Brian Leiter's Law School Reports

Law school application season: total applicants down slightly, high-end LSAT scores down more

Blog Emperor Caron reports on the state of the law school application season about one-third of the way through.  Given how strong last year's applicant pool was, this slightly downturn (if it holds) should not be of great concern to the vast majority of law schools.

McCarthyist accusations deployed against law professor in Confirmation hearing (Michael Simkovic)

Cornell Law School professor (and former Davis Polk financial institutions group lawyer) Saule Omarova, was nominated by President Biden to head the Office of Comptroller of the Currency, which regulates nationally chartered banks.  Omarova is a progressive scholar of financial regulation who has written about the possibility of increased public provision of financial services, including a National Investment Authority to help finance infrastructure projects.

Such public financial institutions might sometimes compete with private financial institutions, much as public universities and k-12 schools take some business away from private universities and private schools, and as public transit takes some business away from car companies. Omarova's advocacy for public options, and some of Omarova's critiques of private financial institutions, have made her a target.

During Omarova's Senate confirmation hearing, her critics resorted to name calling and nationalist dog-whistles, with Republican Senators accusing her of being a "radical" and a "comrade" (i.e.,  a communist) out to "end banking as we know it" in part because she emigrated from a central asian country that was once part of the Soviet Union.

In what seemed like an anachronism from the worst days of the 1950s, Omarova felt compelled to defend herself by saying: “I am not a communist. I do not subscribe to that ideology. I could not choose where I was born . . . My family suffered under the communist regime.”

The Financial Times has the full story.

Senators are of course free to take exception with Omarova's proposals for an NIA or publicly backed electronic payments systems, or to disagree with her advocacy for robust financial regulation, but accusing her of being a communist is beyond the pale. 

UIC's John Marshall Law School should lose its accreditation if it continues with this "witch hunt" against a faculty member

Professor Andy Koppelman (Northwestern) comments at CHE (do read the full account):

In January the University of Illinois at Chicago’s School of Law disgraced itself with its foolish persecution of Jason Kilborn, a professor who was accused of racism for asking students to address an ordinary hypothetical, of a kind they are likely to encounter in normal legal practice. That episode has now ballooned into calls for his firing, with an ill-informed Rev. Jesse Jackson leading protests against him. And the university, while it refuses to fire Kilborn, is continuing to punish him for things it knows he didn’t do.

 

The trouble started when, in a “Civil Procedure” exam, Kilborn asked whether a hypothetical company, sued for discrimination, must disclose evidence to the plaintiff. In the test’s scenario, a former employee told the company’s lawyer “that she quit her job at Employer after she attended a meeting in which other managers expressed their anger at Plaintiff, calling her a ‘n____’ and ‘b____’ (profane expressions for African Americans and women) and vowed to get rid of her.” The exam did not spell out those words, which appeared exactly as you just read them. (This was just one of the test’s 50 questions.)

Lawyers face such situations all the time. The question was entirely appropriate. One student, however, declared that, on seeing the sentence, she became “incredibly upset” and experienced “heart palpitations.” The Black Law Students Association demanded that Kilborn be stripped of his committee assignments, denounced him on social media, and filed a complaint with the university’s OAE (Office for Access and Equity)....

 

On February 17 the OAE sent Kilborn a notice of “investigation into allegations of race-based discrimination and harassment.” Evidently someone had been collecting such allegations, because there were many new ones...[including] “referring to racial minorities as ‘cockroaches.’” Because the notice said nothing about when he was alleged to have said that, it was impossible to respond.

 

The “cockroaches” claim has since become the central grievance against Kilborn. It is provably false. The OAE’s previously confidential “Investigation Report,” newly released in response to an Illinois Freedom of Information Act request by The Chronicle’s Emma Pettit, shows that the OAE understood that the “cockroaches” allegation never had any substance — and that the report released to Kilborn and the complainant (which became public months ago) was misleading on that crucial point.

