ProfessorBainbridge.com

Should law review editors take race, gender, sexual preferences, etc.... into account when selecting articles

Apparently the people running the Scholastica law review submission web site think so, as apparently do some law reviews. As Josh Blackman explains:

Scholastica, a competitor to Expresso in the electronic journal submission process, allows authors to submit demographic information, including an author’s gender identity, sexual orientation, race, and a box to explain “economic hardship and diversity” (it suggests “Additional comments that demonstrate diversity (for example; socioeconomic, status, geographic region, race, ethnicity, gender, etc.”).

Dave Hoffman collects reactions here. All I can say is, why no affirmative action category for those of us who are, shall we say, calorically challenged? We're discriminated against too, after all. Shouldn't politically correct law reviews help in the fight against sizeism?

On a serious note, I agree with Hoffman's proposal that we should "vote with [our] feet. Don’t use Scholastica unless the journal absolutely insists, as very, very few do." Indeed. Although I placed my latest article via Scholastica, I'm boycotting it until they get rid of this widget.

Law school classes: How big is too big?

From ATL:

[At Columbia Law School,] Professor Christina Duffy Ponsa, a constitutional law scholar, is going through divorce proceedings that have caused her to miss a number of classes. The school responded by dumping all of Professor Ponsa’s students into Professor Trevor Morrison’s Con Law class, creating a huge 200-person Con Law experience that bothered many students.

The Columbia Student Senate formally requested that Columbia replace Ponsa with another qualified professor instead of merging sections. ...

...  a 200-person class at what is supposed to be one of the best law schools in the country is just ridiculous.

Why? How big is too big?

I suppose that if one uses the Socratic Method there's an upper bound. Probably around 60 or 70, perhaps? But if you're using the Socratic Method, you're making a mistake to begin with. (See my reflections on the method's disadvantages and flaws.) 

If you're lecturing, why would 200 be too big? If student evaluations are anything to go by (admittedly a debatable proposition), some of my best teaching has been done in classes of around 140 to 150. Why would an extra 50 or so manke a difference?

Update: Ann Althouse criticizes my argument by suggesting that "the students would have a few questions like:"

Why am I paying so much tuition if all I'm getting is something I could be watching on the Internet? And why are you paid so much money to lecture in person in front of people who could just as well be watching video of whoever is the very best lawprof lecturer on this subject?

But so what? Lecture is the dominant teaching methodology in lots of disciplines. Students in those disciplines could be asking the very same questions. But lecture survives nonetheless. What makes law students so special that those questions are somehow trump cards? Unless Althouse can demonstrate that legal education uniquely requires pedagogic methods other than lecture, which seems to be the implicit assumption underlying her questions, those questions have no real force.

Conversely, moreover, given how bad most law professors are at using the Socratic Method law students could equally well be asking questions like "Why an I paying so much tuition to be subjected to a series of inane questions?" "And why are you getting paid so much money to hide the ball instead of actually teaching me something?"

In any case, it occurs to me that we can use Althouse's questions to posit a more interesting issue; namely, why shouldn't students be taught by watching the very best law professor on line? I believe there is a very real possibility that legal education--like much of higher education generally--will end up moving in the direction of massive open online courses. It's entirely possible, for example, that we'll end up with a model in which students at Columbia watch an exceptional corporate law lecturer at, say, UCLA give the lectures for the week and then engage in more advanced hands-on work at the home institution.

We already see such courses evolving in other disciplines. Computer science professor Douglas Fisher has a great post on how he blends a MOOC at Stanford with his own courses at vanderbilt:

In Fall 2011, Stanford announced three, free massively open online courses, or MOOCs. Two of these courses, database and machine learning, corresponded to spring 2012 courses that I would be teaching at Vanderbilt University. I recognized that I could use the lecture materials from these classes to “flip” my own classes by having students view lectures before the class meeting, which then could be used for other learning activities. ...

