Leiter Reports: A Philosophy Blog

Northwestern Law's "Newer, More Strategic Plan"

Some funny Northwestern Law students have the details here. 

(Thanks to Paul Danielson for the pointer.)

Osgoode/NYU Launch New 4-Year Degree Program to Earn Canadian LLB and American JD

MOVING TO THE FRONT from January 27, 2005, because of further updates, below.

=================================

Osgoode Hall School of Law at York University, Toronto (Canada's oldest, and at least some say, most prestigious law school) and New York University School of Law have announced a new four-year program that will permit students to earn both a Canadian and American law degree, thus enabling a student to sit for the bar exam and practice in either country.  While there are some existing combined programs between Canadian and American law schools, this is the first program between top schools in each country.  The Osgoode press release is here.

As things stand, many of the top Canadian students pursue law degrees in America, but should they decide to return to Canada, they then have to take a variety of courses before they are eligible for admission to the bar.  This new combined degree option permits a student to do all the necessary schooling up front, and thus to be in a position to pursue practice in either country, or both.  Given the fierce competition for the top Canadian law students, this new program may give Osgoode an edge against its downtown rival, the University of Toronto, generally considered to be the other top law school in Canada.  Will Toronto follow suit in establishing a similar combined degree program?  We shall see...

UPDATE:  An Osgoode alum writes with a correction:  "Osgoode is many things but the oldest law faculty/school in Canada (common law or civil law) isn't one of them. Even OHLS, itself, doesn't claim that position.  Depending one's views of what one needs before there's officially a law school, Osgoode is either 2nd, 3rd or 4th oldest.  For example,  generally accepted working dates for the orgins for the law faculties at the four oldest schools are

University of Toronto 1887
Dalhousie 1883
McGill 1848 (I believe civil law only, at this stage)
Osgoode 1889

ANOTHER UPDATE:  A Canadian law professor writes that the University of Toronto Law Faculty "was founded in 1949.  (Their website does, it is true, fudge the issue:  it says 'The law school took on its modern form under the leadership of Cecil Wright in 1949, building on the foundations of the law school established at the University of Toronto in 1887.'  The 1887 dept, which expired, had nothing to do with the 1949 law school.)  Osgoode is the oldest law school in Upper Canada."  McGill is the oldest in lower Canada.  For a period of time, you could only practice law in Ontario (including Toronto) if you had graduated from Osgoode.

Of course, as someone else wrote to me, the really interesting issue is which of these two dominant schools in Canadian legal education is better.  From an American perspective, the striking thing about Toronto is that it is largely alone among Canadian law schools in having a significant presence in law & economics (Michael Trebilcock, Edward Iacobucci et al.), which in turn gives it significant visibility in American legal scholarship, where law & economics looms large.  Osgoode, by contrast, being the more politically left of the two schools, has never had a major law & economics presence (law & economics is not, as I understand it, much of a presence in Canadian law schools generally of course, but in the case of Osgoode, its absence has something to do with the left tradition on the faculty, not traditionalism about legal scholarship; in many other respects, Osgoode is highly interdisciplinary in its approach to legal scholarship).

The Meaning of First-Semester First-Year Law School Grades

Orin Kerr (Law, George Washington) makes a number of sensible points here.

Openly Gay Law Professor Sues Michigan Over Tenure Denial

Peter Hammer, an expert in health law who is now an Associate Professor of Law at Wayne State University, was denied tenure at the University of Michigan Law School in 2002; he has now sued the University, alleging discrimination against him as an openly gay man who lived with a same-sex domestic partner.  A copy of the complaint is here.

Having neither expertise in his area of legal scholarship, nor knowledge of the particulars of the tenure decision, I can not comment on the merits.  There are some general facts mentioned in the complaint perhaps worth commenting on, but which don't go to the ultimate merits.

