The Faculty Lounge

Penn State Law To Split Into Two Schools

Penn State Law announced to students this week that the University plans to split the law school into two separate institutions starting in 2015.   I have many thoughts about this decision, but my first instinct is that it might mark  the beginning of a  reputational divide between the two Penn State law schools.   The biggest fear for the Carlisle folks will be  that their campus will be used by the University to generate revenue, with less concern about admissions predictors and resources (notwithstanding reputational costs) while the other campus will be allowed to maintain high credentials and substantial investment in faculty, protecting reputation,  even if those features come at significant cost to the University.   

A Memorable Thanksgiving Bird

I've never heard of, or seen, a bacon wrapped turkey.  But today, the Swarthmore Co-op (my local gourmet-ish food store) featured this elaborately bandaged bird on its Facebook page.   I don't have a good excuse for sharing the picture except that it was one of the more memorable images I've seen recently.  People will disagree about whether it's disgusting or incredibly alluring - but I certainly didn't find it to be mundane.  Happy holidays!

 

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like, ironic

Christy Wampole’s NYT essay wages, so she says, an un-ironic protest against irony. Specifically, the irony of hipsters is her object of criticism: She argues that twenty-something or early thirty-something hipsters are shorn of seriousness, earnestness, and genuineness. Sad times, she shakes her head, sad times.

I’m all for seriousness, earnestness, and genuineness, of course; who isn’t? So I agree with Wampole’s general position. But I couldn’t understand what she was saying. Most of it, anyway. In spite of herself, she came off as so. . . ummm. . . ironic. (I'm almost tempted to read the essay as a satire about satire.)  But she is being earnest about being earnest. 

Born in 1977, Wampole says that the good old days were back in the nineties which “now seem[] relatively irony-free.” As someone who is only eight years older than her, I thought she was being ironic. The 1990s were rampant with irony, at least in my idiosyncratic corner of the college and law school universe: The Talking Heads, REM, the Smiths, the Police; Derrida and Foucault and a bunch of other French writers whom I didn't like; Seinfeld, the Simpsons, and the great Chris Elliot. The creation of the magnificently indulgent pulpy rag called Spy Magazine, which had dwelled, back in the nineties, on "slackers," the precursor to the contemporary hipster.  The relatively irony-free nineties? I don’t get it.

And then there is Wampole’s claim that these young folk—these twenty-something hipsters—aren’t engaged morally in their world. They opt for aloof irony rather than moral commitment. This claim seemed an unintended bid for irony as well. I don’t know such hipsters and have never met any. My students—twenty-something, sophisticated, and yes, hip—are indeed ironic. But their irony, when directed to themselves, is self-effacing, and when directed toward the pompously self-important, is meant to puncture their fat hypocrisy. My students wear corny Miami Vice T-shirts (Miami Vice, good Lord, a show that burned with irony even when it was popular) and the cornier Members Only jackets from the 1980s (one student, after becoming a lawyer, even bought me a jacket, a touching gesture, as I had once quipped in class that my parents never had the money to buy one for me in elementary school.). But these students also volunteer to clean beaches, show up at soup kitchens, and donate countless pro bono hours. So, I can’t help but think that there was something ironic when Wampole denounced young hipsters as consumed by irony.

Wampole also mentioned the fall of the Berlin Wall and 9/11. But aren’t communism (and fascism), along with religious fundamentalism (by angry Christian fanatics and Islamic terrorists, alike) morbidly absent--indeed, contemptuous of--irony? They’re whole mentality is built on Earnestness, Seriousness, and Genuineness. Imagine if these people were more ironic, and hence more skeptical, more humorous, more willing to grin at diversity, hypocrisy, and fulsome righteousness. If you go to the reader comments on the NYT, you can read that a fabulous cross section of people—senior citizens, suburbanites, city folk, women, men—have dismissed Wampole’s fatuous gripe against irony. To the extent that such a cross section represents the mainstream, what we have is an odd outcome; the mainstream coming to the defense of the hipster.

How ironic.

More on Filler's Comparison of 2011 and 2012 Predictors

I spent a little time looking at Dan Filler's data that compares the 2011 and 2012 entering first year student credentials (what he calls predictors).  Obviously we don't yet have data on all schools (and I also omitted schools that list separate credentials for part time and full time students).  But I wanted to talk a little bit about the differences that are emerging.  I hope to have a couple of posts on this.  Let me start with a comparison of LSAT median scores of students entering law school in 2011 and 2012.  The 2011 LSAT median was 158.48 and the 2012 LSAT median is 157.82.  The mean difference = -0.65, SD = 1.02, N = 101.  The correlation between the 2011 and 2012 medians in the 101 schools is .98.  

