An article in my SSRN feed caught my eye this week: Where Have All the Patent Lawyers Gone? Long Time Passing... by Kenneth L. Port, Lucas Hjelle, and Molly Rose Litman (William Mitchell; Schwegman, Lundberg and Woessner; William Mitchell student).
The paper makes a pretty bold assertion - that the number of new patent lawyers is going to drop by 50% in the next three years. This is not necessarily surprising - after all, new law student enrollments are dropping. But not by 50%. Further, their prediction is not just conjecture or fancy econometrics - they look at the number of LSAT takers qualified to take the patent bar, and find that only 600 in the whole country were so qualified this year. Given that about 80% of qualified law students actually enter the patent bar, the numbers are looking to be south of 500 in 2018. By comparison, the number hovered between 800 and 1200 between 2003 and 2014. So that's that. Then why is this a curious case?
Touro School of Law has just published the inaugural issue of the Journal of Experiential Learning. Dean Martin Katz' article "Understanding the Costs of Experiential Learning" may be of particular interest to readers here. I suspect a lot of the articles will be of interest.
In a comment to one of my prior posts, Barry pointed out that backlash may not be the right way to see the immediate period after Roe v. Wade, since there is some evidence that the Religious Right did not develop a firm anti-abortion position until several years later. This is a really good point, and serves as a nice lead-in to this entry, which highlights the excellent work on this topic being done by Mary Ziegler (one of the presenters at the Legal History panel at AALS).
In particular, through extensive oral interviews and archival research, Mary has unearthed an intriguing and complicating counter-narrative to the commonly held view that Roe itself polarized political and social dialogue over abortion and abruptly halted political compromises and outcomes. To the contrary, Mary’s work shows that after Roe, advocates on both sides of the abortion issue initially sought compromise positions: some moderate pro-life advocates explored pro-feminist supports for a range of reproductive choices for women, and some members of the pro-choice movement explored positions and policies that recognized some level of fetal rights.
While Mary acknowledges that Roe affected the debates and positions, she rejects the idea that it played the dominant role attributed to it by many, including both Justices Ginsburg and Scalia. Mary concentrates on the political shifts that were taking place simultaneously, in particular the rise of the New Right and its alliance in the late-70s with the emerging Religious Right. Her work shows how the political dynamics shaping and reforming the Republican and Democratic Parties overwhelmed the other possible alliances and initiatives surrounding reproductive policies and women’s rights.
I am really looking forward to reading Mary’s book, After Roe: The Lost History of the Abortion Debate, which will be available from Harvard University Press this coming May. For those of you who can’t wait that long, Mary’s recent article, Beyond Backlash: Legal History, Polarization, and Roe v. Wade, 71 Wash. & Lee L. Rev. 969, covers some aspects of this study and is also well worth a read (as are other articles from that volume, a 40th Anniversary symposium about Roe.) Unfortunately that volume is right now only available through Hein, Lexis, or Westlaw, so I cannot link you there. You can get it at W&L's Scholarly Commons. (h/t to cm for this)
Mike Simkovic has a new paper up on ssrn, "Distortionary Taxation of Human Capital Acquisition Costs." Cribbing now from the abstract:
High pre-tax rates of return to post-secondary education suggest underinvestment in higher education. Traditional explanations in the labor economics literature seem insufficient to explain the magnitude and persistence of these unusually high returns. This article proposes a novel explanation: distortionary taxation.
Economic theory suggests that inconsistent tax treatment of investments that are substitutes for one another distorts investment decisions and drives down investments in the disfavored investment relative to the favored investment. Differences in the tax treatment of higher education relative to other forms of investment could create an undersupply of educated labor relative to physical or financial capital. Such distortions would reduce economic growth and social welfare.
Part I of this article reviews empirical evidence linking higher education to increased earnings and economic growth, considers dual consumption and investment motives, and reviews the literature on student responsiveness to financial incentives; Part II reviews the empirical evidence on whether the level of investment in higher education is at, below, or above the optimal level and finds unusually high rates of return consistent with underinvestment; Part III presents a formal mathematical model illustrating the link between tax rates and rates of return; Part IV reviews optimal tax theory and the distortion problem; Part V contrasts taxation of favored investments with taxation of higher education; Part VI considers policy options to offset tax distortions.
When I went to law school (I graduated from Harvard in 1994), no one ever mentioned the bar exam. In fact, I don’t remember a single one of my professors discussing what subjects from their course were likely to be covered on the bar exam, for example. That is not to say that what they were teaching us was not useful preparation for the bar exam or that the courses didn’t cover some of the material that we needed to know for the bar exam, because it was and they did. My professors taught us how to think critically, how to approach problems from different perspectives, how to apply law to facts. Along the way, we learned quite a bit of substantive law as well. I had Arthur Miller for Civil Procedure, a year-long course. He taught exclusively using the Socratic method. There were no handouts, and certainly no PowerPoint slides (was PowerPoint even invented back then?), but he was the best teacher I ever had. He inspired us, partially through fear and intimidation, partially through a desire to please and impress him, and partially by setting an example of meticulous preparation and consummate professionalism, to study harder than we ever had before. And I learned a lot of civil procedure.
