My understanding is that my keys to the blog will turn into a pumpkin at midnight tonight, so before my formal period of guest-blogging comes to an end I want to say thanks to Dan and Al and all the other Faculty Lounge bloggers for having me take part this July. I also want to thank everyone who commented on my posts, and those who read them as well. I found it to be a more enjoyable experience than I thought I would, and useful, too. I hope I'll have a chance to cross paths with more of you in real life soon enough, bloggers, commenters, and readers alike.
This week's question is submitted by Elon law prof, and friend of the Lounge, Eric Fink.
One of the outstanding players of the late 19th century, this
Hall-of-Famer pitched the second recorded perfect game in history, a
feat not repeated by a National League pitcher for another 84 years. After injuring his arm, he switched positions to shortstop. While
playing for the New York Giants, he attended and graduated from law
school at Columbia. A staunch opponent of the reserve clause and player
classification system, he was instrumental in forming the Brotherhood of
Professional Base Ball Players, the first labor union for athletes, and
the Players League, a short-lived rival to the National League. After
retiring from baseball, he continued to represent players' interests as a
successful New York attorney.
Can you identify this person?
Pictured: Pud Galvin baseball card (source here). Galvin, a member of the HOF, and baseball's first 300-game winner, was the losing pitcher in the perfect game thrown by the answer to today's trivia question.
John Austin has long been a whipping boy in
jurisprudence.This has been so at least
since Hart’s criticism of Austin in The
Concept of Law.My strong impression
is that very few people today actually read Austin’s best known work, The Providence of Jurisprudence Determined,
at least beyond short excerpts.And,
this is at least partially understandable, even beyond Hart’s criticisms.That book was the basis for a famously
unsuccessful and unpopular series of lectures and is not easy reading.Furthermore, it is grounded in part in a view
that today has few, if any, proponents, theological utilitarianism, a view
that, even more than that all men seek pleasure, it seems, only a Englishman of
a certain time and class could believe.(*) The
writing style also leaves something to be desired, even when compared to other
works of its time.But, I have come to
think that there is more to Austin than people have thought, and that he’s
worth taking more seriously than he has been in recent years.I won’t here even try to sketch an argument
for this in any serious sense, but will simply point to a few areas where I
think it’s worth thinking about Austin more seriously, and reading him more
carefully, than has been done much recently.
I have a warm place in my heart for Birmingham Southern College: it's a notable feeder to the University of Alabama School of Law and several of its grads were particularly impressive students of mine at Bama. For those of you who've never heard of it - and I trust that includes most readers - BSC is a small liberal arts school located in the urban core of Alabama's largest city. And now it's a school in crisis. Over the past couple of weeks, the College was forced to lay off 29 faculty members and 51 staffers. Why? Amazingly enough, the school discovered that for years it had been adding Pell Grants to student financial aid packages, rather than subtracting them. This whopper put them millions in the hole. That's just sad.
And here's an irony: just this week the Chronicle of Higher Ed named BSC as one of the very best academic employers in America.
Warning: This post references the UCC. Viewer discretion is advised.
Law profs who are teaching sales, sadistic transactions, or bankruptcy this Fall may wish to add to their materials the recent case of In re Erving Industries, Inc., in which a bankruptcy judge confronted the issue of whether electricity is a "good." The answer is important for a variety of reasons under commercial law. Might Article 2 apply (contract for services? or contract for sale of goods?)? Can the seller claim a PMSI in electricity under Article 9 (generally limited t0 goods)? Could a lender perfect its security interest in electricity by possession (perhaps if a good, but not an intangible)? Might the creditor seek a "priority claim" for electricity sold to a bankrupt debtor within days preceding the petition (chances increase if a good)?
I won't spoil the fun by disclosing the court's ILLUMINATING analysis and conclusion. PLUG INTO IT for yourself. Perhaps you'll be SHOCKED!
Suffice it to say that issues like this make the world of commercial law so much more riveting, entertaining, and rewarding than most, if not all, of the other subjects taught in our law schools today. Yes, indeed. You won't see any commercial law professors (the few, the proud, the anointed ones) rushing out to buy a happiness book. We've already got a copy on our desks. It's called the UCC.
It just so happens that I'm sitting here in my office listening to "Oh Happy Day" on the Smithsonian's wonderful House of Prayer CD. (The CD goes great with a discussion of Morison v. Rawlinson, a case that enjoined a House of Prayer Church in Columbia, South Carolina. Makin's of some good discussion in property class, for sure!)
