ProfessorBainbridge.com

An announcement for adopters of the Klein, Ramseyer, Bainbridge Business Associations Casebook

Attention adopters of Klein, Ramseyer & Bainbridge Business Associations casebook: We have posted updated PowerPoint slides for the entire book to our website https://t.co/fWddPKpi8e Free to use. Request password from your Foundation Press account rep. #lawtwitter #corporatelaw

— Professor Bainbridge (@ProfBainbridge) September 20, 2019

Brian Leiter is inclined to agree with Anthony Kronman about higher education diversity

Brian:

Legal historian John Witt here, responding to former Dean Anthony Kronman's new book (see this interview for the flavor, although he doesn't discuss the renaming of Calhoun College).  I'm inclined to agree with Professor Witt that renaming Calhoun College was a more than reasonable decision; but I'm also inclined to agree with Professor Kronman that (as he recently wrote in the Wall Street Journal), “Diversity, as it is understood today…means diversity of race, ethnicity, gender and sexual orientation. Diversity in this sense is not an academic value. Its origin and aspiration are political [i.e. justice for victims of discrimination]. The demand for ever-greater diversity in higher education is a political campaign masquerading as an educational ideal.”  

How UCLA's mandatory diversity and inclusion statements by faculty candidates impede intellectual diversity

I have often remarked that one of the great things about UCLA (both the campus and the law school) is that the left is so firmly in charge that there's no need for folks like me to waste energy fighting in faculty meetings and so on. But I long figured that the anti-conservative bias here was mainly a product of network effects.

In the last year, however, UCLA--like the rest of the University of California--has baked that bias into the hiring process. It does many through required EDI--equity, diversity, and inclusion--statements. As the Daily Bruin explained:

The university enacted a policy in May [2018] that requires all faculty candidates to submit an equity, diversity and inclusion statement as part of their application. An EDI statement is a short essay that lays out a candidate’s past contributions and future plans to further equity, diversity and inclusion.

A university-provided FAQ document explains that EDI contributions can come in the form of teaching, research, professional activity and service. One example UCLA provides of an applicable contribution is scholarly research that investigates and brings to light institutional inequalities.

The Daily Bruin is--like most college newspapers--reliably to the left of Bernie Sanders, but even it ran an editorial that pointed out the problem with these EDI statements:

While there’s no question of the value of equity, diversity and inclusion on campus, the EDI mandate touches on a different issue altogether: the ethics of ideological vetting in the hiring process. A faculty candidate’s fate should be primarily based on educational and professional merit. Setting ideological activism as a prerequisite for acceptance, even as it relates to the most well-intentioned ideology, is wrong.

UCLA is a public, academic setting, an environment meant to support a diverse range of ideas and viewpoints towards all issues – within reason – with the knowledge that they enrich our campus. EDI statements stifle this diversity by limiting qualified new hires to social activists who mirror administrators’ agendas. Even if these activists are doing good, exclusively hiring them is a subtraction from the marketplace of ideas and a slippery slope toward further homogenization of dialogue – an unavoidable end incongruent with the diversity goals UCLA claims to be striving for. ...

The “EDI Statement FAQs” document claims the statements are “not about penalizing faculty who do not promote EDI,” but that’s difficult to substantiate when they’re quite literally metricizing someone’s quality based on these standards. What UCLA deems an excellent score, which entails an applicant calling for active efforts to reduce institutionalized inequalities and adjustment for social sensitivities, could translate differently for a range of candidates.

I sometimes wonder whether I could get hired here today with all of these requirements. Or whether somebody with my ideological views can get hired here today.

But what makes all this of personal interest is that, as of this academic year, EDI statements are going to be mandatory not just for hiring but also for promotion and merit raises. So the next time I come up for a merit raise, I'm going to have to submit one.

My statement is going to be purely about how I tried to promote intellectual diversity by supporting the Federalist Society (back when @UCLA_Law admitted enough conservative students to support one) and the Christian Legal Society. I wonder how that'll go over?

New SSRN Posting--"Bob Cochran on Law and Lawyering--A Catholic Perspective"

Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=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.

