Brian Leiter's Law School Reports

"Legal Positivism as a Realist Theory of Law"

This is essentially the final version (minus some citations and formatting) that will appear in The Cambridge Companion to Legal Positivism, which will probably be out in 2020 (and is being edited by Patricia Mindus [Uppsala] and Torben Spaak [Stockholm]).

Amy Wax, again, and academic freedom and the duties of administrators

Penn's Amy Wax has done it again, and this time her Dean has caved into those (reasonably) offended and condemned the substance of her remarks.  In the past, Penn Dean Ruger did the right things when it came to Wax, but in this instance he failed:  it is not the job of a Dean to condemn the protected and lawful speech of faculty members.  (See this for more details about my views on this score.)   The public response should have been succinct and consisted only of this:  "Professor Wax speaks for herself, not for the institution."   Individual faculty are free to exercise their speech rights to criticize Wax's latest stupidity, but the institution, for whom the Dean speaks, should remain silent. Here is how the University of Chicago's 1967 Kalven Report (authored by famed First Amendment scholar Harry Kalven) puts it:

The mission of the university is the discovery, improvement, and dissemination of knowledge.  Its domain of inquiry and scrutiny includes all aspects and all values of society.  A university faithful to its mission will provide enduring challenges to social values, policies, practices, and institutions.  By design and effect, it is the institution which creates discontent with the existing social arrangements and proposes new ones.  In brief, a good university, like Socrates, will be upsetting.

The instrument of dissent and criticism is the individual faculty member or the individual student.  The university is the home and sponsor of critics; it is not itself the critic.....To perform its mission in the society, a university must sustain an extraordinary environment of freedom of inquiry, and maintain an independence from political fashions, passions, and pressures.  A university, if it is to be true to its faith in intellectual inquiry, must embrace, be hospitable to, and encourage the widest diversity of views within its own community....

Since the university is a community only for these limited and distinctive purposes, it is a community which cannot take collective action on the issues o fthe day without endangering the conditions for its existence and effectiveness.

Lateral hires with tenure or on tenure-track, 2018-19

I EXPECT THIS WILL BE THE LAST TIME THIS LIST IS MOVED TO THE FRONT FOR 2018-19

These are non-clinical appointments that will take effect in 2019 (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.

 

*Sarah Adams-Schoen (land use, ocean & coastal law) from the University of Arkansas, Little Rock to the University of Oregon (untenured lateral).

 

*Jane Aiken (torts, evidence, experiential education) from Georgetown University to Wake Forest University (to become Dean).

 

*Mehrsa Baradaran (banking law, bankruptcy) from the University of Georgia to the University of California, Irvine.

 

*Kristen Barnes (property, housing law, international human rights, voting rights) from the University of Akron to Syracuse University. 

 

*Michael F. Barry (complex litigation, legal education & pedagogy) from St. Mary's University to South Texas College of Law (to become Dean and President).

 

*Valena E. Beety (criminal law & procedure) from West Virginia University to Arizona State University.

 

*Matt Blaze (computer and network security) from the University of Pennsylvania Department of Computer & Information Sciences to Georgetown University (joint appointment in Law and Computer Science).

 

*Mary Anne Bobinski (health law) from the University of British Columbia to Emory University (to become Dean).

 

*Pamela Bookman (contracts, civil procedure, arbitration) from Temple University to Fordham University (untenured lateral).

 

*Maureen Brady (property, land use, legal history) from the University of Virginia to Harvard University (untenured lateral).

 

*William Wilson Bratton (corporate law) from the University of Pennsylvania (where he will become emeritus) to the University of Miami (effective July 1, 2020).

 

*Khiara Bridges (race & the law, family law, reproductive rights) from Boston University to the University of California, Berkeley.

 

*Neil Buchanan (tax) from George Washington University to the University of Florida, Gainesville.

 

*Michael Cahill (criminal law) from Rutgers University back to Brooklyn Law School (to become Dean).

 

*Richard Chen (contracts, international law & arbitration) from the University of Maine to the University of Hawaii (untenured lateral).

 

*Albert Choi (law & economics, contracts, corporate) from the University of Virginia to the University of Michigan, Ann Arbor.

 

*Danielle Citron (privacy, civil rights, freedom of expression, Internet law) from the University of Maryland to Boston University.

