Professor Sarah Deer, of William Mitchell College of Law, has been named one of this year's MacArthur Fellows. Deer, a graduate of Kansas Law, is active as both a scholar and advocate in fighting domestic violence among Native American women. Other MacArthure Genius Award winners are here. Congratulations!
It seems curious today, but Christopher Columbus Langdell viewed his method of teaching law as intensely practical. He had, after all, practiced for what today seems a long time, fifteen years, and while he did not for an instant believe that practice experience was essential to or even helpful for law teaching, his own practice experience did inform his view of what lawyers needed. The method he put in place at Harvard – the structured multi-year curriculum, the case method, Socratic questioning, examinations based on hypotheticals rather than reciting back doctrine – was designed to prepare law students for practice better than the lecture and recitation method that had preceded it.
The method took for granted that the core to being a successful lawyer was mastering an esoteric body of knowledge. As Langdell put it in his casebook on Contracts:
[Law] considered as a science, consists of certain principles or doctrines. To have such a mastery of these as to be able to apply them with constant facility and certainty to the ever-tangled skein of human affairs, is what constitutes a true lawyer; and hence to acquire that mastery should be the business of every earnest student of law.
That Langdell saw mastering a common body of knowledge and knowing how to apply it as the core of professional practice should not seem exceptional. Sociologists routinely define professions as involving the application of a common body of specialized knowledge.
What's more, the goal of learning all the important law was an achievable task for students. As late at 1897 Holmes declared mastering the “finite body of dogma” a task that could be achieved within a “reasonable time.”
Learning doctrine, of course, was not the only selling point for Langdell's method. The case method, by forcing students to experience the formation of rules directly and develop their own ways to categorize and organize doctrine, was also seen as getting students closer to what lawyers did. Armed with the law they needed and facile at applying it, graduates were equipped for practice, a generalized practice that still bore more similarities lawyer to lawyer and office to office than not.
As time went on, the importance of the common body of knowledge faded from defenses of the case method and the importance of knowing how to think about legal issues gained prominence – by 1907, Langdell’s acolyte James Barr Ames was justifying Harvard’s approach on the grounds of teaching “legal reasoning.” That justification – that law schools teach students to ‘think like a lawyer’ – has stayed with us to the present day.
As my last post considered, law practice has changed fundamentally since Langdell reformed law teaching. Today law practice is highly specialized, and rather than roaming across the field of the common law modern lawyers tend to their own narrow patch of expertise. Today, no one can master all the ‘dogma’ that is routinely applied by lawyers in the major law firms or major government agencies. There is just too much. Whatever marks the commonality of the practice of law – and should therefore play into the training of lawyers – it’s not applying the same technical legal expertise on a day to day basis.
Neither does the background knowledge or skill reflected in ‘thinking like a lawyer’ provide a sufficient answer to training lawyers. As practice has evolved, legal reasoning remains important – much as putting is important to golf – but it’s far from the whole game.
One of the last pieces of the puzzle that I'm working on for University, Court, and Slave -- I hope, actually, the very last piece -- is adding something on the literary magazines published by students at southern universities, largely in the 1850s. Just as I think we can -- and should -- use student literary debates as a gauge of attitudes, we can use the literary magazines to gauge students' ideas. We hear a lot about individualism, about economic progress, and about the lessons of history. And of course there's a lot about Union, slavery, and southern nationalism. There are a surprising number of articles about the problems with the legal profession -- and I want to talk about that sometime soon. These are in some ways the intellectual ancestors of the scam bloggers. I'll put that together in a post soon, along with a reference or two to the problems with making a living as a lawyer from University of Virginia professor George Tucker's novel, The Valley of the Shenandoah. (I had earlier identified Tucker as a law professor at UVA -- and Kent Olson of UVA Law School kindly pointed out that while Tucker was a lawyer and a professor at UVa, he taught moral philosophy rather than law.)
