The Faculty Lounge

History Office History

 

 

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

 

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

 

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

 

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

 

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

 

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

 

- Thomas Pynchon, Mason and Dixon, p. 349

 

 

 

 

 

 

 

Reconsidering the Conventional Wisdom on the Legal Job Market - Part III

This is the third of three posts on the current state of the legal job market.  In the first post, I discussed the preliminary results of a study I did of employment of recent graduates from my law school and explained why nine-month job data does not tell the whole story on employment.  In the second post, I explained why I am skeptical of the idea that the current state of the legal job market is the result of structural change.  In this post, I discuss Bureau of Labor Statistics projections about the future of the legal job market.

The Bureau of Labor Statistics Projections. 

Recent projections by the Bureau of Labor Statistics have received a lot of attention in discussions of the legal job market.  For example, Eric Posner recently wrote on Slate that “the Bureau of Labor Statistics estimated that 218,800 new legal jobs would be created between 2010 and 2020.”  There is a significant mismatch between this number and the projected number of law graduates over the same period, and it is understandable why many people have raised concerns about them when talking about the future of law schools.

I think we need to be careful, however, in reading too much into these projections.  I have two specific concerns about the numbers.  Before I get to them, I want to note that the BLS is a remarkably user-friendly government agency.  Fearing a huge, impenetrable bureaucracy, I asked a research assistant to try to find me someone to talk with about the projections.  She came back ten minutes later saying that I could just call and they would connect me to the right department.  When I did call, a human being picked up the phone, and connected me to Michael Wolf, the Branch Chief of the National Employment Matrix, who was happy to talk to me about the statistics.  It was incredibly nice to not have to find my way through an automated phone maze to find someone to talk to.

Mr. Wolf explained to me that the job statistics are based on two surveys.  The first is the Occupational Employment Statistics survey.  This survey goes to employers throughout the economy (including government employers).  The responses are typically filled out by Human Resources people at each employer.  The second is the Current Population Survey, which is designed to help catch people who are self-employed.  For our purposes, the Current Population Survey should capture solo practitioners.  The data from these surveys are combined to form the base year data on employment – that is, a picture of employment in the current year.  Projections of future employment are then based on macroeconomic factors, tailored to each specific industry.  Estimates of job openings factor in both expected new jobs and expected retirements.

Reconsidering the Conventional Wisdom on the Legal Job Market - Part II

This is the second of three posts on the current state of the legal job market.  The first discussed the preliminary results of a study I did of employment of recent graduates from my law school and explained why nine-month job data does not tell the whole story on employment.  This post discusses the idea that the market for legal services is undergoing a profound structural change.  The next post will discuss the Bureau of Labor Statistics projections for lawyer employment.  [Update - the third post is here.]  The whole series is collected in this document.

The Structural Change Issue. 

Another piece of the current conventional wisdom is the argument, generally associated (at least in US law circles) with Bill Henderson, that the legal job market is undergoing profound structural change.  My reaction to this argument has taken an interesting trajectory.  I was initially deeply skeptical of the argument.  The more I thought about it, the more I started to think that there was something to the structural change idea.  My current thinking is that some structural change is occurring in the legal job market, but that this change has been gradually occurring for many years.  I therefore think that this structural change is something that legal educators should think deeply about, and I agree with some of what Professor Henderson has to say about the subject.  I am skeptical, however, that the structural change has much, if anything, to do with the current state of the legal job market.  I am also a bit skeptical of how deeply the structural change will penetrate into law practice.  Professor Henderson has written a lot on this subject that deserves a more thorough analysis than I can give it in this post.  For now, I want to focus on these last two points – whether structural change is responsible for the current state of the job market, and how deeply structural change will impact law practice.

The structural change argument has a few components to it, but for me the most interesting part of it is the claim that technology, specialization, and process engineering are making legal work increasingly standardized and systematized.  Professor Henderson, discussing the work of Richard Susskind, writes that “Susskind asserts that legal work is gradually migrating from bespoke (e.g., court room practice), to standardized (e.g., form documents for a merger), to systematized (e.g., a document-assembly system for estate planning), to packaged (e.g., a turn-key regulatory compliance program), to commoditized (e.g., any IT based legal product that is undifferentiated in a market with many competitors).”  (Blueprint for Change, at 479).  As legal practice becomes more routine and commoditized, compensation for lawyers will come under pressure.  The structure of legal services will change as well, with lawyers (or, more broadly, legal service providers) working for specialized firms that look more like service providers in other industries than contemporary law firms.

