The Faculty Lounge

Law Reviews' Prestige and Citations: A Misunderstood Relation?

Well, we're getting ever closer to the release of the 2009 US News law school rankings.  I've never been big on office pools, but maybe we ought to think about making some predictions on who's going to go up and who's going to go down.  Never can tell what kind of giggles thefacultylounge can gin up.  Actually, I now see via the magic of google that at least one of the student discussion boards is already on this case.

What I want to talk about, however, is a ranking of a different sort.  I'm interested in taking a long-term view of law review rankings.  I've talked some back at propertyprof about the relationship between law review citations and law school rankings.  Now I have a short paper up on ssrn, which (thanks to some terrific research assistance from Joseph Sherman) looks at the citations to articles that appeared about fifteen years ago in about a dozen leading law journals.  It looks at some of the very most prestigious journals (Harvard, Yale, Columbia, Chicago) as well as some of the other elite (Vanderbilt) and some of the other terrific journals (Indiana, Wisconsin, Hastings--hi Calvin!).  The idea was to see how individual articles fared.  It took its methodology from Andrew Oswald's article, which Danny Sokol put me onto, on citations to articles in prestigious economics journals.

The Student Survey

Some years ago I gave up hoping that upper level students would actually do the reading on the first day of class.  Yup, that's part of my long, slow decline in expectations.  Still expect it of 1Ls--rather self-defeating, perhaps.  So now on the first day of class I have a series of questions that I ask students, using scenarios we'll be talking about later in the class.  I try to get them engaged in thinking about what we'll be doing over the course of the semester and try to stir some excitement for the course on the first day.  Sort of makes a virtue out of a necessity--even seems to work.

So when I'm teaching wills I'll give them some scenarios of people who die intestate and ask them what they think should happen to the decedents' property (rarely match up with the Alabama intestacy statutes, by the way!)  And then I'll ask some stuff about undue influence and lack of capacity and other fun stuff like that.

I also reprise those questions throughout the semester.  I'm teaching remedies this spring--love that class, by the way.  Students are highly motivated (it's bar exam material and they can see the relevance to what clients are going to be asking them) and they've had enough school that they can pull stuff together.  So I sometimes ask them to fill out a short set of questions regarding how they would have acted if they'd been the judge in a case or a juror.  Did that just the other day with a case of a dignitary tort, Levka v. City of Chicago, 748 F.2d 421 (7th Cir. 1984) .  I use Douglas Laycock's Modern American Remedies (great book, by the way).  And I asked the students what they would have awarded a woman who was unconstitutionally and intrusively searched following an arrest (turns out the city of Chicago has a systematic practice of this, so there are a series of lawsuits with similar facts and widely differing jury awards).   There was conflicting evidence about the extent of the psychological harm, though the victim testified that the memory of the event had significantly interfered with her quality of life.  The jury awarded $50,000 and the Seventh Circuit knocked it down to $25,000 on remittitur.

I ask the students three things.  First, their gender; second, the amount they would have awarded if they were on the jury; third, the amount they would have reduced the verdict to on remittitur.   Pretty interesting results--as always.   Of course a few (but a remarkably small number this year) hadn't read the case.  I always appreciate the honesty. 

But unlike in past years, this year men had a higher median award than women.  Men had a median award of $12,000 (range 0 to 500,000); women had a median award of $5,000 (range $500 to 50,000).  (Small Ns this year, so that may explain some of the differences of results in previous years--but I'm surprised by the women's low numbers in particular.  They're tough.  Wouldn't want these students on my jury--unless, of course, I were a defendant!)  Pretty interesting stuff and a reminder that different people can see the world in wildly different ways--an important lesson in itself for all of us.

Alfred Brophy

Sunstein Off To Harvard

Cass Sunstein is headed to Cambridge, Mass.  I'll include this morsel in the next update of the lateral move list.  Hat tip: David Bernstein.

