Obviously, there has been a lot of discussion about re-forming law schools on this blog, including making law school last 2 years instead of 3 years, changing what law school faculty do, and thinking about alternative sources of funding for legal education. Much of this discussion is pie-in-the-sky-like. And that is not necessarily bad. We need dreamers, rule-breakers, utopianists, etc. in our midst to think the unthinkable and to say the unsayable.
In this post, however, I’d have us contemplate the unthinkable in a less imaginative way. Put another way, I’m interested in your thoughts about what (if anything) has become so ‘baked in’ to the idea of what it means for there to be a ‘law school,’ that that thing couldn’t be removed without causing us to reconsider whether we have a Law School—yes, in capital letters—remaining.
For example, I’m guessing that many readers of this post—whether advocates or critics of the idea—could contemplate a 2-year law school degree. 3 (or more) years might be ideal to some readers, but they would still consider a 2-year legal education program similar enough to what we currently have in the U.S. to consider the institution offering it a ‘law school’ offering a ‘law school degree’ (or, a J.D. more specifically).
I’m also guessing that most readers of this post would consider a school that completely replaced its 2L and 3L curriculums with courses focused on topics popular in the disciplines of philosophy, anthropology, history, political science, and economics—I’m not talking about ‘Law &’ courses here, but straight-up continental philosophy courses, or courses in advanced econometrics, for example—would not consider this a ‘law school.’ Maybe it would be a ‘law and public policy’ school, or maybe it would be considered to be a school offering legal-themed M.A. degrees in the above disciplines, but it would not be what most people consider a Law School.
But what about other stuff? Could a law school close down its legal library and export its collection across the quad to the main university library and still be considered a ‘school’ much less a ‘law school’? What changes have accrued to the conditions of employment for law school professors over the past decades that now seem irreversible? For example, could one abolish tenure and still have a ‘professor’ much less a ‘law school professor’? Could one change the rules and grant tenure to people who are great teachers but do not publish and consider that person a ‘professor’ (as opposed to, say, a tenured ‘instructor’).
This is not really a post about what is possible, but what seems especially impossible to change in our present moment with our accumulated histories and our cultural embedded-ness. I realize there is a paradox in my overall question here, but I’m curious as to what people generate in response.
NB: Anonymous comments are welcome but comments that do not respond to the substance of this post will most likely be deleted.
I've been meaning to talk for a while about Steven J. Horowitz and Rob Sitkoff's exciting new article on "unconstitutional perpetual trusts," which is forthcoming shortly in the Vanderbilt Law Review. Cribbing now from their abstract:
Perpetual trusts are an established feature of today's estate planning firmament. Yet little-noticed provisions in the constitutions of nine states, including five states that purport to allow perpetual trusts by statute, proscribe "perpetuities." This article considers those provisions in light of the meaning of "perpetuity" as a legal term of art across history. The article considers the constitutionality of perpetual trust statutes in states that have a constitutional ban on perpetuities and whether courts in states with such a ban may give effect to a perpetual trust settled in another state. Because text, purpose, and history all suggest that the constitutional proscriptions of perpetuities were meant to proscribe entails, whether in form or in function, and because a perpetual trust is in purpose and in function an entail, we conclude that recognition of perpetual trusts is prohibited in states with a constitutional prohibition of perpetuities.
As I started to read this I realized it is yet another example of applied legal history -- it's a sophisticated reconstruction of state constitutional provisions, starting with North Carolina's Constitution of 1776, which prohbited monopolies and perpetuities. It runs through the nineteenth century, where a number of states (including Tennessee and Texas, at page 20) seem to have copied North Carolina's language and prohibited monopolies and perpetuties. Even further west California followed in 1849 with a prohibition on perpetuities "except for eleemosynary purposes." Close followers of pre-Civil War legal history (particularly as it relates to trusts) may recall that this was five years after the Girard College case validated a charitable trust that was in some ways anti-Christian. (Girard's will prohibited the teaching of Christianity at the school he established.) Story wrestled down the suspicion of perpetuities in charitable trusts even though a generation earlier the Supreme Court had invalidated a charitable trust for a church in Trustees of Philadelphia Baptist Association v. Hart's Executors. (I wrote some about this years ago in an essay review of Peter Karsten's Heart versus Head, at page 1191). So California was following the trend here, to permit charitable organizations to exist in perpetuity. Charitable purposes were being construed quite broadly at this point (even if some southern courts did not view emancipation of slaves as a charitable purpose). Some similar anti-perpetuities language continued to appear in state constitutions into the early twentieth century (such as my beloved Oklahoma).
