Brian Leiter's Law School Reports

VAPs for 2008-09

Professor Filler is collecting the information.  I've urged him to expand the data to include where the VAPs did their law or other graduate degrees.

UPDATE:  The link is now fixed, sorry about that.

Wash U Alumni Create Website to Oppose Award of Honorary Degree to Schafly

Here.  It includes a letter from undergraduates involved in the process shedding some light on how this travesty occurred:

As the undergraduate members of the Board of Trustees Honorary Degree Committee, we want to express our disappointment with the choice to award Phyllis Schlafly an honorary degree at the 2008 commencement ceremony. The selection process was ineffective in providing a complete picture of the nominees, and the environment was hostile to dissent. We recognize our role in representing our peers, and we accept partial responsibility for the insufficient scrutiny of all nominees. However, throughout the two meetings of the Honorary Degree Committee and discussion of Ms. Schlafly, her prejudiced views were never brought to light.

The committee's recommendation of Ms. Schlafly was based on a complicated voting system. Voting occurred in two stages. In our first meeting, we ranked our preferences from approximately thirty names. The nominees were ranked based on the first balloting, and the top five were collected in a slate. We voted yes or no on the entire slate. An objection by one student was met with hostile opposition. The block of five names was then approved unanimously. We implore you to clarify the University's official statement on the nomination Ms. Schlafly. The explanation of the selection process suggests a unanimous vote on each nominee and disregards the balloting process. It endorses the widely held misconception that every member of the committee voted in favor of Ms. Schlafly.

Ms. Schlafly's views, specifically those opposing a woman's place in academia, are contradictory to the mission of Washington University and inappropriate for recognition at the commencement ceremony. We believe the selection of Phyllis Schlafly was a mistake.

That the students were not aware of her "prejudiced views" confirms this blogger's observation that, these days, not as many people are as vividly aware any longer of what a sexist, bigot, and anti-intellectual know-nothing Ms. Schafly is.

If the university does not reverse its decision, it's hard to see how its reputation will ever recover:  certainly this foolishness will overwhelm perception of the school for a long time to come.

Are Journalists More Alert to the Problems with the US News Ranking Than in the Past

A colleague elsewhere writes:

I've been meaning to write to thank you for taking on the US News methodology.  I think your work has greatly reduced the annual angst over US News this year.  US News will likely continue to produce short-tem thinking and reaction by law schools, but this year it seems to me that there has been much less knee-jerk reaction than in years past.  Most of that credit is due to you.  Even our local reporter was less hysterical over US News this year and he cited your blog for the proposition that there are methodological flaws with US News.

I am curious whether others have the perception that their local journalists are better-informed about the limitations of U.S. News and the meaninglessness of movements in the rankings than in the past?  Obviously much of the mindless damage that U.S. News inflicts is a consequence of the fact that journalists report changes in the rankings as though they have something to do with events in the real world, when they almost never do.  As I noted in the "Open Letter" to Bob Morse:

[T]he almost exclusive way in which a school improves its US News rank (apart from some arbitrary fluctuations in reputational scores, which schools can not control) is very clear:  manipulation, trickery and, at worst, deceit.  You know this as well as I do.  Schools hire unemployed graduates as research assistants, hand out fee waivers to hopeless applicants to improve their acceptance rates, inflate their expenditures data through creative accounting or simply fabrication, cut their first-year enrollment (to boost their medians) while increasing the number of transfers (to make up the lost revenue), and so on.  Because more than half the total score in U.S. News depends on manipulable data, schools intent on securing the public relations benefits of a higher rank simply "cook the books" or manipulate the numbers to secure a more favorable U.S. News outcome.  Schools vary, to be sure, in how aggressive they are about data manipulation, and one expects that public law schools, whose records are subject to scrutiny, are especially careful.  But there is no one in legal education who will deny, with a straight face, that a significant number of law schools, probably the majority, now "massage" their reporting, often within the letter, if not the spirit, of the rules.

Have journalists who cover higher education and law finally gotten the message?  I'd be interested in hearing from others in legal education about their perceptions/experiences.  (Post only once; comments may take awhile to appear.)

Law Faculty at Wash U Protest University's Award of Honorary Degree to Phyllis Schafly

Details here.  It's a very good letter.  Wash U has really embarrassed itself nationally and internationally with this stunt.   More here.

Interim Dean Makau Mutua at Buffalo Named Dean

The UB press release is here.

Northwestern Likes Rankings!

Here.  I've never seen a page like this at any law school web site.  Interesting.  (I should note that two categories attributed to my ranking site (Admissions Selectivity and Best Experience) are not on my site, so this appears to be a typo; the others are accurate.)  To Northwestern's credit, its Dean [David Van Zandt] has never signed any of the anti-ranking statements by the AALS or other entities.

