The Faculty Lounge

Law School Graduation Speech

Posted by D. Daniel Sokol

Because of the economic downturn and what might be structural shifts in the provision of legal services, graduation will be far more anxiety filled for the Class of 2010 than in previous years.  To what extent should graduation speakers address the complexities facing this year's graduates? 

Chatham County Courthouse, RIP (1881-2010)

I bring very sad news from Chatham County, where I was for lunch this afternoon.  The Chatham County Courthouse in Pittsboro, built in 1881, caught fire last night and burned through the night.  You may recall that I blogged about Pittsboro in February when I spoke about Charles Manly's 1838 literary address.

Apparently the fire started in the bell tower, which is at right.  (The two pictures here are from last summer, pre-fire, obviously.)

Fans of monuments will be happy to learn that the Confederate statue out front of the courthouse is still standing.

Below I have another view of the front of the of courthouse.  Tragically, not only was the building lost -- but it looks like a number of ancient documents were, as well.  I wouldn't have gotten to it this summer, I'm certain, but Pittsboro was on my list of places to visit to see about their antebellum records--particularly their probate records.  I'm very sad to have to cross off Chatham County as a comparison point for  Greene County's antebellum probate records.

 I went back a few days later to take another look around.

Posted below are two photographs of the post-fire building.

 
And here's one of some of the remnants of the building -- looks like a bench survived.

 

New Law Dean at Oklahoma

Story here.

David Meyer Named New Dean At Tulane Law

David Meyer, who is currently serving as associate dean of academic affairs at the University of Illinois, will be taking over as dean at Tulane Law School this July.  Meyer, a family law scholar,  joined the Illinois faculty in 1996.  He was previously the EIC of the Michigan Law Review and clerked for Byron White.  His wife, Amy Gajda, will become an associate professor at Tulane Law.

You.Me.We.

Friends, it’s been five years since the levees broke in New Orleans, and I’ve been blessed to have many of you support the work I’ve done on the Gulf Coast. Well, today I’m happy to announce the formation of You.Me.We., an advocacy center I’ve started with my good friends Prof. Tracy McGaugh and Cheryl Van Dyke.

You.Me.We. will defend human rights and the rule of law in the aftermath of disaster, and our first mission starts this week, in Port au Prince, Haiti.

Experience has taught us that the devastation of a ‘natural’ disaster is socially constructed, the result of government neglect and abuses of power against the world’s most vulnerable populations. We know too that disasters compound vulnerabilities, setting the stage for even more exploitation and hardship. But we’ve also seen affected communities ‘rise above the storm’ so to speak, to survive and sometimes thrive against all odds. We simply cannot put into words what that has taught us about the human spirit.

And so we came together, as You.Me.We., to do what we can to resist and redress disaster-related human rights abuses. It is, to a large extent, our way of honoring the good people of New Orleans and elsewhere who’ve left an indelible mark on our lives.

Hopefully we'll be able to post updates to the Lounge from Haiti, and if you'd like to know more about our work moving forward, here’s how:

• Web: www.drlpc.org (where you'll find links to the feeds below)

• Twitter: @disasterpolicy

• Blog: http://www.disasterpolicy.blogspot.com

• Facebook: You. Me. We.

Many thanks to our families, friends and colleagues who’ve also made this possible. We hope to do you proud!

-Kathleen Bergin

TLC To Introduce Reality Show Featuring Sarah Palin

With the caveat, of course, that it will be as much about Alaska as Palin.  Democracy and entertainment remain closely entwined...

Harvard Law Prof Says "Dang Gummit"!

Jodi Kantor of The New York Times has a story on, and video interview with, Elizabeth Warren this week.  (Professor Warren has been the subject of previous Lounge posts here, here, here, and here.)

See story here.

See video interview here.

La Panique Moral De Jour?

C'est flash mobs, bien sûr!

Duke Crowned Tourney Champion!

The men's college basketball tourney resumes tonight, as we pare down the "sweet 16" to the "final four" by Sunday afternoon.

Here's a forecast:  Duke, Cornell, Georgetown, and Vanderbilt survive the weekend, and Duke beats Georgetown in the championship game.

