October 04, 2017
September 29, 2017
How should a Dean who understands academic freedom respond to public controversy about faculty writing?
So we know from the unhappy example of Dean Ferruolo throwing a faculty member under the bus what not to do: you don't publish a statement on the homepage of the school singling out a faculty member's work, declare that not only do you, as Dean, disagree with it, but suggest that these are pariah views in "our law school community", and imply that the offending views may implicate "racial discrimination" and persecution of the "vulnerable" and "marginalized." Making an obligatory reference to academic freedom in passing does not undo the damage that this decanal misconduct causes.
The job of administrators is not to share their opinions about the views of members of the faculty, but to administer a university environment in which faculty and students may express points of view that do not otherwise violate anti-discrimination, sexual harassment or other laws. (The silly op-ed did not violate any applicable law obviously). So one obvious, and preferable, option would have been for the Dean to make no public statement at all. He could have met with concerned student groups, and educated them about academic freedom and reaffirmed institutional policies about equal opportunity. If a Dean makes any public statement in the context of such a controversy, it should not include any comment on a faculty member's views; it would suffice, for example, to simply reaffirm the institution's commitment to equal opportunity for all students and the like.
The Kalven Report got it exactly right fifty years ago, and all administrators ought to read and think about it. The university sponsors critics, it is not itself a critic or advocate (except for that narrow range of issues central to the university's function). A Dean, or other university administrator, forfeits his academic freedom upon becoming Dean--in part, because Deaning is not a scholarly enterprise but an administrative one, and academic freedom exists only to protect the scholarly pursuit of truth. As an administrator, the Dean's job is to protect academic freedom and protect an environment in which faculty and students can express their views in the appropriate fora, such as the classroom, scholarship, and sometimes in the public sphere. In order to preserve a community of open and vigorous debate, the Dean must not lend his authority to one side or the other. That there is an uproar about a faculty member's scholarship or op-ed does not mean the Dean must speak out, except perhaps to educate people about what a university is and what academic freedom is and why it matters.
September 27, 2017
AG Sessions invited to talk about "free speech" (but not kneeling NFL players!) at Georgetown Law...
...but only to friends of Georgetown law professor Randy Barnett, with pre-screened questions. Other Georgetown law faculty and students aren't happy.
UPDATE: Various folks have sent me Prof. Barnett's lengthy explanation of the event and what actually transpired; it is below the fold for those who are interested:
September 25, 2017
MOVING TO FRONT FROM SEPTEMBER 21--UPDATED
Jonah Gelbach, a law & economics and empirical scholar at Penn, has now taken the time to set out in detail the problems with the silly op-ed. You can safely ignore the self-serving preface from the empty Jonathan Haidt, and just go straight to Gelbach's patient discussion. In the broader scope of things, it was surely not a good use of Professor Gelbach's time to have to write this in response to an opinion piece so slight, but given the controversy that has been generated, we should all be grateful that he did it.
I have no doubt that this won't stop Heather MacDonald and others from making absurd claims about Professor Wax's great wisdom and expertise, but at least those of us actually invested in the scholarly enterprise can learn something from Prof. Gelbach's analysis.
(Thanks to Jonathan Klick for the pointer.)
UPDATE: Haidt, given his great commitment to the free exchange of ideas and arguments, decided to edit out one part of Prof. Gelbach's original response to the Wax & Alexander op-ed, after Prof. Wax objected--apparently to Prof. Gelbach's devastating scrutiny of their lack of empirical evidence. In any case, Prof. Gelbach kindly offered to let me make available his actual, uncensored response, which is here: Download Facts v. Wax Part I.A - The Uncut Version. It begins with an explanation of what Haidt did and of his efforts to find out if there was, I fact, evidence for some of the curious claims in the op-ed.