So ... the song goes well with the announcement that I've just seen that Nancy Levit and Douglas Linder's new book, The Happy Lawyer: Making a Good Life in the Law, is now out from Oxford University Press.
Of course, any day your work is compared to that of the Dalai Lama ought to be a good day! Robert Klonoff, Dean of Lewis & Clark Law School says this about The Happy Lawyer:
This superb work in an invaluable guide for a profession that, sadly, suffers
from chronic unhappiness and lack of fulfillment. Like Harold Kushner's Living a Life that Matters and the Dalai Lama's The Art of Happiness: A Handbook for Living, this work offers clear, practical advice that can truly transform a person's life and career.
The Happy Lawyer examines the causes of dissatisfaction among lawyers, and then charts possible paths to happier and more fulfilling careers in law. Eschewing a one-size-fits-all approach, it shows how maximizing our chances for achieving happiness depends on understanding our own personality types, values, strengths, and interests.
Covering everything from brain chemistry and the science of happiness to the workings of the modern law firm, Nancy Levit and Doug Linder provide invaluable insights for both aspiring and working lawyers. For law students, they offer surprising suggestions for selecting a law school that maximizes your long-term happiness prospects. For those about to embark on a legal career, they tell you what happiness research says about which potential jobs hold the most promise. For working lawyers, they offer a handy toolbox--a set of easily understandable steps--that can boost career happiness. Finally, for firm managers, they offer a range of approaches for remaking a firm into a more satisfying workplace.
Read this book and you will know whether you are more likely to be a happy lawyer at age 30 or age 60, why you can tell a lot about a firm from looking at its walls and windows, whether a 10 percent raise or a new office with a view does more for your happiness, and whether the happiness prospects are better in large or small firms.
I haven't had the chance to read the book yet, but I plan to.
Jason Czarnezki, Professor of Law at Vermont Law School and a founder of the Empirical Legal Studies Blog, has struck out on his own. His new blog, CZARNEZKI.COM, promises to cover "life, law and the environment." We'll surely be watching out for his fresh insights!
Just a reminder that one week from today -- August 4 (Wednesday) -- is the deadline by which the AALS must receive your FAR Form (and fee) for inclusion in the first distribution of forms to faculty hiring committees. Your world will not end if you miss this deadline, but hiring committees may start filling their DC dance cards before the AALS distributes the second set.
And over at Prawfsblawg, Miriam Baer has a post directed to practitioners who are considering a jump into the pool. Click here.
We've been talking about the economy's effect on the academy for the last several years. (You may recall, for instance, that I wrote some about the crash's effect on faculty scholarship back in May 2009.) Along those lines, I think you may find this brief article, "Faculty Retention Plummets as Faculty Salaries Stay Frozen," from the July/August Carolina Alumni Review of some interest. It's a refreshingly honest, if sobering, assessment of what's happening here in Chapel Hill. (I now see that there's a longer version of the article on the UNC alumni website.)
There are a bunch of things of interest in that short article -- including the numbers of faculty lost and the ways the University categorizes raids (people we don't begin to try to keep, those whose offers we try to match, and those for whom we do not have the money to try to retain). Then there's the policy of -- apparently -- requiring a written offer from another school. In some ways this is a good idea (it means that the threat of loss is real and thus saves scarce resources for the most serious threats to leave); but maybe it is also a bad idea, for it strikes me that once someone's gone that far towards looking to leave, that person may really leave.
CALL FOR PAPERS Aging as a Feminist Concern January 21-22, 2011 Emory University School of Law Atlanta, Georgia
Aging is a feminist issue. The elderly, especially the oldest of the old, are disproportionately female. Among the elderly, women are more likely than their male peers to face a number of challenges, including poverty, disability and isolation. Yet, the legal academy, including feminist legal theorists, is only just beginning to pay attention to old age and its implications. This workshop will advance this agenda by bringing together a diverse group of scholars to explore the relationship between feminist theory, law and policy, and the concerns of the aging. We will focus on understanding how the relationship between age and gender can be theorized, as well as exploring how feminist legal theory can inform policy and law in the U.S. and abroad.
Feminist legal theorists are in an excellent position to advance progressive and transformative theories about aging. The form and content of the negative stereotypes older adults are frequently subjected to parallel negative stereotypes about women. Like women, the elderly (both men and women) have traditionally been cast as mentally inadequate, frail, and in need of protection by outsiders. Both age and gender – and out-dated conceptions of each – have historically been cavalierly used as convenient proxies for other, more germane, characteristics. In addition, older women face many of the same gendered inequalities of younger women in contexts ranging from domestic violence to employment discrimination. Further, the growing population of older women raises distinct issues of caretaking whether the older woman is serving as caretaker or as the care recipient.
