August 25, 2017
Todd Henderson (Chicago): Lawyers make better CEOs in industries with high litigation risk (and worse CEOs elsewhere) (Michael Simkovic)
Professor Henderson finds that: "CEOs with legal expertise are effective at managing litigation risk by, in part, setting more risk-averse firm policies. Second, these actions enhance value only when firms operate in an environment with high litigation risk or high compliance requirements. Otherwise, these actions could actually hurt the firm."
August 03, 2017
Jerry Organ (St. Thomas) has the details.
UPDATE: At least one of the changes--namely, to stop stigmatizing law-school funded positions--probably makes sense. Here are comments that were forwarded to me that make the case aptly:
The goal of employment reporting is to provide accurate information, including to prospective students and the general public. All who are employed by the ABA’s definition (full-time at a salary of at least $40,000) should be counted as employed, regardless of the source of funding. To not count graduates on school-funded fellowships as employed (or to treat them differently) presents an inaccurate picture of a law school’s actual employment numbers. I, of course, know that there was a time when some law schools tried to game the rankings by employing students at a very low salary. But the ABA changed its definition to address this by requiring a salary of at least $40,000, which is approximately market rate for many public service jobs. In light of this change in definition, it made total sense for the ABA to revise its reporting form as it did to treat all employment that meets its definition the same regardless of the source of funding. Graduates who are working full-time as public defenders, as legal service lawyers, in non-profits, and for government agencies should be treated the same as those in private firms, regardless of how their salary is being paid.
The ABA long has professed an important public service mission, including to help close the justice gap by helping to ensure representation for those who otherwise cannot afford it. In light of this, it was completely appropriate and necessary for the ABA to change its reporting form as it did. Treating school-funded positions differently penalizes schools that provide fellowships to students to launch their careers in public service and to help provide representation for those who most need it. The reality is that school-funded fellowships often are essential for graduates who want to begin a career in public service. My experience is that these fellowships work exactly as hoped with most of these graduates getting permanent offers at their organization or similar ones. To pick a single example, Gideon’s Promise is a wonderful program where the law school provides a fellowship for one year for a graduate to work in a public defender office and then is guaranteed a job for the next two years in that office. I would like to see the ABA encourage law schools to fund such positions, but at the very least the reporting should not penalize law schools that do so or create a disincentive for such funding.
May 07, 2017
Every 6 to 7 years, some professors are offered one semester or one year without teaching or administrative duties. Some use the opportunity to start an ambitious research project, like a book. Others upgrade their skills by taking courses toward another advanced degree. Some work in government or for a large corporation, gaining new insights into their areas of interest. Still others visit another institution, for example where important research collaborators or resources are located.
Since sabbaticals are rare events—perhaps occurring 4 times in a career or less—any individual faculty member will have relatively limited personal experience to draw upon and will instead rely on the collective wisdom of his or her peers.
What do you think are some of the best ways to spend a sabbatical and why?
Comments are moderated. Please provide your real name.
April 27, 2017
I could not agree more with Northwestern Dean Dan Rodriguez:
Whittier's sudden closing is obviously a tough thing for current students and faculty. Perhaps the decision will be unraveled in the face of public pressure or via littigation. Yet there seems precious little basis to jump into a matter whose complex issues are essentially private, despite the efforts of many in and around the school to make this into a public spectacle. Perhaps bloggers should neither aid nor abet these efforts.
The hubris of the unknowing.
Sometimes Stephen Diamond (Santa Clara) has been a voice of reason amidst the mindless blather about law schools in most of cyberspace (and I have linked to him on a number of occasions over the years), but here he has completely missed the boat: the general legal market has been improving, true, but it is hardly mysterious why an institution would close a law school where far fewer than half the graduates even pass the bar. Diamond just politely ignores all the relevant facts about how this school's graduates have been faring, and, of course, is ignorant of the actual finances of the school.
But far more egregious is the presumptuous intervention of Robert Anderson, Associate Professor of Law at Pepperdine. Faculty members at Whittier are going to lose their jobs, and some may never work again as law teachers or work again at all. Yet Anderson has the audacity to scold them for not having taken an early retirement in the financial interest of the school. Seriously? Does Prof. Anderson pay the bills for any members of that faculty, does he know about their college-age children or their elderly parents or their chronic medical conditions that require a salary and a health insurance plan? Does he know that a job is not just a paycheck for many people (maybe not Robert Anderson), but a focal point of purpose and meaning in a life? Does he know that many did take early retirement a few years ago, and that others might have quite reasonably believed that the school's fortunes, now that both its faculty and student body were smaller, would rebound?
