The Faculty Lounge

Are There Limits to Medical Advertising?

(cross posted on Legal Ethics Forum)

The MD Anderson Cancer Center, at the University of Texas, has been running television commercials in Chicago (and I presume elsewhere) for the past few months.  MD Anderson is beyond question one of the premier cancer treatment facilities in the United States, drawing patients from well beyond Texas.  The advertising campaign is obviously intended to lengthen its national reach, but I wonder if anyone else is concerned about the content of the ads.

This commercial, for example, consists almost entirely of testimonials by patients and medical personnel, including  what appear to be promises of results, spoken mostly by doctors: 

"You tried to take everyone.  But I won't let you."

"We will stop you."

"Cancer, you're going to lose."

At best, these statements seem tremendously exaggerated.  Perhaps they might even be seen as omitting "a fact necessary to make the statement considered as a whole not materially misleading."  See MRPC 7.1.  After all, even MD Anderson cannot guarantee that every patient "will win."  ("And we are going to win" is the final line in the commercial.)

I showed this ad to my internist, a professor of medicine, who called it a "pretense of defeating cancer," while of course endorsing MD Anderson as "a wonderful place to get the best cancer care in the world."

Yes, I know that lawyer ads can be worse; often much worse.  But I have never seen a television ad for a law firm with comparable international status to MD Anderson.

What do others think?

 

The Perverse Statistics of Dying Law Schools

Over the summer, I had a few conversations with the friends and family members of people who are considering going to law school and who wanted my opinion about the quality of various law schools and, also, whether now was a good time to go to law school in general.  These kinds of conversations happen fairly often in my life, and they always present a kind of ‘moment of truth’ when you are forced to encapsulate everything you know about the law (school) market right now in two or three pithy sentences.  Because there is so much to know that cannot be summarized so quickly, however, I always end up qualifying my advice with:  “But your [niece/friend/grandson/partner] really needs to think about their own goals and really drill down into the particulars of any law school that they are seriously considering.  Make the law school answer your detailed questions.  Talk to recent graduates.”   

I’m not really sure how much good my advice does at the end of the day for at least a couple of reasons.  First, most (prospective) students don’t realize—and can’t contemplate—that many law schools (and their mother universities) are run like for-profit entities these days.  This is not to say that they are run well, but it is to say that, increasingly, administrative decisions about admissions, curricular offerings, library opening hours, and a million other things are made on the basis of $$$ considerations.  The $$$ calculation may be questionable, bogus, or corrupt, but it’s there.  Nonetheless, (prospective) students don’t really want to believe this and thus don’t bring the healthy skepticism that they should bring into any transaction in our capitalist educational system.

Second, most statistics about an educational institutional—including law schools—can be massaged.  So, for example, a law school may brag about their incredibly low student/faculty ratio, but the ‘behind the scenes’ story about this ratio may be the complete collapse in student enrollment at that law school, with all the attendant financial and political problems that come with that enrollment collapse.  These financial and political problems are often very serious, indeed debilitating.

In many ways then, a ‘dying’ law school can give off any number of perversely alluring statistics.  I’m sure there are more statistical signs of death than I can think of presently, but here’s my top 3 and also my explanation of how prospective students can research each:

1) A rapidly decreasing student/faculty ratio

This set of numbers can be found by subscribing to the electronic version of U.S. News & World Report, or by physically perusing back issues in the library.  Remember:  there’s a numerator as well as a denominator here.  Is the law school you’re considering rapidly hiring faculty (unlikely) or is the school rapidly losing students?  Do your homework and find out what this ratio has been in years past and not just where it is now.

2) An increasing admissions yield rate

This number is not available via looking at U.S. News & World Report, but can be calculated by perusing public information on a law school’s website (or just by asking the admissions office).  An increasing yield rate may mean that a law school is genuinely improving in attractiveness to prospective students.  But it can also mean that only those students who already know—and have known since junior high—that they want to go to a particular law school are now applying in the first place.  Take a look as well at the historical patterns of where students are coming from in the nation; data on the # of states represented at a law school can also be found on law schools’ websites.  Is the law school you’re considering losing its allure for anyone ‘on the fence’ and out of state?

