ProfessorBainbridge.com

Is there a place in legal scholarship for lighthearted banter?

I'm working on a rebuttal to a reply to something I wrote about corporate purpose and I'm having a really hard time getting the tone right.

Donald Dripps once told me (back when we were both at Illinois) that in these situations one must go for the jugular. One must win. I wonder if he still feels that way (tag, you're up).

That seems both unpleasant and exhausting. I'm at a point in my career where if it's not fun, I'm not doing it.

So I just want to amuse myself and perhaps the reader, while still taking the subject seriously.

I want to be respectful of the opponent (who is a friend and has made some very good points), but I also want to be somewhat lighthearted and witty. Sort of like Bertie Wooster in his narrator voice (not his character voice) discussing corporate purpose at the Drones Cub.

It's turning out to be damned hard work and I may end up punting. But it'd be nice if there turns out to be a space for witty banter in serious scholarship.

University of California system to phase out the SAT and ACT at the undergraduate level: Is the LSAT Next?

The WSJ is outraged:

Applicants to the largest university system in the U.S. will now be judged entirely on how well they can flatter admissions bureaucracies with coached personal statements, as well as high school grade-point averages whose meanings are obscured by grade inflation. ...

The higher education business model was already under pressure before the coronavirus, and the recession may force deep cuts in the UC. The regents’ political move to compromise educational quality against faculty advice does not bode well for the future of a system that for decades was an engine of opportunity.

I must confess that this is not an issue I have followed closely and I'm certainly not prepared to assume it'll either be a disaster or a huge success.

Instead, I'm mostly curious as to whether the anti-standardized testing activists who successfully lobbied the Regents on undergraduate admissions testing will turn their attention to graduate and professional schools. Will the LSAT likewise be thrown out?

ASU has already dropped the LSAT. According to Inside Higher Ed, Oregon "may admit up to 10 percent of an entering class without requiring the LSAT from students in an undergraduate program of its own institution, who scored at or above the 85th percentile on the ACT or SAT and who are ranked in the top 10 percent of their undergraduate class through six semesters of academic work, or achieved a cumulative grade point average of 3.5 or above through six semesters of academic work."

And, of course, the coronavirus wreaked havoc on this Spring's testing.

I last looked at the data over 20 years ago, at which time it seemed to me that the LSAT did a reasonably good job of predicting first year law school grades but not ultimate class standing or bar exam passage. So, on the merits, it's not a hill on which I would be prepared to take a last stand.

Having said that, I can't imagine many law schools volunteering to abandon the LSAT as long as mean LSAT scores factor into US News rankings.

Do professors have a right to teach remotely until there's a cure for COViD-19?

Inside Higher Ed reports:

... many professors say they'd prefer a remote term, or even a delayed academic year, to teaching face-to-face again too soon.

“So far, no one has really talked about protecting the faculty,” said Alan Czyzewski, a professor of accounting at Indiana State University who is over 60 and statistically at a greater risk of falling ill with COVID-19 than many of his students and some of his colleagues. “I’m not saying we shouldn’t be doing everything we can for students, but the faculty are equally important. If we get sick, or three to four of us get sick all at the same time, who’s going to be teaching class?”

Czyzewski said working from home for the next eight months is hardly ideal. But an all-online semester remains his preference for fall, absent the mass deployment of a vaccine.

Like Prof. Czyzewski nobody at UCLA (or, as far as I know, the UC system generally) has specifically addressed the concerns of over 60 faculty (such as yours truly). But maybe they should:

Christopher J. Lee, associate professor of history and Africana studies at Lafayette College in Pennsylvania, recently wrote a piece for Boston Review called “Higher Education in the Age of Coronavirus: The Right Not to Work.”

By that, Lee wrote, “I do not mean not working at all, but the right not to work under certain conditions.”

For example, he said, “given that a number of schools are seeking to re-open before a vaccine is available, one prospect is to give faculty members the choice of whether to continue teaching online or not. This proposal could benefit at-risk colleagues, while allowing the option of in-class teaching if a faculty member prefers it.”

