ProfessorBainbridge.com

Question for the day

Question for #lawtwitter. What's the most insulting citation sentence you've ever seen in a #lawreview article. Something like: "For an astonishingly incompetent review of the cases, see ...."

— Professor Bainbridge (@ProfBainbridge) November 15, 2018

Some unsolicited advice for law students, especially 1Ls

On a serious note: Dear 1Ls: My experience in law school (which was probably about the time your parents were being born, so take this with a grain of salt) was that libraries were a noisy social hall full of distractions at exam time. https://t.co/cIIdAzEyRZ

— Professor Bainbridge (@ProfBainbridge) November 7, 2018

I did much better in law school when I gave up studying in the library and studied in my apartment bedroom with the door closed and ear plugs in my ears. Silence was indeed golden.

— Professor Bainbridge (@ProfBainbridge) November 7, 2018

Diversity Efforts at the University of California I: The Lack of Concern for Intellectual and Ideological Diversity

From University of California President's Janet Napolitano latest state of the university memo:

UC recently announced a commitment of more than $7 million annually to increase faculty diversity. We know that students’ academic performance and career aspirations are enhanced when faculty of similar backgrounds serve as role models, and we will be building on existing programs that help to ensure students on all 10 UC campuses benefit from a faculty that better reflects California’s diversity.

The funding will also support new programs and a sustained, ongoing approach to identify and cultivate talent and offer instructional programs, services and incentives that recognize the ways underrepresented groups make decisions about whether to pursue faculty careers.

Our faculty diversity efforts were part of the discussion with UC regentsduring a meeting last month of the Academic and Student Affairs Committee that explored data contained in UC’s Annual Accountability Sub-Report on Diversity.

You'll notice the lack of any reference to intellectual and ideological diversity. The absence of such references becomes even more pronounced when one looks at the Annual Accountability Sub-Report on Diversity. In a 20 page report, there are no references to intellectual and ideological diversity. None. 

The Ministry of Truth Opens a UC Berkeley School of Law Branch

Just don't call it Boalt Hall.

Teaching "Catholic Social Thought and the Law" at UCLA School of Law: First of a Series

This year I'm again teaching a seminar at UCLAW on "Catholic Social Thought, the Law, and Public Policy." Here's the course description:

In contemporary American culture there is a widespread assumption that religion is something private, something one does with one's leisure time, and that it ought not to affect the way one acts in the public square or market place. Catholic social teaching, however, explicitly claims a place in the public square. As the National Conference of Catholic Bishops explained in their Pastoral Letter on Catholic Social Teaching and the U.S. Economy (1986), they wrote that letter not merely to instruct the faithful but also “to add our voice to the public debate” over economic justice. Likewise, many Papal encyclicals are not mere theological documents, but also serve as position paper addressed to policymakers.

Catholic social thought is particularly relevant to law and the practice of law. As Avery Cardinal Dulles observed, law “cannot be adequately taught without reference to the purposes of society and the nature of justice, which law is intended to serve.” In turn, as he also argued, “the role of law and its place in a well-ordered society has been studied in depth for many centuries in Catholic social theory.” Accordingly, the premise of this seminar is that whether one is a follower of Catholicism, some other religion, or no religion, Catholic social thought provides important insights for making and practicing law.

Students of all religions—or of no religion—are invited and welcome to engage with the material respectfully, thoughtfully, and critically.

The course will focus on the primary documents of Catholic social thought, principally Papal Encyclicals, rather than secondary sources. The goal is for students to directly engage the source material.

We're using Catholic Social Thought: Encyclicals and Documents from Pope Leo XIII to Pope Francis as our text. It's a solid collection of the primary documents with a modest amount of helpful commentary to contextualize the readings.

Why have I structured the seminar this way?

There are three ways of studying Catholic Social Thought (CST), a.k.a. Catholic Social Teaching. First, we might approach it thematically, by which I mean emphasizing the major themes that run through the entire body of encyclicals and other documents that make up CST’s corpus. Scholars have identified seven such major themes or principles:

1. Life and the Dignity of the Human Person.
2. The Call to Family, Community, and Participation.
3. Human Rights and Responsibilities.
4. The Preferential Option for the Poor.
5. The Dignity of Work and the Rights of Workers.
6. Solidarity with Others Across Racial, National, Social, and Other Borders.
7. Care for God’s Creation.