Horowitz and Sitkoff argue perpetual trusts are unconstitutional in the nine states that have these anti-perpetuity clauses in their state constitutions. I must say that I agree. I would add a little more even to their case. That Americans of the founding generation feared the concentration of wealth that was represented by perpetuities. Though Horowitz and Sitkoff do not cite John Adams' "Dissertation on the Feudal and Canon Law" they might in this paper, for I think it reflects the founding generation's fear of property law they loosely linked to feudalism. As Americans we love our property -- and we reflected this love in our landscape art in the years before Civil War. We were also afraid of property, however. We were afraid of it in the hands of churches (hence I think the skepticism of a trust in Philadelphia Baptist Association in 1819). I think this is also reflected in North Carolina opinions in the pre-Civil War era that restricted spendthrift trusts. (One example of this is Justice Thomas Ruffin's opinion in Mebane v. Mebane, 4 Ired. Eq. 131 (1845).)
We are also afraid of property in the hands of individuals that was passed down through generations. This is reflected in the anti-rent movement in New York from the late 1830s to the early 1850s. You may recall that some of the feudal incidents that the "tenants" complained about were struck down as inconsistent with the value of political equality in Overbaugh v. Patrie, 8 Barb. 28 (NY Sup. Ct. 1852). This is part of what I see as the anti-feudal strain in American property law. The restriction on perpetuities in the North Carolina Constitution is another part of this. (And long time readers of faculty lounge may recall my talking about the anti-feudal strain in American thought in The Great Gatsby!)
Anyway, there's a lot more to be said about why property was feared and how (or whether) that ought to shape our interpretation of constitutional provisions that reflect a fear of concentrations of property. I think you're going to be hearing a lot more about Horowitz and Sitkoff's work as these questions work their way through state courts.
Also, Josh Tate's commentary on this paper, which will also appear in the Vanderbilt Law Review, is up on ssrn. I hope to have a separate post devoted to his apt thoughts on the explanation of change (and difference) sometime soon.
From an email message that I received in recent days:
The Editorial Board of The Business Lawyer is soliciting submission of articles and essays for Volume 70. TBL is the flagship scholarly journal of the American Bar Association Section of Business Law. It reaches 40,000 readers on a quarterly basis. Authors must submit exclusively to the journal and submissions are peer-reviewed. We generally give authors a response in about two weeks. TBL provides a good forum to reframe scholarly articles published elsewhere for an audience of judges and practitioners. Past authors include Lucian Bebchuk, Barbara Black, Bernie Black, Starvros Gadinis, Joe Grundfest, Henry Hu, Roberta Karmel, Jonathan Lipson, Vice Chancellor Leo Strine, Guhan Subramanian, and former Chief Justice of the Delaware Supreme Court Justice Norman Veasey.
With a new faculty hiring season approaching (presumably . . . hopefully), I want to discuss the value of significant practice experience for tenure track ("TT") law professors.
My thoughts on this topic are ultimately self-serving and informed by my own experience as I practiced for 11.5 years before becoming a full-time professor. I was unpleasantly surprised by the prevailing wisdom regarding practice experience when I went to the meat market in 2010. Back then the conventional wisdom seemed to be as follows: Ideal: zero to 3 years of practice; Acceptable: 3-5 years of practice; Potentially Disqualiying: more than 5 years of practice up to 10 years of practice; Disqualifying: more than 10 years of practice. [Of course, the conventional wisdom does not hold at all schools and for all candidates -- I got a job; Jeff Lipshaw practiced for 25 years; many others in the academy have significant practice experience. However, if you read through the comments on the linked post above, profs from the T14 to the fourth tier made similar comments and acknowledged the prevailing view.]
