October 19, 2017
More than 160 readers voted in our poll from earlier in the week, and here are the results:
|1. Oxford University Press (Condorcet winner: wins contests with all other choices)|
|2. Cambridge University Press loses to Oxford University Press by 95–56|
|3. Harvard University Press loses to Oxford University Press by 95–56, loses to Cambridge University Press by 93–60|
|4. Yale University Press loses to Oxford University Press by 117–33, loses to Harvard University Press by 113–34|
|5. Princeton University Press loses to Oxford University Press by 122–25, loses to Yale University Press by 70–67|
University of Chicago Press was runner-up, trailing Princeton 81-51 (Princeton was essentially tied with Yale). These seem to me like fairly sensible results--interesting how the two UK publishers dominate. The mystery of the Harvard catalogue is how uneven it is, perhaps because it is bigger than, say, Princeton's or Yale's law catalogues.
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 25, 2017
It is often assumed that the only way to become a lawyer is to attend an ABA-approved law school. That is true in some states and, indeed, the ABA has at times expressed the view that it should be true in all states. But it is not the case in large jurisdictions such as New York or California, nor is it the case in the majority of jurisdictions. Claims that ABA-approved law school have a monopoly on entry into the legal profession are exaggerations. Rather, the most popular—and probably most likely—way to become a lawyer is to graduate from an ABA-approved institution.
In leading jurisdictions such as New York, California, and Virginia, an individual who wishes to become a lawyer may sit for the bar examination with between zero and 1 years of law school and between 3 and 4 years of apprenticeship and study under the supervision of a licensed attorney (this is also known as “law office study” or “reading for the bar”). In California, graduates of non-ABA-approved law schools are eligible to sit for the bar examination. This includes schools with extremely low-cost, technology-driven approaches to teaching, such as online and correspondence schools.
In fact, non-ABA law school graduates are eligible to sit for the bar examination in most jurisdictions (31 in total as of 2017) according to the National Conference of Bar Examiners.** This includes extremely large and important jurisdictions such as California, Florida, New York, Texas and Washington D.C. Graduates of online and correspondence law schools are eligible to sit for the bar examination in 4 jurisdictions.
Very few people choose the apprenticeship route, and only a minority opt for non-ABA law schools. Among those who do, relatively few successfully complete their courses of study or pass the bar examination. But those who do will have the same license to practice law as someone who graduates from an ABA-approved law school and successfully passes the bar examination.
Why then do so many prospective lawyers choose ABA-approved law schools?
The most likely explanation is that prospective lawyers choose ABA-approved law schools because those law schools provide a valuable and worthwhile service that supports a higher price point than other options.*
Many employers value legal education. That’s why they typically pay law school graduates tens of thousands of dollars more per year than they pay similar bachelor’s degree holders, even in occupations other than the practice of law. When law school graduating class sizes increase, and a lower proportion of graduates practice law, graduates don’t typically see a noticeable decline in their earnings premium.
In other words, the benefits of law school are versatile. Graduates of ABA-approved law schools also seem to be much more likely to complete their studies and pass the bar examination than students attending more lightly regulated and lower cost alternatives.
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.