But the price may have to go up as my colleagues get to know
me better . . .
A recent New York Times Room for Debate column, What
if College Tenure Dies?, has prompted some blogosphere discussion of the
issue (yet again), including posts from Tyler
McArdle, and Ilya
Somin.While many of the debaters and bloggers make good
arguments regarding the costs and flaws of the tenure system, many of the tenure
critics seem to assume that tenure is the primary barrier to the pursuit of
excellence in academia and that, in its absence, academic units would be
well-functioning, efficient institutions.
While I can’t speak to other departments, I’ve never been
persuaded that this is the case within law schools.(Law schools may face special challenges on this front as compared
to other academic units, for reasons
summarized some time ago by Brian Leiter).
As I’ve argued here before,
most law schools show little willingness to implement less extreme measures
designed to shame, intimidate, or otherwise induce faculty to perform
consistently with valued institutional goals, so why should we expect them to
take the more drastic measure of firing someone they’ve worked with for many
years, even when legally entitled to do so? Thus, I’ve always questioned
whether giving law schools access to “the big gun” of freedom to fire would
result in substantial changes at most schools. As I stated in that post:
To illustrate, are the hiring and tenure processes at your
school designed as genuine opportunities to attract and retain only those
faculty most likely to uphold high standards of scholarship and teaching
throughout their careers?Does
your school explicitly link salaries to scholarly productivity, quality, or
influence, or are salaries essentially lock-step with seniority?Or does no one know?Are bonuses paid based on any metrics
of teaching quality, such as student evaluations, teaching awards, class
enrollment, peer review of teaching, and the like?What incentives and rewards exist for service?Do you receive anything extra for
chairing committees, attending student or alumni events, mentoring students,
diligently attending workshops, or providing feedback to junior faculty and
other colleagues on scholarship and teaching?To the extent there are one or more faculty generally
recognized as not pulling their weight in any of the relevant categories
(scholarship, teaching, service), does the institution send a clear signal that
they are not living up to expectations?For example, does he or she continue to receive raises, summer money,
travel funds, an office with a window?
My point here is merely that, even considering the
constraints imposed by the tenure system, law schools have a variety of shaming
mechanisms, punishments, and incentives at their disposal to influence faculty
behavior, most of which are rarely employed in a clear, transparent, and
coherent manner.Of course,
different schools operate differently on this front.Some may actively consider productivity and competence of
various sorts in retention and compensation decisions, but the lines of
decision-making authority and the factors that will be considered are often
unclear.Who decides who gets a
raise, who gets a chair, and who gets extra travel money?The dean?The associate dean?A committee?What metrics
will the relevant decisionmaker(s) use and what expertise does she bring to
bear on the decision?Is your
associate dean a bankruptcy specialist?Then what methods will she use to determine what constitutes
high-quality work in the field of, say, legal philosophy? . . .
Would we perform these tasks differently and better were the
shackles of the tenure system not corrupting our faculty rosters?Perhaps.There’s an obvious chicken-and-egg problem here that makes
it difficult to predict the ways, if any, in which law schools in a non-tenure
system would differ from their current incarnation.But I suspect that abolishing tenure is not the panacea for
institutional incompetence that many believe it to be.
This is not necessarily intended as a defense of
tenure.In fact, the most common
argument put forward in favor of tenure -- protecting excellent scholars and
teachers with unpopular views – has always struck me as fairly weak.Were this the only defense of tenure, I
would consider the costs high for what seem amorphous benefits.
But there are other and, to my mind, better, arguments in
favor of tenure.In particular,
tenure is thought to enable faculty hiring by the faculty -- who are in the
better position to judge scholarly and classroom abilities, and whose hiring
and firing decisions otherwise would suffer from perverse incentives -- rather
than by administrators.In the
absence of tenure protection, existing faculty have no motivation to hire the
best quality new faculty (since that increases the chances that existing
faculty will be the fired during the next quality evaluation).See here, here, and here
for more extensive discussions of the costs and benefits of tenure, including a
discussion of these institutional governance features.
My very first post here at the Lounge, My
Tenure’s For Sale, How About Yours?, just over a year ago, was about the
costs and benefits of tenure (happy blogging anniversary to me!) I noted in
that post Steve
Levitt’s offer to sell his tenure for a mere $15,000 in additional salary,
on the rationale that:
The value of tenure is inversely related to how good you are.
If you are way over the bar, you face almost no risk if tenure is abolished. So
the really good people would require very small salary increases to compensate
for no tenure, whereas the really bad, unproductive economists would need a
much bigger subsidy to remain in a department with tenure gone.