Second, we might seek to operationalize CST by focusing on how it speaks to specific issues. The Compendium of the Social Doctrine of the Church takes this approach, expounding the social doctrine across numerous distinct issues of modern life.

Third, we might directly engage the primary documents, especially the critical papal encyclical. This is the approach I’ve chosen. The other approaches are useful, but only if you have a foundation on which to build them. Attempting them without first knowing the foundational documents would be like trying to decide constitutional law questions without ever having read the Constitution.  Put another way, focusing on the primary documents gives us a perspective that has not been filtered through someone else’s biases and priorities.

Another important reason for focusing on primary documents is that CST rarely offers specific policy proposals. Instead, it offers broad principles and precepts, which often prove to be blunt instruments when making fine legal or policy distinctions. If you ask, “should the law require corporate disclosure quarterly or semi-annually,” CST will give you only broad statements about the economy in reply. But broad principles laid out in the primary documents do provide a moral and ethical foundation upon which to build. Put another way, a house built on sand will not stand. Before you can do high level reasoning you must have a firm foundation on which to build.

I'll be posting about this course a lot, so I have set up a new posts category CST & The Law Seminar. I hope you'll find them of interest.

Law School Hiring and the Bias Against Conservative Candidates

“comparing conservative/libertarian law professors hired from 2001-2010 with equally-credentialed liberal law professors, conservatives/libertarians end up, on average, at a law school ranked 12-13 spots lower” But there’s no bias in law school hiring, right? https://t.co/bgU9JZRoyR

— Professor Bainbridge (@ProfBainbridge) August 2, 2018

@UCLA @UCLA_Law makes faculty go through anti-bias/pro-diversity training before serving on hiring committees. In light of this study, that training ought to include promoting intellectual diversity and identifying anti-conservative bias. https://t.co/OZ2OZd5Aqd

— Professor Bainbridge (@ProfBainbridge) August 2, 2018

Should you ask a question at a faculty meeting?

I am debating whether I should email this to all of my @UCLA_Law colleagues. I think most will get the joke. https://t.co/7QCoHAYeHZ

— Professor Bainbridge (@ProfBainbridge) July 26, 2018

Faculty Meeting Bingo card

Gerald Lopez on Reforming Legal Education, Including the Socratic Method

My UCLAW colleague Gerald Lopez has published a very interesting recent article arguing for a transformation of legal education:

This Vision defines, in ambitious intellectual and pedagogical terms, what lawyers do, describes the capacities superb practitioners demonstrate, and delineates the aims and means to train law students to be as practice-ready as three years of first-rate education allows and to grow better and better at what they do through deliberate choices made over a career. Because the Alternative Vision traces its origins, its implementation, its improvements to the best of clinical programs in the United States, many will likely regard it as presumptively unworthy, even ridiculous: a mongrel rather than a Blue Blood, perhaps practically-minded but at best only spuriously intellectual. Meeting this scorn head-on, Part II sketches the radically different assumptions, methods, and aspirations at the heart of the Alternative Vision, explains why we should ban the Socratic case method and scrupulously scrutinize all familiar learning formats, and measures all of us involved in legal education by how well suited we are (or could become) to the teaching and learning a transformed legal education demands.

Gerald P. López, Transform-Don't Just Tinker with-Legal Education (Part II), 24 Clin. L. Rev. 247 (2018).

Professor Lopez continues:

Some teachers have been thoroughly flummoxed by the aims and methods of the Socratic case method. Yet, most often, they keep those thoughts and feelings to themselves. Or at most they share them with a small circle of trusted friends and co-workers. Yet, again in the twenty-first century, much as in decades earlier, some have written openly about the rebellion they staged by turning exclusively to lectures. Perhaps most prominently, Stephen Bainbridge published a lecture he gave on the occasion of receiving a prestigious teaching award at UCLA. The article proves uncommonly candid and illuminating about the experience of finding the Socratic case method, as a student and a teacher, disappointing and confusing and even perhaps worse than useless. Particularly in sharing in print his unfolding thinking and decision-making about pedagogy, in a profession where so few legal academics talk in print about Socratic case method teaching, Bainbridge remains a must-read. ...

... Defenders would likely say Leiter and Bainbridge are outliers. In their willingness to speak and write openly about their experiences, their convictions, their choices, perhaps they are. They would appear, however, to be part of a growing plurality of faculty, perhaps even a (mainly) silent majority.

Id. at 351-52.