Obama's Insight on Law Reviews?

What insight does Senator Obama have about law review?  Given that he was once the head of the Harvard Law Review, I think he probably has a lot of thoughts about them.  And have you seen the discussion lighting up the legal blogosphere about citations to the Obama-led volume (104)?  It seems to have started, as so much interesting discussion does, with David Bernstein, then VDare, whatever that is, followed it up, and then it went into Paul Caron's shop--first at Adjunct Prof and then Caron weighed in with his characteristically insightful and moderate comments.  One enterprising anonymous commentator compiled some most interesting statistics on citations to the Harvard Law Review by volume over the past twenty years or so.  Very shortly I'm going to have some thoughts on longitudinal studies of elite law reviews.   

I agree with those who say that what happened at the Harvard Law Review years ago--particularly as measured by citations--has little probative value about Senator Obama's qualifications to be President.  And, please, let's not fall into the trap of using citations as the only measure of quality.  In the careful and wise words of Ian Ayers and Fred Vars, “extreme modesty is in order” when interpreting citation studies.  Everyone ought to remember that, but this is politics, so I'm not optimistic about this.  Still, what a great topic for the faculty lounge: politics and citations to law reviews!  The perfect storm, eh?  Can you imagine a confluence of topics law profs would like better?

But some of Obama's insight on politics in general applies to law reviews, I think.  Take a gander at this excerpt from his speech after the South Carolina election:

After we won Iowa, everybody was so excited. Everybody said oh look at this an African American is winning in a state where there are almost no African Americans and young people are excited, and everybody's excited and young people came out. And I think people started thinking you know this is a lark.  ...  But you know the status quo doesn't give up easily.

Sounds remarkably like law reviews, doesn't it?  Thanks to Volokh and Leiter and the people at co-op and prawfs and in many others places, we started to have discussion of law in places not mediated by the gatekeepers of our profession (i.e., second and third year students), the reviews adapted.  In the wake of the internet came Yale's Pocket Part and Harvard's on-line review and some others as well. 

I've been critical of late of bloggers (and here), so let me temper that with something positive: bloggers have changed the nature of the dissemination of ideas.  Just don't expect things to change too quickly or without struggle.  Because, law review doesn't give up that easily!

Soon, though, I'm going to talk about "law review editorship as training for hierarchy."  And I bet you can't wait for that.

Alfred Brophy

Do We Offer Too Many Death Penalty Courses?

I just participated in an interesting Eighth Amendment conference sponsored by the University of Pennsylvania Journal of Constitutional Law.  (Doug Berman was there, among distinguished others, and previoulsy blogged about it here.)  Lots of interesting issues surfaced over the course of several panels and many informal chats.  I'm going to try to touch on a couple of the issues in individual blog posts over the next few days. 

Readers of Sentencing Law and Policy know that Doug believes that the intense scrutiny about the death penalty - among both commentators and litigators - is grossly disproportionate to it's actual impact and has the effect of skewing criminal justice debates and undermining many other needed reforms.  As a former public defender, I suspect that I weight the effects of individual draconian sentences on individual defendants more heavily than Doug, even though I fundamentally agree: the death penalty is barely the tip of the iceberg when it comes to criminal justice dysfunction. 

Doug argues that the legal academy bears some of the blame for this.  He argues (his stats, not mine) that about 150 law schools offer courses on the death penalty, while only about 30 offer general sentencing classes.  And Sharon Dolowich and Margo Schlanger piped up that there are no more than 5 lecture-style courses on the constitutional law of incarceration and corrections.   Doug contends that this reflects the preferences of law faculty - who find the death penalty a glossy and compelling issue - and also serves to reproduce this view of the world on the part of students.  He argues that those seeking real change in criminal justice policy should refocus students on the big picture issues like mass incarceration, oversentencing, prison conditions, and the like.  I have a different take on this.

Millennial Law Prof goes live!

Millennial Law Prof goes live!

