October 23, 2012
More on third-year curricular "reform" at NYU
In IHE. This article reports that NYU will now require a "financial literacy" course for all 1Ls. That seems an important kind of course to make available to law students, but to require it seems to involve an assumption about career paths that isn't warranted.
The IHE article repeats the usual complaint that the cost of legal education is already "too high," so that new initiatives like this only raise costs. It's perhaps worth noting that we don't really know what direction the actual cost of legal education is moving in. The anecdotal evidence of the extent to which schools are offering financial incentives to get students to enroll suggests that the "official" tuition rate is even less indicative of the actual cost than it was just a few years ago.
October 22, 2012
Political bias lawsuit against Iowa getting uglyHere.
Cyber-Misogyny ReduxAutoadmit and Anthony Ciolli may seem like ancient history, but cyberspace is still awash in misogynistic and other abuse. Until the insane CDA 230 is gone, the Internet will continue to be the harassment and misogyny superhighway.
October 21, 2012
The Persistence of Fuller-Inspired Confusions about Legal PositivismIt is surprising, to those of us specializing in jurisprudence, how much staying power Lon Fuller's confusions have. This paper by Michael Sevel (Sydney) is a useful corrective.
October 19, 2012
On the Future of "Big Law": "Growth is Dead"
There's an informative series of articles here. (Be advised, at one point he even favorably references and relies upon the "new' Paul Campos! Notwithstanding, it's still an interesting series of articles.)
If you don't want to read the whole thing, Part 5 of the series is probably the key.
October 18, 2012
Useful NLJ Piece on This Year's Hiring Convention ("the meat market")
Here. An excerpt:
Sad to say, my prediction during the summer has been borne out. Dean Wu at Hastings is clearly correct that this year is a buyer's market, though, based on the candidates we are working with, there will still be candidates for whom the schools will be competing. But it is definitely a great year to be able to hire new faculty.
Approximately 142 law schools registered to attend the AALS hiring conference—a 14 percent decline from the 166 that attended last year and a 21 percent decrease from the 179 schools that participated during pre-recession 2007. The schools that do attend won't necessarily hire—some use the conference to scout teaching talent for the future. (It's difficult to tell how many open teaching spots actually exist, as some schools advertise specific positions in an AALS-published bulletin but many do not.)
At the same time, the number of aspiring law professors has held fairly steady during the past five years. Thus far, 750 candidates registered for the AALS' faculty interviews, although that number does not include the final list of candidates, which will come out in February. The total number of registrants has fluctuated between 824 and 901 in recent years, according to the AALS.
October 17, 2012
Why Tolerate Religion?
The book is finally out. Thanks to all those who had expressed interest in the project.
NYU Law's Changes to 3L Curriculum
Hard to assess the merits from this piece, it may be substantive and meritorious, or just trendy (as, alas, many curricular overhauls tend to be). Perhaps it will be in the spirit of the second change to legal education discussed here.
(I was amused by the reference in the linked article to a course on "Nietzsche and the Law." While Cardozo once ran a conference on this topic [I did not attend], I've actually never heard of such a course. Cardozo used to offer a course on Hegel's Science of Logic, however! Maybe they still do.)
October 15, 2012
A potted history of American legal education and scholarship in the 20th-century, with special reference to why there is no longer a scholarly Wissenschaft in law
MOVING TO FRTON FROM JULY 11, 2012: THIS APPEARED IN THE DOG DAYS OF SUMMER WHEN SOME READERS WHO MIGHT FIND IT INTERESTING MAY HAVE MISSED IT
Christopher Columbus Langdell, Dean of the Harvard Law School in the late 19th-century, set the paradigm for what law schools and legal scholars should do, a paradigm that lasted for nearly a century, until Richard Posner upset it in the 1970s. That gloss perhaps exaggerates the influence of these two individuals, but only slightly.
In the 19th-century, the idea arose, beginning in Germany of course, that a subject fit for and requiring university study should be a Wissenschaft, a "science," though the Anglophone connotation of natural science is misleading. A Wissenschaft was a body of knowledge characterized by distinctive methods and tools that, when deployed correctly, would lend epistemic credence to the results. If law was to be a subject for university study, then it had to be a Wissenschaft, an idea shared by Langdell and the Legal Realists, and many others.
For Langdell, the body of knowledge constituting legal knowledge arose from a careful study of the opinions of the courts as they analyzed legal problems--not a crazy view for a scholar of the common law to have, of course. Carefuly study of these opinions could elict the general principles and rules of law that explained the particular opinions. The task of legal scholars was to articulate these general principles, and the obligation of the law students was to learn them, so that they could then understand what the courts will do.
