The Faculty Lounge

Is The Moment Ripe? Notable Increase In Law School Applications

The newest LSAC volume summary is out and there is good news for those working in law school admissions offices: applications are up.  Of course, they're not actually up compared to last year.  Total numbers are still down, and dramatically.  But they're down by a lower margin that they were a few weeks ago.  Back on January 10, we reported that applicants were down 22.1% compared to last year.  Based on that number, LSAC was projecting something around 52,000 total applicants this year.  Four months later, and the news is a bit different.  Now, as of the May 17, 2013 report, the total number of applicants is down 13.4% and the projected total number of applicants is looking like it'll be around 58,700.  That's a big dip from the 68,000 last year...but a dip of 10,000 is signficantly different than a dip of 16,500.

I am certain that many deans and admssions directors are asking if we've hit a bottom.  I think it is far, far too early to tell.  But I also think that the intensity of negative coverage may be triggering a burst of applications among those who realize that there may never be a better year to apply to law school, from the point of view of maximizing the power of one's given LSAT score as well as minimizing actual tuition costs.

Because let's face it: people willing to attend law school in select cities (such as, for example, Philadelphia) can get quite a bargain.  A student with a 159 LSAT and decent grades can choose among multiple Philadelphia law schools and pay very, very low tuition.  Prefer to pay full freight?  Given that the top schools seem likely to maintain class size even in the face of an overall credential drop, a 168 LSAT is likely to take you a long way this year.

That doesn't mean law school is the right choice for any particular person.  But for people who want to become lawyers no matter what, the math right now is starting to look awfully appealing.  Or at least that's what the numbers suggest.

 

Contract As Disclosure II (Or Why I Keep Signing That Same Stupid Liability Waiver)

The second half of my review of Peggy Radin’s new book on boilerplate has now been posted over at ContractsProf.  (Part I is here.)  In this second post, I use the example of the boilerplate at top right to analyze some of Peggy’s explanations for market failure in the case of boilerplate and dismiss most of them as inapplicable to this particular example, at least based on my own experiences over the years with these sorts of waivers and the people who sign them.  These are people who, in my experience, are more than capable of understanding the short and rather simple waivers at issue here, they do read the boilerplate and frequently discuss it with each other, and though they may underestimate some risks, they may overestimate others.  In short, these people are like me – in fact, they are me, and we sign these waivers year in and year out.  Why? 

As I explain over at ContractsProf, one possibility is that Peggy has correctly identified a case of market failure.  This is not because these consumers are intimidated by contracts or fail to read or understand them, but because the multi-factor evaluation in which consumers must engage to fully assess the price-product-contract package is a complex task of the type that most of us are not very good at.  But I am not sure that this concession bodes well for Peggy’s proposed solution. Because if this multi-factor evaluation is a complex task for consumers, it is a complex task for lawmakers as well. 

Which brings us to another possibility for why consumers such as me keep signing these onerous boilerplate contracts.  As I explain in the post:

If calculating the optimal trade-offs among price and the numerous other elements of the product/service + boilerplate adventure tour package is decisionally complex for experienced consumers of travel services, then it is difficult for courts and lawmakers as well.  Perhaps the legislature was right in crafting a default rule placing liability for negligence on the tour operator, in the hopes of creating incentives for such tour operators to exercise care before putting their clients at risk.  And perhaps consumers are mistaken in signing away those rights, thus “deleting” rights thoughtfully granted by the legislature.  Peggy places a high value on democratically-generated rules such as these, and demonstrates more faith in such democratic processes than in market ones. 

Perhaps she is right.  But, perhaps, the legislature simply got this one wrong. Perhaps consumers believe that there are cheaper and more effective mechanisms for differentiating trustworthy and careful adventure tour operators from untrustworthy and negligent ones.  Perhaps consumers have quite rationally concluded that firm reputation; their own repeated positive experiences with a particular operator; the prior impressions of friends, neighbors, and other experienced travelers; and third parties, such as travel insurance companies, all have helped them to choose a tour operator whose risk of negligent operation is – if not fully controllable – at least tolerable, given the price paid.

Read the whole thing here.  

Proliferation of Pre-JD Master’s Programs Casts Doubt on the Value of “JD Advantaged” Employment

Much in the news the last few days are reports of a growing number of law schools offering one-year full-time or two-year part-time pre-JD master’s degrees in law.  Apparently nearly 30 institutions offer or soon will offer a degree of this kind.  Coverage in the National Law Journal can be found here; Wall St. Journal (subscr. req’d) here; Above the Law here.  The degree is variously denominated a “Master in Legal Studies” (MLS), “Master of Studies in Law” (MSL), “Juris Master” (JM), “Master of Jurisprudence” (MJ) or “Master of Science in Legal Studies” (MS). 

So many acronyms.  Is this just another case of More Universities that Like to Collect Tuition (MULCT)?  Let’s look at the early evidence. 

The NLJ quotes the view of one senior faculty member at Indiana University at Indianapolis that “[t]his is about finding a different pool of potential students.”  While this is a refreshingly candid reflection on why the program might be good for law schools, particularly those with rapidly diminishing JD enrollments, it does raise certain questions about the degree’s utility for potential students.