...

The right not to work under certain conditions draws upon existing Equal Employment Opportunity Commission guidelines that require reasonable workplace accommodation for reasons of disability or genetic information, Lee says. Given limited testing capabilities and the many epidemiological unknowns of COVID-19, “faculty members would generally fall within this latter category, even without preexisting conditions, until a vaccine is available."

Sounds like a good research project for employment law faculty. Because I for one would prefer not to go back to the classroom until there's a vaccine or a treatment.

Ten best securities and corporate law articles of 2019

The list is out. Congratulations to the winners, especially Elizabeth Pollman who had two articles make the list: the rare double!

More on the possibility of Zooming through the fall

As we draw ever closer to the end of what has been the most unusual and challenging semester of my academic career, my thoughts increasingly turn to the Fall 2020 semester. In particular, will I still be teaching online? Still participating in online meetings? Still paying for parking and the Faculty Center I'm not using?

The UCLA Faculty Association reports that Berkeley is considering moving to a hybrid system for the Fall semester:

It appears that campus discussions at Berkeley are leaning toward a "hybrid" system of some online and some in-person courses. Note that because Berkeley is on a semester system and its fall semester starts earlier than campuses using quarters, the decision has to come sooner.

From the San Francisco Chronicle: [excerpt]

As UC Berkeley lurches into the final four weeks of a spring semester upended by the coronavirus pandemic, another quandary looms on the not-so-distant horizon: fall semester. School officials have not yet made a decision about the fall, but students and faculty are bracing for online instruction extending into the new academic year. That would allow for social distancing but raise a variety of other issues. The financial stakes are high. Chancellor Carol Christ, in an email Friday to faculty and staff, estimated the budget impact of COVID-19 on the school “in the range of $200 million,” thanks to a combination of lost revenue and increased expenses.

 

...Fall plans are spinning in doubt, as [UC-Berkeley] campus leaders try to balance public health concerns and a profound economic crunch. That’s one reason Panos Papadopoulos, a longtime mechanical engineering professor at Cal and former chair of the Academic Senate, expects school officials to try to implement a “hybrid system” for the fall semester. In this scenario, large-enrollment lecture courses would be taught online and smaller courses, lab sessions and discussion sections would take place in person, while following social-distancing guidelines.

 

UCLA undergraduate and most graduate programs are on the quarter system. The Fall 2020 quarter starts sometime in September. UCLAW, however, is on the semester system and we start around the third week of August. Our situation will thus be a lot closer to that of Berkeley than that of our home campus. Presumably, the campus administration will take that into account when deciding on opening the campus-related issues. (One hopes.)

Of course, I have no inside information. Nor am I am epidemiologist or statistician or anything else that might be useful in making predictions. With all of those caveats in mind, my guess right now is that we'll still be Zooming come the fall. I'm not convinced it'll be safe to end social distancing by August. OTOH, there will be enormous financial pressure on the campus to reopen, which may be very hard for the top campus administrators to resist.

Interestingly, a law school might be well suited to a hybrid approach. Big lecture (a.k.a. "Socratic") courses like Business Associations could be taught online, while smaller courses like clinics, simulations, and other experiential classes perhaps could be conducted using social distancing guidelines. (I confess that my views on that possibility may well be skewed by the fact that all of my classes would probably be taught online!)

Will I still be Zooming to Class in the Fall?

From the UCLA Faculty Association:

From the San Diego Union-Tribune: UC San Diego Chancellor Pradeep Khosla said Thursday that the school might stick with online courses for the fall quarter due to the coronavirus, but that he doesn’t see it becoming a permanent arrangement. He said the University of California system is considering the option for its undergraduate campuses and that UC executives will make the final decision.

{Note from yours truly: Does the phrase "UC executives" mean UCOP?}

“I think (staying with online) is completely within the realm of possibility,” said Khosla, whose school has nearly 39,000 students. “We have not made a decision about the fall quarter yet. We are looking at multiple models and have activated a continuity of education task force, a continuity of research task force and are also working with public health experts to help inform such a decision in concert with the UC system.” ...

