Monday, September 28, 2020

Some jurisprudential articles

"The Roles of Judges in Democracies:  A Realistic View" is now out in Journal of Institutional Studies, and  will also be reprinted in P. Chiassoni & B. Spaic (eds.), Judges and Adjudication in Constitutional Democracies: A View from Legal Realism (Springer, 2021).  From the abstract (taken from the penultimate SSRN version):

What are the “obligations” of judges in democracies? An adequate answer requires us to be realistic both about democracies and about law. Realism about democracy demands that we recognize that electoral outcomes are largely, though not entirely, unrelated to concrete policy choices by elected representatives or to the policy preferences of voters, who typically follow their party based on “tribal” loyalties. The latter fact renders irrelevant the classic counter-majoritarian (or counter-democratic) worries about judicial review. Realism about law requires that we recognize that judges, especially on appellate courts, will inevitably have to render moral and political judgments in order to produce authoritative resolutions of disputes, one of the central functions of a legal system in any society. That means it is impossible to discuss the “obligations” of judges without regard to their actual moral and political views, as well as the moral and political ends we believe ought to be achieved.

"Critical Remarks on Shapiro's Legality and the 'Grounding Turn' in Recent Jurisprudence," is now up on SSRN; here's the abstract:

The essay discusses some difficulties in Scott Shapiro’s LEGALITY (2011).  Many are well-known among specialists, but I set them out systematically here for the benefit of non-specialists.  These include the mischaracterization of core jurisprudential questions in terms of “grounding” relations, which unfortunately erases the major natural law positions in the field (e.g., those of Finnis and Murphy), and results in a version of “positivism” that major legal positivists (e.g., Hart) do not accept (cf. pp. 2, 10-13); but also the false claims that:  (1) “knowledge of law is normative” such that to say X has “a legal right is to draw a normative conclusion” (cf. p. 15); (2) officials have a legal obligation to follow the rule of recognition (cf. p. 17); and (3) Hart commits a “category mistake” in his discussion of social rules (cf. p. 19).  The essay also criticizes Shapiro’s discussion of jurisprudential methodology (pp. 3-8) and his (Dworkinian) attempt to show that the answer to jurisprudential questions matters to how courts should decide cases (pp. 13-14). 

The SSRN version will remain on-line and is citable, but much of the material will probably migrate into my From a Realist Point of View (Oxford University Press, forthcoming in 2022 or 2023).

Finally, "The Naturalized Epistemology Approach to Evidence," (co-authored with Gabe Broughton, who is the lead author) is also on SSRN, and will appear in C. Dahlman, A. Stein, & G. Tuzet (eds.), Philosophical Foundations of Evidence Law (Oxford University Press, 2021).  Here is the abstract:

Continue reading

September 28, 2020 in Jurisprudence | Permalink

Saturday, September 26, 2020

Harvard's Noah Feldman thinks his friends and former co-clerks are "brilliant" and should be on SCOTUS

That's the short version, I think.  (I could count on one hand the number of "brilliant" people I've met in the legal academy, but maybe I don't use it in the hyberbolic way Yale graduates do!)  Joking aside, there's no doubt Judge Amy Coney Barrett is a smart and capable lawyer.  But Professor Feldman knows as well as I do that those are a dime a dozen, and that the only reason she was chosen from among the many dozens was because she is a religious conservative whom religious conservatives expect will exercise her inevitable discretion in a way congenial to their moral and political objectives.  Why not educate the public about what the Supreme Court really does and why the moral and political views of the nominees matter, instead of offering up misleading bromides like she "will analyze and decide cases in good faith, applying the jurisprudential principles to which she is committed"?   All judges who act in good faith and with adherence to their "principles" will nonetheless have to make moral and political choices on the Supreme Court.  Once we get over that low bar of acting in good faith in accordance with "principles," the real question is what will the nominee's moral and political choices be?