Hands down one of the most useful sites out there for anyone teaching millennial students - law school or otherwise.  If you've ever had trouble reaching or relating to the new set of 20 somethings, this site's for you.  Professor Tracy McGaugh is an expert on millennials, having written and spoken nationally on how we (Xers and Boomers) can bridge the generational divide that stands in the way of effective learning.  And Friday is "Dear Millennial Law Prof" day, so have your questions ready!

Here a bit of what you can expect:

The Millennial Generation (born approx. 1983-2003) started as first-year law students a few years ago, and they've already made quite an impact on their law schools. Likewise, they're making a splash in the legal profession. I'll be blogging here about them (Millennials), us (Xers), and the other thems (Boomers and Veterans) and how we mesh -- and often don't -- in law schools and beyond.

As Millennials find their way and impact our institutions, we struggle to respond. Do we give them the same kind of legal education we've always offered? How do we keep up with the technology we can use for teaching? What technology should we be using? What are our future law students learning in elementary and secondary schools right now? Do we finally acquiesce to the multi-tasking, technology-savvy expectations that Generation X introduced us to? How do we handle the dark side of their need for high achievement: plagiarism, cheating, use of stimulant drugs? Are there particular generations that seem to deal better with Millennials than others? And what about the Xers? Are they gone from legal education, or do we still have to figure out what to do with them (or "us" as the case may be)? And most important of all, in the future, will we all be on MySpace?

This blog will be a place to discuss these issues and more. Add it to Google Reader. Or come back to find out what Google Reader is and whether or not you have to use it to teach Torts.

Welcome to the blogosphere, Professor McGaugh - the site rocks!

-Kathleen A. Bergin

School Shooting Tragedies and the Myth of Overmedication

Opening the New York Times webpage this morning, I saw an interesting link between two of the top stories:  the shooting tragedy at Northern Illinois and a discussion of whether America is overmedicated.  The latest information on the Northern Illinois shooter says that he was a former graduate sociology student who had been top in his class, but had stopped taking his medication.  The opinion piece, by Judith Warner (supported by this Slate article by Peter Kramer), challenges the popular narrative that America takes too many psychopharmaceuticals (such as Prozac, Zoloft, Wellbutrin), arguing the truth is the opposite:  that many Americans do not get the mental health treatment they need, and that we all suffer as a result.

Reading the two stories in tandem, it's hard not to see the tragic link.

Gene Nichol and Academic Leadership

I want to come at the Gene Nichol story from a perspective suggested by Professor Bergin—the institutional one.   As we all know academic leadership is an unusual gig.  We operate in a web of relationships involving multiple, passionate, articulate, organized and often conflicting constituencies.   The University President leads and responds to a Board (and in a state institution—governors and legislators), generations of alumni, faculty, staff, students, and the community.  And universities more so than other institutions have a culture of shared governance and broad consultation.   A president wanting to make profound institutional change thus faces a challenging landscape.   Process and appearance match in importance substance. So some thoughts on the process of being a change agent in the academic context.

1)      Pick your spots, sequence your agenda.  Maybe you start a faculty diversity agenda first, a student diversity agenda second, and leave the cross in the chapel issue to your fifth year.  Understand that symbolic actions my trash your efforts in more central initiatives.

2)      Appoint a committee, but not any committee.  Make it committee of worthies and a committee that you can manage and knows your predilections.   There is no better lead to an administrative memorandum announcing a major initiative than “On the recommendation of my distinguished committee on X I am doing Y”

3)      Recognize that you are not the institution.  Sometimes it is better to have another spokesperson take the lead on controversial matters.  How about having the dean of the law school lead the institutional response to a first amendment issue rather than you as president?  Or how about having the University general counsel make the first statement on the right of student groups to invite controversial groups to campus?   Then you can come in and be part of a great robust, educational conversation.