Say what?

See brackets here (based on post-graduation salaries). 

Hat tip:  TaxProf Blog.

Kieran Healy On The Irrelevance of Law (and Motives)

Duke sociologist (and Crooked Timber blogger) Kieran Healy visited my Taboo Trades and Forbidden Markets seminar this week to discuss his book, Last Best Gifts (University of Chicago Press, 2006) -- a study of the social organization of exchange in human blood and organs – as well as his research on presumed consent laws (See, Do Presumed Consent Laws Raise Organ Procurement Rates? DePaul Law Review, 55:1017–1043 (2006)) (PDF).  Healy has also written several other articles about gift and market exchange in human blood and organs and, in addition, studies the moral order of market society (See, for example, Marion Fourcade and Kieran Healy, Moral Views of Market Society. Annual Review of Sociology 33:285–311 (2007) (PDF.))

This was an in-person meeting that I’ve been eager to arrange for some time.  I discuss the book every year, and recommend it to anyone interested in blood and organ exchange.  I have also assigned the Moral Views piece in prior years, and naturally all of this work has impacted my own research on these and related topics.  But I had not read the Presumed Consent article until now, which has been my loss.  And if you haven’t read it, you really should rectify that, even if you have no interest in organ procurement or presumed consent rules.

Here’s why. In brief, the article is a comparative study of rates of cadaveric organ procurement in seventeen OECD countries between 1990 and 2002.  Those in the United States (and other countries, including the UK) concerned with insufficient cadaveric donor rates frequently advocate a switch to a presumed-consent legal regime (as opposed to the US informed consent regime), as a quick fix to the problem of under-supply.  This seems logical enough – in other contexts we have reason to believe that alterations to the default rule, and particularly from an opt-in to an opt-out regime, may meaningfully impact behavior.  This is especially plausible when the law functions as some sort of signaling device about societal norms or when, as in the case of organ donation, choosing involves scenarios – death – that one prefers not to contemplate, perhaps causing inertia. 

But in the case of cadaveric organ donation an additional argument is typically put forward in favor of presumed consent: the removal of next of kin from the decision-making process.  Though the Revised Uniform Anatomical Gift Act specifies that family consent or concurrence is not required, the reluctance of procurement organizations in the U.S. to proceed with organ retrieval against next-of-kin wishes has been generally recognized. 

Yet Healey finds that presumed consent laws do not make a material difference to the procurement rate.  Importantly, presumed consent laws typically do not remove the next of kin from the procurement process.  Although presumed-consent countries have somewhat better procurement rates on average than informed-consent countries, Healy concludes that this is not because of any direct effect of the law on individual choices.  Instead, improved donation rates appear driven by substantial investment in the logistics of organ procurement – better training, clear delegation of responsibility, and a strong presence in hospitals, for example.

This is not the first finding of legal regime irrelevance, of course, but it’s a particularly interesting one, nonetheless.  Moreover, as I’ve noted in prior posts, questions about the structure of organ exchange and other taboo trades are dominated by debates about motives – whether those participating in the exchange are behaving altruistically or selfishly.  But Healy’s research calls into question the extreme attention devoted to this aspect of the organ debate.  At the least, it has a tendency to obscure structural, cultural, and organizational differences that may largely drive differences in procurement rates, and distract attention from possible reforms that could increase procurement rates.

To get a flavor of the day, watch this interview with Healy:

A Note on Notes

Now that the law faculty hiring season is coming to a close, I have started to wonder about…closure. Do candidates send handwritten thank-you notes for any reason, or is this practice limited to days gone by (and the kitschy Jimmy Fallon skit)? Personally, I think handwritten notes offer a nice touch, particularly for personal gifts and especially-kind gestures. So, my question of the day is, when is the last time you sent an actual (and not e-mailed) note of thanks?

So You Want A Law School? Merger vs. Startup

If there's one thing that's clear, it's that lots of colleges and universities covet a law school. The reasons vary. For research universities, a law school serves to complete a portfolio.  For smaller schools, it can place them on the map.  And finally, there are a few schools that are simply built to make money.  At the moment an institution decides to start down the law school path, it has to face a crucial choice: start-up or merger.  For-profits and smaller non-profit schools usually have little choice but to start fresh; few existing law school see a benefit from linking up with these smaller fish.   I want to focus a bit on bigger institutions: private research universities and state universities.  They can choose to build or merge.

