Brian Leiter's Law School Reports

The world according to "scam" bloggers

A reader (who asked not to be identified, lest he be pilloried by the sociopaths of cyberspace) sent me this very funny comment from another blog, that had apparently dared to discuss legal education without self-flagellation, and so was linked by a "scamblog" and then invaded by its handful of 'readers':

Prof. McCormick, I should warn you that you've been linked by the Campos "scam" blog, so its five regular commenters are now descending on you. These are people who believe that (1) law professors are Nazis, (2) no one should go to law school unless it's Harvard or Yale or free, (3) law professors are Nazis, (4) only people who have practiced for twenty years are qualified to teach, (5) law professors are Nazis, and (6) Paul Campos is a courageous man.

 And that about sums up 'thinking' in the bowels of cyberspace! 

Judge Posner on Justice Scalia's Jurisprudence

This is a review that would finish the career of the academic who authored the book in question, and might even raise questions about scholarly fraud.  Fortunately, Justices really do have "life" tenure!  An excerpt:

OMITTING CONTRARY evidence turns out to be Scalia and Garner’s favorite rhetorical device. Repeatedly they cite cases (both state and federal) as exemplars either of textual originalism or of a disreputable rejection of it, while ignoring critical passages that show the judges neither ignoring text nor tethered to textual originalism. Thus they applaud White City Shopping Center, LP v. PR Restaurants, LLC, a decision that held that the word “sandwiches” in a lease did not include burritos, tacos, or quesadillas, because Merriam-Webster’s dictionary defines “sandwich” as “two thin pieces of bread, usually buttered, with a thin layer (as of meat, cheese, or savory mixture) spread between them.” Scalia and Garner stop there, as if that dictionary reference were the court’s entire decision, thus confirming the use of the dictionary as a guide to the meaning of legal documents. But the court had not stopped with the dictionary.

A company called PR had leased space to operate a sandwich shop in a shopping center. Its lease forbade the shopping center to lease space to another store if more than ten percent of the new store’s sales would be of sandwiches. PR claimed that the shopping center violated the lease when it leased space to a Mexican-style restaurant that planned to sell burritos, tacos, and quesadillas. After noting Merriam-Webster’s definition of sandwich, the court made a series of points in support of its decision against PR that were unrelated to dictionary definitions: “PR has not proffered any evidence that the parties intended the term ‘sandwiches’ to include burritos, tacos, and quesadillas. As the drafter of the exclusivity clause, PR did not include a definition of ‘sandwiches’ in the lease nor communicate clearly to White City during lease negotiations that it intended to treat burritos, tacos, quesadillas, and sandwiches the same. [PR] was aware that Mexican-style restaurants near the Shopping Center existed which sold burritos, tacos, and quesadillas prior to the execution of the Lease yet, PR made no attempt to define, discuss, and clarify the parties’ understanding of the term ‘sandwiches.’”

Those are more persuasive points than the dictionary’s definition, and as is often the case, the court got the definition wrong. (Scalia and Garner miss this, too.) A sandwich does not have to have two slices of bread; it can have more than two (a club sandwich) and it can have just one (an open-faced sandwich). The slices of bread do not have to be thin, and the layer between them does not have to be thin either. The slices do not have to be slices of bread: a hamburger is regarded as a sandwich, and also a hot dog—and some people regard tacos and burritos as sandwiches, and a quesadilla is even more sandwich-like. Dictionaries are mazes in which judges are soon lost. A dictionary-centered textualism is hopeless.

Yet in further obeisance to the dictionary Scalia and Garner commend a court for having ordered the acquittal of a person who had fired a gun inside a building and been charged with the crime of shooting “from any location into any occupied structure.” They say that the court correctly decided the case (Commonwealth v. McCoy) on the basis of the dictionary definition of “into.” They misread the court’s opinion. The opinion calls the entire expression “from any location into any occupied structure” ambiguous: while “into” implies that the shooter was outside, “from any location” implies that he could be anywhere, and therefore inside. The court went on to decide the case on other grounds.

Scalia and Garner ridicule a decision by the Supreme Court of Kansas (State ex rel. Miller v. Claiborne)that held that cockfighting did not violate the state’s law against cruelty to animals. They say that the court, in defiance of the dictionary, “perversely held that roosters are not ‘animals.’” When I read this, I found it hard to believe that a court would hold that roosters are not animals, so I looked up the case. I discovered that the court had not held that roosters are not animals. It was then that I started reading the other cases cited by Scalia and Garner.

In fact, the court said that “biologically speaking a fowl is an animal,” but that it was not in the class of animals protected by the statute. The court gave a number of reasons for this conclusion—all ignored by Scalia and Garner. One, which was in fact textual originalist, was that “persons of common intelligence” conceived of chickens as birds in contradistinction to animals. But the most cogent reason for the court’s result was that the legislature had passed a statute forbidding cockfighting on Sundays, which implied that it was permissible the rest of the week, and had later repealed the statute, implying that cockfighting was again permissible on any day of the week—and in fact cockfighting was an open and notorious sport in Kansas (to the surprise and disgust of the judges).