The below table shows the percentages of schools at each tier of U.S. News for which the 2012 LSAT median is reported.

	 N      N with % with
Tier	total	data	 data

1	51	28	54.9
2	50	32	64.0
3	46	27	58.7
4	50	21	42.0
Total	197	108	54.8

Inroads Into Shakespeare

For those parents who may be having trouble getting their teenage children to read or understand Shakespeare, I've just come across an interesting companion to "Hamlet" which might be more effective than Cliff Notes in thinking about the story.  "Ophelia" by Lisa Klein is a young adult novel which retells the events of "Hamlet" from Ophelia's point of view, starting in her childhood and ending after the close of events in "Hamlet".  Although the story is kind of overdone in places and certainly takes SOME liberties with Shakespeare's plot, it's intriguing to think of the story from another character's point of view and may be something that at least teen girls can relate to better than they might be able to relate to the play itself.  So for those interested in some Thanksgiving YA reading with your teenage girls, I recommend it for what it's worth.

THE WAR IN THE SOUTH

    I have not spent much time either in the rural South or the Midwest.  (I am glad to hear that Indianapolis has a fine Civil war memorial, although as a native Baltimorean I try and stay away
from Indianapolis.) In New England, the memorials are all of common soldiers, at least outside the big cities. In the South, at least in the cities, the memorial are all of generals.  I have always thought that reflected a profound difference in outlook—the South was hierarchical and the North the home of the common man.  Thus, Northern monuments focus on the sacrifice of Northern soldiers, but perhaps that focus merely reflects the fact that the Southern generals—esp Lee and Jackson—were more heroic (in a movie sense).  After all, Grant and Sherman were even better generals, but they lack the panache of the Rebs, and they also do not representa “Lost Cause.’  Perhaps Al and other
commentators might have something to say on this.

A few years ago I was in rural Georgia in a small town where a sign told me that the town was spared from Sherman’s soldiers because the town’s mayor and Sherman had been friends.  My immediate
thought was—“No one’s perfect.”  In other words, this town also should have been burned by Sherman.

The town was lovely, and it would have been a great loss to have burned it.  Things of beauty are, of course, all too rare. On the other hand, the beauty was built on the backs of slaves, and Sherman’s March to the Sea was designed to destroy Southern resistance.  Moreover, the buildings that survived surely
passed into the hands of those who inherited them from slave labor.  Why should those owners have been exempt from the whirlwind that they sowed?

 

Points of Deference in Faculty Hiring

In the context of faculty hiring, most schools employ various levels of scrutiny on the path toward making offers.  Most, if not all, schools will use some form of committee vetting process, and the committee will ultimately make a recommendation to the faculty.  Committees will rely to a greater or lesser extent - depending on the level of the hire and the faculty by-laws - on external references.  Even deans have some input in the process because they are the ones who, in the final analysis, extend offers and negotiate contract terms with candidates, thereby perhaps enhancing or lessening the likelihood that a candidate will accept an offer.

I've become interested in what degree of deference is accorded to these different levels and types of review throughout the processes at different schools.  Some schools seem to rely heavily on external review letters even in pre-tenure lateral hires.  Some schools require few external letters even when making a tenured hire.  Some schools require detailed written recommendations from committees to the full faculty whereas others rely on a verbal report from the committee chair.

Do these differences suggest differences in the actual level of deference given to committees and external reviews, or are they different ways of getting to the same result?  For example, in a school where the committee is not required to provide a written recommendation to the faculty, is there likely to be more deference to the committee (or perhaps less) than in a school where the committee is required to make a detailed written recommendation to faculty including copies of external review letters?

My interest stems from the fact that I came from a system years ago in Australia and the UK, where the dean himself/herself made all the offers to candidates, perhaps on the advice of a committee and with some limited input from faculty, but with no faculty votes on the issue of hiring.  I'm wondering if we'd get very similar results by defering more to deans and/or committees with a lot less work and angst on the part of the faculty as a whole.  I like the idea of faculty governance and of faculty having a say in who ultimately gets to become a colleague.  But I'm also wondering if there are large efficiency costs and if the results are significantly different at the end of the day from a system where faculties defer more to committees, deans and/or external reviewers.

Law Schools Shrink And See Drop In Predictors

We compiled this chart of 2012 law school entering class sizes and predictors  a few weeks ago, using law school website information.  Apologies for any errors - and sorry it's not totally up to date.   But the punch line is: on a widespread basis aggregate 1L class sizes are contracting and predictors are dropping.  And as my recent post suggests, this is not the end of the story.