September 26, 2020 in Faculty News, Jurisprudence, Of Academic Interest | Permalink

Thursday, September 24, 2020

Lateral hires with tenure or on tenure-track, 2020-21

These are non-clinical appointments that will take effect in 2021 (except where noted); I will move the list to the front at various intervals as new additions come in.   (Recent additions are in bold.)  Last year's list is here.  Feel free to e-mail me with news of additions to this list.

*Robin Kundis Craig (environmental law, water law) from the University of Utah to the University of Southern California.

 

*Michael Z. Green (labor & employment law) from Texas A&M University to Chicago-Kent College of Law/Illinois Institute of Technology.

 

*G. Mitu Gulati (contracts, sovereign debt, law & economics, empirical legal studies, race/gender & law) from Duke University to the University of Virginia.

 

*Kristin Johnson (financial regulation, securities regulation) from Tulane University to Emory University (effective January 2021).

 

*Kimberly Krawiec (corporate) from Duke University to the University of Virginia.

 

*David S. Law (comparative constitutional law, law & social science) from the University of California, Irvine to the University of Virginia.

 

*D. Theodore Rave (civil procedure, constitutional law, election law) from the University of Houston to the University of Texas, Austin.

 

*Darren Rosenblum (corporate, international business transactions) from Pace University to McGill University.

 

*Sarah Schindler (land use, property, local government law) from the University of Maine to the University of Denver (effective January 2021).

 

*Jessica Silbey (intellectual property, law & society) from Northeastern University to Boston University (effective January 2021).

 

*Robert Tsai (constitutional law, legal history) from American University to Boston University (effective January 2021).

September 24, 2020 in Faculty News | Permalink

Wednesday, September 23, 2020

Faculty at the top five schools in scholarly impact who began their careers outside the top 18

MOVING TO FRONT FROM SEPTEMBER 21--CORRECTED

Following up on an earlier post, I thought it would be interesting to look at where tenure-stream academic faculty at top law schools began their academic career.  I'll limit this round to the top five law schools in scholarly impact; I'll expand the list to the top ten or so in a future post.  I list, below, the school where the faculty member began their legal academic career in parentheses after their name (this may not be the school they were hired from by one of the top five schools):

Columbia University:   Fletcher (Washington/Seattle), Fox (Indiana/Bloomington), Franke (Arizona), Hamburger (Connecticut), Harcourt (Arizona), Mann (Wash U/St. Louis), Monaghan (BU), Richman (Fordham), Sanger (Santa Clara), R. Scott (William & Mary), Seo (Iowa).

Harvard University:   Brennan (Drexel), Brown-Nagin (Wash U/St. Louis), Gordon-Reed (New York Law School), Lazarus (Indiana/Bloomington), Mann (Connecticut), Natapoff (Loyola/Los Angeles), Okediji (Oklahoma), Rabb (Boston College), Roe (Rutgers-Newark), Singer (BU), Stilt (Washington/Seattle).

New York University:  B. Adler (George Mason), Arlen (Emory), Beebe (Cardozo), de Burca (Fordham), First (Toledo), Frommer (Fordham), Gillette (BU), Golove (Arizona), Huslebosch (St. Louis), Richards (Fordham), Strandburg (DePaul), Upham (Ohio State),

University of Chicago:   Bernstein (BU), Dharmapalla (Illinois), Ginsburg (Illinois), Helmholz (Wash U/St. Louis), Leiter (San Diego), McAdams (Chicago-Kent), Starr (Maryland).

Yale University:   Balkin (Missouri/Kansas City), Kronman (Minnesota), Macey (Emory), NeJaime (Loyola/Los Angeles), G. Priest (Puget Sound), Schleicher (George Mason), Schultz (Wisconsin), Shapiro (Cardozo), Torres (Pittsburgh).