4)      Anticipate vulnerabilities.  For example talk about the potential effect of change on the dreaded U.S. News rankings.  Remind people that you care about the rankings, but that your institution knows that making sensible academic decisions is the first priority, and that rankings follow from mindfully following those priorities.

Stars Fell on Alabama: The Tour of Tuscaloosa

It's Friday, which means it's time to lay some plans for the weekend.  And so.... A few months ago the students over at Nuts and Boalts (a Berkeley law school student blog) wrote about a Jack London pub crawl.  They go to bars frequented by Jack London I'm guessing (or at least locations that London roamed around).  Now, I must admit that I'm not a huge Jack London fan.  I understand that kids who grew up in the bay area were "force fed" London while in high school or maybe middle school, so no surprise that they'd plan something cool like that.  Much rather have something like the John Steinbeck pub crawl, but they might have to be somewhat south of Berkeley for that one.

Well, that got me to thinking.  'Bout time we do something like this around Tuscaloosa.  So which local authors would we want follow around--checking out their local haunts?  I've read a lot of  Caroline Hentz.  She wrote a proslavery response to Uncle Tom's Cabin as well as some short stories whose proslavery bona fides are more ambiguous.  The building where she ran the Tuscaloosa female seminary (which was used for an elementary school as late as the 1950s) was torn down; now there's a condo building there.  So cross the Carolyn Hentz pub crawl off the list.

How about Carl Carmer, whose 1934 book Stars Fell on Alabama inspired the song of the same name.  Carmer's book--he was an English prof at the University--is a memoir of sorts about his time here.  He records all sorts of vignettes of life around the state, including some time playing golf at the Tuscaloosa Country Club.  Still there; in fact, that's where the students have their spring formal.  So we might include that on the Carmer pub crawl--then maybe some time over on University Avenue and Greensboro Avenue, where he stayed when he first got to town.  Hard to know exactly what that would be like.  Might end at the University Club, which was the Governor's mansion in the days when Tuscaloosa was the state capital, back in the 1820s and 1830s.

Anyway, I like the idea of law students (and faculty) celebrating their local literary figures.

By the way, while we're talking about Nuts and Boalts, I was surprised that they'd spend the time to write about their faculty's publication records.  But then I'm always surprised when students  read what we write--perhaps I shouldn't be surprised, though.  It's further evidence for the hypothesis of the "history of the book" project that when looking to understand a people, one should turn to their intellectual output.  One other thing, as the first commenter pointed out: you should count books when you're doing a survey of publishing records.

Drexel Law Gets Provisional ABA Accreditation

Drexel Law crossed the first critical milepost for any new law school: getting the provisional nod from the ABA.  Everyone  at Drexel is pleased with this result - and nobody more than our risk-friendly inaugural students who are now assured that they can sit for any state's bar exam.  If only they weren't totally absorbed in their second quarter finals...

A Challenge for Crime Deterrence Models: Irrational Juvenile Fatalism

The Journal of Adolescent Health has a new study, Unrealistic Fatalism in U.S. Youth Ages 14 to 22 (subscription may be required), which concludes that 6.7% of all studied youth believed they would not live much past 30.  This is conisistent with a 2000 study in Public Opinion Quarterly (subscription required) which showed that nearly 4% of 15 and 16 year olds believed that they would probably die before age 20.  All of this complicates any good deterrence model for kids.  We already know that developmental progress limits kids' ability to behave like rational actors.  This new study (in tandem with existing work) shows that a 20 year sentence for a 20 year old may actually be read as a 10 year life bid.  I'm not sure how that affects an offender's valuation of that sentence - whether an effective life sentence looks more or less daunting than a 20 year sentence followed by a return to society - but I'm confident that it does affect valuation.  The question I grapple with regularly is not whether punishment can deter, but whether we have any economic or agent-based models sufficiently sophisticated (taking into account data like this) to give us even the remotest hint of how we can harness the power of deterrence. 