Keywords: law, jurisprudence, law and religion

Apparently, I'm the Avis of corporate law professors

Readers of a certain age will recall Avis Rent-a-Car's slogan "We're #2. We try harder." Apropos of which I refer you to Robert Anderson's post: Citation Engagement Counts - The Case of Corporate Law Scholars:

Citation counts (and other types of citation-based metrics) are increasing in importance in the legal academy. Some people like the objectivity of these measures and others lament their failure to capture important non-quantifiable aspects of scholarly influence.

One of the most influential citation count rankings in the legal academy is the Sisk-Leiter approach that Greg Sisk updates every three years. Last fall when the new Sisk et al. citation count study came out I proposed a small change to the Sisk-Leiter method that would attempt to measure engagement, defined as citing a particular article more than once. This was designed to address the "throwaway" citation problem that critics of citation counts have raised--that some papers may receive a large number of perfunctory "one off" citations that are less meaningful as a measure of scholarly influence.

I decided to experiment with this using the most highly cited scholars in my field, corporate law and securities regulation, using the citation count rankings as compiled by Brian Leiter. ...

Although the two measures do produce slightly different ordinal rankings, the differences are not significant at least for this small group of 20 scholars. Professor Stephen Bainbridge moves up from third place to second place and Professor Donald Langevoort moves up from 7th place to 5th place.

The Progressive, Secular Humanist Monoculture in American Law Schools Precludes Diversity of Thought

Most law schools of which I am aware talk a lot about diversity, but they are amazingly non-diverse institutions:

In 2015, Professor James Lindgren published one of the most comprehensive demographic studies of the legal academy that has been produced to date. He found that the groups most underrepresented on law faculties are Republicans, Protestants, and Catholics.

Indeed, these three underrepresented groups (Republicans, Protestants, and Catholics) make up 91% of the U.S. population ages 30-75, but only about half of the law professor population. Put another way, people who are neither Christian nor Republican make up only 9% of the U.S. population, but account for about half of law professors (51%).

This deficit in political and religious diversity is particularly remarkable given the legal academy's success in recruiting and retaining women and racial minorities.

[A]ffirmative action has been such a success that all large ethnic and gender groups are at a minimum approaching parity with the lawyer population. Except for some very small groups of less than 2% of the population, in 2013, there is no group defined solely by ethnicity or gender that shows substantial underrepresentation in law teaching compared to lawyers, and only Hispanics (at about 54% of parity) show any substantial underrepresentation in law teaching compared to the English-fluent full-time working population. Even Hispanics-- the only large ethnic group to be substantially below parity with the English-fluent working population--are at full parity with their percentages among lawyers and at full parity with the highly educated working population.

Interestingly, ... Professor Lindgren found the greatest disparity between the number of white Republican women in law teaching and their representation in the legal profession as well as the general working population. Add in religious commitment and Lindgren found “there were more socialists in my survey than there were white female Republican Protestants (the largest four-way group in the U.S. population). As to religion, there were also “more Buddhists and more ‘pagans,’ who believe in many gods, than white female Republican Protestants.” It is also true that there were “more Buddhists and more ‘pagans”’ than white female Republican Catholics.

Professor Lindgren provides new research regarding the religiosity of law faculty in his contribution to this symposium. And it is not encouraging. Based on a survey of law faculty drawn from the AALS 2016-17 Directory of Law Teachers, Professor Lindgren concluded that law professors were almost six times more likely to agree with the statement “I don't believe in God” than members of the general public. They were also two and a half times more likely to agree with the statement “I don't know whether there is a God.” Christian law professors felt less free to express their true beliefs at work than all others combined, with Catholic professors registering more discomfort than their Protestant colleagues.

While law faculties now exhibit substantial ethnic, racial, and gender diversity, they exhibit intellectual or political uniformity. Liberals appear to have a virtual monopoly on the legal academy, with substantial entry barriers for Christian and socially conservative candidates. Such imbalance is not unique to legal education, but, as others have warned, such imbalance bodes poorly for preparing our students to become members of the legal profession, representatives of clients, officers of the legal system, and public citizens having special responsibility for the quality of justice.

Teresa Stanton Collett, A Catholic Perspective on Law School Diversity Requirements, 15 U. St. Thomas L.J. 322, 328–30 (2019).

I find it difficult to express just how (hopefully righteously) angry this makes me. Maybe Rod Dreher is right and we need a Benedict Option Law School.

Mark Lemley's Open Letter to the Harvard Law Review is an Amusing Lesson on Manners

Brian Leiter has it. Law professors will love it.