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September 23, 2020 | Permalink

Tuesday, September 22, 2020

Non-elite business programs boost earnings more than most assume (Michael Simkovic)

A popular narrative is that business school is not worth the time and money, especially outside of a handful of elite programs.  This narrative closely echoes earlier critiques of legal education that have since been thoroughly debunked. (See here, here, here, here, here, here, here, here, here, here).  As was the case with legal education, the anti-business school narrative has been followed by multi-year declines in applications to business school and a shift toward more online programs.

As with legal education, the anti-business school narrative does not appear to be supported by the data.  A careful study by Peter Arcidiacono at Duke tracked the incomes of GMAT test takers who attended business school, before and after business school.  The study compared the income trajectory of business school students to the income trajectory of similar test takers who did not attend business school.  

Arcidiacono et al. found evidence of negative selection into non-elite business schools. That is, the sorts of people who attend non-elite business schools had lower incomes before business school than one would expect given their test scores, academic performance, demographics, and other observable characteristics.  The areas in which they likely had lower (but difficult to observe) earning potential included less developed social skills and more limited social connections.

This means that non-elite business schools actually boosted their students' earnings by more than has been previously assumed. Moreover, the fact that Arcidiacono et al. focused on earnings within a few years of graduation means that they very likely understated the benefits of business education.  Those with graduate degrees typically see the annual boost to earnings from their degrees rise until they reach peak earnings, usually in their 50s.

One key takeaway is that social connections are an important part of the value of education.  Even non-elite graduate programs can help their students improve social skills and forge valuable connections.  This may not bode well for the value of online education relative to traditional brick & mortar education.

Arcidiacono's study came out in 2008, but discussion of it has been remarkably absent from press coverage regarding the value of business education.  My next post will delve into some of the possible reasons for low quality and overly negative education news coverage.

September 22, 2020 in Guest Blogger: Michael Simkovic | Permalink

Monday, September 21, 2020

What is court packing?

Since my e-mail "interview" with NPR is showing up in lots of stories, let me say a bit more.

"Court packing" is typically used to refer to FDR's proposal in the 1930s to expand the size of the Supreme Court, which had been holding New Deal legislation unconstitutional.  The idea was that FDR would add justices sympatico to the New Deal, and thus change the political leanings of the Court that would, in turn, influence its constitutional decisions.

FDR's proposed method of court packing was to expand the court, which would change a century-old norm governing the court's composition.  But the essence of court packing is not expanding the size of the court, it is changing the norms governing Supreme Court appointments for partisan ends:  you can do that by expanding the size of the Court, or you can do it, as Senator McConnell did in 2016, by denying a sitting President even a vote on his nominee for a vacancy on the Court, also a massive violation of an established norm.

Senator McConnell could, perhaps, have been trying to start a new norm, but now it's clear (if anyone had doubts) that was not what he was doing:  he wants to pack the court for partisan ends by adjusting the norms for appointments to suit his political preferences, one rule for 2016 when a Democrat is President, another for 2020 when a Republican is President.

Continue reading

September 21, 2020 in Jurisprudence, Of Academic Interest | Permalink

Saturday, September 19, 2020

Toronto Law scuttles search after sitting judge (and major donor) criticizes the final candidate on political grounds

MOVING TO FRONT FROM SEPTEMBER 17--UPDATED

What an embarrassment.  If these allegations are borne out, the Dean of the Law School there will have to resign.

UPDATE:   The University of Toronto's Students' Law Society has written a public letter to the Dean.   And various faculty, at Toronto and elsewhere, have apprently called for an ethics investigtion of the judge who allegedly interjected himself into the search:  e.g, Download Ethics complaint CJC-20-09-17 (003).

AND STILL MORE:

Today’s press now reports [paywall] that ‘In a written statement to what he described as the ‘faculty of law community’… Edward Iacobucci [Dean of the Law School] did not deny that a Tax Court Judge contacted the administration to express concerns about the candidate, Valentina Azarova.’