September 20, 2017
...for his abject failure of leadership in one of his central duties as head of an academic institution: to defend freedom of speech and inquiry by faculty and students on both scholarly matters and matters of public concern. It is not his role to express his own opinions about positions defended by his faculty, either in their scholarship or in their contributions to public debate. If he wants to express his own opinions, he should step down from the Deanship and rejoin the faculty. But as Dean, his job is to defend freedom of speech and inquiry, even when it is unpopular. He has failed.
USD Law professor Tom Smith has more, including a response from many of Larry Alexander's colleagues to the Dean's inappropriate public statement.
The op-ed by Larry and Penn law professor Amy Wax that has generated all the controversy was rather feeble, confusing correlation and causation in ways that were, by my lights, embarrassing and strange. The piece has been subjected to sensible criticism from colleagues of Professor Wax. I make my opinion known about the merits only so we can be clear that mine is an objection based on a crucial principle: the job of academic administrators is to administer a university environment, which includes protecting the space for scholarly and political debate. An administrator can only do that if he or she does not enter that space and take sides against members of the faculty or the student body. Here is how the University of Chicago's 1967 Kalven Report (authored by famed First Amendment scholar Harry Kalven) puts it:
The mission of the university is the discovery, improvement, and dissemination of knowledge. Its domain of inquiry and scrutiny includes all aspects and all values of society. A university faithful to its mission will provide enduring challenges to social values, policies, practices, and institutions. By design and effect, it is the institution which creates discontent with the existing social arrangements and proposes new ones. In brief, a good university, like Socrates, will be upsetting.
The instrument of dissent and criticism is the individual faculty member or the individual student. The university is the home and sponsor of critics; it is not itself the critic.....To perform its mission in the society, a university must sustain an extraordinary environment of freedom of inquiry, and maintain an independence from political fashions, passions, and pressures. A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community....
Since the university is a community only for these limited and distinctive purposes, it is a community which cannot take collective action on the issues o fthe day without endangering the conditions for its existence and effectiveness.
The Dean speaks for that community, and the way Dean Ferruolo has spoken has now endangered the community he was charged with shepherding.
Up until this point, I had thought Dean Ferruolo had done rather well by USD, but he has failed, and failed mightily, here. His choices are clear: apologize for his failure in this instance, or resign.
Readers may be interested in my discussion of these issues in a column last Spring at CHE.
UPDATE: See also the discussion of the op-ed by Penn's Jonah Gelbach.
September 19, 2017
...after a good six-year run. A lot of good appointments made during his tenure, including Emily Kadens and Matt Spitzer from Texas, Deborah Tuerkheimer from DePaul, and David Schwartz from Chicago-Kent, among others. (Longtime readers will recall that Rodriguez was a transformative Dean at San Diego in the 1990s and early 2000s.)
MOVING TO THE FRONT FOR THE LAST TIME
This post is for schools who expect to be hiring this year.
In order to protect the privacy of our candidates, please e-mail me at email@example.com to get a copy of the narrative profiles of our candidates, including hyperlinks to their homepages. All these candidates will be in the first FAR distribution.
We have an excellent group of nine candidates this year (three JD alumni, one SJD alumna, four Bigelow Fellows, and one Dickerson Fellow), who cover many curricular areas, including labor law, employment law, ERISA, civil rights, property, family law, criminal law, immigration law, criminal procedure, civil procedure, professional responsibility, contracts, comparative law, administrative law, legislation, financial regulation, empirical legal studies, business associations, corporate law & securities regulation, corporate finance, antitrust, international law, human rights, alternative dispute resolution, international business transactions, and conflicts, among other areas.
Our candidates include former federal appellate clerks; Law Review editors; JD/PhDs and LLM/SJDs; and accomplished practitioners as well as scholars. All have publications and writing samples.
If when you e-mail, you tell me a bit about your hiring needs, I can supply some more information about all these candidates, since we have vetted them all at some point in the recent past.
September 12, 2017
Lots of gems, as one might expect. On his approach to judging and some of his critics:
“I pay very little attention to legal rules, statutes, constitutional provisions,” Judge Posner said. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”
The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. “And the answer is that’s actually rarely the case,” he said. “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.”
