The Faculty Lounge

New Jersey Town Proposes Flag Ban

The New Jersey town of West New York is contemplating a ban on the exhibition of flags, banners, and pennants.  News story here.  Someone needs to inform the town legislators of the existence of the First Amendment and its application to them.  Flags are inherently a form of symbolic expression, and this is especially so with national flags.  See Texas v. Johnson.  A rainbow flag is a form of symbolic expression.  So is a New York Giants flag or pennant.  The proposed ban is content based, though not viewpoint based.  As such, the town would have to surmount the burden of strict scrutiny, which it almost certinly could not do.  It is hard to imagine  a compelling reason for squelching such symbolic expression.  Even if the ban is considered content neutral, it would still fail under the rationale of City of Ladue v. Gilleo.  The ban would extirpate a venerable and unique form of expression.  It's distressing to observe yet another band of constitutionally illiterate legislators.         

Debating the Term "Concentration Camp"

The last in my series of posts is now up at the blog of the Jewish Book Council. In it I explain why I don't use the term "concentration camp" to refer to the camps where Japanese and Japanese Americans were imprisoned in the United States except in rare circumstances.

Campaign Finance and the 2012 Election

On February 8, 2013, Willamette University College of Law will be hosting a conference on Campaign Finance, entitled "Campaign Finance and the 2012 Election."  Here is a brief description:

Willamette University’s Center for Constitutional Government is pleased
to sponsor a conference to assess the role of money in the 2012 elections
and to investigate what changes, if any, should be made to federal and state
campaign finance laws. Among the topics to be discussed is the impact of
so-called “Super PACs,” the role of money in judicial elections, the viability
of public financing after the U.S. Supreme Court’s decision in Arizona Free
Enterprise v. Bennett, and the efficacy of Oregon’s “disclosure only” system
of regulating contributions to political campaigns for state office. With the
amount of money spent in political campaigns having hit a historic high,
the conference promises to be both timely and valuable for attorneys, elected
officials and concerned citizens alike.

More information can be found here.

Duck Tape Creative Idea #319: Tape Airline Passengers To Their Seats

How in the world did I miss this story?  

Making It Human

The third of my blog posts exploring what a concentration camp looks like is now up at the blog of the Jewish Book Council.  

The earlier posts are here and here.

Wash U Seeks Clinical Fellow

This just in from our friends in St. Louis:

WASHINGTON UNIVERSITY SCHOOL OF LAW invites applications for its Clinic Faculty Fellows program. The fellowship is designed to train talented lawyers to obtain an academic teaching post, ideally including clinical teaching, and to help provide teaching coverage in the School’s Clinical Education Program. The fellowship will provide mentoring to help the fellow develop clinical pedagogical skills and produce academic scholarship.

The fellow’s teaching assignment will be in the Criminal Justice Clinic (with Professor Peter Joy) and may include a course outside the clinic. In the Clinic, the Fellow will supervise students providing trial-level representation to persons charged with misdemeanors and felonies and teach a classroom component. Candidates should have significant experience practicing criminal law, demonstrate promise as a legal scholar and teacher, and have a commitment to pursuing a career in legal academia. Candidates must be eligible to practice law in Missouri (i.e., must be a member of the Missouri bar or eligible for admission as a law teacher without examination pursuant to Missouri Supreme Court Rule 13.06). Fellows receive a competitive salary along with employee benefits and support for research.

The fellow will be appointed for two academic years beginning July 1, 2013. The fellow is expected to participate in the entry-level teaching market beginning in fall 2014. The School’s prior fellows have obtained tenure-track positions at other schools. Applicants should submit a resume, law school transcript, references, and brief description of the candidate’s scholarly agenda or interest in entering academia.

Washington University School of Law is committed to diversity and encourages applications from racial and ethnic groups, women, persons with disabilities, and other under-represented groups. Submit application to: Professor Robert Kuehn, Associate Dean for Clinical Programs, Washington University School of Law, One Brookings Drive, Campus Box 1120, St. Louis, MO 63130-4899; rkuehn@wulaw.wustl.edu. Applications will be considered on a rolling basis.

SMU Law Board Member Resigns, Protesting Dean Shift

The other day I reported that SMU decided not to renew the contract of Dean John Attanasio.  Attanasio has been dean since 1998.  Yesterday, the ABA Journal reported that a law school board member (and donor), has resigned from the law school's executive board in protest.  The protester, Leslie Ware, is a Dallas patent attorney.

CUNY's Jenny Rivera Named To New York Court Of Appeals

Governor Andrew Cuomo  named Professor Jenny Rivera, who has been a member of the CUNY Law faculty since 1997, to the New York Court of Appeals.  She graduated from NYU Law, with an LLM from Columbia, practiced public interest law, and clerked for Judge Sotomayor on the SDNY before joining academia.  

