Brian Leiter's Law School Reports

Summer blogging

I'll be posting less regularly until early August.  Professor Sisk and colleagues at St. Thomas are working on a new scholarly impact study, and I will make time for thost results as they become available.

Monday is the last day for submitting comments regarding the proposed changes to the ABA standards regarding diversity and curriculum

Many interesting comments have already been submitted, some echoing concerns raised here.  The lengthy analysis by current or emeritus "Sterling Professors" at Yale Law School may be of particular interest.  ("Sterling Professor" is the most distinguished professorial rank at Yale, and includes such well-known scholars as Bruce Ackerman, Owen Fiss, John Langbein, Roberta Romano, and Alan Schwartz.) Professor Romano tells me they learned of the proposals from my earlier blog post, and I am glad she and her colleagues weighed in with a careful assessment.

A look at this year's lateral moves by race and gender

Professor Orin Kerr (Berkeley) looked at the list of laterals this year and posted his findings on Twitter:  There were 40 men on the laterals list, of whom 21 were "people of color"; there were 53 women on the laterals list, of whom 23 were "people of color."

Put differently:  there were 49 white laterals (of whom 30 were women, and only 19 men); while there were 42 POC laterals (of whom 21 were men, and 23 were women).

I have sometimes seen people claim on Twitter that it is harder for women to lateral; this was once true (especially when look-see visits were the norm for a lateral offer), but it is no longer true now.  (The pattern, above, has held for awhile now.)  Given that the legal academy is still overwhelmingly white, it is also clear that POC faculty are lateraling in much higher proportions to their current representation in the academy.  This no doubt reflects the increased efforts I started noticing about five or six years ago by law faculties to increase racial diversity.  Unfortunately, doing so via laterals just creates diversity deficits lower down in the hierarchy of schools.

In Memoriam: Jack Weinstein (1921-2021)

A longtime member of the Columbia Law School faculty and a district court judge in New York, he was also well-known for his scholarship on evidence, civil procedure and mass torts.  The Columbia memorial notice is here.

Not a great advertisement for the Hogan Lovells firm

An investigative report in the NYT.

When "DEI Training" goes wrong

Stories like this ought to give the ABA substantial pause about the proposed revisions to the accreditation standards.

Call by ABA for comments on significant proposed changes to standards pertaining to "non-discrimination and equal opportunity" and "curriculum"

MOVING TO FRONT FROM JUNE 1--TWO MORE WEEKS TO SUBMIT COMMENTS TO THE ABA!

The proposed changes are available here.   Written comments on the proposals should be addressed to:  Scott Bales, Council Chair.  Please send comments to Fernando Mariduena (Fernando.Mariduena@americanbar.org) by June 28, 2021.

I am going to offer a few observations of my own on some of these proposals, which readers are free to incorporate into any comments they wish to send to Mr. Bales (with or without attribution to this blog).   Some of the proposed changes are minor, but many are not.  As a threshold matter, the ABA should have to explain why the existing standards were not more than adequate, especially since some of the proposed changes will impose substantial costs on schools and seem ill-supported by evidence.

(1)  Proposed changes would replace previous language requiring "concrete action" and "reasonable efforts" related to diversity, to a standard that demands "demonstrat[ing] progress."   What does "progress" mean?  If a very diverse law school becomes slightly less diverse after a few years (but is still extremely diverse), does that mean it is in violation of the standard?  That would seem bizarre.   Suppose a law school becomes more diverse by enrolling more Asian-American students, but fewer African-American students.  Is that "progress" within the meaning of the Standard?  What if it enrolls more students with disabilities, but fewer Hispanic students?  How is "progress" to be measured?  Why is it a preferable standard?