 

*Zachary Clopton (civil procedure, international business transaction, national security law) from Cornell University to Northwestern University.

 

*G. Marcus Cole (bankruptcy, law & economics) from Stanford University to the University of Notre Dame (to become Dean).

 

*Blanche Cook (criminal law & procedure, evidence, critical race theory) from Wayne State University to the University of Kentucky.

 

*Giuseppe Dari Mattiacci (law & economics, comparative law, corporate law, contracts) from the University of Amsterdam to Columbia University.

 

*Danielle Conway (public procurement law, entrepreneurship, intellectual property) from the University of Maine (where she is Dean) to Pennsylvania State University Dickinson School of Law (to become Dean).

 

*Lincoln Davies (energy law & policy) from the University of Utah to Ohio State University (to become Dean).

 

*Ryan Doerfler (legislation/statutory interpretation, administrative law, law & philosophy) from the University of Pennsylvania to the University of Chicago.

 

*Justin Driver (constitutional law) from the University of Chicago to Yale University.

 

*Trevor Gardner (criminal law) from the University of Washington, Seattle to Washington University, St. Louis (untenured lateral).

 

*Jonah Gelbach (law & economics, civil procedure, empirical legal studies) from the University of Pennsylvania to the University of California, Berkeley.

 

*Marc-Tizoc Gonzalez (property, critical race theory, poverty law) from St. Thomas University (Florida) to the University of New Mexico. 

 

*D. Wendy Greene (employment law, race & law, constitutional law) from Cumberland Law/Samford University to Drexel University.

 

*David Grewal (international trade, law & technology, political economy, political theory) from Yale University to the University of California, Berkeley.

 

*Vinay Harpalani (race & law, education law, constitutional law) from Savannah Law School to the University of New Mexico (untenured lateral).

 

*Jonathan Kahn (health law, bioethics, constitutional law, torts) from Mitchell|Hamline School of Law to Northeastern University.

 

*John Kang (constitutional law, law & gender, legal theory) from St. Thomas University (Florida) to the University of New Mexico.

 

*Orin Kerr (criminal procedure, computer crime law) from the University of Southern California to the University of California, Berkeley.

 

*Catherine Kim (civil procedure, administrative and immigration law) from the University of North Carolina, Chapel Hill to Brooklyn Law School.

 

*Anita Krug (securities regulation, financial regulation) from the University of Washington, Seattle to Chicago-Kent College of Law/Illinois Institute of Technology (to become Dean).

 

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

 

*Kate Levine (criminal law and procedure) from St. John's University to Cardozo Law School (untenured lateral).

 

*Myrisha Lewis (health law, bioethics, family law) from Howard University to the College of William & Mary (untenured lateral).

 

*Ji Li (Chinese law and politics) from Rutgers University to the University of California, Irvine.

 

*Leah Litman (constitutional law, federal courts) from the University of California, Irvine to the University of Michigan, Ann Arbor (untenured lateral).

 

*M. Elizabeth Magill (administrative law, constitutional law) from Stanford University to the University of Virginia (to become Provost).

 

*Andrea Matwyshyn (law & technology, cybersecurity, privacy, intellectual property) from Northeastern University to Pennsylvania State University, University Park (where she will also be founding director of the Policy Innovation Lab of Tomorrow).

 

*James McGrath (legal education & pedagogy, health law) from Texas A&M University to Western Michigan University Cooley Law School (to become President and Dean).

 

*Ralf Michaels (comparative law, conflicts of law) from Duke University to the Max Planck Institute for Foreign and Private International Law (Hamburg).

 

*Daniel Morales (immigration law) from DePaul University to the University of Houston.

 

*Rachel Moran (education law, civil rights, race & the law) from the University of California, Los Angeles to the University of California, Irvine.

 

*Minor Myers (corporate law) from Brooklyn Law School to the University of Connecticut, Hartford.

 

*John Newman (antitrust, conflicts) from the University of Memphis to the University of Miami (untenured lateral).

 

*Mark Niles (civil procedure, constitutional law, administrative law) from American University to Hofstra University.

 

*Sean O'Connor (intellectual property, law & technology) from the University of Washington, Seattle to George Mason University.