Although I think it has limits, I think it is true that at least some change of this kind is occurring in the legal industry.  I do not think, however, that it is particularly new.  One example of this kind of change discussed by Professor Henderson is the rise of firms that provide contract attorneys for discovery work.  My first big assignment as a law firm associate in 1997 was to supervise a major document review and coding projects (ah, the glories of Biglaw!).  At one point, I had 60 contract attorneys working for me. We were using technology to make the review process more efficient.  This technology has improved over time, but technological change has also created a dramatic increase in document review work.  Even in 1997, the increased use of e-mail was creating many more documents for review than had been created in the past when written communication was exclusively on paper.  In the document review world, technological change has probably created more work in the last 20 years (by exponentially increasing the number of documents to be reviewed) than it has eliminated (by automating parts of the process).  It is also worth noting that while certain aspects of document review can be performed by trained monkeys (and thus can be automated), other parts require the work of human beings exercising judgment.   More importantly to the subject of this particular post, I don’t see change in the document review world in the last few years that is different in kind than change that had occurred in the prior 15, making it unlikely that any changes in this area are the cause of the present relatively poor job market.

Students, Teachers, and Cultures of Expressed Gratitude

A Facebook friend of mine who is a law teacher recently posted a status update expressing understandable pleasure over a couple of dozen end-of-semester thank-you notes, emails, and other tokens of gratitude from students.  

The post got me musing about what you might call the culture of expressed gratitude in law schools.  I've been in this business full-time since 1994.  Over the years I have noticed that some faculty members seem to attract expressions of gratitude from students, and others don't.  You see the telltale signs lying about:  the little envelopes stuffed into doorframes or slipped partly under doors, the little packages and Hallmark envelopes left in faculty mailboxes.  And there are a couple of things that have struck me about this.  First, as I say, there are clear patterns -- if you pay attention, you can see that there are some who attract concrete expressions of gratitude, and others who don't.  Second, the faculty member's reputation for excellence in teaching correlates at best imperfectly with the pattern.  Some who appear to receive lots of student love are reputed to be great teachers, but many reputedly great teachers don't ever seem to have the little-package-stuffed mailbox or the telltale envelope stuffed in the doorframe.

This is an interesting thing.  Is there something in the student-faculty relationship that helps explain the patterns?

I hasten to add that I'm musing about this out of a genuine sense of curiosity, not out of resentment. Though I've never been among those who receive the cards and emails and little gifts, I know that the students in my classes have enjoyed them and felt that they've learned a lot.  

 

Writing Requirements for LL.M. Programs

I've written articles and blogged before about the need (or otherwise) for writing requirements in the J.D. program and what those requirements should look like.  I haven't given as much thought to writing requirements for LL.M. students and I'm interested in others' thoughts on this issue.  Many U.S. LL.M. programs comprise a lot of foreign students for whom a writing requirement may be problematic depending on language skill level and depending on why they are enrolled in the program in the first place.  If they are practising lawyers from other countries planning to learn some U.S. law to either to take a U.S. bar or to demonstrate overseas experience for career advancement in their home country, is a writing requirement seminar necessary for this purpose?  When I took my LL.M. at Cambridge some years ago, there was no writing requirement - there was a writing option that I took but it was not mandatory.  The student body mainly comprised foreign students who were interested in learning some comparative law, adding a qualification to their C.V. and having the Cambridge experience (and no I didn't join a rowing team so I guess I didn't have the TRUE Cambridge experience).  The school probably wouldn't have had sufficient faculty resources to supervise the entire LL.M. contingent writing a minor thesis/research paper anyway.

I would understand the need for a writing requirement in LL.M. programs that are precursors to Ph.D. programs which is the case in some universities.  But most U.S. law schools do not offer Ph.D. programs.  So outisde the potential function of an LL.M. writing requirement as a precursor for a Ph.D., are there other pedadogical imperatives to include such a requirement in the program? 

 

Reconsidering the Conventional Wisdom on the Legal Job Market - Part I

Over the past year or so, a conventional wisdom has developed about the status of the legal job market.  This conventional wisdom has at least three components:   (1) Recent graduates are getting law jobs at distressingly low levels.  (2) The legal job market is undergoing a profound structural change.  (3) The lousy job market is a reflection of these long-term changes, and is not just a product of a recession and slow recovery.

In this and subsequent posts, I will push back against certain aspects of this conventional wisdom.  At the outset, however, I want to be very clear about what I am NOT arguing.  I am not arguing that the current legal job market is great – it is not.  I am also not arguing in defense of the status quo in legal education – as I’ve explained in prior posts (here, here, here, and here), I worry about many facets of legal education, not least the student debt problems caused by ever-increasing tuition.

In this post, I will argue that it is highly likely that more recent graduates throughout the country are getting law jobs than the conventional wisdom assumes.  My argument will be based on data about what graduates from my school actually are doing now.  In my next post, I will briefly discuss the claim that the poor job market is due to structural changes in the legal job market.  [Update:  the second post is here].  I will explain why I am skeptical that the structural changes in the legal job market are significantly different than those that have occurred in the past, and why I am therefore skeptical that the current anemic state of the legal job market is the result of structural, rather than economic, factors.  In my third post, I will briefly discuss Bureau of Labor Statistics data on the legal job market, and will explain why caution must be used in interpreting this data in discussion of legal employment.  [Update:  the third post is here].

If you want to see the entire series of blog posts now, I have collected them in this document.  The rest of the first post is below the fold.