The primary justifications I have heard for disfavoring those with significant practice experience are (1) that there are often questions regarding the motives for leaving practice (i.e., couldn't cut it, looking to "retire and teach" [HA!], etc.); (2) that "practice rots the brain" (HA! again); (3) that practitioners will not be able to produce "valuable" scholarship (which reflects the perceived bias against doctrinal scholarship in the academy); and (4) that a practitioner will just tell a bunch of war stories in the classroom and not actually teach. I think each of these justifications reflects a broad, unfair, and inaccurate stereotype of experienced practitioners.
This issue has taken on added relevance over the last year or more given the changes taking place in legal education and in the larger legal economy. (See, for example, this post from PrawfsBlawg, and this one and this one from Conglomerate, this one and this one from ProfessorBainbridge, and, of course, a vast number of message board comments [including some on the foregoing posts]). There is a greater focus on the need for experiential education for all law students (due to ABA mandates and otherwise) and on the aspiration that law schools produce something close to "practice ready" lawyers.
The New York Court of Appeals has amended the state's bar admission rules to allow law students who are completing their final semester - and participating in the state's new pro bono practice program - to sit for the bar in their final term. Given that most smaller firms and public interest agencies prefer to hire members of the bar - and often wait for bar results to hire - this program offers a significant advantage to participants. The new rule is here.
I won't be surprised if this move spreads to additional states - and without some of the complexities of, say, Arizona's early bar exam program.
We've been waiting for the June LSAT administration numbers for a while. There is a rumor afloat that there were 21,802 LSAT test takers for the June 2014 administration. This is down 9.1% from June 2013. Moreover, the volume of first-time test takers in June 2014 was down approximately 14% from June 2013.
When I first saw the Pittsboro County, VA confederate monument I thought he was facing south. That surprised me because it would be a big no, no -- as people obsessed with these things will tell you. I now think he's facing more west than south. But whatever. All of this reminds me that I want to ask a two-part trivia question related to a Confederate monument in twentieth century fiction. First, where is the following passage from? Sure you can google this, but I think it'll be pretty obvious at the least the author, even if not the book.
[E]pilogue and epitaph, because apparently neither the U.D.C. ladies who instigated and bought the monument, nor the architect who designed it nor the masons who erected it had noticed that the marble eyes under the shading marble palm stared not toward the north and the enemy, but toward the south, toward (if anything) his own rear -- looking perhaps, the wits said (could say now, with the old war thirty-five years past and you could even joke about it -- except the women, the ladies, the unsurrendered, the irreconcilable, who even after another thirty-five years would still get up and stalk out of picture houses showing Gone with the Wind), for reinforcements; or perhaps not a combat soldier at all, but a provost marshal's man looking for deserters, or perhaps himself for a safe place to run to: because that old war was dead; the sons of those tottering old men in gray had already died in blue coats in Cuba, the macabre mementos and testimonials and shrines of the new war already usurping the earth ....
Drexel University School of Law will be hosting the second Mid-Atlantic Law And Society Association (MALSA) Conference on Saturday, October 18, 2014. The conference is aimed at work that Paper and panel proposals are due July 15, 2014. Full details follow:
We seek papers, panels, and roundtables aimed at stimulating conversations that build bridges across the range of law and society topics and disciplines. Proposals for individual papers and fully formed sessions are welcome. We also invite scholars new to law and society research to submit their ideas-‐in-‐ progress for Socio-‐Legal Individual Mentoring (SLIM) sessions, where they can receive individualized feedback on substance and/or methods from an experienced law & society scholar about how to turn an idea into a research project (subject to availability of senior mentors with relevant expertise).