On this question, the NLJ quotes Frank Wu, dean at UC Hastings, and in my own opinion one of the genuinely thoughtful, constructive and creative law-school administrators navigating these difficult times:

“Many lawyers work in human resources, but you don't have to have a J.D.  It’s the same thing with compliance officers in banks and hospitals. There are all these jobs in law — criminal justice jobs, law firm management jobs, consultants — where a J.D. makes no sense but some legal training is useful.”

Fair enough.  But wait a second.  Those familiar with the dreary tidings that the ABA and NALP employment outcome figures have borne in recent years know that these days law graduates’ reportable employment successes come in two principal categories—positions that require a law license; and “JD Advantage” positions that do not require a law license but for which the law degree provides “a demonstrable advantage in obtaining or performing the job.”  The ABA Section on Legal Education defines “JD Advantage” positions in part like this:

“A position in this category is one for which . . . the JD provided a demonstrable advantage in obtaining or performing the job, but itself does not require bar passage, an active law license, or involve practicing law.  Examples of positions for which a JD is an advantage include a corporate contracts administrator, alternative dispute resolution specialist, government regulatory analyst, FBI agent, and accountant.  Also included might be jobs in personnel or human resources, jobs with investment banks, jobs with consulting firms, jobs doing compliance work in business and industry, jobs in law firm professional development, and jobs in law school career services offices, admissions offices, or other law school administrative offices.  Doctors or nurses who plan to work in a litigation, insurance, or risk management setting, or as expert witnesses, would fall into this category, as would journalists and teachers (in a higher education setting) of law and law related topics.” 

These “JD Advantage” jobs  are counted (at least in part) as employment successes by US News in determining the employment component of its rankings, and are touted by various Panglosses (like this one) and Polyannas (e.g., the second comment to this post) in the legal academy as a consummation devoutly to be wished and an independently sufficient justification to seek a JD.  But the very positions offered to justify a one-year master’s “where a J.D. makes no sense”—“human resources,” “compliance officers,” ”criminal justice jobs,” “consultants”—are specifically enumerated examples of “JD Advantage” positions in the ABA definition.  Oops.

Of course, this doesn’t prove that there is no position not requiring a law license for which a JD provides advantages so irreplaceably substantial that it justifies three years’ time and tuition.  Undoubtedly some such positions exist.  But what it strongly suggests is that many of the jobs conventionally offered as examples of such positions really aren’t, and that overall there are vastly fewer genuinely JD-Advantaged positions than some law schools’ self-reporting or a sensible definition of the category might imply.  Put slightly differently, the broader the population for which a one-year master’s degree makes sense, the narrower the range of “JD Advantaged” positions for which pursuit of a JD provides any cost-justified advantage.  This also suggests that this novel marketing tactic may prove self-defeating, as the wider availability of one-year masters’ programs persuades larger numbers of potential JD seekers that there is a shorter, cheaper path to a range of law-related work.

Those of you who are kind enough to follow my posts on this site will recall my repeated insistence that What Matters Most right now is that there are substantially more seats in law schools than there are law jobs for graduates.  (E.g., here, here and here.)  How many of you seriously believe that the solution to this problem is to find more butts—that “[t]his is about finding a different pool of potential students”?

If you think that the solution to the legal academy’s excess supply is to develop “products” that can be “marketed” to a broader range of “consumers,” then the law-school scam brigade is right that you should be regarded, and treated, like a door-to-door encyclopedia salesman.  If, on the other hand, you view the master’s degree as an innovation designed to regulate the proportionality of the cost and extent of legal education to its utility in particular circumstances (and from his comments I would put Dean Wu in this camp), you may be on to the beginning of something interesting. 

--Bernie

Contract As Disclosure: My Review of Radin’s Boilerplate at ContractsProf Blog

Today, the first half of my review of Peggy Radin’s new book, Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law appears over at ContractsProf Blog.  A few days ago, I posted the above liability waiver as a preview for Lounge readers of my thoughts on the book (click on image to enlarge and zoom from there).  From today’s post at ContractsProf:

Peggy’s contention (to oversimplify, as is so frequently necessary in Blog World) is that we cannot infer from the widespread persistence of a particular boilerplate term that consumers have chosen it through their willingness to buy the product/service + boilerplate bundle at a given price.  Instead, we must treat it as a case of potential market failure.  So, what might lead to this market failure?  . . .

If you’ve taken almost any type of organized tour or active vacation and bothered to read the liability waiver that you were almost certainly asked to sign, then you’ve seen an agreement similar to the one I’ve included at right limiting the tour company’s liability for their negligence involving pretty much everything from a bad hotel room to your death from falling into an active volcano.  Such waivers are ubiquitous, varying only slightly in their particulars. 

And I have signed one every year for over a decade.  Why?  Well, the simple answer is that I have no choice, given that I want to participate in organized adventure travel and all tour companies have a similar waiver.  But that’s too easy.  The real question, as Peggy acknowledges, is why, if this is a term that consumers value, a competing adventure tour company has not arisen to offer a similar tour experience without the offending boilerplate language, potentially at higher cost? 

Read the whole thing here, and the second half will follow later today, as will responses from Peggy.  

