The Faculty Lounge

The Case for Transfer on Death Deeds

Jennifer Jiang has the latest on the case for transfer on death deeds in the North Carolina Law Review.   Jennifer makes the case for these deeds, because they're of use to people of relatively modest means and sophistication and I hope we'll see more of this kind of scholarship and legislative action, too.

But there's also a scholarly story in here, too.  This is part of a trend of increased scholarship on trusts and estates.  That trend is moving in two directions -- first, toward solid and traditional doctrinal analysis; and, second, and of special interest to me, of the exploration of historical and critical perspectives on trusts and estates.  I'm thinking here, for instance, of Jason Kirklin's empirical study of probate in pre-Civil War Indiana last year in the Ohio State Law Journal, but also of what seems to be increased focus on the race and gender as they relate to trusts and estates.  One example of this that comes to mind immediately is Bernie Jones' book, Fathers of Conscience.  Will be most exciting to see where this all goes! I think that old idea that trusts and estates scholarship is an intellectual backwater is, well, outdated. (More thoughts on the field of trusts and estates, especially as it relates to the gender of faculty, here.) 

Dean Search Update: St. Thomas (Minnesota)

Our friends at St. Thomas (Minnesota) have posted a position announcement for the next dean of the law school.  Applications, nominations, and inquiries can be directed to Professor Tom Berg, co-chair of the search committee.

Orentlicher Stepping Into the Lounge

It's my pleasure to welcome my friend David Orentlicher into the faculty lounge.  David is the Samuel R. Rosen Professor of Law and Co-director of the William S. and Christine S. Hall Center for Law and Health at Indiana University's Robert H. McKinney School of Law, where he teaches in health law, constitutional law, professional responsibilty, and trusts and estates, among other areas.  He has also held visiting professor positions at Princeton, the University of Iowa, and the University of Richmond.  From 2002 to 2008,  David served in the Indiana House of Representatives from 2002 to 2008.  His emphasis in the legislature included making health care insurance more affordable, increasing the pool of venture capital for new businesses, and ensuring better protection of children from abuse and neglect.

David, who holds both medical and law degrees from Harvard, is also one of our nation's foremost scholars of health law.  He is the author of  Matters of Life and Death: Making Moral Theory Work in Medical Ethics and the Law (Princeton University Press, 2001) and co-author of Health Care Law and Ethics (Aspen,  2007), as well as numerous articles.  You can read some of his recent scholarship on ssrn here.

Very much looking forward to hearing David's thoughts about health care and all manner of other things, too.

Handling Rejection

During this time of year, many faculty recruitment committees are charged with the unfortunate task of advising faculty hopefuls that they were not selected for the position. A recent article highlights feelings from the perspective of candidates and offers suggestions for improved rejection letters, but we seldom explore how this is handled by schools. Certainly, we all have friends and colleagues whom we've supported through this process, and we've provided an ear for them to vent about how long it took to hear anything, and heard (or personally experienced) the too-common examples of cryptic letters or e-mails informing candidates that the job went elsewhere. Some schools don't bother to acknowledge receipt of applications from candidates they're not interested in interviewing until the process has been completed. Law schools are charged with teaching students the importance of professionalism in all areas of practice, and this should extend to the dreaded notifications of rejections that they, themselves, send to applicants. Ideally, how should notifications of rejection be relayed? What steps can schools take to ensure this is handled appropriately -- and professionally?

From Rutgers-Camden Law To Rowan Law?

In what would be fairly radical restructing of higher education in New Jersey, Governor Chris Christie has proposed that Rutgers-Camden be merged with Rowan University - the former Glassboro State College, in Glassboro, NJ.  At the same time, the University of Medicine and Dentistry (UMDNJ) would be folded in as well.  All of them would operate under the banner of Rowan University.  

This would a signficant change for Rutgers-Camden, in particularly, since its research structure - in everything from the law school to the history department (home of a newly minted MacArthur fellow) - appears better developed than Rowan's.  In addition, those individuals associated with Rutgers-Camden - students, faculty, alumni, and donors - will likely smart at the loss of the school's highly respected name.  (It didn't take long to get a nice petition going.)  On the other hand, there would no doubt be efficiencies in the merger and it would bring together a South Jersey med school and law school under a single banner.

Cross-listed at Leiter.

Dean Search Updates, Plus

The 2011-12 law school dean search list is updated here.  

One notable story: it appears that Emory Law announced its dean search on Jaunary 12, 2012 with a call for nominations of tenured Emory faculty.  Based on the timeline set out in this document, it's not even clear the committee was considering outside candidates at all.  Indeed, the committee has apparently already identified three finalists - all from the existing Emory faculty and one the current interim dean.  There's nothing wrong with doing an internal dean search; it's just unusual for a search committee to be so open about it.

