February 29, 2016
Signs of the times: faculty buy-outs offered at Valparaiso Law
February 25, 2016
Professor Bainbridge does not approve of the rise of the JD/PhDs
His diatribe is amusing, though for the record I think that anyone who runs a regression on what Rawls thinks should be fired! (Also, Steve, no one is interested anymore in what
Dworkin said--that's just a UCLA thing!)
February 23, 2016
Replies from Milbank, Harvard Law School regarding the issues raised in the open letter
Thomas Arena, a partner at Milbank, sent a letter to several faculty signatories of the open letter noted the other day (including me), and kindly gave me permission to share the response with readers of the blog:
Your open letter, relying on allegations in press reports, erroneously suggests that Milbank sought to “censor or influence the viewpoints being expressed at student-run events” and that Milbank threatened to terminate its five-year pledge to Harvard Law School. As Harvard Law School has publicly stated, the allegations are not accurate.
Here is what did happen. In 2012, Milbank agreed to establish the Milbank Tweed Student Conference Fund at the Law School. The Fund called for Milbank to make a substantial gift, spread out over five years, to broadly support the school’s student journals and organizations.
The Office of the Dean of Students at the Law School administered the Fund through an application process open to all student organizations and journals, and the Dean of the Law School and the Dean of Students had sole discretion to determine how to allocate monies from the Fund. Milbank had no input whatsoever into the selection of student organizations or journals to receive grants from the Fund.
For the current school year, Harvard awarded grants from the Fund to dozens of student organizations. Although Milbank was pleased to support student-run organizations and journals at the Law School, the awarding of grants from the Fund by Harvard was never intended to constitute or imply an endorsement of the viewpoints expressed by any particular organization or journal. Milbank is a diverse organization, comprised of partners and employees with varying points of views on many issues. We are extremely proud of that diversity in opinions. Consistent with that diversity, while individuals at the firm are free to express their political views, the firm does not take political positions or endorse particular political views.
In October 2015, a Harvard student organization used a grant from the Fund to sponsor an event entitled, “The Palestinian Exception to Free Speech.” We became aware of the event when the sponsoring student organization posted a Facebook page to promote it. The Facebook page contained a controversial image and included statements accusing governments of violating international law and other persons and institutions of engaging in wrongful or harmful conduct. The sponsoring group, without consulting the firm, also included a statement that the event “is brought to you by the generous support of Milbank LLP,” which created a false impression, among many who viewed it, that the firm endorsed the views expressed by the group. At the request of the Law School, the sponsoring student organization removed the statement relating to Milbank from its Facebook page about the event.
Milbank has not terminated its five-year gift or its support for the Law School, and never threatened to do so. Nor did Milbank demand that any funding previously provided to any Harvard student group be rescinded. Nor did Milbank demand that Harvard withhold funds from the student group in question or any other group.
In light of the false impression engendered by the Facebook page noted above, however, we did make the decision to look for alternative ways to support the Law School. Our motivation was solely to avoid the risk of future misimpressions that the firm endorses specific viewpoints expressed by any particular student organization or journal. The Law School assured us that it would be able to fund student conferences with other resources, and we understand that the Law School has continued to maintain the same level of funding to support student activities.
Milbank looks forward to maintaining our strong relationship with the Law School and to continuing to support its mission in other ways in the future.
Thomas A. Arena
Milbank, Tweed, Hadley & McCloy LLP
In addition, Robb London, an Assistant Dean at Harvard Law School, also wrote, and kindly gave permission to share the following response from HLS:
On behalf of Harvard Law School, I am writing to communicate that Milbank never controlled the disbursement of grants from the Milbank Tweed Student Conference Fund at HLS, nor did it seek to “censor or influence the viewpoints being expressed at student-run events” — contrary to the statements in the open letter. Milbank never sought to rescind grants to any student organization, and it did not threaten to terminate its five-year pledge to Harvard Law School.
Milbank did request that the Law School use the remaining portion of the firm’s pledge for activities other than its initial purpose of supporting student organizations and journals. Milbank made this request to avoid future misimpressions that the firm supported any viewpoints expressed by student organizations or journals receiving grants from the Fund. The Law School will henceforth fund student events and conferences from other sources, and we expect to be able to provide the same overall level of funding as before.
Please be assured that we share your views concerning freedom of speech — a principle vital to the mission of any institution devoted to the free and frank exchange of ideas. But the concerns raised in the open letter are premised on an inaccurate understanding of what happened in this instance. We are grateful for our exceptionally strong relationship with Milbank, and we look forward to its continued support of the mission of the Law School.