 

*Jennifer D. Oliva (health law, evidence, torts) from West Virginia University to Seton Hall University (untenured lateral)

 

*Jessica Owley (environmental law) from the University at Buffalo-State University of New York to the University of Miami.

 

*Justin Pidot (environmental & administrative law, property) from the University of Denver to the University of Arizona.

 

*Elizabeth Pollman (corporate law) from Loyola Law School, Los Angeles to the University of Pennsylvania (effective January 2020).

 

*Jedediah Purdy (property, environmental law, constitutional law) from Duke University to Columbia University (effective January 2019).

 

*Natalie Ram (biotechnology & law, bioethics, law & medicine) from the University of Baltimore to the University of Maryland (untenured lateral).

 

*Anna Roberts (criminal law & procedure, evidence) from Seattle University to St. John's University.

 

*Kalyani Robbins (environmental & natural resources law, property) from Florida International University to Loyola University, Chicago.

 

*Kimberly J. Robinson (education law, civil rights) from the University of Richmond to the University of Virginia.

 

*Michael Selmi (employment law & discrimination, civil rights) from George Washington University to Arizona State University.

 

*Elizabeth Sepper (law and religion, health law, antidiscrimination law) from Washington University, St. Louis to the University of Texas, Austin.

 

*Rick Su (property, state and local government, immigration law) from the University at Buffalo-State University of New York to the University of North Carolina, Chapel Hill.

 

*Karen Tani (legal history) from the University of California, Berkeley to the University of Pennsylvania (effective July 2020).

 

*Elizabeth Trujillo (international trade law) from Texas A&M University to the University of Houston.

 

*Anthony E. Varona (administrative law, media law, law & sexuality) from American University to the University of Miami (to become Dean).

 

*Elizabeth Kronk Warner (environmental law, Federal Indian law) from the University of Kansas to the University of Utah (to become Dean).

 

*Laura Weinrib (legal history, labor law) from the University of Chicago to Harvard University.

 

*Patricia J. Williams (critical race theory, civil rights) from Columbia University to Northeastern University.

 

*Karen E. Woody (corporate law, securities regulation) from Indiana University, Bloomington (Business School) to Washington & Lee University (Law School) (untenured lateral).

 

*Patricia J. Zettler (food & drug law, health law & policy, torts) from Georgia State University to Ohio State University (untenured lateral)

International ranking of law journals

A group of Israeli legal scholars undertook this quantitative and qualitative study,resulting in a tiered ranking of journals as A*, A, B, C and unranked.   One could quibble here and there, but it's a reasonably sensible result.

This year's FAR form surprise

Last year it was the addition of the silly but harmless "student leadership" and "community service" sections, this year it's more consequential:   candidates can now upload their job talk papers along with their FAR form, CV and research agenda.  But of course many candidates are still polishing their job talk papers because they expected, reasonably enough, that they would have until the first FAR distribution in eary-to-mid-August to get them ready for circulation.   So I expect many candidates will not upload a job talk paper initially, and hiring schools shouldn't draw any adverse inferences from that given that AALS just sprung this on everyone.

It would be nice if the AALS would alert member schools well in advance of these changes, so we can advise candidates to prepare accordingly.

It's good the AALS has created a new website about careers in law teaching...

...but not so good that they simply pilfered Prof. Lawsky's data (without even crediting her by name).  Professor Lawksy comments here.

UPDATE:  This morning (July 17), James Greif, Director of Communications for the AALS wrote me, and gave me permission to share his message:

I noticed your post about our website “Becoming a Law Teacher” and wanted to let you know that not including Professor Lawsky’s name along with her data was an oversight on our part. We have reached out to her and are in the process of correcting the error on our site, per her updated post. Not recognizing her work was not our intention and proper attributions will be up shortly.

Thank you for your attention to this issue and your coverage of legal education issues on your blog.

ANOTHER:  It turns out there is other pilfered material on the new AALS law teaching website.  I have alerted them to it.  This may all be inadvertent, but it is still disgraceful for a professional organization.

In Memoriam: James A. Henderson, Jr. (1938-2019)

A leading authority in the fields of torts and products liability, Professor Henderson taught for nearly thirty years at Cornell Law School.  The Cornell memorial notice is here.

(Thanks to Anita Bernstein for the pointer.)