I asked him about his critics, and he said they fell into two camps....
He said he had less sympathy for the second camp. “There are others who are just, you know, reactionary beasts,” he said. “They’re reactionary beasts because they want to manipulate the statutes and the Constitution in their own way.”
And on his immediate reason for retiring:
He had become concerned with the plight of litigants who represented themselves in civil cases, often filing handwritten appeals. Their grievances were real, he said, but the legal system was treating them impatiently, dismissing their cases over technical matters.
“These were almost always people of poor education and often of quite low level of intelligence,” he said. “I gradually began to realize that this wasn’t right, what we were doing.”
In the Seventh Circuit, Judge Posner said, staff lawyers rather than judges assessed appeals from such litigants, and the court generally rubber-stamped the lawyers’ recommendations.
Judge Posner offered to help. “I wanted to review all the staff attorney memos before they went to the panel of judges,” he said. “I’d sit down with the staff attorney, go over his memo. I’d make whatever editorial suggestions — or editorial commands — that I thought necessary. It would be good education for staff attorneys, and it would be very good” for the litigants without lawyers.
“I had the approval of the director of the staff attorney program,” Judge Posner said, “but the judges, my colleagues, all 11 of them, turned it down and refused to give me any significant role. I was very frustrated by that.”
His new book, he said, would have added to the tension: “If I were still on the court, it would be particularly awkward because, implicitly or explicitly, I’m criticizing the other judges.”
Judge Posner said he hoped to work with groups concerned with prisoners’ rights, with a law school clinic and with law firms, to bring attention and aid to people too poor to afford lawyers.
September 06, 2017
The University of Chicago Law School invites applications for the Earl B. Dickerson Fellowship, with an appointment at the rank of Instructor, for a twelve-month term to begin on July 1 or August 1, 2018. The Dickerson Fellowship is named after the first African-American graduate of the Law School, from the class of 1920. The Law School seeks candidates who demonstrate the promise of distinguished legal scholarship and law teaching and ideally have relevant practice experience that will qualify them to act as teachers and mentors of students. Among other considerations, we value candidates with diverse backgrounds and perspectives who will enrich and improve the student experience and the Law School's culture. The Dickerson Fellow will teach one or more courses per year and will be expected to publish high-quality scholarship and contribute to the intellectual life of the Law School. A J.D. is required. Candidates must apply online at the University of Chicago Academic Career Opportunities website, http://tinyurl.com/y94upx29, and upload a current curriculum vitae, law school transcript, and reference contact information. Applications will be considered until the position is filled or until June 30, 2018, whichever comes first.
The University of Chicago is an Affirmative Action/Equal Opportunity/Disabled/Veterans Employer and does not discriminate on the basis of race, color, religion, sex, sexual orientation, gender identity, national or ethnic origin, age, status as an individual with a disability, protected veteran status, genetic information, or other protected classes under the law. For additional information please see the University's Notice of Nondiscrimination at http://www.uchicago.edu/about/non_discrimination_statement/.
Job seekers in need of a reasonable accommodation to complete the application process should call 773-702-0287 or email ACOppAdministrator@uchicago.edu with their request.
September 01, 2017
We are looking forward to seeing more of him around the Law School!
For the story of his appointment by President Reagan and confirmation in 1981, see pages 1614-1615 of this article. President Reagan, who probably would be expelled for insufficient "conservativism" (whatever that is anymore) from today's Republican Party, surely did not know the legal force of nature he had unleashed when he appointed Posner.
On Judge Posner's jurisprudential significance, readers might also find this essay relevant.
And back in 2005, Judge Posner was a guest-blogger at my philosophy blog!
Dick Posner has always embodied the intellectual ideal of academic life at the University of Chicago: always willing to engage all views, unforgiving in argument, and never confusing intellectual warfare with personal animosity. It will be nice to see more of him.