Accepted papers will draw on theoretical and empirical sociolegal scholarship. Papers focused solely on doctrinal analysis are unlikely to be invited. Though presentations on any topic are welcome, we are especially interested in panels that focus on areas of current interest and controversy in the region, such as fracking, specialized criminal justice diversion programs, or decriminalization of marijuana, or that could bring together practitioners and scholars.
The deadline for all proposals is July 15, 2014. Proposals should include an abstract of approximately 250 words; panel proposals should include a list of participants. You may also use the link below to volunteer to serve as a panel chair/discussant or to serve as a SLIM senior scholar for a colleague seeking to develop a sociolegal research project. Accepted presenters will be notified by August 15.
The Richmond Times Dispatchhas the details of the resolution of the controversy over the Confederate flags at the Lee Chapel. The short version is that the replica flags, which have been there since the 1990s, will come down. (The original flags were placed there in the 1930s.) Then original flags from the Confederate Literary Society (which operates the White House of the Confederacy) will be displayed on a rotating basis. Close readers of the faculty lounge may recall that in the early twentieth century Congress authorized the War Department to return captured Confederate flags to their states (or when they could not be matched to a state, to the Confederate Literary Society in Richmond).
The University of Oklahoma College of Law is recruiting outstanding faculty to our flagship state law school. Over the past decade, the College of Law has built world class facilities, attracted exceptional students and faculty, and dramatically increased endowed faculty positions and resources. We are committed to building on this momentum and seek to hire up to two faculty candidates this year for tenure‐track positions or tenured positions at the ranks of Assistant, Associate or full Professor. We have particular curricular needs in Administrative Law, Professional Responsibility and Civil Procedure, but invite highly qualified applicants regardless of field.
The University Of Oklahoma is located in Norman, a college town near Oklahoma City which has been recognized nationally as one of the best places to live. As an equal opportunity employer, the University encourages applications from women, members of minority groups, and others who would further diversify our faculty. Protected veterans and individuals with disabilities are encouraged to apply. Applicants should possess a J.D. or equivalent academic degree, strong academic credentials, and demonstrate a commitment to excellence in teaching and scholarship. Application review will begin immediately, but the positions will remain open until filled. Please contact Mary Sue Backus, Chair of Faculty Appointments Committee, University of Oklahoma College of Law, 300 Timberdell Rd., Norman, OK 73019 or email@example.com.
Professor Raymond Ku and Case Western Reserve University have settled their differences. Ku, a professor at Case Law, sued the University claiming that then-Dean Lawrence Mitchell retaliated against Ku for reporting Mitchell's alleged acts of sexual harassment. Ku will become the Director of the newly created Center for Cyberspace Law and Policy.
The statement regarding the settlement, which oddly includes a bit of puffery about the law school, is here.
It's been about a month since the LSAC last updated their data on applicants for fall 2014. They are now reporting that "As of 7/04/14, there are 347,967 fall 2014 applications submitted by 53,104 applicants. Applicants are down 7.4% and applications are down 8.6% from 2013. Last year at this time, we had 97% of the preliminary final applicant count." If this year's applicants follow last year's pattern, we'll have approximately 54,746 total applicants for the class entering in fall 2014. Dan Filler has some historical data on the first year enrollment from 1964 to 2012 here. I link to some more comprehensive data (going back to the 1940s) here.
The Civil Procedure Section of the AALS will present a panel, “The Rising Bar to Federal Courts: Beyond Pleading and Discovery,” at the 2015 AALS Annual Meeting in Washington, D.C. The panel will run from 10:30 a.m. to 12:15 p.m. on Saturday, January 3, 2015.
This panel brings together a group of people with different roles and perspectives to provide insights and commentary on the effects of civil procedure rules and doctrine on the current federal court docket. Confirmed outside speakers include a United States District Court judge, an empirical researcher from the Federal Judicial Center, a plaintiffs’ side attorney, and a lawyer from the defense bar.