In my third year of law school, I signed up for the Pennsylvania and New Jersey bar examinations, which were offered back to back, and enrolled in BarBri, which my father, then Dean at Widener Law School, assured me was far and away the best bar prep course available. I followed the BarBri program and I easily passed both bar exams. I felt at the time that I probably could have just skipped the last two years of law school and passed the bar just by taking BarBri, because the subject matter review was so comprehensive, and because I had mastered the basic form of the law school exam essay by the end of the first year. I do not mean to imply that the last two years of law school were a waste of my time. Quite the contrary, I look back on those years as one of the most fulfilling and exciting times of my life, and I learned a lot. My point is that I took hardly any courses that were bar-tested in my second and third years, so the bar review was mostly a review of my first year courses.
When I started teaching law in 2005 at Western State University College of Law in Fullerton California after a decade of practicing law, I quickly realized that for students who are not naturally gifted standardized exam takers and essay writers, the standard bar review course at the end of law school was, in many cases, not enough to help them achieve a passing score on the bar. This was especially true in California, where the exam was longer (3 days), more difficult (with a higher cut line) and tested more topics than the bars I had taken.
One potential method to help prepare students for the bar exam was to provide an in-house bar review/bar prep program to be taken prior to graduation, before the student started the traditional bar review course. For a long time, the ABA Standards did not permit students to earn credit towards graduation for such a bar exam prep course. This rule was modified in 2004-5 to permit students to earn credit for an in house bar exam prep course, but the credit couldn’t count toward the minimum classroom instruction time required by Standard 304, and law schools were not permitted to required a bar exam prep course as a condition of graduation. As a result of these rules, in house bar prep programs in 2005-2007 largely consisted of sparsely attended voluntary evening and weekend workshops. In the summer of 2008, ABA Standard 302 was revised (by eliminating Interpretation 302-7) to permit bar preparation courses to be offered for credit, to allow such credit to count towards the minimum requirements for graduation, and to permit law schools to require such courses to be a required part of the curriculum for some or all students.
In my last two posts, I introduced a new form of cross border kidney paired donation – Reverse Transplant Tourism (or “RTT”) -- that Mike Rees and I propose in a recently published article. To recap, under RTT a biologically incompatible US pair, Amanda and Bob, engages in a kidney swap with a compatible Mexican pair, Carlos and Diana, who have no practical access to transplantation because the Mexican public health care system pays for transplantation but not immunosuppression. RTT leverages the substantial cost savings of transplantation over dialysis to pay for immunosuppressant drugs for Diana, in exchange for an agreement by Carlos and Diana to enter into a kidney swap with Amanda and Bob.
Bob has a new kidney, Diana has a new kidney, Bob’s insurance company saves money, and the Mexican government is on the hook for no more than its usual expenses. But NOTA (The National Organ Transplant Act), which prohibits “valuable consideration” for the acquisition, receipt, or transfer of any human organ lurks in the background. Why does RTT not violate NOTA? We argue that RTT passes muster under NOTA due to a combination of three unusual characteristics of the exchange: (1) Carlos’s perfect-world donative intent, (2) Carlos’s altruistic motivation, and (3) the medical necessity of the benefit received in the swap (Diana’s immunosuppression).
First, let me explain the concept of “perfect world donative intent,” which we think is very important to an analysis of the legality of RTT or any other transplant transaction. RTT differs in one important respect from other inducement schemes that arguably qualify as valuable consideration under NOTA: RTT does not provide an inducement to donate an organ. Rather, RTT provides an inducement for someone who, in a perfect world free of financial and immunological barriers, would altruistically donate an organ to a friend or family member, to instead donate that same organ to someone else. Once this is recognized, it becomes clear how and why RTT does not run afoul of standard objections to inducements to donate.
Second, Carlos’s motivation for the exchange is altruistic: He wants to benefit Diana rather than himself. These two factors distinguish RTT from other common proposals to increase the organ supply through inducements, such as financial incentives that accrue directly to the donor.
Finally, the benefit in question—Diana’s immunosuppression—is incidental to and medically necessary for the transplant to succeed. For all of these reasons and others, we believe that RTT is sufficiently similar to currently accepted practices, such as kidney-paired donation and NEAD (non-simultaneous, altruistic donor) chains, that it does not violate NOTA.
In sum, the need for transplantable kidneys far exceeds supply. In the face of NOTA’s restrictions on valuable consideration, creative solutions to the organ shortage are needed. It is even better when those solutions also reduce the costs associated with end stage renal disease.
RTT accomplishes both of those goals. Instead of non-U.S. kidney donors being offered money through a black-market middleman in exchange for one of their kidneys, we believe that RTT would provide a legal and ethical exchange of living-donor kidneys through kidney-paired donation. In this way, the donors will not receive money for their kidneys, but rather will receive a transplant for someone they love.
You can read the full paper here.
In my last post, I began discussing a new form of cross border kidney exchange, Reverse Transplant Tourism (or “RTT”), that Mike Rees and I propose in a recently published paper. To recap, RTT envisions a kidney swap between a biologically incompatible US pair and a foreign compatible pair who nonetheless have no practical access to transplantation for economic reasons. In the example chosen, Mexico, the state health care system pays for dialysis and transplantation, but not the immunosuppression necessary to prevent the body’s rejection of a transplanted kidney. As a result, transplantation is realistically available only to Mexican citizens with independent access to such drugs – i.e. they are wealthy enough to pay for it themselves or have access to philanthropic aid.