I'm sure Anderson doesn't know any of these things, he's just another blogging blowhard who has decided to use someone else's misery as an opportunity to attract some attention to himself. Anderson is guilty of far worse than unknowing hubris.
UPDATE: Some choice quotes from Prof. Anderson's posts:
"The reason Whittier is closing is because of intransigent, highly paid, unproductive law professors hang around for decades even when they haven't published anything or updated their courses since they were doing the Macarena."
"The unfortunate truth of this story [about Whitter] is that none of this needed to happen..... The number of retirement-age faculty was (and is) enormous, likely larger than it has ever been. If faculties had looked beyond their own personal financial self interest they could have easily contracted to meet the market demand and avoided the disastrous effects that have afflicted law students and now law schools. Sadly, the very faculty members whose institution provided them an outrageously rewarding career over many decades seemed the least likely to 'pay it forward' by helping to reduce expenses....Thus, the story of Whittier is a story of generational wealth shifting that is seen throughout tuition dependent law schools, and indeed throughout our country."
April 03, 2017
Mary Bilder (Boston College) wrote an opinion piece for the Boston Globe about originalism and Judge Gorsuch. This elicited the following astonishing reply from originalist Larry Solum (Georgetown) on his usually benign and informative Legal Theory Blog. Some of the questions might have made sense were Solum the referee for a scholarly article making some of these claims; as a response to an op-ed, they are almost comical overreactions. Take just Solum's first intervention:
Question One: You wrote the following:
Today, most originalists contend that a judge should abide by the text’s “original public meaning” — a term of art that originalist scholars have written thousands of pages trying to explain.
What is the basis for the page count? Which articles by which originalists scholars are you discussing? I am very familiar with the theoretical literature on original public meaning, but if this claim is correct there is a large body of work that I have missed entirely.
The basis for the "page count"? Seriously? One can look just at Solum's own SSRN page to find at least 400 pages of writing on this topic. And that's just one author. Add in Randy Barnett, Keith Whittington, the late Justice Scalia, John McGinnis, Michael Rappaport, Larry Alexander, Will Baude, and Stephen Sachs, and "thousands" seems like a plausible off-the-cuff estimate. But why quibble about nonsense like this?
I would advise Prof. Bilder to let these questions pass in silence.
UPDATE: Prof. Solum replies here; I will give him the final word on this matter!
February 02, 2017
Should a law school Dean be writing op-eds in support of controversial (or even uncontroversial) political appointees?
That's an issue posed by a dispute between Nancy Staudt, Dean of the law school at Washington University, St. Louis--who wrote an opinion piece in support of Andrew Puzder, Trump's nominee for Secretary of Labor, who is also an involved alum of Wash U--and Emeritus Professor Richard Kuhns, whose open letter you can read here: Download Puzder letter Kuhns. Professor Kuhns thinks it was inappropriate for the Dean to write this column; I am inclined to agree. But I am curious what others think about the propriety of Dean Staudt's piece. Signed comments only: full name and valid e-mail address. Submit the comment only once, it may take awhile to appear.
January 17, 2017
We just updated our charts about law journal submissions, expedites, and rankings from different sources for the Spring 2017 submission season covering the 203 main journals of each law school.
A couple of the highlights from this round of revisions are:
First, again the chart includes as much information as possible about what law reviews are not accepting submissions right now and what dates they say they'll resume accepting submissions. Most of this is not specific dates, because the journals tend to post only imprecise statements about how the journal is not currently accepting submissions but will start doing so at some point in spring.
Second, while 72 law reviews still prefer or require submission through ExpressO, the movement toward the number of journals using and preferring Scholastica continues: 27 schools now require Scholastica as the exclusive avenue for submissions, with 25 more preferring or strongly preferring it, and 25 accepting articles submitted through either ExpressO or Scholastica,.
The first chart contains information about each journal’s preferences about methods for submitting articles (e.g., e-mail, ExpressO, Scholastica, or regular mail), as well as special formatting requirements and how to request an expedited review. The second chart contains rankings information from U.S. News and World Report as well as data from Washington & Lee’s law review website.