The complaint notes that during the past 40 years "52 individuals have been considered for tenure [at Michigan Law] of which 48 were recommended for tenure within the standard time frame.  The only individuals not recommended for tenure within the standard time frame included one African-American woman (ultimately granted tenure after spending eight years in the rank of an untenured Associate Professor), two white women (one ultimately denied tenure and one who withdrew from consideration for tenure), and the Plaintiff (the only openly gay male to be considered for tenure)."  A few observations:

(1)  Tenure denials prior to the 1990s were extremely rare, even at the top law schools.  When I was a student at Michigan Law, there were a half-dozen-or-so senior faculty who clearly would not have been granted tenure during the 1990s.  And, of course, prior to the 1970s, top law schools clearly discriminated against both women and minorities in admissions and faculty hiring, so there were hardly any on the faculties who would have even been considered for tenure.  What that means is that the 40-year time frame is the wrong time frame for detecting a pattern of discrimination in tenure decisions.

(2)  What makes these cases so difficult is that one also needs to know something about the publication records of the individuals who did not get tenure in the normal time frame and something about the qualitative evaluation of those publications. 

(3)  The other gay men on the faculty were considered for tenure decades ago, and so it is less surprising that they were closeted at the time of their favorable tenure decision.

The law school, by the way, deemed "a substantially less prestigious institution" than Michigan in par. 22 of the complaint is the University of Wisconsin Law School.  Ouch!

Citation Studies, Again

Awhile back, I reported on my law school ranking site, that I wouldn't be doing any more citation studies of individual faculty, because,

[C]itation counts [of individuals] are more misleading than informative, for reasons various readers have pointed out.  First, they say more about which areas are “hot” in the legal academy (and thus well-represented in law reviews) than about who is doing the most important work.  Thus, the lists, as before, are overwhelmingly dominated by scholars in the public law fields, Critical Race Theory, and some law and economics.  Second, the ordinal listing bears no relationship at all to actual judgments that informed scholars would make about the relative quality of the work of scholars on the top 50 list.  Third, while the list represents overall a strong and distinguished group of scholars, it’s still the case that a quarter of those on the list would have difficulty being appointed at many top law schools:  so judgments about the merit of the work still varies.  Fourth, and most seriously, the list misleads by whom it omits:  Joseph Raz, for example, is a better legal philosopher than Ronald Dworkin, but he is absent; many important members of the Yale faculty are represented, but at least equally talented faculty are missing (Carol Rose, Robert Ellickson, Alan Schwartz, Jerry Mashaw, Roberta Romano, etc.); the same for the Berkeley faculty (Robert Cooter, Franklin Zimring, Robert Merges, etc.), the Chicago faculty (where are Saul Levmore, Lisa Bernstein, R.H. Helmholz, etc.?), the Texas faculty (Lawrence Sager, Philip Bobbitt, Jane Stapleton, etc.), the Virginia faculty (G. Edward White, Robert Scott, Kenneth Abraham, Michael Klarman, etc.), the Columbia faculty (Thomas Merrill, Ronald Gilson, Kent Greenawalt, etc.) and on and on.  The sins of omission on lists like these are, I fear, too substantial to make it worthwhile to compile them in the future; perhaps someone else will undertake the task.

Overrepresentation of certain fields--which are perennial favorites in the law reviews--can, of course, be dealt with by looking to field-specific citation counts (an example is here).  And others have suggested that many omissions (as well, perhaps, as strange inclusions) would be cured by looking at citations per year in teaching to measure scholarly impact in a way that does not simply favor those who have been around longer.

To illustrate why that isn't right, take a look at the ten most-cited-per-year faculty in the U.S. in a field I know a bit about, namely, law and philosophy (approx. age of faculty member in parentheses)

1.  Ronald Dworkin (73) New York University/University College London (140/year)

2.  Jeremy Waldron (51), Columbia University (54/year)

3.  Martha Nussbaum (57), University of Chicago (46/year)

4.  Dennis Patterson (49), Rutgers University, Camden (39/year)

5.  Jules Coleman (57), Yale University (37/year)

5.  Michael Moore (61), University of Illinois (37/year)

7.  Larry Alexander (61), University of San Diego (36/year)

8.  Joseph Raz (65), Columbia University/Oxford University (33/year)

9.  Brian Leiter (42), University of Texas, Austin (32/year)

10. John Finnis (64), University of Notre Dame/Oxford University (28/year)

It is certainly amusing to come in one cite per year behind the most important living figure in legal philosophy, but it is also indicative of the limitations of the measure--as is the fact that Raz trails all the others on the list, including those, like Martha Nussbaum who don't do much work in legal philosophy at all.  The explanations for the odd ordering are simple:  Dworkin's work relates to constitutional law and theory, which is what accounts for most of his citations; Patterson and Moore also work in substantive areas (commercial law and criminal law, respectively), as well as legal philosophy; most of my citations come from my work on American Legal Realism and the philosophical foundations of evidence, both topics more popular in U.S. law reviews than, e.g., the nature of legal authority or reasons; Coleman has done seminal work in tort theory and the philosophical foundations of economic analysis of law, both topics of far more interest to law professors; and so on. 