Consider four schools in this category which have recently made the big move.  Drexel and UC Irvine decided to start new schools; UMass and UNH have started down the path of merger (with Southern New England and Franklin Pierce, respectively.)  What are the pros of each path?

The biggest advantage to a start-up is faculty quality.  You can build a great law school when you start from scratch in this market (particularly when you're located in an attractive place).  UCI has gone with a senior, and highly productive, startup crew.  The reputational payoff has been immediate: based on their prior work, Brian Leiter slates their faculty number 9 in his recent scholarly impact ranking.  Drexel has tilted strongly toward junior faculty - but (in all immodesty) it's a superb group in terms of both paper credentials and intellectual and scholarly chops.  (While I'm clearly biased, I encourage readers to test my claim.)  It would have been near impossible for either UCI or Drexel to have acquired an existing faculty of comparable quality.

Another big plus for a start-up is the ability to create both an agenda and a culture.  Consistent with current critiques of legal education, both Drexel and UCI have strongly emphasized the value of skills training.  At the same time, both are deeply interdisciplinary in approach and dog-on-the-bone about producing high-end scholarship.

Why might a school choose to merge?  The first obvious answer is lower front-end transaction costs.  You already have an administration.  Starting a new law school is incredibly time consuming for both faculty and administrators, and inevitably involves driving through a lot of potholes.  You also already have a faculty, which means you don't need to spend five years in endless job talks.  And a merger might even obviate the need for costly real estate development...although UMass and UNH have presunably planned for some significant building costs.  

You also acquire an alumni base which could potentially help with both fundraising and job placement.  You carry forward your existing reputation with employers.  (This could be a plus or minus, of course, depending on the school.)  If you merge with an ABA accredited school you may score an additional benefit: avoiding any period  where you lack the ABA imprimatur.  Even if you have a one year accreditation gap, students are likely to be less anxious knowing that the school once was, and thus likely will be, accredited. 

Mergers make sense for schools that want to add a fully grown law school quickly.  Start-ups make sense for universities who want greater control over the nature and quality of their law school. 

To be sure, there are many, many more considerations.  For example, as in the case of UMass Dartmouth, a merger was the only realistic way in which that campus would gain a law school.  If UMass were to have considered a start-up, it almost certainly would have been placed at either the Boston or Amherst campus.   New Hampshire has a limited capacity to absorb another law school.  If UNH had chosen a start-up, it would have been forced into a (costly) battle with Pierce for the best students - which could have produced two losers.

Gift Cards

Yesterday the FRB issued final rules addressing fees, expiration dates, and other unpopular features that sometimes accompany gift cards.  The final rules become law on August 22, 2010.  The changes are enacted as amendments to Regulation E (which implements the EFTA).

The FRB's press release is here.

The FRB's "highlights" memo is here.

And the FRB's lengthy report is here.

For one entity's concerns that the changes don't go far enough to protect consumers, see this story.

Guess I should give some thought to tweaking my Payment Systems course!

Learning from Madoff

Professor Lisa Fairfax has an excellent post over at Concurring Opinions sharing some of the insights she gathered during GW’s recent conference, Madoff One Year Later: What Have We Learned?.  Now, I have a special interest in this subject, because back in December, my colleague Jarrod Wong and I published an article, Clawbacks: Prospective Contract Measures in an Era of Excessive Executive Compensation and Ponzi Schemes, 94 Minn. L. Rev. 368 (2009).

So, given the title of the conference, what can we learn?  Here is a clip of Madoff being interviewed about his investment strategy.  The interview is about thirty minutes long, and it’s fascinating to hear Madoff discuss his “trading logic to manage position risk” (which the interviewer didn’t understand).  Madoff also rails against any government regulation (and of all people, “the academics.”).  If it weren’t for the fact that investors and charities lost billions, this clip would be rather hysterically funny.  Instead, Madoff’s lies are just chillingly evil.