3)  Proliferation of titles

This is super hard to measure, but take a look at the various titles that faculty possess.  Is everyone mostly an assistant/associate/full professor, or is there a proliferation of qualifiers and adjectives attached to faculty titles?  If there are more ‘kinds’ of professors represented at a law school, this can mean close administrative attention to filling teaching & research niches occasionally not covered by the traditional faculty titles and roles.  But it can also mean administrative chaos and ad hoc hiring resulting from the law school’s financial and political instability.  There’s not a good way of knowing which situation is closer to the truth at the law school you are considering, but do some Google searches and ask to speak to some tenured professors about what’s going on here if you have no idea what various titles mean.

AALS CFP: New Voices In Legislation

This just in:

The AALS Section on Legislation & Law of the Political Process is pleased to announce that it will host a “New Voices in Legislation” program during the 2016 AALS Annual Meeting in New York, NY. This works-in-progress program will bring together junior and senior scholars in the field of legislation for the purpose of providing the junior scholars with feedback and guidance on their draft articles. Scholars whose papers are selected will present their work in small panel sessions. A senior scholar will moderate each panel and lead discussion about the draft article.

Eligibility: The New Voices Program will be open to full-time faculty members from AALS member schools who are untenured or have been tenured for two years or less. All scholars, whether or not presenting a paper or moderating a discussion, are welcome to attend the program and participate in discussions.

Submission Requirements: Submissions should be drafts of articles relating to legislation and law of the political process, including articles related to legislative structure, the legislative process, statutory interpretation, and deliberation. Submissions should be near completion and expected to be submitted during the year following the program. Submissions should not exceed 30,000 words, including footnotes. The purpose of the program is to provide junior scholars with feedback that can be incorporated into their works-in-progress; as a result, articles are ineligible for the program if they are expected to be in print at the time of the program in January 2016. However, articles that already have been submitted to law reviews for publication, and accepted for publication, are not ineligible for this reason.

Submission Process: To be considered for participation in the program, please email a copy of the paper and abstract to Evan Zoldan, evan.zoldan@utoledo.edu by 5:00 p.m. Eastern Time,Friday, October 2, 2015. Selected participants will be notified in late October.

Some Heroes of the Sterilization Movement

Elizabeth Troutman and I have a paper up at ssrn on the North Carolina eugenics movement.  This was inspired by the North Carolina legislature's compensation program, but what we're really interested in (more than the contemporary movement for compensation) is to understand the movement in North Carolina.  How did the movement for sterilization arise, how was North Carolina largely a dependent variable in that national movement, and then how did it function in our state.  Getting at the last issue involves difficult questions, like who was selected for sterilization and how did the administrative state process petitions for sterilization.  To me one of the most haunting aspects of all of this is that the state supplied pre-printed forms to be used in preparing petitions for approval by the state Eugenics Board.  That is, the state was ready to assist -- indeed to push -- for sterilization.

But one of the most interesting aspects of this is that almost everyone who was approved for sterilization had either themselves "consented" or had family members who "consented."  And that raises a very important question of what "consent" looked like -- and just how the state coerced individuals and their family members to "consent."  This is hard to reconstruct now, because the individual records are sealed -- and even if they were open, it looks unlikely that they would show the level of coercion in much detail.  Many of the Eugenics Board's biennial reports reflect the concern over getting people to agree to sterilization.  They note in particular that men were particularly resistant -- and in fact over time, the percentage of men sterilized decreased dramatically.  Perhaps that reflects the increasing resistance of men; it may also reflect that over time the percentage of institutionalized people who were sterilized decreased, and men in the community were harder to coerce than women.  At any rate, the state was deeply interested in coercing individuals into accepting sterilization.