The simple fact is that work at the core of legal philosophy is not much-discussed in law reviews, which is why someone like Raz who has done more important work than probably anyone on the core issues fares relatively poorly by citation measures.  The latter fact also explains why this top ten list omits a host of folks who would be on most experts' list of ten-or-so top writers at the intersection of law-and-philosophy in the U.S. (such as Liam Murphy and Stephen Perry at NYU, Leslie Green who is half-time at Texas, Scott Shapiro at Cardozo, and so on).

If citation studies are less illuminating than expert evaluations in particular fields, there is still reason to hope that across whole faculties some of the omissions will even out.  Certainly our last study of per capita scholarly impact produced a plausible rank-ordering of schools by faculty quality, even if certain schools (e.g., Georgetown) benefitted from prominence in "trendy" areas (like Critical Race Theory).  Perhaps it is the case that even if the ordinal listing of faculty by citations bears only a crude relationship to expert opinion in any particular area, an ordinal listing of faculties by per capita citations fares better because there are many fields where citations better track quality and academic reputation.  Although it has been awhile since I have updated the law school ranking site, the next major initiative will be an updated ranking of law schools by per capita citations.  We shall see if the results bear this out.

Former Stanford Law Dean Kathleen Sullivan to Join Law Firm

Details here.  The article reports she will remain on the Stanford faculty, though one would imagine the kind of practice she is charged with building will cut substantially into her classroom time.  Stanford will need to make some constitutional law appointments soon!

UPDATE:  A faculty member at Stanford writes:  "You're 100% right we need to make some additional appointments in con law, and we have a number of visiting and permanent offers out there already, and a number of past visitors who are under consideration.   But this is also the first time [in recent years] that
we have three sixty person sections of Con Law I that are all being taught
by permanent faculty members -- [Dean] Larry Kramer, Larry Lessig, and Pam Karlan.  (In recent years, we've had one of the sections taught by a visitor, except for the one year we had two ninety-person sections instead.)  And
notwithstanding Kathleen's new association with Quinn Emmanuel, her classroom hours will actually increase (once her sabbatical is over) because she's not deaning.  My guess, for what it's worth, is that she'll pretty regularly be teaching both Con Law I and Con Law II, a combination that she did only once in the last six years."

Well-Known Clinical Prof Marshall from Northwestern to Stanford Law

Lawrence Marshall, currently at Northwestern, now joins the long list of faculty to depart under the tenure of Dean Van Zandt:  Marshall has accepted a post to run the clinical programs at Stanford Law School, where he is visiting this year.

(Thanks to John Elias for the pointer.)

A Newish Blog by Two Corporate Law Professors

Here, by Gordon Smith from Wisconsin and Christine Hurt (one of our distinguished alumnae, as it happens) at Marquette.  Sorry this notice is a bit late in coming.

Tax scholar Lederman from George Mason to Indiana

Leandra Lederman (tax, law and economics), currently at George Mason, has accepted a Chair in the law school at Indiana University, Bloomington.  In addition to substantial contributions to tax scholarship, she is also a very good teacher, as we learned when she visited at Texas a couple of years ago.  A good catch for Indiana!

Law Schools with Largest 10-Year Tuition Hikes

The January 2005 National Jurist has striking data on which law schools have raised tuition the most in the last ten years; unsurprisingly, state schools dominate the list (yet most still remain far cheaper than their peer privates).  Strikingly, the University of California law schools are four of the top ten!  Here are the ten law schools that have raised tuition the most between 1993 and 2003; next to each school's name is the percentage increase and the 03-04 (resident) tuition.