...A law dean did not deny published reports that a sitting judge attempted to influence a University hiring decision.  Presumably, then, he also did not deny that a judge had found out, or was told, who was on that short list?  (Even the University of Toronto law school is not yet required to get pre-clearance from the judiciary.)  And, presumably, if ‘contact’ was made, it was made with someone.  So who was listening (reluctantly? anxiously? eagerly?) to the judge’s ‘concerns’? It was not the faculty members of the Advisory Board. They resigned in protest.

SEPTEMBER 19 UPDATE:   The media is now reporting internal e-mails that contradict the Dean's public assertions about this case.  What a mess.

September 19, 2020 in Faculty News, Legal Profession, Of Academic Interest | Permalink

Cass Sunstein reviews books describing the mass appeal of ultra-nationalism (Michael Simkovic)

In the NY Review of Books (recently republished online):

Nazism was so horrifying and so barbaric that for many people in nations where authoritarianism is now achieving a foothold, it is hard to see parallels between Hitler’s regime and their own governments. Many accounts of the Nazi period depict a barely imaginable series of events, a nation gone mad. That makes it easy to take comfort in the thought that it can’t happen again. . . .

Milton Mayer’s 1955 classic They Thought They Were Free, recently republished with an afterword by the Cambridge historian Richard J. Evans, was one of the first accounts of ordinary life under Nazism. [H]is subjects were working as a janitor, a soldier, a cabinetmaker, an office manager, a baker, a bill collector, an inspector, a high school teacher, and a police officer.  All of them referred to themselves as "we little people.” 

Nazism took over Germany not “by subversion from within, but with a whoop and a holler.” ... Mayer’s subjects “did not know before 1933 that Nazism was evil. They did not know between 1933 and 1945 that it was evil. And they do not know it now [in 1952].” Seven years after the war, they looked back on the period from 1933 to 1939 as the best time of their lives.

Even in retrospect Mayer’s subjects liked and admired Hitler. They saw him as someone who had “a feeling for masses of people” and spoke directly in opposition to the Versailles Treaty, to unemployment—to all aspects of the existing order. They applauded Hitler for his rejection of “the whole pack”—“all the parliamentary politicians and all the parliamentary parties”—and for his “cleanup of moral degenerates.” The bank clerk described Hitler as “a spellbinder, a natural orator. I think he was carried away from truth, even from truth, by his passion. Even so, he always believed what he said.”...

Continue reading

September 19, 2020 in Guest Blogger: Michael Simkovic | Permalink

Friday, September 18, 2020

The Supreme Court is about to become more conservative (Michael Simkovic)

With the passing of Justice Ruth Bader Ginsburg and Republican control of the White House and Senate, the Supreme Court will likely soon become more conservative.  Given Republicans' penchant for increasing the value of appointments by choosing relatively young appointees, the court's conservative shift is likely to persist for decades unless Democrats achieve sufficient electoral success to expand the number of seats on the court. 

 

Note: In an amusing omission of a hyphen, the NY Times discussed Justice Ginsburg's "prejudicial career as a litigator and strategist."  Hat tip Alex Capron.

September 18, 2020 in Guest Blogger: Michael Simkovic | Permalink

Thursday, September 17, 2020

Statement in defense of "Critical Race Theory" by the five Deans of University of California law schools

This is in response to recent bluster by the monster-child who is President of the United States.  What the Deans say is fair, but it's predicated, I suspect, on a mistaken assumption that the President's reference to "critical race theory" was a reference to the academic literature known to law professors, which I've seen no evidence is actually being taught to employees of the federal government.   Government employees may have been subjected to blather inspired by Ibram Kendi (for an amusing anti-Kendi polemic from the Black left, see this) and to now-discredited implicit bias "training," but none of this has anything to do with the legal academic literature by Derrick Bell, Richard Delgado, Patricia Williams, Mari Matsuda, Charles Lawrence et al.  It's a shame "critical race theory" has become the new buzz word for "stuff we don't like" in the right-wind echo chamber.