The real question is how much universities are willing to either a) reduce overhead costs for law schools or b) absorb losses by law schools.  Even small class size reductions mean serious revenue losses for law schools, viewed over a three year period.  For example, a school with an average tution of $32,000 (imagine a $40,000 sticker price with an average discount rate of 20%), that reduces its entering class in Year 1 from 300 to 270, will see revenue drop $2.8 million over three years.  And that assumes that the school bounces right back up to a class of 300 the next year.  Replicate that class of 270 in Year 2 and now you're looking at a dip in revenue of $5.6  total.  And none of this takes into account increased discounting, the less visible approach to maintaining entering class credentials.

Fewer students.  Lower effective tuition.  This is probably a healthy phenomenon, and it suggests that the market works, more or less.  But in order to sustain this reduction, schools must reduce costs.  For some law schools, the reduction might be entirely carried by the University - in the form of reduced overhead payments or actual subsidies.  But it's pretty easy to imagine that for most schools, and particularly for free-standing institutions, the reduction will have to be paid for with budget cuts and efficiency gains.

My sense is that this year's entry level hiring reflects this reality: fewer schools attending the AALS hiring conference and, anecdotally at least, fewer hires.   The longer term story remains to be written.

Update: Some readers have had difficulty downloading the chart which is in a recent version of Excel.  I have uploaded  an Alternative 2012 Law Class Profile Chart in an earlier version of Excel.  Perhaps thsi will help.

The Israeli-Palestinian Conflict: A Reading List

This compilation is marked by two conspicuous constraints: largely (i.e., with a few important exceptions) books only, in English. The first constraint is owing to the desire to keep the list manageable, the second because I’m not well acquainted with the bulk of the literature in other languages. I welcome suggestions for further titles.