(2)  The proposals impose a substantial new burden on schools to collect and maintain data that will be both costly and time-consuming, and will almost certainly require schools to hire additional administrative staff (see esp. 206-3 and 206-4). This includes publishing "threshold data disaggregated by race, color, ethnicity, religion, national origin, gender, gender identity or expression, sexual orientation, age, disability, or military status" (several of these categories are new), plus requiring "quantitative and qualitative measures of campus climate and academic outcomes disaggregated" again by all the preceding demographic categories.  Wouldn't the money spent on these reporting requirements be better spent on financial aid, for example, that increased diversity?

(3)  Recommended actions that would demonstrate "progress...under the Standard" would include (206-5) "Diversity, equity, and inclusion training."   This raises two concerns.  First, there is evidence that such "training" is not effective, and can even be counter-productive.  Second, and even more seriously, such training will almost certainly violate the academic freedom rights of faculty at many (probably most) schools by demanding conformity to a particular ideology about "diversity," its meaning, and its value.  The ABA should not even be suggesting that schools violate the contractual and/or constitutional rights of faculty to academic freedom.  (There is a related problem with the mandatory "diversity statements" at certain public universities.)

(4) The proposal suggests making the new "diversity, equity and inclusion" standard a "core" standard, such that failure to comply with it would be grounds for public shaming of schools and ultimately loss of accreditation.   Given the uncertainties about what constitutes satisfaction of this standard, and the subjective judgments that will be necessary, it seems risky in the extreme to make it a "core" standard.

(5)  The proposed curricular reforms all relate to requiring law schools to "provide training and education to law students on bias, cross-cultural competency, and racism."   Moreover, law schools must provide this "training and education" at the start of law school and at least once before graduation!   This prompts a few questions and concerns:

(a)  What is "cross-cultural competency," and how is it taught?   The proposed changes contemplate, for example, that law schools might offer courses on "racism and bias in the law," but not on "cross-cultural competency and the law" (Interpretation 303(7)).   If cross-cultural competency is different than "racism" and "bias," what is it exactly?

(b) As with point (3), above, is there evidence that "training" in this domain is effective?  Before imposing a requirement like this, the burden should be on the ABA to establish, and not simply assume, that such training is possible and efficacious.

(c)  Why is the ABA singling out "race" rather than, say, "class," as the focal point for education and training?  It is a matter of lively dispute among scholars what role economic class, rather than race, plays in explaining patterns of police violence, for example.  Why is the ABA, which has no scholarly competence in this domain, mandating a particular position about which features of identity demand curricular attention?  Should this not be the provenance of schools and their faculties?

Congratulations to the University of Chicago Law School Class of 2021!

It's been a pleasure and a privilege to teach such talented young men and women, and I am sure I speak for all of my colleagues in wishing you much professional success and personal happiness in the years ahead!

The Yale Law School spectacle continues

What an embarrassment, mostly for Yale, but there's also a fair bit of myth-making (both about Rubenfeld and to a lesser extent Chua, and, again, about Yale).  I do suspect Heather Gerken's Deanship is not going to be long-lived.  A couple of excerpts:

Faculty members I spoke to have mixed feelings about it all. “There’s a weird schism among the students where they want the place to be utterly transparent and utterly equitable,” mused one who is sympathetic to that critique, “but they also want to keep the prestige and privilege that the place affords.” Three other professors told me that Chua is the victim of overzealous zoomers who have confused the natural hierarchy of achievement — and Chua’s right to favor whomever she wants — with a social-justice outrage. “There are a lot of mediocre students at Yale who were superstars in their little county fairs, and now they’re in the Kentucky Derby and they’re not winning their races and they feel like it’s unfair because other students are doing better,” says one faculty member who thinks the dean, Heather Gerken, was too deferential to students in how she handled the small-group affair...

Good to know what some Yale faculty think of their students!

“He [Rubenfeld] got hired in this way that was seen as the old boys’ network operating for a young man,” says one female colleague. Chua joined a decade later after, by her own account, bombing the interview and landing at Duke in the interim. Students at Yale Law School had begun to organize around the fact that there was only one woman of color on the tenure track, and they embraced Chua, who gamely threw herself into the mentoring and clerkship process.