Legal Ethics on the Interwebs

The law firm of Fitzworth & Schnoogle is a well-known criminal defense firm.  Another criminal defense firm in town, Gasbottom & Plonk, purchases the term "Fitzworth & Schnoogle" as a google advertising keyword, which means that when somebody runs a google search for "Fitzworth & Schnoogle," the Fitzworth & Schnoogle site shows up as the first hit on the search results, but over on the right side, an advertisement for the firm of Gasbottom & Plonk appears under the words "sponsored links."

Rule 8.4(c) of the ethics rules says that "[i]t is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

Has Gasbottom & Plonk violated the rule?

Discuss.

Counseling Students - The Socially Awkward Student

There's a lot about this job that most of us are at least minimally trained for.  When we teach, we at least have our experience as a student to draw on.  Hopefully, we've also thought about pedagogy, sat in on others' classes, talked with experienced teachers, and done other things to make ourselves the best we can be in the classroom.  When we write, we can draw on our academic background, training we might have from graduate school (if we went), and our experience as writers throughout our careers.  Maybe others who go into other academic fields have more training, but we have some training or at least some professional experience in these areas.

However, one aspect of our job that most of us have no training for is counseling students.  We can draw on our life experiences with family and friends, but most of us have no academic or professional experience as job, career, or life counselors.  Yet, so much of what we do is exactly that.

In that vein, I want to consider a few of the more difficult counseling situations I've faced in my time as a law professor.  My hope is that we can share our thoughts, successes, and failures around these situations (because I'm pretty sure we've all faced them) and in the process improve how we all help students.

I'll have future posts with different types of situations, but I want to start with the socially awkward student.  I'll posit here that the student is very strong academically.  However, the student is incredibly socially awkward.  She has stunted conversations, is very shy, has odd communication habits, is off-putting in the way she uses language or carries herself physically, or something else that is obviously socially awkward.  As a result, she has gotten a lot of interviews based on her paper resume, but she has had trouble actually landing jobs.  What's worse, she may or may not know the reason for the difficulty, and you don't know one way or the other.

When she comes to you asking for help or advice or just to talk about where things are with her professionally, what do you do?  How do you handle her awkwardness and the difficulties it's posing her in getting herself into the professional world?

January Surprise: SLU Law Is Moving Downtown

Dean Annette Clark announced yesterday that as of this coming August, Saint Louis University law school will be moving from midtown to downtown St. Louis.  The announcement appears to have been a surprise to many people.  The school will be taking over an 11 story, 260,000 square foot building.  It even has its own parking deck inside!  The structure was built in 1965 and was once occupied by AT&T.  

Looks like there's a lot of renovation ahead in the next 8 months!

Exploring "Educational" Epithets

The image of the t-shirt in Eric's post, and the various reactions it received (mine included) have been very enlightening. The use of insults and slurs can be used as "teachable moments" in various classroom settings, but we all have a moral compass that makes us seriously take pause when a certain usage crosses the line. In Advocacy to Zealousness, many of the films I've included have a secondary purpose of encouraging the exploration of various elements of diversity in the legal profession. Some of the films include the use of slurs. Perhaps the most famous example is To Kill a Mockingbird (1962). Another is Gentleman's Agreement (pictured, 1947), an earlier film starring Gregory Peck that explores Anti-Semitism. My question concerns open discussions of diversity in classroom settings, either with law students or during CLE presentations involving attorneys. How do you approach these topics in classroom settings? What steps do you take to ensure that these potentially-heated subjects are discussed openly and civilly?

Sometimes, All You Can Say Is "Wow."

Yom Hashoah is just around the corner, folks.  Do your shopping early.

 

Flynn v. Holder – The Fight Continues

Via Al Roth comes news that the government is fighting the recent Flynn v. Holder decision, which held that bone marrow donors could be legally compensated (for peripheral blood stem cells obtained through apheresis).  According to press reports (here and here), the Department of Justice has asked the Ninth U.S. Circuit Court of Appeals for en banc review of the Dec. 1 panel ruling. I blogged about the case earlier here.

Interesting timing, from my perspective: my Taboo Trades seminar is discussing Flynn v. Holder next week, concluding a two-week segment on blood.  I vary the readings from year to year, but this year assigned Titmuss, Arrow’s response to Titmuss, Singer’s response to Arrow, Lacetera, et. al, and Flynn v. Holder.  I’ve included full cites below the fold for anyone interested.

I’m sure I’ll be back again with more on the case and/or our discussion of taboo trades more generally.  This year’s group seems particularly bright and interesting (yes, I do say that every year . . . but every year it’s true).