RTT proposes to leverage the substantial cost savings of transplantation over dialysis to pay for immunosuppressant drugs for Diana, in exchange for an agreement by Carlos and Diana to enter into a kidney swap with Amanda and Bob. Thus, as shown in the accompanying figure, Amanda transplants to Diana, Carlos transplants to Bob, and the money saved from Bob’s ongoing dialysis is used to pay for the immunosuppressant drugs that Diana otherwise could not get.
Bob has a new kidney, Diana has a new kidney, Bob’s insurance company saves money, and the Mexican government is on the hook for no more than its usual expenses. Everyone is happy. Who could possibly object to such a welfare-improving transaction?
Arguably, someone familiar with the National Organ Transplant Act (“NOTA”), though as we detail at great length in the paper, neither the statute’s text, legislative history, nor underlying policy goals suggest that NOTA was meant to apply to RTT. NOTA prohibits the knowing acquisition, receipt, or transfer of “any human organ for valuable consideration for use in human transplantation if the transfer affects interstate commerce.” NOTA does not define the term valuable consideration and, as we detail in the paper and I have discussed in previous posts, the Act’s legislative history provides almost no guidance regarding the meaning of the term beyond the obvious legislative concerns of “buying,” “selling,” and “commerce” in human organs. Indeed, a careful reading of the legislative history of NOTA (which I undertake in the paper) suggests that Congress paid little, if any, attention to the possible meanings of and ambiguities in the phrase “valuable consideration.”
That leaves an analysis of the possible public policy goals animating NOTA’s ban against valuable consideration. In our paper, Mike and I analyze those public policy goals and demonstrate that RTT does not run afoul of any of them. In fact, RTT actually minimizes some public policy concerns better than current transplant practices do.
In my next post, I’ll discuss the public policy goals that might have animated NOTA in more detail, and demonstrate why those public policies suggest that RTT does not violate NOTA.
I promised that I would talk some more about the articles in the Law & Contemporary Problems volume, Organs & Inducements, that was just published. So today I’d like to talk about my article with Mike Rees, Reverse Transplant Tourism.
The short version is that Reverse Transplant Tourism (“RTT”) is a new form of cross-border kidney paired donation. Such kidney exchanges, in which patients with willing but incompatible living kidney donors exchange their donors’ kidneys, have already become common in the United States. But RTT takes the standard kidney exchange a step further, by expanding it to poor patients outside of the United States who have a willing donor, but who are not able to afford a transplant.
We label the procedure “reverse transplant tourism” for a few reasons, intending a play on words. One meaning is literal – in transplant tourism, patients from rich countries typically travel to poorer ones seeking a donor willing to trade a kidney for cash payments. Under RTT, patients from poor countries travel to rich ones, in order to obtain a transplant that could not be performed in their home country, due to their poverty and the limitations of their national healthcare system. In addition, RTT could “reverse” many of the negative effects of illegal transplant tourism by avoiding its organ-deficit problem (rather than a net outflow of kidneys from the developing to developed world, RTT matches kidney inflows to outflows) and by building on the system of protections for donors and recipients already present in the U.S transplant system. In the process, RTT helps an ailing American patient whose willing donor is biologically incompatible.
To illustrate, let’s begin with the common kidney swap. Suppose that Amanda wants to donate a kidney to Bob but is unable to do so, either because their blood types do not match or because there is some other incompatibility. Another pair, Carlos and Diana, faces the same problem. However, Carlos is compatible with Bob, and Amanda is compatible with Diana. By swapping, as illustrated in figure 1, the kidney swap enables two transplants, providing both Bob and Diana with a compatible kidney. Although kidney exchange began with this type of two-pair exchange, longer exchanges and chains of transplants have recently come to dominate.
Imagine now, however, that Carlos and Diana, rather than facing biological incompatibility, face a different problem: They are poor and live in a country where poverty is a barrier to transplantation – let’s assume Mexico, which does not pay for all of the necessary costs of transplantation. As illustrated in figure 2, RTT can help both Bob and Diana, allowing each to receive a kidney that they otherwise could not—in Bob’s case because of his biological incompatibility with Amanda, and in Diana’s case because of her poverty and lack of adequate health care coverage.
Because transplantation is much less expensive than dialysis, RTT both saves money and transplants two patients who otherwise could not obtain one – in one case because of biological incompatibility and, in the other, due to lack of access to health care coverage.
In my next post, I’ll provide some more details regarding RTT, explain why it ultimately saves money, and discuss the applicability of NOTA. In the meantime, you can read the full paper here.
The latest issue of Law & Contemporary Problems is now out and you can access all of the articles in the volume online (see the embedded webpage below, or go here). This issue, edited by Phil Cook and me, features articles from law, medicine, economics, and more. Each paper addresses the ethics, laws, and other issues relating to inducements for organ donation. I'll be back with more to say about specific papers in the volume, but in the meantime, there are very few other sources that tackle this question so specifically or in such depth. Prior posts on the Organs & Inducements symposium are here and here.