Michael Hunter Schwartz Named Dean At Arkansas - Little Rock Law

Washburn Law Associate Dean Michael Hunter Schwartz has been named the new dean at the University of Arkansas - Little Rock School of Law.  Schwartz, who holds a JD from Hastings, is the co-director of the Institute for Law Teaching and Learning.  He previously had accepted a post as the associate dean at the soon-to-open University of North Texas School of Law - but later changed plans.  Schwartz entered law teaching in 1991, at Western State, and also taught at Charleston School of Law, before ultimately moving to Washburn.  

Subversion At The Margin

After teaching Contracts for nearly 15 years I've gradually come more to question the extent of its place in contemporary American life. Regardless of our theoretical justification for contract law--vindication of personal autonomy or increasing net social welfare--the increasing depth of penetration of contract into our lives leads me to be more easily convinced of the warrant for doctrines like unconscionability that, so to speak, upset the apple cart.

You can read a review of a book that gets where I'm heading here. Arlie Russell Hochschild's The Outsourced Self: Intimate Life in Market Times (2012) observes that we've moved from being objects of contract to its subjects. Contract is less a tool by which the self achieves its aims than a substitute for the self. "The more the market is the main game in town, the more hooked we get on what it sells, and the more convinced that paid expertise is what we lack and an even larger service mall is the only way to go.” From needs, to desires, to the most intimate decisions of our lives, our decisions are no longer found within the self formed as part of a community. Or, as the reviewer puts it, "Choices that used to be made based on communities of family, neighborhood or work are now being outsourced to 'consultants' in everything from clothes and style to baby names."

What has this to do with teaching Contracts? With the luxury of two three-credit semesters I've always taken the opportunity to explore the the why of contract law. Where does it fit and where should it fit in society? This is a fertile field of class discussion perhaps in part because of Regent's religious mission. Over the years, American Evangelicals, who make up a substantial portion of Regent's students, appear to have become slightly more skeptical of identifying market economics with the Christian gospel. Am I
starting to sound like Wendell Berry?

I hope no one misunderstands my expressions of discontent with the place of my field of teaching in American society as a suggestion that we replace contract law with central planning. Things could be worse. Far worse. Yet to the extent we permit limited subversions of the regime of private ordering, the law can show that values in addition to autonomy and welfare are important.

Michael McCann to Head U. New Hampshire Sports and Entertainment Law Center

I am happy to report that Michael McCann, the leading authority on sports law, will join the University of New Hampshire Law School faculty this fall to head the Law School's Sports and Entertainment Law Center.  Here is the press release.

Behind Barbed Wire

My second guest post at the blog of the Jewish Book Council is now up.  In the series of posts, I'm exploring what it means to call a confinement site a "concentration camp."

In Memoriam of Robert Francis Engs (1943-2013)

It is with great sadness that I write about the sudden passing of a terrific historian and a very generous and humane man, Robert F. Engs.  Dr. Engs was educated at Princeton and then Yale and taught at the University of Pennsylvania for many years (including the time when I was there; I was the beneficiary of his wonderful lecture class on the era of Civil War).  Then after his retirement from Penn he returned to his native Virginia and was teaching at William and Mary, where he was working on the school's Lemon Project.  That project is revisiting William and Mary's long history with the institution of slavery.  Though Dr. Engs was so much more important to his students and those of us who came within his orbit than a catalog his scholarship would convey, I would like to mention several of his path-breaking books were Freedom's First Generation: Black Hampton, Va., 1861-1890 and Educating the Disfranchised and Disinherited; Samuel Chapman Armstrong and Hampton Institute, 1839-1893.  He also co-edited with Randall Miller The Birth of the Grand Old Party.  And because this is the internet I will also mention the electronic archive he developed on the coming of Civil War.

I had the pleasure of having dinner with Dr. Engs last spring and he was in classic form -- telling stories about his time as a graduate student and as a professor at Penn, about the days when African American history was so new, as well as all the work he had in process.  He was recovering from some lingering health problems, but very much looking forward to the work of the Lemon Project and to travels.  And we had a grand time at dinner.  Wow, what an evening!  Of course in his characteristically generous fashion he patiently listened to my talk about University, Court, and Slave -- and we had the chance to trade stories about the ways that institutions north and south (but mostly south) had promoted the cause of proslavery as well as benefitted from enslaved labor.

We have lost a wonderful person, a wonderful mentor, and a steadfast advocate for African American history.  He cared deeply about his students and the future of the historical profession, and worked to recover African American history, particularly in the south.  His writing was directed at recovering the full scope of African American life in the era as our nation emerged from generations of slavery and made the robust ideas of freedom an economic and social reality.  I hope to talk a little bit more about Engs' influence and his work soon.  