I’m actually a bit surprised that the government continues to fight this, especially through the courts (and especially on a 3-0 decision), as opposed to through the legislature, though I’m certainly no expert on appellate litigation strategy.  I note that in his recent New England Journal of Medicine article on the case, Glenn Cohen stated that, though the government could ask for a rehearing en banc:

Given the narrowness of the Ninth Circuit holding, however, the government may be content to leave it in place and instead seek redress through the legislative process — or merely accept the formation of markets for peripheral-blood stem cells. Nothing in the Ninth Circuit decision foreshadows the creation of markets in any other types of organs.

And I guess that’s what I figured as well.  Perhaps some of our many Loungers with DOJ or other government experience will have thoughts to share on the government’s possible strategy, which I welcome.

 

 

Barack Obama, Law School Dean

I have not read Jodi Kantor's new book, The Obamas, but thankfully many other people have - and two have now shared this nugget: earlier in his career, Barack Obama's greatest aspiration was to become a law school dean!  That's a tad different than W's pre-presidential aspiration of becoming the commissioner of baseball.

This new factoid provides some important blogging points.   First, might he become a law school dean after the presidency?  Sure, it'll be  tempting to take over an entire univesrity such as - say - Harvard.  But that would require him to focus on so many large institutional issues and problems.  Why take on those headaches?  And of course, there will be other job options: he could create a TV network .  He could make a new neighborhood safe for Starbucks.  Hell - he could suspend the constitution and become the General Secretary of the United Socialist States.  (Yes, somebody really believes this.) 

But it seems to me that he'll want to follow his inner compass and become a law school dean.  So the obvious question is: which law school?  Personally, I hope that the President will be able to keep his current gig for four more years.  But if not, there are a few schools with existing openings that might be willing to wait if he shows serious interest immediately.

The University of LaVerne is an obvious choice.  The President has shown that he knows how to take decisive action under extreme conditions.  Given all the complicated noise going on in the Inland Empire, LaVerne needs a leader with the sort of bold vision led to a takeover of GM and Chrysler back in 2009.   Feeling entrepreneurial?  Oxy Law sure has a nice ring!   If he's looking to integrate his "left wing liberal" values with his burning desire to lead an ABA accredited, JD granting institution, the food stamp President can head to Northeastern Law.  There, students can alternate classes in payment systems and employment law with a co-op in which students represent Dorchester residents in their SNAP denial hearings.   On the other hand, if he's missing the sturm and drang of  Rahm Emanuel, can you spell UT?

Second, everyone will surely wonder whether he has developed the skill set for the job.  No matter what position he settles into, Obama will have to stare down the Law School Bubble.  But as a fellow who already lives in a bubble within a bubble, this is going to seem like old hat.  It's not like he'll be co-opted by all old guard law faculty types; after all, this is the guy who passed through Chicago without absorbing much of the internal culture.  And we've been told that legal education may soon provide an object lesson of what happens when we do nothing: bad things happen. Other than Harry Truman, there's probably no person better situated to harness the power of a bunch of do-nothings to produce an excellent result. 

Right now, the Republicans are doing their best to insure the President of a second term. Maybe they'll succeed.  If not, those of us in the law school industry may soon have a new fellow traveler. 

I just hope he's not too cocky.  Sure, he might be able engineer a leaner military that can fight two wars at once.    But if he thinks law professors are going to get their finals graded before Christmas, he's as crazy as a betsy bug.

The Law Professor as Novelist

Why would a law professor write fiction?  Scott Douglas Gerber (Ohio Northern) answers that question in the National Jurist here (free registration required; sorry).  Here's the kernel of his advice:

For those of us who don’t teach at Yale, Stanford, Penn and the like, it’s much more difficult to get fiction published than it is nonfiction.  Like it or not, those of us toiling in the hinterlands have a tougher time getting the attention of New York literary agents and publishing houses.  But, as a novelist friend once reminded me during one of my many moments of frustration about how the publishing industry really works, if you write fiction because you enjoy is – nothing more, nothing less – you will never regret that you do.

"Write because you enjoy it" is a good maxim, but what about those for whom writing -- even non-fiction -- is painful and difficult?  "Enjoy it because you have to do it" may be more apropos. 

As for me, I'm squarely in the "I hate to write; I love having written" camp.  Incidentally, does anyone have a cite for that quote?  I've seen it attributed to Robert Louis Stevenson, Eudora Welty, Dorothy Parker, and others.

Possible West/Foundation sale, fewer law students next Fall, and why law education should look to dental education

On Thursday, Thomson Reuters announced that it may sell its law school publishing business, comprising the West and Foundation Press casebooks. I suspect that part of the motivation to dump casebook publishing is the near certainty that the market for casebooks is about to become smaller.