• Abbas, Mahmoud (Abu Mazin). Through Secret Channels: The Road to Oslo—Senior PLO Leader Abu Mazen’s Revealing Story of the Negotiations with Israel. Reading, UK: Garnet, 1995.
• Abu-Lughod, Ibrahim. The Transformation of Palestine: Essays on the Origin and Development of the Arab-Israeli Conflict. Evanston, IL: Northwestern University Press, 1971.
• Abu-Lughod, Ibrahim. Palestinian Rights: Affirmation and Denial. Wilmette, IL: Medina Press, 1982.
• Abu-Lughod, Ibrahim, ed. The Arab-Israeli Confrontation of June 1967: An Arab Perspective. Evanston, IL: Northwestern University Press, 1970.
• Abuminah, Ali. One Country: A Bold Proposal to End the Israeli-Palestinian Impasse. New York: Holt McDougal, 2007.
• Alam, M. Shahid. Israeli Exceptionalism: The Destabilizing Logic of Zionism. New York: Palgrave Macmillan, 2010.
• Aranson, Geoffrey. Israel, Palestinians and the Intifada: Creating Facts on the West Bank. London: Kegan Paul International, 1990.
• Arnon. Arie, Sara Roy and Leila Farsakh. Palestinian Labour Migration to Israel: Labour, Land and Occupation. London: Routledge, 2005.
• Aruri, Naseer H. The Obstruction of Peace: The United States, Israel and the Palestinians. Monroe, ME: Common Courage Press, 1995.
• Aruri, Naseer H. Dishonest Broker: The Role of the United States in Palestine and Israel. Cambridge, MA: South End Press, 2003.
• Aruri, Naseer H., ed. Occupation: Israel Over Palestine. London: Zed Books, 1984.
• Asali, Kamil J., ed. Jerusalem in History. New York: Olive Branch Press/Interlink, 2000. 
• Auyyad, Abdelaziz A. Arab Nationalism and the Palestinians, 1850-1939. Jerusalem: Passia, 1999.
• Avineri, Shlomo. The Making of Modern Zionism. New York: Basic Books, 1981.
• Awad, Mubarak. Nonviolent Resistance in the Middle East. Philadelphia, PA: New Society            Publishers, 1985.
• Awad, Mubarak E. and R. Scott Kennedy. Nonviolent Struggle in the Middle East. Philadelphia, PA: New Society Publ., 1985.
• Barghouti, Omar. BDS: Boycott, Divestment, Sanctions—The Global Struggle for Palestinian Rights. Chicago, IL: Haymarket Books, 2011.
• Baroud, Ramzy. The Second Palestinian Intifada: A Chronicle of a People’s Struggle. London: Pluto Press, 2006.
• Baroud, Ramzy. My Father Was a Freedom Fighter: Gaza’s Untold Story. London: Pluto Press, 2010.
• Beinin, Joel and Rebecca L. Stein, eds. The Struggle for Sovereignty: Palestine and Israel, 1993-2005. Stanford, CA: Stanford University Press, with the Middle East Research and Information Project, 2006.
• Beit-Hallahmi, Benjamin. The Israeli Connection: Who Israel Arms and Why. New York: Pantheon Books, 1987.
• Ben-Ami, Shlomo. Scars of War, Wounds of Peace: The Israeli-Arab Tragedy. New York: Oxford University Press, 2006.
• Ben-Eliezer, Uri. The Making of Israeli Militarism, 1936-1956. Bloomington, IN: Indiana University Press, 1998.
• Benvenisti, Eyal. Legal Dualism: The Absorption of the Occupied Territories into Israel. Boulder, CO: Westview Press, 1990.
• Benvenisti, Eyal. The International Law of Occupation. Princeton, NJ: Princeton University Press, 1993.
• Benvenisti, Meron. Intimate Enemies: Jews and Arabs in a Shared Land. Berkeley, CA: University of California Press, 1995.
• Bernstein, Deborah S. Constructing Boundaries: Jewish and Arab Workers in Mandatory Palestine. Albany, NY: State University of New York Press, 2000.
• Bisharat, Geroge. Palestinian Lawyers and Israeli Rule: Law and Disorder in the West Bank. Austin, TX: University of Texas Press, 1989.
• Black, Edwin. The Transfer Agreement: The Dramatic Story of the Pact Between the Third Reich and Jewish Palestine. New York: Basic Books, 2001. ed.
• Black, Ian and Benny Morris. Israel’s Secret Wars: The Untold History of Israeli Intelligence. London: Hamish Manilton, 1991.
• Bowen, Stephen, ed. Human Rights, Self-Determination, and Political Change in the Occupied Territories. The Hague: Kluwer Law International, 1997.
• Boyle, Francis A. Palestine, Palestinians, and International Law. Atlanta, GA: Clarity Press, 2003.
• Brand, Laurie. Palestinians in the Arab World: Institution Building and the Search for a State. New York: Columbia University Press, 1988.
• Brenner, Lenni. The Iron Wall: Zionist Revisionism from Jabotinsky to Shamir. London: Zed Books, 1984.
• Bröning, Michael. The Politics of Change in Palestine: State-Building and Nonviolent Resistance. London: Pluto Press, 2011.
• Budeiri, Musa. The Palestine Communist Party, 1919-1948: Arab and Jew in the Struggle for Internationalism. London: Ithaca, 1979.
• Brynen, Rex, ed. Echoes of the Intifada: Regional Repercussions of the Palestinian-Israeli Conflict. Boulder, CO: Westview Press, 1991.

Israel & Gaza

Here are some pieces I found useful for understanding the Palestinian struggle as incarnate in the latest conflict between Gaza and Israel:

Juan Cole, “Top Ten Myths about the Israeli Attack on Gaza”

Colin Dayan, “How Not to Talk about Gaza”

Richard Falk, “The Latest Gaza Catastrophe: Will They Ever Learn?”

Adam Goldberg, “Gilad Sharon, Son Of Former Israeli Prime Minister Ariel Sharon, Writes Op-Ed: ‘We Need To Flatten Entire Neighborhoods In Gaza’”

Glenn Greenwald, “Stop pretending the US is an uninvolved, helpless party in the Israeli assault on Gaza”

Mehdi Hasan, “Ten Things You Need to Know About Gaza”

Nir Hasson, “Israeli peace activist: Hamas leader Jabari killed amid talks on long-term truce”

Meir Javendanfar, “A Gaza Ground Invasion Will End Badly”

Daoud Kuttab, “Israel’s Failed Strategy”

John Mearsheimer, “A Pillar Built on Sand”

Elizabeth Murray, “Likening Palestinians to Blades of Grass”

Vijay Prashad, “The Agonies of Susan Rice: Gaza and the Negroponte Doctrine”

Adam Shatz, “Why Israel Didn’t Win”

Robert Wright, “When Will the Economic Blockade of Gaza End?”