That sounds worrisome, but it also may be necessary if the second wave people keep talking about materializes in late summer or early fall.

Relatedly, the Daily Bruin is reporting that preliminary orientation programs for the Fall Quarter will be held online:

All UCLA orientation programs will be held online this summer in light of the novel coronavirus outbreak. 

UCLA New Student & Transition Programs announced Monday that New Student Orientation, New Parent & Family Orientation and the College Summer Institute will be conducted remotely.

The implications are more than a bit staggering. Tuition refunds. Shrinking enrollments. Cancelled classes. Budget cuts. Hiring freezes. Massive endowment losses. The list goes on and on. 

This will be my fourth higher education recession: GHWB in 1990-91, the tech bubble and 9/11 in 2001, the financial crisis in 2007-08, and now what I guess they're calling the Great Lockdown. This one is already the scariest of the four for a lot of reasons but the prospect of it dragging on into the Fall is especially concerning because of the four this one has most directly impacted how I do my job on a daily basis. In the other three, teaching and research went on much as usual. Not this time.

Bob Cochran on Law and Lawyering

The final version of my contribution to the Pepperdine Law Review festschrift for Bob Cochran is now available:

Bainbridge, Stephen Mark, Bob Cochran on Law and Lawyering: A Catholic Perspective. 47 Pepperdine Law Review 371 (2020); UCLA School of Law, Public Law Research Paper No. 19-21 (2019). Available at SSRN: https://ssrn.com/abstract=3421790 

Abstract: This essay is a contribution to a festschrift honoring Pepperdine law professor Robert Cochran. In addition to his many other professional accomplishments, Professor Cochran is a leading figure in the study of Law and Christianity.

One strain of Law and Christianity scholarship focuses on normative critiques of substantive legal issues based on Christian theology. In other words, it seeks to make the civil law more moral; i.e., to conform Man’s Law to God’s Law. A second strain seeks to help lawyers deal with the difficulties inherent in being a Christian and a lawyer. As Cochran has put it, one might ask “whether there is a connection between religious faith and what ordinary lawyers do in ordinary law offices on ordinary Wednesday afternoons.”

Cochran’s work has intersected both possibilities. In Part I of this Article, I tackle his analysis of the extent to which we should strive to harmonize God’s and Man’s Law. In Part II, I turn to Cochran’s analysis of the Christian lawyer’s vocation. In both parts, I come at his work from the perspective of a Roman Catholic called upon to give religious assent to both Christian scripture and, where I differ from Cochran, the Church’s Magisterium.

UCLA Dean Mnookin's Response

In response to a series of incidents at UCLAW this year, which regrettably included my insensitive tweets re the coronavirus and Asian students, UCLA Dean Jennifer Mnookin issued a statement to the law school community, which reads in part:

Unfortunately, last week, a UCLA Law faculty member tweeted out remarks that mirrored xenophobic speculation that has been directed at Asian and Asian-American communities.  The faculty member, Stephen Bainbridge, stated that he had been ill recently, and wondered if one of the Chinese students in his class might have brought coronavirus to campus. These tweets were offensive and harmful, particularly given the widespread hostility that has been directed at Asian and Asian-American communities as a result of this pandemic. I recognize that these tweets harmed and deeply pained many members of our community and most particularly our Chinese LL.M. students, a number of whom are in his class this semester and who could well have felt singled out and unwelcome because of his tweet.  As members of the Asian Pacific Islander Law Students Association pointed out in their thoughtful letter addressed to me and others, “Language has a viral quality—it can pollute, infect, and distort our perception of the world and each other.” Additionally, I appreciate that our students issued their letter “with an eye towards community healing, closure, and engagement.”

After hearing from students and on his own accord, Professor Bainbridge delivered apologies to the students who contacted him, on Twitter and on his blog.  He acknowledged, “There are unquestionably far too many strains of xenophobia in this country right now, especially taking the form of anti-Asian and anti-Asian American sentiment.  In this context, my tweets were thoughtless and unfortunate. Put bluntly, they were stupid and insensitive,” he wrote.  I appreciate his apology, and I am deeply sorry for the harm caused by his tweets. 

