ProfessorBainbridge.com

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.

 

 

Samuel Moyn misunderstands the purpose of teaching corporate law

Michael Simkovic:

In a thought provoking essay in the Chronicle of Higher Education, Professor Samuel Moyn argues that law schools' focus on judge made law in general, and the Supreme Court in particular, is counterproductive especially when justified on ostensibly progressive grounds.  Offline, Professor Moyn suggested that, to better help students understand how the legal system influences the distribution of economic and political power, progressives should focus more on teaching business law subjects like taxation and anti-trust.

Samuel Moyn, Law Schools Are Bad for Democracy: They whitewash the grubby scramble for power, Chronicle of Higher Education, Dec. 16, 2018.

In re the highlighted portion, insert eye roll here. Personally, I thought the purpose of training students in business law was to make them more effective business lawyers by teaching them the skills transactional lawyers use in the real world, not to fill their heads with a bunch of progressive nonsense about the evils of capitalism.

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.