I'm delighted to report that the Journal of Legal Education has issued a call for book reviews and book review proposals. Cribbing now from their proposal:
The Journal of Legal Educaiton (JLE) believes that review essays constitute an important means of communicating scholarly ideas and are particularly well-suited to facilitating dialogue and engagement within and among the legal scholarly community. Accordingly, the JLE has adopted a policy of dedicating space in all of its print issues to the publication of timely reviews of books related to the law (broadly defined). Although the JLE’s editors generally prefer to review complete drafts of proposed review essays, would-be authors are also welcome to submit book review proposals. Review essay proposals should, in a clear and concise manner, address (1) the reasons the book at issue merits a published review (including its general importance and the relevance/novelty of its contribution to the relevant field), (2) the proposer’s suitability for authoring a review (including specifically familiarity or knowledge of the relevant field of law, as well as prior scholarly publications in the field), (3) the main argument or arguments that the reviewer would advance in the review essay, and(4) whether other reviews of the book already have been published, and if, so, why the proposed review would add something important and new. There is no deadline for submissions of review essay manuscripts and proposals. All submissions will be considered on a rolling basis for possible publication in the JLE.. Manuscripts and review proposals should be submitted to either Professor Margaret Woo at email@example.com or Dean Jeremy Paul at firstname.lastname@example.org, the co-editors of the JLE.
Their full call for review essays is here. I've been pleased to see that over the past few years the JLE has increased the reviews they're publishing. We all too rarely take the opportunity to assess recent monographs and over the past decade or so, many law reviews have stopped publishing essay reviews. So I am very excited by this project. I want to add that I'm delighted to have an essay review of Kirt von Daacke's very important new book Freedom Has A Face in the JLE. Kirt's book, which is part of a wholesale reassessment of free people of African descent in the slave-owning south, speaks the nature of the rule of law in the old south. When that essay review appears I'll talk a lot more about Kirt's book and how it is propelling more research.
Next Friday, September 19, the Michigan Journal of Race and Law will host a symposium celebrating the journal's twenty years. Cribbing from the announcement:
We will look back at the Journal and its leadership in the field. We will also launch the Journal’s next twenty years, highlighting new directions in scholarship at the intersection of race and law. Program participants include Michigan Law alums Todd Aagaard, ’97, Jasmine Abdel-Khalik, ’00, Jeannine Bell, ’99, Guy-Uriel Charles, ’96, Gabriel “Jack” Chin, ’88, Meera Deo, ’00, Matthew Fletcher, ’97, Luis Fuentes-Rower, ’97, Elizabeth Hinson, ’11, Emily Houh, ’96, Travis Richardson, ’96, Tom Romero II, ’04, Hardy Vieux, ’97, Adam Wolf, ’01, and keynote speaker Dr. Mary Frances Berry, ’70.
Since its founding, the Journal has been a platform for the exploration of issues relating to race, law, and civil rights. It is recognized for publishing cutting edge scholarship that is innovative and probing, including critical race theory, law and economics, immigration, education, criminal justice, and beyond. The Journal takes pride in the many perspectives it embraces, publishing the views of scholars, students, practitioners, and social scientists. Today, the Journal is nationally recognized as a leading journal in the field of civil rights.
The schedule is as follows:
I want to mention that a powerful and moving collection, Letters to My Younger Self, is now out from Serving House Press. It consists of letters written as part of an English class that my friend Jayne Thompson taught at Graterford Prison; they are written from the perspective of the students giving advice to themselves at a younger age, or sometimes to their children or parents. I highly, highly recommend the volume. The letters are powerfully and beautifully written and set loose a wide range of emotions. You really get a sense of how the students have thought about what set them on the path they're on and how they'd try to redirect others. Many sometimes talk about the extraordinary violence of their pasts and they in no way are making excuses or minimizing their violence -- but you do get a powerful sense of the humanity of the authors, which I don't think often comes through in the academic writing about the prison system in our country.
Several of the letters particularly stuck in my mind -- one is about a child who received a dog (a pit bull, as it happens) for his eleventh birthday. He took the dog with him when he fought other children because it wouldn't run away -- as his friends did; and when he got in serious trouble a few years later and was sent away, his grandmother got rid of the dog. The last line of the letter is "when I realized the dog was gone for good, I realized my heart was gone, too."
Another letter is about life inside Graterford, where the writer observes a flock of canadian geese flying overhead. "Beauty knows no boundaries" is one of the writer's insights from this.
For me the most powerful is a lengthy letter by a man who stabbed and seriously wounded a rival gang member, then was attacked by the rival gang. The man's brother was almost killed in the attack. I can't begin to do justice to the compelling writing. You should check it out yourself -- and I highly recommend this and I hope you'll pass this recommendation along to your favorite librarian, too.
Thanks to Al and Dan and everyone at The Faculty Lounge for letting me sit a spell with y'all. As Al mentioned in his intro, I write about and teach civil procedure, employment discrimination, employment law and related subjects. In addition to the Utah Law Review, my work has appeared in the Rutgers Law Review and in the California Law Review Circuit. I practiced for 11½ years (to the day) before making the leap into full time teaching in 2011. Given my background, I teach both doctrinal courses (into which I often infuse skills) and skills courses (into which I often infuse doctrine).
During my sojourn in the Lounge, I hope to engage in some discussions related to teaching, curricular reform, experiential education, and, perhaps, such exciting topics as factual causation standards, grammar in Supreme Court opinions, and the impact of judicial nominations on the decision making of the lower federal courts. I will assume you are all waiting with bated breath.