UPDATE:  Northwestern has fixed the error noted, above.

In Memoriam: Roy Mersky (1925-2008)

It is with tremendous sadness that I must report the death, yesterday, of Roy Mersky, the extraordinary Director of the UT Law Library since 1965, the man whom Blair Kaufman, the law librarian at Yale, once called "the emperor of worldwide law librarianship."  He set the standard for professionalism and excellence in the field, and academic and firm law libraries throughout the U.S. and abroad are run by individuals who received their training at UT under Professor Mersky.   UT faculty, even when visiting at other U.S. law schools, routinely came back to Roy and his staff for research assistance.  (Not long ago, he said to me that even upon joining the University of Chicago Law School faculty, I should continue to feel free to call on him and the UT law library for any research needs.)  Two anecdotes:

1. A colleague recently wrote to Roy:  "I thought I would drop you a line to say, yet again, how terrific you/Tarlton Law Library/[Jonathan] Pratter are!  I am in transit in Italy but yesterday I had an urgent need for obscure medical journal pieces: asked Jon P if he could help; and almost by return, there they were in my inbox!  What astonishing service your library provides! Without exaggeration, it is a golden handcuff that strongly deters anyone moving away from UTLaw!"

2.  Recently diagnosed with cancer (not the cause of his death, as it happens), Roy wrote to the faculty, almost apologetically, just last week about the illness and his need for treatment:  "Please be assured that during my absence the Library will continue to function in an exemplary manner.    During the treatment, my energy level will be low, but I still may be able to come into the library.  In any event, I will be able to maintain supervision of library operations, through telephone calls and e-mails."  He also designated the Associate Director for Administration & Services, Brian Quigley, to make any urgent decisions in his absence.

I do not imagine there are many professionals, in any field, who in their 80s and undergoing medical treatment for a serious illness demonstrate this level of devotion to their work.

Roy also led a remarkably interesting life, marked by displays of courage of many kinds, from the battlefield (he fought in the Battle of the Bulge in WWII and received, among other honors, the Bronze Star) to civilian life, where he was harassed by the FBI in the 1950s for his "left-wing" sympathies and activities, by the reactionary Texas legislature during the 1960s for his efforts on behalf of civil rights and civil liberties, and by some of the less enlightened citizens of Texas, who phoned in death threats and burned a cross on his lawn in Austin in the 1960s after he complained about crosses on government buildings in Austin (they were subsequently removed by court order).  (Roy, who was remarkably unperturbed in describing these incidents, told me simply that in the last case, he sent his kids to stay with colleague Russell Weintraub, while he remained in his home.)

I will add links to memorial notices as they appear.  I am sure I speak for everyone in the UT Law community in extending our deepest condolences to his widow, Rosemary, and his three children and several grandchildren, who survive him.

UPDATE:  Allegra Young, former Communications Director at UT Law, kindly sent me the link to a cover story from the UTLAW alumni magazine about Roy.

ANOTHER:  A statement from UT Law Dean Larry Sager, circulated to the law school community this morning:

Throughout his career, Roy was fiercely determined to better serve the UT Law faculty, the UT Law students, and the UT Law community at large than any other law library served its constituents.  He was fiercely determined to staff the nation’s law schools with skilled law librarians schooled by their service at UT.  And he was fiercely determined to enlarge the idea of a fine library to include lectures, conferences and exhibitions of erudite bibliography and history.  He was, in sum, fiercely determined to make the UT Law Library,  his library, the most distinguished law library in the world. He succeeded.  His passing is the passing of a titan.

He was a friend, a colleague and an icon to us all.  We will miss him deeply.

ONE MORE:  The Law School's memorial notice is here.

ANOTHER:  Roy Mersky Remembered, where colleagues, friends, and admirers may post their recollections.

Why Practitioners Usually Do Not Make Good Deans

Michael Froomkin (Miami) sums up the reasons here.  Most of the cases I've heard about were unmitigated disasters (for one or all of the reasons Professor Froomkin notes), which is why the most elite law schools never choose them. 

(An exception that may prove the rule is former Federal District Court Judge David Levi, who took over as Dean at Duke not long ago--but he, of course, has an unusually academic pedigree (among other things, he grew up in Hyde Park, where his father, Edward Levi, was Dean of the Law School and eventually President of the University).)

UPDATE:  Professor Geoffrey Corn (South Texas) writes:

I wonder if you have considered the experience of retired JAG officers as Deans?  Walt Huffman at Texas Tech seems to be quite successful, as does Jim Rosenblatt at Mississippi College School of Law, and John Hutson at Franklin Pierce.  I think the jury is still out on Tom Romig at Washburn.  But I think this is an interesting take on "practitioners" as Deans.

I don't have enough information about these cases, but Professor Corn may well be right that Deans with this professional background may present a different case.