Fan on Hu’s Biometric ID Cybersurveillance

 Mary Fan has a review over at Jotwell of Margaret Hu’s new article, Biometric ID Cybersurveillance, 88 Indiana L.J.__ (forthcoming 2013).  Mary Fan is an Associate Professor of Law at the University of Washington who specializes in cross-border, U.S. and international criminal law and procedure.  Margaret is a Duke Visiting Assistant Professor, who will be joining the Washington & Lee faculty in the fall (we’ll miss you, Margaret!).  Her research interests include the intersection of immigration policy, national security, and civil rights, as well as critical legal studies. Margaret previously served as senior policy advisor for the White House Initiative on Asian Americans and Pacific Islanders, and also served as special policy counsel in the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC), Civil Rights Division, U. S. Department of Justice, in Washington, D.C.  She also has fabulous shoes, though I suspect that’s less relevant to most Lounge readers than it is to me. 

From Fan’s review:

The dystopian world of “biometric ID cybersurveillance” that Margaret Hu envisions makes the old passports and smart agents seem old-fashioned.  She catalogues the many ways the government is working toward expanding its “virtual cybersurveillance and dataveillance capacities.”  She maps out emerging forms of “bureaucratized cybersurveillance” – more pervasive ways of technology-assisted identity verification and tracking.  For example, instead of those stodgy information-limited modes of ID checks such as reviewing paper passports, alien identity papers, social security cards and driver’s licenses, she writes of biometric ID checks, digitalized IDs and other more information-laden methods of identification. Automated checks, database screening and biometric IDs may even “remove[] the matching process from the trained expertise of specific forensic experts,” leaving us at the mercy of glitchy and hard-to-contest hardware and software.

Read the whole thing over at Jotwell. 

Tom Geu Named Dean Of South Dakota Law

Professor Thomas Geu of the University of South Dakota School of Law has been named the school's new dean.  Geu holds a JD from the University of Nebraska and joined the school's faculty in 1990.  

Justice

Karen Tani at the Legal History Blog has drawn attention to Allan Beever's new book, Forgotten Justice: The Forms of Justice in the History of Legal and Political Theory (OUP, 2013). The argument fron the publisher:

    Throughout much of the history of political philosophy, many of the great philosophers begin their work with an investigation of private law. Why is this? And why is the central focus of our modern concern, the state, examined so late in their works? This book suggests an answer to these and related questions. It reveals that there are two general ways of thinking about the legal and the political: the modern which sees all through the lens of the state, and the traditional which begins with individuals and with the normative relations that exist between them building only slowly towards the community and the state.

    In the modern view, private law is understood as a method for achieving certain social goals. As such, it can be overlooked by political philosophy. For the traditional view, on the other hand, private law is of central philosophical importance, because it is there that we observe a society's enunciation of its most fundamental political and legal values. Arguing that an understanding of the traditional view is essential to an understanding of private law and political life, this book highlights how the modern conception is seriously distorting in this regard.

    A story unfolds throughout the chapters: the story of the growth and decline of the traditional view in political and legal thought. It challenges the modern fixation with the state, arguing for a return to the traditional view of legal and political community.

Strictly speaking of the historical argument- that sounds rather pursuasvie to me. We have a very difficult time thinking about the relationship between political philosophy and public law (or "public philosophy") on the one hand and private law on the other. The most striking example of this difficulty that comes to mind, at least for me, is the concept of equity. We have strong, broad historical and theoretical treatments of the subject (think of Peter Hoffer's Law's Concience, David Lieberman's The Province of Legislation Determined (a personal favorite of mine), or the work of Drucilla Cornell, or along those lines Derrida's famous essay in Deconstruction and the Possibility of Justice. That being said, the relationship between the concept of equity and the jurisdiction of equity is understudied. Good places to look right now, I have found, are in law and literature- Daniela Carpi's own work and edited volumes, including The Concept of Equity and Practiging Equity, Addressing Law, and Bradin Cormack's A Power to do Justice, and in legal history- Ian Williams of University College, London on the practical creation of maxims in late medieval and early modern legal theory.

Chancery courts at all levels of various constitional orders were controversial in the early modern British Atlantic world precisely because they were local sites for configuring jurisdictional and judical power (think of the political situation behind the Zenger case, or Jefferson's pet project of instituting a High Court of Chancery in Virginia, to say nothing of his equity commonplace book). Chancery, in other words, was shot through with larger, open-ended questions at play in English, British, and British American constitutionalism about who judges and where (and for whom and for where) they get to do it. Contests over conciliar courts (from the Star Chamber on down) were fundamental fights about sovereignty itself. 

Now in terms of political theory, one of the many reasons I remain skeptical of the perpetually asserted importance of Carl Schmitt is that his notions of the state of excpetion and political theology would not have struck anyone in the early modern world thinking about equity as particularly insightful or original. It has long been understood that there is a point at which positive if not all of customary law breaks down, loses coherence, or becomes suspended, and a good deal of the history of legal and political thought has been concerned to identify just what that point is and when or where it should be or simply is reached, and what should happen when it is reached. Are we standing then in the presence of natural law, a transcendent justice, and how do human institutions, or human beings themselves, acknowledge that point and deliver that justice without becoming, or at least appearing to become, either the object or instrument of sheer force of sovereign will? These are questions broached by More and Hobbes among others in their days and in our own age of "governmentality" and the security state these questions are hardly irrelevant. But, so the argument might go, we ask and answer such questions not only in political philosophy or high constitutional (or unconstitutional) politics, but in our relationships with one another, in everyday practices and in private law. Bonnie Honig of the American Bar Foundation makes something of a similar point in her book, Emergency Politics: Paradox, Law, Democracy.