The American Legal Realists interrupted this pedagogical and scholarly narrative in the early 20th-century, noticing that the doctrinal categories the Langdellian scholar latched on to were often pitched at a level of abstraction from the particular problems the courts were confronting that actually obscured what was really going on. Sensitivity to economic and social context was often necessary to make sense of the decisions; there was no "law of contracts" or "law of torts," per se. As the great Legal Realist Leon Green's torts casebook of the 1930s suggested, what there really was were principles of tort law for railroads, for hospitals, for factories, and so on. The American Realists accepted Langdell's ambition to make the study of law scientific; they just thought Langdell's science was shoddy, and their view prevailed.
The merged Langdell/Realist paradigm became dominant for a good half-century. To take a prominent example of how the agenda became mainstreamed: my late Texas colleague Charles Alan Wright understood himself, correctly, to be a Legal Realist, and his renowned treatise on Federal Practice and Procedure reflects that self-understanding: Wright and his colleagues carefully parsed the opinions of the courts, in order to elicit the situation-sensitive rules the courts actually were deploying in deciding procedural issues. The treatise writer continued to be the pinnacle of academic excellence for another generation after WWII.
Richard Posner is, like Langdell, the other decisive figure in the history of American legal scholarship and education. He did not invent economic analysis of law--such credit goes, if it goes to any one person, to his Chicago colleagues Ronald Coase and Aaron Director--but he had the intellectual energy and ingenuity to show in the course of the 1970s how the economic way of thinking could both explain what the courts were really doing and upset what almost all the scholars were saying about it. The economic approach started from a simple assumption: individuals are instrumentally rational in trying to get what they want. Their interactions with the law, so the economic story goes, are no different. If the law imposes penalties on certain conduct, they will adjust their behavior accordingly, in order to get what they really want, even if the law prohibits it or burdens the pursuit of it, unless, of course, the burdens become too costly. Those simple "rational choice" assumptions had radical consequences, or so Posner and Posnerians argued. And here they pierced the vulnerable underbelly of the Realist attack on Langdell's doctrinalism. For the Realists operated with "common sense" assumptions about how law would influence behavior, a "common sense" that hadn't really taken account of how actors in market systems tend to think, namely, in terms of the self-centered costs and benefits of different courses of conduct. The greatest success of economic analysis was, of course, in those commercial domains where actors really did think the way the economic analyst supposed.
The victory of Realism and Posnerian Realism means, of course, there is no science of law--no distinctively legal methods or tools--beyond the ones Langdell envisioned. But that's the Wissenschaft law schools have been teaching for a century now, and, arguably, students master it within two years, at least when well-taught. Once a student has learned the Langedellian Wissenschaft, what's needed is something else, at least for a post-Realist, post-Posnerian legal scholar: history, economics, political science, sociology, and so on. That's why the idea of a PhD in law is so bizarre: it's either Langdellian Wissenschaft fetishized (Legal Realism and Posner be damned!) or its history-lite, economics-lite, political science-lite and so on. (The worry is that the latter is really what Yale's new "PhD in law" will be.)
In the UK, Langdellian Wissenschaft still reigns supreme--hence the PhD in law there really is a graduate degree, one that complements the undergraduate training students have had in "dcotrinal" analysis. (There are exceptions, of course, in the UK for those who do a doctorate in jurisprudence or legal history, which are well-developed specialties, which operate in tandem with, not as lite-versions of, the cognate Wissenschaften.) But as American law professors often jest, if you want to know what law school was like in the 1950s, spend a term at a leading English law school. Maybe doctrine really does explain the behavior of courts in the UK, and maybe English citizens are even more infrequently maximizers of their satisfactions than their American cousins. But the Langdellian legal Wissenschaft exhausts its intellectual utility within two years of JD study, and that is, as far as I can tell, no longer controversial on this side of the Atlantic. So what could a PhD in law really be about? Especially at Yale, where even the craft of the Langdellian paradigm has largely vanished, it is especially puzzling. Although Yale has smart historians, psychologists, economists, and philosophers on the faculty, the Law School clearly does not have the resources to mount a serious "law-and-X" Wissenschaft in any of these fields, certainly not when compared to a JD/PhD in history, psychology, economics etc. The real worry about Yale's PhD in Law is that it's going to be a PhD imprimatur on even higher-level post-Realist dilettantism. Only if law schools generally acquiesce to this will it be successful.
October 12, 2012
A travel tip to keep in mind, esp. for job seekers
One of our graduates on the market writes:
[F]or callbacks in the coming weeks, you might want to suggest that folks not book flights on American Airlines. Many folks might not have internalized the news coverage of American's ongoing problems -- flying American in the coming weeks almost certainly increases the odds of delayed flights and missed connections by a statistically significant margin. Given the tight scheduling of callbacks, I can't see any good reason to risk flying American unless it's the only option, or any good reason that a school wouldn't cover a (reasonably) more expensive ticket on another airline.