UC Davis Associate Dean Kevin Johnson Named Dean

The official UC Davis announcement here.

Geis from Alabama to Virginia

George Geis (contracts, corporate finance, agency & partnership) at the University of Alabama has accepted a senior offer from the University of Virginia, where he had been a visiting professor this year.

Which Schools Does Harvard Raid Most Often?

A reliable source at Harvard provides the complementary information for that which we posted about Yale.

Here are the schools which Harvard has raided for its lateral hires:

6 from University of Pennsylvania (Field, Frug, Guinier, Mann, A. Warren, E. Warren)

4 from University of California, Los Angeles (Alford, Freeman, Rubenstein, White)

4 from University of Virginia (Goldsmith, Klarman, Stuntz, Triantis)

4 from Yale University (Alstott, Benkler, Clark, Kraakman)

3 from Columbia University (Manning, Neuman, Roe)

3 from New York University (Feldman, Levinson, Sitkoff)

3 from University of Chicago (Ramseyer, Sunstein, Vermeule)

2 from Georgetown University (Halperin, Tushnet)

2 from Stanford University (Halley, Mnookin)

1 each from Boston College (Glendon), Boston University (Singer), Northwestern University (Spier), University of California, Berkeley (Elhauge), and University of Michigan (Donahue).

There is much overlap in terms of where Yale and Harvard look for lateral hires with tenure, with the differences reflecting, in part, the presence of a sizable "critical theory" group at Harvard, and the absence of such a group at Yale.  (Having participated in, and watched, lateral hiring over the last fifteen years, it is really quite hard to underestimate how very political the process is--not in the sense of "liberal" vs. "conservative" (which plays almost no role), but in the sense of its depending on personal connections, loyalties, feelings, and friendships.)  Most striking, of course, is that both Yale and Harvard do the vast majority of their lateral hiring from just a handful of law schools:  Stanford, Chicago, Columbia, NYU, Penn, Virginia, and a handful of others.

Bignami from Duke to George Washington

Francesca Bignami (comparative law, European Union law) at Duke University has accepted a senior offer from George Washington University.

Arkansas Law Professor Sues His Students for Defamation

Story here.

A Right-Wing Takeover of Dartmouth...Led by Conservative Law Profs???

In any case, one of the popular liberal blogs thinks it's happening, naming George Mason's Todd Zywicki (who has even gotten himself denounced by the Dartmouth Alumni Association!) and Virginia's Stephen Smith as among the culprits.  (Judging from this, it seems as if Professor Smith may be intent on joining the hall of shame of ignorant law professors bashing biology.  Sigh.  Perhaps, as the author suggests, he has abandoned these views in the interim.)   Whether it's true or not, even this publicity is likely to affect student and faculty recruitment.

Which Schools Does Yale Raid Most Often?

A reader sends along a list of the law schools from which Yale has recruited most of its current faculty; I haven't checked this for accuracy, though it looks right.  Some Yale faculty left and came back, hence are listed with more than one school.

6 from Stanford University (Ayers, Donahue, Ellickson, Gordon, Romano, Whitman)

6 from University of Chicago (Brilmayer, Fiss, Kahan, Kronman, Langbein, Meares)

4 from Columbia University (Ackerman, Alstott, Merrill, Rose-Ackerman)

3 from University of Pennsylvania (Ackerman, Damaska, Hansmann)

3 from University of Southern California (Graetz, Resnik, Schwartz)

2 from Cornell University (Kysar, Macey)

2 from Harvard University (Gerken, Jolls)

2 from New York University (Brilmayer, Hansmann)

2 from Northwestern University (Brooks, Smith)

2 from University of California, Berkeley (Post, Siegel)

2 from University of Michigan (Burt, Shapiro)

1 each from Duke University (Chua), Georgetown University (Eskridge), Oxford University (Sweet), University of Arizona (Coleman), University of California, Los Angeles (Priest), University of Texas (Balkin), University of Virginia (Mashaw), and University of Wisconsin (Schultz).

If anyone cares to compile similar starts for Harvard (which has done less lateral, and more junior, hiring than Yale however), please feel free to send it along.

What Do 1L Attrition Rates Mean?

Michael Froomkin (Miami) has sensible comments.

Shapiro from Michigan to Yale

The legal philosopher Scott Shapiro at the University of Michigan, who has been one of the most important writers on legal positivism over the last decade, has accepted the senior offer from Yale Law School.  More on what that means for JD/PhD students, especially, here.

Faculty Quality Based on American Academy Membership for 2008

Here.

Two More Senior Hires for Penn: Baker from U Conn, Fisch from Fordham

The University of Pennsylvania has made two more senior hires (in addition to Jonathan Klick from Florida State):  Tom Baker (insurance law, torts) from the University of Connecticut, and Jill Fisch (corporate law) from Fordham University (who turned down an offer from Berkeley in the process). 