 In the undergraduate database course, flipping meant spending class time on larger database designs, created by both students and me, and understanding the basic material in the context of these designs. In the graduate machine-learning course, where I had some different preferences than the Stanford instructor, students watched (most of) his videos in advance of my classes and I also assigned additional weekly readings. In that class, flipping meant synthesizing across the lectures and readings in class. ...

I now view MOOCs, and the assessment and discussion infrastructure that comes with them, as invaluable resources that I embrace and to which I add value. I, and I am guessing many others, are short steps away from full-blown customizations of individual courses and even entire curricula, drawing upon resources from around the world and contributing back to those resources.

We all know legal education has got to change. If MOOCs become part of the new model, as I suspect they will, students will just have to get used to "watching video of whoever is the very best lawprof lecturer on this subject." And the rest of the legal academy will have to figure out how to add value to those lectures if they want to survive.

When are law reviews going to be open for submissions?

I've sent out Reforming LIBOR: Wheatley versus the Alternatives to about a dozen law reviews via Expresso or Scholastica, but most of the top 50 or so law reviews are not accepting publications at this time. Anybody got reliable information on when the bulk will start accepting submissions?

Instead of cutting law school to two years, why not up it to four undergraduate years?

The argument for cutting law school from three to two years has picked up enough traction that The Economist discussed it in this week's issue:

... on January 18th the law school of New York University (NYU) held a discussion on a reform that would jolt the system: cutting legal education by a year.

The reason for the event was a recently published article by Samuel Estreicher, a professor at NYU, entitled “The Roosevelt-Cardozo Way: The case for bar eligibility after two years of law school”. Rules in almost every state require an undergraduate degree and then a three-year law degree from a law school accredited by the American Bar Association. Mr Estreicher wants students to take the bar before completing their degrees, and, if they pass, letting them practise—as Benjamin Cardozo (a revered judge) and Franklin Roosevelt did before the three-year rule became universal in the early 20th century.

The proposal was surprisingly well received. Many agreed that the third year is useful but not crucial. One panellist, Zachary Fasman, a partner at Paul Hastings, a big law firm, announced that he would happily hire eager and talented lawyers with just two years of law school, though colleagues might not. Others pointed out that the first year of work could be in effect an apprenticeship, during which the rookie would earn less and be billed to clients more cheaply. Law firms already have to train new hires on the job anyway; even three years of education does little to prepare lawyers for actual practice.

Fair enough. But here's what I don't get: Why not make law an undergraduate major? After all, when my alma mater was founded, law was one of the basic subjects taught undergraduates. In Germany today, law is an undergraduate subject:

German legal education consists of a four-year undergraduate degree completed following completion of secondary school and passage of the university entrance exam.

Students then take the First Examination, a comprehensive set of exams that emphasizes academic knowledge of the law.

This is followed by a two-year practical training period (Referendarzeit).

Students then must pass the Second Examination, a comprehensive set of exams that emphasizes practical legal skills. Upon passage, students are entitled to work in any legal profession. 

Why should this not be the case in the USA? After all, most business people don't have MBAs. Law schools could offer an undergraduate degree, which would qualify students to take the bar, a Masters degree akin to the MBA for students who want to practice at BigLaw firms, and a SJD, akin to a PhD, for would be legal academics.

The vast majority of lawyers would graduate with far less debt. In addition, a law undergraduate major might well be useful to a slew of students who never intend to practice law.

Of course, this is not a novel proposal. John McGinnis and Russell Mangas advanced this very same proposal in the WSJ. They argue that:

An undergraduate legal degree could be readily designed. A student could devote half of his course work to the major, which would allow him to approximate two years of legal study. There is substantial agreement in the profession that two years are enough to understand the essentials of the law—both the basics of our ancient common law and the innovations of our modern world. A one-year apprenticeship after graduation would allow young lawyers to replace the superfluous third year of law school with practical training. ...

The idea of learning law as an undergraduate discipline is hardly untested. Great Britain, for instance, educates lawyers in college, not graduate school. These college-educated lawyers appear to provide legal services on par with those of their American colleagues.

Go read the whole thing.