ADDENDUM:  Perhaps federal employees have been subjected to "diversity training," which has a poor track record of accomplishing anything.  In any case, that too is unrelated to critical race theory in the legal academy as best I can tell.

September 17, 2020 in Of Academic Interest | Permalink

Wednesday, September 16, 2020

Today in falsehoods about Nietzsche, courtesy of the "Jurisprudence & Legal Philosophy ejournal" from SSRN...

...which is one of the handful I subscribe to, even though about a quarter of the content is not "jurisprudence & legal philosophy" (authors self-select categories, and the ejournal editors are rather too tolerant).  Yesterday's ejournal included a piece by Professor Nicholas Aroney (Queensland), whom I do not know, writing about "The Rise and Fall of Dignity," which at least is relevant to the ejournal's subject.   Alas, the abstract reports that, "Defining human dignity solely in terms of human freedom and autonomy has resulted in a hollowing, flattening and atomizing of human dignity, culminating in the postmodern thought of Friedrich Nietzsche in which human dignity is reduced to the ‘will to power’...."   Put aside the inapposite epithet "postmodern," the real problem is that Nietzsche has no account of "human dignity," let alone a reductive one, let alone one that reduces it to "will to power" (whatever that would mean, I've no idea).   Readers beware!

September 16, 2020 in Jurisprudence | Permalink

Tuesday, September 15, 2020

Regional law schools that do strong hiring... (MOVING TO FRONT FROM YESTERDAY--CORRECTED)

...as measured by the number of faculty from the 2006-07 academic year that were subsequently hired by a top 18 law school (i.e., Berkeley, Chicago, Columbia, Cornell, Duke, Georgetown, Harvard, Michigan, Northwestern, NYU, Penn, Stanford, Texas, UCLA, USC, Vanderbilt, Virginia, Yale).   This is a propos the discussion I had with Orin Kerr noted the other day.  I excluded here top 25ish law schools, which are regularly schools that the top 18 try to raid.  I happened to have a 2006-07 AALS Directory handy, which is why I chose that year to study.  I list below the schools that had at least two faculty who moved on; please e-mail me with additions or corrections:

1.  Florida State University (5) (Craig to USC, Galle to Georgetown, Klick to Penn, Rossi to Vanderbilt, Ruhl to Vanderbilt)

 

2.  Brooklyn Law School (4) (Cheng to Vanderbilt, Hunter to Georgetown, Schwartz to Berkeley, Serkin to Vanderbilt)

2.  Cardozo Law School/Yeshiva University (4) (Beebe to NYU, Crane to Michigan, Lemos to Duke, Stack to Vanderbilt)

2.  University of San Diego (4) (Law to Virginia, Partnoy to Berkeley, Prakash to Virginia, Rodriguez to Northwestern)

 

5.  Fordham University (3) (Fisch to Penn, Katyal to Berkeley, Treanor to Georgetown)

 

6.  New York Law School (2) (Gordon-Reed to Harvard, Rostain to Georgetown)

6.  University of Alabama (2) (Geis to Virginia, Pardo to Georgetown)

6.  University of Arizona (2) (Adelman to Texas, Marcus to UCLA)

6.  University of Colorado, Boulder (2) (Bowen to Virginia [now Dean at GW], Ohm to Georgetown)

6.  University of Connecticut, Hartford (2) (Baker to Penn, Mason to Virginia)

September 15, 2020 in Advice for Academic Job Seekers, Faculty News, Rankings | Permalink

Wednesday, September 9, 2020

How to hire a strong scholarly faculty (and a sidenote about status anxiety)

As part of the very enjoyable discussion on "The Legal Academy," Orin Kerr (Berkeley) asked me about how a school can hire strong scholarly faculty.  I made a variety of observations related to this topic.   A school must constitute a good hiring committee, meaning one with faculty who are engaged in scholarship and have good judgment about scholarship.   Schools like Florida State and San Diego (two examples I gave) have, historically, done very strong rookie hiring (better than their peers), in part because Deans have invested serious faculty with good judgment with a decisive role in hiring at those schools.   While "objective" metrics (like citations or place of publication) can be useful proxies, there is, as I said, "no substitute for reading" (as long as those reading satisfy the prior desiderata!). 