I guess there are the standard lessons: Ask questions; Pay attention to whistleblowers; If it sounds to good to be true, it just might be; More enforcement of existing laws on fraud.  But more than that, my co-author and I suggest that investors could protect themselves though a contractual solution, so that the latest investors in a ponzi scheme do not wind up the biggest losers.

Overheard on the AALS Contracts Listserve

Deborah Post (Touro) posted a picture of the home that the plaintiff contracted for in the famous case of Jacob & Youngs v. Kent.  Richard Carlson's (South Texas) reponse?:  

“Thanks, Deborah, but I don’t think I’d like to stay there.  I hear it has bad plumbing.”

Best laugh I've had all day.  Thanks, you two!

Article Submissions: A Proposal for Journal Editors

Here's a proposal directed to journal editors.

Consider asking authors to accept or reject your offer within 24-48 hours of extending the offer.  A week?  Too long.  Two weeks?  Nonsense.  Authors shouldn't submit to you if they aren't prepared to accept your offer.  And we all know what many authors do during whatever time period you give for a response.

For authors who recoil at the thought, ask yourself this:  What response time did you expect (or request) when a judge made you an offer in response to your clerkship application?

California's Fiscal Crisis Forces Re-Evaluation of Sentencing

Well, the fiscal rubber has finally hit the  sentencing and prison road in California.  As the New York Times details, the state's financial crisis has forced open early release for some prisoners for the first time in years:

The California budget crisis has forced the state to address a problem that expert panels and judges have wrangled over for decades: how to reduce prison overcrowding.  The state has begun in recent weeks the most significant changes since the 1970s to reduce overcrowding — and chip away at an astonishing 70 percent recidivism rate, the highest in the country — as the prison population becomes a major drag on the state’s crippled finances. . . . The goal is to reduce the number of inmates in the state’s 33 prisons next year by 6,500 — more than the entire state prison population in 2009 of Nebraska, New Mexico, Utah or West Virginia. In all, there are 167,000 prisoners in California.

California's prisons are notorious for overcrowded conditions, and its fiscal crisis has certainly not helped matters.  The solution the state has come to--early release of non-violent prisoners who are unlikely to recidivate--is being watched with great interest by other cash-strapped states.

Our criminal justice system has long over-relied on long sentences and continual building of prisons to try to control crime, all of this ironically as crime has gone down over the past 40 years (and has continued to go down even in the recession).  Perhaps the simple lack of cash on the part of state governments will finally force some more reasonable thinking in sentencing.  Of course, as the article points out, the early release of California prisoners is not accompanied by any form of drug or alcohol counseling or rehabilitation to help prevent recidivism.  But it is a step in the right direction. 

El Pueblo Unido Jamás Será Vencido

But as progressive law professors age, the battles change. 

$600 per square foot and you're not even in Manhattan? It's a shonda!

Extreme Outsourcing

Somehow, despite my interest in outsourcing and labor value arbitrage, I seem to have missed this story last year.  But a student (thanks, Bo!) sent me this link to the “ethics of outsourcing pregnancy.”  Then, looking around, I found this article (on the online U. Illinois Law Review) website on the same topic.  Given Kim’s interest in taboo trades and my own interest in labor and employment law, I must say that I find the outsourcing of pregnancy simultaneously fascinating and disturbing. 

 

Carrying a child involves (literally) “labor” – just the kind that is out of the market, the unpaid, uncompensated kind of work characteristic of traditional women’s work in the “private sphere.”  Why not allow these third world women the opportunity to benefit from their reproductive capacity?  According to this account, women in India who are gestating the babies are being paid quite well, given the standards of the local economy.  On the other hand, there is possible dignitary harm, and the pigeonholing of women into “just being their reproductive capacity.” 

 

So far, those who are hiring these surrogates are usually infertile couples.  I suspect that there might be more controversy if those doing the hiring aren’t infertile, but rather women who would prefer not to go through the process of carrying a child (and would be willing to pay to avoid it).  That's my suspicion, although I'm not really sure why that factor should matter.

 

[Hat Tip: Bo Bai]

If God Wrote A Novel ...

... would it be Anna Karenina?

Some reflections here.