Was There a "Formalist" Age?

Tamanaha says "no," I'm rather more skeptical of his evidence.

Visiting Professors for 2008-09: An Updated List...

...courtesy of Professor Filler.

Four Law Professors Win Guggenheim Fellowships

The winners are Randy Barnett (Georgetown), Richard Pildes (NYU), Richard Primus (Michigan), and Katherine V.W. Stone (UCLA); Professors Barnett and Primus are winners of the new "Constitutional Studies" Fellowship announced last year.  The full list of winners for 2008 is here

We Miss Some Faculty Hires

Fortunately, others in the blogosphere pay attention.

Tom Monaghan Deposition in Lawsuit Against Ave Maria Law

Some commentary here on what sounds like a simply bizarre deposition.  More background on the lawsuit here.

UPDATE:  The deposition saga continues.  It is really hard to see how Ave Maria Law School can survive these revelations about its, shall we say, 'unusual operations.'

Nowak, Emeritus at Illinois, Takes Up New Chair in Constitutional Law at Loyola/Chicago

John Nowak, co-author (with Ronald Rotunda) of a leading treatise in constitutional law, who recently retired from the University of Illinois College of Law, has accepted a new Chair in Constitutional Law at Loyola University, Chicago.

New Law Fellows of American Academy of Arts & Sciences Elected

The American Academy of Arts & Sciences has announced the Fellows elected for 2008.  They are:  Mark Kelman (Stanford), William Landes (University of Chicago), Richard Pildes (NYU), Margaret Jane Radin (Michigan; also Emerita, Stanford), Reva Siegel (Yale), Associate Justice John Paul Stevens, William Stuntz (Harvard), and Elizabeth Warren (Harvard).  Ernest Weinrib (Toronto) was elected as a Foreign Honorary Member as well.  A full list of the new Fellows is here.  On some of the peculiarities of the AAAS, see this earlier discussion.

Michigan Law Review's "Books" Issue in Decline?

That's the perception of Stephen Griffin (Tulane).  Mine too, I have to admit.

Law School Commencement Speakers

Blog emperor Caron compiles a list.  "Motley crew" and "eccentric" barely begins to describe the mix!

The American Penal System: One of "the world's major human rights disasters"?

It certainly sounds like one.

Longtime Faculty Member Raymond Nimmer Named Dean at Houston

The UH press release is here.  I suspect Nimmer is a very fine choice, but it's a shame they felt the need to mention an increase in US News ranking as evidence!  That, unfortunately, just contributes to the illusion that movement in US News is correlated with anything happening in the real world.  It's not.

Ben-Shahar from Michigan to Chicago

Omri Ben-Shahar (law & economics, contracts, commercial law, intellectual property) at the University of Michigan Law School, where he is Director of the Olin Center for Law & Economics,  has accepted a senior offer from the University of Chicago Law School.  This appointment certainly solidifies Chicago's status as having the best 'under 50' faculty cohort in law and economics in the U.S. (Yale and Berkeley are not too far behind), and thus promises to continue Chicago's traditional dominance in the area. 

Schauer from Harvard's Kennedy School to Virginia

Frederick Schauer, a leading figure in constitutional law (esp. the First Amendment) and legal theory, who has been Frank Stanton Professor of the First Amendment at the Kennedy School at Harvard University since 1990, has accepted a senior offer from the law school at the University of Virginia.  That is a really quite major hiring coup for UVA, which has taken something of a beating in recent years in terms of faculty losses.

Thoughts from a Berkeley Professor on the Yoo Case

A law professor at Berkeley writes:

Your postings on academic freedom and the John Yoo case have been pitch-perfect, from my point of view. Thank you for bringing some sanity to a sad and challenging affair.

This is obviously a very painful topic for those of us at Berkeley, for a whole host of reasons.

(1) There is the sadness at seeing a colleague, foolish perhaps in his desire to be near power and/or have his voice heard, and substantively (in my opinion) about as wrong as he could be, but a hardworking and responsible member of our community, having his reputation and career taking a beating; even a self-invited beating is painful to watch when it is in progress.

(2) There is the sadness at seeing our integrity as a community challenged. Like many US law schools we welcomed a number of prominent European Jewish emigres during the WWII years (e.g., David Daube (Freiburg, Oxford), Albert Ehrenzweig (Heidelberg, Vienna), and others); I believe this not only helped launch the university into the first ranks of research universities worldwide, it also deepened this community's commitment to tolerance and openness -- a direct cause, in my opinion, of the campus free speech movement and therefore indirectly at least of much that followed at US campuses. In light of this history, at a personal level I thought long and hard about how I should treat John Yoo when he returned to campus; many of us still struggle with questions of how to balance concern for complicity with the requirements of collegial civility. Even so, never once did I consider a move to revoke John's tenure, because he was in complete compliance with our standards. Only if that changes, due to a criminal conviction or the like, would it be appropriate to revisit the issue, in my opinion.

