September 30, 2013
A public lecture on toleration in Newport......this Thursday, for any readers in the area who might be interested.
September 27, 2013
A different take on the ABA Task Force Draft Report on the Future of Legal Education
Robert Condlin (Maryland) calls to my attention his different, and more critical, take on the draft report (found in this paper of his); he makes a number of sound points that are worth airing:
This latest ABA paper on legal education is a deeply flawed document. Starting from what it describes as a “fundamental tension” between legal education’s dual status as a “public [and] private good,” id. at 6-7, (what the Report actually describes is the tension between education and training—it mistakenly thinks of those as the same thing), it proposes reconstituting law schools as technical training institutes “devoted to preparing students to pursue and compete for jobs.” Id. at 13. It makes a few, mostly adjectival, concessions to critics of its earlier Working Paper on the same subject, see note 6 supra, but for the most part it retains the anti-intellectualism and worker bee myopia that characterized that earlier work. It shows no awareness of the obligation to prepare lawyers to implement rules and operate institutions to serve the ends of justice, fairness, equality, and efficiency, for example, or the obligation to future generations to construct legal norms and institutions that can adapt to changing social and political circumstances, needs, and beliefs. Instead, it focuses obsessively on the present and constructs a blueprint for satisfying students’ immediate “customer” desires rather than theirs and the legal system’s long-term interests.
In this same spirit, it depicts legal scholarship as a drag on education, adding to its cost without producing any corresponding benefit, ignoring the numerous contributions legal scholarship has made to the development of law in areas as diverse as privacy, see e.g., Samuel D. Warren and Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193 (1890), tax, see e.g., Boris Bittker, Tax Shelters, Nonrecourse Debt, and the Crane Case, 33 Tax L. Rev. 277 (1978), commodities trading, see e.g., Saule T. Omarova, The Merchants of Wall Street: Banking, Commerce, and Commodities, 98 Minn. L. Rev. (forthcoming) (2013), antitrust, see e.g., Robert H. Bork, The Antitrust Paradox (1993), property, see e.g., Charles A. Reich, The New Property, 73 Yale L. J. 733 (1964), environmental protection, see e.g., Joseph Sax, The Public Trust in Natural Resource Law, 68 Mich. L. Rev. 71 (1970), copyright, see e.g., Robert Denicola, Applied Art and Industrial Design: A Suggested Approach to Copyright in Useful Articles, 67 Minn. L. Rev. 707 (1983), consumer financial protection, see e.g.,Elizabeth Warren, Unsafe at Any Rate, 5 Democracy (Summer 2007) available at http://www.democracyjournal.org/5/6528.php
<http://www.democracyjournal.org/5/6528.php>, product safety, see e.g., Guido Calabresi, The Cost of Accidents: A Legal and Economic Analysis (1970), and dozens of others. See David Kennedy & William Fisher III (eds.) The Canon of American Legal Thought (2006) (describing twenty law review articles that have had a profound effect on the shape of American law and legal institutions); Michelle Harner & Jason Cantone, Is Legal Scholarship Out of Touch? An Empirical Analysis of the Use of Scholarship in Business Law Cases, 19 U. Miami Bus. L. Rev. 1 (2011) (describing the influence of legal business law scholarship on the decisions of the Delaware Supreme Court). It also ignores the systemic contributions of scholars like Henry Hart and Albert Sachs, Mitchell Polinsky, Richard Posner, and numerous others, who changed the ways in which generations of judges and lawyers go about their business and think about law and legal institutions. Scholarship is the legal system’s seed corn, and destroying seed corn eventually makes an ecosystem uninhabitable.
The Task Force’s mindset reminds me of my brief experience as a member of the Long Range Planning Committee of a major state bar. Long range planning for our Committee consisted of someone saying: “You know, last week this happened to me; there ought to be a law against it,” and the Committee (with me excepting) agreeing. Hopefully, the ABA House of Delegates will understand the risks in such casual empiricism and spare law schools the harm wrecked by similar short term thinking in the present day worlds of law practice and business. “The customer is always right” may have worked for Marshall Field, but it is a prescription for disaster in legal education.