Being no Steve Levitt, I would of course need more than
$15,000.But then, as noted at the
time by Greg Mankiw in this Chronicle of Higher Education article
on the topic (subscription or day pass required for access), most
faculty would place a higher economic value on job security than Levitt, a
respected and prolific scholar, author, and teacher, and former John Bates
Clark medal winner.
In the end, I don’t know whether the benefits of tenure
outweigh its costs (though I certainly enjoy having it).But I also don’t expect the
commonly-invoked complaints against tenure, including unproductive faculty and
lack of intellectual diversity, to magically disappear just because tenure
It's been a long time since my last installment of "you know you live in a university town when...."
I was over in Pittsboro a while back and picked up a copy of The Great Republic at their library book sale. Somewhere along the line, in one of my many moves since leaving Boston in 1994, I lost my copy of it, so I was happy to get a hardback copy, a little older than the one I'd owned when I was in graduate school, but an outstanding reference nevertheless. This is the 1977 edition, which has some really fabulous color plates--it was produced back in the day when color photos were still affordable. It looks like an art book.
Now here's the "you know this came from an academic's bookshelf" part. The notes in the margins argue with the authors. For instance, the book has a line about "What made public schools and religious revivals seem so indispensable by the 1830s was the earlier decay of traditional communal discipline." And in the margin: "What exactly constitutes 'traditional communal discipline'?" (note the presence of quotation marks in the margin!)
Then on the section on radical abolitionism are these two notes, several pages apart. First, next to discussion of Garrison's near lynching by a Boston mob in 1835 and his increasing reform efforts, is this note: "after a meeting of the Boston female anti-slavery society." And a few pages later, in the margin is this question: "Is THAT ALL he's going to say about women's rights?"
Then, in another hand, next to a discussion of proslavery action at northern universities, "What about Francis Wayland?" And "what happened to Edward Loring?" But perhaps it should read, "does anyone think that Justice or God awaits Mr. Loring's decision?"
So you pick it. You know you live in a university town when (1) there are marginal notes in the books you buy at the library sale? or (2) the notes argue with the authors about technical points of scholarship?
This is the week for news stories about things I care deeply about. Now the New York Timeshas news of a lawsuit filed by Jim Thorpe's son to have his remains removed from the town of Jim Thorpe, Pennsylvania, so they can be buried in Oklahoma. From the Times article:
In June, with the backing of his two surviving brothers, Jack Thorpe sued the town of Jim Thorpe in United States District Court. Citing the Native American Graves Protection and Repatriation Act of 1990, the suit contends that Jack Thorpe, as a lineal descendant, has legal claim to his father’s remains.
Over at Calculated Risk, “some investor guy” has a very
informative series of posts on sovereign debt, including current and historical
data; market estimates of the probabilities of default around the world; estimated
losses, including under a "really bad" scenario (whoa! Try not to focus on that
Japan number, yikes); and the possible impact on the CDS, interest rate swap,
and FX market.
Am I the last person on the planet to learn about Beck University (as in Glenn Beck University)? Quite possibly, because I've been buried in work on University, Court, and Slave and the teacher's manual for Integrating Spaces and otherwise not reading the newspaper -- or even much in the way of blogs this summer.
I was surprised to learn about it as I was catching up on stuff over at the history news network. Even more surprising is that a legal historian, James R. Stoner of LSU's political science department, is one of the first three faculty members. Stoner will be giving lectures on "charity," though -- in eighteenth-century like fashion -- the title of the lectures are somewhat different from their content. Stoner will be talking about the Constitution. Close students of legal history will know Stoner's serious work on the common law background of American constitutionalism.
Despite all the joking in what I must admit is a pretty creative post at wonkette, there's likely to be something serious going on in Stoner's lectures. I'm going to be interested in seeing how this plays out and what Stoner decides to talk about. I also wonder two things. First, will this re-spark scholars' engagement with his work, particularly his argument about the shift in attitudes towards the common law in the early twentieth century. Second, how will the Beck students react to a serious legal historian--and, to the extent there's any interaction, how Stoner will react to the students.
I was a starter in the first All-Star game in 1933, playing all nine innings. My brother and I played together on two teams (and were part of a multiple-player trade that took us from one team to the other). My brother (a pitcher) hit more career home runs, but I'm the one in the Hall of Fame.
Who am I?
Pictured: Lefty Grove, card #9 in the 2002 Upper Deck Sweet Spot Classics set. Grove was the winning pitcher in the first All-Star game.