Finally, there's the question of how to use recommendations from faculty elsewhere (no committee can read everything, so recommendations are often used to figure out which candidates deserve further scrutiny).   Everyone who has done hiring has their own list of reliable and unreliable references, and everyone of course gives different weight to references based on their opinion of the recommender (if they have one).   I gave the example of a recommendation from a professor at San Diego (an expert I respected in the candidate's area) that ultimately led to Texas hiring someone when I was chairing appointments there.  I also gave the example of the Yale recommender who "never met a candidate he didn't love":  such recommendations are useless, of course.  I remarked that my own approach was not to credit or give weight to references from faculty I wouldn't hire, i.e., those I don't respect on the intellectual merits.

Continue reading

September 9, 2020 in Advice for Academic Job Seekers, Of Academic Interest, Professional Advice, Rankings | Permalink

Tuesday, September 8, 2020

Best of the summer blog

Thursday, September 3, 2020

8 more accredited law schools advertise in 2nd AALS jobs bulletin...

...bringing the total number of schools advertising up to 40 (this includes some of the law schools which I alluded to previously that weren't in the first bulletin).  A number of highly ranked law schools are looking selectively this year, although they have not advertised in either bulletin.

September 3, 2020 in Advice for Academic Job Seekers, Of Academic Interest | Permalink

Wednesday, September 2, 2020

Chicago Alumni and Fellows on the teaching market, 2020-21

MOVING TO FRONT FOR LAST TIME--ORIGINALLY POSTED AUGUST 12

This post is strictly for schools that expect to do hiring this year.

In order to protect the privacy of our candidates, please e-mail me at bleiter@uchicago.edu to get a copy of the narrative profiles of our candidates, including hyperlinks to their homepages.  All these candidates (with one exception) are in the first FAR distribution.

We have an excellent group of ten candidates this year (six alumni, three Bigelows, and one Dickerson Fellow), who cover many curricular areas including legal profession/professional responsibility, constitutional law, corporate law and finance, contracts, health law, food law, administrative law, legislation, torts, immigration law, criminal law, criminal procedure, comparative law, financial regulation, tax law (including corporate and partnership law), First Amendment, evidence, Indian law (both Federal and Tribal), federal courts, race & the law, civil procedure, law & economics, empirical legal studies, law & technology, civil rights, energy law, legal history, and international law.  Our candidates include former federal appellate clerks; Law Review editors; JD/PhDs in History, Economics, Health Policy & Management and Political Science; current Fellows and VAPs, and accomplished practitioners as well as scholars.  All have publications, sometimes multiple publications, and all have writing samples available upon request.

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 2, 2020 in Faculty News | Permalink

Tuesday, September 1, 2020

"Legal Positivism as a Realist Theory of Law"

The penultimate version is now online; main change was in the final section, discussing Raz's "Service Conception" of authority.

September 1, 2020 in Jurisprudence | Permalink

Monday, August 31, 2020

I talk with Orin Kerr (Berkeley) on "The Legal Academy"...

...about law school hiring trends, rankings, the effect of COVID on the teaching market, and other topics. (Link now added!)

August 31, 2020 in Advice for Academic Job Seekers, Faculty News, Of Academic Interest, Professional Advice, Rankings, Student Advice | Permalink

Bad news for Alan Dershowitz in his various legal disputes with Epstein accusers and their lawyers

Virginia Guiffre, one of Jeffrey Epstein's accusers who has implicated Dershowitz in misconduct, has sued Dershowitz for defamation--as has her former lawyer David BoiesThis development is bad news for Dershowitz.

August 31, 2020 in Faculty News, Of Academic Interest | Permalink