November 06, 2012
"Fall" submissions data from one student-edited law reviewInteresting, and probably not unrepresentative.
October 25, 2012
Jury Finds for Iowa: No Political Discrimination in Hiring Case
UPDATE: Actually, it's a bit more complicated! No First Amendment violation, but the jury split on the equal protection claim.
October 15, 2012
A potted history of American legal education and scholarship in the 20th-century, with special reference to why there is no longer a scholarly Wissenschaft in law
MOVING TO FRTON FROM JULY 11, 2012: THIS APPEARED IN THE DOG DAYS OF SUMMER WHEN SOME READERS WHO MIGHT FIND IT INTERESTING MAY HAVE MISSED IT
Christopher Columbus Langdell, Dean of the Harvard Law School in the late 19th-century, set the paradigm for what law schools and legal scholars should do, a paradigm that lasted for nearly a century, until Richard Posner upset it in the 1970s. That gloss perhaps exaggerates the influence of these two individuals, but only slightly.
In the 19th-century, the idea arose, beginning in Germany of course, that a subject fit for and requiring university study should be a Wissenschaft, a "science," though the Anglophone connotation of natural science is misleading. A Wissenschaft was a body of knowledge characterized by distinctive methods and tools that, when deployed correctly, would lend epistemic credence to the results. If law was to be a subject for university study, then it had to be a Wissenschaft, an idea shared by Langdell and the Legal Realists, and many others.
For Langdell, the body of knowledge constituting legal knowledge arose from a careful study of the opinions of the courts as they analyzed legal problems--not a crazy view for a scholar of the common law to have, of course. Carefuly study of these opinions could elict the general principles and rules of law that explained the particular opinions. The task of legal scholars was to articulate these general principles, and the obligation of the law students was to learn them, so that they could then understand what the courts will do.
The American Legal Realists interrupted this pedagogical and scholarly narrative in the early 20th-century, noticing that the doctrinal categories the Langdellian scholar latched on to were often pitched at a level of abstraction from the particular problems the courts were confronting that actually obscured what was really going on. Sensitivity to economic and social context was often necessary to make sense of the decisions; there was no "law of contracts" or "law of torts," per se. As the great Legal Realist Leon Green's torts casebook of the 1930s suggested, what there really was were principles of tort law for railroads, for hospitals, for factories, and so on. The American Realists accepted Langdell's ambition to make the study of law scientific; they just thought Langdell's science was shoddy, and their view prevailed.
The merged Langdell/Realist paradigm became dominant for a good half-century. To take a prominent example of how the agenda became mainstreamed: my late Texas colleague Charles Alan Wright understood himself, correctly, to be a Legal Realist, and his renowned treatise on Federal Practice and Procedure reflects that self-understanding: Wright and his colleagues carefully parsed the opinions of the courts, in order to elicit the situation-sensitive rules the courts actually were deploying in deciding procedural issues. The treatise writer continued to be the pinnacle of academic excellence for another generation after WWII.
Richard Posner is, like Langdell, the other decisive figure in the history of American legal scholarship and education. He did not invent economic analysis of law--such credit goes, if it goes to any one person, to his Chicago colleagues Ronald Coase and Aaron Director--but he had the intellectual energy and ingenuity to show in the course of the 1970s how the economic way of thinking could both explain what the courts were really doing and upset what almost all the scholars were saying about it. The economic approach started from a simple assumption: individuals are instrumentally rational in trying to get what they want. Their interactions with the law, so the economic story goes, are no different. If the law imposes penalties on certain conduct, they will adjust their behavior accordingly, in order to get what they really want, even if the law prohibits it or burdens the pursuit of it, unless, of course, the burdens become too costly. Those simple "rational choice" assumptions had radical consequences, or so Posner and Posnerians argued. And here they pierced the vulnerable underbelly of the Realist attack on Langdell's doctrinalism. For the Realists operated with "common sense" assumptions about how law would influence behavior, a "common sense" that hadn't really taken account of how actors in market systems tend to think, namely, in terms of the self-centered costs and benefits of different courses of conduct. The greatest success of economic analysis was, of course, in those commercial domains where actors really did think the way the economic analyst supposed.