I've already written about some of the books I'm looking forward to reading this spring, such as Robert Ferguson's Inferno: Anatomy of American Punishment and John W. Compton's The Evangelical Origins of the Living Constitution. Both of those will be published by Harvard University Press in the spring. I now want to branch out to Cambridge University Press' spring list and talk about Sarah N. Roth's expansive volume, Gender and Race in Antebellum Popular Culture. Cribbing now from the CUP website:
In the decades leading to the Civil War, popular conceptions of African American men shifted dramatically. The savage slave featured in 1830s' novels and stories gave way by the 1850s to the less-threatening humble black martyr. This radical reshaping of black masculinity in American culture occurred at the same time that the reading and writing of popular narratives were emerging as largely feminine enterprises. In a society where women wielded little official power, white female authors exalted white femininity, using narrative forms such as autobiographies, novels, short stories, visual images, and plays, by stressing differences that made white women appear superior to male slaves. This book argues that white women, as creators and consumers of popular culture media, played a pivotal role in the demasculinization of black men during the antebellum period, and consequently had a vital impact on the political landscape of antebellum and Civil War–era America through their powerful influence on popular culture.
I had the chance to read an earlier draft of this book and I have to say that I'm really excited to see the final version. She talks about a lot of literature that I'd never heard of -- including some outrageously proslavery science fiction and some other really obscure work. This will expand dramatically the sense of antebellum fictional literature. Though Roth's interest is largely in the fictional literature of both the anti-slavery and the pro-slavery sides, I think the dramatically changing images of men of African descent can be very readily and profitably applied to the judiciary. (The short version here is that in the 1820s/1830s enslaved men were depicted as savages by both anti-slavery and proslavery literature. That shifted in the 1840s and 1850s as abolitionists depicted enslaved men (and other men of African descent) as people deserving citizenship. The proslavery forces responded to that critique by accepting -- largely -- that men of African descent were not savages. The proslavery forces replaced that with an image of enslaved people generally as happy and child-like, not vicious and rebellious.)
What interests me is that this framework correlates with what was happening in state legislatures and also in the judiciary. I want to look closely at cases where judges discuss slaves' character -- such as cases involving torts by slaves against white people and against each other, cases invovling slaves' rights to freedom following travel in free states and because of the wills of their owners, and even criminal prosecutions. Based on some as yet unscientific looks at judicial opinions I think that southern judges were talking in similar terms to Roth's subjects about slave personality over the period 1830 to the mid-1850s. (And I think this follows, generally, academic thought, too. On this I'm going to have a lot more to say right soon.) But one thing that I notice in particular is that as the Civil War approached -- like in the late 1850s -- southern judges were talking again in dramatic terms about men of African decsent as savages. That is, as they prepared for war the talk turned -- unsurprisingly -- to enslaved men as savages who had the power to wreck havoc and maybe even destroy the white slave-owning south. Justice Harris' viciously proslavery opinion in Mitchell v. Wells in 1859 is an example of this. I'd like to write an essay about this once the book comes out, because I think this is a very good way of thinking about the sine curve of proslavery southern thought, 1830 to 1860, especially in the judiciary.
But that's dealing really with only a part of Roth's book; the majority of it is focused on the depiction of enslaved men in antislavery literature. One thing that I like about this -- and I should also say I find bold (or maybe brave is a better word?!) -- is the sense that white women were not just gauges of changing attitudes towards enslaved men, but their widely-read literature helped change the dominant image of them. That is, white women in particular helped free enslaved men. This is certainly true to some extent -- Harriet Beecher Stowe is a key person here. (I've written some about her assessment of jurisprudence and I think it a fairly easily supported case that she not only critiqued law but helped change attitudes towards it. Caleb Smith's written about this too, of late.) The key question is just how much the independent variable of antislavery fictional literature produced by white women contributed to the the multiple regression equation that explains the huge change in our nation's attitudes towards enslaved people (and men in particular). On this I suspect there will be a very lively debate coming soon to the history journals.
And with that I'll say happy new year!
The illustration is a print of the Nat Turner rebellion, which is from the early era of Roth's study, when enslaved men were depicted as savages.
Thanksgiving is always a good time for non-Natives to reflect on the colonial history of the United States and particularly the lands that have been granted by tribes in some cases and, in others, taken forcibly or through patently unfair negotiations. And this term, a case pending before the Supreme Court raises these very issues. As the current Court term churns along and conferences and arguments are conducted and orders are issued, one case from last term--Madison County v. Oneida Indian Nation of New York—remains stalled. The case was distributed on January 30 for a February 15 conference, and thereafter the Solicitor General was invited to present the views of the United States, which he has not yet done. The main issues in the case are (1) whether the Oneida Indian Reservation in New York has been diminished or disestablished (despite a 1985 Supreme Court holding that New York’s 1795 land purchase from the Tribe was void because it had not been federally ratified) (2) and whether the Tribe’s sovereign immunity bars foreclosure of its land for nonpayment of taxes.
In the Counties’ brief in support of the petition for certiorari, they claim that a holding in the Tribe’s favor on the disestablishment question would contravene the “justifiable expectations” of non-Indians in the area, who have come to expect to be exposed to little if any tribal presence or power. As I explained in a recent article, the Supreme Court routinely makes similar assumptions in favor of non-Indian residents and past land purchasers in tribal jurisdiction and reservation diminishment cases. See generally Ann E. Tweedy, “Unjustifiable Expectations: Laying to Rest Allotment-Era Settlers,” 36 Seattle U. L. Rev. 129 (2012). There are numerous problems with this type of assumption, however, and it can be hoped that the Solicitor General will raise some of them in his response.