 

The OAE botched its investigation of Kilborn. It repeatedly cited as “harassment” conduct that no reasonable person could regard as harassment. It enumerated charges without offering evidence. And it essentially found that he had violated the school’s discrimination policy by protesting his own earlier mistreatment.

Something is very wrong at UIC and its John Marshall Law School.

Two Yale law students sue Yale and various Deans...

...for their actions during L'Affaire Chua.   The full complaint is here.  As paragraph 21 notes, the absence of grades at Yale "means that Yale Law School students are in high competition over non-grade signifiers of merit."  How much this competition has to do with "merit" is questionable, of course.  Coming on the heels of the "Trap House Affair" (and the earlier expose of the class divide), this has not been a good year for Yale Law School.

ADDENDUM:  A comparison of allegations about administrator conduct in the two cases.

 

10 Most-Cited Election Law Faculty in the U.S., 2016-2020

Based on the latest Sisk data, here are the ten most-cited law faculty working in election law in the U.S. for the period 2016-2020 (inclusive) (remember that the data was collected in late May/early June of 2021, and that the pre-2021 database did expand a bit since then).  Numbers are rounded to the nearest ten.    Faculty for whom roughly 75% or more of their citations (based on a sample) are in this area are listed; others with less than 75% of their citations in this field (but still a plurality) are listed in the category of "other highly cited scholars who work partly in this area." 

Election Law

Rank	Name	School	Citations	Age in 2021
1	Samuel Issacharoff	New York University	830	67
2	Richard Pildes	New York University	790	64
3	Richard Hasen	University of California, Irvine	750	57
4	Heather Gerken	Yale University	620	52
5	Richard Briffault	Columbia University	530	67
6	Nathaniel Persily	Stanford University	320	51
7	Nicholas Stephanopoulos	Harvard University	290	41
8	Michael Kang	Northwestern University	240	48
9	James Gardner	University at Buffalo, State University of New York	220	62
10	Daniel Tokaji	University of Wisconsin, Madison	210	54
	Runner-up for the top 10
	Justin Levitt	Loyola Law School, Los Angeles	200	47
	Other highly cited scholars who work partly in this area
	Samuel Bagenstos	University of Michigan	540	51
	Adam Cox	New York University	390	47

Simon Lazarus YLS '67 on "Where Yale Law School Has Gone Off the Rails, and What is Needed to Get It Back on Track"

Mr. Lazarus is a 1967 graduate of Yale Law School and a distinguished lawyer who served as associate director of President Jimmy Carter’s White House Domestic Policy Staff, and since then with private and public-interest law firms in Washington, D.C.  He kindly gave permission to share with readers his penetrating analysis of Yale's mishandling of the "Trap House Affair" and how to now make things right:  Download 11.9.2021 memo on the Trap House Affair.  Do read the whole memo, but here is an excerpt to give the flavor:

What now is most baffling is the YLS administration’s defiant, defensive crouch response to the widening public criticism – batting away the smoking-gun-studded factual record, as “partial facts” in a “charged media environment,” and attempting to deflect criticism by announcing an “assessment” by Deputy Dean Ian Ayres, “to help us move forward.”  Refusing to address publicly available facts, and trivializing, as media hype, outrage from a Pulitzer Prize winning Washington Post columnist, a Post Deputy Editorial Page Editor, and distinguished academics – will not stem this tide. Nor will Dean Gerken’s passing the buck to a subordinate.  