Associate Dean Creep

Okay, so now that I'm not an Associate Dean of anything, I suppose I can ask these questions without looking like I'm trying to feather my own nest ...

I'm interested in how many schools have more than one Associate Dean position (i.e. positions held by faculty rather than senior staff) and what portfolios they are divided into.  I've worked at schools with many associate deans - including A.D.s for higher student research (in schools with LL.M. and Ph.D. programs), A.D.s for faculty research, A.D.s for student affairs, A.D.s for international affairs and/or foreign exchange etc.  And I know there are an increasing group of A.D.s for experiential learning and practical legal training these days.

I'm wondering if there is an optimal number of associate deans at any given school and how the portfolios might be most effectively divvied up.  This will obviously vary from school to school.  A lot of the Australian schools I worked at had MANY A.D. positions but also huge student bodies and varied academic programs, whereas a lot of the smaller U.S. schools have only one or two A.D.s  And when there are only one or two portfolios they seem to be academic affairs and research/faculty development.

Does anyone have any thoughts on whether multiple associate deans are a good idea and in what contexts it's most effective to have more than one?  Is it just a factor of how big the school is and how many student programs it offers or are there more issues to take into account?  (And I know I used lots of prepositions to end sentences with in this post but I'm taking a holiday from good grammar through sheer end-of-semester tiredness.)

 

Chris Eisgruber Named President Of Princeton

Christopher Eisgruber, the provost of Princeton, has been named the school's next president. Eisgruber had an old-school trajectory, with no VAP or Ph.D (albeit with no time in practice either.)  He won a Rhodes while at Princeton, studied law at the University of Chicago  (where he was the Law Review EIC), clerked for Patrick Higginbotham on the Fifth Circuit and Justice Stevens, and promptly accepted a position as an assistant professor at NYU.   He produced significant scholarship in the area in constitutional law.  After 11 years at NYU, Eisgruber moved to Princeton to direct the Program in Law and Public Affairs and became provost in 2004.

 

 

Legal Theory and Legal History: To Think What We Are Doing

 

 

“What I propose, therefore, is very simple: it is nothing more than to think what we are doing.”

 

- Hannah Arendt, The Human Condition (Chicago, 1958)

 

I want to start off my time here at the lounge by sharing some thoughts on the relationship between theoretical reflection, jurisprudence, and legal history. I want to do that because I just got back from a conference where this relationship was the topic of much discussion(Legal Theory and Legal History: A Neglected Dialogue? Queen Mary, University of London, April 12-13, 2013), and one particular entry into these discussions and others like them struck me as warranting further exploration.

 

And that is the work of Christopher Tomlins, with whom I had the pleasure of an all too brief (at least for me) conversation about his reading of Walter Benjamin, and in particular, his effort to imagine and practice a materialist (and because materialist a post-critical) study of the law. Tomlins, Chancellor’s Professor of Law at UC Irvine, has for some time been urging scholars across a variety of related fields to move beyond the model of scholarly practice associated with Critical Legal Studies, its equivalent in what Tomlins calls Critical Legal History, and the broader, basic idea that the job of the historian is to historicize- to situate chosen objects of study within an ever-multiplying series of contexts that are declared by the historian or other self-proclaimed critical scholar to be specific, plural, and complex, and only responsibly understood as such. The effect of this kind of practice is to neutralize the political potentiality of the material at hand, and it has been part of Tomlins’ project to suggest that this has to do with the ideological situation of the historical profession- it is in the interest of a historian to show up and say “no, no, its more complicated than that,” to display their specialized erudition, and to pave the way for a practice explicitly limited to the further extension of the complicating, contextualizing work that only we critical historicists are equipped to carry out. For Tomlins, I take it, this enlists the historian in the perpetuation of Benjamin’s “empty and homogenous time,” the result of which is a historical profession that constructs a celebratory, progressive, and ironically uncritical narrative of itself as doing the necessary work of recovering other contexts, other voices, other agencies, and other identities, and we can be assured, so the thinking goes, that this is self-evidently politically efficacious in and of itself.

 

Against critique and contextualization, Tomlins presents Benjamin’s concept of constellation: “There could be no apter evocation of the disquiet that marks the beginning of any critique of history worthy to be called dialectical, which must renounce a calm, contemplative attitude towards its subject to become aware of the critical constellation in which precisely this fragment of the past is found with precisely this present.”(1) The goal here is to build a relationship to the past that is aware of just why this particular thing is before us to consider at this particular moment- in short, what its doing here, and how should we understand the fact that it is here- as Benjamin elsewhere writes, of how this fragment of the past flashes up in the moment of danger in which we find ourselves. Cultural history, Benjamin writes, “may increase the burden of the treasures that are piled up on humanity’s back. But it does not give mankind the strength to shake them off, so as to get its hands on them.” (2) The historical practice of actualizing constellations is explosive- it remembers and recovers something, a fragment of the past that punches through the bounded character of the present. Tomlins is currently moving beyond the expansiveness of his incredible recent book, Freedom Bound, and focusing on Nat Turner and the 1831 slave revolt that he led in Virginia. In our own moment of the confrontation of liberalism’s self-understanding with theological and political violence, Turner explodes the image of the American past as the perpetually expanding demand for and use of the language of liberty, even as that image includes the history of active resistance to slavery. Like John Brown, there is something unclassifiable about Turner- you cannot understand him simply by describing the context or contexts in which he acted, social, linguistic, or otherwise, if you can hope to understand him at all, and in this age of creating and recovering multiplying alternative agencies and identities there is something profoundly discomforting about that. To speak of redemption in this case is to blow open what we would mean by redemptive constitutionalism.