Note the absurd and gratuitous dig at Duke.

Chua’s insecurity about her place at the law school has not been unfounded, though many of her colleagues seem awed by her public profile. “Jed is very much a figure in the intellectual life of the school,” says a male professor. “Amy, not at all. Has there ever been a more famous Yale Law professor than Amy Chua? No. On the other hand, she has no capital at the law school because she’s not an important scholar.” (She was an excellent party host, he conceded.)

Glad to see the faculty cattiness is not just reserved for the students, but also for colleagues.  (And Rubenfeld was "a figure in the intellectual life of the school"?)

At least six complainants had reported Rubenfeld’s excessive drinking, and six said they believed he had flirted with them. Collectively, they described speaking less in class; rearranging their course schedules to avoid Rubenfeld’s classes, even if they were interested in the topics; experiencing paranoia about getting close to other professors; and wondering whether they could cut it at Yale Law School. One said, “He repeatedly steered our conversations away from my paper toward my looks, my personal life, and things of a sexual nature.”

The Rubenfeld case is not the most serious case of possible sexual misconduct involving Yale Law faculty in the last twenty years, so it is ironic that it should land in the national media.  I suppose it all goes back to the "fame" Chua acquired in the wake of the embarrassing Tiger Mom book.

Congratulations to the University of Chicago alumni and Fellows who secured tenure-track positions this year

MOVING TO FRONT FROM APRIL 27--UPDATED

This was a tough year for job seekers, with fewer schools hiring and the entire process being carried out remotely, but happily all our candidates on the market succeeded in landing tenure-track jobs, most with multiple offers.  They are:

 

Emilie Aguirre who will join the faculty at Duke University.  She is currently the Dickerson Fellow at the Law School.   She received her J.D. from Harvard Law School in 2013, and also earned an LL.M. at Cambridge University.  She expects to receive her Ph.D. in Health Policy & Management from Harvard Business School shortly, where she is writing a dissertation on “Pairing Purpose and Profit.”   Prior to coming to Chicago, she was an Academic Fellow at the Resnick Center for Food Law & Policy at UCLA.   Her areas of teaching and research interest include corporate law and finance, securities regulation, contracts, health law, and food law. 

 

Evan D. Bernick’11 who will join the faculty at Northern Illinois University.  He is currently a Visiting Professor of Law and Executive Director of the Center for the Constitution at Georgetown University. He clerked for Judge Sykes on the U.S. Court of Appeals for the Seventh Circuit, and also served as a Visiting Legal Fellow at the Heritage Foundation and as Assistant Director of the Center for Judicial Engagement at the Institute for Justice.  His areas of teaching and research interest include constitutional law, administrative law, legislation, contracts, and torts.

 

Pedro Gerson '14 who will join the faculty at California Western School of Law. He is currently a Visiting Assistant Professor of Professional Practice at Louisiana State University.  He has also worked as an attorney at the Instituto Mexicano Para La Competitividad in Mexico City; a Law & Policy Fellow in the Office of the President of Mexico working in the National Digital Strategy Unit; and an Immigration Staff Attorney for the Bronx Public Defenders in New York.   His areas of teaching and research interest include immigration law, criminal law & procedure, comparative law, and administrative law.

 

Maria Macia '18 who will join the faculty at the University of Notre Dame.   She graduated with Honors from the Law School, where she was Articles Editor of the Law Review and also a Rubinstein Scholar.  She earned a Ph.D. in economics in 2019, also from Chicago, where she wrote a dissertation on "From Intent to Disparate Impact:  A Legal Standard's Effect on Lending Discrimination."  She clerked for Judge Andrew Hurwitz on the U.S. Court of Appeals for the Ninth Circuit, before becoming a VAP at Notre Dame.   Her areas of teaching and research interest include corporate law, corporate finance, and empirical legal studies.