Frequent Flier Mile Deflation: The Rest Of Us Pay

The Times reports what most of us with frequent flier miles already knew: it's really hard to use them.  With loads of miles outstanding, and airlines selling more and more of their (uncomfortable) seats, people with stockpiles of miles will have difficulty booking a seat on that New York to Paris non-stop.  Frequent flier miles have been devalued.

What may be less obvious is that this devaluation may have concrete effects on the average non-frequent flier.   Frequent flier miles were initially designed with one key purpose in mind: encouraging brand loyalty among road warriors.  To the degree that these miles are now devalued, you might think that frequent fliers now have less of an incentive to stick to particular carriers.  But that simply can't be the case.  Instead, airlines are substituting new bennies for the true frequent fliers - people who actually spend cash on plane tickets.  They're giving them seats on aisles, in exit rows, near the front of the plane, and in slightly more spacious sections.  And who does that hurt?  The rest of us, of course!  Because in the old days, we all got a shot at good seats - but the frequent fliers racked up serious miles.   Now we all get a shot at accumulating miles, but frequent fliers get the good seats.

Airlines are the winners here, of course.  They get compensated for all the decreasingly useful miles they sell to credit card companies, hotels, and florists.  They hold on to the frequent fliers by doling out something that costs them near nothing - aisles and exit rows.   And the rest of us pay more and more to sit in the middle seat.

Guest Blogger: Roger Dennis

We're excited to welcome our first guest blogger, Dean Roger Dennis from Drexel College of Law.  Roger previously served as dean of Rutgers Camden Law School and provost of the Rutgers Camden campus.  Like any good blogger, he's interested in just about everything...but he has special passion for antitrust and securities law.  We're hoping he'll offer some insights from the law school administrative perspective. 

Dean Michael Green

Michael Green is the newly appointed Associate Dean of Faculty and Development at Texas Wesleyan. 

Congratulations Dean Green!

Faculty Salaries at William & Mary and Virginia

One of the student newspapers at the College of William and Mary has collected and posted salary information for faculty and administrators there.  In light of our continuing coverage of the Gene Nichol case, readers might find the article and accompanying spreadsheet tables of some interest.  Outside of faculty in the higher paid programs (and law is one of those schools) the article points out that "few professors earn into the triple digits. Many assistant and associate professors earn less than $50,000."  The Cavalier Daily notoriously publishes UVa faculty salaries here.  (The data is a bit out of date.)

Professor Carla Pratt - Tenure at Texas Wesleyan

The faculty at Texas Wesleyan voted unanimously to hire Carla Pratt from Penn State as a tenured full professor.  Congratulations Carla - glad to have you in Texas.

Kathleen A. Bergin

More on President Nichol: The Constitutional Angle

President Nichol’s resignation has been discussed largely in terms of whether he adopted sound administrative policies during his short tenure, glossing over, for the most part, significant constitutional questions. Take the controversy surrounding the Wren cross.  Nichol’s removed an altar cross from permanent display in a chapel building used by some campus groups for secular meetings and by others as a place of worship.  Any group who used the Wren building could nonetheless request that the cross be displayed for a particular event.  Moreover, the cross was on display every Sunday, for the entire day, even when worship services were not in session.

Whether changing the nature of the cross display reflected sound policy may be a different question from whether displaying an altar cross at a public university, or its limited removal, implicates the Establishment Clause which prohibits the government from either favoring or disfavoring religion. 

Full Faith and Credit in New York

An appeals court in New York  has ruled that same sex marriages performed abroad (i.e. not in New York) must be legally recognized by  the state.  This ruling gives same sex marriages the same status as different  sex marriages that are universally recognized in every state, affecting all private and public employers.  The recent ruling enables two women who were legally married in Canada in 2004 to claim each other as spouses for purposes of receiving health benefits from Monroe Community College.  While the state Legislature may one day prohibit the out-of-state recognition, comity remains viable under the current court ruling.