#BlackLivesMatter's property law agenda

We have a good idea of what the  #BlackLivesMatter agenda regarding criminal justice looks like.   Though, as I speculated in a previous post, there's a lot to flesh out about what that agenda might look like in criminal law and civil cases regarding section 1983.  But I should leave those areas to the people who work in criminal law and procedure.  

That's led to me wonder what the #BlackLivesMatter agenda regarding property law might look like.  Some of this is obvious -- take Thomas Mitchell's excellent work on heirs property.  Some of the agenda will try to modify the common law of partition to keep heirs who live on property on the property.  And I'm guessing that my co-author Kali Murray's work on eminent domain would also suggest that there should be strict limits on the use of eminent domain to take a blighted area.  Those are obvious places.

What else, though, would be on the agenda?  Surely protections for tenants.  The implied warranty of habitability; robust enforcement of the Fair Housing Act -- including construing broadly what are violations of the section 3604(c).  Again, fairly easy to identify.  Texas Department of Housing v. Inclusive Communities Project is, maybe, the best recent example of #blacklivesmatter jurisprudence.  

And certainly the mortgage crisis is a key piece of this.  One area that I think needs additional attention are the victims of sub-prime products.

Why does this matter?  I think the agenda will  influence the presidential race, for one.  Bernie Sanders' website, for instance, now has a page on racial justice that mentions the sub-prime crisis.  But there are few details as yet -- and so I think this is a place where people (I'm thinking law review students looking for note topics in particular) might try to sketch out some more details and get into the debate.  We're going to be hearing a lot more about this in the next fifteen months, I'm pretty sure.

The One Where Joe Miller Eats a Dog Biscuit

That would be Episode 72 of the always interesting, frequently zany Oral Argument podcast, in which I join Joe Miller and Christian Turner to talk about the Dallas Cowboys, the new Star Wars movie and, eventually (starting at around the 23-minute mark), the Facebook mood contagion experiment and whether Facebook should be regulated like a utility or a burrito stand. And yes, Joe does actually eat a dog biscuit during the show. One of the ones pictured here, in fact. Joe reports that, inexplicably, the peanut butter treats taste like chicken.

The Law School Industry - International Programs

Institutional efforts within the law school industry are a hot topic, and one relatively new area of movement in US legal education increasingly addressed is the attempt to establish a more 'global' presence through 'international' offerings for US law students. The ABA, for instance, provides a list of current foreign summer abroad programs, intersession courses and semester abroad programs, and a quick google search turns up a number of other websites offering links to foreign program opportunities for students. At the same time, these lists tend to be incomplete (the ABA's semester abroad program list does not include a number of programs, and more generally does not provide any details about the types of study abroad programs being offered) or not directly relevant for students seeking to earn credit towards their legal degrees. The missed opportunity with more comprehensive data on international program innovations at US law schools is that it not only makes it difficult to share 'best practices' among law school administrations, but it obscures a valuable source of information about specific attitudes and trends within legal education. 

US Law School International Programs (Study Abroad and Semester Exchanges) provides an excel-based study to address some of these deficiencies, with the goal to provide administrations and scholars empirical data concerning new trends in study abroad and semester exchange programs in US law schools (note: click 'download' for the excel form of the study). The study was compiled over the last year, and is organized by state to include every US based program, and includes information concerning the type of programs (e.g., study abroad programs linked to foreign universities versus independent sites), links to the individual programs, and some summary information. 

Looking at the data, a few trends emerge. First, where originally only the remit of upper-tier schools, these programs are becoming staples of US law schools. Second, there is an increasing prevalence for schools to offer study abroad programs based at foreign institutions, rather than simply renting out space to host abroad programs. Third, the move to base study abroad programs at foreign institutions corresponds with an increase in offerings of LLM degrees for foreign students (and sometimes domestic students) and providing opportunities for semester exchanges. The relative lack of research or other scholarly activity at International and Comparative Law Centers suggests that these innovations are largely tailored to increase law school revenue as opposed to any significant shift of emphasis to engaging international legal policy and scholarship. Also, certain geographic locations are privileged - London, popular European city destination points, some programs in Latin America and Asia - but virtually no opportunities in Eastern Europe, Central Asia or Africa.

