April 10, 2020
The Great Recession of 2008 (which we might mark from the collapse of Lehman in September of that year) was followed by increased law school enrollment for the first two years, and fairly normal law school hiring. The turning point came in 2011-12, with David Segal's New York Times series in 2011-12 which, notwithstanding, a lot of inaccuracies, made the debacle of the legal job market common knowledge, as well as Senators Coburn and Boxer pressuring the ABA to force law schools to report job statistics more accurately. That's when the collapse in law teaching jobs began in earnest because of the collapse in applicants to law school. Prior to the collapse, 150 to 160 new assistant professors of law were hired each year in the U.S.; at the lowest point, that number dropped to about 55. It has crept back now to the 80s or 90s now, at the same time that fewer candidates have entered the law teaching market (this year there were fewer than 400 candidates, compared to 700 or 800 in better times).
We are about to enter at least a Great Recession and maybe worse, due to the coronavirus pandemic (barring a medical breakthrough in the coming months). Recessions usually send people back to school, including law school, as we saw in 2008. Since LSAC has figured out how to keep testing, we'll find out soon how the 2020-21 application pool is shaping up. I expect it to continue the trend of recent years of increasing applications. If so, that means, despite the hiring freezes, or quasi-freezes, that many schools have announced (almost always with provisions for exceptions), that there will be hiring by law schools next academic year. (Even in a hiring freeze or slowdown, different units at a university will be treated differently depending on their finances. This will generally favor law schools.) If the general legal job market undergoes a significant retraction, as it did in the years after 2008, that will change the picture, but it won't do so right away.
So while 2020-21 won't be as robust a market for new law teachers as 2019-20 has been, my initial forecast was that it should still be a decent year (especially if the increase in applicants continues).
One additional data point has me a bit more concerned, however, about 2020-21, although it will affect different law schools very differently. There is likely to be a plunge in international students coming to U.S. law schools: some will not be able to travel because of restrictions imposed by their countries; some will not be able to travel because of US-imposed restrictions; and some will be unwilling to come to the U.S. for further education because of the obvious incompetence of the federal government in managing this crisis (many states have done much better, of course, but that's likely to be less well-known by foreign students). There are many law schools (including some elite ones) that are highly dependent on LLM tuition revenue from international students. Schools heavily dependent on international students will be in trouble and thus less likely to be hiring next year, even if their domestic JD applications hold up or increase.
In any case, the first indicators to watch are the LSAT testing volumes, which we should learn about in June. If they are strong, that will bode well for 2020-21. The second indicator to watch is travel restrictions, both those the U.S. imposes on other countries, and those other countries impose on travel to the U.S.
April 08, 2020
...that will involve remote proctoring. Bar examiners may need to take note of this approach, but kudos to LSAC for coming up with a solution in a timely way. My guess is this will be the new form of the LSAT for the coming year. This is important too because it will allow law schools to gauge demand, which, in turn, will affect their hirng plans. (Recall that after the 2008 Great Recession, law school enrollments went up for two more years, before the downturn began after the ABA mandated better reporting on job outcomes.) I'll have more to say about what law school hiring next year may look like soon.
April 02, 2020
[O]ne can imagine an illiberal legalism that is not “conservative” at all, insofar as standard conservatism is content to play defensively within the procedural rules of the liberal order.
This approach should take as its starting point substantive moral [sic] principles that conduce to the common good, principles that officials (including, but by no means limited to, judges) should read into the majestic generalities and ambiguities of the written Constitution. These principles include respect for the authority of rule and of rulers; respect for the hierarchies needed for society to function; solidarity within and among families, social groups, and workers’ unions, trade associations, and professions; appropriate subsidiarity, or respect for the legitimate roles of public bodies and associations at all levels of government and society; and a candid willingness to “legislate morality”—indeed, a recognition that all legislation is necessarily founded on some substantive conception of morality [even wrong ones, apparently!], and that the promotion of morality is a core and legitimate function of authority...
[C]ommon-good constitutionalism does not suffer from a horror of political domination and hierarchy, because it sees that law is parental, a wise teacher and an inculcator of good habits. Just authority in rulers can be exercised for the good of subjects, if necessary even against the subjects’ own perceptions of what is best for them—perceptions that may change over time anyway, as the law teaches, habituates, and re-forms them. Subjects will come to thank the ruler whose legal strictures, possibly experienced at first as coercive, encourage subjects to form more authentic desires for the individual and common goods, better habits, and beliefs that better track and promote communal well-being....
The Court’s jurisprudence on free speech, abortion, sexual liberties, and related matters will prove vulnerable under a regime of common-good constitutionalism. The claim, from the notorious joint opinion in Planned Parenthood v. Casey, that each individual may “define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life” should be not only rejected but stamped as abominable, beyond the realm of the acceptable forever after. So too should the libertarian assumptions central to free-speech law and free-speech ideology—that government is forbidden to judge the quality and moral worth of public speech, that “one man’s vulgarity is another’s lyric,” and so on—fall under the ax. Libertarian conceptions of property rights and economic rights will also have to go, insofar as they bar the state from enforcing duties of community and solidarity in the use and distribution of resources.
One hopes this does not mark the arrival of a "Harvard School" of constitutional fascism!
April 01, 2020
...since she has unnecessarily humiliated a member of her faculty and violated his academic freedom. I don't often agree with Eugene Volokh (UCLA), but I agree with his criticism of the Dean's handling of this situation. (For earlier discussion of these issues, involving another Dean who did not understand his obligations, see here.)
March 30, 2020
Would triage plans for the use of ventilators (etc.) that favored those who were younger and healthier violate civil rights law?
March 25, 2020
Some law schools (including some that didn't have real grades to start with) have switched officially to pass/fail as classes move online; others have not. Law professor Jonathan Adler (Case Western) argues against switching to P/F, while Noah Zatz (UCLA) argues in favor. My own view is that it probably depends on the school and the course, and that there is no "one size fits all" answer. (An example: I can imagine a school switching a course to P/F for all students if the instructor falls ill for several weeks; or a school might allow students afflicted with illness or caregiving responsibilities to switch to P/F as needed.) I will note that the economic fallout from the pandemic will almost certainly affect law firm hiring significantly, meaning that actual grades will be more important for students than before (again, how important will depend on the school, but we know from the Great Recession of 2008 that all schools will be affected, even if to differing degrees). Mandatory P/F may hurt some students if they are competing against students from schools that continued to grade.
UPDATE: I'm told that many students at Harvard Law School objected when the Dean announced they were switching to P/F.
March 21, 2020
March 20, 2020
March 19, 2020
The UCLA Federalist Society had the temerity to invite Professor Doriane Lambert Coleman from Duke Law School, a former competitive female athlete who has written carefully and thoughtfully about the complex issues raised by the participation of trans women in female sports (see, e.g., this article). The UCLA Law School chapter of the NLG decided to disrupt the event, apparently wholly unaware of the NLG's traditional staunch support for academic freedom, most famously during the Mcarthy era, but continuing to the present. As the former faculty advisor to the NLG chapter at the University of Texas, I decided to point out their betrayal of NLG principles on Twitter; I was then derided as a "neoliberal white man" by these law students (and then subjected to a bizarre defamatory outburst by one Stephano Medina, who also turns out to be a UCLA 3L and not, as I had thought, a creepy teenage boy in his mother's basement). What an embarrassment.