One problem is that the Supreme Court does not evaluate these presumed non-Indian expectations in historical context to ensure that were in fact justifiable, or, in other words, rooted in justice. As I explain in “Unjustifiable Expectations,” which presents my original historical research as to Sioux Nation lands in South Dakota, in many cases, tribes were deprived of the lands unfairly (and illegally by constitutional takings standards) and surrounding settlers knew of these injustices when they purchased tribal lands. Another related problem is that the Supreme Court does not address whether Indians and tribes have—or had—justifiable expectations with respect to their own land rights, which should be weighed in the analysis. See, e.g., Ann E. Tweedy, “How Allotment-Era Literature Can Inform Current Controversies About Tribal Jurisdiction and Reservation Diminishment,” U. Toronto Q. vol. 82, No. 4, 923-948, at 944 (Fall 2013, forthcoming).
Although the Oneidas were deprived of their lands through illegal purchases earlier than many other tribes, there is ample information about the injustices in their land transactions both with private speculators and the State of New York. See generally Anthony Wonderley, “’Good Peter’s Narrative of Several Transactions Respecting Indian Lands’: An Oneida View of Dispossession. 1785-1788,” New York History, vol. 84, No. 3, 237-273 (Summer 2003). This information sheds light on both the justifiability of any non-Indian settlers’ expectations that they would enjoy the Oneida lands free of Oneida presence and influence and the Oneida Nation’s justifiable expectations with respect to these same lands and its continuing interest in them.
The Wonderley article presents the story of the Oneida’s dispossession in the late 1700s primarily from the perspective of an Oneida Chief Warrior who was called Good Peter by whites. Good Peter recounted the events to a federal official named Thomas Pickering in 1792. The article is well worth reading in full, but here are a few highlights.
After the Revolutionary War, the Oneidas returned to their homeland in 1783-84. Although they were “impoverished and greatly reduced by war, disease, and hunger,” they fully anticipated support and help from the United States and New York State as they were among the few Iroquois who had fought on the U.S. side in the war. Wonderley at 242. Unfortunately, their faith was misplaced. New York’s economic recovery plan after the War was based in part on acquisition of Iroquois lands, which it could then use as collateral as well as eventually sell at a profit or give to veterans in lieu of pay. In fact, Governor Clinton, who was Governor of New York from 1777 to 1795 is said to have “long cherished the hope of Oneida Removal.” Wonderley at 245. A State Commission to obtain Iroquois lands was dispatched in 1784 to Iroquois territory, but this commission failed with respect to Oneida lands because the Oneidas had been forewarned. Immediately, however, speculators began moving in, some of whom falsely represented themselves as agents of the State. The methods of an early group led by one John Harper included plying Indians with alcohol in order to get them to sign away their lands. Wonderley at 246.
New York responded to news of the speculators’ efforts by redoubling its own efforts. Despite repeated public refusals to sell in the treaty minutes in June 1785, the Oneidas agreed through a spokesperson to sell 300,000 acres for moneys and goods worth $11,500 the following morning. According to the Oneida account, New York obtained the cession over the objection of some Oneida chiefs by promising that this would be the last purchase of Oneida lands by anyone and by threatening to withdraw protection from the Oneidas against the State’s own “unruly and avaricious citizens” if the Oneidas did not sell. Wonderley, at 249-250. The same threat was made again in 1788. During both 1785 and 1788, many Oneidas were literally starving, a fact which New York took full advantage of, even rescheduling one treaty conference to ensure that the Oneidas would be desperate from hunger during the negotiations.
Image from Yale University Art Gallery
In the late 1780s, another group of speculators led by John Livingston, claiming to represent New York, began attempting to gain rights to Oneida and other Iroquois lands through a 999-year lease, and they succeeded in this goal of leasing virtually the entire Oneida territory in 1788. One questionable tactic they used was to pay trusted leaders and confidantes among the Oneidas to support their plans. Wonderley at 258. After the lease had been signed but apparently before the Oneidas received the promised consideration, the Governor of New York learned of the plan and appeared ready to come to the aid of the Oneidas to invalidate the lease—promising that he would “recover your lost country, & to raise it out of the waters”--but in truth New York only wanted Oneida lands for itself. As Good Peter explained “We had expected from the Governor’s love to us, that his intention was to recover our lost and drowned country and restore it to us.” Wonderley at 259.
New York invalidated the 999-year lease through its legislature in 1788, and, without notifying the Oneidas that this had been done, immediately began pressuring the Oneida to sell its land to New York. Not only did this 1788 “agreement” as written down by New York contain considerably more land than the Oneidas had actually agreed to, Wonderley at 267-68, it also framed the written agreement as a sale, although the Oneidas believed—and stated in the treaty conference—that they were agreeing to a lease. Wonderley at 272. Good Peter explained the discrepancies this way:
“We Indians are unwise: And our want of wisdom is owing to our want of knowledge in the ways of white people. White people say to us—‘This Measure will be for your good.’ And we have always been accustomed to obey this voice . . . as we verily thought our white brothers meant good to us: and hence we have been deceived with respect to our lands.” Wonderley at 271.