A lot of questions remain. For example, a number of factors are not taken into account in the study, including the actual professors running the courses, the classes being taught on these programs, and the numbers for student enrollment. It also remains to be seen where the key locations will be to attract foreign students (e.g., China, India, certain Arab speaking countries) or to base future programs (e.g., is the UK/Europe over-saturated or do the rising student fees in the UK mean opportunities to set up programs there to then attract UK students that otherwise would not be interested in a US legal education). 

 

Starkey on Katrina

My friend Brando Starkey, who's a staff writer for ESPN's "The Undefeated," has a powerful piece about "Katrina and Better Black Lives" up on the ESPN website.  Long-time faculty lounge readers may recall that Brando visited with us a while back -- and also that he's the author of a powerful and controversial book from Cambridge University Press that defends the use of the epithet "Uncle Tom."

Haskell Stepping into Faculty Lounge

I'm pleased to announce that John Haskell, who teaches at Mississippi College School of Law, is stepping into the lounge to sit with us for a spell.  John teaches in the areas of contracts, administrative law, and both public and private international law.  Cribbing now from John's webpage:

Dr. John D. Haskell graduated with a JD from the University of California, Hastings College of the Law (UC Hastings), and an LLM and PhD in Philosophy from the University of London, School of Oriental and African Studies (SOAS).  Prior to joining MC Law, he held positions as Visiting Researcher, Docent and Junior Faculty at Harvard Law School Institute for Global Law and Policy, Visiting Assistant Professor at the International University of Turin, Assistant Director of the Institute for the study of Political Economy and Law, Fulbright Fellow at the University of Helsinki Erik Castrén Institute of International Law and Human Rights, Visiting Scholar at the University of Cambridge Lauterpacht Centre for International Law, Visiting Scholar at the University of San Francisco School of Law, Lecturer and Deputy Director of External Relations, and subsequently, as an Honorary Research Fellow at Durham Law School, and Visiting Lecturer at Lille Catholic University.

Taking Ethnography Seriously

One of the more disappointing responses to the recent critique of Alice Goffman’s On the Run comes from Prof. Paul Stoller, a highly regarded ethnographer at West Chester University.   Writing in the Huffington Post, Stoller primarily takes issue with Paul Campos’s recent essay in the Chronicle of Higher Education, but his objections could apply to my articles as well.  In brief, Stoller complains of “uninformed criticism of the practice of ethnography” that has  “come not from anthropologists or sociologists who have long practiced ethnography but from legal scholars or survey researchers who for the most part don't have hands-on ethnographic experience.”

This is a strange complaint indeed.  I know of no profession that has ever been particularly good at self-criticism, and there is no reason that ethnography should be an exception.  Should only cops criticize police practices?  Should only doctors criticize the health care system?  Indeed, should only lawyers criticize criminal justice and the courts?  (And if the answer to the last question is yes, then a fair number of sociologists would be put out of business.)

University of Michigan Legal History Workshop

The University of Michigan's legal history workshop has the following schedule for fall 2015.  All sessions meet in Law School, 0220 South Hall, unless otherwise noted. Guests can obtain the readings via email from Dara Faris (dfaris@umich.edu.)

September 9. (Wednesday.) Special Session Co-Sponsored by the Law & Economics Workshop. (Meets in Hutchins Hall Room 132.)

            Claire Lemercier. CNRS and Sciences Po (Paris.) "How do Businessmen Like Their Courts? Evidence from Mid-19th Century France, England, and New York City"

September 22.

            Eric Foner. Columbia University. Gateway to Freedom: The Hidden History of the Underground Railroad. With guest commentator, Tiya Miles, University of Michigan.

September 29.

            Sara Mayeux. University of Pennsylvania Law School, “The ‘Progressive’ Public Defender (and Its Alternatives) in Los Angeles, 1914-1949"

October 6.