Scalia and Garner denounce a court that held, in a case called Braschi v. Stahl Associates Co., that the word “family” in a New York rent-control statute that prohibited a landlord from dispossessing a “member of the deceased tenant’s family who has been living with the tenant” included “a cohabiting nonrelative who had an emotional commitment to the deceased tenant.” The word “family” was undefined in the statute. The case may be right or wrong; what is disturbing is Scalia and Garner’s failure to mention that it was a homosexual couple at a time when homosexual marriage was not recognized in New York, and that the opinion states that the two men had been living together just like spouses and had been accepted as such by their families.

Scalia and Garner applaud a decision (State by Cooper v. French) holding that a refusal to rent a house to an unmarried heterosexual couple did not violate a statute forbidding discrimination in rentals on grounds of “marital status,” a term not defined in the statute. The court relied for this conclusion on another statute, one forbidding fornication. One may doubt whether that statute was the actual motivator of the decision, given the statement in the majority opinion—remarkable for 1990—that “it is simply astonishing to me that the argument is made that the legislature intended to protect fornication and promote a lifestyle which corrodes the institutions which have sustained our civilization, namely, marriage and family life.” This statement is not quoted by Scalia and Garner. (And two sentences later the judge referred, contrary to a Scalia-Garner Diktat, to the statute’s legislative history.)

After the refusal to rent, but before the court’s decision, the anti-discrimination law had been amended to define “marital status” as “whether a person is single, married, remarried, divorced, separated, or a surviving spouse”; and the man and woman who had wanted to rent were both single, a protected marital status under the amended statute. On the page following their discussion of the case, Scalia and Garner, having moved on to another case, remark that “the meaning of an ambiguous provision may change in light of a subsequent enactment … unless the ambiguous provision had already been given an authoritative judicial interpretation.” The original provision— “marital status”—had been undefined and therefore ambiguous, and had not been given an authoritative judicial interpretation. So the amendment, which broadened statutory protection to unmarried persons, provided some basis (though far from conclusive), consistent with textual originalism as understood by Scalia and Garner, for the court’s decision that they denounce. They do not mention this possibility.

UPDATE:  Bryan Garner, Justice Scalia's co-author, replies (in part) here.

"Law porn" and U.S. News Rankings

Here's an interesting piece by Larry Cunningham at St. John's, though as Al Brophy (UNC) notes, the period examined is probably too small to draw meaningful conclusions.  NYU's embarrassingly over-the-top alumni magazines (the ones that inspired the term "law porn") in the 1990s actually coincided with a decline in NYU's reputation scores in U.S. News, a cautionary lesson for all!

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.

In Memoriam: Roger Fisher (1922-2012)

A leading figure in negotiation and conflict resolution, Professor Fisher spent his academic career at Harvard.  The HLS memorial notice is here.

Law & Philosophy teaching candidates

I know many of them, and am happy to answer questions, but that's not the point of this post.  The main point is to remind my law readers that a lot of the top PhD programs in philosophy are not at "elite" universities (NYU, Rutgers, and Pittsburgh are, uncontroversially, among the top five programs in the US, on a par, or better than, Princeton and Harvard, among many others; North Carolina and Arizona are also excellent, for example).  By contrast, several "elite" universities have philosophy programs that are not in the top 20, or barely so (e.g., Chicago, Duke, Penn, Johns Hopkins, Northwestern).  For years, I've been the editor of the leading guide to philosophy PhD programs, based on a roughly bi-ennial survey of over 300 philosophers (including most of the leading figures in the field); Wiley-Blackwell publishes the report here.  All that being said, Penn has run a very good JD/PhD program for nearly 20 years now, and any graduate of that program deserves a serious look (and esp. this year).  I hope Chicago will eventually do the same, though that's a complicated story for another day!  There are, in any case, no Chicago JD/PhDs in Philosophy on the teaching market.

Lawsuit against Brooklyn Law School Seems Likely to be Dismissed...

...and rightly so from the sound of it.

SLU's Walker v. Wash U's Tamanaha

The first volley from SLU's Walker; Tamanaha's reply; the rebuttal.

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).

Dean of Thomas Cooley Law School Takes on Critics of Law Schools

It would be an actual ad hominem fallacy to dismiss out of hand these remarks because of their source.  In fact, it seems to me the Dean makes a number of fair points, including about the echo chamber irrationality of some of the "scam" blogs.  Here are some highlights worth noting:

A relative handful of critics re-circulate the same increasingly tired arguments,  thus reinforcing one another's views, nearly all of which are not remotely  objective and without support in fact.

The Recession Hit Our Profession Hard . . .