I would have been honored if Larry Sollum had spoofed one of my articles, but then I'm not a hypersensitive scold

Lawrence Sollum makes a sad announcement, which I am hoping is itself an April Fool's spoof:

For many years, I have posted "spoof" abstracts on April Fools Day.  Some months ago, I decided to discontinue this tradition.  Many of the posts in prior years were "too successful," actually fooling readers into believing that the author had written the fictional article. I had hope to counter this possibility by linking the posts to the Wikipedia article on April Fools Day, but this failed, as I received many emails complaining that the link was wrong.  Some of the spoofed authors wrote me with great concern, because they believed that someone had posted a fake article under their name.  Others reported that they had received concerned emails from friends about the odd content of their new article.

The authors were real people, and some of them have been offended by the posts or annoyed by the fall out.  And over the course of the last few years, the legal academy has become increasingly politicized, heightening the the offense that some may take to the spoofs.

So, for now, I am discontinuing the April Fools Day tradition.  Perhaps it will be revived in happier times.

As I say, I am hoping this is just a ruse, albeit one intended to make a point. Our politics are increasingly dominated by humorless scolds whose chief joy in life is crushing their enemies. It's a problem on both sides, although on the campus setting where Larry and I work, it's especially a problem created and perpetuated by the hard left faculty and students.

Consider, for example, Peter Berkowitz's analysis of a review of research on partisan prejudice:

Our leading colleges and universities are not only situated in places that are overwhelmingly “more prejudiced against the political ‘other.’” They also duplicate within their academic communities the conditions that foster partisan prejudice. ...

What is true of the affluent and politically homogenous counties in the United States where partisan prejudice grows most profusely is even more true of the preeminent colleges and universities located inside them. For decades our top institutions of higher education have constructed a curriculum that systematically downplays or excludes non-progressive perspectives and have assembled a faculty, particularly in the social sciences and humanities, strikingly devoid of conservative scholars. Our campuses are provincial in their monochromatic cosmopolitanism. And they have taken the lead in promulgating the notion that opinions and ideas are a function of identity, and therefore to disagree with a person’s views is to attack his or her humanity.

Third-year Yale Law School student Aaron Haviland provides corroborating evidence for the hypothesis that higher education is a major cause of the partisan prejudice that flourishes among more highly educated Americans. In “I Thought I Could be a Christian and Constitutionalist at Yale Law School. I Was Wrong,” he describes widespread and hair-trigger intolerance among his classmates, the preponderance of whom are high-performing graduates of America’s most prestigious colleges and universities.

Having had personal experience of the campus left's intolerance, I'm saddened but not surprised by Larry's decision.

GMU's Antonin Scalia Law School gets transformative gift

Press release:

George Mason University’s Antonin Scalia Law School has received a gift of more than $50 million to support 13 new faculty chairs of approximately $4 million each. The bequest from the estate of the late Judge Allison M. Rouse and Mrs. Dorothy B. Rouse is the largest gift received in Mason’s history and will create a permanent endowment—the Allison and Dorothy Rouse Endowment.

To quote Brian Leiter, "Wow! And double wow!"

Getting law students to think like their future business clients

Marcia Narine Weldon has some interesting ideas:

1. Teach students that business people care about tax implications, levels of control, mitigating risk,  and  legal liability, regardless of business type or size. Students must be able to advise through that lens or associate with others with appropriate specialties (such as tax) when needed. 
2. Add more compliance coursework that includes skills-based work. The GC who spoke indicated that it’s a number one concern for US public companies. Private companies and those considering an IPO also have significant compliance obligations. 
3. Encourage students to take courses in the business school. Sitting with business students will provide an entirely different perspective. Similarly, open more law school classes to business school students. 
4. Weave in risk management issues into the curriculum. 
5. Have as many business people speak to students as possible. Students will quickly learn how much the theory they learn does not correlate to the work that real-world clients face.  
6. Add more business clinics. This allows students to meet with budding entrepreneurs. Their readings on entity selection will come to life. 
7. Ensure that students have at least one course that deals with international issues. The business world is global and even the smallest businesses are often part of a global supply chain. 
8. Have panels at the law school with in house lawyers, lobbyists, and  lawyers who don’t work for firms so that students can get another perspective on practicing law. Have them focus specifically on the realities of dealing with business clients. 
9. Consider short courses on negotiation for business clients. Even better, have a full course on business negotiation. Most law schools focus on litigation, leaving students who want to practice transactional law underprepared. 
10. I know that law students are focused on ABA requirements and bar passage rates, but encourage students to take coursework on employment law, tax, cybesecurity/data protection,  intellectual property, and administrative law.  Even if students take short courses in these topics, they will have an enormous advantage when starting out. 
11. Ensure that transactional drafting courses include real world examples of risk allocation when discussing representations, warranties, and indemnities. 
12. Encourage students to read comment letters on regulations. That will show students what business people really care about when laws and regulations are in the drafting stage. 
13. Teach about emotional intelligence, resiliency, and grit. Lawyers aren’t usually known for their EQ but it’s important, especially when dealing with business owners. 