There is also some original work of fiction -- some of it is poetry; some are short stories. And even in that fiction I think we see some insight into the students' ideas of morality and sometimes law. Let me turn now to a completely obscure little gothic story about a native American, a Cherokee chief, whose family was wiped out by European settlers. He then lived on the margins of European settlement -- near a swamp -- and killed local settlers whenever he had the chance. Some years later, hunters found the chief's skeleton. Nearby were scalps hanging from a tree. Yet, though the chief was long dead the place maintained some mystic power and even generations later people passing by the scalp tree found it a disturbing and scary place. The story, which appeared in the Virginia University Magazine in 1857 is called "The Scalp Tree."
So far as I can tell, no one has ever written about "The Scalp Tree." Maybe that tells us something about its quality as literature -- or more likely how obscure student literary magazines were. But I think there's something significant about the author's acknowledgement of the injustice of how natives were treated and maybe also how that continued to haunt -- quite literally -- the descendants of those who perpetrated that injustice for generations afterwards. The unjust treatment of natives, even if not the inter-generational haunting, appears periodically in legal literature, from Chief Justice Marshall's opinion in Johnson v. McIntosh to the obscure novel by Nat Turner's lawyer James French, Elkswatawa.
The illustration is the prospectus for Hampden-Sydney's magazine (spelled somewhat differently back then).
One of the greatest trial lawyers of the Nineteenth Century was Daniel W. Voorhees, who first rose to prominence when he defended one of John Brown’s raiders. Although he was from Indiana, Voorhees was an ardently pro-slavery Democrat, and he attempted to save his client from the gallows by claiming that the Harper’s Ferry insurrection had actually strengthened the institution of slavery.
From our friends to the north: The University of Calgary is looking to make faculty appointments. Calgary is in a period of institutional growth. Nine new faculty appointments have been made in the past three years, and the school wants to make more this coming year. Calgary is a dynamic city with a strong economy, that has been rated by The Economist as one of the top five cities in the world in which to live. For more information, visit this link.
Next Friday and Saturday Savannah Law School will host a symposium on progressive property that celebrates the opening of their new building -- the renovated Candler Hospital, which dates back to 1819. They're calling it "Re-Integrating Spaces." Professor Marc Roark and the editors of the Savannah Law Review have put together a great symposium. The panel topics are:
Place, Space, and Meaning Within the Law Examining the role of physical space in shaping the societal sense of the meaning that property holds and the laws that govern property.
Historical Perspectives in Modern Context Discussing how historical perspectives and preservation law influence the use and meaning of property in a modern context.
The Impact of Property Rights on Civil Rights Exploring the influence of physical space on the experience of race, class, gender, and sexuality groups.
Property Transformation and Repurposing Exploring the changing and competing uses of physical space and how these uses impact societal development and influence the law.
Next Friday, September 19, the Michigan Journal of Race and Law will host a symposium celebrating the journal's twenty years. Cribbing from the announcement:
We will look back at the Journal and its leadership in the field. We will also launch the Journal’s next twenty years, highlighting new directions in scholarship at the intersection of race and law. Program participants include Michigan Law alums Todd Aagaard, ’97, Jasmine Abdel-Khalik, ’00, Jeannine Bell, ’99, Guy-Uriel Charles, ’96, Gabriel “Jack” Chin, ’88, Meera Deo, ’00, Matthew Fletcher, ’97, Luis Fuentes-Rower, ’97, Elizabeth Hinson, ’11, Emily Houh, ’96, Travis Richardson, ’96, Tom Romero II, ’04, Hardy Vieux, ’97, Adam Wolf, ’01, and keynote speaker Dr. Mary Frances Berry, ’70.
Since its founding, the Journal has been a platform for the exploration of issues relating to race, law, and civil rights. It is recognized for publishing cutting edge scholarship that is innovative and probing, including critical race theory, law and economics, immigration, education, criminal justice, and beyond. The Journal takes pride in the many perspectives it embraces, publishing the views of scholars, students, practitioners, and social scientists. Today, the Journal is nationally recognized as a leading journal in the field of civil rights.
Bumping to front to remind interested readers of 9/15/14 deadline.