One could speak here of a need for ordinary legal philosophy. 

Anyway, I will discuss Jefferson's place in all this in another post before signing off. Beever's book sounds quite interesting, and it seems to be part of a trend to refocus legal scholarship on big questions that involve the long history of thought- it is worth noting that scholars are getting over our ingrained (and I would want to say in many cases still justified) concerns about metanarratives.

 

 

 

Two Tax Professors Laud Former IRS Chief's Work in Innocent Spouse Cases

Professor Carlton Smith (Cardozo) and Professor Keith Fogg (Villanova) published a letter to the editor in today's Tax Notes.  They write:

We were saddened to hear that acting Commissioner Steven Miller will no longer be at the IRS.  Regardless of whether he acted appropriately in the matter of exempt organization application reviews, we wanted to praise him for his fine work in the innocent spouse area and his willingness to reach out to the community of practitioners respresenting low income tax papers.  The public is likely unaware of that fine work.

Read the full letter at Tax Notes (available via Lexis; no free link available - sorry).

Last year, former acting Commissioner Miller met with directors of low income taxpayer clinics to receive their comments on a draft revenue procedure to guide IRS staff in determining equitable relief claims under the applicable innocent spouse statutes.  Professors Smith and Fogg said that, "We really felt that [Steven Miller] was an ally to the innocent spouse cause and that the cared about the individuals caught up in the circumstanstances that cry for relief."

Stephanie Lindquist Leaving Texas, Heading Georgia School of Public Affairs

University of Texas School of Law professor and associate dean (and former interim dean) Stephanie Lindquist is leaving Austin for Athens.  She has been named the new dean of the University of Georgia Schoolof Public and International Affairs.  Lindquist, who holds a JD from Temple and a Ph.D from the University of South Carolina, taught in both the law school and political science department at Vanderbilt before moving to UT in 2008.  She began her teaching career at UGA.  

Boilerplate Symposium Continues Next Week

As I mentioned in a post last week, ContractsProf Blog has been hosting an on-line symposium on Peggy Radin’s new book, Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law, which continues into next week.  If you haven’t yet read Boilerplate, I highly recommend it. The book is no less than you would expect from Peggy Radin, which is to say: bold, thoughtful, and almost certain to be influential. 

I’ll post something here, of course, once next week’s reviews (including my own) appear over at ContractsProf.  But for those wanting a preview, the images included in this post should give a taste (click the liability waiver to enlarge, and you may have to zoom to read all of the text.)  Those of you who know me, and are also familiar with Peggy’s work, will not be surprised to learn that we have very different views regarding the virtues of private ordering as compared to public solutions, particularly when it comes to substantive limitations on freedom of contract.  But, as is the case with her work on contested commodities, Peggy forces us to think hard about the potential shortcomings of private ordering in certain contexts. 

I remain largely unconvinced that substantive restrictions on freedom of contract are the best way to overcome those limitations, but Peggy has very thoughtfully shown the increasingly poor fit between many traditional contract law principles and modern day contracting practices.  The issues raised by Boilerplate likely will continue to generate discussion over the coming years.  In any event, read the book if you haven’t done so already, as well as this review by Omri Ben-Shahar, and stay tuned for further posts in the on-line symposium.  

 

(The author, in Patagonia, after signing the above liability waiver)

Looking For Uncle Leo: The Film

My great-uncle Leo was deported to his death in Poland from Würzburg, Germany, on April 25, 1942.  

It turns out that the Nazis commissioned a film of the deportation.  The movie vanished after the war.  I am desperate to find it (if it still exists).  Crowd-sourcing and social media present a new and exciting way to try to locate historical materials like this.

I've created this little video asking for help.  It's in German, but if you hit the "cc" button you'll see captions in English.  If you know anyone in Germany -- or know anyone who knows anyone in Germany -- would you send this along and ask them to pass it along via Facebook or Twitter or whatever crazy medium the German kids are using these days? 

Thank you for helping.

History Office History

 

 

            Fellow UCLA History PhD and current JD student at Yale Law School, Twitter enthusiast Josh Stein, has recently posted a note over at the Legal History Blog, and the piece definitely merits attention here. Josh welcomed me to the department at UCLA when I got started as a student of Ruth Bloch and later Michael Meranze, so he will always have my personal gratitude and professional admiration, and that is despite the fact that we would spend the next few years arguing from very different intellectual backgrounds and concerns.

 

            In his article, Historians Before the Bench: Friends of the Court, Foes of Originalism, Josh critiques a tendency of historians writing amicus briefs in recent US Supreme Court Cases to accept the originalist and conservative premise of the normative weight of the past. As an alternative to the understandable desire to offer historical critique in the face of what many historians take to be dangerously reactionary judicial philosophy and politics, Josh outlines three interrelated approaches legal historians might take: destabilization, fidelity (something very close to constitutional redemption as outlined by Jack Balkin), and what historian Peter Hoffer calls a “special master approach,” or narrowly focused expert testimony on specific historical questions as opposed to broad, ideological advocacy.

