Take a look at these tuition rates, including their increase over the past few years and the rates going forward. Michigan and Virginia are already de facto private law schools; Texas has been moving in that direction, though not as dramatically as Berkeley and UCLA. Will there be an elite, genuinely public (i.e., in which the state subsidizes a majority of the legal education for state residents), law school five years from now? I doubt it. Another 'victory' for the neoliberal paradigm.
...Constitutional Commentary(the Spring 2008 issue just came out a month or so ago). Given the substantial interest in the SSRN version, I thought I'd note it's finally out, citable etc. I may yet turn the article into a short book, so more feedback is also welcome.
1. Oliver Wendell Holmes, Jr. (Condorcet winner: wins contests with all other choices)
2. Richard Posner loses to Oliver Wendell Holmes, Jr. by 63–47
3. Ronald Dworkin loses to Oliver Wendell Holmes, Jr. by 67–46, loses to Richard Posner by 67–51
4. Ronald Coase loses to Oliver Wendell Holmes, Jr. by 61–40, loses to Ronald Dworkin by 54–53
5. Benjamin Cardozo loses to Oliver Wendell Holmes, Jr. by 65–29, loses to Ronald Coase by 50–48
6. Louis D. Brandeis loses to Oliver Wendell Holmes, Jr. by 69–22, loses to Benjamin Cardozo by 40–39
7. Karl N. Llewellyn loses to Oliver Wendell Holmes, Jr. by 65–29, loses to Louis D. Brandeis by 46–44
8. Guido Calabresi loses to Oliver Wendell Holmes, Jr. by 75–31, loses to Karl N. Llewellyn by 57–39
9. John Hart Ely loses to Oliver Wendell Holmes, Jr. by 68–22, loses to Guido Calabresi by 56–38
10. Antonin Scalia loses to Oliver Wendell Holmes, Jr. by 76–22, loses to John Hart Ely by 48–41
11. Alexander Bickel loses to Oliver Wendell Holmes, Jr. by 71–17, loses to Antonin Scalia by 48–37
12. Cass R. Sunstein loses to Oliver Wendell Holmes, Jr. by 79–18, loses to Alexander Bickel by 46–40
13. Richard Epstein loses to Oliver Wendell Holmes, Jr. by 78–23, loses to Cass R. Sunstein by 47–42
14. William J. Brennan, Jr. loses to Oliver Wendell Holmes, Jr. by 75–21, loses to Richard Epstein by 44–43
15. Henry M. Hart, Jr. loses to Oliver Wendell Holmes, Jr. by 77–13, loses to William J. Brennan, Jr. by 46–33
16. Lon Fuller loses to Oliver Wendell Holmes, Jr. by 72–20, loses to William J. Brennan, Jr. by 44–35
17. Laurence H. Tribe loses to Oliver Wendell Holmes, Jr. by 76–18, loses to Lon Fuller by 46–34
18. Catharine A. MacKinnon loses to Oliver Wendell Holmes, Jr. by 76–19, loses to Laurence H. Tribe by 44–37
19. Felix Frankfurter loses to Oliver Wendell Holmes, Jr. by 81–11, loses to Lon Fuller by 41–28
20. Roscoe Pound loses to Oliver Wendell Holmes, Jr. by 75–11, loses to Felix Frankfurter by 34–33
21. Bruce Ackerman loses to Oliver Wendell Holmes, Jr. by 79–18, loses to Catharine A. MacKinnon by 44–39
22. Herbert Wechsler loses to Oliver Wendell Holmes, Jr. by 75–12, loses to Bruce Ackerman by 35–33
23. Frank Easterbrook loses to Oliver Wendell Holmes, Jr. by 80–14, loses to Herbert Wechsler by 37–28
24. John Henry Wigmore loses to Oliver Wendell Holmes, Jr. by 77–9, loses to Frank Easterbrook by 36–30
25. John Marshall Harlan II loses to Oliver Wendell Holmes, Jr. by 77–11, loses to John Henry Wigmore by 29–26
Martha Nussbaum and Robert Bork were very close to making the top 25 as well.
What to say about the results? Would Hugo Black and Learned Hand--wrongly omitted from the original list of 75 choices--have made the top 25? Probably. I am personally surprised MacKinnon was not higher, so too Llewelly and Fuller and Wechsler. I was surprised by Ely's strong showing: Demoracy and Distrust was a very fine bit of constitutional theory, but what else is there? The top three seem right, including Dworkin, whose jurisprudential views may be a tissue of confusions and misrepresentations, but whose vision of constitutional adjudication in particular has been hugely influential on legal thought (if not on U.S. courts). (I have yet to find a constitutional theorist who takes him- or herself to be "influenced" by Dworkin who realizes that nothing in the bits and pieces of Dworkin they find important is at issue in Dworkin's purported dispute with legal positivism. Fortunately for Dworkin's influence, jurisprudential ignorance is deep and widespread!)
Here are the three law faculties that can claim the most scholars from the above list as faculty members for some significant portion of time:
University of Chicago (Posner, Coase, Llewellyn, Scalia, Sunstein, Epstein, Easterbrook, Nussbaum)
Harvard University (Ely, Sunstein [started last year, now on leave], Hart, Fuller, Tribe, Frankfurter, Pound)
Yale University (Dworkin, Calabresi, Ely, Bickel, Ackerman, Bork)
Columbia University (Llewellyn, Wechsler)
New York University (Dworkin, and Epstein starts part-time in 2010)
Thoughts from readers? Signed comments only: full name and e-mail address. Post only once, comments may take awhile to appear.
I am coming to the end of a VAP position. At this historically inopportune moment, I did not secure a tenure-track position for next year... Circa March, I contacted a number of schools in the Northeast about the possibility of a visit, but was consistently told that they did not expect to have any budget for visitors for next year.
[A colleague] believes that there is a possibility of some "late hiring" of visitors as some schools come to realize that they have unexpected needs or more 1Ls than they feared (apparently there was a late surge in law school applicants nationally). The problem is the difficulty in obtaining information about which schools have late-arising positions. Might you have any insights in this regard?
I don't, but perhaps some readers do. Comments are open. Post only once, comments may take awhile to appear.
This is a Condorcet version of our earlier first-past-the-post poll on this subject, but I've loosened up the criteria for inclusion, though have tried to confine it, among living scholars, to those 60 or older (with a couple of exceptions). Various "most cited" studies were consulted in constituting the list, but it also reflects my own judgments about competitive candidates, as well as what I gleaned from informal conversations with friends and colleagues. Some preference is given to scholars and jurists whose ideas and theoretical innovations have had impact in more than one area of law. Vote wisely and have fun!
UPDATE: A reader has just pointed out that Learned Hand is an embarrassing omission from the list of candidates. I imagine there will prove to be others. Maybe we'll do a run-off if it turns out there are too many.
David Kaye, a leading scholar in the evidence field and longtime faculty member at the Arizona State University College of Law, has accepted a senior offer from the Dickinson School of Law at Pennsylvania State University. That's a major pick up for Penn State!