(3) This is painful because many people who do not know us might perhaps assume that John's work is representative of our views. As you well know, he is as much of an outlier here as he would be at most US law schools.  Consider for example the work of my colleague, Chris Kutz. His essay on "Torture, Necessity, and Existential Politics," 95 Cal. L. Rev. 235 (2007), is a wonderful counterpoint to the memos John Yoo worked on, and it
expresses something much closer to what I believe is the consensus of the Boalt Hall faculty regarding the torture issue. (Incidentally, Chris' book, Complicity: Ethics and Law for a Collective Age, New York:  Cambridge University Press (2000), has been a big help to me in deciding how to relate to John in light of his official actions.) Anyone looking into
the John Yoo issue, and particularly wondering how his views fit with those of his colleagues, are advised to consult Chris Kutz' work. Indeed, this is perhaps the best way to
demonstrate our views on academic freedom. We are not afraid to let John say what he thinks, because Chris can say what *he* thinks, and if I and many others are right, history will show that Chris has the better of it. Academic freedom in a nutshell.

Professor and Associate Dean Douglas Blaze Named Dean at Tennessee

The (other) UT press release is here.

Advice Sought on Summer Travel in Southern Europe

I have professional engagements this summer in Northern Italy and Spain, and was hoping to spend some time between events with my family at some appealing place (nice beach, good swimming, great food) on the Italian or French Riviera (i.e., inbetween the Italian and Spanish engagements).  I would be grateful for suggestions!  Many thanks.

Which Undergrad Majors Do Best on the LSAT?

It isn't, needless to say, the undergrads who study Political Science.  Here, courtesy of the Department of Philosophy at Indiana University-Purdue University Indianapolis, is a ranking by the average LSAT score of students in each major that had at least 400 students taking the LSAT (the score is in parentheses):

1.  Physics/Math (157.6)

2.  Philosophy/Religion (156.0)

3.  Economics (155.3)

4.  International Relations (155.1)

5.  Chemistry (154.5)

6.  Government/Service (154.4)

7.  Anthropology/Geography (154.1)

8.  History (154.0)

9.  English (153.7)

10. Biology (153.6)

Finance majors came in 12th (with an average score of 152.5) and Political Science majors were 18th (151.6 was their average score).  The bottom seven majors, in terms of LSAT scores:  Management, Business Administration, Health Profession, Education, Prelaw (that's a major?), and Criminology.

I'm sure the Philosophy result is dragged down by the fact that it is lumped with "Religion," which as an undergraduate major is much closer to history and sociology than to philosophy.

The impressive results for Physics, Math, Philosophy, and Economics must, one suspects, be credited in part to self-selection, but some surely reflects the intellectual rigor and demands of these courses of study.  I am pleased to note that Philosophy majors, even though dragged down by Religion, outperform Economics majors.  This, of course, corresponds exactly to the natural intellectual hierarchy evident throughout the legal academy!

Who is Visiting Where for 2008-09

Dan Filler (Drexel) has already collected a lot of information.  Consistent with its hiring aspirations, Harvard has invited almost every law professor in the U.S. to visit once again.  Note that Professor Filler's list does not distinguish between 'look-see' and 'podium' visits.  The lists are also clearly not yet complete, at least for some of the schools that I know about.  Share your info with Professor Filler!

Gergen from Texas to Berkeley

Mark Gergen (tax, contracts, torts), one of my most treasured colleagues at the University of Texas at Austin, has accepted a senior offer from the law school at the University of California at Berkeley.  What a great hire for Berkeley!  If I were not, myself, moving, I should be even more depressed about reporting this.  Berkeley has hired a distinguished scholar, dedicated teacher, and outstanding institutional citizen.

Ghosh from SMU to Wisconsin

Shubha Ghosh (intellectual property) at Southern Methodist University has accepted a senior offer from the law school at the University of Wisconsin, Madison, where he will also be Associate Director for Initiatives for Studies in Technology Entrepreneurship (in the Business School) and hold a courtesy appointment in the Center for South Asian Studies.

Once More Into the Academic Freedom/John Yoo Fray

Remarking some time ago on issues of academic freedom in relation to comments by David Bernstein, I observed that,

[F]rom the McCarthy era to the present, the most successful efforts to "enforce political orthodoxy"--the ones that resulted in people being fired from jobs, or having their jobs threatened--have almost all come from the right in the United States.  Professor Bernstein may be blind to this because many of the targets of smear campaigns and orchestrated attacks by political forces outside the universities have, in recent years, been critics of Israeli policy, from Norman Finkelstein to Joseph Massad.  But how many times in the last 50 years have "liberal" politicians and interest groups outside universities successfully mobilized to get someone fired or even threatened that person's tenure because of "conservative" views?  Where are the right-wing counterparts to M.I. Finley, Chandler Davis, Clement Market, and Staughton Lynd, among many others?