Rob Gregg, who was also one of my teachers, has an extensive remembrance at Histrionics.  Sherman Dorn recalls his days teaching with Engs here.  W&M's Provost, Michael Halleran, has a tribute here, and here is the Flat Hat's story.  Further details about funeral arrangements are at the Daily Press' website.  The family asks that in lieu of flowers a contribution be made to an organization of your choice that benefits at-risk youth.

Cromwell Foundation Article Prize in Legal History

It's my pleasure to post the following call for nominations for the Cromwell Foundation's article prize in American legal history for early career scholars:

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 L. Brophy, University of North Carolina School of Law, Campus Box #3380, Chapel Hill, NC  27599-3380 or via email at abrophy@email.unc.edu

To emphasize what is probably obvious, the subcommittee encourages folks to submit nominations of articles they've read and enjoyed.  Authors should also nominate themselves.  This is a moment where we want to recognize and celebrate the outstanding work that is being done in legal history by newer scholars.  If I might add a personal note, I'd like to say that I'm very much looking forward to reading the entries for this prize. 

The Cromwell Foundation also has a book prize and a dissertation prize in legal history.  Dan Ernst has posted information on the Cromwell Foundation Book Prize (for early career scholars) and also its companion the Reid Book Prize (for more senior scholars) at the legal history blog.  Here's information on last year's Cromwell Foundation prizes.

What Does A Concentration Camp Look Like?

I am guest-blogging this week at the blog of the Jewish Book Council.  My first post, entitled "What Does A Concentration Camp Look Like?", is now up.  

I'll have three more posts up as the week goes on.  Drop on by.

SMU Law Dean John Attanasio Denied Renewal

Southern Methodist University has decided not to extend the term of Dean John Attanasio.  He contract runs out in May.   The news was reported last week in the Dallas Morning News (may be behind paywall - but you can find the story in Google News for free).  The Morning News story made it seem like this broadly perceived as an outrageous decision, citing backlash from alumni, the bar and some faculty.  I understand, however, that faculty views about the decision are far from uniform. 

Still More on What Matters Most (Or, A Guided Tour of Pandaemonium)

As I have previously observed, if you think there is no oversupply of recent and imminent law graduates, you live in a fantasy world.  If you think that every underemployed law graduate in America is just too lazy, too stupid or too greedy to take one of the countless paying jobs just waiting out there to meet the legal needs of the poor (who have no money to pay you, despite their substantial and serious needs), you live in a fantasy world.  If you think that there are untold thousands of wonderful, remunerative jobs that don’t require a law degree but that instantly become available to law graduates just because they have one, you live in a fantasy world.  We have lots of data measuring the differences between what’s going on here on Earth, and what you think you see from Planet Pangloss.

But there is an equally corrosive rhetoric at the other extreme in this discussion, and it is just as pernicious and misleading.  For example, this recent quote from Paul Campos in Fortune:  “[I]t's like the subprime mortgage scandal without securitization. When people realize it's a worthless degree, the system is going to collapse.”  Lest anyone accuse me of being a hater, let me be clear that I think Prof. Campos has done us all a great service in raising and focusing public discourse on a number of extremely serious and important issues regarding the current state of legal education, and has regularly contributed to the discussion with reasoned and empirically-based arguments about where we are and where we might be headed.  My concern is his tendency to lapse into self-loathing (such as in this inaugural post on his blog and much of the rest of what he posted there that month) and hyperbole (such as the remark I just quoted), and the rage and panic it excites in many of his followers. 

In a recent post, I called those indulging these rhetorical extremes “Pandemoniasts.”  I was thinking of Milton’s Paradise Lost, and the prospect of Hell presented to the fallen angels from the site of the city they will build there, Pandaemonium, which sounds for all the world like this crew’s prospect of all life after law school:

The dismal Situation waste and wild,
A Dungeon horrible, on all sides round
As one great Furnace flamed, yet from those flames
No light, but rather darkness visible
Served only to discover sights of woe,
Regions of sorrow, doleful shades, where peace
And rest can never dwell, hope never comes
That comes to all; but torture without end . . . . 

(Book I, lines 60-67, spelling modernized) 

Before those on the waiting list for anger management start to pile on, let’s all be clear that there is in fact loads of misery in the post-law-school world.  There are literally tens of thousands of recent law-school graduates who made six-figure investments in their legal educations, many of them incurring huge nondischargeable loans to do so, who cannot find full-time, long-term employment making any substantial use of what they paid so dearly in time and treasure to acquire.  This distress is by no means evenly distributed across the graduates of all law schools, but it is having real and significant effects at almost all of them, including many very well and thoughtfully administered institutions such as the one where I am fortunate to work.  This is nothing short of tragic, and of course it has to be addressed to reduce the numbers of future victims of this misfortune.  (And we should never forget that prospective reform of the kind currently under discussion in many quarters does little for those already caught in the riptide of the shrinking law-job market.  Disaster relief for those already swept out to sea will be the subject of a future post, and is something we should all be thinking about as well.)