1.  University of North Carolina, Chapel Hill (589.7% increase, $10,429)

2.  University of Hawaii (376.2% increase, $10,942)

3.  University of California, Davis (294.5%, $17,195)

4.  University of California, Los Angeles (277.8%, $17,012)

5.  University of Arizona (272.9%, $10,604)

6.  University of California, Berkeley (269.1%, $16,294)

7.  University of California, Hastings (257.7%, $15,615)

8.  University of Washington, Seattle (242.6%, $13,630)

9.  Arizona State University (235.6%, $9,545)

10. University of Idaho (214.7%, $6,696)

Of the other top state law schools besides Berkeley and UCLA, Michigan--which is already de facto private (in terms of state support and percentage of state residents)--had the lowest increase during the 10-year period, of 123.5%.  But that still left it with an eye-popping tuition of $27,884, higher than many private law schools, and just a few thousand less than the top private law school that raised tuition the most over the last decade, Northwestern (which increased 86.5%, to $33,896).  Virginia, which has also become de facto private, raised tuition the most, 214.4%, for a 2003-04 tuition of $23,798.  Texas was in the middle, raising tuition 159.4%, but coming in with a rather modest $11,462 2003-04 tuition, making it (happily) still the cheapest of the top law schools.

Indeed, with the exception of Michigan and Virginia, the other notable fact remains how much cheaper the state schools still are by comparison to the privates.  Harvard Law School, for example, ranked 104th for largest 10-year increase (76.4%), but comes in with a typical top private school tuition of $32,392.  Emory, at 100th (78.8% increase), charged $30,692 in 2003-04:  triple North Carolina and double Hastings, schools that might be deemed reasonably comparable state-supported schools.   Northwestern, as we saw, is nearly double UCLA, and triple Texas.

Also striking is that some traditionally strong state law schools have not raised tuition nearly as much as others (typically because of legislative prohibitions on doing so).  Wisconsin, for example, came in at 50th, raising tuition a "mere" 119.8%, and charging a very modest $9,557 in 2003-04.  Colorado came in at 83rd, with a tuition hike of 88.2% over the decade, and an even more modest $7,645 in tuition in 03-04.  But Colorado has also been bleeding faculty (in both law and philosophy), a fact not unrelated to the low tuition, and Wisconsin has been punished in U.S. News because of its low per capita expenditures (and lower-than-average salaries compared to peer schools), also a function of the low tuitions.

The writing on the wall is, sadly, clear:  those "state" schools that follow the University of California system model (or, at the extreme, the Michigan and Virginia models) will thrive over the next decade, those that don't, won't.  But the equally predictable outcome is that a decade from now, the tuition gap between nominally public and genuinely private law schools is likely to be very modest, much like the gap between Michigan and Northwestern today.

UPDATE:  A reader familiar with the situation at Colorado writes:

There is a significant tuition increase effective the current academic year, after the survey period.  It has now gone to about $11,000 for in-state and some $26,000 for out-of-state.  See here.  They are also increasing class size somewhat.  In addition, they have finally secured the funding for a new building, which will be complete in time for the 06-07 academic year.  (Much of that funding comes from the University).

This is bad news, as you suggested, for the continued existence of low-cost alternatives of reasonable quality (though Colorado is still a bargain, even for out-of-staters, only because everything is relative).  But as you also suggested, it is probably necessary in the current climate, and probably good news for the school's faculty quality going forward. 

Penn's Rubin to Be New Dean of Vanderbilt Law

Prolific and influential legal scholar Edward Rubin--who has written very widely in administrative law, commercial law, constitutional law, and legal theory, among other areas--will be the new Dean of Vanderbilt University School of Law, succeeding the highly successful Kent Syverud.  Rubin has taught at the University of Pennsylvania since 1999, and before that taught for nearly two decades at Boalt Hall School of Law at the University of California at Berkeley, where he is now officially emeritus.

Comparative law expert Markesinis Knighted by Queen of England

Details here.  Knighthoods are rare in general, and especially for law professors and non-Brits.

Half of U.S. Law Students Unhappy with their Career Services Office

Article here (Chronicle subscriber access only), and the original survey report here.  From the article:  "Half of American law students feel that their schools do a lousy job of helping them with job searches and career counseling, according to the results of a survey being released today."

Prediction:  since complaints about career services offices are legion at all law schools, all those law schools with less than half the students aggrieved will take this study to vindicate the status quo.