I do not think it likely that John Yoo is about to become the lone counter-example to this trend, but it is striking, and disturbing, how many individuals and organizations outside the universities who are, more or less, "on the left" are indeed presently calling "for his head" (or calling for a university investigation to determine whether "his head" can be rightly served up).  As things stand now, this really isn't a hard case at all.  But maybe it would be worthwhile to review a few simple questions to make that clear.

1.  Does tenure mean lifetime employment?  No.  It means a faculty member can only be terminated for "good cause," which involves both substantive and procedural constraints on dismissal.  Substantively--and this captures the moral and contractual ideal of academic freedom (its constitutional status these days is less clear)--it means faculty can't be fired or penalized for the content of their scholarship and teaching, unless it fails to meet standards of professional competence (e.g., a biologist refusing to teach the theory of evolution by natural selection, or an astronomer teaching that the sun revolves around the earth) or involves research misconduct (e.g., plagiarism).  Failure to perform duties (e.g., not showing up for class), criminal misconduct, and behavior that disrupts institutional functions (e.g., sexual harassment of students or colleagues, other kinds of egregious harassment or exploitation of students or colleagues) might also all trigger university disciplinary proceedings, and might, depending on the underlying facts, result in termination or other penalties.

Berkeley's regulations on this score are pretty typical.  Here are examples of misconduct relating to the isntructional duties of a faculty member that could properly trigger university disciplinary proceedings:

1. Failure to meet the responsibilities of instruction, including:  (a) arbitrary denial of access to instruction; (b) significant intrusion of material unrelated to the course; (c) significant failure to adhere, without legitimate reason, to the rules of the faculty in the conduct of courses, to meet class, to keep office hours, or to hold examinations as scheduled; (d) evaluation of student work by criteria not directly reflective of course performance; (e) undue and unexcused delay in evaluating student work.

2. Discrimination, including harassment, against a student on political grounds, orfor reasons of race, religion, sex, sexual orientation, ethnic origin, national origin, ancestry, marital status, medical condition, status as a covered veteran, or, within the limits imposed by law or University regulations, because of age or citizenship or for other arbitrary or personal reasons....

4. Use of the position or powers of a faculty member to coerce the judgment or conscience of a student or to cause harm to a student for arbitrary or personal reasons.

5. Participating in or deliberately abetting disruption, interference, or intimidationin the classroom.

6. Entering into a romantic or sexual relationship with any student for whom a faculty member has, or should reasonably expect to have in the future academic responsibility (instructional, evaluative, or supervisory).

And here is the main example of misconduct related to the research and scholarly duties of a faculty member:  "Violation of canons of intellectual honesty, such as research misconduct and/or intentional misappropriation of the writings, research, and findings of others."  Faculty members also have obligations to the community, and misconduct on this score means, "Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty."  (This is why, by the way, it was especially ludicrous for Paul Campos to suggest that anyone thinks conviction for a trivial offense like marijuana possession would warrant termination of a faculty member.  But Professor Campos is plainly not significantly constrained by considerations of credulity.)

Universities are clearly too timid about initiating termination proceedings in cases where they might, indeed, be warranted:  such as failure to perform significant professional duties like scholarship.  (One noted authority on academic freedom told me, for example, that he believes Harvard could properly initiate proceedings to terminate Alan Dershowitz, given his failure to produce scholarly work.  That may be an arguable case; but everyone knows of "dead wood" who write nothing, not even popular books or polemics, and have not for years.  It would be consistent with academic freedom for their universities to initiate proceedings that might result in termination.)

2.  Is there 'good cause' for terminating John Yoo?   Clearly not.  There are no allegations of any failure to perform his instructional duties, and he has engaged in no research misconduct.  He has also been convicted of no crime.  End of story.

3.  But wait, weren't the torture memos and his theory of executive power so bad that they constitute research misconduct?  Again, plainly not.  He has defended these same views in scholarly fora, as well as in the memoranda he wrote as an attorney for the government.  Other scholars have defended similar views of executive power.  One may think such views implausible, badly argued for, and morally odious, but they do not involve "research misconduct."  If "research misconduct" and "intellectual dishonesty" were interpreted to cover what Yoo has done then there would be nothing left of academic freedom, since every disagreement on the merits of a position, especially a minority position in the scholarly community, could be turned into a "research misconduct" charge that would trigger disciplinary proceedings and possible termination.

