ProfessorBainbridge.com

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

Is George Mason University carrying water for the progressive Democrats now running Virginia?

As noted in the prior post, George Mason's central administration is caving to requests from left-wing activists seeking to learn the identities of the donor(s) who gave the gift that resulted in the GMU law school being named in honor of Antonin Scalia. In addition to the fracas being triggered by the usual crowd whose paranoia about the Koch brothers knows no bounds, the WSJ editorial hints that the central university administration is doing the bidding of the leftists who took over Virginia's state government in the last election:

There are also political questions. Since 2019 the interim president of GMU has been Anne Holton, who is married to Virginia Democratic Senator Tim Kaine. And in 2019 Democrats swept the Virginia state Legislature which oversees its public universities.

Anonymous involvement in American politics goes back to the writings of the Federalists and Anti-Federalists, of whom George Mason himself was a leader. Yet liberals want to use charges of “dark money” to target anonymous donors and purge invaluable resources at George Mason like its Center for the Study of the Administrative State.

It would be consistent with all the other ways in which the left is trying to defund the right and drive us out of the public square.

Yours truly gets tagged in a Wall Street Journal editorial on the fight at George Mason

As a Wall Street Journal editorial today explained, there's a big fight going on at the Antonin Scalia Law School at George Mason University, with the usual suspects on the left cancel culture trying to find out the anonymous donors behind the gift that resulted in the law school being named after Scalia:

After Scalia died in 2016, a donor, described as a friend of the Justice, offered $20 million to rename GMU’s law school in his honor. GMU, a Virginia-based public university, agreed to condition the gift on the donor’s anonymity. The name officially changed that year.

Yet this month GMU threatened to renege on its contract by identifying the donor, according to a motion filed in Arlington County Court. The motion asked for a temporary restraining order, which was granted Thursday, but the case isn’t over. GMU could win the lawsuit, while the donor says the agreement has already been breached and may demand the return of $16 million.

The background is that since the law-school renaming was proposed, liberal faculty and students have been up in arms. GMU, like most universities, leans left, but its law school is a rare bastion of classical liberal thinking in higher education. That’s made it a target of activist groups and Freedom of Information Act requests from progressives who argue conservatives have too much influence.

My friends Henry Manne and Larry Ribstein often complained about the ways in which the central GMU campus treated the law school. I have no basis for knowing how things are going now, but I doubt it's gotten any better.

Anyway, the WSJ editorial board tagged yours truly:

GMU’s apparent willingness to flout its commitment comes at a time of elevated liberal harassment of non-progressive professors and ideas in the legal academy. Stephen Bainbridge, a conservative on the UCLA law faculty, last month reported that his emails were subject to a public records request—an unusual imposition on academic freedom.

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"

 

Corporate Law Expert Andrew Verstein to join UCLA School of Law Faculty

I am delighted to report that Wake Forest Professor Andrew Verstein will be joining our corporate law group here at the UCLA School of Law. I am tremendously pleased by Andrew's decision to accept our offer, as I am a huge fan of both his work and him as a person.

Andrew is currently a faculty member at Wake Forest University School of Law, where he joined the the faculty in 2013 and was promoted to full Professor in 2019. His scholarship and teaching are in the areas of business organizations, corporate finance, securities regulation, and contracts. Among his many distinctions, he was a runner-up for the AALS junior scholars prize and a presenter at the Yale/Harvard/Stanford junior faculty forum.

Andrew holds an undergraduate degree in philosophy (Dartmouth, 2005, summa) and JD from Yale (2009). Following his JD, he taught as a visitor for one year at two universities in Shanghai (Fudan University Law School, and East China University of Political Science and Law). He visited at Chicago in Fall 2017. He has already published 23 scholarly articles, and is working on a forthcoming casebook co-authored with our own Lynn LoPucki. (The fact that it is a Business Associations casebook, of course, is a matter we will have to discuss.) 

Andrew is a creative, prolific scholar. How work typically opens with a paradigm-busting insight, or series of insights, which he uses to reframe a familiar legal debate. The result is work that cuts across doctrinal categories, building new theoretical infrastructure.

This is a great pick up for UCLA. Andrew will join my colleagues Iman Anabtawi, Sung Hui Kim, and Jim Park in our corporate law group, bringing additional strength to the group. I am biased, of course, but I think UCLA Law already had one of the strongest corporate law groups in the country and Andrew's joining us puts us right at the top.

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.

Pro bono legal representation may be available to University of California job candidates who were rejected because their diversity, equity, and inclusion statements scored too low

Brian Leiter has the story:

Pro bono legal representation may be available--read on.

As we've noted on several occasions, schools in the UC System have begun requiring applicants for faculty positions to submit a diversity statement. In most searches, these statements have been evaluated holistically as part of an overall application. However, several UC schools have participated in Advancing Faculty Diversity Pilot Programs where contribution to diversity statements have been evaluated as a threshold requirement. In other words, for these searches, if you didn’t get a passing score on your diversity statement, you were not considered further.