The article to which he refers is Reflections on Twenty Years of Law Teaching, 56 UCLA L. Rev. Disc. 13 (2008). My thanks to Professor Lopez for the very kind remarks, which I hope will further the cause of driving the Socratic Method into its well deserved place in the dustbin of history.

AALS Program on Contractual Governance: the Role of Private Ordering

FYI:

The AALS Section on Business Associations is pleased to announce a Call for Papers from which up to two additional presenters will be selected for the section’s program to be held during the AALS 2019 Annual Meeting in New Orleans on Contractual Governance: the Role of Private Ordering.  The program will explore the use of contracts to define and modify the governance structure of business entities, whether through corporate charters and bylaws, LLC operating agreements, or other private equity agreements.  From venture capital preferred stock provisions, to shareholder involvement in approval procedures, to forum selection and arbitration, is the contract king in establishing the corporate governance contours of firms?  In addition to paper presenters, the program will feature prominent panelists, including SEC Commissioner Hester Peirce and Professor Jill E. Fisch of the University of Pennsylvania Law School.

Our Section is proud to partner with the following co-sponsoring sections: Agency, Partnership, LLC's and Unincorporated Associations, Contracts, Securities Regulation, and Transactional Law & Skills

Submission Information:

Please submit an abstract or draft of an unpublished paper to Anne Tucker, amtucker@gsu.eduon or before August 1, 2018.  Please remove the author’s name and identifying information from the submission. Please include the author’s name and contact information in the submission email.

Papers will be selected after review by members of the Executive Committee of the Section. Authors of selected papers will be notified by August 25, 2018. The Call for Paper presenters will be responsible for paying their registration fee, hotel, and travel expenses.

Any inquiries about the Call for Papers should be submitted to: Anne Tucker, Georgia State University College of Law, amtucker@gsu.eduor (404) 413.9179.

RIP, Lynn Stout

Stunning news comes in an email from UCLA Law Dean Jennifer Mnookin:

Dear Colleagues;

I am so sorry to share the extremely sad news that our former colleague, Lynn Stout, who had been diagnosed with terminal cancer, passed away this morning.  Lynn was on the UCLA faculty from 2001 to 2012, and then moved to Cornell Law School.  With his permission, I am passing along to all of you the email notice that the Eduardo Peñalver, Cornell’s dean, shared with his colleagues this morning. If I learn more about the memorial service or other details, I will of course share that information, as well as any contact information for condolences to her family.

All best,

Jennifer

-------------------------------

Dear Colleagues —

I write to share the sad news that Lynn Stout passed away peacefully this morning after a long struggle with cancer.  In her final days, she was never alone and was surrounded by loved ones.

Lynn faced her diagnosis with courage and optimism. Like the consummate scholar she was, she continued to work tirelessly on her academic projects, even throughout her treatment.  In recent weeks, she completed the manuscripts to two new books that will be published in the coming year.

Lynn was a force of nature.  In a relatively short period of time, she touched many lives here in Ithaca, and I will greatly miss her presence in Myron Taylor Hall.  I know I speak for all of the Law School community in conveying my deepest condolences to Lynn’s family, particularly her two young sons, Dan and David, for their loss.

According to her wishes, there will be a memorial in New York City, and I will pass along details about that gathering as soon as they are available.

Best wishes,

Eduardo

 

Student evaluations

Maybe the whole idea of student evaluations is a stupid leftover of the 60s. When I was in law school at @UVALaw there were no student evaluations. Prof Mike Dooley told me as long as the students weren't burning him in effigy outside the Dean's office, all was well. https://t.co/EAQYddVbYc

— Professor Bainbridge (@ProfBainbridge) March 19, 2018

I cite some clear thinking on student evaluations here; https://t.co/s6TGydc5Cm

— Professor Bainbridge (@ProfBainbridge) March 19, 2018

Ronald Rotunda, RIP

There are numerous reports that my friend and former UIUC College of Law colleague Ron Rotunda has passed away. My thoughts and prayers go out to his family.

We were deeply saddened to learn of the passing of our dear colleague Professor Ronald Rotunda yesterday. Professor Rotunda had an extraordinary legal career and was a prolific and well-respected scholar and a beloved colleague and professor.

— Fowler School of Law (@Chapman_Law) March 15, 2018

The passing of @RonaldRotunda is a sad loss to the law, legal scholarship, and especially @Chapman_Law where he was a dear colleague, always full of energy and eager to talk big ideas, a prolific writer and beloved by his students. He will be greatly missed.

