Brian Leiter's Law School Reports

Georgetown Faculty Blog

First Chicago, now Georgetown (which includes Mark Tushnet, though he's departed for Harvard).  Is this a trend?  If all law schools set one up, and include stat counters, then we cank rank law schools by the number of visits to their blog...which is likely to be as meaningful as ranking by SSRN downloads.

The Final Tolling of (Tom) Bell on Baylor

Here.

For Whom (Tom) Bell Tolls, Again: University of Florida

Here.

Not Much Real News in the Dog Days of Summer...So Time for Fun with SSRN Downloads (as of June 1)

From the June 1 data:

Top 25 authors with most downloads in the last 12 months:

1.  Lucian Bebchuk (Harvard; Corporate, L&E:  14,748)

2.  Bernard Black (Texas; Corporate, L&E:  12,564)

3.  Stephen Bainbridge (UCLA; Corporate:  9,312)

4.  Cass Sunstein (Chicago; Constitutional, Public Law:  7,426)

5.  Mark Lemley (Stanford; Intellectual Property:  7,317)

6.  Brian Leiter (Texas; Jurisprudence:  7,108)

7.  Larry Ribstein (Illinois; Corporate, L&E:  6,350)

8.  Francesco Parisi (Minnesota; L&E, Comparative:  6,268)

9.  John Coffee (Columbia; Corporate:  5,316)

10.  Daniel Solove (George Washington; :  5,094)

11.  Orin Kerr (George Washington; Criminal, Computer Law:  5,093)

12.  Ronald Gilson (Columbia & Stanford; Corporate, L&E:  4,950)

13.  Richard Posner (Chicago; L&E:  4,884)

14.  Roberta Romano (Yale; Corporate, L&E:  4,628)

15.  Randy Barnett (Georgetown; Constitutional, Contracts:  4,379)

16. Reinier Kraakman (Harvard; Corporate, L&E:  4,347)

17.  Steven Shavell (Harvard; L&E:  4,158)

18.  Patrick Ryan (Colorado Telecomm Program; Law & Technology, Cyberlaw: 3,780)

19. Timothy Wu (Columbia; Intellectual Property:  3,736)

20.  Jesse Fried (Berkeley; Corporate, L&E:  3,621)

21.  John Donohue (Yale; L&E:  3,435)

22.  Brian Cheffins (Cambridge; Corporate, L&E:  3,359)

23.  Klaus Hopt (Max Planck Institute; Corporate:  3,334)

24.  Lynn Stout (UCLA; Corporate:  3,313)

25.  Margaret Blair (Vanderbilt; Corporate, Commercial:  3,254)

Top 25 authors with at least three papers with the most downloads per paper in the last 12 months:

1.  Brian Leiter (Texas; Jurisprudence:  592 downloads per paper [5 new papers])

2.  David Hyman (Illinois:  Health Law:  403 downloads per paper [3 new papers])

3.  Roberta Romano (Yale:  Corporate, L&E:  356 downloads per paper [3 new papers])

4.  Orin Kerr (George Washington; Criminal, Computer:  340 downloads per paper [3 new papers]

5.  Donald Braman (George Washington; Law & Culture:  308 downloads per paper [3 new papers])

6.  Timothy Wu (Columbia; Intellectual Property:  287 downloads per paper [4 new papers])

7.  Randy Barnett (Georgetown; Constitutional, Contracts:  258 downloads per paper [4 new papers])

8.  Daniel Solove (George Washington; Cyberlaw, Privacy:  243 downloads per paper [4 new papers])

9.  John Mikhail (Georgetown:  Jurisprudence:  241 downloads per paper [6 new papers])

10.  Bernard Black (Texas:  Corporate, L&E:  237 downloads per paper [12 new papers])

11.  Ronen Perry (Haifa; Rankings, Torts:  234 downloads per paper [6 new papers])

12.  William Henderson (Indiana/Bloomington; Corporate, Rankings, Legal Profession:  233 downloads per paper [3 new papers])

13.  Donald Clarke (George Washington; Chinese law:  203 downloads per paper [3 new papers])

14.  Dan Kahan (Yale; Criminal:  200 downloads per paper [4 new papers])

15.  Michael Lewyn (George Washington; Land Use, Local Government, Urban Planning:  187 downloads per paper [10 new papers])