This perspective of the Oneida leader Good Peter is of course a far cry from the claims of the Counties in their brief regarding justifiable expectations. Relying primarily on a version of Felix Cohen’s Handbook of Federal Indian Law that, after Cohen had resigned from the agency, was rewritten by termination-era Department of Interior officials in order to maximize support for the federal plan to terminate the trust relationship between tribal governments and the United States, the Counties suggest in their brief that the Oneidas simply ceded their lands in the State of New York by treaty and removed to Wisconsin in the late 1700s and that the few remaining Oneidas were fully assimilated into the white culture surrounding them. Counties Brief, 2010 WL 4973153 at *50. However, this is a simplistic, ahistorical view. The fact that these cessions were replete with unfair dealings and that the terms of the 1788 cession as written were considerably different than those Oneidas had actually agreed to should be part of any analysis of justifiable expectations.
In short, either the Supreme Court should stop relying on presumed justifiable expectations of non-Indians in analyses of whether reservations have been diminished or disestablished and in analyses of tribal jurisdiction over non-members or it should begin the hard work of undertaking a deep, historical analysis of such expectations—and their justifiability—on both sides. It is long overdue to include tribal expectations in that analysis.
I recently posted elsewhere that the City of Stockton, California had filed a plan of adjustment to which the principal competing creditors--retirees (through their proxy CalPERS) and bondholders had agreed. Implementation of the plan was conditioned on Stockton residents agreeing to raise their taxes. This past Tuesday saw those voters approve an increase in the local sales tax from 8.25% to 9%.
In my draft article, Fairness and Risk in Stockton: Pensions, Bonds, and Taxes -- When Doing Nothing is Doing Well, I observed that Chapter 9 of the Bankruptcy Code fails to include official representation of municipal residents and eligible voters. Both are indirectly represented in the sense that the officials they elected must have decided to seek bankruptcy relief but unlike creditors they lack an official voice once the case begins. Notwithstanding lack of an express statutory role, Bankruptcy Judge Christopher Klein appointed a taxpayer committee in Stockton's case. But, more importantly, California law required a vote by city residents before taxes could be increased.
So, as it turns out, in Stockton taxpayers were able to vote, albeit not directly on the plan. Yet, it remains the case that city residents as such don't have any say over their future. In other words, a city may in the course of its bankruptcy reduce municipal services. Stockton made most of its service reductions before filing but it could have equally done so during the case. City residents as a stakeholder entity have no voice. While they can "vote the rascals out" at the next election, a city whose plan has been confirmed has little leeway going forward. Thus, I recommend that Bankruptcy Courts in future cases take a step beyond what the Code requires and in most cases appoint a "citizens committee" whose mandate would be to represent the interests of service recipients. Like other official committees, the city would bear the reasonable costs and professional expenses of a citizens committee.
Municipal bankruptcy may be the best solution for the financial issues facing many cities but the vital process of plan negotiation should be open to meaningful input from all stakeholders.
My colleague Dana Remus has posted her article, "Out of Practice: The Twenty-First Century Legal Profession," which is forthcoming in the Duke Law Journal. Cribbing now from Remus' abstract:
Lawyering has changed dramatically in the past century, but scholarly and regulatory models have failed to keep pace. Because these models focus exclusively on the “practice of law” as defined by the profession, they ignore many types of work that today’s lawyers perform and many sources of ethical tension they encounter. To address these shortcomings, I examine significant twentieth and twenty-first century social dynamics that are fundamentally altering contemporary lawyers’ work by broadening and blurring the boundary between law and business. Within the resulting boundary zone, a growing number of lawyers occupy roles for which legal training is valuable but licensure is not required. I argue that the ambiguity surrounding these roles—regarding what constitutes legal practice, what roles lawyers play, and what professional obligations attach—creates opportunities for abuse by individual lawyers and for ethical arbitrage by sophisticated corporate clients. The proliferation of these roles gives rise to key ethical tensions, ignored by existing models of the profession, that threaten to extinguish the profession’s public-facing orientation in favor of its private interests. I conclude that we cannot effectively understand and regulate the twenty-first century legal profession until we move beyond the rigid constraints of existing models and begin to study the full range of roles and work settings—both in and out of practice—that today’s lawyers occupy.
You may recall that I've blogged about Remus' article "Advocacy Revalued," which is about the role we expect of lawyers in the adversarial system. As to this article I think it'll resonate with a lot of discussion about lawyers who are working in JD-advantaged jobs, because Remus is interested in how -- if at all -- those people should be regulated by the bar.
If I might share some other good news about this article, it's just received the fourth annual Fred C. Zacharias Memorial Prize for Scholarship in Professional Responsibility. In other good news, Norman Spaulding received honorable mention for the Zacharias Prize for "The Privilege of Probity: Forgotten Foundations of the Attorney-Client Privilege," which appeared in volume 26 of the Georgetown Journal of Legal Ethics beginning at page 301.
It’s always fascinating to see what others make of your ideas. Sometimes your readers find them a window into a world they hadn’t fully explored, which is ineffably gratifying. Sometimes your readers make them into strange lenses that refract things into exactly what they thought they already knew, which is rather less gratifying. Three journalists (well, two journalists and a full-time blogger) took a look at my new article, “What’s New About the New Normal: The Evolving Market for New Lawyers in the 21st Century,” described in my last post. Karen Sloan of the National Law Journal provided a fair and balanced summary of the paper’s content, but concentrated on the aspects of the analysis predicting that the number of entry-level Law Jobs will remain depressed for the foreseeable future. Jacob Gershman of the Wall Street Journal provided an equally fair and balanced summary, but focused on the paper’s additional and somewhat counterintuitive conclusion that, because poor job prospects are driving down the number of new law students, there will eventually be fewer law graduates seeking more or less the same number of jobs, which should make life somewhat easier for the fewer graduates on the job market some years from now. Elie Mystal of Above the Law treated us to one of his breathless, spittle-on-the-corners-of-his-mouth rants, and pronounced me a Don’t-Worry-Be-Happy academic apologist vying with purportedly like minds for the “neatest bit of sophistry in defense of going to law school.”