Berkeley's Law School Looking to "Privatize"

From the current Chronicle of Higher Ed (subscriber access only):

Frustrated with the level of public support for his institution, the new dean of the University of California at Berkeley's law school says he would like to partly privatize the school to allow it to raise more money and to control how that money is spent.

"In the sharply competitive world of top law schools, leadership requires continuing investments that the state of California has been unwilling to make," said Christopher J. Edley Jr., who took over as dean of the Boalt Hall School of Law in July.

"Everyone is just praying for the Legislature to come to its senses, but 'faith-based fund raising' isn't working," Mr. Edley said in an interview on Monday. His views were first reported on Monday by the Los Angeles Times.

California provides just 30 percent of the law school's budget today, down from 60 percent in 1994, said Mr. Edley, a former Harvard University law professor and noted civil-rights lawyer. To make up the difference, the law school has nearly doubled its tuition over the last four years, to about $22,000 a year for state residents and about $34,000 for out-of-state residents.

Unless the law school is able to increase private contributions substantially and gain more control over its budget, it will not be able to compete with the nation's top law schools, Mr. Edley said. Because Berkeley cannot pay senior faculty members as much as other elite law schools do, "that leaves us vulnerable to raids."

Two observations:

(1)  I am not aware that any of the faculty who have left Boalt in recent years--Mark Lemley to Stanford, Robert Post to Yale, Edward Rubin to Penn, Stephen Choi to NYU--did so because of salary issues.  This isn't to deny, of course, that top state schools are under pressure to pay competitively with the top private schools (or the top nominally "public" schools that are already de facto private, like Virginia and Michigan); it is to express some skepticism that, to date, this has been a major issue for Berkeley.

(2)  There is a certain irony in the fact that the first major act of a liberal Harvard Law School professor brought in to run a major public law school is to carry out the general conservative imperative of modern America, namely, the evisceration of the public sector, replacing it with private surrogates that, invariably, favor those with wealth over those without.  Yet another confirmation of the familiar Marxian point that systemic features of the socio-economic situation determine choices quite independent of personal ideology.

McGowans from Minnesota Law to San Diego

David and Miranda McGowan are the latest law faculty to depart the University of Minnesota for the University of San Diego School of Law; he works in corporate law, antitrust, and intellectual property, she in antidiscrimination law, statutory interpretation, and property.  They follow two other Minnesota faculty who have moved South to San Diego in just the last couple of years:  Donald Dripps (criminal procedure) and Karen Burke (tax). 

"A Narrow and Technical Issue"

A propos the recent discussion of Harvard's ethical blindspots, Michael Perry (Law, Emory) calls to my attention this thoughtful critique of Harvard's handling of misconduct by another member of its faculty; an excerpt:

Did the customary conflict-of-interest provisions apply to Harvard economist Andrei Shleifer when, under contract to the U.S. government in the mid-1990s, the young professor led Harvard's mission to Moscow?

After a three-day trial last week, a jury took barely more than two hours to decide that indeed they did.

With the verdict, the government's case against Harvard University and one of its star economists moved to a new level. Harvard's potential liability escalated somewhat, beneath a roughly $40 million ceiling.  So did Shleifer's personal exposure, conceivably as much as $120 million, on a charge of submitting false claims.

U.S. District Court Judge Douglas Woodlock entered a summary judgment against both defendants last summer -- Shleifer on a previous count of fraud for having attempted to set up a mutual fund business with a colleague, Harvard on breach of its contract to provide disinterested advice, rather than the treble-damages False Claims Act violation for which the government had asked.      

What the jury's verdict really changed, according to attorneys for two of the three main parties in the matter, were the incentives to settle the case.

Now that Harvard's bold claim has failed -- that it didn't matter if its chief adviser to the government of Russia invested hundred of thousands of dollars in Russian securities, since he was living in Newton, Massachusetts, at the time and commuting only periodically -- attorneys for all sides once again will meet and attempt to come to terms....

Harvard's reaction Thursday was terse. "Today's verdict related to a narrow and technical issue in the case.  Harvard remains confident that as the matter proceeds we will demonstrate that the work on the Russia Project was of great value to both the Russian Federation and the United States government...."