The victory of Realism and Posnerian Realism means, of course, there is no science of law--no distinctively legal methods or tools--beyond the ones Langdell envisioned. But that's the Wissenschaft law schools have been teaching for a century now, and, arguably, students master it within two years, at least when well-taught. Once a student has learned the Langedellian Wissenschaft, what's needed is something else, at least for a post-Realist, post-Posnerian legal scholar: history, economics, political science, sociology, and so on. That's why the idea of a PhD in law is so bizarre: it's either Langdellian Wissenschaft fetishized (Legal Realism and Posner be damned!) or its history-lite, economics-lite, political science-lite and so on. (The worry is that the latter is really what Yale's new "PhD in law" will be.)
In the UK, Langdellian Wissenschaft still reigns supreme--hence the PhD in law there really is a graduate degree, one that complements the undergraduate training students have had in "dcotrinal" analysis. (There are exceptions, of course, in the UK for those who do a doctorate in jurisprudence or legal history, which are well-developed specialties, which operate in tandem with, not as lite-versions of, the cognate Wissenschaften.) But as American law professors often jest, if you want to know what law school was like in the 1950s, spend a term at a leading English law school. Maybe doctrine really does explain the behavior of courts in the UK, and maybe English citizens are even more infrequently maximizers of their satisfactions than their American cousins. But the Langdellian legal Wissenschaft exhausts its intellectual utility within two years of JD study, and that is, as far as I can tell, no longer controversial on this side of the Atlantic. So what could a PhD in law really be about? Especially at Yale, where even the craft of the Langdellian paradigm has largely vanished, it is especially puzzling. Although Yale has smart historians, psychologists, economists, and philosophers on the faculty, the Law School clearly does not have the resources to mount a serious "law-and-X" Wissenschaft in any of these fields, certainly not when compared to a JD/PhD in history, psychology, economics etc. The real worry about Yale's PhD in Law is that it's going to be a PhD imprimatur on even higher-level post-Realist dilettantism. Only if law schools generally acquiesce to this will it be successful.
October 09, 2012
More video self-promotion by law schools: John Marshall in ChicagoIt's the "I'm ready" series. (More here.) It's less clear the job market is "ready" for many of the recent graduates, alas.
September 03, 2012
Attention Hiring Committees: Don't Google CandidatesAn interesting cautionary tale from Lyrissa Lidsky (Florida).
August 28, 2012
Exploding Offers--What are the Norms?
These devices are becoming more common is my impression. Some schools have actually made them prior to the 'meat market,' and others make them afterwards. In the typical case, the candidate is given two weeks, or some even shorter period of time, to accept or decline. My impressions are that, as a strategy, these do not work well--candidates tend to decline them, or, if they accept, they accept with a plan to head out the door ASAP. I'm curious what experiences others have had with these offers?
But that's not the main topic I wanted to address. The main question is should schools utilize exploding offers at all and if so with what time frame? My own view is that it is in the interest of both the hiring schools and the candidates to provide a 30-day window for any offer, and that anything much less than that is certainly unfair to the candidate, but will also backfire for the hiring school.
What do readers think? Signed comments only: full name and valid e-mail address.UPDATE: The AALS has officially endorsed a four-week standard.
August 21, 2012
SLU's Walker v. Wash U's Tamanaha
Perhaps worth noting in this context is that a large number of accomplished legal historians started their careers at SLU, including Lawrence Friedman (now at Stanford), Daniel Huselbosch (now at NYU), and Barry Cushman (now at Notre Dame, previously at UVA).
August 16, 2012
More on OUP Journals and Westlaw
I see Dan Filler, independently, picked up the story about the removal of most OUP journals from Westlaw. As it happens, I was corresponding with Rhodri Jackson at OUP about this issue, and was invited to share the following information and explanation:
The central fact of Daniel Sokol's piece, that we have pulled some journals from Westlaw, is correct. This happened as of August 1, 2012, and was announced here:
There are some things we would correct or add to in Daniel's post. Firstly, European Journal of International Law, Reports of Patent, Design and Trade Mark Cases, and Industrial Law Journal remain in Westlaw.
Secondly, many of the journals Daniel lists were never in Westlaw in the first place, and many are not in Westlaw OR Lexis now. I’ve listed the actual titles removed from Westlaw at the bottom of this email. All our titles remain in the LJI (Legal Journals Index).
Thirdly, re the W&L rankings, whilst Daniel is correct that the W&L rankings are based on Westlaw, it is unlikely removal from Westlaw will have any discernible impact on a journal’s ranking. Citations to journals are pulled from Westlaw – so OUP journals would only fall in those rankings if they received a significant proportion of their citations from one of the removed titles. W&L will still pull citations to OUP journals in other publications in Westlaw’s databases.
