A friend suggested this to me. I suspect s/he's right.
A friend suggested this to me. I suspect s/he's right.
You will perhaps recall Judge Richard Kopf. If not, start here. The Judge recently got crosswise (again) with friend of the blog Rick Hasen who is a good guy and a major scholarly figure despite starting out with two strikes (he's a liberal and he teaches at Irvine). That spat presumably motivated Judge Kopf to post the following request:
I am interested in collecting a list of law professors who litigate in the trial courts of this country while also teaching law. I don’t care whether such litigation is civil or criminal in nature. I don’t care whether the litigation takes place in state or federal court. I understand and appreciate that busy law professors only have so much time. As a result, I don’t expect the list to contain law professors who are constantly in our trial courtrooms. But, I do want to know about law professors who try enough cases on a fairly regular basis that one might conclude that they are presently competent to sit at the first chair representing a client before a jury or a trial judge. ...
Please, please, please, no snark. I honestly have no interest in picking a fight. On the contrary, I am sincerely hoping to recognize and praise law professors who litigate in the many trial courtrooms of our nation while also regularly teaching law.
Without intending to be snarky in any way, I wonder why Judge Kopf is singling out trial lawyer law professors. Are law professors who regularly take the lead in writing briefs and conducting oral arguments in appellate cases not equally worthy of recognition and praise?
More important, are trial lawyers (law professors or not) worthy of recognition and praise? I'm quite serious about that question. Consider the Manhattan Institute's path breaking report Trial Lawyers Inc., which exposed the considerable damage being done to our economy by excessive and abusive litigation:
Trial Lawyers, Inc., while not an annual report per se, presents a snapshot of the lawsuit industry as it exists today. The picture is not pretty. Total tort costs today exceed $200 billion annually, or more than 2% of America’s gross domestic product—a significantly higher percentage than in any other developed nation. Moreover, even as the economy has stagnated and the stock market has plunged, the lawsuit industry’s revenues have continued to skyrocket: in 2001, the last year for which data are available, U.S. tort costs grew by 14.3%. Over the last 30 years, tort costs grew at a compound annual rate of 9.1%; by comparison, the U.S. population grew 1.1% annually, the consumer price index grew 5.0% annually, and the gross domestic product grew 7.6% annually during the same period.
In my home field of corporate law and securities regulation, runaway shareholder litigation has become an enormous impediment to capital formation, as I argued in my article, Corporate Governance and U.S. Capital Market Competitiveness, available at SSRN: http://ssrn.com/abstract=1696303.
Whether or not you agree with me that runaway litigation has reached crisis proportions and therefore calls into serious question any effort to praise trial lawyers, moreover, surely you can agree with me that law schools already devote too much attention to litigation. As I argued in my essay, Reflections on Twenty Years of Law Teaching, available at SSRN: http://ssrn.com/abstract=1122577:
[Law school as taught by] the Socratic method doesn’t really teach you to “think like a lawyer.” At best, it teaches you to think like a litigator.
Consider a typical law student who accepts a [transactional] job at a large firm. She has spent perhaps ninety-five percent of her time in law school reading and discussing cases and law review articles. Once in practice, she will go days or weeks at a time without picking up a case or a law review article. Instead, her days will be filled with drafting, reviewing, and marking up transactional documents, negotiating language with opposing counsel, participating in conference calls, and composing memos, emails, and letters to colleagues and clients.
“Thinking like a lawyer,” as Kingsfield and his ilk would have our graduate do is not very conducive to success in that environment.
In his book, The Terrible Truth About Lawyers, Mark McCormack, founder of the International Management Group, a major sports and entertainment agency, wrote that “it’s the lawyers who: (1) gum up the works; (2) get people mad at each other; (3) make business procedures more expensive than they need to be; and now and then deep-six what had seemed like a perfectly workable arrangement.” McCormack further observed that, “when lawyers try to horn in on the business aspects of a deal, the practical result is usually confusion and wasted time.” He concluded: “the best way to deal with lawyers is not to deal with them at all.”
All of which is why I emphasize not only doctrine but also economics and business. Transactional lawyers must understand the business, financial, and economic aspects of deals so as to draft workable contracts and disclosure documents, conduct due diligence, or counsel clients on issues that require business savvy as well as knowing the law.
I want my students to understand that successful transactional lawyers build their practice by adding value to their clients’ transactions. Instead of thinking like Kingsfield, I want them to learn where the value in a given transaction comes from and how they might add even more value to the deal.