 

I hope I have done justice to the arguments Chris Tomlins has been making. Where he and I touched bases was on the mutually felt need for historians in particular to attend to the conditions of their own intellectual practice, and to do so, in part, by attending to the history of intellectual practice. Quite simply, we need to “think what we are doing,” to use the words of another reader of Benjamin’s (I don’t know how much use Tomlins would have for Arendt, but the fragment I’ve provided here seems apt).

 

Tomlins’ both historical and more explicitly methodological work has been provocative for me, and I want to just note some of my reactions to it as a way of opening up space for future thinking. I cut my teeth, or am still cutting my teeth I suppose on a civically and historically conscious approach to legal and political thinking in time that we can see mot significantly (for me) in the work of J.G.A. Pocock. For Tomlins, I take it, “Cambridge” historiography has become conventional and is reaching a point of diminishing returns- a kind of conservative philosophical version of the critical historicism practiced by CLS and CLH. There is a minor point to be made that I don’t think there is a unitary school beyond what we generally call Cambridge school history of political thought, but the larger point I want to make is that it is difficult to actually rethink one’s practice without confronting conditions of historicity and plurality, although that does not stop us from trying. I take Pocock’s Gibbon project, soon to be consummated in a sixth volume of Barbarism and Religion, to be evidence enough that there is quite a bit to be done with the history of thinking and writing in contexts. An even more important point is this- a study of the past that is aware of the conditions of its practice will be one drawn into confronting histories of thinking and acting differently as a crucial part of any effort to do the same in the present. Benjamin’s constellations are still critical, and it might be said that this time of multiplying and reverberating fundamentalisms can ill afford to an age after critique, howsoever we might reimagine the method and locations of critical activity.

 

What I take to be at issue here is the contested nature of the common Nietzschean inheritance to the metatheoretical and metahistorical project of Tomlins and the genealogical, historical, and sometimes archaeological project (think of Foucault) that Tomlins is trying to get out of or away from. But that is a discussion for another time. Chris Tomlins’ evocation of Benjamin’s unique materialism is the place from which thinking about law and legal history has to begin today- and that is because by materialism Benjamin meant not just Historical Materialism but the actual stuff we use to make a world. Benjamin’s writings invite a history of thought, and in particular, a history of legal thought that is attentive to the material and revolutionary dimension of practice. This would be a history of fragments, of texts and their readings and rewritings, of materials and their collection and recollection. It would be a history of law, but it would also be a history of the uses to which the material of that history is put. When everyone is an originalist of one kind or another, perhaps it is this emphasis on materiality itself, the idea of getting one’s hands on the law, that flashes up as a memory fragment for our own moment of danger.

 

In a few future posts, I’ll be discussing my own work on Jefferson and the history legal and political thought, and how that fits into this, among other things that pop up.

 

 

 

 

1. Benjamin, “Edward Fuchs: Collector and Historian,” One-Way Street and Other Writings, Jephcott and Shorter, trans. (Verso, 1979), p. 351.

 

2. Ibid, p. 361. 

Scholarship Tips

As the semester draws to a close, I'm sure many of us our thinking about scholarly projects for the summer.  I wondered if now would be a good time to open a post to share some "scholarship tips".  What is the most important thing you would advise colleagues, or want to make sure you remember to do yourself, in new scholarly projects?  Issues relating to approaching research, effective use of research assistants, outlining a proposal, developing successive drafts etc...

Why do the Initials Matter so Much?

    Recently, there was a discussion on the IPProfs board about why more IP law professors fail to join the American Intellectual Property Law Association (AIPLA). Most who commented on why they were not members seemed to be concerned with the positions AIPLA has taken on issues arising in IP law, finding that the organization, at best, lacked transparency on how the positions advocated were developed. But for me, the reason I am no longer a member is the requisite for academic membership in AIPLA. To qualify for membership from the academy, you have to teach at an AALS approved institution. In other words, anyone who teaches at an institution that has only ABA or state accreditation is not a “real” IP law professor.

    Of course, the AIPLA is not the only organization that does this. The AALS also has rules that prevent active participation at AALS events if your school is not an AALS member. Many of my colleagues used to be active with the AALS. They were interested in presenting papers and panels at the meeting, but were also willing to do scut work that goes with running an academic organization. With the exclusionary system now in place, faculty from non-AALS schools need not try to present papers as their work is automatically rejected. Even those of us who are willing to roll up our sleeves to do the behind the scenes work are excluded.