 

Erin Lynn Miller who will join the faculty at the University of Southern California.  She is currently a Bigelow Fellow at the Law School.  She received her J.D. from Yale in 2013, where she was Lead Editor of the Yale Journal of Law & Policy, and her PhD in Politics (with a focus on political theory) at Princeton University in 2019.   She clerked for Judge Sidney Thomas on the U.S. Court of Appeals for the Ninth Circuit and has served as a Board Member of Connecticut for One Standard of Justice.  Her areas of teaching and research interest include constitutional law, criminal procedure, First Amendment, criminal law, and evidence.  

 

Hillel Nadler ’14 who will join the faculty at Wayne State University. He graduated with High Honors and Order of the Coif from the Law School, where he was Articles Editor of the Law Review, and also a Rubenstein Scholar.  He clerked for Judge Easterbrook on the U.S. Court of Appeals for the Seventh Circuit and was a tax associate for three years with Ropes & Gray in Boston.  More recently, he was a Senior Research Fellow at the Program on International Financial Systems, run by Harvard’s Hal Scott.   His areas of teaching and research interest include all aspects of tax (FIT, corporate, partnership, tax policy), as well as financial regulation.

 

Elizabeth A. Reese, who will join the faculty at Stanford University.  She is currently a Bigelow Fellow at the Law School.  She earned her J.D. cum laude from Harvard Law School in 2016, where she served on the Executive Board of the Harvard Civil Rights-Civil Liberties Law Review.  Before law school, she also earned an M.Phil. in Political Thought and Intellectual History from Cambridge University.  Before coming to Chicago, she clerked for Judge Wood on the U.S. Court of Appeals for the Seventh Circuit, worked as a Harvard Public Interest Litigation Fellow at the NAACP Legal Defense and Education Fund, and as an attorney and project manager at the National Congress of American Indians, both in Washington, DC.  Her areas of teaching and research interest include Indian law (both Tribal and Federal), constitutional law, federal courts, race & the law, and civil procedure.  

 

Ryan Sakoda who will join the faculty at the University of Iowa.  He is currently a Bigelow Fellow at the Law School.   He received his J.D. from Yale in 2012, where he was an editor of the Yale Law Journal, and M.Sc. in Economics in 2007 from the London School of Economics and a PhD in Economics from Harvard in 2017, with a dissertation on “Essays on Law, Economics, and Punishment.”  He worked for five years in the Public Defender Division in Boston, first as a Liman Public Interest Fellow, and then as a trial attorney.   His areas of teaching and research interest include criminal procedure, criminal law, law & economics/empirical legal studies, evidence, and contracts.

 

Peter N. Salib ’16 who will join the faculty at the University of Houston.  He graduated with High Honors and Order of the Coif from the Law School, where he was Senior Articles Editor of the Law Review.  He clerked for Judge Easterbrook on the U.S. Court of Appeals for the Seventh Circuit and practiced at Sidley & Austin in Chicago for two years before becoming a Climenko Fellow at Harvard. His areas of teaching and research interest include civil procedure, constitutional law, law & economics, law & technology, and federal courts.

 

David Schraub ’11 who will join the faculty at Lewis & Clark.  He graduated with High Honors from the Law School, where he was Articles Editor of the Law Review.  He was a VAP at the University of Illinois, clerked for Judge Diana Murphy on the U.S. Court of Appeals for the Eight Circuit, and was an associate at Covington & Burlington in Washington, D.C. He will get a Ph.D. in political science from the University of California, Berkeley this year, with a dissertation on "Hard Thoughts and Safe Spaces:  Dilemmas of Deliberation, Dismissal, and Democracy." His areas of teaching and research interest include constitutional law, anti-discrimination law, law and religion, and energy law.

 

You can see a list of last year's placements here, and a complete list of the several hundred Chicago Law alumni in teaching here.