 

            Josh takes the historical profession to speak with one voice and to share a consensus that its special expertise, or “mastery,” is in the art of historicizing, or destabilizing the only-apparently authoritative narratives in which scholars of other disciplines and the public continue to constitute themselves as jurists, philosophers, theorists, or citizens. If this is true, I think it is unfortunate. It seems to me that if Josh is right that we are in an “opportune” moment to rethink how historians interact with the court, it is equally an opportune moment to think what it means to be doing history in the first place. This project, it seems to me, would fruitfully start by extending the historical awareness of context, complexity, and plurality to the conditions of our own intellectual practice. Historians take it for granted that destabilization is an unmitigated good and that the authority of the discipline rests on precisely their special mastery and license to render the past complex and therefore only understandable and relatable with the help of professional historians.

 

            This mode of practice has come under tough (and indeed, historical) criticism recently from Christopher Tomlins and Kunal Parker. Despite these criticisms, I continue to identify with (among other things) a contextualist approach to legal and political thought, and I take the work of Pocock on Gibbon and history, of Tully and Brett on empire, and of Geuss on politics and philosophy to be evidence of the continued efficacy of that kind of work. But the promises of contextualism, broadly defined, rest on the willingness of historians to extend such awareness to themselves, and to accept the fact that there are multiple roads to the past and a plurality of ways of responding to the presence of the past in the present. The failure to attend to the conditions of intellectual practice on the part of historians is ironic, perhaps, but it is also deeply problematic. Historical practice that is defined by its practitioners as the sole domain of constituted professional expertise is one that is by definition and with increasing intensity not even remotely civic.

 

            Against the bureaucratic faith in the special knowledge-production of the expert and their office, I want to rescue a Jeffersonian and radical common-law awareness of use and transformation. A substantively democratic constitutionalism would require a faith not in the ultimate redemption of the text of the US Constitution itself so much as an appreciation for the potentially redemptive work of people and peoples working on the material of their civic inheritance. To participate in history is to make transformative use of the stuff of historical representation, and from this perspective, the task of the historian might be less to destabilize authoritative narratives than to render their constituent components open to thought and action, to consideration and to use. I take this to be roughly in the spirit of S. Levinson’s work and to be looking for a protestant reformation in jurisprudence and history both- one particularly oriented around recovering the priesthood of all believers, or the responsibility for legal and political judgment of all citizens. This is also basically, even if softly, Marxist- it is to insist that we attend to the at once subjective and objective quality of the sensuous, material, and revolutionary domain of practice.

 

“Facts are but the Play-things of lawyers,- Tops and Hoops, forever a-spin… Alas, the Historian may indulge no such idle Rotating, History is not Chronology, for that is left to lawyers- nor is it Remembrance, for Remembrance belongs to the People. History can as little pretend to the Veracity of the one, as claim the Power of the other, - her Practitioners, to survive, must soon learn the arts of the quidnunc, spy, and Taproom Wit,- that there may ever continue more than one life-line back into a Past we risk, each Day, losing our forebears in forever,- not a Chain of single Links, for one broken Link could lose us All,- rather, a great disorderly Tangle of Lines, long and short, weak and strong, vanishing into a the Mnemonick Deep, with only their Destination in common.”

 

- Thomas Pynchon, Mason and Dixon, p. 349

 

 

 

 

 

 

 

Kudos to This American Life

A few weeks ago I blogged here about a recent episode of This American Life, "Dr. Gilmer and Mr. Hyde," about the quest of one Dr. Gilmer (Benjamin) to understand why another, beloved Dr. Gilmer (Vince), had brutally murdered his own father after hearing voices that compelled him to do so. The episode ends (spoiler alert) with the revelation that Vince suffers from Huntington's, a rare, neurodegenerative disease that causes progressive physicial, cognitive, and psychological deterioration.

Listeners, it seemed to me, could naturally conclude from the episode that it was Vince's Huntington's that had caused him to murder his father. That might or might not be true in this particular case. Huntington's can cause behavioral and mood changes, including irritability, aggression and belligerence. It can also cause (less often) psychosis. But even if Huntington's caused Vince to murder his father, or somehow contributed to the murder, the extreme violence that Vince displayed — strangling his father, then sawing off his father's fingertips to preclude identification — is in no way typical of the Huntington's population as a whole. And so what most troubled me about the episode was its failure to note just how rare this kind of extreme violence is among those with Huntington's, just as it is very rare among human beings generally. And so I wrote to TAL, requesting a clarification.

I'm happy to report that the TAL producer for the episode, Sarah Koenig — who had not intended to suggest any causal link between Vince's murder of his father and his Huntington's, much less between murder and Huntington's more generally — has issued a clarification on the show's blog, and promises to make a similar clarification in the episode itself, should they ever re-air it. Kudos to TAL, and many thanks to Sarah for being incredibly gracious in our exchanges.