16.  Patrick Ryan (Colorado Telecomm Program; Law & Technology:  172 downloads per paper [9 new papers])

17.  Stephen Bainbridge (UCLA; Corporate:  169 downloads per paper [8 new papers])

18.  Larry Ribstein (Illinois; Corporate, L&E:  163 downloads per paper [10 new papers])

19.  Christopher Yukins (George Washington; Government Contracts:  162 downloads per paper [5 new papers])

19.  Joshua Wright (George Mason; L&E:  162 downloads per paper [5 new papers])

20.  Alfred Brophy (Alabama; Legal History:  161 downloads per paper [4 new papers])

21.  David Pozen (Student, Yale; Criminal:  158 downloads per paper [6 new papers])

22.  Michael Klausner (Stanford; Corporate:  157 downloads per paper [5 new papers])

23.  Richard Bales (Northern Kentucky; Arbitration:  156 downloads per paper [6 new papers])

24.  Paul Caron (Cincinnati; Tax, Rankings:  155 downloads per paper [4 new papers])

25.  Mark Lemley (Stanford; Intellectual Property:  152 downloads per paper [7 new papers])

Three More Lateral Hires for Virginia: Bagley, Brown-Nagin, and Collins

In addition to hiring Gregory Mitchell (behavioral law & economics) from Florida State University (noted earlier), UVA has announced three more lateral hires with tenure:  Margo Bagley (intellectual property) from Emory University; Tomiko Brown-Nagin (legal history) from Washington University in St. Louis; and Michael Collins (federal courts) from Tulane University.  This has otherwise been a brutal year of faculty losses for UVA, which saw the retirements of Elizabeth and Robert Scott (who have moved to Columbia); the retirement of Charles Goetz (contracts, law and economics); the loss of Rosa Brooks (international law) to Georgetown, Anup Malani (law and economics, health law) to Chicago, and George Triantis (corporate, law and economics) to Harvard; and the expected departure of Michael Klarman (legal history) to Harvard or Stanford, both of which have made him offers.

For Whom (Tom) Bell Tolls: Baylor!

Details here.  Some explaining needs to be done.

MOVING TO THE FRONT from June 18:  more info here.

"Yalies and Their Fake Scholarships"

A graduate of Yale Law School who is now a law professor asked me to post the following observations (sent under the title, above):

As the next faculty recruitment season begins in "quiet search" mode, I have come across a CV from yet another candidate who lists on his or her resume a "scholarship" from one of a handful of non-profits based in New Haven, Connecticut. Lots of people who went to Yale (like me) and others recognize these trust associations as the formal names of Yale's undergraduate secret societies. So what are these candidates thinking in listing these "scholarships" on their CVs?

Listen up, Yalies: The days of the secret handshake are over. Noone is going to give you an academic job (let alone an interview) just because you were in a secret society. These "scholarships" aren't necessarily competitive or academic (I know, because I had a few myself), so putting them on the CV smacks of resume padding. Also, your membership in a secret society may be seen (fairly or unfairly) as elitist, which doesn't play well at most law schools. Including on a CV your "scholarship" from the Kingsley Trust Associaton, Russell Trust Association, Stone Trust Corporation, Colony Foundation, Wrexham Trust, Elihu Club, Inc. or the Anthony Trust Association tells the appointments committee nothing other than you got picked for one of the "right" undergraduate clubs and that you still think it is important enough to share this with the world. Do yourself a favor and take the fakescholarships off your CV. Boola, boola.

One of the things that struck me when I was a visiting professor at Yale Law School during 1998-1999 was how many prizes the school awarded for student writing.  This isn't resume padding quite as egregious as that noted by my correspondent, but these days a YLS graduate who hasn't won some kind of "prize" for his or her writing is probably a slacker!

What other kinds of resume padding should hiring committees watch out for?   No anonymous postings, unless you want to e-mail me first so I can verify the particulars of your experience and educational background.

Schwartz from Brooklyn to Berkeley

Paul Schwartz, a leading expert on information law and privacy at Brooklyn Law School, has accepted a senior offer from Boalt Hall School of Law at the University of California, Berkeley.

Triantis from Virginia to Harvard

George Triantis (law & economics, corporate law) at the University of Virginia has accepted a senior offer from Harvard Law School.

I'll be posting next week a summary of gains and losses at the leading law schools over the last three years.

The So-Called "New Legal Realism Project

The Empirical Legal Studies blog is running a series of posts about what is called "The New Legal Realism Project," which is centered at the University of Wisconsin, Madison, and which aims "to develop rigorous, genuinely interdisciplinary approaches to the empirical study of law."  As some commenters have already pointed out, it is not entirely clear what this project has to do with American Legal Realism.  I'd like to suggest an answer:  essentially nothing.