The problem with most law schools is that we have too many litigators and ex-litigators and not enough deal lawyers. So why would Judge Kopf want to contribute to that problem by giving trial lawyer law professors yet more recognition and praise? Why this bias against deal lawyers?
Finally, I suspect Judge Kopf's many fans in the "law school is a scam" crowd will take issue with his list if they stop to think about its implications. Judge Kopf is "only interested in law professors who litigate while they also teach law. Exclude professors who were once trial lawyers but who no longer spend time in the trial courtroom."
Of course, one of the main complaints by the law school scam crowd is that too many law professors spend too much time doing things other than teaching. Given how intensive trial work is, a law professor who is spending much time first chairing cases is a law professor who likely is not spending all that much time preparing for class, mentoring students, and so on.
In sum, without wanting to start a fight--just a discussion, I think Judge Kopf's latest project doesn't make much sense to me.
Elite law faculties are overwhelmingly liberal. Jim Lindgren has proven the point empirically. I will just add my impressions from Georgetown Law School to reinforce the point. We are a faculty of 120, and, to my knowledge, the number of professors who are openly conservative, or libertarian, or Republican or, in any sense, to the right of the American center, is three—three out of 120. There are more conservatives on the nine-member United States Supreme Court than there are on this 120-member faculty. Moreover, the ideological median of the other 117 seems to lie not just left of center, but closer to the left edge of the Democratic Party. Many are further left than that.
But at least there are three. And the good news is that this number has tripled in the last decade. The bad news, though, is that, at Georgetown, the consensus seems to be that three is plenty—and perhaps even one or two too many.
These numbers are stark, but they are not unusual; this ratio actually seems fairly typical of most elite law schools. This lop-sidedness would be a shame in any academic department. But it is a particularly ironic sort of shame at a law school. After all, it is a fundamental axiom of American law that the best way to get to truth is through the clash of zealous advocates on both sides. All of these law professors have, in theory, dedicated their lives to the study of this axiomatically adversarial system. And yet, at most of these schools, on most of the important issues of the day, one side of the debate is dramatically underrepresented, or not represented at all.
One result, unfortunately, is a certain lack of rigor. To be blunt, a kind of intellectual laziness can set in when everyone agrees. Faculty workshops fail to challenge basic premises. Scholarship becomes unreflective and imprecise.
Worse yet, this intellectual homogeneity impairs analysis of law in progress—law as it unfolds out in the world. Analyzing and predicting actual American law would seem to be an important aspect of the job. After all, the country would like to be able to turn to these elite faculties for wisdom and insight about contemporary legal controversies. But because elite American faculties are so far to the left of the American judiciary, these faculties can be startlingly poor at analyzing the actual practice of American law.
You really need to go read the whole thing to understand why law schools desperately need reform in this area.
In his very important and provocative article, Why Did Law Professors Misunderestimate the Lawsuits Against PPACA, 2014 U. ILL. L. REV. 805, Professor David Hyman argued that:
Almost without exception, elite law professors dismissed the possibility that the Patient Protection and Affordable Care Act (variously called “PPACA,” “Obamacare,” and the “Affordable Care Act,”) might be unconstitutional—but something went wrong on the way to the courthouse. What explains the epic failure of elite law professors to accurately predict how Article III judges would handle the case? ...
[1.] Most law professors have little practical experience. ... Thus, law professors unduly discounted the practical difficulties associated with defending PPACA, in no small part because they failed to notice that a majority of the Supreme Court no longer shared their views on the Commerce Clause. ...
 Did constitutional law professors have a strong emotional stake in the outcome of the litigation over PPACA, sufficient to trigger motivated reasoning on the part of those opining? There is good reason to think so. The law represented the signature domestic policy achievement of the Obama Administration—and the culmination of decades of effort by the Democratic Party. Previous research has demonstrated that law professors skew heavily Democratic, with massive underrepresentation of Republicans, conservatives, and evangelical or fundamentalist Christians. ...
 Law professors are not known for their modesty. But even among this group, those who teach and write about constitutional law stand out. ...
 Making predictions is hard. ...
 The preceding factors may help explain how elite constitutional law professors got it so wrong prior to oral argument before the Supreme Court. But, what explains their conduct after oral argument, when it became clear that the constitutionality of PPACA was in serious jeopardy? Rather than admit error, or rethink their original assessment of the probabilities, many of the nation’s elite law professors participated in an extraordinary campaign threatening the Supreme Court (more specifically, threatening Justices Kennedy and Roberts, the plausible swing justices), with de-legitimization if they didn’t rule the “right” way. ...