University of Virginia School of Law Class of 1990 is a happy bunch

UVaLaw announces:

Graduates of the University of Virginia School of Law reported 91 percent career and life satisfaction in a new study published Tuesday in the Journal of Empirical Legal Studies.

UVA Law Professor John Monahan, the John S. Shannon Distinguished Professor of Law, has tracked the progress of members of the Law School’s Class of 1990 for almost 30 years.

H/t: Brian Leiter, who asks whether "there may be some self-selection going on."

 

US News rankings to include "scholarly impact"

Brian Leiter has the details. Predictably, this has led faculty members with last names starting with letters from the end of the alphabet to call for the Bluebook to eliminate et al.

Good advice for law professors

Endorsed. https://t.co/gD4TWvL08d

— Professor Bainbridge (@ProfBainbridge) January 24, 2019

Teresa Stanton Collett offers "A Catholic Perspective on Law School Diversity Requirements"

Interesting and provocative:

“Diversity” is a polarizing concept in American politics. I argue that under current legal education guidelines and policies, it is a concept that is Ill-defined, clumsily implemented, and often justified on grounds that have been rejected by the US Supreme Court. My quarrel is not with the underlying perception that cultural pluralism is increasing both here and abroad, nor with the idea that such pluralism can be the entry point to a more just and peaceful world. My quarrel is with the legal academy’s embrace of what others have called “check-the-box diversity” with little to no attention to viewpoint diversity and authentic dialogue. This is evidenced by both the development of a grievance culture on campus as well as a dangerous refusal to engage ideas and arguments that differ from the dominate liberal worldview. Sadly there is little to no evidence that Catholic law schools differ from their secular counterparts in this area. This should not be so, given the guidance of the Vatican’s Congregation for Catholic Education on multicultural dialogue. By embracing the Church’s approach to educating students in a multi-cultural society, I argue that Catholic law schools could and should become places of authentic dialogue, cultural appreciation and reform, and a more universal understanding of justice and the role law can play in responding to the challenges of our time.

Collett, Teresa Stanton, A Catholic Perspective on Law School Diversity Requirements (2018). U of St. Thomas (Minnesota) Legal Studies Research Paper No. 18-27. Available at SSRN: https://ssrn.com/abstract=3302905

Adrian Vermeule's path to Rome from "Mind, Heart, and Soul: Intellectuals and the Path to Rome" -- and a personal confession

I've never met Harvard law professor Adrian Vermeule or read much of his (reportedly outstanding) legal scholarship. But when I heard a few years ago that he had converted to Roman Catholicism, I began following his Twitter feed and reading his essays on politics and religion. In short order, I became a fan.

So when I bought Mind, Heart, and Soul: Intellectuals and the Path to Rome (edited by Robert P George and J.J. Snell), which offers "the stories of sixteen converts [to Roman Catholicism], each a public intellectual or leading voice in their respective fields, and each making a significant contribution to the life of the Church," I turned immediately to Adrian's chapter. It's interesting, provocative, but sadly short.

In some ways Adrian's story resonated with me, but in some ways my own conversion story is very different

Adrian was a convert from Episcopalianism. I came to Rome from a sort of generic Protestantism.[1]

Adrian fell away from the faith in college and eventually returned Ito it as an adult, only to find that the Episcopal Church had fallen into the hands of "herterodox forces."