To change course, Dean Gerken and her staff must (be persuaded to) acknowledge what’s gone wrong, and credibly redirect YLS to restore its stature as a bastion of basic rule of law and Bill of Rights-compatible principles. Cosgrove’s and Eldik’s actions did not, as Dean Gerken seemed to suggest in her most recent public statement, reflect an attempt to resolve tension between competing of principles, i.e., free expression versus civility.  On the contrary, their conduct constituted a flagrant abuse of power, pure and simple. In a nutshell, as The Atlantic’s Fridersdorf cogently put it, "Irrespective of whether the invitation was racially offensive, the behavior of Yale Law's diversity bureaucrats was unethical, discreditable, and clearly incompatible with key values that the elite law school purports to uphold." That is what Dean Gerken needs to acknowledge, and rectify.  Specifically, that means:

 

1^st, Dean Gerken must disavow the mass email condemning the student Trent Colbert. The dean must acknowledge that it was a grave error, substantively inaccurate and procedurally unfair, for Associate Dean Cosgrove and Diversity Director Eldik, to send their September 16 email to the entire YLS student body, “condemn[ing] in the strongest possible terms,” Colbert’s party invitation, for “containing pejorative and racist language,” and asserting further that they were “addressing this.”  Cosgrove and Eldik sent this blast email, because, after meeting earlier that day with them, Colbert had not agreed to sign a mea culpa apology letter outlined, indeed, drafted for him by Eldik. In fact, the student’s allegedly inculpatory party invitation was, as the administrators acknowledged in their meeting with him, neither intended to be pejorative or racially suggestive, nor did the sender have any reason to expect that its language would be so construed. It does not matter whether the complainants had reason for offense, from their vantage point, nor which side’s account of their mutual interactions was more truthful.  Sending out any such letter “condemning” one party to a dispute among students, with no notice to that student or fair opportunity to defend, belied the administration’s claim to be a neutral or fair mediator. 

20 Most-Cited Administrative and/or Environmental Law Faculty in the U.S., 2016-2020

Based on the latest Sisk data, here are the twenty most-cited law faculty working in administrative and/or environmental law in the U.S. for the period 2016-2020 (inclusive) (remember that the data was collected in late May/early June of 2021, and that the pre-2021 database did expand a bit since then).  Numbers are rounded to the nearest ten.    Faculty for whom roughly 75% or more of their citations (based on a sample) are in this area are listed; others with less than 75% of their citations in this field (but still a plurality) are listed in the category of "other highly cited scholars who work partly in this area." 

Administrative and/or Environmental Law

Rank	Name	School	Citations	Age in 2021
1	Richard Revesz	New York University	750	63
2	Gary Lawson	Boston University	720	63
3	Gillian Metzger	Columbia University	700	56
4	Jody Freeman	Harvard University	680	57
5	Jonathan Adler	Case Western Reserve University	640	52
	Richard J. Pierce, Jr.	George Washington University	640	78
7	Richard Stewart	New York University	590	81
8	Lisa Bressman	Vanderbilt University	560	55
9	J.B. Ruhl	Vanderbilt University	530	63
10	Richard Lazarus	Harvard University	520	67
11	Cary Coglianese	University of Pennsylvania	460	57
12	Kristin Hickman	University of Minnesota	440	51
	Christopher Walker	Ohio State University	440	40
14	Anne Joseph O’Connell	Stanford University	410	51
	Jim Rossi	Vanderbilt University	410	56
16	Robert Glicksman	George Washington University	390	69
	Thomas O. McGarity	University of Texas, Austin	390	72
18	Sidney Shapiro	Wake Forest University	380	74
19	Jack Beermann	Boston University	370	63
	Michael Livermore	University of Virginia	370	42
		Other highly-cited scholars who work partly in these areas
	Thomas Merrill	Columbia University	1380	72
	Adrian Vermeule	Harvard University	1280	53
	Daniel Farber	University of California, Berkeley	1100	71
	Edward Rubin	Vanderbilt University	580	73
	Matthew Stephenson	Harvard University	500	47

"Alan Dershowitz Chair in Public Outreach"

At Harvard Law School, no less:

THE HARVARD LAW SCHOOL invites applications for the position of Alan Dershowitz Chair in Public Outreach. Position will commence August 2022. The Law School welcomes applications from scholars in all subject areas of the law.  However, knowledge of the law is not required.