In late  2008, a recession hit the American economy, a bad one.  The legal business was hard hit as well,  precisely because the legal business is so vital to our free market, capitalist  economy.  The recession heightened in  2009, and the recovery that followed has been exceptionally slow.  Business at all levels has slowed, economic  activity is down, and tax revenues that support government activity are down as  well.   

So, the law  business, including the government law segment, has suffered.  Employment of lawyers declined during this  recession, and employment of recent graduates was in turn more  challenging.  Of course, that is true for  all segments of the economy and all management and professional occupations.

. . . But Not As Hard As the Critics of Legal Education Say

In 2008, the national unemployment  rate reported by the U.S Bureau of Labor Statistics was 5.8%; in 2009, it  climbed to 9.3%, then to 9.6% in 2010, and declined by less than one percent to  8.9% in 2011.  The BLS-reported national  unemployment rate for all management and professional occupations in 2008 was  2.7%; this rate leapt to 4.6% in 2009, rose to 4.7% in 2010, and declined  slightly to 4.5% in 2011.  Compare these  rates to the unemployment rates the BLS reported for lawyers during the same  period:  1.9% in 2008, 2.3% in 2009, 1.5%  in 2010, and 2.1% in 2011.  These related  employment facts, which provide the necessary context to this discussion, have  been completely ignored by the critics. 

The  National Association for Law Placement began publishing data about employment  of recent law school graduates in 1975.  This  is the fourth recession the economy has gone through since then, and it was the  longest in duration.  We recovered nicely  from all of them, although each time it has taken several years for complete  recovery to be realized.  NALP's data  shows that the new lawyer unemployment rate following each recession since 1975  has included several years of double-digit unemployment.... 

What the  critics completely ignore is that the law schools, like every enterprise in a  market system, are sensitive to market forces.   The fall 2011 entering class was 7.4% smaller than that in 2010.  The 2012 class will be smaller still.  When these classes graduate in 2014 and 2015,  the job market will be absorbing a correspondingly lower number of graduates in  those years.  The current employment  market has already affected applicant behavior, and the schools in turn have  responded to those market forces.  We  need no mandate to make adjustments dictated by accrediting agencies, education  departments, or legislative bodies.   Supply and demand clearly are at work; they are just not recognized by the  critics.

Of course, there are reasons identified by Bill Henderson (Indiana) and others to think many changes in the legal workforce are structural and permanent, not just transitory effects of the recession.  Overall BLS statistics are also misleading, since they include many lawyers who began their careers during periods of time when American universities were actually not graduating enough new lawyers to meet demand (yes, there was such a time).  And there really are reasons to think that a  minority of currently accredited law schools are a bad investment at any price, and that an even larger number are a bad investment at their current prices (the Tamanaha book is a useful compilation of the data on this score).  The contraction in the applicant pool and in law school class size is, indeed, a "market" adjustment, as will be the likely closure of some law schools in the next few years.  (The "market" here is, of course, affected by both government and private regulatory policies.)  There may, of course, also yet be political or economic events that will exacerbate the speed or magnitude of all these changes (e.g., another economic collapse, a change in federal education loan policy). 

UPDATE:  Jonathan Weinberg (Wayne State) writes:

The irony in Dean LeDuc's statement that most struck me is that while law schools as a whole are enrolling fewer students,  Cooley is not.  http://online.wsj.com/article/SB10001424052702303444204577458411514818378.html  The schools most sensitive to their US News rankings, and thus their LSAT/GPA numbers, are the ones most motivated to reduce class sizes.  Cooley, and other schools like it, aren't responsive to those market forces.

NYU's Estreicher: Allow Students to Sit for Bar After Two Years of Law School

We've touched on this idea before, but here is Samuel Estreicher's take:

This paper argues for a revision of the rules of the New York Court of Appeals to allow students to sit for the bar after two years of law school classes. This revision, reflecting what the rule had been when both Presidents Theodore Roosevelt and Franklin Delano Roosevelt and Associate Justice Benjamin Cardozo attended Columbia Law School, would cut the costs of legal education for many students by 1/3, hence addressing in part the concern that law school debt drives down the availability of public service lawyers. Moreover, such a move would put pressure on law schools to deliver educational services more attuned to the practical needs of their students in order to secure their enrollment for the third year. This is a matter of considerable importance at a time many law schools place fewer than half of their graduates in full-time positions requiring legal training. Although the proposal does not address what law schools do or should do, reducing the law school study requirement for bar eligibility from three to two years may encourage some law schools within New York to embrace a more professional than rather purely academic orientation that should in turn lead to enhanced skills trainingf or students likely to be practising on their own or in small firms not capable of providing sustained training. A better trained solo or small-firm practitioner will better serve the legal needs of Americans of average means.

Thoughts from readers?  Signed comments only:  full name and e-mail address required.

UPDATE:  The paper is here.