    This limitation on participation is unjustifiable. Great scholarship can come from anywhere in the legal academy (or, dare we admit it, from those outside of the academy). As an example, think of Dean Erwin Chemerinsky of U.C. Irvine. If we follow the standards being used by the AALS, he was a great scholar when he was at Duke as it has both ABA and AALS recognition, but when he became the founding Dean at U.C. Irvine, he immediately became worthless as a scholar as it did not have either ABA or AALS accreditation when he joined. Even today, his scholarship is apparently substandard to the AALS as his institution, like my own, is only provisionally approved by the ABA and is years away from being eligible for AALS membership.

    If the AALS (or AIPLA) are intent on being true academic societies, the “no one does it as well as our members” snobbery needs to go (except for the few elected officer positions where membership may be appropriately required). If the AALS is truly a “learned societ[y]” as its web site suggests, it needs to start acting like an academic-based organization  — one that is open to all scholars who produce quality work.

Dismantling Tenure Prospectively

In an earlier thread about incentivizing law review placements, an interesting sub-discussion emerged after I suggested that one of the problems with tenure is that it potentially disincentivizes faculty from doing our jobs and then we look for ways to re-incentivize faculty to do more and/or higher quality scholarship.  A comment was made that perhaps tenure isn't the problem because if it was creating poor institutional incentives, some schools would - or might - prospectively attempt to abolish tenure.  But then of course those schools wouldn't be able to compete for high quality faculty with schools that do offer tenure.

I hadn't initially intended to suggest that any system in which some schools prospectively abolished tenure while others didn't could possibly be effective.  In such a system, faculty would not be attracted to work at schools without tenure when they could have tenure somewhere else.  So my initial thought was really a general comment about tenure - in a system where we all potentially can get tenure, there are less incentives to do our jobs.  The only obvious alternative would be a system with no tenure across the board or a system where tenure "meant" something less significant than it does now and it was possible to remove tenure for unproductive faculty.

But the discussion in the other thread got me thinking about whether it would be possible to think about an effective system in which some schools prospectively decided to abolish tenure while others didn't.  Assuming that there are institutional incentives to abolish tenure AND assuming that ABA rules don't actually require tenure (two big assumptions, I know), wouldn't it be possible for, say, high-ranked schools (US News proxy for quality again - sorry!) to abolish tenure without losing good faculty?  In other words, could the prestige value of working at those schools, and potentially the higher salaries and lower teaching loads that "may" be associated with working at those schools, outweigh the detriment of not having tenure?  Faculty members who are prepared to be engaged teachers, scholars etc may have no problem with such a system and may still see those schools as aspirational places to work despite the lack of tenure.  Or is that a completely crazy idea?

 

 

Bounties for Prestigious Law Review Placements

I'm sure we've discussed this before, but a number of schools still retain incentives for faculty to publish in high-ranked law reviews through bounties/rewards e.g. if any faculty place an article in a journal whose school is ranked in the U.S. News Top [10/20/50 etc], they get a grant or stipend for doing so.  I understand that placements are the coin of the realm, but these systems seem strange to me.  If faculty are being productive and their scholarship is impactful, I wonder if pressure or encouragement to publish in certain journals creates incentives in some cases to make scholarship less effective than it might otherwise be.  For example, this year, I've turned to more internationally focused intellectual property work and have published more in international journals than I usually do.  Some of the reason for that focus is that international journals have actually solicited this work, but it's still getting cited and noticed, perhaps more so than it would have in a traditional U.S. law review.

If the argument in favor of publishing in traditional law reviews is that everything is online now anyway, so it doesn't matter where you publish (so why not publish in traditional U.S. law reviews?), I would suggest that is incorrect.  While most U.S. law reviews are available online, many of them are not available free of charge online.  So the audience would be limited to those who have paper subscriptions or can afford LEXIS/Westlaw access.  Of course, the same would be true for journals in other countries and professional journals.  So the argument can easily be turned around to say that everything is equally accessible online (sometimes free of charge, and sometimes for a fee), so why not publish in the place where the article will get the most traction?

And of course the fact that bounties exist for prestigious placements doesn't mean that any professor has to aim for a certain kind of placement for every single article.  And presumably faculty who don't publish in Top [10/20]50] journals but do publish well have other incentives such as professional reputation enhancement and potentially recognition in base salary?

It just seems to me that the express recognition of what "prestigious placement" means can send strange and potentially inaccurate signals to faculty about the definition of good/insightful/impactful scholarship. Thoughts?

 

The Machinery of Criminal Justice

My good friend Stephanos Bibas, a criminal law and sentencing scholar at UPenn, recently penned an important book tackling the always weighty issue of how criminal justice is administered, entitled "The Machinery of Criminal Justice."    As his abstract explains:

Two centuries ago the criminal justice system was primarily run by laymen. In court, victims and defendants interacted face to face while lay jurors from the community sat in judgment. Jury trials passed moral judgment on crimes, vindicated victims and innocent defendants, denounced guilty defendants, and reconciled and healed wounded relationships. But over the last two centuries, lawyers have taken over the process, silencing victims and defendants and, in many cases, substituting a plea-bargaining system for voice of the jury. This lawyerized machinery has purchased efficient, speedy processing of many cases at the price of sacrificing softer values, such as reforming defendants and healing wounded victims and relationships. In other words, the U.S. legal system has bought quantity at the price of quality, without recognizing either the trade-off or the great gulf separating lawyers' and laymen's incentives, interests, values, and powers. This book explores these trends and considers how criminal justice could better accommodate lay participation, values, and relationships.

