Brian Leiter's Law School Reports

Blast from the past: the mystery of SSRN e-journal classifications

Back in 2016.

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?

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).

Here are the schools with 2 or more former faculty now in the "top 5."

Boston University (4)

Fordham University (3)

University of Arizona (3)

Washington University, St. Louis (3)

Cardozo Law School/Yeshiva University (2)

Emory University (2)

George Mason University (2)

Indiana University, Bloomington (2)

Loyola Law School, Los Angeles (2)

University of Connecticut, Hartford (2)

University of Illinois, Urbana-Champaign (2)

University of Washington, Seattle (2)

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.

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.

To be clear, U.S. Supreme Court Justices have enormous discretion:  they make law, far more than they apply law, as every insider knows (here is a popular explanation of the point and here is a more jurisprudential one).  That's precisely why these appointments matter:  Republicans want justices who will exercise their discretion in a Republican way, and Democrats want the opposite.   Senator McConnell began the current round of court-packing.  If the Democrats prevail in November, they should continue it next year or, as my colleague Ryan Doerfler has proposed, strip the court of its jurisdiction and thus reduce its political power.

There is a further dangerous game the Republicans are playing here.  The Constitution does not confer on the Supreme Court the final authority to say what is and isn't constitutional.  The Court has claimed that authority:  the first time two hundreds years ago, but most successfully since the late 1950s (despite some brief challenges by President Reagan's Attorney General Ed Meese).  Conventional practices can change, however, and this one might.  

Suppose a Biden Administration and a Democratic Congress enact a ban on assault weapons, and a packed Supreme Court strikes it down as violating the Second Amendment right of individuals to “bear arms” as interpreted in its decision in District of Columbia v. Heller (2008).  Put aside that Heller is dubious.  As the late Chief Justice Warren Burger, a Nixon appointee, the idea that the Constitution protected an individual right to gun ownership is simply a “fraud.”  And Judge Richard Posner, then sitting on the U.S. Court of Appeals for the 7^th Circuit, described the Heller decision as “questionable in both method and result, and it is evidence that the Supreme Court, in deciding constitutional cases, exercises a freewheeling discretion strongly flavored with ideology.”  And even Heller did not declare that bans on assault weapons were off the table, so it would all depend on how that precedent is interpreted.

Given overwhelming popular support for a ban on assault weapons in civil society, given the dubious claim that such bans are unconstitutional, and given that the Court rendering such a judgment would have been "packed," does anyone really doubt that both the President and the Democratic majority in Congress would declare the Supreme Court mistaken about the constitutionality of the assault weapons ban, and proceed to its implementation?   In so doing, they would not violate the text of the Constitution, an irony for those (mostly conservatives) who profess fealty to the text.   Forward-looking Republicans might think about this wholly plausible scenario.

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.

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.”...

The philologist pointed to a regime bent on diverting its people through endless dramas (often involving real or imagined enemies), and “the gradual habituation of the people, little by little, to being governed by surprise....

Nonetheless, people flirted, enjoyed romances, “went to the cinema, had a meal in a small wine bar, drank Chianti, and went dancing together.” [I]t was the “automatic continuation of ordinary life” that “hindered any lively, forceful reaction against the horror...

[M]emoirists referred to their “happy times” in the Hitler Youth, focusing not on ideology but on hiking trips, camaraderie, and summer camps....[But then] things got much worse for Germans [when the war began].

After the war, defeat meant a new beginning for many, a kind of opportunity...Germans—grim, shell-shocked, determined—returned to ordinary life and bet on a better future. Avoiding nationalism or even national pride, they succeeded in rebuilding their economy and their morale...many Germans have been transformed “into sincere democrats and pacifists."

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.

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.

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!