This methodology has had an enormous impact. As we discussed last month, for a 2018-2019 search in the Life Sciences, UC Berkeley rejected 76% of the applicants without even considering their research, teaching skills, or academic merits (out of 893 qualified applicants, 679 were eliminated solely because their diversity statements were deemed inadequate). ...

If you applied to and were rejected to one of these searches, or are planning to apply to one of the upcoming searches, you can help to challenge UC’s unlawful policies. Daniel Ortner from the Pacific Legal Foundation is looking for individuals who were impacted by these searches to potentially offer free pro bono representation. You can reach him at dortner@pacificlegal.org.

No word yet on whether I'll need him. In any case, maybe this is what the UC Regents are discussing in their closed door meeting today. 

What is the "Faculty Diversity Item" Litigation Matter the University of California Regents are Discussing Today?

The UCLA Faculty Association spotted an interesting item on the UC Regents agenda for today (their emphasis):

The full Board’s second meeting in the open session on January 23 includes discussion of the “State of Title IX” and “Faculty Recruitment, Retention and Diversity.” But there seems to be a follow-up in the closed session that comes after the open one regarding “Legal Considerations Relating to Faculty Diversity Item.” In that seeming follow-up, it appears that some kind of litigation is pending or potentially pending. Whether the reference is to faculty diversity statements that are now being required at UC in many academic personnel actions is unclear. As prior posts on this blog have noted, there has been controversy about those diversity statements in national news media.* Are the statements being challenged through possible litigation? It would be nice to know, although it appears we won't. Note that there is a recent history of "surprise" items popping up on the Regents' agenda.

The Regent's agenda states:

Board (closed session)

Location: Robertson Auditorium

B6X  Discussion  Legal Considerations Relating to Faculty Diversity Item

Closed Session Statute Citation: Litigation [Education Code §92032(b)(5)]

Note: This section of the Education Code refers to “matters involving litigation, when discussion in open session concerning those matters would adversely affect, or be detrimental to, the public interest.”

It would be very nice to know what's going on here.

Apparently I've become a "case to watch" with respect to the University of California mandatory diversity, equity, and inclusion statements

Regular readers will recall my post about my diversity statement, which I was required by the UC system to submit as part of the package for a pending merit raise review. You'll also recall my posts (e.g., here) expressing concern that these statements effectively impose a mandatory political litmus test. The post setting out my statement went viral, ending up in the Wall Street Journal's Notable and Quotable column.

I'm not the only UC faculty member pushing back, of course. Abigail Thompson, chair of the mathematics department at the University of California–Davis, famously described the problem in a Wall Street Journal editorial:

To score well [on a diversity statement], candidates must subscribe to a particular political ideology, one based on treating people not as unique individuals but as representatives of their gender and ethnic identities. . . . This system specifically excludes those who believe in a tenet of classical liberalism: that each person should be treated as a unique individual, not as a representative of an identity group. Rather than helping achieve inclusion, these [rubrics] act as a filter for those with nonconforming views.

Now the story has been picked up by Forbes. Michael Poliakoff explains:

The University of California stipulates that departments at its campuses must require faculty applicants to submit “diversity statements,” in which applicants affirm their commitment to diversity and inclusion as social ideals, detail their contributions to diversity in academia, and outline their plans for cultivating a diverse community on campus. The requirement for a diversity statement seems reasonable, given the imperative of understanding students of different backgrounds and teaching them effectively. This is particularly important given UC’s rich mixture of cultures and backgrounds. Different University of California campuses have used the diversity statements in different ways in hiring and promotion, some, so far, in relatively benign ways.

Some, however, in quite dangerous ways.

What has emerged most clearly at Berkeley is likely to have catastrophic implications for the intellectual life of the University of California, especially if such practices find homes at other campuses. A new “Initiative to Advance Faculty Diversity” adopted by several departments at Berkeley is the use of a rubric as a screening process to eliminate all applicants who do not conform to the approach to diversity that Berkeley’s Office for Faculty Equity and Welfare might have in mind. A candidate who describes, in the language of the rubric, “only activities that are already the expectation of Berkeley faculty (mentoring, treating all students the same regardless of background, etc.)” is deemed to have given an unacceptable answer. And there are real consequences for the candidate. In pilot programs, the rubric, to repeat, has been used—and continues to be used—as a screening tool, deployed before the faculty hiring committee can give due consideration to the academic merits of the candidate.

... News flash from Berkeley: A 2018–19 search for a professor in life sciences cut the applicant pool from 894 to 214 based solely on the diversity rubric. Who were the scientists whose academic credentials were never reviewed? What other UC academic programs are now preparing to adopt such practices? 

... If the likes of Albert Einstein or Enrico Fermi or any other great scholar and teacher did not craft a diversity statement judged satisfactory in light of standards devised by a campus inclusion and equity bureaucracy, his or her application could stop cold. 