The latest from The New York Times: “Israel Warns of ‘Expansion’ as Attack Widens to Media Sites”

and the Los Angeles Times: “In Gaza, Palestinians Torn Between Pressing On and Ending Fight”  “Likelihood of Israel Launching Ground Invasion in Gaza Grows”

Image: Columns of smoke rise following an Israeli air strike in Gaza City, Nov. 14, 2012. Image by Adel Hana/AP Photo. Courtesy of Jadaliyya.

More Turbulence Ahead: Another Plunge In LSAT Takers

The Law School Admissions Council reports a further dip in the number of students sitting for the LSAT.  According to recently compiled data from LSAC, the number of people sitting for the October 2012 LSAT was down over 16% from October 2011.  And the number of first-timer takers was down roughly 18%.  

This drop surely reflects the fact that more and more potential applicants are skittish about the value proposition of law school and their career prospects if they do attend.  For law school and university administrators, this probably means another year of nail-biting about balancing class quality against paying the monthly nut.  

With  US News hovering in the background, deans are trying to determine how many LSAT and GPA points they can sacrifice without falling behind in the ranking sweepstakes.  

And in the hallways, a few more faculty will be sucked into whispering the question: how exactly might law schools reduce the number of seats 10 or 15 percent in aggregate?

Application Alert: Baldy Fellowships in Interdisciplinary Legal Studies

From the Baldy Center announcement:

The Baldy Center for Law & Social Policy at the State University of New York at Buffalo plans to award several fellowships for 2013-14 to scholars pursuing important topics in law, legal institutions, and social policy. Applications are invited from junior and senior scholars from law, the humanities, and the social sciences. Fellows are expected to participate regularly in Baldy Center events, but otherwise have no obligations beyond vigorously pursuing their research. Fellows receive standard university research privileges (access to UB libraries, high-speed Internet, office space, computer equipment, phone, website space, working paper series, etc.) and are encouraged to develop collaborative research projects with SUNY Buffalo faculty members where appropriate. Those who wish to teach a course to aid their research or gain teaching experience will be accommodated on a case-by-case basis.

Post-Doctoral Fellowships are available to individuals who have completed the PhD or JD but have not yet begun a tenure track appointment. Post-Doctoral Fellows will receive a stipend of $40,000 and may apply for up to $2000 in professional travel support.

Mid-Career and Senior Fellowships are available as sabbatical supplements to established scholars who wish to work at the Center. Stipends will be commensurate with experience, need, and duration of visit.

Applications are due February 1, 2013.  Details are here.

Dispatch from the Archives: Can Slavery Ever Be Voluntary?

The Library of Virginia has a wonderful blog ("Out of the Box") where archivists tell the stories of people, places, and things found among the library’s collections. This week, the blog told the story of Jane Webb, a mixed-race free woman who, in 1704, offered to serve 7 years as an indentured servant with the owner of her enslaved lover in consideration for her lover’s freedom and permission to marry.  In addition, Webb promised to let the owner (Thomas Savage) “have all the children that should be bornd [sic] upon her body” during the period of servitude.  The owner agreed, and (remarkably) a written contract was executed between Savage and Webb.  At the conclusion of the 7 years, however, Savage refused to release either Webb’s husband or their children; Savage claimed that the agreement entitled him to all of Webb’s children, for a period of time exceeding her indenture.  Over the next 16 years, Webb and Savage battled in successive court cases in which each of them claimed the right to Webb’s children and her (now) husband.  In one of the cases, Savage claimed that Webb’s poverty rendered her unfit to care for her children (as “they may be induced to take ill courses”).  Ultimately, Savage (and his heirs) succeeded: Webb’s case was dismissed in 1727, and, despite her efforts, her children and husband remained bound to Savage.

The case is an interesting on a number of legal/academic fronts (property, evidence, labor, children & the law, etc.) – I’m most interested in Webb’s attempt to bind herself and her unborn children in exchange for her betrothed.  Scholars of slavery in the U.S. have wrestled insufficiently with what can be called “voluntary” servitude and enslavement. For free blacks during this era, a web (no pun intended) of hostile legislation threatened to plunge them into perpetual slavery for even minor infractions; faced with the prospects of familial separation and geographic exile (if trafficked further South), free blacks throughout the South petitioned legislatures and courts requesting enslavement.  Through this mechanism, free blacks transformed themselves into property – and their petitions provide critical insight into the role of law, race, labor, family, and limits of “freedom” in the lives of the nominally free.  Can slavery ever be voluntary?  If yes, what are the implications for our Thirteenth Amendment jurisprudence and courts' refusals to enforce personal service agreements?  I look forward to your thoughts on this.