4.  OK, that's all well and good, but didn't you tell us that it would be misconduct for a biologist not to teach Darwin's theory of evolution by natural selection or for an astronomer to teach that sun revolves around the earth?  It would clearly be a dereliction of instructional duties for a biologist (teaching, say, introduction to biology) to not present Darwin's theory of evolution by natural selection and to fail to represent it as a well-confirmed theory that is the cornerstone of modern biology.   It would not, however, be research misconduct for a biologist to write a book, as biologist Michael Behe of Lehigh University did, attacking natural selection and arguing for intelligent design as a supplement.  But the point that bears emphasizing here is that the Yoo case isn't even close to this one, since there is nothing close to the scholarly and professional consensus about the correctness of Darwin's theory of evolution by natural selection in the case of constitutional limits on executive power in war time.  Yoo's views, as morally reprehensible as they are, are well within the bounds of professional opinion, even if they are a decidedly minority viewpoint.  Recall, for example, the comments of constitutional law scholar Mark Graber (Maryland) regarding Yoo's torture memo:  "[T]he claims are constitutionally plausible or as plausible as most of what I read when I read legal materials. I found myself disagreeing with most of this, taking offense at various points. Nevertheless, the arguments seemed no more or less scholarly than the constitutional theory in the average top-twenty-five law review. I was no more impressed by [Chief Justice] Roberts' opinion in Parents Involved (the Seattle school district case) than the Yoo memo."  Part of the difficulty here, I suspect, is that many of those commenting on the Yoo case have an unrealistic picture of constitutional law, as though there were clearly correct and clearly incorrect positions on the issues at stake here.  A skeptic might note that there is not a lot of "law" in  "constitutional law," so that we quickly go from "that's a bad legal argument" to "that's a morally odious position."  But having morally odious views is well within the protection afforded by academic freedom.

5.  All right, then, forget about research misconduct, surely there is a question about whether Yoo committed a war crime, isn't there?  Torture is a war crime.  Yoo was part of the institutional apparatus that authorized torture; indeed, he rationalized it.  Why shouldn't the university investigate the possibility that he is a war criminal?  The simple answer is that the University's own rules do not authorize them to investigate such an allegation.  The rule is quite clear about the circumstances under which the university might undertake a disciplinary proceeding related to criminal conduct by a faculty member:  "Commission of a criminal act which has led to conviction in a court of law and which clearly demonstrates unfitness to continue as a member of the faculty."  Why has the university required "conviction in a court of law" as a prerequisite for university disciplinary proceedings?  For the obvious reason that universities are not equipped to investigate and prosecute crimes.  Universities can not subpoena witnesses to appear, they do not employ a staff of forensic experts, they do not have on hand teams of criminal defense lawyers or prosecutors, and so on. 

6.  That's just a cop-out:  if Berkeley doesn't do it, no one will, since war crimes are rarely prosecuted.  So Yoo just gets away, almost literally, with "murder" (or "torture") because universities are not courts.  Yes and no.  Yes, universities are not courts, and they have made what is surely a correct decision not to try to be courts of criminal justice.  What would universities be like if allegations that a faculty member had committed a crime could trigger a university investigation into the possible crime?  Law professors often serve in government roles; former government attorneys often end up in academia.  The potential for allegations of criminality are rich with possibility.  Universities would quickly become the surrogate criminal justice system, where aggrieved individuals could go to exact punishment for abhorrent government policies.  I find it hard to believe that this nightmare world is one that anyone that cares about universities or freedom of speech welcomes.  But there is also a "no" to this question, since it is very far from clear that Yoo is legally culpable for anything he has done.  In the tax context, for example, the standard for prosecuting tax lawyers who give tax advice to clients which the clients then act on and which is subsequently found to be illegal conduct is whether the advice was given in "good faith."  Both before and since his years as a government attorney, John Yoo has defended views about executive power that are the same as, or closely related to, those in the torture memo.  He seems to hold these views in "good faith."  The fact that the views strike most as implausible and repellent has no bearing on the question of his "good faith."  It thus seems to me to strain credulity to think a court proceeding would find that he had not acted in good faith.  John Yoo ought to be held morally culpable for his work, and he has been and will be.  In that regard, he is not getting away with anything that he is not, as a matter of law, entitled to "get away with." 

At the end of the day, it is understandable that non-lawyers and non-academics, who are justifiably enraged by the Bush Administration's conduct and John Yoo's morally odious views would fail to realize that there is nothing that the University of California at Berkeley can or should do, either legally or morally (assuming one believes, as I do, that there is a moral case for academic freedom).  It is less excusable, of course, for law professors like Paul Campos to make the same errors.  Perhaps this whole case will serve as a useful reminder about how tempting it is--even for those who ought to know better--to feel that it is not enough to have the freedom to criticize and excorciate those with bad views, that sometimes one also wants to hurt the person with bad views by depriving them of livelihood or liberty.  Such feelings are understandable, but it is a mark of a civilized society, governed by law, that acting on them is held in check, as it should be in this case among many others.