Casebook sales are a function of the number of law students, and that number is likely to shrink. And soon. One of the best early predictors of law school matriculants is the number of LSAT tests given. On Friday, supposedly secret (but readily available here) data show that year-to-date tests are 16.7% fewer than last year and a whopping 25% fewer than two years ago. Could it be that Thomson Reuters sees that fewer law students mean fewer casebooks sold?

The high likelihood of fewer students is, of course, a major strand in the current discussion of the crisis in legal education. I’m currently writing about the lessons law schools can learn from the way dental schools survived a similar crisis.

Dental school enrollment decreased by 34% in response to

an over-supply of dentists,

the decreased profitability of general dentistry, and

the curtailment of federal funds to dental schools.

Sound familiar?

Twelve percent of dental schools closed, the equivalent of more than 20 law schools going under today. But dental education stabilized and, arguably, became stronger and I believe legal education can, too, especially if law schools and our accreditors learn from the experience of dental education.

My research suggests that dental education responded to the crisis by

Implementing more practice-relevant curricula,

Basing assessment on outcomes not processes,

Revamping accreditation standards to let schools experiment with different educational methods and different missions,

Demonstrating the value to practitioners of academic research, thus enhancing the status of research faculty,

Improving the relationship between schools and their universities, which made school closures less likely, and

Developing sustainable revenue models that reduced reliance on student tuition revenue, making dental education more affordable to students

I will have more to say about the lessons for survival that law schools can learn from the dental schools’ experience as my research develops. But for now, the potential West/Foundation sale is objective evidence that the probable decline in the number of law students will have real consequences throughout all of legal education.

How to Write a Good Abstract for a Law Review Article

When you write an abstract, you are marketing your own work--you act as your own PR agent.  You've already done the work of writing your article, and now you must do the good work of presenting your research Lite-style to articles editors. Aside from your school's letterhead, it's the most influential aspect of your paper.  Think of it as intellectual plastic surgery: you augment the exterior to convey to others how you think you should be seen. (See, Jocelyn Wildenstein)

We've seen fabulous advice on other blogs about writing a really good abstract (Dudziak and Volokh). They are great for achieving the appropriate tone and style that will impress student editors.  Missing from these instructions is a MadLib-style skeleton. Sometimes, it's nice to sit back and be uncreative in your creativity. (See, "Sh!t [insert very specific demographic here] People Say" meme. If you have no idea what this is, click here.)  First time writers or seasoned scholars all can benefit from a 1040-EZ approach to abstract writing that conveys scholarly import without seeming overtly boastful.

After all, your paper is the most important thing ever written, right?  The other people that wrote on the same thing tried to do it right, but your new idea is so amazing too?  And you have a recommendation for improvement or a different way of seeing things?  Just like my new way of writing abstracts?

Here is is: short and sweet.  Fill in the blanks and Voila!  You are on your way to publication. Follow this abstractoskeleton, and you will have an excellent abstract. Other people may have their own way of doing it, or disagree with my ordering...but then they should write their own abstracts.

Live Blogging from the Archives

What do we do in Chapel Hill on cold, overcast Sunday afternoons in winter?  Spend time in the archives, of course!  I'll be talking soon about the constitutional origins of secession -- and in preparation for this, I'm reading some more about UVA law professor James Holcombe.  (You may recall I wrote about a frightfully difficult exam he gave at The University in 1859 some time back.)  There's a lot -- a lot -- that needs to be said about Professor Holcombe's legal ideas.  But right now I want to focus on a vignette about his uncle, which seems like it should go straight into the trusts and estate course as a very amusing story:

Uncle Thomas Anderson Holcombe was ... educated as a lawyer and practiced awhile in lower Virginia.  He was one day summoned to the bedside of a Miss Royall, a homely old maid, 10 years older than himself, with whom he had a slight acquaintance.  She was said to be dying and wished to make a will.  To the amazement of the young lawyer, the good spinster bequethed to him the bulk of her property, assigning as her reason the vast and unappeasable love she had conceived for him, declaring that she could not die in peace until he accepted her offering.  To the astonishment of everybody and the chagrin of my uncle, Miss Royall recovered and common gratitude, as everyone knows, demanded that he should make her Mrs. Holcombe.

Actually, there's a ton more substantive things to talk about in what I'm reading now, about concern over keeping property within the family -- and disinheriting children if they stray from the parents' wishes, and all other manner of stuff on wills.  But that will have to await the paper that Doug Thie and I are writing on probate in Rockbridge County, Virginia, from the 1830s to the 1850s.  Never ceases to surprise me how much people in the old south worried about family and property.

University Website, Redux

A frustrating search last night of a law school website in an attempt to locate the school's street address prompted me to repost this xkcd gem from 2010:

Joe Paterno Dead At 85

News here.  It's hardly the end of the Penn State story, but it certainly adds a potent dramatic turn.