November 29, 2013
"The Truth is Terrible"
This was the annual Epes Humanities Lecture at Davidson College, which some readers here might perhaps enjoy. (Some law colleagues told me they did enjoy it, so I'm posting it here as well.)
November 27, 2013
Ten Best "Business Law" Faculties
MOVING TO FRONT FROM YESTERDAY
DUE TO EGREGIOUS CHEATING BY SUPPORTERS, BERKELEY WILL PROBABLY BE DROPPED FROM THE TOP TEN (OR RESTORED TO WHERE IT WAS BEFORE THE CHEATING BEGAN)
A new poll, for your holiday entertainment. "Business law" is fairly broadly defined to include antitrust, bankruptcy, contracts, commercial law, corporate law and finance, and securities regluation. Corporate tax scholars are generally not included, unless they also do work in the other areas. I've listed the business law faculty at the top 18 law schools, since I think it's pretty clear the top ten will be found in that listing, even if some faculties not listed are as strong or stronger than some of the 18 in the poll.
Once again, no linking or rallying votes via social media, or the offending school will be eliminated! Please don't complete the poll unless you are somewhat knowledgeable about scholarship in some of these areas!
UPDATE: The faculty beginning with Lucian Bebchuk should also include Charles Fried, for his work on contract theory. And the faculty beginning with Randy Barnett should also include Christopher Brummer, for his work on securities regulation.
ANOTHER: Thanks to various readers for feedback. I should note that (1) once the poll starts, I can not alter the faculty lists; (2) the goal was to list faculty who write in the indicated business law areas; (3) the focus was on *domestic* business law scholarship, so someone working only on international trade or international business were not listed (or were not supposed to be listed!) (we will do a separate poll on international law faculties, both public and private).
TSK, TSK, BERKELEY SUPPORTERS (11/27): Some pretty transparent strategic voting going on, we may have to drop Berkeley from the results!
Windfall multi-million dollar gift from 1940 alumnus...
(Thanks to Nicholas Marritz for the pointer.)
Big discounts for Pennsylvania residents at Penn State's Dickinson School of Law
Another sign of the times.
November 26, 2013
Hobby Lobby's challenge to the Affordable Care Act's insurance mandate, including contraception
Turmoil over the "Sexton Plan" at NYU continues
The latest installment from the faculty opposed to the Sexton Plan here Sexton, it is worth noting, has already announced his intention to step down from the Presidence in two or three years, though much of his Plan may still go forward (including the massive construction project that will take place right next to a lot of the existing faculty housing, which has no doubt fanned the flames of opposition).
November 25, 2013
Benjamin Winterhalter, opportunistic liar of the day...or why law school is obviously not a "scam"
Salon must really be desperate to post this content-free piece, which takes as its question, "How...can we explain the fact that young people are still going to law school in droves?" when, in fact, applications to law school are down nearly 40%, and most law schools in the United States are experiencing varying degrees of financial stress as a result (not "raking in cash"). But never mind the facts, little Mr. Winterhalter wants to deliver his sermon: "Why aren’t law schools ashamed of themselves?" Well, because most of them didn't do anything shameful, that's why. Almost all the graduates of accredited law schools passed the bar exam, and the only actual evidence on offer makes clear that the JD was a winning financial proposition for the vast majority. There's no shame in teaching the vast majority of students to pass the bar and enabling them to enjoy substantial financial returns on their education. (There should be shame in being an opportunistic liar like Mr. Winterhalter, who calculated, obviously correctly, that he could capitalize on the current hysteria to get a fact-free smear piece into Salon! I will let pass in silence his juvenile discussion of economic analysis of law.)
It is time for a little reality-check, even in cyberspace. In 2008, the global capitalist system suffered a severe recession or depression, which soon spread to the legal sector, exacerbating trends affecting reduced demand for lawyers. Law schools did not cause that economic catastrophe. Beginning in 2011, Senators Boxer and Coburn began challenging the ABA about the accuracy of employment data reported by ABA-accredited law schools. This data was almost certainly massaged, due to the malign and longstanding influence of U.S. News (as I noted a decade ago!). Annoyed U.S. Senators, unsurprisingly, caught the attention of the ABA, and soon enough, the ABA mandated improved employment data reporting, thus making clear how poorly graduates of some law schools were faring during the recession. Around the same time, David Segal, a journalist who had never before covered law, began writing a series of front-page stories in The New York Times about the collapse of the job market for new lawyers, as well as producing unrelated hatchet jobs on legal education.