Why we need to read scholarship for ourselves and cannot rely on citation counts alone (Michael Simkovic)

Citation counts and other metrics can be a useful starting point for identifying scholarship and scholars that seem promising.  Such measures are quantitative, sortable, and rankable.  Metrics are quick and easy compared to the time-consuming effort of reading scholarship and forming an opinion of its merit based on expert knowledge of the underlying subject matter.  Some scholars argue that metrics should play a larger role in tenure and lateral hiring decisions—perhaps larger than qualitative assessments.  Metrics appear to be “objective” because they are external to an individual reader (although they are in fact subjective—they reflect many choices about what to cite). 

For the past two years, I’ve served on USC’s appointments committee, and I’ve read many academic articles.  My sense is that on average, scholars who are more highly cited tend to be qualitatively strong as well.  However, citations are a noisy signal of quality—some highly-cited work by highly-cited scholars is deeply flawed.  Conversely, some good work slips through the cracks.

While I wish to avoid embarrassing any particular individual—and will therefore avoid using names—I feel that it is necessary to provide illustrative examples.  I use these examples only because I encountered them recently, not because I have reason to believe they are the most egregious.

One extremely highly cited scholar at a reputable institution claimed that unrestricted e-cigarette marketing would improve public health.  The article did not acknowledge any potential downsides.[1]  

I've observed other scientifically questionable claims in the environmental and health law space.  A well-cited article advocating for more state and local environmental regulation and less federal oversight claimed that most environmental problems are local or state-specific.

I asked an expert on environmental science—a well-credentialed environmental engineer for the state of Vermont—about this claim and she wrote that it is:

“Unlikely. Groundwater, surface water, and contaminated air does not stop at state boundaries.”

It is therefore difficult to address issues like air or water quality purely at the state or local level; spillovers are incredibly common, especially along borders.  Air quality in China can reportedly affect the West Coast of the United States.  Similarly, many migratory animals have habitats that extend across state and even national lines. 

Indeed, the most reasonable presumption may be that there are environmental spillovers unless it can be established that there are not.

Legal scholars are free to take a variety of perspectives on policy matters, but those perspectives need to be grounded in a fair, impartial, and accurate description of the current state of scientific knowledge.  Some highly cited work by highly cited authors does not satisfy these basic requirements of scholarship.

Why is work that is flawed so highly cited? 

I do not know. 

I do know that appointments and tenure committees cannot abdicate our responsibilities to read scholarship closely and to develop a well-informed, expert opinion of it.

 

[1] My understanding of the scientific literature on this issue is that e-cigarettes may be less harmful than combustible cigarettes but they are substantially less healthy than not smoking at all. It remains unclear if deregulating e-cigarettes leads to switching from combustible cigarettes to e-cigarettes more than it leads to switching from not smoking at all to smoking e-cigarettes.  Given extant bans on cigarette advertising, it would seem that unrestricted marketing for e-cigarettes would be likely to bring in new customers rather than simply cannibalize existing business.

 

UPDATE July 11, 2019:  Adam Levitin (Georgetown) writes:

"Regarding citations, three thoughts.  First, citations aren’t always for important or original ideas.  Sometimes they are just there because an insecure law review editor wants a footnote to support an uncontroversial fact.  A person who has a very clear statement of something obvious might get a lot of “see, e.g.” citations even for an article that’s entirely mediocre.  That’s something that’s unique to law.  Social science disciplines cite only for substantial points.  I don’t know a good way to filter citations in this regard.  

Second, not all citations are positive.  Some citations are to point out limitations or errors in others’ work, bad ideas, etc.  I’ve been the beneficiary of some of those citations and have given some myself. That’s not unique to law, of course.  

Third, I think it’s useful to look at the type of sources in which someone is cited.  Legal scholarship gets cited in a broader range of places than many other types of scholarship:  other legal scholarship, scholarship in other disciplines, judicial decisions, briefs, and administrative materials.  I think it’s useful to see if anyone outside of the legal academy is paying attention to people’s work.  There’s certainly some great inside-baseball legal scholarship, but we’re a field that is entirely enmeshed with the worlds of the courts and policy, and we should be looking to see whose work is relevant in that regard."  

It's time to end life tenure on the U.S. Supreme Court

It sure is.  Related.