One clarification deserves another. In my earlier blog post, I also worried that some listeners might  conclude that Vince's father was similarly driven to commit horrific acts of sexual abuse on Vince and his sister because he, too, was (presumably) suffering from Huntington's (an autosomal dominant genetic disease). Although I think that a listener who didn't know better could reasonably conclude that Huntington's causes people to become sexual predators almost as easily as they could conclude from the episode that Huntington's causes people to become murderers, nothing in the episode suggests that Sarah, Benjamin Gilmer, or anyone else at TAL believe that Huntington's causes sexual abuse, or that they intended for listeners to reach that conclusion. I regret anything in my earlier post that suggested otherwise.

Again, I'm very grateful to Sarah and everyone else at TAL for hearing me (and other listeners) out and for agreeing to make the clarification — and just in time for HD Awareness Month!

Cost of a Legal Education — Accreditation Overhead

    There has been a lot of discussion recently, both in the Lounge and other less important places ☺, about the costs of legal education. Obviously, both market forces and the pursuit of a higher U.S. News ranking contribute significantly to raising the cost of providing a legal education. Likewise, qualifying for either ABA or AALS accreditation have significant costs whether in the form of needing significantly investments in faculty size and type, in the operation of multiple clinics, in expecting more from each faculty member than just teaching, or in the other expenses directly associated with delivering a legal education of the type mandated by the ABA and AALS. To date, however, a smaller, but still significant cost imposed on law schools has not been considered — the cost of complying with the ABA’s demands for data about each law school’s program. In other words, the cost of establishing to the satisfaction of the ABA that the school satisfies the ABA’s Standards is expensive.

    This is a picture of the statistical data we have provided to the ABA for our initial application and our limited site visit:




In case you cannot see the ruler clearly, this is 9½ inches of data. To a certain extent, if you measure the quantity of data in the inches of paper necessary to report it, you know that it is massive.

    Effectively, to generate this data, one full-time, mid-level administrative employee-equivalent has been needed in each of the last two years (and will be needed for the foreseeable future). In fact, this probably underestimates the amount of time needed to generate the data as the rest of us, from the Dean on down, have had to spend weeks worth of time on the project. You have to look up from the Dean’s Office, too, to capture the efforts of the various university-level administrators who were involved. If you put all of this time together, this has been the functional equivalent of dropping our enrollment by three or four students each year. Please understand that this is not a cost to run an accredited institution, it is merely the cost of trying to establish that you are running one.

    To focus on just one statistic, consider the way the ABA measures the bar passage rate of each law school. The goal is to determine exactly how many students both took and past the bar. Consequently, each school has to spend a lot of time and effort to track down how each student did. Of course, this is not a local matter as students take bar examinations throughout the country. Some jurisdictions make obtaining this data an easy process, but many do not. The school must follow up with the other jurisdictions or, worse, with the individual students. Of course a failure to track sufficient students has draconian effects as it becomes impossible to establish compliance with the standards.

    It does not have to be this way. For those of us who do empirical research about the law, we commonly build statistical models for what we are studying. My current research effort, for example, involves patent quality. For the vast majority of patents, there is no direct measurement of quality. Consequently, I will be looking at a variety of other factors that I hope to establish can successfully predicts quality. Bar passage can be handled the same way.

    While it might be nice to have a precise measurement of every student’s performance on the bar examination, we may be able to do as well by just measuring the domestic bar exam. You would think that if a school’s students do well on its home-state’s bar, they would do well elsewhere, too. If, for example, law schools that have an acceptable overall bar passage rate (however the ABA wishes to define this) consistently show a passage rate of X or more on the domestic bar, why not dramatically lower the cost of accreditation compliance by only requiring X to be reported?

    To be fair, I do not know that there is such a relationship, but this is, at a minimum, an easily testable hypothesis. If confirmed, it could dramatically lower the cost of establishing compliance as could other similar statistical measurements.

Boilerplate Symposium at ContractsProf Blog

ContractsProf Blog is hosting an online symposium on Peggy Radin’s new book, Boilerplate: The Fine Print, Vanishing Rights and the Rule of Law over the next two weeks.  You can read Jeremy Telman’s introduction of the first five reviewers here. 

I had a chance to read and comment on a draft chapter when Peggy came out here for a workshop some time back.  I am also participating in the symposium and will post a link here when my post(s) appear.  In the meantime, though, you should head over to the ContractsProf Blog to see the posts so far.

Female Institute Trivia

I wish I had the resources to do more with womens colleges in University, Court, and Slave.  I talk some about proslavery thought at womens colleges (and academies) -- through a moral philosophy treatise written by the president of the Tuscaloosa Female Seminary, a proslavery tract written by the head of a female seminary in Greensboro, Alabama, and the short stories written by a teacher in several female seminaries.  University, Court, and Slave relies heavily upon literary and graduation addresses and I use a few given at female institutes, though they're often more on topics like the utility of beauty than on more immediately political topics.  It won't be in this book, but I hope to deal more down the road with ideas and also demography of southern female institutes.  

This is a long way around to saying that I have a trivia question related to a female institute from the pre-War era.  Where is it?  This is a wind-up to a real doozie of a trivia question (or maybe it'll be a series of questions).