Troubles with Ave Maria's Move to Florida

Story here.  (Thanks to Blog Emperor Caron for the pointer.)

Lopez from NYU Back to UCLA

Gerald Lopez (theory and practice of legal education, lawyering, and community organizing), Clinical Professor of Law at New York University since 2000, has accepted a senior offer to return to the law faculty at UCLA where he had taught for many years prior to the move to NYU.

Did Cardozo Make New Law in MacPherson or Did He Simply Correct a Mistake and Identify the Existing Law?

Some readers may find the exchange between myself and Professor Robert Stevens of University College London of interest.  Additional comments would be welcome, but please read the essay to which Prof. Stevens is reacting before weighing in.

Whenever there is an opportunity to attack the First Amendment and academic freedom, Paul Campos is there!

Naturally, Professor Campos (of the University of Colorado) weighs in on the John Yoo controversy, taking a straw man version of my views as his target and calling, per his habit, for Professor Yoo to be punished.  I posted the following in the comments, and will just repost it here, since there isn't a lot more to say:

Professor Campos has the dubious distinction of being a professor of constitutional law who called for Ward Churchill to be fired for his views, and long before there was any documentation of research misconduct. He has called for Glenn Reynolds of the University of Tennessee to be punished for his ideas as well. I have written in the past about Campos's disgraceful pattern of contempt for the First Amendment and academic freedom.

Anyone interested in my actual views on the Yoo case might consult what I wrote about it here.

I also recommend the posting by attorney Scott Horton and our exchange of views in the comments section here

I suppose someone as eager as Campos to see others lose their jobs for their foolish and offensive views, or their obvious incompetence, might call for the University of Colorado to initiate an investigation of Paul Campos.  I won't be doing so.  I hope he has a long and productive career as a law professor and legal scholar, and that he can get past his embarrassing predilection to demand that everyone with views he despises (and which he believes are "crimes" etc.) should be fired. 

UPDATE:  One additional comment about the underlying issue, concerning Professor Yoo and an argument that is being bandied about.  There is lots of speculation that maybe what Yoo did (writing the torture memos) constitutes a crime or legal malpractice.  Maybe it does, maybe it doesn't:  it is unclear based on the available facts (though, on both counts, the available facts strongly suggest a negative answer, especially as to malpractice).  It is not for the University of California at Berkeley to investigate crimes or investigate legal malpractice of its faculty, based on speculations that are, quite clearly in most cases, driven by those who find Yoo's views morally odious.  Universities have no competence to carry out such investigations (does anyone think that Donald Rumsfeld or Dick Cheney will come testify before a faculty committee looking into the matter? ), and the mere prospect of such investigations would chill academic work on controversial matters almost totally. 

If an institution actually charged with investigating crimes or legal malpractice--e.g., a prosecutor, a court, a congressional committee, a bar disciplinary committee--were to conduct a proper investigation and issue a finding of misconduct that would surely then be grounds for the university to open a disciplinary proceeding.  But as things stand, there are no such grounds.  With the exception of Mr. Horton and a few others, most of those chattering about "possible" crimes and malpractice soon make it clear that what they really want is for John Yoo to be punished for his ideas and for the fact that some government officials may have acted on those ideas.  That's a standard that vioalates the First Amendment rights of state university faculty and betrays the moral ideal of academic freedom.

ONE MORE:  Paul Campos is obviously upset that every member of the legal academy knows him as the poster boy for contempt for the First Amendment rights of state university professors, and so he does what any reputable academic would do under the circumstances:  lies through his teeth.  He shows up in the comments at one of the links above to make the following declaration:

What an interesting world we live in, where the position of our philosophers is that it's perfectly OK to fire John Yoo for buying four ounces of marijuana, but an outrage against all that decent to fire him for committing war crimes (Brian Leiter, as far as I can tell, doesn't even bother to dispute that Yoo probably is guilty of war crimes. Yet he thinks it would be outrageous for Berkeley to even raise the issue of whether having a war criminal on its law school faculty was appropriate).

Campos has simply made up out of whole cloth the claim that I think Professor Yoo could be fired "for buying four ounces of mairjuana."  Amazing.  I have also expressed, here and above, the view that it is, at best, unclear whether Yoo has committed a war crime, but that I suspect the answer is that he has not.  In any case, the University of California at Berkeley is not a court of law, and until some state agency whose responsibility it is to investigate crimes does so and issues a finding, there is nothing for Berkeley to do, even if Paul Campos has steam coming out of his ears.

UPDATE:  More on John Yoo and academic freedom, in an effort to clarify some issues being suitably confused by Professor Campos and others.

Lots of New Hires for George Mason, Including Laterals

Details here.