Call for Papers: Politics and the Law & Immigration and the Law

    The University of Massachusetts Law Review is currently accepting manuscript abstracts to be considered for publication in an our upcoming May 2012 double issue that will feature manuscripts on Politics and the Law & Immigration and the Law.

    To be considered for publication, please submit your abstract and curriculum vitae to lawreviewsubmissions@umassd.edu by January 15, 2013. Space is limited, and selections will be made on a rolling basis. Articles that can be executed in 20,000 words or less are strongly preferred. Student notes may also be submitted.

     Submissions should focus on legal issues involving immigration, or on legal issues involving politics. This may include developments in theory, legislation, or recent case law. The UMass Law Review recommends submitters to take an approach that will clearly explain a problem in recent legal developments and offer a novel solution or analysis.

     All submissions should be submitted electronically and should contain an abstract of no more than 400 words. Manuscripts must conform to the Bluebook: A Uniform System of Citation (19th ed. 2010). All submissions should be in Microsoft Word format; hard copies may be sent by mail.

     A symposium titled Trends and Issues in Politics and the Law will be held at the law school on March 1, 2013. Proposals for speakers may be submitted to lawreview@umassd.edu.

     For all inquiries, please contact the Managing Editor, Ed Callahan, at lawreview@umassd.edu, or by phone at 508.985.1107.

What Is Your Dean's Favorite Band?

I recently received some law porn from Northeastern Law trumpeting the arrival of Dean Jeremy Paul.  The title of the circular is "My Aim is True" and inside we learn that Jeremy's favorite musical act is Elvis Costello.  I have it on good information that David Van Zandt's favorite band is the Cure - and yes, I have noticed that he doesn't seem to be running Northwestern Law anymore.  But I think it's a fair request, in the name of law school transparency,  that other deans share their favorite band.  Associate deans, who are more numerous, and people who either love or hate associate deans, may also share.

It's a tough call for me, but I'll go with Fairport Convention.  And no, I don't think it would be appropriate, given the current market, to lead a law school brochure with the headline "Meet on the Ledge."

 

Secession Today

There has been a lot of talk about secession and petitions seeking federal consent to secession.  This is so much venting, but Eugene Volokh, over at the Volokh Conspiracy,  has a post about the topic, to which I wish to respond.  Eugene asks:

1) "Is It a Good Idea for Some States to Secede from the U.S.?"  He thinks not; I think this is far more debatable.  Texas or California have massive economies that would enable them to exist independently. Arkansas, not so much.  From the perspective of an individual state, secession might make sense (although each new nation would have to assume the burden of currently shared expenses, such as natinal defense, and the efficacy of such individual defense forces would likely be less than the current unified national defense).  From the standpoint of the nation as a whole, it's a bad idea, as Eugene contends.  But the relevant question is what each state would gain or lose by secession.  On that view, the answer is debatable and variable.  This is not a call for secession, or even an endorsement of the idea; it's a recognition that individual components of a federal union may have more to gain or lose by secession. 

2) "Do States Have a Legal Right to Secede on Demand?" Emphatically no.  The idea of the nation as a voluntary compact among independent states died with the Civil War, and Texas v. White is clear precedent rejecting any right of secession. 

3) "Is It Legally Possible for States to Secede?" In Texas v. White, the Court stated: "The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States. When, therefore, Texas became one of the United States, she entered into an indissoluble relation. All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State." The resulting question is whether secession can be accomplished by ordinary legislation permitting withdrawal, or whether it requires constitutional amendment.  The case for ordinary legislation inheres by implication from Art I, s. 10, which gives Congress power to consent to foreign compacts, and Art. IV, s.3, which empowers Congress to expand the Union and gives Congress a veto over reconfiguration of states.  If Congress may bless foreign compacts of a state, one such compact might be Texas or California secession coupled with the state joining Mexico as a state.  There is no substantive difference between that and naked secession.  The Art IV veto over state reconfiguration is akin to blessing a state's voluntary decision to withdraw.  But perhaps Texas v. White states a rule from which Congress may not deviate, so amendment would be necessary.  None of this will happen, so it's academic musing.  (But I also thought the Soviet  Union would not break up.)

4) "Is It Treason for People to Call for Secession?" Not even close, absent some actual conflict with a foreign power to which calls for secession might be regarded as giving aid and comfort to the enemy.  What is happening is that people are exercising their First Amendment to "petition the Government for a redress of grievances."

5) "May People Who Call for Secession Be Deported?"  I assume this question is directed at citizens or lawful resident aliens.  Of course not.  This is protected expression and, in any case, the United States cannot strip citizens involuntarily of their citizenship.  Resident aliens may not be deported except for commission of certain crimes.  Exercising one's speech rights is not a crime.  (Who would have thought it necessary to say this?)  