Laudably, this book has gotten a lot of attention in the scholarly and public realms. In the current issue of the Harvard Law Review, Professor Nicola Lacey reviews the book, criticising Bibas's decision not to explore the "expanding scope of the criminal law" and do more comparative analysis, as well as faulting his promotion of a "false vision of a village idea:"

Humanizing the Criminal Justice Machine: Re-Animated Justice or Frankenstein's Monster?

Professor Bibas responds, arguing, among other things, that the current American landscape challenges us to build consensus at the neighborhood or local level, and to narrow criminal enforcement to those policies that can command broad support :

Criminal (In)Justice and Democracy in America

Whatever your take, it is well-worth your time to read the book and the two reviews, whether you are a prosecutor or criminal defender, a criminal law scholar,  a lawyer, or simply a member of the general public who wants to know what's really going on in the criminal justice system. 

And if you just can't get enough, here's the link to Professor Bibas's recent star turn on C-SPAN discussing these very issues.  Fascinating!

Blogging, Writing, and Teaching About Federal Indian Law

Thank you, Al, for inviting and introducing me. I've been reading The Faculty Lounge since you all started it. We started our blog, Turtle Talk in 2007, just before The Faculty Lounge. Though I don't post nearly as much as my colleague, Matthew Fletcher, it's taken some time to be able to tear myself away and write over here. Turtle Talk is comprised mostly of primary source material surrounding cases in federal Indian law (briefs, decisions, news articles, law review articles), though we periodically post commentary. This has the added benefit of keeping us fully engaged in developments in our field, which can at times feel overwhelming.

Al said he wanted to hear a bit about history in federal Indian law, but as a non-Ph.D holding person, this always makes me nervous! I majored in history in undergrad, but did not complete (nor attempt) any graduate work in the field. However, in law school I wrote a small history paper on the Cherokee Freedmen and treaty concerns, and then found myself digging into the issue of laches and Haudenosaunee land claims once I was employed by Michigan State. Tracing the dramatic shift in the equitable defense of laches from its development in England to a series of cases in the Second Circuit, starting with Cayuga Indian Nation v. Pataki, made me antsy to write about legal history and the Supreme Court, at least as it affected American Indian tribes.

My most recent article identifies fundamental problems with originalism interpretation and how the assumptions underlying that interpretation harm tribal interests today. I've had a mixed response, including the argument that the Constitution provides strong language for tribes under an originalist interpretation. I'm not sure that's entirely true, regardless, given the dismal results for tribal interests at the Supreme Court, the argument certainly isn't working, which is what I was (and am) interested in.

To begin my time here, however, I think I'll start with the other area of my focus, the Indian Child Welfare Act (ICWA). The Act, passed by Congress in 1978 and interpreted by the Supreme Court once in Mississippi Band of Choctaw Indians v. Holyfield, is in front of the Supreme Court again this term. This semester I'm also teaching a class on ICWA. I hope to write here about ICWA, how I changed my ICWA class at the last minute to incorporate the case (and what I'd change in the future), how amicus briefs inform my writing and teaching, how my service on the Court Improvement Program in my state provides me with ideas for teaching, and back to how my role at the law school often leads me to base my writing projects on external needs or requests for our Center. I still have writing projects in mind surrounding equity and tribes, the public interest doctrine and tribes, and one with a friend tracing the history of the modern Haudenosaunee land claims cases, which I hope to get back to as our semester winds up.

Till then, thank you again for having me.

 

New Members of the American Law Institute

The ALI just elected 40 new members.  Among them are these law profs:

• Curtis Bradly (Duke)
• Samuel Bufford (Penn State Dickinson)
• Dan Burk (Irvine)
• Alyssa DiRusso (Cumberland)
• Nita Farahany (Duke)
• John Golden (Texas)
• C. Scott Hemphill (Columbia)
• Timothy Holbrook (Emory)
• Mark Weston Janis (Connecticut)
• Gary Marchant (Arizona State)
• David Moore (BYU)
• Arti Rai (Duke)
• Jason Schultz (Berkeley)
• David Sloss (Santa Clara)
• Carol Steiker (Harvard)
• William Treanor (Georgetown)
• Ingrid  Wuerth (Vanderbilt)

Congratulations to all!