Caleb Smith's The Oracle and The Curse

I recently had the pleasure of reading Yale English Professor Caleb Smith's The Oracle and the Curse: A Poetics of Justice from the Revolution to the Civil War.  It's about the conflict between oracles (judges) and cursers (people on the outside of "the system" -- like antislavery advocates, especially people like Nat Turner and John Brown).  Thus this is an interpretation of American literature as it relates to the clash of visions of law and justice in the years leading into Civil War.  Cribbing now from Harvard University Press' website:

Condemned to hang after his raid on Harper’s Ferry, John Brown prophesied that the crimes of a slave-holding land would be purged away only with blood. A study of omens, maledictions, and inspired invocations, The Oracle and the Curse examines how utterances such as Brown’s shaped American literature between the Revolution and the Civil War.

In nineteenth-century criminal trials, judges played the role of law’s living oracles, but offenders were also given an opportunity to address the public. When the accused began to turn the tables on their judges, they did so not through rational arguments but by calling down a divine retribution. Widely circulated in newspapers and pamphlets, these curses appeared to channel an otherworldly power, condemning an unjust legal system and summoning readers to the side of righteousness.

Exploring the modes of address that communicated the authority of law and the dictates of conscience in antebellum America’s court of public opinion, Caleb Smith offers a new poetics of justice which assesses the nonrational influence that these printed confessions, trial reports, and martyr narratives exerted on their first audiences. Smith shows how writers portrayed struggles for justice as clashes between human law and higher authority, giving voice to a moral protest that transformed American literature.

I have some more thoughts on The Oracle and the Curse in the spring 2013 issue of the Civil War Book Review.  I note that Caleb Smith’s The Oracle and The Law speaks to huge issues, such how pre-Civil War American law gained and maintained legitimacy? How authority shifted from legal and religious elites to popular sovereignty from Revolution through Civil War? And how our country reconciled the higher law arguments of abolitionists with the principles of law and constitutionalism that so widely supported property rights in enslaved humans? It speaks to timeless questions of obedience to law, even as the law is unjust. And our nation continues to struggle with them, as our citizens turn sometimes to the streets and occasionally even to violence, as they challenge everything from environmental development to our wars abroad.  The rest of my review is available here.

Final Call for Nominations for Cromwell Article Prize

The deadline (May 31) for the William Nelson Cromwell Foundation's prize for an outstanding article published by an early career scholar is rapidly approaching.  By way of background, the William Nelson Cromwell Foundation has generously funded a prize of $2,500 for an excellent article in American legal history published by an early career scholar in 2012.  Articles published in 2012 in the field of American legal history, broadly conceived, will be considered.  There is a preference for articles in the colonial and early National periods.  Articles published in the Law and History Review are eligible for the Surrency Prize and will not be considered for the Cromwell Article Prize.

The Cromwell Foundation makes the final award, in consultation with a subcommittee from the American Society for Legal History.  This subcommittee invites nominations for the article prize; authors are invited to nominate themselves or others may nominate works meeting the criteria that they have read and enjoyed. Please send a brief letter of nomination, no longer than a page, along with an electronic or hard copy of the article, by May 31, 2013, to the subcommittee's chair, Alfred Brophy, University of North Carolina School of Law, Campus Box #3380, Chapel Hill, NC 27599-3380 or via email at abrophy@email.unc.edu. Other members of the Articles Subcomittee of the Cromwell Prizes Advisory Committee are Mary Sarah Bilder of Boston College, Dean Daniel W. Hamilton of the UNLV, and Kristin A. Olbertson of Alma College.

Last year's prize, awarded at the annual meeting of the American Society for Legal History in St. Louis, went to David Engstom's “The Lost Origins of American Fair Employment Law: Regulatory Choice and the Making of Modern Civil Rights, 1943-1972,” which appeared in volume 63 of the Stanford Law Review in 2011.  Cribbing now from the Cromwell Foundation's citation:

During deliberations Committee members praised Engstrom’s deep look at the strategies employed by various civil rights groups to craft fair employment law, along with his intensive archival work across a wide range of sources, to tell a new story about how civil rights emerged not just from statutes and from judicial interpretation, but from the administrative state as well. Recent monographs have begun to open up the story of civil rights in the post-War period by showing that civil rights action activism emerged in many places, not just on southern streets in the wake of Brown v. Board of Education, and not just in education and in public accommodations.  Engstrom, an assistant professor at Stanford Law School, extends that analysis to the employment setting.  In telling this new story, he extensively mined the federal archives. This is an important and neglected story that stretches across decades as our nation moved from the Second World War through the Civil Rights movement and then its ending. It is also an extraordinary work of research, which invites us to see how administrative law functions and is central to our legal history.

Further information on this and other awards and fellowships in legal history is available at the American Society for Legal History's webpage.

Online Symposium on the Law, Ethics & Science of Re-identification Demonstrations

Over the course of the last fifteen or so years, the belief that “de-identification” of personally identifiable information preserves the anonymity of those individuals has been repeatedly called up short by scholars and journalists. It would be difficult to overstate the importance, for privacy law and policy, of the early work of “re-identification scholars,” as I’ll call them. In the mid-1990s, the Massachusetts Group Insurance Commission (GIC) released data on individual hospital visits by state employees in order to aid important research. As Massachusetts Governor Bill Weld assured employees, their data had been “anonymized,” with all obvious identifiers, such as name, address, and Social Security number, removed. But Latanya Sweeney, then an MIT graduate student, wasn’t buying it. When, in 1996, Weld collapsed at a local event and was admitted to the hospital, she set out to show that she could re-identify his GIC entry. For twenty dollars, she purchased the full roll of Cambridge voter-registration records, and by linking the two data sets, which individually were innocuous enough, she was able to re-identify his GIC entry. As privacy law scholar Paul Ohm put it, “In a theatrical flourish, Dr. Sweeney sent the Governor’s health records (which included diagnoses and prescriptions) to his office.”