This strategy substantially raised the political stakes of the dispute, which were high to begin with. For elite constitutional law professors, already inclined to view the Supreme Court as both a political and legal institution, and, as a group, generally committed to an expansive view of federal power, such measures were perfectly reasonable. This was an explicitly bare-knuckles political campaign, waged by a group of elite law professors convinced that they were right and the Supreme Court was about to be wrong. By pursuing politics through other means, the campaign was effectively a declaration of war on those who did not share the academic consensus on the scope of federal power.
To summarize, our nation’s elite law professors organized the aca- demic equivalent of a vigilance committee to enforce what they had defined for themselves as the range of acceptable, mainstream views when it came to the Constitution—just as they had done several decades previously when Robert Bork was nominated to the Supreme Court.
Personally, I've always thought Hyman's second and fifth points were the most plausible explanations. Indeed, if you a sixth factor-aggressive secularism and, in particular, anti-Catholicism among the legal academy--they also explain the legal academy's remarkable harsh reaction to the Hobby Lobby decision. (See, e.g., the over- the-top corporate law professors brief in that case.)
In any case, my friend and co-author Mark Ramseyer has a response piece out that is very much worth reading, because it is written with Mark's typical verve and intelligence:
Is dear reader shocked that our colleagues could so uniformly “misunderestimate” the constitutional problems in the Act? Is he shocked that the 130 signers of an amicus brief supporting this hyperpartisan Democratic statute included no one who had donated to a Republican campaign? Is he shocked that the twenty-two constitutional law scholars surveyed gave ninety-eight percent of their political contributions to Democratic campaigns?
Is dear reader shocked? Captain Renault may have been “shocked, shocked to find that gambling is going on” at the Cafe Americain, but the politics of the constitutional law guild is no secret. One need not down many drinks to learn Ilsa Lund’s politics, and one need not eat many faculty-club sandwiches to learn the politics of the constitutional law crowd. Of intellectual diversity, only feminist jurisprudence and critical race theory have less.
Mark goes on to demonstrate in exquisite detail the left-liberal and secular bias of the academy. He concludes:
Hyman brilliantly details the way constitutional law scholars missed the unconstitutionality of the PPACA. They missed it because they so badly wanted the Act—because they so badly wanted to believe a national health insurance program was possible. They missed it because they let political loyalties trump their judgment—because they let their “moral engagement” block analysis.
And so, once again, the take home lesson is that law schools desperately need intellectual diversity, because right now they are a Democrat /secular humanist monoculture. Time for some affirmative action for "Republicans, conservatives, and evangelical or fundamentalist Christians," not to mention Catholic conservatives.
Over at Marginal Revolution, Alex Tabarrok writes that:
A new and interesting entry into this field comes from LinkedIn which uses data on its 300 million members to define desirable employers and then rank universities based on getting their graduates jobs with those employers. The methodology is somewhat opaque and a bit sketchy but the idea is to define desirable employers by industry based on the revealed preference of employees in LinkedIn. In particular, firm A is raised relative to firm B if more people move from B to A than from A to B and similarly if firm A retains its employees longer than firm B. The percentage of a college’s recent graduates who obtain employment from the desirable employers is then used to rank the universities. No cost factors are included.
There's no obvious reason they could not apply a similar methodology to ranking law schools and the results might be very interesting.
Joe Patrice has a slightly breathless post about the interesting argument being made by an outfit called PublicResource.org that the copyright on the 10th edition of the Blue Book has lapsed and that PublicResource.org therefore can put a copy of the 10th edition on the web where it will be available to all for free. Patrice therefore asks: Is The Bluebook About To Be Killed Off?
I doubt it. After all, as Christine Hurt observes:
I would hazard a hypothesis that law graduates turn to the modern edition for the hard questions, the esoteric sources, which the Tenth Edition doesn't cover. Another reason I pick up the Nineteenth Edition is to check the appendices -- what's the form of the statutes in [insert state here]? The Tenth Edition doesn't have those appendices, listing every reporter and statutory publication in every jurisdiction ever. That is why the Tenth Edition is only 124 pages long. I also pick up the modern edition to see if I need to abbreviate words in my case name, etc. according to T.6.
The kerfuffle does raise an interesting question, however; namely, when does the copyright on the first edition to provide internet citation forms expire?