Bloomberg, Big Soda and Micropaternalism

Mayor Bloomberg's NYC ban on selling super-size sugary sodas in certain venues has repeatedly been in the news lately, particularly after a NY Supreme Ct. judge imposed a judicial stay on the ban last week.  Since the ban has raised issues of paternalism, obesity, the "nanny" state, agency creativity, over-regulation, poverty, and race, there has understandably a huge kerfluffle,with the New York Times, the Huffington Post, Rick Hills and Ethan Leib at Prawfs, Aaron Saiger at Concurring Opinions, and Mark Bittman all weighing in.

But what best explains  the ban, the stay, and the furor, given the edict's limited reach?  A very interesting new article entitled MICROPATERNALISM , written by David Adam Friedman, provides a fascinating and original theory to explain why:

In this Article, I have created a theory of “micropaternalism” to capture the essence of a unique regulatory dynamic. As I define it, micropaternalism describes when policymakers paternalistically regulate a narrow area, thereby provoking public debate about the underlying controversial issues addressed by the regulation. The loss of autonomy, even in a narrow zone, can instigate a broad-ranging discussion that ultimately influences social norms.

For example, Mayor Michael Bloomberg’s attempt to limit the portion sizes of sugary drink servings in New York City started a legal fight and a loud social fight about public health and paternalism. The New York City Board of Health enacted a code that covered an extremely narrow piece of the obesity problem, but the public debate took place on a big stage. Discussions about obesity as a public health problem leapt from the policy sphere to the popular sphere. In the long run, the dialogue may have more of an impact on public attitudes and private behavior than the actual regulation—a regulation that may not even prove enforceable. By putting the issue before the public and raising awareness, the debate about overconsumption could potentially reset norms.

Best read and enjoyed with a Big Gulp. 

Keefe Steps Down as Interim Dean at SLU Law

According to various reports (including here, here, and here), Tom Keefe, who was appointed last August to serve as the interim dean at St. Louis University School of Law for the 2012-13 academic year, has resigned from that position.

Last fall, I argued here that Keefe could not legitimately serve as interim dean at SLU Law for three separate reasons: (1) he was maintaining his full-time law practice while serving as interim dean; (2) he was serving as a member of the SLU University Board of Trustees while serving as interim dean; and most importantly (3) the SLU Law faculty played no role in his selection as interim dean.  Apparently, however, Keefe's resignation was not prompted by a concern over violations of basic norms of institutional governance and ABA standards, but instead by complaints regarding a number of offensive comments that he has made.

Several of the comments that Keefe has acknowledged making (or maybe making) are so over the top that I won't reprint them in this post.  But you can read about them here and here.

It is regrettable for the folks at SLU Law (faculty, students, staff, and alumni) that it has come to this.  At the same time, the episode provides a splendid example of how things can go wrong when a university administrator disregards the appropriate role of the faculty regarding a decision of enormous importance to a law school.  The administator in question (SLU President Lawrence Biondi) ought to be taken to task.

Any chance that Tom Keefe will encourage his fellow Trustees to issue Biondi an appropriate reprimand for the poor judgment that Biondi exercised in hiring Keefe as interim dean?

Blind spots

A great post over at The Situationist blog about a new book from Mahzarin Banaji and Anthony Greenwald called Blind Spot: The Hidden Biases of Good People which is an attempt to bring some of their work on the Implicit Associations Test (IAT) to a broader, general audience. This work is interesting and provocative and, as noted in the blog, often controversial. But I suspect the book will be very interesting to those legal academics who have either written about the IAT or issues of implicit bias or cognitive limitations generally, as well as to practitioners who may be coming up against this sort of evidence in court or who, conversely, would like to use it in court.

Update: TFL blogger Michelle Meyer adds this review of the book from the WSJ blog,  Book Review: Blind Spot. After looking at the review I think I'd have to say it goes beyond simply offering a caution about importing the insights (if any) of the IAT, but is fairly hostile to this research.  It offers several of what seem like valid criticisms and a few that don't seem so valid to me.

The observations about the linguistic limitations, the crudeness of some of the measures and cautions about the associations which the authors make, are examples of  some of the valid critiques, although they do not necessarily lead to the conclusion that this work does not help to some degree in trying to tease out the difference between lying and lying to ourselves - or, in the context of discrimination, between what we consciously tell ourselves and what what we may actually do, or what may be unconciously informing some of the decisions we make.  I think some of the critics may be asking that this research conclusively prove discrimination rather than that it show evidence which is suggestive of it or supports an inference in that direction.  Of course conclusive proof of most connections in the social sciences is unlikely to be forthcoming, moreover, that is not the test for admissibility for expert evidence in court. Observing that a particular approach does not answer every question you might have with respect to the problem it attempts to study does not mean the test is invalid any more than the fact that an MRI and a CAT scan offer different information means that either is invalid.  Finally,  terms like "disrimination" "bias," etc. are all themselves extremely loaded in that they might suggest more to some readers than the authors intend.

On the other hand, Daubert, the case that provides the framework for the admissibility of expert testimony,  does provide that expert testimony needs to meet some basic standards of reliability, etc.  that if all these criticisms are well-founded, would probably lead to exclusion. So, facts like the authors' own meta-analysis failing to account for the vast majority of the data is, if true, a significant omission from the book and one that it would be interesting to follow up on. Indeed, if you were planning to use such evidence in court it would be remiss of you not to follow up on it. 