I fully accept Dean Mnookin's reprimand and share her sorrow. I appreciate her recognition that I continue to take full ownership of the pain caused to our students. I hope this will be the last thing I say publicly about this matter, but rest assured that I continue to give careful and prayerful thought to learning from this experience.

An apology

As some of you may know, a controversy erupted over a tweet I wrote about the coronavirus that offended some of UCLA’s Asian and Asian-American students (among others) and drew a formal complaint from the UCLA APILSA student organization. I have apologized both via email to the leaders of the organization and publicly on Twitter. I do so again here unreservedly.

I very much regret having given offense and contributed—albeit unintentionally and inadvertently-to a challenging time.   There are unquestionably far too many strains of xenophobia in this country right now, especially taking the form of anti-Asian and anti-Asian American sentiment.  In this context, my tweets were thoughtless and unfortunate. Put bluntly, they were stupid and insensitive.

Unfortunately, this is not the first time one of my tweets have offended some of our students. If I were a professional pundit, such controversies would be grist to my mill. But I am not.

I am educator and, more important, an educator who stands as a witness for Christ in a very secular place.  I have had students of every race and ethnicity, and from many nations around the globe and I certainly want all of my students of all races to feel welcome in my class and at UCLA Law in general.  I failed, especially with respect to my Asian and Asian-American students. Sadly, the legitimate criticism of the recent tweet has driven home that my participation in Twitter has impeded my ability to educate and to act as a witness for Christ. Accordingly, this morning I deleted my account. Permanently.

As a colleague of mine likes to say, thanks for listening.

P.S.: I remind you of my longstanding blog policy:

This blog is a personal, extracurricular activity. The blog is not affiliated in any way with the UCLA law school or university. The blog receives no support--financial or otherwise--from the UCLA law school or university.

The opinions expressed herein are mine alone and do not represent the opinions of the law school or university administration, faculty, students, or alumni. They should not be attributed thereto.

The same was true of my Twitter feed.

A purported list of changes in grading policies law schools are making in response to COVID19

You can find one here. There's a second list sorted by US News ranks here.

A sample of yours truly teaching SOX Legal Ethics from home during the coronavirus crisis using Zoom

James Lindgren surveys the religious beliefs and practices of law professors and the results are depressing

Lindgren, James T., The Religious Beliefs, Practices, and Experiences of Law Professors (June 1, 2019). 15 University of St. Thomas Law Journal 342 (2019); Northwestern Public Law Research Paper No. 19-27. Available at SSRN: https://ssrn.com/abstract=3527017 or http://dx.doi.org/10.2139/ssrn.3527017

In the 1990s I surveyed law faculties at the top one hundred law schools, collecting data on professors’ religious affiliations. [Measuring Diversity: Law Faculties in 1997 and 2013, 39 Harv. J.L. & Pub. Pol’y 89 (2016), https://ssrn.com/abstract=2581675]

I found that Christians were represented at only about half their percentages in the larger population, while Jewish and nonreligious law professors were substantially overrepresented. Yet knowing whether a professor is, for example, Christian or Jewish only scratches the surface. For the general public, the General Social Survey and the American National Election Studies have long asked about belief in God and church attendance, but these questions had never before been asked of law professors.

This article reports the results of a 2017 survey of about 500 law professors. The study first updates the 1997 study on religious preference and then moves on to explore the issues of belief in God, church attendance, and religiously motivated discrimination. Law faculties are substantially less devout than mere reports of religious preferences would indicate. Though religious belief in the general population tends to fall with increased education, that phenomenon does not explain or account for the observed magnitude of the differences. For example, while 24 percent of law professors say that they “don’t believe in God” and another 18 percent “don’t know whether God exists,” among those in the general population who have graduate and professional degrees, only 5.4 percent do not believe in God and 10.4 percent do not know whether God exists.