Secession is not going to happen, absent some dire unforeseen circumstances.  But because I post on a blog that is the "Go-To Source for Breaking News About Confederate Monuments," I thought I had an obligation to speak out on secession. 

What Matters Most (in legal ed these days)

For those of you who noticed I hadn’t posted here lately, thanks for noticing.  I’ve been listening and thinking, two virtues we all too often honor in the breach.  What I’ve mostly been listening to and thinking about is the swelling threnody bemoaning—or in some cases celebrating—the impending Demise of Legal Education As We Know It.

What all this shouting about Fraud, Failure, Exsanguination, Plague and Death has given me is an appetite for some perspective.  (My favorite Thanksgiving side dish, inexplicably not served in many American homes these days.  Go figure.) 

What kind of perspective?  Let’s start with some clear thinking about What Matters Most in legal education’s current circumstances.  What I mean by this is that we ought to start our discussion about What’s Broke and How To Fix It by isolating, among the many matters of legitimate concern at this time of profound and rapid change, which ones are the most fundamental—the ones that provide the necessary backdrop and context for the rest.

I’m going to start that effort here. I’m working on a longer piece that will explore these issues at greater length and with some effort at empirical support, but as the lamentations swell, I’ve become increasingly concerned that this question is getting drowned out, and at some considerable expense to clear thinking.  In my efforts to isolate What Matters Most, I imagine I will exasperate quite a few of you who are understandably preoccupied with issues that I don’t think Matter Most.  So let me be clear:  The issues that I don’t think Matter Most are still very important, and deserve concerted attention.  But those issues are not are the ones that necessarily define the context for plausible definitions of problems and solutions.  First things first.

There are roughly three categories of contumely being heaped on the legal academy these days.  Two of them have received disproportionate attention, and what’s striking is that they are pretty clearly not the ones that Matter Most.  Those two are arrays of related contentions (1) that law school fails to prepare students for practice; and (2) that law school costs too much.  Let me say again before readers start calling me names in the Comments that these concerns are, in one formulation or another, both quite important and quite well taken.  But they’re not What Matters Most. 

What Matters Most is that there are today significantly more seats in accredited American law schools than there are entry-level law jobs for the emerging graduates.  This is obviously neither an original nor a novel observation; lots of people in addition to me have written about it.  But its fundamental importance has received surprisingly little attention. 

To appreciate why it’s important, let’s refine the observation a little.  You can argue about how big the overproduction of law graduates is right now.  Numerous commentators have focused on ABA employment statistics counting the number of law graduates who have found full-time, long-term jobs requiring a law license within nine months of graduation to argue that something like half of all recent law graduates are “unemployed” or “underemployed.”  For reasons I have elaborated on previously in this space, I think this overcounts the number of law graduates unable to make good use of their law degrees in the job market.  But however you count it, the overproduction is currently very substantial.  I’m still working with the data, but I would estimate overproduction of law graduates today at about 1 in 3—that is, that roughly 1/3 of recent law graduates cannot get a job that makes good use of their law degrees. 

You can also argue about how long the overproduction will last—that is, how much of this overproduction is cyclical, caused by depressed demand for legal services resulting from our depressed economy; and how much is structural, resulting from changes in the provision, staffing and pricing of legal services driven by changes in technology and business practices.  The difference is critical, because cyclical forces should largely resolve themselves as the economy eventually improves, while structural forces should force long-term reduction in the demand for young lawyers regardless of the pace of economic recovery.  I was on record early with the view that the changes we are observing in recent years are much more structural than cyclical in origin, and what has happened since has only confirmed that the sudden reductions in law jobs that have emerged since the economy crashed have resulted predominantly from pent-up structural forces that had been building for years. 

If that’s right, What Matters Most is the current and foreseeable future overproduction of law graduates.  Period.  This matters more than law schools’ pervasive failures to prepare their students adequately for practice—failures that, by the way, have persisted for at least a generation and probably two during which demand for young lawyers grew rapidly and consistently.  Why?  Because the reason that substantial numbers of recent law graduates cannot get a law-related job is not for lack of practical training.  It is for lack of jobs.  Schools that improve their practical preparation may help their graduates seize a marginally greater share of the limited law jobs available, but they will not materially expand the job market.  While my friends in the Crisis Chorus would probably liken this to improving your chances at Musical Deck-Chairs on the Professional Titanic, I reject this metaphor, but only because I deny the analogy to the Titanic, not the very apt analogy to musical chairs.  Again, this is not to say that curricular reform is not very important and long overdue, but it is not What Matters Most.

