Brian Leiter's Law School Reports

An open letter regarding a controversial tenure decision at USC Law

The letter is here, and includes many prominent signatories (the letter is accepting more signatories as well).  The case concerns Shmuel Leshem, who was denied tenure in 2013; the controversy concerns the solicitation and use of confidential journal referee reports as part of the tenure process.  I would agree, for the reasons given in the letter, that that is not a proper use of such referee reports.  I do not know what role they played in the adverse tenure decision at USC, but the fact that they were even solicited and considered is surprising.

Van Horn discusses the legacy of corporate funding for the "Chicago School" of law & economics (Michael Simkovic)

Pro-market, a blog at the Stigler Center at the University of Chicago Booth School of Business, recently published a retrospective by Robert Van Horn discussing the early financial and intellectual ties between the Chicago school of law and economics and powerful corporate interests, and the controversy such ties engendered.  The University of Chicago's work on anti-trust law is often credited with facilitating a waive of M&A, permissive review, and the rise of large corporations and reduced government efforts to regulate them.

It should  be noted that the fact that corporations funded scholarship which supported free-market policies that were in corporate interests does not by itself mean that the scholarship or policies were per se flawed or contrary to social welfare--the answer to that question ultimately turns on the substantive merits. Nor should a scholar changing his views in response to contradictory empirical evidence be attributed to nefarious motives.

It may, however, suggest that certain ideas and perspectives are more heavily funded than others. In a match that is intellectually close to even, or perhaps even where one sides views may more closely reflect reality, funding may tip the balance.

Robert Van Horn, Corporations and the Rise of the Chicago Law and Economics Movement, Pro-Market, January 15, 2020:

 

"From its birth in 1946 onward, corporations made possible and crucially supported the rise of the Chicago law and economics movement. Aaron Director, who at one point had advocated for curbing corporate power and vigorously enforcing antitrust law, spearheaded the effort to create a [more corporate friendly]“new liberalism.”. . .

[Chicago Professors] Wallis, Aaron Director, and Milton Friedman all gave lectures on the topic of “Conservative Economics” to businessmen. 

In the months that followed their lectures, businesses sent numerous laudatory letters. The Volker Fund, the Foundation for Economic Education, the Rockefeller Building, the Chamber of Commerce, Wealth Incorporated (NYC), and others requested copies of their lectures. Unsolicited copies were mailed to corporations, such as Standard Oil of Indiana, and periodicals such as The Wall Street Journal, which published an abridged version of Wallis’s lecture. Presently appreciative letters arrived in response to the mass mailing. General Motors, Sunkist, and Kellogg were among those that expressed gratitude, and some corporations requested to know more about “conservative economics.” 

From the time of its birth in 1946, there has been a dynamic, mutually beneficial relationship between the Chicago law and economics movement and corporations. The close relationship between Chicago law and economics and the corporate world began when Aaron Director returned to the University of Chicago to lead the Free Market Study (1946-1953)—or the “Hayek Project,” as Henry Simons and Wilber Katz (then Dean of Chicago Law School) called it—and work in the Chicago Law School.

From 1946 throughout the 1950s, corporations made possible and crucially supported the rise of Chicago law and economics through funding and advice, and corporations praised scholarly publications of Chicago law and economics that championed a free market economy. They especially extolled those that challenged the status quo antitrust positions of many government officials and economists that undermined corporate power. 

The Free Market Study examined the legal foundations of capitalism and sought to create a reconstituted [libertarian] liberalism to countervail [progressive economics], giving birth to Chicago “neoliberal” ideas in the early 1950s. Milton Friedman self-referentially used the term “neoliberalism” in 1951. Reflecting later on why the Chicago Law School agreed to the “Hayek Project,” Director asserted: “It was…decided that Chicago was the only place that was likely to accept such a project, and it was also decided that the law school was the only part of the University of Chicago that would accept such a project.”

Once the Free Market Study got underway in the fall of 1946, its members convened regularly to debate how to reconstitute liberalism and create a competitive order and thereby counter collectivism. In a New York Times interview, Director indicated that one criterion for assessing the success of the Free Market Study was its ability to exert political pressure to engender policy change. . ..

[Chicago] saw antitrust law as a centerpiece of the investigation of the legal foundations of capitalism. . . .

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Judge erases 200K+ in student loan debt for 2004 law school graduate

Interesting story.

On look-see visits

A pleasingly candid account of one scholar's experience, by Tess Wilkinson-Ryan (Penn).   When I visited at Chicago in Autumn 2006, my kids were 10, 7 and 4, and they, and my wife (who was practicing law in Austin), stayed in Austin, and I commuted roughly every other week back to Austin.  (My father lived nearby in Austin, which sure helped in this situation!)   It was an ordeal, but the nice thing about the quarter system is it was a short-lived ordeal.

Puff piece on "Law School Transparency" at Bloomberg Law

This is pretty thin.  I spoke to the reporter for a half hour, pointing out that the key turning point for transparency was when the ABA mandated better reporting of emplyment data by schools after getting pressure from Senators Boxer and Coburn back in 2010-11.   None of these facts made it into the article, because the reporter had already decided, I guess, to do a puff piece on LST (which, to be honest, I didn't realize still existed until she called me).   The reporter was puzzled that law school Deans say almost nothing about LST; I pointed out the obvious reason:  because it's irrelevant, in a way the ABA is not.

(The last I recall hearing about LST was when they tried to "shakedown" law schools back in 2013.)

