  The principle had something to do with whether separate property acquired after the marriage becomes community property or not.  Okay, so the idea wasn't that sticky, but my point still holds.

12. Use the board more than you think you need to. It helps keep the class structured, and it helps the visual learners in the class.   Conversely, use Power Point less than you think you need to.   Power Point is good for pictures and videos, and it can be used to examine closely the text of a rule or to convey highly detailed and technical material through lecture. It can also be used as a background with the main points (no more than 3-4) you're going to cover.  Do NOT put giant blocks of text on Power Point and then simply read to the class from the slides. EVER.  

13. It's not about you; it's about the students. Try to keep their needs foremost, instead of your own desire for ego gratification or anything else. This is probably the most important piece of advice on this list. You're not trying to convince the students you're smart; you're trying to convince the students they're smart. This happens to be good advice for leaders, too!

14. Keep a degree of formal distance between you and your students.  You can treat them like future colleagues, but you cannot be friends with students until they have left your class.  Your role requires you to sit in judgment of your students when you grade them, and that role can be compromised if you don't maintain formal distance.

15. Never use the same exam twice!!  Violate this rule at your extreme peril.

16. Ask colleagues for advice but remember you don't have to take all the advice you receive.

17. You will teach a class best the third time you teach it.

18. If you are teaching a large class and don't feel that voice projection is one of your gifts, consider wearing a microphone. I've never had this problem, but I've heard plenty of complaints from students about being unable to hear some of my colleagues. It is impossible to be an effective teacher if the students cannot hear you.

19. Consider wearing a suit when you're new. Even if you don't plan to wear it forever, it may help as a crutch for faking it until you make it and can help you maintain some formal distance from the students.  I don't wear a suit every single day, but I believe in signaling I take the endeavor seriously by dressing professionally.

20. If you are teaching 1Ls, talk to students about how to learn. You might think they know, but not all of them do. Talk about what hard work looks like. One of my favorite books about learning is "Make It Stick," which is recommended reading for all teachers and learners.

21.    Talk to students about mental health at the beginning of class and throughout and especially right before exams. Make it okay for them to seek help if they need it.

22.   One of my greatest joys as an experienced teacher is seeing my former students reach the pinnacles of their careers. Think about the fact that the students in front of you will someday be extraordinary lawyers, judges, and leaders. You may think you will change the world as a scholar, and maybe you will. But you can definitely change the world by helping one student at a time find what they were meant to do with their one short and precious life and giving them the knowledge, skills, and courage to pursue it. 

23.  Try to learn names. I've been bad at doing this while teaching as a dean. Now that I'm a full-time prof again, I'm looking forward to redoubling my efforts on this front. 

24. Tell students why they should come to office hours. Tell them that they can seek general advice from you if they need it. About two years ago, a student taught me how important this is for first-generation students. I wish I'd known it sooner. 

Finally, if you're new and you'd like to talk about any of the subjects I teach (mostly Torts, Media Law, Advanced Torts, First Amendment Law, Constitutional Law), I'd be happy to share any materials I have.

First Annual Michael Olivas Writing Institute, July 21-22

The First Annual Michael A. Olivas Writing Institute will take place via Zoom this Thursday and Friday, July 21-22, sponsored by the Olivas Faculty Recruitment Initiative, FIU College of Law, and University of Houston Law Center. Registration here.

Faculty Hiring: University of Alabama

The University of Alabama School of Law seeks to fill up to two tenured/tenure-track positions for the 2023-24 academic year. Candidates must have outstanding academic credentials, including a J.D. from an accredited law school or an equivalent degree (such as a Ph.D. in a related field). Entry-level candidates should demonstrate potential for strong teaching and scholarship. The primary focus of these positions is in Environmental Law (including Regulatory Compliance) and Civil Procedure (with the possibility of also teaching Evidence); however, qualified applicants in other areas may be considered. We welcome applications from candidates who approach scholarship from a variety of perspectives and methods. The University embraces diversity in its faculty, students, and staff, and we welcome applications from those who would add to the diversity of our academic community.

Candidates interested in the Assistant/Associate Professor level positions should apply online at https://facultyjobs.ua.edu/postings/50441

Candidates interested in the Associate/Full Professor level positions should apply online at https://facultyjobs.ua.edu/postings/50535

Salary, benefits, and research support will be nationally competitive. All applications are confidential to the extent permitted by state and federal law; the positions remain open until filled. Questions should be directed to Heather Elliott, Chair of the Faculty Appointments Committee ([email protected]).