The Section seeks 1-2 academic speakers/papers for further perspective on how developments in rules and case law are acting at the federal trial court level to affect and restrict the nature of the court docket. While tremendous attention has been given to Twombly/Iqbal and discovery rules, our panel seeks to go beyond these two “usual suspects” to focus on other developments in doctrine and rulemaking that also alter the potential for court access, including, but not limited to, issues around personal jurisdiction, mandatory ADR, transnational litigation, and class actions.
The selected author(s) will present their papers at the AALS annual meeting in January 2015 in Washington, D.C. Neither the AALS nor the Section is able to provide travel funding. The selected authors and all panelists will have the opportunity to publish their papers in the Journal of Civil Rights and Economic Development (St. John’s Law School), subject to final approval by the journal editors.
All draft papers must be submitted by Tuesday, September 2, 2014. Please send submissions to Rebecca Hollander-Blumoff, Chair of the Section on Civil Procedure, by email to firstname.lastname@example.org. Respondents will be notified of the Section’s decision by the end of September.
The University of Maine School of Law invites inquiries, nominations, and applications for the position of Dean, with an anticipated start date of July 1, 2015. The Law School seeks a Dean with a successful track record of administrative and fiscal leadership experience and one who possesses the vision, energy, and determination to lead the school. The successful candidate will be an innovative, entrepreneurial, and collaborative leader who can bring diverse stakeholders together to enhance and build on the Law School’s existing strengths.
The University of Maine School of Law has a student body of approximately 275, an intentionally small size allowing for extensive faculty-student contact and fostering a strong sense of community. The Law School provides our students with a rigorous and innovative curriculum that blends traditional theory with diverse opportunities for experiential learning. Students work closely with a talented, collegial faculty that is engaged locally and nationally in both public service and high-level scholarship. The Law School is located in Portland, Maine, a city that consistently ranks at or near the top of national lists that evaluate quality of life, and which offers all the cultural and entertainment amenities of any metropolitan area but on a livable scale.
To review the full position description and information about the application process, please visit: http://mainelaw.maine.edu/dean-search/
Very excited about Heidi Rickes' new article on ideas about law and political theory in circulation on the campus of Davidson College from its founding in the late 1830s to the Civil War. This is largely based on addresses to the two literary societies by outside speakers, but Heidi also uses debate topics at the two literary societies and the subjects of few student graduation speeches. And then she links those ideas to some of the decisions by the North Carolina Supreme Court and some of the legislature's debates over internal improvements. I think there are two important points that emerge from this. First, there is the methodoligical point that we should be using oratory before the War to study ideas about obedience to law, utility, duty, vested rights, Union and a whole host of other ideas. While oratory's made a strong showing in the historical literature in recent years I don't think its promise has been fully realized by legal historians (with a few notable exceptions like Robert Ferguson). Second, Heidi shows again -- as we've been hearing from people like Daniel Walker Howe, Lawrence Kohl, G. Edward White, and William Fisher -- Whig ideas of Union, ordered liberty, and economic and moral progress were central to colleges and to the judiciary as well. This links again elite institutions like colleges and courts in a common cultural mission. That those ideas were unable to constrain us from Civil War is one of the topics I hope Heidi and others will explore in depth in follow-up projects. You can read the full paper, "Jurisprudence at Davidson College Before the Civil War," at ssrn.
Close readers of the faculty lounge may recall that some years ago I wrote about the possibilities of work on Davidson College. I'm delighted that Heidi's mined all of that and more. The paper's terrific and I'm looking forward to a lot more like it soon -- including, I am rather reliably informed, something on William and Mary, which should prove a pretty good comparison with Davidson's moderate, Presbyterian ideas. And maybe one of these days there'll be a paper on Wake Forest, too -- had a terrific time in the archives today reading debate topics from the Wake literary societies.
The image is of Davidson's Philanthropic Literary Society building.
The AALS is organizing a cr0ss-cutting session at the January 2015 meeting entitled The More Things Change…Exploring Solutions to Persisting Discrimination in Legal Academia. The organizers have already planned a panel and are now soliciting contributions for the open-mic portion of the session. Full details in this AALS call for remarks.