September 26, 2013
ABA Task Force on Future of Legal Education, Draft Report of September 20, 2013
Co-blogger Dan noted its appearance the other day, and I've now had a chance to look at it. Most of what was good and sensible is still there, but, alas, most of what was bad and unsupported is also still there (there were some minor edits, e.g., noting Income-Based-Repayment). As others have noted, there are still a lot of fact-free assertions, on the basis of which recommendations are then predicated. And, more disappointingly, the fact-free smear that "a substantial" number of law faculty "sought out their positions because those posts reside largely outside market- and change-driven environments" (p. 15) remains in this draft. People have lots of motives for going into law teaching, but I don't think I've ever met anyone for whom this was the motive. That this gratuitously stupid line still appears in the draft report indicates that there's someone on the committee with an idee fixe (but not much intellectual judgment!). If the ABA Task Force actually wants law faculty to take the report seriously, it would do well to remove lines like this which will alienate one part of the intended audience.
September 24, 2013
All about law school Deans......courtesy of Mississippi College School of Law Dean Rosenblatt: who are the Deans, how long have they served, etc.
September 23, 2013
ABA Task Force Calls For Changes to Legal Ed and the ProfessionThe ABA's Task force on the Future of Legal Edcuation issued a draft report last Friday. It's here. In its call for states to authorize limited legal practice by non-lawyers, the committee may have gone beyond its charge. But it's interesting reading.
September 22, 2013
Oxford Studies in Philosophy of Law, volume 2...
...is now out, with new essays by Stephen Perry, Barbara Baum Levenbook, Matthew Kramer, Bruno Celano, Michael Giudice, R.A. Duff, C.L. Ten, Hanoch Sheinman, and Luis Duarte D'Almeida. The volumes covers topics in general jurisprudence, as well as the philosophy of criminal law, international law, and contracts, among other topics. Perry's important paper has already commanded attention from jurisprudential scholars.
I'm also pleased to report that John Gardner, the Professor of Jurisprudence at Oxford, will join Leslie Green and me as co-editors of volume 3.
September 20, 2013
DC-area Law School EnrollmentsLots of competition (and lots of financial aid), yet Georgetown's enrollment is down, George Washington's up (at least from last year), and numerical credentials in flux at various places.
September 19, 2013
Law Schools Unfairly Ranked by U.S. News
MOVING TO FRONT FROM OCT. 3 2011, SINCE IT IS TIMELY AGAIN
I've occasionally commented in the past about particular schools that clearly had artificially low overall ranks in U.S. News, and readers e-mail me periodically asking about various schools in this regard. Since the overall rank in U.S. News is a meaningless nonsense number, permit me to make one very general comment: it seems to me that all the law schools dumped into what U.S. News calls the "third" and "fourth" tiers are unfairly ranked and represented. This isn't because they all have as good faculties or as successful graduates as schools ranked in "the top 100"--though many of them, in fact, do--but because the metric which puts them into the "third" and "fourth" tier is a self-reinforcing one, and one that assumes, falsely and perniciously, that the mission of all law schools is the same. Some missions, to be sure, are the same at some generic level: e.g., pretty much all law schools look to train lawyers and produce legal scholarship. U.S. News has no meaningful measure of the latter, so that part of the shared mission isn't even part of the exercise. The only "measures" of the former are the fictional employment statistics that schools self-report and bar exam results. The former aren't even really a measure of the training of lawyers, since U.S. News counts as employment any kind of employment, whether legal or otherwise. The latter are slightly more probative, except that the way U.S. News incorporates them into the ranking penalizes schools in states with relatively easy bar exams. So with respect to the way in which the missions of law schools are the same, U.S. News employs no pertinent measures.
But schools differ quite a bit in how they discharge the two generic missions, namely, producing scholarship and training lawyers. Some schools focus much of their scholasrhip on the needs of the local or state bar. Some schools produce lots of DAs, and not many "big firm" lawyers. Some schools emphasize skills training and state law. Some schools emphasize theory and national and transnational legal issues. Some schools value only interdisciplinary scholarship. And so on. U.S. News conveys no information at all about how well or poorly different schools discharge these functions--that worry, I should add, applies to its ranking of the "top 100" too. But by putting some 100 schools in the "third" and "fourth" tier, U.S. News conveys no actual information, it simply gratuitously insults hard-working legal educators and scholars and their students and graduates.
September 18, 2013
First outsourcing...now "onshoring"?Bill Henderson (Indiana) comments.
September 17, 2013
Supreme Court Clerkships by Law School: 2003 through 2013 Terms
UPDATE: Minnesota, in fact, had 2 Supreme Court clerks during this time, so makes the top 20 on both the "per capita" and the total clerks listing--that revision will be made shortly.