Does this ruling invoke the Full Faith and Credit Clause, or does it distort it?  Take, for example Wilson v Ake, 354 F. Supp.2d 1298 (2005), where a Florida court refused to recognize the valid Massachusetts marriage of two women.  Rejecting the plaintiffs argument that the Defense of Marriage Act (DOMA) was unconstitutional, the federal district court opined that  a "rigid and literal interpretation of the full Faith and Credit would create a license for a single State to create national policy."  With Floridian public policy opposing the same-sex marriage, the court ruled that the state did not have to recognize conflicting foreign policies.  Does this mean that New York state, in extending the marriage recognition rule to people of all orientations,  is setting a national policy of  marital equality? 

The Coming Slow Down in Lateral Hiring?

Paul Secunda's been putting up some fantastic posts on a topic near and dear to many law profs' hearts at co-op on lateral hiring.  Paul's posts are required reading.  But let me view his advice, from the perspective of buyers of lateral talent.  I want to suggest that lateral hiring may be slowing down.  There are at least three reasons for this.  First, laterals be expensive.  Second, I think laterals are in pretty short supply.  The number of people who're willing to pick up stakes and move (particularly once they get past the mid-thirties) is quite small.  Who wants to move a family; these days, many have a spouse who has to locate a new job, too.  This isn't easy.  Third, the home institution's likely to put up a fight.  Anyone worth hiring is going to be recruited by the home institution and unless the new school or location has a hectic of a lot to offer, it's going to be hard to get them.

All of this may actually be good news for lateral candidates--it means that when a school feels the need to do hiring at a more senior level, the competition won't be as great.  But it wouldn't surprise me to see less lateral hiring in the future, as schools try to cover classes at a lower cost. 

Why, then, the big growth in lateral hiring in the late 1990s and early 2000s?  Good question; it may have something to do with retirements at up-scale schools and the general expansion of the legal academy, as well as limited opportunities for lateral movement for a long time before that, so there were a lot of talented people eager to move.

I suspect that lateral hiring will continue to be strong at the elite schools--but at those outside of the top 20 or 30, I wouldn't be surprised to see entry level hiring (or hiring of those near entry level--those who've completed a couple of years as a visiting assistant professor and the like) return to dominance (or maintain its dominance as the case may be).

Alfred Brophy

What if . . .

Seattlite at DailyKos asks readers what they think Senator Clinton should do if she does not take the Democratic nomination.  Most respondents thus far would like to see a "Justice Clinton" appointed to the Supreme Court, even more than would have her continue in the Senate and assume the majority leadership post.   A handful split on whether she'd make a better VP or UN Secretary General.   

Of course these are all viable options for the woman who would be President - though its hard to visualize Senator Clinton being satisfied as President Obama's second chair (McCain can't really win can he?)  But what if Clinton played the "what if" game?  In another time and place, would she want to end up here?  Its probably a no-brainer for someone looking at a possible presidential bid, but surely even Clinton rejected choices along the way that would have redirected her path.  What about that Art History course she maybe thought about in college?  What if she stayed with those piano lessons?  What if . . .

We used to play the "what if" game at the firm where I worked after law school.  Disenchanted first years, billing hours, buried in discovery - did we really sign up for this?  We'd steal five minutes to fantasize about the career we could have had, would have had, should have had.  Some of us were lucky enough to escape to academia - best job in the world - so playing the "what if" game now is a bit less masochistic than it was as a 2200 hour newbie lawyer.  But there are days I still wonder, what if . . .

So what would it be?  What if money were no object?  What if your kids, your partner, your loved ones would follow you?  If you weren't a law prof - what's the next best thing?

For me its Doctors Without Borders.  In the war zone.  Saving lives.   Just the right mix of heroism and danger to make any Mom proud . . . and a little nervous.

I tag Gowri Ramachandran (Southwestern) and Anthony Infanti (Pitt).   What if . . .