Similarly, overproduction of law graduates matters more than the excessive cost of a law degree (and the indiscriminate availability of government lending to fuel its increase).  Why?  Because the reason that substantial numbers of recent law graduates can’t get a law-related job, or a law-related job that pays enough to service their student loan debt or economically justify the cost of their professional degree, is not mainly because they are overburdened with debt.  It is because they are undersupplied with jobs.  If there were any more law-related jobs available, even at very low pay, the unemployed and underemployed recent law graduates extant today would be swarming to fill them.  But they don’t exist.  And lowering the price of a law degree will not create more law jobs.  In most markets, if you lower price, demand rises.  So if you lower the price of a law degree, on the margin you will induce more people to apply to law school (lower cost; lower risk; why not see how I do?), and create an even greater oversupply of law graduates.  Is this wise?  Yet again, I am not suggesting that there is much good to say about the manner in which legal education is currently priced and funded.  Nor am I suggesting that every law school should remain as expensive as it is.  But I am suggesting that, if the markets want cheaper law degrees, ordinary price competition (with some interference from regulatory forces such as accreditation and licensure standards that may need attention) should help provide solutions.  Watch for it in the next 12-24 months.  But with all respect to Jimmy McMillan, I’m not prepared to join The Rent Is Too Damn High Party.

I’ll have more to say about this in coming months, but this post is already long enough.  The long and the short of it is that What Matters Most is that there are too many law-school seats and not enough law-grad jobs.  In most markets, what happens when there is an oversupply is that production and price fall until the market clears.  That’s already happening today.  Prospective law students have become aware of the undersupply of law jobs, and law-school applications are falling significantly.  Many law schools appreciably reduced the size of their entering classes this fall in response to the falling number of qualified applicants.  Price competition on tuition (right now predominantly through the tactical use of financial aid) is being reported.  Many schools will shrink, and some will fail.  Many will experiment with curricular, placement and financial innovations to meet the demands of the times and attract more and more-qualified applicants.  Critically, all of this will be driven by the applicant pool’s perceptions about what kinds of value a law degree will furnish by the time you’re done getting one.  And that’s why the oversupply of law-grad production and the undersupply of entry-level jobs are What Matters Most right now.  The really interesting questions are which schools are going to be most and most quickly affected by these forces and how. 

Stay tuned.

--Bernie 

Berman Leaves GW Law Deanship To Become Vice-Provost

Dean Paul Schiff Berman at George Washington University School of Law will be leaving his post in January to take over as the University's Vice-Provost for Online Education and Academic Innovation.  He has served 14 months as leader of the law school having joined GW from Arizona State Law.  

"The Suicide Plan"

On Tuesday evening, November 13, PBS will be airing, "The Suicide Plan," an impressive look at underground aid in dying (or assisted suicide). Despite legal prohibitions on aid in dying, most recently reaffirmed last week by voters in Massachusetts, patients and their advocates may resort to the practice for relief of suffering. The show illuminates factors that drive people to defy the law, the costs to dying patients and their families when aid in dying is prohibited, and the concerns that observers express about the practice.

Bertram Wyatt-Brown (1932-2012)

I see from the Southern Intellectual History Circle page on facebook that distinguished historian Bertram Wyatt-Brown passed away on November 5.  Wyatt-Brown was educated at Sewanee, Cambridge University, and Johns Hopkins and taught from many years at the University of Florida (and before that Case Western, the University of Colorado, and Colorado State).  He had recently completed his final book, A Warring Nation: Honor, Race, and Humiliation in America’s Wars, which sounds absolutely fantastic.  It sounds like a fitting capstone to a career that spanned serious work on anti-slavery as well as pro-slavery thought.  His best-known book is Southern Honor: Ethics and Behavior in the Old South, which influenced a generation of historians of the south to focus on the role of honor in southern life and action.  It is a powerful volume that repays multiple readings -- and I think I shall go off now and spend some time with it this evening in honor of Dr. Wyatt-Brown.

Like many other legal historians -- Ariela Gross and Timothy Huebner come immediately to mind -- I have engaged Wyatt-Brown's focus on honor, though I remain rather more skeptical about its power in explaining southern behavior than many legal historians.  I'm more on the economic side of things as an explanation for southern law.  But then again, one of my current objects of study was in a duel in 1834!

This has been a year of significant loss for southern intellectual history.