Heterodoxy is part of my story too. In the years immediately before my conversion, I had attended Presbyterian churches. During the 1990s, of course, the PCUSA was riven with ugly disputes over social issues, especially sexual ones. The PCUSA leadership was increasingly captured by social justice warriors whose agenda seemed to be driven by progressive political policies rather than theology. That attitude increasingly trickled down to the local churches in my area, where I heard a lot more sermons on issues like race, sexuality, and the evils of the Israeli occupation of the West Bank rather than sin and salvation. Eventually, enough was enough. 

Back to Adrian's interview:

On what legal fronts do you find the most hope for influencing the culture away from the “culture of death” of materialism and nihilism we seem to be gradually embracing?

I put little stock or hope or faith in law. It is a tool that may be put to good uses or bad. In the long run it will be no better than the polity and culture in which it is embedded. If that culture sours and curdles, so will the law; indeed that process is well underway and its tempo is accelerating. Our hope lies elsewhere.

Right.

Finally, an interesting observation:

As for influences, there were many .... But behind and above all those who helped me along the way, there stood a great Lady.

Did you experience any kind of mystical or possibly supernatural signs or occurrences relating to your conversion?

Let me refer back to the end of the previous answer and leave it at that.

I assume the reference is to Mary. And now for a personal confession: Most of the Catholic doctrines as to which I have the greatest doubts relate to Mary. To be sure, the Catholic theology of Mary is far more complex and nuanced than the caricature I learned as a Protestant. But nevertheless I simply don't have the emotional commitment to Marian devotion that so many Catholics seem to have. And that devotion all too often seems to obscure the necessary focus on Christ.

Put another way, the Mother of God is undoubtedly an important figure, but God the Son is orders of magnitude more important. I see no scriptural basis for the theological claim that she collaborated in Christ's work of salvation. To the contrary, calling her co-mediatrix and co-redemptrix smacks of matriarchal paganism.

So am I a cafeteria Catholic on this central set of issues? I don't think so. I am perfectly happy to take Immaculate Conception and the Assumption on faith. I'm prepared to venerate Mary and to request her intercession. I'm simply suggesting that Mariology must be understood as Christ-centric and acknowledging -- even confessing -- that Mary plays a small role in my personal faith walk.

I take some comfort from the fact that one of my great heroes, John Henry Newman, acknowledged that he had difficulty adopting some Catholic practices. 

What's striking to me, however, is how many of my fellow converts who are interviewed in "Mind, Heart, and Soul" embrace Marian devotion:

Michael Ward:

Marian devotions were foreign to me when I first swam the Tiber, but they quickly ceased to be alien. Now I not only understand and accept them but find the Marian dimensions of Catholic piety to be extremely helpful. I would put Marian devotions a close third, after daily Mass and frequent confession, in a list of the things I have found most beneficial to my spiritual regimen since becoming a Catholic.

George, Robert P.. Mind, Heart, and Soul: Intellectuals and the Path to Rome (Kindle Locations 2614-2616). TAN Books. Kindle Edition.

Matthew Franck on C.C. Pecknold:

Though now a Catholic, Pecknold had no personal Marian devotion at this time. “I knew that Catholics had a devotion to Mary, and I knew theologically in my head why Mary mattered. I could even tell you things that were important about the doctrine of the Immaculate Conception. I could tell you various things, I could probably teach a course.” But as for a personal Marianism, “I didn’t understand that.”

Yet when he went into Memorial Chapel and approached the shrine to Mary to pray about the two jobs, suddenly he felt that the eyes of the icon of Mary were on him, staying with him as he moved. He knelt down, prayed the Hail Mary, and asked for Our Lady’s help and guidance, whatever offers might come.

George, Robert P.. Mind, Heart, and Soul: Intellectuals and the Path to Rome (Kindle Locations 3006-3012). TAN Books. Kindle Edition.

Ulf & Brigitta Ekman:

What surprised us was the fervor and strength of Marian piety. It took us a while to understand how important this was. We decided to visit some Marian shrines, and over the years, we visited Lourdes, Fatima, Knock, Guadalupe, Czestochowa, Banneux, as well as many churches and monasteries connected with Mary. The Rosary started to appeal to us when we realized how Christ-centered it is, and we started to pray the Rosary even before we were received into the Church.

George, Robert P.. Mind, Heart, and Soul: Intellectuals and the Path to Rome (Kindle Locations 843-846). TAN Books. Kindle Edition.

So maybe there's more for me to learn and appreciate.