The U.S. Feminist Judgments Project seeks contributors of revised opinions and commentary for an edited collection entitled Feminist Judgments: Rewritten Opinions of the United States Supreme Court. This edited volume is a collaborative project among feminist law professors and others to rewrite, from a feminist perspective, key Supreme Court decisions relevant to gender issues. Editors Kathy Stanchi, Linda Berger and Bridget Crawford seek prospective authors for 20 to 25 rewritten Supreme Court opinions covering a range of topics including reproductive rights, equal protection, the state’s use of criminal power, privacy, the family, women’s political participation, Title IX, employment discrimination and substantive due process. The editors also seek authors for commentaries of 1,500 to 2,500 words to put into context each of the rewritten cases.
The U.S. Feminist Judgments project was inspired by the successful collection and publication in Britain of Feminist Judgments:From Theory to Practice, edited by Rosemary Hunter, Clare McGlynn, and Erika Rackley. This volume, which included feminist versions of twenty-three key British decisions from the Court of Appeal and House of Lords, was published in 2010 and has been very well received. Like the sister project in Britain, the U.S. Feminist Judgments Project endeavors to pioneer “a new form of critical socio-legal scholarship” that illustrates how cases could have been decided differently had a feminist method been employed. We believe that U.S. Supreme Court law is ripe for this kind of scholarly treatment.
Those who are interested in rewriting an opinion or providing the commentary on one of the rewritten opinions should fill out an application here.
Applications are due by September 15, 2014 at 5:00 p.m. eastern. Editors will notify accepted authors and commentators by October 7, 2014. First drafts of rewritten opinions will be due on February 1, 2015. First drafts of comments on the rewritten opinions will be due on March 15, 2015. The editors are in the process of identifying a publisher; publication of the final volume is anticipated for late 2015.
A list of cases tentatively scheduled for rewriting is available here.
The trustees of the University of Illinois have voted 8-1 against providing Steven Salaita a tenured appointment in the department of American Indian Studies. As I have written before (here and here), I think that was a bad decision – bad for the university, and bad for academic freedom – although not necessarily a breach of contract or a violation of his constitutional rights. In this post, I am going to focus on some of the responses to the decision, which have been, shall we say, infected by stereotypes.
An eminent member of the bar, carrying all the intellectual prestige of one who has led a venerated Ivy League institution, trained in the time when lawyer-statesmen walked the earth like giants, stood before his audience. Change was afoot, and a valued tradition was about to be lost. This is what he said:
Lawyers . . . have become experts in some special technical field. They do not practise law. They do not handle the general, miscellaneous interests of society. They are not general counsellors of right and obligation. . . . Lawyers are specialists, like all other men around them. . . . [This] necessarily separates them from the dwindling body of general practitioners who used to be our statesmen.
The time: 1910. The speaker: Woodrow Wilson.
In this, as in so many things, Wilson may have been ahead of his time.
Narrative Inquiry in Bioethics will publish an issue focused on stories from people who were born with atypical sex anatomies (what may be identified as differences of sex development) who are interested in reflecting on the effects of the care they have received since childhood (in the case of conditions diagnosed in infancy) or puberty (in cases diagnosed in young adults).
In writing your story, you may want to consider including:
A description of your experience of the medical care you received (including discussions you can recall with providers).
Memories of discussions of your care or diagnosis with parents or other family members.
Aspects of your care/treatment that you believe to have been harmful.
Aspects of your care/treatment that you believe to have been helpful.
How your perspective on care/treatment has, if at all, changed throughout your life.
You do not need to address each of these questions—write on the issues that you think are most important to share with others. Tell your story in your own words and our editorial staff will help you with the technical aspects of writing
If you are interested in submitting a story, we ask you first to submit a 300-word proposal—a short description of the story you want to tell. Inquiries or proposals should be sent to the editorial office via email:email@example.com. We will give preference to story proposals received by Nov 1st of 2014.