Georgetown BLSA weighs in
To Our BLSA Family and All Members of the Georgetown Law Community:
The Black Law Students Association takes issue with some of the responses and email exchanges shared with the entire GULC student body in the days following Justice Scalia’s passing. We recognize that many in the legal community, including some in our own organization, mourn the death of the late Justice Antonin Scalia, an influential and widely respected legal mind. We also understand that his passing has left many Georgetown Law students deeply saddened and we offer our sincere condolences to these students.
While we support an individual student’s choice to mourn, it must also be acknowledged that Justice Scalia’s legacy affects us in vastly different ways. As a result, some of the viewpoints expressed in the email exchange were disheartening for many in our membership. It is our hope that we can be candid with our community in this letter regarding those sentiments, and as a result, foster an environment of greater inclusiveness at Georgetown Law.
One particular email response from Professors Rosenkranz and Barnett decries the lack of intellectual diversity at Georgetown, citing the experiences of conservative students in the wake of Professor Peller and Seidman’s emails:
"Although this email was upsetting to us, we could only imagine what it was like for these students. Some of them are twenty-two year-old 1Ls, less than six months into their legal education. But we did not have to wait long to find out. Leaders of the Federalist Society chapter and of the student Republicans reached out to us to tell us how traumatized, hurt, shaken, and angry, were their fellow students. Of particular concern to them were the students who are in Professor Peller’s class who must now attend class knowing of his contempt for Justice Scalia and his admirers, including them. How are they now to participate freely in class? What reasoning would be deemed acceptable on their exams?"
This paragraph could be edited slightly, inserting black students for conservative and libertarian students, and the effect would be the same. In fact, this description is nearly identical to the lived and voiced experiences of many students of color at our institution.
Many Black students were also "traumatized, hurt, shaken, and angry" as “22-year-old 1Ls” when the law school declined to make unprompted timely statements last school year regarding the uptick in racialized policing, law enforcement, and the lack of indictments of violent police officers. Many Black students were also "traumatized, hurt, shaken, and angry," when fact patterns on a practice exam directly referenced the facts of the Trayvon Martin tragedy. Many Black students are also "traumatized, hurt, shaken, and angry" every time a classroom micro-aggression, from a professor or student, is dismissed until it escalates into something more systemic. Many Black students are also “traumatized, hurt, shaken, and angry” as real progress on institutional anti-racism and administrative equity and inclusion is constantly delayed.
If this one email exchange exacerbated frustrations of conservative or libertarian students, imagine the impact of continuous antagonistic classroom lectures and insensitive remarks about issues that directly affect the lives of the Black students here at the Law Center. How do we speak up in class? What reasoning will be acceptable on our exams? If our community can empathize with the hostile environment conservative students will reportedly enter as the result of the comments made by a two liberal professors in an email, then they cannot turn a blind eye to the calls for sensitivity training and a concerted effort to make faculty aware of the issues that face minority students.
Many Black students are currently "shaken and angry" that Professors Rosenkranz and Barnett, two of our most respected professors, would make a callous, ill-formed analogy to the legacy of Justice Thurgood Marshall in their email response. The email states:
“What would be the reaction if either of us had sent a similarly-worded email to the entire student body, in violation of Georgetown email policy, upon the death of Justice Thurgood Marshall -- saying that he was a bigot, and his intellectual positions were not brilliant but simplistic? Is there any doubt that the Georgetown reaction would justly be swift, dramatic, and severe?”
Justice Marshall was a tireless pillar of strength who sought equality, justice and fairness—who used his voice to uplift others and celebrate their differences to ensure that all had access to diverse and quality education. This analogy was in the poorest of tastes, especially as the country, our organization, and the law school celebrates Black History Month. It also added an additional unnecessary layer of hostility and exacerbated the racial undertones present in this entire call for mourning and respect.
Many Black students are also “shaken and angry” about comments Justice Scalia stated just months before his untimely death:
“There are those who contend that it does not benefit African-Americans to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less—a slower-track school where they do well.”
“They come from lesser schools where they do not feel that they're being pushed ahead in classes that are too fast for them," Scalia said. "I'm just not impressed by the fact that the University of Texas may have fewer. Maybe it ought to have fewer. And maybe some — you know, when you take more, the number of blacks, really competent blacks, admitted to lesser schools, turns out to be less." (See his comments here)
If the late Justice Antonin Scalia were correct in his assertions, if members of our organization were relegated to a “less-advanced school,” BLSA might not even have a vibrant presence on this campus to mourn his passing. In the same spirit of understanding and empathy called for by professors, and given Justice Scalia’s often polarizing, offensive and intolerant stances, we ask that an individual’s decision of whether or not to mourn be equally respected.