Marcia Narine is conducting an interesting experiment:
I have assigned my BA students to write their own shareholder proposals so that they can better understand the mechanics and the substance behind Rule 14-a8. As samples, I provided a link to over 500 proposals for the 2014 proxy season. We also went through the Apple Proxy Statement as a way to review corporate governance, the roles of the committees, and some other concepts we had discussed. As I reviewed the proposals this morning, I noticed that the student proposals varied widely with most relating to human rights, genetically modified food, environmental protection, online privacy, and other social factors. A few related to cumulative voting, split of the chair and CEO, poison pills, political spending, pay ratio, equity plans, and other executive compensation factors.
I would have hoped that business law students would have focused more on governance, but I'm not surprised.
Here at the law school at which I'm employed, we've been talking budget issues. And I decided to throw myself under the bus by raising the question of whether administrative bloat is part of the problem.
I wouldn't be surprised if that were the case. After all, it's a widespread problem.
The Chronicle of Higher Education reported in February of this year that:
Thirty-four pages of research, branded with a staid title and rife with complicated graphs, might not seem like a scintillating read, but there’s no doubt that a report released on Wednesday will punch higher education's hot buttons in a big way.The report, "Labor Intensive or Labor Expensive: Changing Staffing and Compensation Patterns in Higher Education," says that new administrative positions—particularly in student services—drove a 28-percent expansion of the higher-ed work force from 2000 to 2012. The report was released by the Delta Cost Project, a nonprofit, nonpartisan social-science organization whose researchers analyze college finances. ...You can’t blame faculty salaries for the rise in tuition. Faculty salaries were "essentially flat" from 2000 to 2012, the report says. And "we didn't see the savings that we would have expected from the shift to part-time faculty," said Donna M. Desrochers, an author of the report.The rise in tuition was probably driven more by the cost of benefits, the addition of nonfaculty positions, and, of course, declines in state support.
So we'll see if any good comes of raising the issue.
Over at The Conglomerate she notes feeling guilty about blowing her own horn:
1. I have a piece up on Slate that summarizes my Essay on campaign finance (guilt because all last week as I wrote it I couldn't shake the feeling I was cheating on the Glom)
2. I am the UGA's new M.E. Kilpatrick Professor of Law (guilt because self-promotion/bragging)
So we'll blow a horn for her.
Nicholas Georgakopoulos comes at the question from one angle. I want to come at it from another angle.
1. The Association of American Law Schools is not an accrediting agency, so nothing bad would happen to our students if we didn't belong.
2. Our students would benefit because (a) the school would save money by not having to pay the membership fee or subsidize law professor travel to whatever boondoggle places the AALS holds its various meetings and (b) faculty would not be disappearing on periodic boondoggles.
3. The AALS has zero interest in real intellectual diversity. Are you a member of the Federalist Sociery? Too bad, you can't hold a meeting at the AALS annual meeting or even use their hotel. Are you a member of the Christian Law Professor fellowship. Too bad, you can't hold a meeting at the AALS annual meeting or even use their hotel.
4. Are you only going to attend one session at the AALS meeting at which you are an invited presenter? Too bad, you still have to register and pay the full fee.
5. Are you annoyed by an organization run by and for the benefit of left-wing busybodies? Too bad, because that's what the AALS is.
6. Do you like academic conferences where the panels are informative and engaging? Too bad, because that doesn't describe very many AALS panels (if any).
And so I'll repeat something I wrote back in 2012:
The best thing we could do with the AALS is to disband it:
I can't think of one useful thing the AALS does except to provide a massive schmooze fest for faculty to network at taxpayer and student expense. And while that's fun, it doesn't justify the organization's existence.
While it seems unlikely that the AALS will ever do the honorable thing and fall on its sword, if I were a law school dean, I'd bail on it.
From the Boston Globe:
Suffolk University Wednesday abruptly replaced president James McCarthy with a year remaining on his contract, and tapped a veteran educator with a reputation for turning around struggling colleges to serve as interim leader. ...
... Facing a decline in enrollment and revenue, the university announced in June it would freeze employee salaries for the next fiscal year. It also offered buyouts to all law school faculty members with tenure or renewable long-term contracts.
Given that Suffolk charges almost $45,000 in tuition alone but only places 37% of its graduates into fill-time JD-required jobs within 9 months after graduation (according to Wikipedia), maybe they're going to--and should--just shut it down. My guess, however, is that this is just a cost-cutting measure.
First day of school. N-12 14 years + 4 in college + 2 in grad school + 3 at UVa law + 8 teaching at UIUC + 19 at UCLAW. Wow: 50 first days.— Stephen Bainbridge (@ProfBainbridge) August 25, 2014