We plan to publish 12 stories (4 – 10 double-spaced pages or 800 – 2000 words) on this topic. Some additional stories may be published as online-only supplemental material. We also publish 2 – 4 commentary articles that discuss the stories that are published in the journal. To see a finished symposium you may access Narrative Inquiry in Bioethics, volume 2, issue 1, on living organ donation for free on Project MUSE.
The first day addresses how crisis events shape regulatory change and how regulatory institutions can learn from crises. This is the theme of a research project we are leading at Duke University on “Recalibrating Risk: Crises, Perceptions and Regulatory Change” (book forthcoming in 2015).
The second day addresses how regulatory systems can be designed to learn and improve over time, both exhibiting adaptive policy innovation and stimulating technological innovation.
Case studies to be highlighted during the conference include the regulation of oil spills, nuclear accidents, financial crashes, pharmaceuticals, and chemicals; the use of behavioral insights and non-government networks in regulation; and more.
Speakers will come from numerous countries, disciplines, and organizations.
Islamic family law underwent major reforms during the twentieth century. These changes were inseparably tied to the processes of nation and state building and led, in some cases, to the codification of family law during the 1950s when states acquired independence. The decades following these initial post-independence developments were characterised by an absence of reform. Since the 1990s, debates over family law have increased and countries undertook legal change during the 2000s in particular: Algeria (2005), Egypt (2000), Jordan (2001, 2010), Morocco (1993, 2004), and Syria (2003). Others codified their family laws for the first time: the United Arab Emirates (2005), Qatar (2006), and Bahrain (2009).
The recent reform efforts highlight the need to study how change actually occurs. What kinds of arguments do actors employ, which have been most successful, and how have those arguments changed over time? How far can reform go if an advocate feels constrained to rely on Islamic arguments? What is the range of such Islamic arguments, and can one be constructed in support of any proposed change? Related, who initiates change-advocates for women, religious leaders, presidents, monarchs-and how does that affect the type of change and the outcome?
The workshop aims to bring together academics and legal practitioners who study and work in Muslim societies and in the Middle East/North Africa in particular. By naming and defining strategies of change, we hope to facilitate discussion and research in this area among academics and those engaged in reform projects.
Submission of Proposal
Interested participants should send a short paper proposal (approximately 500 words) by October 1, 2014 to firstname.lastname@example.org. Participants will be selected and contacted by October 15, 2014.
Papers should engage with the question of the mechanisms of change in family law, whether in one particular country or in a comparative context. English is the preferred language for papers, but if you intend to submit yours in French or Arabic please indicate this in the proposal. Papers should be no longer than 10,000 words, and their distribution will be limited to workshop participants.
Submission of Papers
The final deadline for the submission of papers is December 15, 2014.
The Islamic Legal Studies Program at Harvard Law School will cover the travel costs and local accommodations of participants. The language of the workshop will be English with simultaneous translation for French speakers.
CAMPBELL UNIVERSITY SCHOOL OF LAW invites applications for a full-time, tenure-track faculty position in the area of commercial law to commence in the Fall Semester 2015. The successful applicant for this position will be expected to teach either or both of our required upper-level UCC courses (Sales and Leases, and Secured Transactions) each semester. Candidates who can, in addition to these courses, teach Payment Systems, Bankruptcy, Consumer Law, or Financial Regulation are especially encouraged to apply. Candidates should have excellent academic credentials and a proven record of (or demonstrated potential for) outstanding classroom teaching and scholarship. Both lateral and entry level candidates will be considered.
The law school is located in downtown Raleigh, North Carolina, a location that provides its approximately 450 students with a wealth of opportunities that enrich their educational experience. Raleigh and the Research Triangle are repeatedly cited in national surveys as one of the best areas for starting a new career or business, for excellence in education (from public schools to post-graduate studies), and for enjoyable quality of life.