While in this study higher percentages of Christians report religious discrimination than the non-religious, so do higher percentages of Jews and those who embrace “other religions.” As for their schools preferring non-Christians over Christians, Christians are much more likely to report this behavior than Jews or the non-religious, but the percentages reporting having witnessed this discriminatory preference are still relatively small.

The disparity between legal academics and the general populace with similar credentials is really quite striking:

"The harvest is abundant but the laborers are few"

 

The odd underrepresentation of corporate law academics on corporate boards

Larry Cunningham has an interesting (at least for corporate law academics) new article on corporate law professors on corporate boards of directors (or, more precisely, the lack of the same):

... there are no more corporate law professors on public company boards today than in the 1990s. A comparison of directories of corporate law professors with public company board slates shows that at most 20 of today’s roughly 1,000 law professors are on public company boards, about the same as before SOX.

Larry then recounts evidence suggesting that firms would benefit from having corporate law academics on their boards.

Should we care that law professors are less religious than the general population?

Paul Caron reports on research from Jim Lindgren finding that law professors are considerably less religious than the public at large, which hardly seems surprising:

Michael Simkovic thinks we shouldn't care:

In my view, these comparison groups are uninformative and inappropriate for some of the uses to which they have been put.  For example, some argue for hiring preferences for faculty members with certain supposedly under-represented ideological views. 

Law professors should not be judged by their ideological beliefs, but by their academic rigor. Law professors should not be compared to the general U.S. population or members of congress, but rather to scientists. Like scientists, law professors are much more highly educated than the general population, have higher incomes, and have opted into a career where they are expected to advance knowledge, often by relying on data collection and analysis based on scientific principles of causal inference. 

Personally, I do find it troubling from a social perspective. lawyers are key members of what Christopher Lasch called The New Elite and Joel Kotkin calls The Clerisy. Kotkin writes of them that:

The increasingly “woke” values of the educated upper classes reflect, as Alvin Toffler predicted almost half a century ago, the inevitable consequence of mass affluence, corporate concentration, and the shift to a service economy. The new elite, Toffler foresaw, would abandon traditional bourgeois values of hard work and family for “more aesthetic goals, self-fulfillment as well as unbridled hedonism.” Affluence, he observed, “serves as a base from which men begin to strive for post economic goals.”

The driving force for these changes has been the ascendant clerisy, which, reprising the role that the Church played in medieval times, sees itself as anointed to direct human society, a modern version of the “oligarchy of priests and monks whose task it was to propitiate heaven,” in the words of the great French historian of the Middle Ages, Marc Bloch. ...

The educated, affluent class detests President Trump, whom many in the Third Estate support, and has rallied to its preferred candidate, Elizabeth Warren, who emerges from the legal and university communities and voices the progressive rhetoric common to this class. (Warren’s less brainy left-wing rival, Bernie Sanders, fares better among struggling, often younger workers.) Warren’s clerisy supporters represent what French Marxist author Christophe Guilluy calls the “privileged stratum,” which operates from an assumption of moral superiority that justifies its right to rule. They are the apotheosis of H. G. Wells’s notion of an “emergent class of capable men” that could “take upon itself the task of “controlling and restricting . . . the non-functional masses.” This new elite, Wells predicted, would replace democracy with a “higher organism” of what he called “the New Republic.” ...

The clerisy is working to undermine basic liberal democracy.

The irreligiosity of law professors is just one indicator of this larger trend, of course, but each indicator is troubling.

Commissioner Robert Jackson leaving the SEC to return to NYU Law

Bloomberg:

Robert Jackson Jr. said he will step down from the U.S. Securities and Exchange Commission next month to return to teaching, leaving Wall Street’s main regulator with an open Democratic seat as Republicans push to dial back rules before November’s elections.

Since joining the SEC in January 2018, Jackson has often led opposition to policies pushed by Chairman Jay Clayton, including last year’s landmark move to overhaul conduct standards for brokers and investment advisers. At the same time, he and Clayton -- both political independents -- worked together to approve enforcement actions in the face of objections from the commission’s two Republicans.