I'm genuinely puzzled as to why this idea doesn't have more support. It would be better for students. It would integrate law schools into the larger university, which would be good for faculty. It just makes sense, which is probably the problem.

Attention Law Review Articles Editors: Have I Still Got a Deal for You

I have just posted to SSRN my latest article, Reforming LIBOR: Wheatley versus the Alternatives, which I will be sending out to the law reviews via Scholastica and Expresso next week. But that's such an annoying process. So here's my offer: If your law review is in the W&L Top Thirty  or Concurring Opinion's Top 25 or Expresso's Top 30, your journal is current in its publication schedule, you are willing to offer me a lead article slot, and promise to edit with a very light hand, I will accept your offer on the spot. I won't use your offer to try to ratchet my way up the list. I won't make you wait. First qualifying offer gets the article. Period.

I've already received one non-qualifying offer. But I'm waiting for a qualified offer.

Look at what you're getting if you accept my offer. I've been cited in 2160 articles on Westlaw's JLR database. I'm the # 6 author on SSRN's law datatbase when ranked by total all-time downloads. I've been named to Directorship magazine's list of the 100 most influential people in the field of corporate governance three times in the last 5 years. In 2007, I was #14 on Brian Leiter's list of the most cited business law faculty and was the only person under 50 on the list. So odds are that your cite count will soar.

Note to regular readers: For obvious reasons, I am taking advantage of TypePad's "feature this post" option to keep this post at the top of the blog for the next week or so. Scroll down for new stuff.

More frakking law schools?

Law school applications are at a 30-year low. There are twice as many law school graduates as there are open positions for lawyers. We should be shutting down law schools, but in a classic example of collective action problems at work there are a slew of universities on the verge of opening new law schools. As the WSJ reported today:

Indiana Tech's new law school in Fort Wayne will be the state's fifth when it opens this fall. The law school the University of North Texas plans to open in Dallas next year will be just down the road from Southern Methodist University's Dedman School of Law, and less than an hour's drive from one in Fort Worth that Texas A&M University is in the process of buying from Texas Wesleyan University, one of nine in the state. ,,,

19 new schools [got the] ABA's stamp of approval since 2000, and more on deck. New schools are popping up in states with rising populations like Florida, California and Texas, said Barry Currier, a former law-school professor who is the ABA's interim consultant on legal education.

These universities are doing the profession and their future students a major disservice. At the end of the day, however, I blame the ABA. On the one hand, the ABA and state bars are the driving force behind restrictions on entry to the legal profession and barriers to competition in the provision of legal services. In the absence of such restrictions, the price of legal servces would fall and the demand would increase. Both law school graduates and non-lawyers would have more job opportunities. On the other hand, the ABA is too scared of antitrust litigation to refuse to sanction new law schools on grounds that the country already has too many law schools.

MOOCing Corporate Law?

An interesting item from Inside Higher Ed:

News of universities partnering with massive open online course providers has become commonplace, which is why Yale University stands out for what it’s not doing: rushing.

While many top universities -- including Harvard and Stanford Universities, along with many others -- were announcing partnerships and launching their first MOOCs, Yale sat back, watched, and evaluated.

In December, some eight months after Princeton, the University of Pennsylvania and the University of Michigan at Ann Arbor joined Coursera and three months after Brown, Columbia, Emory, and Vanderbilt Universities did the same, Yale’s Committee on Online Education, a faculty committee, submitted its online report and recommendations to the dean of Yale College. Though the report suggests that Yale investigate different MOOC platforms, there is no timeline for when the university, seemingly already late to the MOOC party, might select a company or start providing MOOCs.

Are MOOCs coming to the law school near you? Harvard law prof Glenn Cohen says maybe not:

We in the law school who use the Socratic method may be particularly insulated from the MOOC treatment since the interactivity is part of what is prized. 

Which might be true except for the inconvenient facts that (1) the Socratic method is a crappy way of teaching and (2) law schools are not immune from the same economic forces affecting higher ed more generally. Indeed, if this year's huge drop in applications proves permanent, we may suddenyl find ourselves on the cutting edge of change.