Strong applicants must be willing to seek media attention, and take positions that may seem outlandish or wild to skilled observers in the legal community. In fact, we fully expect the ideal candidate to trade on any scholarly reputation they might have in enhancing their notoriety as media attention is constantly thrust at them. The more outlandish the theories, the better. We need people talking about our faculty, too. And we don’t offer dinner parties.

There is no expectation that the Chair will publish. The only requirement for the position is that the Chair say outlandish things. However, outlandish op-eds, blog posts, and tweets are highly recommended.

10 Most-Cited Labor and/or Employment Law Faculty in the U.S., 2016-2020

Based on the latest Sisk data, here are the ten most-cited law faculty working in labor and/or employment law (including employment discrimination) in the U.S. for the period 2016-2020 (inclusive) (remember that the data was collected in late May/early June of 2021, and that the pre-2021 database did expand a bit since then).  Numbers are rounded to the nearest ten.    Faculty for whom roughly 75% or more of their citations (based on a sample) are in this area are listed; others with less than 75% of their citations in this field (but still a plurality) are listed in the category of "other highly cited scholars who work partly in this area."  (Thanks to Professors Bradley Areheart, Matt Bodie, and Orly Lobel for help in thinking about the contours of this specialty and identifying relevant scholars; mistakes are mine!)

Labor and/or Employment Law

Rank	Name	School	Citations	Age in 2021
1	Samuel Bagenstos	University of Michigan	540	51
2	Orly Lobel	University of San Diego	500	48
3	Cynthia Estlund	New York Universitiy	400	64
4	Catherine Fisk	University of California, Berkeley	390	60
5	Samuel Estreicher	New York University	340	73
6	Pauline Kim	Washington University, St. Louis	310	59
7	Michael Selmi	Arizona State Unviersity	290	60
8	Matthew Bodie	Saint Louis University	250	52
9	Ann McGinley	University of Nevada, Las Vegas	230	63
	Benjamin I. Sachs	Harvard University	230	50
	Other highly cited scholars who work partly in these areas
	Richard Epstein	New York University	1740	78
	Christine Jolls	Yale University	460	54
	Joan Williams	University of California, Hastings	370	69
	Angela Onwuachi-Willig	Boston University	300	48
	James Brudney	Fordham University	280	71

 

10 Most-Cited Legislation/Statutory Interpretation Law Faculty in the U.S., 2016-2020 (CORRECTED)

Based on the latest Sisk data, here are the ten most-cited law faculty working on legislation (understood broadly to include statutory interpretation and study of the legislative [e.g., Congressional] process) in the U.S. for the period 2016-2020 (inclusive) (remember that the data was collected in late May/early June of 2021, and that the pre-2021 database did expand a bit since then).  Numbers are rounded to the nearest ten.    Faculty for whom roughly 75% or more of their citations (based on a sample) are in this area are listed; others with less than 75% of their citations in this field (but still a plurality) are listed in the category of "other highly cited scholars who work partly in this area."  (Thanks to Professors Ryan Doerfler and Daniel Rodriguez for help in thinking about the contours of this specialty and identifying relevant scholars; mistakes are mine!)

Legislation (including statutory interpretation and legislative process)

Rank	Name	School	Citations	Age in 2021
1	John Manning	Harvard University	960	60
2	Abbe Gluck	Yale University	710	46
3	Matthew Stephenson	Harvard University	500	47
4	Victoria Nourse	Georgetown University	350	62
5	Lawrence Solan	Brooklyn Law School	250	69
6	Daniel Rodriguez	Northwestern University	220	59
7	Josh Chafetz	Georgetown University	190	42
	Jane Schachter	Stanford University	190	63
9	Aaron-Andrew Bruhl	College of William & Mary	180	43
10	Anita Krishnakumar	Georgetown University	140	46
	Other highly cited scholars who work partly in this area
	William Eskridge	Yale University	2160	70
	Lisa Bressman	Vanderbilt University	560	55
	Caleb Nelson	University of Virginia	540	55
	Jacob Gersen	Harvard University	390	48
	Ethan Leib	Fordham University	310	46