At this point the story takes a personal turn:

In this regard, Stephen Bainbridge, professor of law at the University of California–Los Angeles, will be a test case. Professor Bainbridge shared the diversity statement that he submitted for his merit raise, which emphasizes the importance of differing viewpoints in forming a diverse community. If the university cherishes intellectual diversity, then it will value his perspective to support students of faith and conservative political views. It is a case to watch.

Some University of California faculty are pushing back against mandatory diversity statements

Regular readers will recall my post about my diversity statement, which I was required by the UC system to submit as part of the package for a pending merit raise review. You'll also recall my posts (e.g., here) expressing concern that these statements effectively impose a mandatory political litmus test. As I pointed out:

Even the relentless liberal Daily Bruin student newspaper recognized this basic fact (emphasis supplied):

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.

The post setting out my statement went viral, ending up in the Wall Street Journal's Notable and Quotable column.

I don't know if my speaking out had any impact, but I have heard the at UC Davis a group of faculty is gathering signatures in support of the following resolution:

Resolved: 'Diversity, Equity and Inclusion Statements shall not be mandatory for the appointment or for the advancement of faculty. ‘  

The proponents have set up a website with background information and university documents on how these statements are to be evaluated. The documentation makes it clear that the diversity statements are being scored and that a low score will be disqualifying. 

It also looks like the pushback may have gotten the attention of the Regents. The agenda for the closed session of their next meeting includes an item on "Legal Considerations Relating to Faculty Diversity Item." The UCLA Faculty Association blog speculates:

The full Board’s second meeting in the open session on January 23 includes discussion of the “State of Title IX” and “Faculty Recruitment, Retention and Diversity.” But there seems to be a follow-up in the closed session that comes after the open one regarding “Legal Considerations Relating to Faculty Diversity Item.” In that seeming follow-up, it appears that some kind of litigation is pending or potentially pending. Whether the reference is to faculty diversity statements that are now being required at UC in many academic personnel actions is unclear. As prior posts on this blog have noted, there has been controversy about those diversity statements in national news media.* Are the statements being challenged through possible litigation? It would be nice to know, although it appears we won't. Note that there is a recent history of "surprise" items popping up on the Regents' agenda.

Two thoughts on possible legal challenges. First, Brian Leiter posted that he had been contacted by lawyers looking to challenge these statements and inviting faculty to contact him. Second, several conservative public interest law firms contacted me after my post went viral. They are definitely interested.

So watch this space.

PS: No news yet on whether I'll get that merit raise.

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.

Joan Heminway identifies some common mistakes Business Associations students make

Good advice to BA students:

• Agency rules and management rules in business associations law are often confused. Agency rules express the authority of a person to act on behalf of the firm in transactions with third parties--those who enter into transactions with the firm. For example, by default under the RUPA, each partner in a RUPA partnership is an agent of the partnership that can bind the partnership to contracts with others. Management rules, by contrast address the governance and control authority of a particular firm constituent within the governance structure of the firm. Thus, agency rules relate to authority that is outward-facing (pertaining to transactional parties) and management rules relate to authority that is inward-facing (pertaining to internal constituents of the firm). For example, by default under the RUPA, each partner has an equal right to manage the partnership.
  
  
• Similarly, the concept of "limited liability" is commonly understood to refer to the limited liability of a firm owner for the firm's obligations. For example, under the RUPA, each partner is jointly and severally liable for the obligations of the partnership, whereas under corporate law, shareholders are not personally liable for the corporation's obligations to third parties. Exculpation, which eliminates the monetary liability of directors in the corporate context, relates to corporate governance claims--legal actions for breach of the fiduciary duty of care. This is internal governance litigation that does not relate to corporate obligations to third parties. So, while exculpation does limit (eliminate) a director's personal liability for a breach of the duty of care, it is not part of what people generally refer to as "limited liability" in a corporate context.
  
  
• Fiduciary duties are typically understood to instill or increase trust in relationships. Accordingly, they are commonly employed to provide a benefit in circumstances involving untrustworthy business associates. Yet a number of you seemed to think they were an undue burden to business venturers in circumstances where trust may be lacking (i.e., where fiduciary duties should be useful). You will need to make a solid argument to most folks to justify that the detriments outweigh the benefits.

Conservative faculty job candidates should apply to the University of California and then sue when they’re rejected.

Brian Leiter and I agree on very little politically, but we share a surprising number of academic values. To wit, his argument that the University of California’s requirement that candidates for any personnel action submit a statement on their involvement in diversity, equity, and inclusion “is a lawsuit for unconstitutional viewpoint discrimination (and maybe also race discrimination) waiting to happen“:

I recommend that those applying for jobs in the University of California system say only this in the diversity statement:  "I decline to supply this statement which constitutes illegal viewpoint discrimination in violation of my constitutional rights."   There are already lawyers gearing up to bring legal challenges; I hope they act soon.   If you have been rejected from a University of California search, and suspect it was on grounds of insufficient ideological purity about "diversity," please get in touch with me.  I can connect you with one public interest legal organization looking for plaintiffs.

To which I would add just this: go get ‘em.