That’s why I’ve argued that What Matters Most right now is that there are not enough law jobs for the recent and imminent law grads entering the workforce:  Responding to precisely these circumstances, the relevant markets are already bringing powerful forces to bear.  What happens when you make more of something (here, entry-level lawyers) than the market wants?  Supply contracts and price falls until the market clears.  And that’s exactly what’s going on right now.  Law-school applications are down precipitously again this year (hat-tip to Dan Filler for the latest numbers) as more prospective law students conclude that the investment of time and money in a JD is not justified.  The first-year class that started this past fall is smaller than the previous year’s by at least 10% at roughly half the accredited law schools in the United States.  Many schools will shrink, and some will simply fail when they cannot attract enough of what they consider the right kind of applicants.  Similarly, price competition among law schools for desirable matriculants is already increasing, right now mostly in the form of price-discounting through offers of financial aid, but with a few institutions freezing and reportedly considering reducing their tuitions.

Judging from the oversupply revealed by the employment numbers gathered and disseminated by the ABA Section on Legal Education, my relatively unscientific guess is that we can expect the number of seats in accredited law schools to shrink somewhere between 20% and 40% from its high in the class entering in the fall of 2010.  My equally unscientific guess is that we can expect to see the reduction fairly quickly (on an academic timescale)—perhaps within the next 3-5 years.

This correction, which is obviously substantial, will create more dislocation and hardship.  That is deeply regrettable.  Students at institutions forced to close will have their studies disrupted, and perhaps terminated (with concomitant loss of their investment) if they cannot find an institution willing to accept them as transfers.  The faculty and staff of those failed institutions will lose their jobs, and finding similar jobs elsewhere will be very difficult as many of the schools remaining downsize their own faculty and staff to serve reduced student bodies.  (The difficulties I am hearing about from very accomplished and talented applicants for law-teaching jobs this year are just a small harbinger of things to come.)  Schools that choose to compete by reducing price, either by selective awards of financial aid that allow them to price-discriminate more effectively, or by reducing nominal tuition rates across the board, will undoubtedly require their faculties to teach more and get paid less.

These hardships will not fall equally on every law school.  The really interesting questions are which schools are going to be most quickly and profoundly affected and why.  I have some thoughts about that, which I’ll share in a post soon to come.  Readers’ predictions in the Comments are solicited.  In the meantime, some schools are embracing the inevitable proactively (props to Dean Frank Wu at Hastings, for example, who decided last spring to reduce his census by 20% even though he could still fill 100% of his existing seats, thus seizing the opportunity to manage into and through the change), while others will undoubtedly be dragged down in price or numbers kicking and screaming (and denying and denying some more).

Those in the Schadenfreude brigade who take some joy in these prospects should be ashamed.  When markets contract, many people suffer.  But is this the end of the world as we know it?  Is “the system” going to “collapse”?  Don’t be ridiculous.

The legal profession is still an indispensable handmaiden to the American economy.  Even with a deeply depressed economy and critical structural changes reducing the staffing and pricing of legal services, there are still countless disputes of all kinds to be resolved, still deals to be done, and more regulations than ever to comply with.  There is an interesting debate to be had about whether, in the medium or longer term, the traditional model of conventionally defined legal services provided by guild-licensed professionals will survive (Gillian Hadfield and Richard Susskind, among others, think—with apologies to Prof. Hadfield for oversimplifying her complex and nuanced views—perhaps not).  But right now, and for the foreseeable future, there is no responsible argument that every law degree is “worthless” or that “the system” is on the verge of “collapse.”  Over 23,000 of the law students who graduated in 2011 had long-term, full-time jobs requiring a law license within nine months, and some modest (and I stress “modest”) complement on top of that found work towards which their law degrees made a real and significant difference.  That’s a lot fewer than the 43,000+ who graduated that year, and some of those who succeeded in the job market are making only a marginal living.  Those are very significant problems that have resulted in real and serious loss, disruption and pain to many thousands of disappointed graduates.  But to suggest that soon no one will be attending law school because there are, or will be, no economically viable entry-level law jobs is absurd.

Bottom line:  The legal academy is already shrinking, and that’s going to accelerate for a while—but it will slow and then stop.  We have the choice to face the forces driving these changes thoughtfully and proactively, or to be dragged along willy-nilly.  What we can’t do is resist them, and those who try will do so at their peril.  When it’s done, we will likely be sadder, hopefully wiser, and certainly more modest in our dominion.  “Better to reign in Hell than to serve in Heaven”?  You tell me.   

--Bernie