...

Justice Department attorney Sara McLlean made the government's opening argument. "This is a case about conflict of interest rules and common sense," she began. "Harvard professor Andrei Shleifer was the head of a very important foreign aid project in Russia, and now his lawyers and Harvard's lawyers are going to come in here and tell you that the conflict of interest rules for that project didn't apply to him.

"The conflict of interest rules in question said that people couldn't invest in the foreign countries to which they were assigned, and as Judge Woodlock has just told you, the question for you is going to be: Was Russia a foreign country to which Professor Shleifer was assigned?"  The answer, asserted McLean, would be yes.

The single most compelling piece of evidence the government offered probably was a letter Shleifer wrote in June 1995 to Jim Norris, the Moscow representative of his employer, the U.S. Agency for International Development.

"Dear Mr. Norris,"

"Thank you for your letter. Indeed I was well aware of your interest in meeting me. It is certainly my intention to keep you informed about the status of the HIID [Harvard Institute for International Development] projects. I very much wanted to meet with you on my last trip, but it was simply impossible. This was a very short trip, made more or less on an emergency basis at [privatization chief] Maxim Boycko's request, and I had no spare time at all.

"I arrived in Moscow on Friday evening.  Friday night, Saturday and Sunday morning were spent in a meeting with several Russians..., discussing the possibilities of tax reform in Russia.  The result of this was a memo prepared for Maxim.  Unfortunately, given my understanding with Maxim about the confidentiality of this work, I cannot send you a copy of the memo.

"I spent Sunday afternoon at the Legal Reform Project [which was drafting measures for regulatory reform], discussing mostly personnel issues that were absolutely urgent.  As you probably know, the reduction by USAID of post-differentials has created huge problems for several people, who wanted a compensatory raise and threatened to quit. It appears that these issues have been resolved, but at a great cost of time. I also spent some time on Sunday evening with [Federal Securities Commission chairman] Dimitri Vasiliev and Jonathan Hay discussing the future of the Securities Commission and the GKI.

"As you can see, I had a pretty packed trip -- even more so than usual. While I realize that it is important for me to see USAID when I come to Moscow, you should recognize the workload that I have since Maxim's and [soon-to-be chief economic adviser Anatoly] Chubais' promotions have been put in place has risen enormously.

"You also have permanent access to Maxim, Jonathan and others who reside in Moscow, and who are obviously intimately familiar with all HIID's activities.  Thus, while I intended to make every effort to see you, I hope you appreciate the level of activities that I have to monitor and be involved in. And, as I have already mentioned to you..., the efforts to uses others to perform many of these tasks simply have not worked.  I run an extremely lean operation in the U.S. and most people working for us insist on dealing with me."

Plenty of other evidence was introduced, including various Harvard blandishments of "impartial oversight" in response to government's help-wanted advertisement that "a completely neutral third party, void of any vested interest in the [privatization] contracting process, is required."

One Harvard proposal promised, "During the first year, Dr. Shleifer will work full-time on the project, dividing his time between the U.S. and Russia...."

...

Assistant U.S. Attorney Sara Bloom closed the government's argument. "In this country, no one is above the law," she began. "Today these defendants stand before you literally arguing that the rules, the conflict of interest rules of the United States government, do not apply to the Harvard professor who headed a $57 million U.S. government program in Russia.

"Would it make any sense to read this provision to apply to the American secretaries, to the bookkeepers, to the assistants, and not to the man at the top, the man who was giving advice to the Russian officials on the creation of securities markets in Russia, to the man who directed all the other employees, to the man who had the most information about the financial markets in Russia of everyone on the project?"

...

At 43, Andrei Shleifer no longer exhibits the boyish enthusiasm of the teenager who arrived from Russia in 1977 in Rochester, New York, knowing no more English than what he had learned from episodes of "Charlie's Angels" on television. Within a of couple years, a sharp-eyed recruiter had offered him a scholarship to Harvard College. And there, as sophomore, he entered into a life-changing friendship when he brashly offered to correct the math errors in a paper by first-year assistant professor of economics named Larry Summers. 