Information for Submitting Articles to Law Reviews and Journals: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1019029
The Washington & Lee data on citations to law reviews is not very useful, since it does not correct for volume of publication. As a rule of thumb, law review status tracks the hosting law school's status, though the further down the hierarchy one goes, the less meaningful the distinctions become. 2nd-tier specialty journals at some top schools can offer be a better bet than the main law review at other schools--you need to ask colleagues in your specialty to find out.
October 07, 2016
The distinguished criminal law scholar Susan Bandes (DePaul) invited me to share a story she recently shared via a listserve:
In September I posted an article on SSRN (What Executioners Can--and Cannot--Teach Us About the Death Penalty http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2835145). I chose the allotted 10 subject matter classifications. I learned yesterday that three of these classifications were rejected: criminal law e-journal, criminal procedure e-journal and criminology e-journal. I was surprised by all of these rejections, and especially criminal law, since the article is focused on the purposes of punishment, a core criminal law concern. I called SSRN this morning, and they explained to me that SSRN sometimes rejects classifications, even when they are substantively appropriate, if they view them as overlapping with other classifications. In this case, they accepted my "corrections and sentencing" classification, and apparently viewed the criminal law, criminal procedure, and criminology e-journals as overlapping with corrections and sentencing and therefore rejected all three of those broader classifications. In short, the only criminal-law related e-journal in which my article will be listed is corrections and sentencing. I asked SSRN to review this decision, which they are now doing.
To my mind, there are a few problems with this way of doing things:
First of all, I haven't checked the subscription numbers, but it's hard to believe that the corrections and sentencing journal reaches nearly the same audience as the journals with broader classifications, such as criminal law and criminal procedure. As both an author and a reader, I expect relevant articles to be included in the broader topic areas. What is the interest in refusing to include an article in an e-journal squarely within its substantive reach? I suppose the goal is to avoid inundating e-journal readers. Is this an adequate justification? (it might be; that's a genuine question).
Second, SSRN authors are permitted 10 classification choices at the outset. My article will now be distributed in only 7 of the 10 journals I chose. Until now I assumed such rejections were based on substance. To the extent they aren't, shouldn't SSRN give us the allotted 10 journals to disseminate our work?
And finally, for those of us who care about such things (and I count myself among that group), CrimProf Blog has a nice feature: it lists the top ten downloads in the Criminal Law e-journal and the Criminal Procedure e-journal. That's a very reasonable choice of e-journals, since one would think they cover the broadest substantive areas. But for those who like to read--and for those who hope sometimes to be included on--the CrimProf blog list, SSRN's practice of rejecting relevant articles from those classifications (for reasons that cannot be predicted) is all the more problematic.
Professor Bandes tells me that "on appeal," the article was included in the criminal procedure journal! Why the criminal law e-journal excluded a piece on the death penalty by a leading criminal law scholar--who knows? Interestingly, the problem is somewhat the opposite for the "Jurisprudence & Legal Philosophy" e-journal, which (though better than in the past) often contains articles that are neither jurisprudence nor legal philosophy. (Please, if your work isn't jurisprudence or legal philosophy, don't put it there!) Here are some examples of recent articles that appeared in, but do not belong in, the "Jurisprudence & Legal Philosophy" e-journal:
Law and Macroeconomics: The Law and Economics of Recessions
New Wine in Old Wineskins: Metaphor and Legal Research
The Impact of Biological Psychiatry on the Law: Evidence, Blame and Social Solidarity
No doubt these are useful and interesting articles, but those of us subscribing to that e-journal aren't expect these pieces!
August 02, 2016
The other day I remarked on what should have been obvious, namely, that Google Scholar rankings of law reviews by impact are nonsense, providing prospective authors with no meaningful information about the relative impact of publishing an article in comparable law reviews. (Did you know that it's better to publish in the Fordham Law Review for impact than in the Duke Law Journal?) The reason is simple: the Google Scholar rankings do not adjust for the volume of output--law reviews that turn out more issues and articles each year will rank higher than otherwise comparable law reviews (with actual comparable impact) simply because of the volume of output.
When Google Scholar rankings of philosophy journals first came out, a journal called Synthese came out #1. Synthese is a good journal, but it was obviously nonsense that the average impact of an article there was greater than any of the actual top journals in philosophy. The key fact about Synthese is that it publishes five to ten times as many articles per year than the top philosophy journals. When another philosopher adjusted the Google Scholar results for volume of publication, Synthese dropped from #1 to #24.