Consistent with Campbell University’s overall mission (available at http://www.campbell.edu/mission/), the law school is a highly demanding, purposely small, intensely personal community of faculty and students whose aim, guided by transcendent values, is to develop lawyers who possess moral conviction, social compassion and professional competence, who view the practice of law as a calling to serve others, and to create a more just society. To that end, the law school has adopted the following distinctives: (1) we offer an academic program that is highly demanding; (2) we bring together the theoretical and practical to produce thoughtful and talented lawyers; (3) we utilize the talents of a faculty that is profoundly committed to students and teaching; (4) we view the practice of law as a calling to serve others; and (5) we offer a Christian perspective on law and justice. More information about the law school can be found on our website: http://www.law.campbell.edu/.
Interested candidates should apply online here. Applications should include: (1) a cover letter expressing interest in and qualifications for fulfilling the position, contributing to the University’s mission, and furthering the law school’s distinctives; (2) an unofficial law school transcript; (3) a current curriculum vitae; (4) if available, course evaluations for any prior teaching engagements; and (5) a representative example of scholarship and/or a research agenda.
Today is Teacher's Day in China. That meant I got flowers and a card signed by the students in my Civ Pro class, plus emails from students past and present thanking me for being their teacher. To put it mildly, this is not behavior I engaged in when a student, and it always surprises and delights me. I hope your Teacher's Day goes as well.
Imagine that once there was a famous golf school, the dean of which believed that everything that needed to be known about golf could be learned on the putting green. Being the head of a famous school, the dean was able to put into place a theory of instruction based on just that theory. Students arrived, were handed a putter, and were told that they were learning to think like a golfer.
To be fair, when the dean launched his method golf schools were in a bad state. The primary method of instruction before he introduced the putting method was lectures, where old golfers would stand before a classroom in their knickers (American meaning), holding their mashies and niblicks, and expounding on the science of golf. By comparison, the putting method was positively experiential.
Folks -- the deadline for submissions to the AALS Program of the Business Associations Section is September 12. Please submit your papers and/or abstracts this week!
CFP: AALS Program of the Business Associations Section
AALS Program of the Business Associations Section
The Future of the Corporate Board
AALS Annual Meeting, January 4, 2015
The AALS Section on Business Associations is pleased to announce that it is sponsoring a Call for Papers for its program on Sunday, January 4th at the AALS 2015 Annual Meeting in Washington, DC.
The topic of the program and call for papers is “The Future of the Corporate Board.”
How will boards adapt to recent changes and challenges in the business, legal, and social environment in which corporations operate? The recent global financial crisis and the continuing need for many corporations to compete internationally mean that today’s boards face economic pressures that their predecessors did not. This pressure is heightened by the rise of activist investors, many of whom aggressively push for changes to corporate management and governance. On the legal front, new regulations, such as Dodd-Frank, impose heightened compliance and other burdens on many companies and boards. And on the social front, pressures for socially responsible corporate behavior and greater racial and gender diversity on boards continues. Our program seeks to examine the ways in which boards have, and will in the future, respond to these challenges.
Form and length of submission
Eligible law faculty are invited to submit manuscripts or abstracts that address any of the foregoing topics. Abstracts should be comprehensive enough to allow the review committee to meaningfully evaluate the aims and likely content of papers they propose. Papers may be accepted for publication but must not be published prior to the Annual Meeting. Untenured faculty members are particularly encouraged to submit manuscripts or abstracts.
The initial review of the papers will be blind. Accordingly the author should submit a cover letter with the paper. However, the paper itself, including the title page and footnotes must not contain any references identifying the author or the author’s school. The submitting author is responsible for taking any steps necessary to redact self-identifying text or footnotes.
Deadline and submission method
To be considered, papers must be submitted electronically to Kim Krawiec at email@example.com. The deadline for submission is SEPTEMBER 12, 2014.
Papers will be selected after review by members of the section’s Executive Committee. The authors of the selected papers will be notified by September 28, 2014.
The Call for Paper participants will be responsible for paying their annual meeting registration fee and travel expenses.
Full-time faculty members of AALS member law schools are eligible to submit papers. The following are ineligible to submit: foreign, visiting (without a full-time position at an AALS member law school) and adjunct faculty members, graduate students, fellows, non-law school faculty, and faculty at fee-paid non-member schools. Papers co-authored with a person ineligible to submit on their own may be submitted by the eligible co-author.