UA EEO Statement: The University of Alabama is an Equal Employment/Equal Educational Opportunity Institution. All qualified applicants will receive consideration for employment without regard to race, color, religion, national origin, sex, sexual orientation, gender identity, gender expression, pregnancy, age, genetic or family medical history information, disability, or protected veteran status, or any other legally protected basis, and will not be discriminated against because of their protected status. Applicants to and employees of this institution are protected under Federal law from discrimination on several bases. Follow the link below to find out more.
“EEO is the Law” https://www.eeoc.gov/sites/default/files/migrated_files/employers/poster_screen_reader_optimized.pdf
“EEO is the Law” Poster Supplement http://www.dol.gov/ofccp/regs/compliance/posters/pdf/OFCCP_EEO_Supplement_Final_JRF_QA_508c.pdf

CFP: Penn Law Review: Debt Market Complexity

The University of Pennsylvania Law Review will host its annual symposium on Friday, October 7, 2022, in-person. This year’s topic, “Debt Market Complexity: Shadowed Practices and Financial Injustice”, will explore the rise of increasingly complicated debt structures associated with private equity. We are issuing a call for papers for publication in the Law Review’s corresponding symposium issue.

To submit a paper for consideration, please provide an abstract no longer than 750 words to [email protected] by July 31st, 2022. If selected for publication, completed drafts will be due January 1st, 2023. 

The complete call for papers, which includes more detail, is available here. 

First Amendment Roe-ism? (Updated)

Gerard asks a good question. I discussed a similar question after the draft leaked. Let me try another pass.

Lochner is more than an unenumerated right. The case also functions as shorthand for using the Constitution to protect economic activities against state regulation. That effort continues with recent efforts (some successful) to use, for example, free speech to hamper economic regulation--hence so-called "First Amendment Lochnerism." Can students understand that concept and what it entails if they have not learned Lochner?

Two more thoughts. 1) Lochner is important because the conservative desire to revive it affects doctrines such as the Commerce Clause and federalism; the "Broccoli hypothetical" in the ACA case was about importing Lochnerian limitatons into the Commerce Clause. 2) Although both involve unenumerated rights/substantive due process,they reflect different forms--one about economics and business and one about private personhood; there may be value in covering both.

CFP: Washburn Law Journal

 

Call for Papers: December 2022 Issue of the Washburn Law Journal

 

Washburn University School of Law, Topeka, Kansas

The Washburn Law Journal is soliciting articles for Issue I, Volume 62 of the Journal. The lead Essay for the issue is written by Professor Daniel Bodansky and discusses the UN climate change regime, the Paris Agreement, and COP 26. Each year, Washburn University School of Law invites a distinguished scholar to present the Foulston Siefkin Lecture. This year, Professor Bodansky—a Regents’ Professor of Law at the Sandra Day O’Connor College of Law at Arizona State University—presented “The UN Climate Change Regime Thirty Years On—A Retrospective and Assessment.” (His presentation can be found at the following link: https://www.youtube.com/watch?v=9DSCV5w2q9E).

Articles chosen for publication will be published in December 2022. Articles must discuss climate change, environmental law, or natural resource law to be accepted for publication. Authors may email articles to [email protected] with the subject line “WLJ Call for Papers.” Authors must include a full draft of their article, cover letter, and a curriculum vitae with their submissions. Articles must be a minimum of 10,000 words and no more than 30,000 words. Submissions will be accepted until August 1, 2022. The Journal will extend offers for publication to selected authors no later than August 22, 2022. A limited number of articles will be chosen for publication.

 

If you have any questions, please reach out to the Editor-in-Chief, Marisa No at [email protected] or the Senior Articles Editor, Elisabeth Wilder at [email protected].

Call for Abstracts: Complex Litigation Ethics Conference at UC Hastings

The Center for Litigation and Courts and Huntington National Bank are excited to announce a call for abstracts for the upcoming Complex Litigation Ethics Conference to be held on the UC Hastings Law campus on Saturday, Oct. 22, 2022.

A substantial percentage of all cases filed in federal court are MDL cases, many of them involving proposed class actions. Meanwhile, district courts struggle with case management, settlement, and post-settlement administration of these complex cases. Yet scant scholarly attention has been paid to how courts adapt ethical rules and norms to complex litigation. This full-day conference will explore such issues as: 

1. Adapting Ethics to Complex Litigation in General;
2. Ethics in Funding Complex Litigation;
3. Diversity, Equity, and Inclusivity in Complex Litigation; and
4. Ethics in Communicating with Absent Class Members. 

Symposium papers will be published in a 2023 issue of the Hastings Law Journal. Confirmed speakers include federal judges, professors, and practicing attorneys, including Eric L. Cramer (Chair, Berger Montague PC), Maya Steinitz (Professor, University of Iowa) and W. Bradley Wendel (Professor, Cornell Law School). Additional speakers will be selected in part through this call for abstracts. For presenters not at for-profit legal practices, reasonable travel expenses and up to two nights’ lodging will be provided, in addition to meals. Presenters will be expected to circulate a polished draft paper by October 12. Final papers of around 8,000 words must be submitted to the Hastings Law Journal by December 31.

Abstracts of no more than 500 words should be submitted by email to Professor Joshua P. Davis at [email protected], with the subject heading “Abstract Submission – Complex Litigation Ethics Conference,” by June 30 (or contact Joshua P. Davis to discuss timing). Selections will be made in the first week of July and then on an ongoing basis. 

Any questions should be submitted to Professor Davis at the email above.

Academic Muppets