Alas, various law professors have dug in their heels trying to explain that this nonsense Google Scholar ranking of law reviews is not, in fact, affected by volume of output. I was initially astonished, but now see that many naïve enthusiasts apparently do not not understand the metrics and do not realize how sloppy Google Scholar is in terms of what it picks up.
Let's start with the formula Google Scholar uses in its journal rankings:
The h-index of a publication is the largest number h such that at least h articles in that publication were cited at least h times each. For example, a publication with five articles cited by, respectively, 17, 9, 6, 3, and 2, has the h-index of 3.
The h-core of a publication is a set of top cited h articles from the publication. These are the articles that the h-index is based on. For example, the publication above has the h-core with three articles, those cited by 17, 9, and 6.
The h-median of a publication is the median of the citation counts in its h-core. For example, the h-median of the publication above is 9. The h-median is a measure of the distribution of citations to the articles in the h-core.
Finally, the h5-index, h5-core, and h5-median of a publication are, respectively, the h-index, h-core, and h-median of only those of its articles that were published in the last five complete calendar years.
Obviously, any journal that publishes more articles per year has more chances of publishing highly-cited articles, which then affects both the h-core result and the h-median result. But that's only part of the problem, though that problem is real and obvious enough. The much more serious problem is that Google Scholar picks up a lot of "noise," i.e., citations that aren't really citations. So, for example, Google Scholar records as a citation any reference to the contents of the law review in an index of legal periodicals. Any journal that publishes more issues will appear more often in such indices obviously. Google Scholar picks up self-references in a journal to the articles it has published in a given year. Google Scholar even picks up SSRN "working paper series" postings in which all other articles by someone on a faculty are also listed at the end as from that school. (Google Scholar gradually purges some of these fake cites, but it takes a long time.) Volume of publication inflates a journal's "impact" ranking because Google Scholar is not as discerning as some law professors think.
July 20, 2016
Prof. Jeff Sovern (St. John's) writes:
I have been wondering about the extent of law professors’ ethical obligations to disclose when their research has been supported by a grant from a group with a stake in the findings, and because you are the de facto moderator of the law professor village square, I wondered if you would consider posting the item below to your blog and seeking comment. I apologize for its length.
A grant that results in the publication of a law review article or similar publication should be acknowledged in the article, but what about later work in the same general area that espouses a policy position consistent with what the grantor would have wanted? That issue is germane to a 2013 article in The Nation, The Scholars Who Shill for Wall Street which criticized academics (notably, George Mason’s Todd Zywicki) for failing to disclose in papers, congressional testimony, speeches, op-eds, etc. compensated work for the financial industry. The AALS has been rather vague on this subject, but here’s what it said in its Statement of Good Practices by Law Professors in the Discharge of Their Ethical and Professional Responsibilities: “Sponsored or remunerated research should always be acknowledged with full disclosure of the interests of the parties. If views expressed in an article were also espoused in the course of representation of a client or in consulting, this should be acknowledged.” It’s not at all clear to me that the conduct described in The Nation article violated that policy.
My own concern is more personal. My law school (St. John’s) accepted a grant from an organization with ties to a particular industry. My co-authors and I conducted a survey financed by this grant (we had to purchase a software license, compensate those who completed the survey, and so on) and published a law review article about our findings. We had complete control over the survey and what we wrote about our findings and the grantor did not comment on them; in all respects, its behavior was exemplary. We acknowledged the funder in the article. Later, I wrote some op-eds about our work, and acknowledged the grantor again. Still later, I wrote op-eds about the broader subject, giving no more than a sentence to our research, or not mentioning it at all. Do I have an obligation in the later op-eds to mention the grantor? Would readers want to know that my law school accepted money from the grantor which supported my research? If your answer is no, do you see anything wrong with the conduct described in The Nation article? If you answer is yes, would it be different if the funder were not associated with a particular industry or point of view?
Perhaps the AALS would consider updating and elaborating on its statement. It might be a good project for professors specializing in professional responsibility. When the AALS re-evaluates a school for membership every seven years, does it inquire into compliance with this aspect of its Statement of Good Practices? Should it?
Good questions, I've opened it for comments. (Submit your comment only once, comments are moderated, and may take awhile to appear.)