Which leads me to ponder:

1. How would UCLA make money off a MOOC?
2. How would some of that money come my way?
3. Would I make more money MOOCing than professing? I'm imagining here the "Stephen M Bainbridge School of Corporate Law" as a stand-alone business enterprise. Other than the damnable barriers to entry of the legal profession created by the bar, it could work....
4. How would I teach a corporate law MOOC?
5. Assuming I retire on schedule in 2023, will it have come to pass by then?

 

A disgruntled Admin Law prof's take on his subject

Michael Greve:

I’m teaching something called, fraudulently, administrative “law.” Believe you me: nothing in that corpus juris poses any meaningful constraint on government. E.g., I’m supposed to teach and therefore do teach that judges must bow to any bureaucrat’s take on the law (unless it’s completely nuts) because otherwise the D.C. Circuit might end up running the country and good sense and lawful government might break out.

Academic conferences should be done electronically

Admittedly, I have a vested interest in this idea because I (1) hate to fly and (2) love going to academic conferences. But considering that 90%+ of law professors are liberals in good standing, they ought to go along with the idea. After all, as their favorite newspaper reports today:

Your Biggest Carbon Sin May Be Air Travel

...

For many people reading this, air travel is their most serious environmental sin. One round-trip flight from New York to Europe or to San Francisco creates about 2 or 3 tons of carbon dioxide per person. The average American generates about 19 tons of carbon dioxide a year; the average European, 10.

So if you take five long flights a year, they may well account for three-quarters of the emissions you create. “For many people in New York City, who don’t drive much and live in apartments, this is probably going to be by far the largest part of their carbon footprint,” says Anja Kollmuss, a Zurich-based environmental consultant.

A report on smart meetings opines that:

Traveling by plane to meetings and conferences makes up a significant part of many companies’ internal carbon footprint, often 50 percent or more among non-manufacturing companies.  

So wouldn't it make sense that sending law professors flying around the country for workshops and conferences is the biggest part of a law school's carbon footprint?

The smart meeting report continues:

Technology and services are available that can support virtual meet- ings and conferences in a much more time and resource efficient way. Online meeting rooms, video-conferencing, ad hoc Internet video links such as Skype, remote desktop sharing, webcasts, and other advanced communication aids are giving businesses tools to work remotely and thereby avoid business trips or physical commuting. Virtual meetings range in sophistication from high definition immersive telepresence experiences (which can even allow surgery to be performed remotely) down through dedicated medium resolution office to office systems, to pure audio conferencing and on to simple online text chats. One or another of these new techniques can be used with the same or better result as a physical meeting in many cases. 

So why aren't we using them to conduct legal conferences? Can you imagine what the carbon footprint of the AALS annual meeting must be?

In the meanwhile, in case you were wondering, my current rule is that I will attend an academic conference or workshop if I can get there by car in a day (or so) or via Amtrak (with a sleeper car). But I'd rather Skype from home. 

Affirmative action in higher ed

Gail Heriot has a powerful affirmative action piece over at National Affairs. Her piece elaborates on the important work of Richard Sander, who guest blogged here last year. They contend — and offer compelling empirical evidence — that affirmative action affirmatively harms its supposed beneficiaries. In the last paragraph, Gail wonders whether this argument will affect the Court’s analysis in Fisher v. Unviersity of Texas. For what it’s worth, I think that Justice Kennedy, at least, will find this point very compelling indeed.

via www.volokh.com

Bainbridge's study aids for corporation law, agency & partnership, and/or business associations courses

Bainbridge on Agency, Partnerships & LLCs:

The emergence of the limited liability company has kindled renewed interest in unincorporated business associations among legal scholars. This revival was further stimulated by the multiple revisions made to the Uniform Partnership Act in the 1990s. By lending new intellectual respectability to the study of unincorporated business associations, these developments stimulated the supply side of the curricular equilibrium. Courses on unincorporated business associations have thus sprung up at many law schools. A number of very fine casebooks compete for that market, including one co-edited by the author of this volume. This text is intended to provide students taking a course in unincorporated business associations with a reader-friendly, highly accessible overview of the law and economics of unincorporated business associations. In addition, students taking a basic course in corporations or business associations may find this volume helpful as a more expansive treatment of the law of agency, partnership, and limited liability companies. The text does not shy away from bringing theory to bear on doctrine. While the text has a strong emphasis on the doctrinal issues taught in today’s unincorporated business associations classes, it also places significant emphasis on providing an economic analysis of the major issues in that course. Agency, Partnership and Limited Liability Companies thus offers not only with an overview of the black letter law of unincorporated business associations, but also a unifying method of thinking about the subject. Using a few basic tools of law and economics — such as price theory, game theory, and the theory of the firm literature — the reader will come to see the law in this area as the proverbial “seamless web.”

Bainbridge on Corporation Law:

Corporations classes present students with two related problems: First, many students have trouble understanding the cases studied because they do not understand the transactions giving rise to those cases. Second, Corporations classes at many law schools are taught from a law and economics perspective, which many students find unfamiliar and/or daunting. Yet, with few exceptions, corporate law treatises and other study aids have essentially ignored the law and economics revolution. 

This book is intended to remedy these difficulties. The pedagogy is up-to - date, with a strong emphasis on the doctrinal issues taught in today’s Corporations classes and, equally important, a mainstream economic analysis of the major issues in the course. As such, the text is coherent and cohesive: It provides students not only with an overview of the course, but also (and more importantly) with a unifying method of thinking about the course. Using a few basic tools of law and economics-price theory, game theory, and the theory of the firm literature-students will come to see corporate law as the proverbial “seamless web.” Finally, the text is highly readable: The style is simple, direct, and reader- friendly. Even when dealing with complicated economic or financial issues, the text seeks to make those issues readily accessible.

 

Memo to the OC Weekly

One good set of bar passage results does not a great law school make. The case against UC Irvine's law school may now be moot, since nobody's going to kill it now, but at the time it was correct.

Dean Dan Rodriguez thinks making faculty work harder is the solution

Rodriguez:

As reformists and irritants likewise insist, we are going to increase our expectations of full-time faculty members in order to realize cost savings and take our foots off the tution pedal. 

As a faculty member, I think Deans like Rodriguez should put their administrative house in order first. At my school, and I'm sure at many others, the number of administrators, program directors, and other bureaucrats has increased dramatically. See Roland A. Cass & John H. Garvey, Law School Leviathan: Expanding Administrative Growth, 35 U. Tol. L. Rev. 37 (2003), which notes that the growth in the numbers of law school administrators has outpaced growth in those of faculty and students. Of course, the problem is not limited to law schools:

J. Paul Robinson, chairman of the Purdue University faculty senate, walks the halls of a 10-story tower, pointing out a row of offices for administrators. “I have no idea what these people do,” says the biomedical engineering professor. Purdue has a $313,000-a-year acting provost and six vice and associate vice provosts, including a $198,000-a-year chief diversity officer. Among its 16 deans and 11 vice presidents are a $253,000 marketing officer and a $433,000 business school chief. The average full professor at the public university in West Lafayette, Ind., makes $125,000.

The number of Purdue administrators has jumped 54 percent in the past decade—almost eight times the growth rate of tenured and tenure-track faculty. “We’re here to deliver a high-quality education at as low a price as possible,” says Robinson. “Why is it that we can’t find any money for more faculty, but there seems to be an almost unlimited budget for administrators?”

Purdue is among the U.S. colleges layering up at the top at a time when budgets are tight, students are amassing record debt, and tuition is skyrocketing.

But that's no excuse for law school deans like Rodriguez to ignore the problem of administrator bloat. To paraphrase the Bible, deans ought to take the bloat out of their administrative budget before trying to balance the budget on the bank of their faculty.

 Follow-up post here.

Position available at UCLAW as a Lowell Milken Institute Law Teaching Fellow

I've been asked to announce that:

• The Lowell Milken Institute for Business Law and Policy at UCLA School of Law is now accepting applications for the Lowell Milken Institute Law Teaching Fellowship.