Until today, many of our colleagues at our institution could not empathize with the statements or understand the sentiments expressed by many Black students at Georgetown Law concerning marginalization. We were advised that law school classrooms were not meant to be a “safe space.” We hope this discourse enlightens all about the harms of marginalizing any underrepresented group on institutional or individual levels. We also hope that in the future, professors of all political ideologies and leanings, through more collegial discourse, will offer their solidarity, strength, and support to all marginalized students fighting for greater representation, recognition, and inclusion at Georgetown Law.
However unsettling, we must not allow this emotionally-charged discourse amongst legal scholars to distract us from our purpose. There is far too much work to be done. Rather than mourning the historical figures of all races, religions and political ideologies who fought in true solidarity so that we could study the law in desegregated and diverse classrooms—we will honor them.
We will study longer. We will fight harder. We will earn our degrees. We will use the law to push for progress—to become the next litigator, congressperson, judge or U.S. Supreme Court Justice.
A letter expressing these sentiments was also sent directly to members of the Georgetown Law administration. We ask that the university and student government expeditiously continue their individual and joint efforts to support inclusivity, encourage diversity of thought in the classroom, and denounce various forms of exclusion.
The Black Law Students Association
Note: This statement does not reflect the sentiments of all Black students or students of color on the campus of Georgetown Law.
February 22, 2016
Law firm support and freedom of speech in law schools
The New York Times and American Lawyer have both reported on the decision of the distinguished New York law firm Milbank Tweed to pull funding for speakers invited by student groups at Harvard Law School after one group invited a speaker of which, apparently, the firm disapproves. This sets a very unfortunate precedent, and I would encourage other law professors to join me as a signatory to this open letter. Law schools depend on generous support from alumni, whether as individuals or as partnerships or otherwise, but that support should be offered in a way consistent with the academic and pedagogical mission of a law school and be viewpoint-neutral.
Triumph of the JD/PhDs
Provocative piece from Bloomberg News, prompted by a recent paper by Lynn LoPucki (UCLA). We've certainly seen this already in some sub-fields: e.g., first-generation law & economics scholars were almost all JDs, while the current generation are almost all JD/PhDs. The rise in expectations for scholarly writing from junior faculty candidates over the last twenty years has strongly favored those with PhDs, who, of course, have a lot of writing in hand. And some of this is simply attributable to the revolution in legal scholarship wrought by Richard Posner in the 1970s, which finally finished off the Langedellian paradigm of legal scholarship.
Although I'm quoted saying that the rise of JD/PhDs will continue, that's a descriptive not normative statement. I think different schools have different missions. And the relevance of the JD/PhD varies by field. We have ten current junior faculty, only four of whom are JD/PhDs. Our Dean is a JD/PhD, our two most recent tenures were one JD/PhD and one JD (who had even been a partner in a major law firm). We placed three Chicago candidates at "top" law schools this year, two were JD/PhDs, one a "mere" JD. I think my prediction is an accurate one--and at other top schools it's already come true--but it will be another twenty-five years before it is realized at the top law schools generally.
February 19, 2016
Melodrama at Georgetown Law in the wake of Justice Scalia's death
UPDATE: There's a longer article on this brouhaha here. I find I agree with a lot of what Mike Seidman (Georgetown) is quoted in the article as saying in the wake of this dispute. In general, institutions should not adopt positions; faculty should adopt positions. But the convention of recognizing and mourning the passing of a member of that community is so well-established that I don't think anyone could imagine that such official expressions mean that everyone in the community has the same views about an individual's life and career. I doubt there has been a more severe critic of Justice Scalia than my colleague Judge Posner, and yet Chicago, of course, also mourned Justice Scalia's passing and recognized his professional career, as one would expect. I am sure no one thinks this means that Judge Posner is now retracting his previous criticisms of Justice Scalia's jurisprudence!
February 18, 2016
NALP report: improved hiring for new graduates in most recent recruitment cycle
The NALP press release is here.
February 17, 2016
U of Arizona first law school to accept GRE in lieu of LSAT
Arizona's announcement is here, and a National Law Journal story here. It's pretty plausible that the GRE is also a good predictor, since it has much in common with the LSAT; the biggest difference is that the GRE does test quantitative skills and knowledge.
On a lighter note...
...the quail of West Texas react to the passing of Justice Scalia.