The actual Legal Realists, to be sure, paid homage to the social sciences, even adopting the rhetoric of the then-dominant behaviorism (e.g., talk about the "stimulus" of the facts of the case), but their actual scholarly practice was almost entirely insulated from the social science of the day--the unfortunate exception being Underhill Moore, who squandered his days recording the parking habits of New Haven drivers, and coming up with forgettable insights like when the parking rules change on a street, it takes awhile for all the drivers to figure that out (though issuing tickets helps!).

This isn't to say that the Realists weren't interested in what the courts do in fact, it's just that their approach to the facts about what courts do almost entirely eschewed social scientific inquiry, and for good reasons I think.  The paradigmatic Realist inquiries of the 1920s and 1930s--Oliphant on the promise-not-to-compete cases, Llewellyn on the New York sales cases, Green on "proximate cause" in tort law, Handler on trademark--consisted in careful scrutiny of the underlying facts of lines of cases, bringing out the gap between the official "doctrinal" explanation for the decision and the actual sotto voce norms that seemed to be at work in the judge's thinking.  The goal was to discover the non-legal norms that made best sense of the courts' response to recurring "situation-types," i.e., patterns of fact that seemed to elicit the same kind of results.  So, in Oliphant's famous example (from an article titled importantly "A Return to Stare Decisis"), he denied that there was a single, general rule about the enforceability of contractual promises not to compete:  rather, courts enforced those promises when made by the seller of a business to the buyer, but found ways not to enforce them  when made by a (soon-to-be former) employee to his employer.  In the former scenario, Oliphant claimed, the courts were simply doing the economically sensible thing (no one would buy a business, if the seller could simply open up shop again and compete); while in the latter scenario, courts were taking account of the prevailing informal norms governing labor relations at the time, which disfavored such promises.  A meaningful doctrine of stare decisis could be restored, on this account, by making legal rules more fact-specific, i.e., by tailoring them to the underlying situation-types to which the courts were sensitive.  (The extreme version of this hypothesis is vivid in Leon Green's 1931 textbook on torts, which was organized not by the traditional doctrinal categories (e.g. negligence, intentional torts, strict liability), but rather by the factual scenarios—the “situation-types”--in which harms occur:  e.g. "surgical operations," "traffic and transportation," and the like.  The premise of this approach was that there was no general law of torts per se, but rather predictable patterns of torts decisions for each recurring situation-type that courts encounter.) 

That the preceding was the heart of the Realists' "empirical" method explains, of course, why the Realists were so influential in American law:  you didn't need social science training to do this kind of analysis, you just needed to be a sensitive and skeptical reader of court opinions, something good lawyers are, well, good at.  (Even my late colleague Charles Alan Wright described himself as a "legal realist," for he took the task of his great procedure treatise to be the same as Oliphant's approach to the promise-not-to-compete cases.) 

A "new legal realism" would continue the paradigm of scholarship established by the old legal realists, namely, contrasting what courts say they’re doing with what they actually do.  "We are all realists now" because this is what so many legal scholars do, including those who know nothing of social science and don't even self-identify as realists.  Consider the classic modern debunking of what courts call “the irreparable injury rule” by Douglas Laycock in his 1991 book on the subject. The irreparable injury rule states courts will not enjoin misconduct when money damages will suffice to compensate the victim.  Laycock reviewed more than 1400 cases and concluded:

Courts do prevent harm when they can.  Judicial opinions recite the rule constantly, but do not apply it...When courts reject plaintiff's choice of remedy, there is always some other reason, and that reason has nothing to do with the irreparable injury rule....An intuitive sense of justice has led judges to produce sensible results, but there has been no similar pressure to produce sensible explanations. 

Like the old realists, Laycock finds a disjunction between the “law in the books” and the “law in action,” and, also like the realists, he invokes as an explanation for that disjunction the decision-makers' "intuitive sense of justice."  Like Oliphant before him, Laycock seeks, in turn, to reformulate and restate the rules governing injunctions to reflect the actual pattern of decisions by the courts following this intuitive sense of justice.

None of this is to deny the potential value of sound empirical work on law and the legal system.  Such work might even illuminate the gap between what the courts say they're doing and what they're actually doing.  (The formal political science literature on this subject is, alas, rather disappointing.)  It is only to say that the "new legal realism" as the Wisconsin project conceives it has rather little to do with the "old legal realism" which had such a significant impact on American law and legal scholarship.

(I've developed this interpretation of American Legal Realism, with the appropriate scholarly documentation, in various places, but an accessible version is here.)