• This fellowship is a full-time, year-round, one or two academic-year position (approximately July 2013 through June 2014 or June 2015).  The position involves law teaching, legal and policy research and writing, preparing to go on the law teaching market, and assisting with organizing projects such as conferences and workshops, and teaching.  No degree will be offered as part of the Fellowship program.

Eligibility

• Fellowship candidates must hold a JD degree from an ABA accredited law school and be committed to a career of law teaching and scholarship in the field of  business law and policy.  Applicants should have demonstrated an outstanding aptitude for independent legal research, preferably through research and/or writing as a law student or through exceptional legal experience after law school. Law Teaching Fellowship candidates must have strong academic records that will make them highly competitive for law teaching jobs.

Fellowship Requirements

The Fellowship program is year-round, over one or two academic years, during which time the Fellow will:

• complete at least one substantial scholarly publication and present the publication as a work-in-progress to the UCLA School of Law faculty;
• teach at least one class per academic year of the appointment;
• work closely with a faculty mentor in order to observe and participate in teaching, as well as to complete a publishable scholarly piece;
• assist the Institute’s Executive Director with other projects relating to the Institute’s work, including organizing conferences and other events,  research, publications, public education and outreach efforts;
• permit the Institute to publish any article(s) resulting from the Fellowship—as long as such publication will not interfere with the Fellow’s ability to publish such articles in a law journal; and 
• acknowledge the Institute’s assistance in any published work that is facilitated by the Fellowship.

Fellowship Benefits 

The unique features of this Fellowship include opportunities to:

• develop expertise in business law and public policy;
• work with a faculty mentor;
• develop expertise in business law teaching; 
• complete a published piece of research before entering the law teaching market; 
• obtain faculty recommendations and support for law teaching jobs;
• participate in the rich mixture of scholarly symposia, invited lectures, and conferences of the Lowell Milken Institute for Business Law and Policy; and
• participate in UCLA School of Law’s rich interdisciplinary scholarly symposia, lectures, and conferences.

Application Material and Deadlines

To apply for the 2013-2014 Lowell Milken Institute Law Teaching Fellowship, please submit the following materials by February 15, 2013:

• A cover letter summarizing your qualifications for the fellowship;
• A current resume, including a list of published works;
• An official law school transcript;
• Contact information for three references, including at least one from a law school professor familiar with your scholarly potential;
• A detailed research proposal, no longer than five single-spaced pages in length; and
• A description of teaching interests (course abstract and plan for class or seminar preferred) 

Interested candidates should submit materials as a single PDF or Word.doc file to estrada@law.ucla.edu.

Equal Opportunity Employer

The University of California is an affirmative action/equal opportunity employer, and seeks candidates committed to the highest standards of scholarship and professional activities and to a campus climate that supports equality and diversity. 

What useful purpose does the AALS serve?

At Prawfs, Dan Rodriguez comments:

What are your good ideas for the AALS as an organization going forward, especially in these remarkably difficult times for legal education?  I have the opportunity to play a leadership role in the association for the next little while (being nominated as president-elect at the upcoming annual meeting).  My sense is that we can do much better as a group in furthering the myraid objectives of the law professoriate.  Moreover, I would like to use my (small) bully pulpit to advance objectives that are critical to our collective future.

I have various thoughts to be sure.  What are yours?

The best thing we could do with the AALS is to disband it:

• It helps the ABA maintain the law school monopoly on legal training, which perpetuates the lawyer monopoly on provision of legal services.
• It creates a monoculture in which all law schools are obliged to comply with an ever growing set of rules. Schools with particular reasons for differentiating themselves from the pack, such a religiously affiliated schools, face pressure to conform to the standard left-liberal, secular humanist model that informs AALS policies and politics. As such, the AALS lacks any real room for institutional pluralism.
• Speaking of politics, it serves mainly as a talking forum for left-liberals (most of whom are so well paid that they're in the top 1 or 2 %) to whine about how they're victimized by society.
• It does a really lousy job of serving as a learned society.

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.