I think other observations in the review are less valid. Take this one:  "But if a test gives results that are so far-fetched, it's time to start questioning the validity of the test."  First, "far-fetched" is an assessment that assumes the very thing that the authors are trying to discover, whether it is indeed "far-fetched" that someone might harbor unconsious racial stereotypes, no matter what their ethnic background. The comment assumes that racial heritage or background is some sort of invariable predictor of attitudes.  A casual glance around at the diversity of political opinions within various minority groups should dispell that idea. So the ethnicity of Malcolm Gladwell's parents, while surely not irrelevant to the question of his attitudes towards race, is probably not dispositive of them.

Second, that some data diverges from what you expect to find is not necessarily a reason to question the test. Sometimes it is. That is always one possibility. But it also is possible that it is a reason to question your assumptions about what is or is not "far-fetched."  There are a great many things which are true even though they are counter-intuitive, for instance that certainty is strongly correlated with accuracy.

Moreover, in this, as in so many areas of research that are highly politically charged, there are some hints that there may be ideological divsions presented as metholodgical ones driving some of the critiques.  There does seem to be a way in which normative disputes about the legitimacy of underlying assumptions sometimes morph into arguments that purport to be about rigor or metholodgy, with one side claiming that the other is not really rigorous, when they may be working from radically different foundational assumptions.  Whether this is going on here is a question that can only be resolved by further reading of the works on which the book is based and those critiques which the WSJ article references.  I do not know the answer to that question. Interested parties should definitely read it all and decide for themselves.

At the end of the day, this book is, as advertised, a presentation of the authors' research for a general audience, with all the limitations that go along with such attempts. That said, you need not endorse immediate adoption, by the courts or legislatures, of any of the implications of the authors' research here to conclude that it is interesting and worth further exploration. And, for better or worse, as the National Research Council's report from 2009 on forensic science illustrates, the validity of a practice has rarely been an insurmountable barrier to its acceptance in the courts.  So this research is likely to migrate there. (I think it may have done so already and look to more knowledgable readers to alert me to those cases.) Whether you want to use it or defend against it, may pay to give it a look. This book looks like one entryway to that exploration.

The phenomonology of choosing to go to law school

There is a really interesting post over at Crooked Timber, What you Can't Expect when you're Expecting about the difficulty in treating a decision about whether to have a child as a purely rational (let alone economically rational) decision; you cannot really know what it is like until you do it, at which point (at least for most responsible people) it is too late to change your mind. Certainly once you've done it, if it doesn't turn out to match all of your dreams, it can be fairly devasting for all concerned, parents and children both. Happily, (or so it seems) a goodly number of people either find that being a parent does meet their dreams or they adjust their dreams accordingly.

In reading this piece I was struck by the parallels between the phenomonological problem described - i.e., that the experience of being a parent is something virtually impossible to "know" or convey before you experience it and thus makes rational choice difficult - and the decision to go to law school. And now that decision is more fraught than ever.

When I graduated from law school in 1991 we were in the midst of something of a recession and jobs were harder to get than they had been for some of our predecessors.  It was perhaps worse in Miami because so many people came from out of state and wanted to stay in Florida. I don't know how many of my peers ended up working as lawyers, but I suspect most of them did, even though it was such a tough market that even classmates on law review had trouble getting jobs. I do know though that some of my classmates found they hated practicing law, or at least they hated the big law firm form of practicing. And while the debt to earning potential was not as dire then as it is now, it was pretty significant and potentially life-altering, even then.  (Twenty some odd years later I am still paying on my students loans although I have a lot of complicating factors, not the least of which was an additional year at Harvard Law School getting an LL.M.) 

So what do we do with that particular insight? Should we tell potential students: "You know a lot of people find they don't like practicing law, especially in the sector in which the compensation makes it most likely for you to be able to comfortably handle your student loan debt."?

There is no doubt that many people decide to go to law school as a purely economic investment in what they image to be a lucrative career. And it is still is for some. But there is also no question that the debt/earning power problem has intensified the risk of the decision on whether to go to law school. And indeed some have suggested that these two questions - whether to go to law school and whether to have children have converged such that choosing one may rule out the other. 

But are these simply market driven decisions, or are there emotional and deeply personal value issues at play as well, ones that cannot be reduced to weighing the financial costs? And how do these two interact? Unclear. I think when you factor in these personal issues the decision is not so clear cut as many make it out. The bottom line seems to be that the only reason to go to law school is that you really want to either be a lawyer or have that credential for some reason related to your personal circumstances.  And if you want to be a lawyer it does not seem that evaluating this decision solely in market terms captures all that that means.

NOTE: A word about comments. I am going to delete what I deem to be abusive comments.  In particular, commentors whose anonymity does not seem to be predicated on a fear of professional repurcussions but merely a desire to throw brickbats without any accountability are going to be deleted. This is not TFL, this is me.  Civil commentary made anonymously will be accepted.