Poor Elie. It can’t be three weeks since he indulged in a similar surge of fury at Michael Simkovic and Frank McIntyre of Seton Hall concerning their study on “The Economic Value of a Law Degree,” and savaged the work for errors that even a casual reader would have appreciated simply weren’t there. (To be clear, I think there is plenty to argue with in the Simkovic-McIntyre analysis; unfortunately, almost none of it could be found in Elie’s landmark post “Another Garbage Study Offering Misleading Statistics On The Value Of A Law Degree.” This had the perverse effect of deflecting attention from a range of more subtle concerns with the paper, which I doubt was the intended effect of the attempted beat-down.) Since I am a teacher, I can’t help but notice that there appears to be lesson emerging here: Read before you rage.
So let’s see if we can straighten this out for anyone else in danger of confusion. Anyone who knows anything about my work (and to be clear, Elie Mystal is not to blame if he doesn’t) knows that I have argued explicitly and repeatedly that there currently are far too many seats in far too many law schools given the number of law-related jobs available; that this mismatch has visited tragic and incalculable misery on tens of thousands of aspiring lawyers, and that anyone who tries to assert otherwise is either grievously mistaken or contemptibly dishonest. Look here and here, for example.
Far from being “sophistry in defense of going to law school,” then, the “New Normal” paper (here) provides detailed empirical support for the propositions just described (with which, ironically enough, Elie apparently agrees). The paper shows that the entry-level Law Jobs market is currently poor and has been for the last five years (pages 24-25, 28); that reductions in BigLaw hiring are responsible for a disproportionate amount of that change for the worse (pages 30-35); and that there are strong objective reasons to believe that entry-level BigLaw hiring, and thus the entry-level Law Jobs market in general, will remain depressed below pre-recessionary levels for the foreseeable future (pages 35-54).
So far, it would appear that Elie and I are in complete agreement. The paper goes on to reason that if the legal academy shrinks, and the number of law graduates falls while the number of Law Jobs stays more or less the same, then future smaller classes of law grads will have an easier time finding jobs. Elie doesn’t fight the logic (you can’t); instead, he pronounces the prediction of a shrinking academy “almost certainly wrong” because he believes there is no way that the number of law graduates will fall. What is the empirical basis for this prognostication? He says the executive director of the National Association for Law Placement, James Leipold, told him so. Now, I have no idea what Jim Leipold told Elie Mystal, but I do know the facts. Here are a few of them: The largest first-year class in history entered law schools across the country in the fall of 2010; it was about 52,500 people. The first-year class that started in the fall of 2012 is estimated at about 42,500, a drop of about 20% in two years. [Update: LSAC reports an entering class of about 44,500 in 2012, only a 15% drop in two years. Others estimate the 2012 first-year class at less. Hat-tip to Paul Campos for pointing this out.] Last year, over half the accredited law schools in the United States shrank their entering classes by 10% or more. We don’t have entering class numbers for this fall yet, but there are reports –particularly among the schools that have had the worst placement records in recent years—of 30%, 40% and even 50% reductions in entering class sizes. The number of applicants to law school has shrunk by a third just between 2010 and 2013, and the number of applicants for the first-year class that will be starting soon is at levels not seen since Ronald Reagan was president. And remember that, historically, about 10% of each aggregate entering class drops out before graduation. So the number of new graduates we can expect to see three to five years from now will necessarily be much smaller than it was just three years ago, and it’s still looking for its bottom. In other words, what Elie thinks is impossible is actually happening already. By the way, all of this information is prominently presented in my paper. See pages 54-56.
So yes, for the much smaller number of law school graduates we’ll be seeing three to five to seven years down the line, I do think it will be easier to get a law-related job, so long as the number of such jobs at worst stays at about the same seriously depressed levels we see today (which I think is a good bet, and probably a little conservative). But that is true only because there are currently way too many seats in way too many law schools, and only because a lot of people who might have considered applying to law school are already choosing not to do so, and even more in the future will continue to stay away.
What that means as a practical matter should be obvious: You need to figure out if you’re one of the many potential law-school applicants who ought to stay away for your own good. Nothing in my paper (or anything else I've ever written) should be read as suggesting that no matter who you are, things are going to be great for you if you start law school in the next few years. Things will improve only if more people avoid law school unless they are good bets to succeed. So unless you have a coherent and plausible plan for the use you’re going to make of your law degree that is rationally justified by your LSAT and undergraduate grades, don’t go to law school. If the only law schools you get into are ones with an acceptance rate north of 50%, don’t go.
If that makes me an idiot, I can live with it. When all is said and done, though, I do have one thing to thank Elie for. As Oscar Wilde memorably remarked, the only thing worse than being talked about is not being talked about. I thank Above the Law for subjecting me to the lesser of the two evils.