            Rebecca J. Scott. University of Michigan, "'Acts of Ownership and Authority': The Enslavement of Eulalie Oliveau"

October 13.

            Tom Romero. Strum College of Law, University of Denver, “Water, Water Everywhere…and No Where: Bridging the Confluence of Water and Immigration Law”

October 27.

            Charlotte Walker-Said. John Jay College, CUNY, “Faith, Power, and Family: Law and Christianity in Interwar Cameroon”

November 3.

            Kunal Parker. University of Miami School of Law, “Making Foreigners: Immigration and Citizenship Law in America”

November 17.

            Amanda Alexander. University of Michigan, "'The Authorities Cannot Meet Demand': Prison Labor, Pass Laws, and Agricultural Development in Apartheid South Africa"

November 24.

            H. Timothy Lovelace, Indiana University Mauer School of Law, “The World is on Our Side:  The U.S. Origins of the United Nation’s Race Convention”

December 3 (Thursday.) (Meets in Hutchins Hall room 236).

            Tomiko Brown-Nagin, Harvard Law School, “The Honorable Constance Baker Motley: The Honor and Burden of Being First”

Triangle Legal History Schedule, 2015-16

I'm pleased to announce the schedule for triangle legal history for the coming academic year.  All of the sessions will be at the National Humanities Center, except the December 4 meeting, which will be at UNC Law School.   All of the meetings except for October 1 will begin at 4 pm.  For those who're in the triangle, hope you can make some or all of these.

Sean Vanatta, Princeton University, September 25

Wilfred Prest, University of Adelaide, October 1

Ryan Poe, Duke University, November 6

Richard Paschal, George Mason University,  December 4

Renzo Honores, High Point University, January 15

James Campbell, Stanford University, February 12

Ashley Elrod, Duke University, March 4

Anna K. Johns, Duke University, March 25

Matt Sommer, Stanford University, April 22

Call for Papers: Designing Ethical Review Processes for Big Data Research

The Future of Privacy Forum is hosting an academic workshop supported by the National Science Foundation to discuss ethical, legal, and technical guidance for organizations conducting research on personal information. Authors are invited to submit papers for presentation at a full-day program to take place on December 10, 2015. Papers for presentation will be selected by an academic advisory board and published in the online edition of the Washington and Lee Law Review. Four papers will be selected to serve as “firestarters” for the December workshop, awarding each author with a $1000 stipend. Submissions, which are due by October 25, 2015, at 11:59 PM ET, must be 2,500 to 3,500 words, with minimal footnotes and in a readable style accessible to a wide audience. Publication decisions and workshop invitations will be sent in November. Details here.

Penn State Law Dean Search Announcement

After the jump, I'm posting  the search announcement for the new Dean of Penn State Law (that is, the State College campus) and Penn State School of International Affairs.

Phil Weiser, Claudio Grossman Stepping Down As Law Deans

Deans Philip Weiser (Colorado Law) and Claudio Grossman (American Law) have announced that they will step down from their positions at the end of this school year.  

Call For Papers: ABA Criminal Justice Section Roundtable

This just in:

Call for Papers: 2015 ABA Criminal Justice Section Fall Institute Roundtables (Oct. 22)

Once again, the ABA Criminal Justice Section Academics Committee will host work-in-progress roundtables at the annual Criminal Justice Section Fall Institute in Washington, DC. The roundtables will be held on Thursday, October 22, 2015 from 12:30-3:00pm at the Loews Madison Hotel, and the ABA will provide sandwiches and drinks for lunch. The rest of the CJS Fall Institute programs will take place later in the day on Thursday, October 22 and on Friday, October 23 at the same hotel. The entire ABA CJS Fall Institute Program is available here.

We hope you will consider workshopping your criminal justice works-in-progress at these roundtables. Participants will present their work in a roundtable format, and abstracts or drafts will be shared among presenters and discussants in advance of the workshop. If you're interested in participating, please email an abstract of your paper of no more than 500 words to Lucian Dervan at ldervan@law.siu.edu by Sept. 15, 2015. Space is limited, and presenters will be chosen by members of the organizing committee.