In the wake of all this, applications to and enrollments in law schools, unsurprisingly, entered a steep decline. Law schools began reducing tuition and cutting faculty. But in cyberspace, a different set of events, only partly related to the preceding, began to unfold. The global recession took its toll on recent law graduates, like so many others. Some of the victims took to the Internet, enacting Nietzsche's observation more than a century ago that,
Every sufferer instinctively looks for a cause of its distress, more exactly, for a culprit, even more precisely for a guilty culprit who is receptive to dsitress--in short, for a living being upon whom he can release his emotions, actually or in effigy, on some pretext or other; because the release of emotions is the greatest attempt at relief, or should I say, anaestheticizing on the part of the sufferer. [Cf. Barash & Lipton, Payback (Oxford, 2011) for empirical evidence in support of the Nietzschean hypothesis.]
There was, undboutedly, considerable suffering by lawyers and new law graduates--jobs lost, careers thwarted, huge debts looming and undischargeable in bankruptcy. In cyberspace, some of those suffering--as well as some muddle-headed law professors and opportunistic charlatans-- identified a "guilty culprit": it was law schools. Thus was born the bizarre meme that law school was a 'scam.' (Mr. Winterhalter is a late arrival to the meme.) Although U.S. law schools had for decades successfully trained most graduates to pass the bar and become lawyers, this no longer mattered. Massaging employment data to game U.S. News rankings was now portrayed as a concerted and sinister attempt to fraudulently induce students to come to law school who otherwise never would have dreamed of doing so. Indeed, lawsuits by victims of this alleged "scam" were soon filed around the country, but courts have uniformly repudiated their theory about the culprits, noting the obvious "elephant in the room," i.e., the global recession of 2008. The law professors who taught the plaintiffs apparently well enough to pass the bar were clearly not responsible for lack of jobs--how could they be? Some law schools still face possible liability, and perhaps rightly so: there are 200 accredited law schools in the country, and some may have acted unethically and perhaps illegally. But law schools are not culpable for the economic catastrophe of the last five years, and the vast, vast majority did not defraud or scam anyone. This much is obvious to the courts, indeed, to anyone awake.
The sensible response to an economic catastrophe, both inside and outside the legal profession, has turned into an utterly irrational attempt by the misguided or the malevolent to find "guilty culprits" to blame for miserable circumstances. Mr. Winterhalter is just the latest manifestation of this irrational response, but cyber-ranting like his still proliferates in which law schools, judges, lawyers, law faculty, and anyone who resists the herd mentality of the deranged scam-bloggers are disparaged, demeaned and defamed without regard for the facts and without any actual evidence of wrongdoing.
November 24, 2013
Functional explanations in positive (descriptive) legal theory
In the most recent installment of his very useful Legal Theory Lexicon, this one on functional explanations, Larry Solum (Georgetown) concludes by noting:
Let me conclude with a very short diatribe. Legal theorists need a basic understanding of positive legal theory. (I hope this is obvious to everyone!) That means that legal academics should, at a minimum, have a working familiarity with the general concepts of the methodology and theory of the social sciences, including basic ideas about the role of functionalist explanations. But almost no law schools (even the elite ones that train most academics) offer courses in the methodology of positive legal theory! That's bad. Real bad.
Of course, as Larry knows, many legal philosophers do not think positive theories are particularly relevant to philosophical questions, though I am not one of them. I do agree with his basic point that some grasp of foundational issues about the social sciences would be useful, including understanding methodological individualism vs. holism, the nature of functional explanations, and the relationship between functional and causal explanation. I will note that Michael Forster and I do teach a lot of this material in connection with teaching Marx in various seminars, including, again, this Winter Quarter (while we do use Elster, and some G.A. Cohen, we actually use a 1986 paper by Peter Railton on "Explanatory Asymmetry in Historical Materialism" (from Ethics) as the counterpoint to Elster, though Cohen ended up endorsing something like this view [I think]). Whether all law teachers should be required to have had a course in the methodology of the social sciences is a harder question, but it surely couldn't hurt!
November 22, 2013
In Memoriam: Myrna Raeder
Professor Myrna Raeder of Southwestern University Law School passed away this week. She joined the Southwestern faculty in 1979. Raeder was 66.
November 21, 2013
We are on track for there to be more new jobs for lawyers than there are new law school graduates...
...by 2016 or 2017. Hopefully this will help some of those currently unemployed, but it is also probably quite good news for those starting law school now or next year. (I commend Professor Young for taking the time to run the numbers, which in the current toxic cyber-environment where facts are never welcome [recall the irrational reception in cyberspace of the Simkovic & McIntyre study, even though it completely altered the terms of debate in the real world], requires considerable courage. I also commend to the attention of readers Professor Young's profiles of graduates of the Appalachian School of Law, a nice snapshot of the important role legal education plays in communities throughout the nation.)
UPDATE: Deborah Merritt (Ohio State) takes issue with some of the numbers. For reasons that are unclear, she also discounts "JD Advantage" jobs. Whereas Professor Young generally made optimistic assumptions given the available data, Professor Merritt makes pessimistic assumptions on the same data, though far as I can see, the available evidence is neutral as between them.