Brian Leiter's Law School Reports

Law review publication contracts with unreasonable terms

Another reason not to publish in student-edited law reviews, I guess.

Penn faculty hearing board recommended sanctions for Amy Wax last summer; she is appealing

MOVING TO FRONT FROM FEBRUARY 24--SEE UPDATE

The recommended sanctions consist in "a one-year suspension at half pay, the removal of her named chair and summer pay, and a requirement for Wax to note in public appearances that she is not speaking on behalf or as a member of Penn Carey Law."  Only the last requirement (that she make clear she does not speak for the law school) is unproblematic.  It is unclear at this stage what precise "behavior" prompted the other sanctions, but it seems almost certain that Penn is punishing her for her offensive extramural speech, which is protected by her academic freedom rights.  (As I have noted before, only two incidents could, in principle, be sanctioned consistent with her academic freedom rights:  her denigration of the competence of an identifiable segment of the Penn student body [which was already sanctioned by then Dean Ruger]; and her invitation of a racist know-nothing to a law school class.  I strongly suspect the sanctions were not confined to these incidents.)

If Professor Wax loses her appeal, I would expect her to sue for breach of contract.

UPDATE:   Here is the letter from the "Hearing Board" to former President Magill regarding Professor Wax.  The only portion that isn't obviously outrageous is the section on violations of student privacy (although Professor Wax's attorney also disputes that in the appeal.)  The rest of the letter was written by someone with no knowledge of the law of academic freedom.   Almost all the evidence of "unprofessional" conduct involves extramural speech, which is not covered by the standards applicable in professional scholarship or pedagogy:   this is just a breathtaking confusion about core AAUP academic freedom principles, which vitiates almost the entire letter.   (Much of the evidence in Appendices 2 and 3, by the way, was not confirmed by the independent investigator retained by former Penn Law Dean Ruger [see item #3 here], yet is repeatedly invoked in the letter.)  (Thanks to Ed Rock for the pointer.)

(Here are the members of the Hearing Board.  Professor Wax's appeal, above, reports that Penn law professor Anita Allen addressed the Hearing Board; unfortunately, her views on academic freedom under the AAUP standards are also completely mistaken.  If they influenced the Board, this will be another disaster for Penn when this lands in court.)

More on SCOTUS clerks and academia

A propos yesterday's post about the new half-million dollar signing bonuses for SCOTUS clerks and Professor Gordon's suggestion that this probably explains why we seem to be seeing fewer former SCOTUS clerks on the academic job market, Professor Sarah Lawsky (Northwestern) shared this useful graphs based on the data she collects on the rookie job market:

Obviously the total numbers are small, but it's clear there are fewer clerks taking law teaching jobs in the last few years than a decade ago.

 

Tom Ginsburg (Chicago) on Claire Finkelstein's (Penn) call to repress pro-Palestinian speech on campus

This is apt:

Professor Finkelstein is the latest in a long line of academics, from both the left and right, calling for the repression of campus speech they don’t like. Her position is the logical outgrowth of our era, in which students’ feelings take priority, and the use of terms like “violence” and “safety” have lost any connection with their traditional uses. Violence is what is happening in Gaza, while American universities are among the safest places on the planet.

Our universities, with their ever-large bureaucracies, have encouraged rhetorical drift, but in doing so, have undermined one of their core missions—to prepare students as citizens of a plural, democratic society in which they will encounter opinions with which they strongly disagree. In the United States, with the First Amendment, this means that even private universities need to prepare students for a world in which all kinds of horrific speech is allowed, and so should generally take the same approach as public universities. This doesn’t mean that universities have to allow everything: perhaps a true call for genocide of Jews ought to be disallowed, though we have not to my ears yet heard one on an American campus in the wake of Hamas’s October 7, 2023 attacks. Israeli policy is an obvious area of democratic concern, and so must be fully debated, even if some find the slogans of one or the other side offensive. Of course, protests and speech must be carried out peacefully, without physically intimidating others, shutting down speakers, or interfering with classrooms. But Finklestein’s call for content-based restrictions is doubling down on a policy that is failing students and undermining public trust in higher education.

What the AALS needs to do going forward

Good suggestions from Northwestern lawprof Dan Rodriguez, a former AALS President, here.  I hope somebody there listens!

There is no "caste" system in American law schools

I am in favor of increasing job security for all workers, including those in law schools, but it is beyond absurd to describe job security as a response to a "caste" system problem, for reasons I've explained before:

[T]o refer to the existence of different jobs and positions, with different qualifications and expectations, as a "caste" system is just a rhetorical trick, harnessing the pejorative connotation of "caste" to raise doubts about a system of differing qualifications, expectations and authority. Is it a "caste" system that in a hospital the doctors have different professional status, differential educational and professional attainments, and different responsibilities and authority than nurse's aides? Is it a "caste" system that PhDs in chemistry with tenure have different responsibilities and authority than the post-docs or research technicians in their labs? Unlike real caste systems, a change in status is possible with a change in education, experience, and accomplishments. The only real question is whether the differing qualifications, responsibilities and authority are justified, not whether they are a "caste.

Law school policies on use of generative AI by students?

One report here.  (LINK FIXED.)  What are your schools doing?  Submit your comment only once, it may take awhile to appear.

ABA considering increasing *required* experiential hours, which is a terrible idea

This won't have any benefits for legal education (and certainly won't make it more "practical"), although it will be a windfall for those who teach in these areas.   There may be schools whose student body and local legal markets mean that it would make sense for them to require more "experiential" courses and clinics; but not all schools are the same, and there is no justification for imposing this on all American law schools.  Yet another reason the ABA should be stripped of its regulatory authority.

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The UChicago Kalven Report and the Israel/Gaza catastrophe

The Kalven Report, whose lead author was a leading First Amendment scholar at Chicago, has once again come to the fore, in the wake of the Hamas butchery in Israel and the ensuing Israeli attack on Gaza. (Anyone who cares what I think about all this can see my other blog, or the letter I signed.  But I am not a Dean or university administrator.) 

I have written periodically about the Kalven Report, which I view as a central component of academic freedom in universities.  Universities are not political associations, they are institutions whose core purpose is the production and dissemination of knowledge.  That's it. The duty of administrators of universities is to facilitate the production and dissemination of knowledge.  The idea that university administrators should offer their views about the political issues of the day or the atrocities of the day, is as absurd as the idea that we should expect to hear from the head of the local electricity company.  No one is appointed a senior administrator at a University based on the acuity of their moral or political judgment.  Seriously, who cares what those folks think?

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On the importance of "replications"

Some apt remarks by law professor Holger Spamann (Harvard):

Replications aren't good for the replicator’s career. Replications take as much time as original research. But replications offer none of the rewards in terms of developing and publicizing one’s own ideas or gathering citations. It also risks upsetting the original researchers, which isn't fun unless you enjoy annoying other people (which I don't; otherwise, I could have earned a lot more money as a litigator). So why do I do it?

Because I want to stand on the shoulders of giants, not on a giant pile of manure. I can’t help it: I care about truth. That’s why I became an academic. What’s the point theorizing about a factoid that is likely just an error or randomness, intentional or not?