Sweeney's demonstration led to important changes in privacy law, especially under HIPAA. But that demonstration was just the beginning. In 2006, the New York Times was able to re-identify one individual (and only one individual)  in a publicly available research dataset of the three-month AOL search history of over 600,000 users. The Times demonstration led to a class-action lawsuit (which settled out of court), an FTC complaint, and soul-searching in Congress. That same year, Netflix began a three-year contest, offering a $1 million prize to whomever could most improve the algorithm by which the company predicts how much a particular user will enjoy a particular movie. To enable the contest, Netflix made publicly available a dataset of the movie ratings of 500,000 of its customers, whose names it replaced with numerical identifiers. In a 2008 paper, Arvind Narayanan, then a graduate student at UT-Austin, along with his advisor, showed that by linking the “anonymized” Netflix prize dataset to the Internet Movie Database (IMDb), in which viewers review movies, often under their own names, many Netflix users could be re-identified, revealing information that was suggestive of their political preferences and other potentially sensitive information. (Remarkably, notwithstanding the re-identification demonstration, after awarding the prize in 2009 to a team from AT&T, in 2010, Netflix announced plans for a second contest, which it cancelled only after tussling with a class-action lawsuit (again, settled out of court) and the FTC.) Earlier this year, Yaniv Erlich and colleagues, using a novel technique involving surnames and the Y chromosome, re-identified five men who had participated in the 1000 Genomes Project — an international consortium to place, in an open online database, the sequenced genomes of (as it turns out, 2500) “unidentified” people — who had also participated in a study of Mormon families in Utah.

Most recently, Sweeney and colleagues re-identified participants in Harvard’s Personal Genome Project (PGP), who are warned of this risk, using the same technique she used to re-identify Weld in 1997. As a scholar of research ethics and regulation — and also a PGP participant — this latest demonstration piqued my interest. Although much has been said about the appropriate legal and policy responses to these demonstrations (my own thoughts are here), there has been very little discussion about the legal and ethical aspects of the demonstrations themselves. As a modest step in filling that gap, I’m pleased to announce an online symposium, to take place the week of May 20^th, that will address both the scientific and policy value of these demonstrations and the legal and ethical issues they raise. I’ll cross-post my own contribution here, but the full symposium will be hosted over at Bill of Health. Participants fill diverse stakeholder roles (data holder, data provider — i.e., research participant, re-identification researcher, privacy scholar, research ethicist) and will, I expect, have a range of perspectives on these questions:

Misha Angrist

Madeleine Ball

Daniel Barth-Jones

Yaniv Erlich

Beau Gunderson

Stephen Wilson

Michelle Meyer

Arvind Narayanan

Paul Ohm

Latanya Sweeney

Jennifer Wagner

I hope readers will join us on May 20.

Richard Coulson (1942-2013)

I want to pass along the sad news that one of my mentors, Richard Coulson, passed away last week.  Richard, whose scholarship was centered around international law and legal history, was an emeritus faculty member at Oklahoma City University, where he had taught for decades.  Richard was a beloved figure among the students and faculty and taught me a great deal about law and teaching when I was on the OCU faculty in the 1990s.  

We also had a lot of fun together.  I remember in particular a trip we took back in 1996 to the American Society for Legal History, when it was meeting in Richmond.   We flew into the Baltimore airport (mostly we could get really cheap flights because of Southwest).  But we thought I'd make a virtue out of this, so we stopped in Fredericksburg and I think did a little driving around the Richmond battlefields.  Fun times for two people who were deeply interested in history and its relation to law and how history is presented to the public.

I have a lot more I want to say about Richard's role building the OCU law school and as an educator and colleague, but I wanted to pass this news along now.  And on a personal note, I know Richard was very, very proud of his son Doug's work on law, history, and rhetoric, which includes a terrific article in the Yale Journal of Law and Humanities in 2010, "Distorted Records in "Benito Cereno" and the Slave Rebellion Tradition."  Doug is starting this fall as an assistant professor at Carnegie Mellon Univeristy, which I know Richard was delighted about.   Here is Richard's obituary from the Edmund Sun.

ATL Law School Rankings, Criticism & Methodology

As most people know by now, Above the Law created its own Top 50 rankings here.  It engaged in self-reflection here and here.  And now its methodologist-in-chief has been interviewed at Prawfs.  Next thing you know, Bob Morse will be all over the Sunday morning shows.

John Trasviña Named Dean Of USF Law

The University of San Francisco School of Law named John Trasviña its new dean last week.   Trasviña, who holds a JD from Stanford, is currently the Assistant Secretary for Fair Housing and Opportunity in the U.S. Department of Housing and Urban Development.  He was previously President and General Counsel of MALDEF.