More generally, it’s never quite as straightforward as us taking a decision that affects all our journals. We have standard policies but the final decision on appropriate licensing is taken on a journal by journal basis.
Hopefully that helps clarify. As to why - we took the decision to take journals out of Westlaw because we have agreed a preferred licensing partnership deal with Lexis Nexis. We continually evaluate which services are the best fit for our titles, and at present Lexis’ global reach and commitment to working with us to disseminate our content (including new journals) stands out. Usage of the journals within Westlaw was very low, and runs somewhat counter to the dire warnings regarding discoverability which Daniel makes.
We’re very keen to ensure that all our journals are discoverable and citable, and we do appreciate that some scholars and practitioners use Westlaw and the JLR. We are working with Lexis to make our journals as visible and easy to find within their database as possible. It’s also worth noting that the primary method of delivery for all our journals is of course through our own site http://www.oxfordjournals.org/subject/law/index.html. We have licensing agreements with multiple providers including Lexis, Westlaw, Hein, and EBSCO, but usage of the journals at all of those venues is dwarfed by that at Oxford.
I hope that helps clarify, but if you have follow up questions we'll be happy to answer
Titles Removed from Westlaw as of 1 August 2012
British Journal of Criminology
Human Rights Law Review
International Journal of Constitutional Law
International Journal of Law and
International Journal of Law, Policy and
International Journal of Refugee Law
Journal of Competition Law & Economics
Journal of Conflict and Security Law
Journal of Environmental Law
Journal of International Criminal Justice
Journal of International Dispute Settlement
Journal of International Economic Law
Journal of Law, Economics, and Organization
Journal of Refugee Studies
Law, Probability and Risk
Medical Law Review
Oxford Journal of Legal Studies
Statute Law Review
This is useful information, and it's certainly right that the effect on any kind of "citation" rankings will be minimal. On the other hand, this move is not without costs for US-based legal scholars, who overwhelmingly do their research on-line and some of whom (I'm one of them) never use Lexis anymore (I don't even know my Lexis password, it's been so many years!). Scholarship that isn't in the Westlaw database is going to be missed by some non-trivial number of researchers. That's unfortunate indeed, and may well give some pause about submitting to these journals. (As a sidenote, the W&L journal rankings are pretty worthless, I'm surprised to learn anyone is looking at them.)
Thoughts from readers? Comments must have a full name in the signature line and a valid e-mail address, or they won't see the light of day.
August 10, 2012
Declining Enrollments and Credentials at Law Schools
A very useful (and sobering) analysis of what's been going on since 2010; some excerpts:
ENROLLMENT IN DECLINE – Between 2010 and 2011, 141 law schools had a decline in enrollment (of which 63 had a decline of 10% or more), 30 had an increase in enrollment (of which 6 had an increase of 10% or more), and 26 had flat enrollment (within +/- 1% of 2010 enrollment). This means over 70% of schools had a decline in enrollment and that nearly one-third had a decline in enrollment of 10% or more....
ENROLLMENT AND PROFILES IN DECLINE – Most significantly, 75 schools (roughly 38%) saw declines in enrollment and in their LSAT/GPA profiles, of which 37 schools saw declines in enrollment of greater than 10% and saw declines in their LSAT/GPA profiles....Four of the schools are ranked in the top-50, while the other 33 schools are relatively evenly divided between the second-50, the third-45 and the alphabetical schools....
FORECAST FOR 2012-- Given that LSAC has estimated a decline of roughly 14.4% in the number of applicants for fall 2012, from 78500 to roughly 67000, and given that the decline has been greatest among those with higher LSAT scores, one should anticipate further declines in enrollment and further erosion of entering class LSAT/GPA profiles for fall 2012....
IMPACT FELT ACROSS THE RANKINGS CONTINUUM, BUT WORSE FOR LOWER-RANKED SCHOOLS...-Among the top 100 schools, 55 schools (over one-half) had a decline in profile, while 67 (two-thirds) had a decline in enrollment, with 27 experiencing a decline in enrollment of 10% or more....Overall enrollment was down roughly 6%.
Across the bottom 97 schools then, 56 saw a decline in profile while 74 (more than three-quarters) saw a decline in enrollment, of which 36 (nearly 40%) saw a decline in enrollment of 10% or more. Notably 40 schools saw a decline in enrollment and a decline in profile, of which 22 saw a decline in enrollment of 10% or more and a decline in profile. Overall, enrollment was down nearly 10%.