 

 

Reforming publication in the student-edited law reviews

Professor Brian Galle (Georgetown) shares a draft proposal from the AALS Section on Scholarship.  The current system is a disaster and absurd, so I hope some version of this gets traction.

Wealthy Penn Law alumnus protests treatment of Amy Wax

He's partly right, and partly very wrong and confused about academic freedom.  He's correct that it is part of the Kalven Report's vision of the university that it is not the job of administrators to take sides on substantive questions addressed by faculty; this is why I objected to Dean Ruger's criticism of Professor Wax's (admittedly idiotic and insulting) statements about immigration.   (I get to express my opinion because I'm not her Dean or Provost etc.)    However, it's absurd to think that "academic freedom" protects a faculty member's right to denigrate the competence of an identifiable segment of the student body at her school, as Professor Wax did.  Professor Wax, like any faculty member, is free to dispute the merits of affirmative action in admissions; she is not free, however, to disclose the academic performance of her students.  As I noted at the time, Dean Ruger's sanction (removing Professor Wax from a mandatory 1L course) was a mild one; he would have been justified in adopting more severe sanctions.  Given this alum's confused understanding of academic freedom (not to mention student privacy), it is probably just as well he is no longer involved in university governance.

Nobel Prize winners explain how ideology/theory blinded economics (Michael Simkovic)

The Financial Times recently published an excellent profile of Esther Duflo, a French economist who shared the Nobel Prize in Economics with two of her co-authors for pioneering empirical work using field experiments (randomized controlled trials) to evaluate the effectiveness of social policies and the effects of taxation.  Over the last several decades, economics has evolved from a largely theoretical field, which from the 1960s to 1980s at times resembled conservative political assumptions restated in mathematical formulae (see, e.g., here, here, here, here, here, here, and here), into a largely empirical field more akin to science.  Law & Economics has followed, albeit more slowly.

From the FT:

“Duflo’s drive to spread the use of RCTs reflects her original motivation for entering economics — a deep-seated belief that research can influence policy. . . .

 

Duflo believes her research on what drives behaviour in poor countries carries important lessons for governments in the rich world. She also believes strongly that economists need to speak out more — if people distrust experts, it is partly because the best academics, wary of being misinterpreted, are leaving the field to ideologues and pundits.

 

Duflo and [her co-author] Banerjee contend that, in reality, people do not necessarily move to the best jobs, or invest in the most productive businesses; nor is there any evidence they work less in response to higher taxes. They care about many things — health, self-respect, clean air — more than they do about maximizing per capita GDP, an elusive goal that may no longer be the right priority for policymakers in the developed world. . . .     For her, the priorities in the US would include . . . a huge investment in early-years education, to create high-status jobs ‘that no robot is ever going to come to take’.

 

Duflo believes that an excessive faith in financial incentives is one of the big things mainstream economics got wrong. ‘You can see the long shadow of that misconception in our thinking on trade, in our thinking on taxation . . . in our thinking on social programmes.’

 

Although a reassessment is now under way, Duflo is critical of her profession’s reluctance to accept evidence that did not fit with accepted theories. She cites the example of Petia Topalova, an IMF economist whose early work at MIT showed poverty reduction was slower in areas of India that were more exposed to trade. Topalova’s conclusion — on the need to compensate losers from globalization — now seems self-evident. At the time, however, her paper was greeted with near-universal scorn — and she was forced to seek a career outside academia.

 

‘I wish I could say for sure that something like that would not happen again, but it might, with another blind spot,’ Duflo says. This failure on the part of economists to question their assumptions reflected cultural problems . . .

 

Duflo’s main message, though, is that economists — for all their flaws — have something to contribute.  ‘A focus on the right policies can make an enormous amount of progress. When I feel low, that’s what I think about.’ ”

Cracks in the Section 230 firewall for Internet service providers

This is good news for those of us who think Section 230 is an unmitigated disaster, responsible for the currently depraved state of cyberspace.

Are "transformative gifts" really transformative?

Law.com has a list of naming gifts to law schools over the last few decades, with the majority coming in the last two decades.  Here are the biggest gifts, by year:

    1998:    $115 million to the University of Arizona

    2001:    $30 million to Ohio State University

    2001:    $30 million to the University of Utah

    2008:    $35 million to Indiana University, Bloomington

    2011:    $30 million to the University of Maryland

    2013:    $50 million to Chapman University

    2014:    $50 million to Drexel University

    2015:    $100 million to Northwestern University

    2016:    $30 million to George Mason University

    2019:    $50 million to Pepperdine University

    2019:    $125 million to the University of Pennsylvania

For some of these gifts, it's too soon to say what their effects will be, and some of them served more, one suspects, to help newer schools stay afloat and continue to grow during tough times (e.g., Chapman, Drexel). On the other hand, George Mason's gift has already resulted in a lot more hiring by that school.   But Ohio State, Utah, and Indiana all seem to be roughly where they were at the time of the gifts:  strong state flagships, neither much better, and certainly not worse.   The same goes for the most remarkable gift of them all, the one to Arizona, much lauded at the time.   I gather a good chunk of that gift went to bricks and mortar, rather than expanding the size of a fairly small faculty.  Northwestern's more recent major gift was followed a few years later by belt-tightening anyway.

It remains to be seen whether any of these gifts will really change the strength and status of any of these schools.  In ten years, we'll probably have a clearer idea of the impact given how recent many of the largest gifts are.