This is an excellent opportunity for academics at any stage of their careers, and for those who would like to transition to academia, to workshop pieces at an early stage of development or obtain feedback on more developed pieces. Workshop presenters will be responsible for their own travel and hotel costs, but there is no registration fee for participating in the roundtables. If you decide to participate in the remainder of the ABA CJS Fall Institute, you will need to register for that event separately - see here for registration information

LSAC and Applicants for Fall 2015

A few weeks back there was some confusion about the LSAC's reporting of applicants for fall 2015 and percentage change from last year.  LSAC has now clarified what was going on.  Quoting now from the LSAC:

As of 8/8/15, there are 339,006 fall 2015 applications submitted by 53,548 applicants. Applicants are down 1.8% and applications are down 4.0% from 2014.

Last year at this time, we had 100% of the preliminary final applicant count.

Important Note: Inconsistent 2015 applicant and application volume data were posted as of August 8 at this location. Applicant and application numbers for all terms (spring, summer, fall, and winter) were posted, rather than just the data for fall admission that is usually used. The updated data are correct and cover fall 2015 applicants and applications only.

We are transitioning to the use of all-term volume data for consistency with American Bar Association reporting standards. This change will occur with LSAC’s first publication of 2016 volume data. The data from the new system were posted in error.

H/t Paul Campos. 

Faculty Hiring: Touro

From an email message forwarded to me today:

Touro Law Center in Suffolk County, Long Island, New York seeks an energetic entry level full-time visitor for the 2016-2017 academic year. The faculty and administration are implementing our innovative Portals to Practice strategic plan, which is designed to provide our students with the education and experiences necessary to become practice-ready lawyers. Thriving institutes in Aging and Longevity Law, Land Use and Sustainable Development Law, and Jewish Law complement the curriculum. The Law Center's Community Justice Center is Long Island's first law school based incubator housing alumni starting their own law practices.

The Law Center boasts 12 clinics (Advanced Bankruptcy, Bankruptcy, Criminal Defense, Criminal Prosecution, Disaster Relief, Elder Law, Family Law, Federal Prosecution, Immigration Law, Mortgage Foreclosure, Small Business and Not-for-Profit Law and the Veterans' and Servicemembers' Right), a robust externship program, and a unique Public Advocacy Center that houses more than a dozen community-based legal service non-profit organizations. The Law Center offers concentrations in Criminal Law, Aging and Longevity Law, Solo and Small Firm Practice, and Land Use and Sustainable Development Law.

Our goal is to attract faculty dedicated to enriching the educational experience of our bright, motivated and diverse student body. We are especially interested in applicants who demonstrate scholarly promise and desire to teach courses in business law, technology, IP or elder law. Ideally, the candidate will have practice experience relevant to areas of scholarship or teaching. Touro Law is dedicated to the goal of building a diverse faculty committed to teaching and working in a multicultural environment and strongly encourages applications from women and minorities.

Applications will be reviewed on a rolling basis. Applications must include a resume and statement of interest and should be emailed to Appointments Committee Chair Professor Meredith R. Miller, mmiller@tourolaw.edu.

University of Richmond Hiring Announcement

The University of Richmond School of Law seeks to fill three entry-level tenure-track positions for the 2016-2017 academic year.  Primary areas of interest are criminal law, corporate law, and constitutional law.  Candidates should have outstanding academic credentials and show superb promise for top-notch scholarship and teaching.  The University of Richmond, an equal opportunity employer, is committed to developing a diverse workforce and student body and to supporting an inclusive campus community.  Applications from candidates who will contribute to these goals are strongly encouraged.

Inquiries and requests for additional information may be directed to Professor Jessica Erickson, Chair of Faculty Appointments, at lawfacultyapp@richmond.edu.  

Richard McAdams on Go Set a Watchman

Excellent review of Go Set a Watchman, by Richard McAdams in The New Rambler.