— Hugh Hewitt (@hughhewitt) March 15, 2018

Congratulations to Stephen Presser

I was delighted to learn that Stephen B. Presser has been named as one of two 2018-19 Visiting Scholars in Conservative Thought and Policy at the University of Colorado Boulder:

Presser also praised Conservative Thought and Policy Program, which he termed “unique and offered in a uniquely well-run university.” After four decades in the academy, he concludes that “real diversity of opinion is increasingly rare in higher education,” he said.

“Those in charge in Boulder, whom I met when I interviewed for this position, have understood that bringing through a series of scholars committed to the search for timeless truths, and a deeper understanding of human nature, is a partial antidote to some of the difficulties now confronting our divided society,” Presser said, concluding:  

“It is a an honor to follow those distinguished teachers who have held this position in the past, a privilege to be asked to participate in encouraging the conservation of what is best in our culture, and a joy to be invited to spend a year in a wonderful setting implementing Socrates’s adage that the unexamined life is not worth living.​”

Presser is a recognized expert in the history of the law and the U.S. Constitution in the 18^th century, when the “founding principles of the United States took shape.” His published works emphasize the grounding of the Constitution and the American legal system in “the timeless principles of justice, philosophy and law, which made up what the authors of the Federalist described as the emerging ‘science of politics,’” Presser stated.

I have long been a great admirer--sadly, mostly from a distance--of Presser's work in corporate law and legal history, as well as his insightful writing from a conservative perspective on politics and current affairs. He's very, very high on the list of people in my business that I wish I knew better.

In any case, congratulations to Presser and to Colorado for having made such a splendid choice.

Review of Stephen Presser's "Law Professors" - ProfessorBainbridge ...

www.professorbainbridge.com/.../03/review-of-stephen-pressers-law-professors.html

 

Mar 19, 2017 - Mark Pulliam has a thoughtful review of Stephen presser's interesting new book that uses a series of biographical sketches of law professors (some of whom want on to bigger and better things, such as Barack Obama) to muse about the evolution of American legal thought: Law Professors is an ...

Presser's "Law Professors: Three Centuries of Shaping American Law ...

www.professorbainbridge.com/.../pressers-law-professors-three-centuries-of-shaping-a...

 

Feb 3, 2017 - But Stephen Presser's new book Law Professors: Three Centuries of Shaping American Law scored a lengthy and very positive review in The Economist: If the fight [over Supreme Court nominations] has become more heated, it is because the authority of the judiciary in America, notably its ability “to ...

 

Round 6 (by my count) in the ongoing mass email kerfuffle ...

www.professorbainbridge.com/.../round-6-by-my-count-in-the-ongoing-mass-email-ker...

Jan 30, 2017 - And, last but definitely not least, I invoke the great corporate law scholar, Stephen Presser, who was prompted to pen an oped for the Chicago Tribune, appropriately headlined Sen. Sessions and the Smug Self-Satisfaction of the Law Professoriate: The first striking thing about the recent letter signed by ...

In news that will surprise no one, law students and law professors are more liberal than the population and it matters

Chilton, Adam S. and Masur, Jonathan S. and Rozema, Kyle, Political Discrimination in the Law Review Selection Process (February 12, 2018). University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 832. Available at SSRN: https://ssrn.com/abstract_id=3119903

The career trajectories of law professors and the dissemination of knowledge depend on the publication decisions of law review editors. However, these publication decisions are shrouded in mystery, and little is known about the factors that affect them. In this article, we investigate one potentially important factor: political ideology. To do so, we match data on the political ideology of student editors from 15 top law reviews over a twenty-year period to data on the political ideology of the authors of accepted articles. We find that editors accept articles in part because of shared political ideology with authors. That is, conservative editors are more likely to accept articles written by conservative authors, and liberal editors are more likely to accept articles written by liberal authors. We then investigate potential explanations for this ideological discrimination. One possibility is that student editors simply have a preference for publishing articles that promote their political ideology. Another possibility is that student editors are objectively better at assessing the contribution of articles written by authors with shared ideology. We find evidence that the ideological discrimination is driven by student editors' superior ability to ascertain the quality of articles that match their own ideology.

If the law school universe matched up to demographics of the country as a whole, this ideological bias might not matter. But the law school universe tilts hard left. Which suggests conservative scholars are at a significant disadvantage.