Please forward this Call for Papers to any eligible faculty who might be interested.
Each year I spend the first few minutes of my Civ Pro class, as I expect so many other profs must do, showing my students the death cage match from Mad Max Beyond Thunderdome. The battle between the “man with no name” and the baby-faced giant, all to decide who really owns a vehicle, sets up a lively discussion about procedural justice and modes of dispute resolution.
The second day I turn away from no-holds-barred adversarial battles and towards topics that are less traditional for Civ Pro classes. For reasons that at first clearly perplex my students, we take our second day in Civ Pro to discuss a book called The Geography of Thought, written by a psychology professor named Richard Nisbett. The book collects the results of decades of research by Nisbett and others, in which experiments are run on the cognitive styles of different cultures. In particular, he contrasts the cognitive style of east Asians – such as my students – with the cognitive styles of Europeans and Americans, such as myself.
The first interesting thing about Nisbett’s results is that cognitive differences are notable in very early childhood. They are in no way genetic – Chinese Americans, for example, test as Americans after a generation or two – but they are sufficiently deeply rooted in cultures that they show up before philosophies or dogmas can be taught with any sophistication.
Thanks to Dan and the rest of the Faculty Lounge team for inviting me to be a guest blogger. The Lounge and its counterparts have been important in making feel connected to the American academy since a late life turn to teaching, and it’s exciting to be able to be part of it.
I’m writing this from Shenzhen, China (the 15 million person city right next to Hong Kong that didn’t exist 35 years ago), where I teach Civ Pro, Professional Responsibility and Cross Cultural Negotiations at the Peking University School of Transnational Law (we’re hiring, btw). Prior to that, I had been a big firm equity partner before spending the better part of a decade running a venture funded internet start-up through the ups, downs and recovery of the internet economy. My scholarship lately has tended toward the legal profession and training for the legal profession. I’m particularly interested in how innovation is driving changes in the legal services industry and will inevitably drive changes in education for legal services. My blogging will tend to look at those topics, but with side trips every now and then related to the experience of teaching American law to Chinese students in mainland China.
I look forward to learning from your comments, and hopefully to getting to know some of you a bit better.
The following chart shows the seasonally-adjusted Bureau of Labor Statistics numbers for legal jobs for the 2004-2014 time period:
I generated the chart by going to this page, then clicking "Legal Services" in the seasonally adjusted column, then clicking "retrieve data" at the bottom, then clicking "include graphs", then clicking the "go" button. The reduction in the number of jobs between 2008 and 2010 is striking. The impact of the recession seems clear, and the modest growth since is modestly encouraging for the future.
[Update: Here is the 1990-2014 graph, which provides some additional context:
Below the fold, I've posted similar charts for some other industries. Most show a similar pattern. The biggest exception is health care, which does not seem to have been impacted by the recession.
Mizzou law professor Stacie Strong, herself a former U.S. Supreme Court Fellow (2012-13), passes along this information:
The U.S. Supreme Court Fellows program is now accepting applications for the 2015-2016 term. The fellowship, which is open to both junior and mid-career candidates, might be of interest to both current and aspiring academics as well as graduating and recently graduated law students. Four fellowships are awarded each year, and each fellowship is unique in its scope and focus. Interested persons can read more about the program at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2378584. The application process is described at http://www.supremecourt.gov/fellows/default.aspx. Applications are due by November 14, 2014.
We're very pleased to welcome Professor Ray Campbell to the Lounge. Ray is an associate professor at Peking University School of Transnational Law in Shenzhen, China. (You may Peking U. sought ABA accreditation back when Jeffrey Lehman was its dean. Thus far, the ABA has been unwilling to bite.) He received his JD from Virginia and clerked for Chief Justice Warren Burger. He was also a partner at Kirkland & Ellis and Jenner & Block and CEO of HarmonyCentral.com, before moving to the academy. He has published several pieces focusing on innovation and disruption in both law schools and the legal services industry and we're looking forward to his insights!