Today, Summers is president of Harvard University. Shleifer, too, has come a very long way. Despite the legal proceedings that have been grinding on against him for most of a decade, Shleifer has continued to rise in the economics profession. He sold his interest in a prosperous money management firm some years ago; he is a moderately wealthy man. Today, he edits the prestigious Journal of Economic Perspectives for the American Economics Association. He is considered a leading expert on finance, behavioral economics and, of all things, corruption....

Mainly, he is a man who does not seem to possess a fundamental understanding of the predicament in which he finds himself -- in the dock because of the moral compass of a handful of young government lawyers who considered that even Harvard University with its lofty good intentions must obey the law. He is hoist on his own petard in the very sort of legal system whose robust checks and balances he was supposed to explain to the government of the Russian Federation....

So why did the trial take three days?  Why did Harvard spend all that money on a question that took a laughing jury, unanimous from the start of its deliberations (by jurors' own accounts), little more than two hours to decide?

That is the really interesting question. There's something unexplained about Harvard continuing to defend the integrity of its professor, the expert on corruption who began investing in Russian securities with his deputy almost as soon as he got the advisor's job, who argues now that the conflict of interest rules didn't apply to him. 

That's what makes this such a fascinating case....The sheer audacity of putting so weak a case before a jury makes you think there must be something more at stake.

At a minimum, when the collective judgment of those who run America's oldest university differs so radically from the common sense of its everyday citizens, as expressed by the jury last week, the institution itself must be alarmed, and enter into a deeper self-examination.

And at a maximum? What if the men and women at the pinnacle of American education simply don't know wrong from right? The "narrow and technical issue" at the heart of Harvard's ill-fated Russia Project may be one of those innumerable pivots on which American history regularly turns.

Perhaps the myth of left-wing Harvard will have to be joined by the myth of ethical Harvard?

Wyman from NYU Law to Toronto

Katrina Wyman (environmental law), currently an assistant professor of law at New York University, has accepted an offer from the law faculty at the University of Toronto.  While leading Canadian law faculties are frequently raided by American schools, moves back North are more rare (the only other one I can think of recently involved Michael Byers [international law] who moved from Duke to a Canada Research Chair at the University of British Columbia).

Two Lateral Hires for Villanova Law

Villanova has just made two senior appointments, a scholarly couple, David Caudill (evidence, property, postmodern legal theory) from Washington & Lee has accepted a Chair at Villanova and Penelope Pether (law & literature, criminal law, postmodern legal theory) from American University will join the tenured faculty.

Dean of Massachussetts Law School Excoriates Harvard Law School on Plagiarism, Torture

Here.  Wow!

(Thanks to Anthony D'Amato for the pointer.)

UPDATE:  Most memorable line:

[W]hile I have always been in favor of diversity of viewpoints on a faculty, and our own faculty ranges from very liberal to quite conservative -- although we see no need to hire the right wing kooks who seem to be taking over the world -- I have lately begun to wonder about the intellectual diversity argument. The right wing has taken over the government, radio, part of television, a significant part of the newspaper world, and certain religiously based universities. Having taken over much of the world, is it really necessary that they be given a major voice in universities too? They’ve done pretty well without a major foothold at lots of universities. Why give these nuts still more power?

San Diego Law Dean Rodriguez to Resign Effective June 30, 2005

Dan Rodriguez--who left Boalt to become Dean of the University of San Diego School of Law in 1999--will resign at the end of this academic year.  There can be little doubt that Rodriguez's tenure transformed San Diego, making it a genuine national contender in the market for faculty talent and establishing the school, along with George Mason on the East Coast, as one of the "up-and-coming American law schools" of the new century. 

I began my own teaching career at San Diego in 1993, moving to Texas in 1995.  There were already many very good faculty in place back then (including Larry Alexander, whose loyalty to the school since 1970 has been crucial to its recent successes), but the school was somewhat paralyzed in appointments matters by ideological and personal disputes.  Rodriguez successfully overcame that, making a string of notable lateral appointments from traditionally stronger schools:  Karen Burke (tax) and Donald Dripps (criminal procedure) from Minnesota; Steven Smith (constitutional law) from Notre Dame (who turned down an offer from Northwestern in the process); Heidi Hurd and Michael Moore (law and philosophy, criminal law) from Penn (they subsequently moved to Illinois, where Hurd is now Dean); and Yale Kamisar (criminal procedure) from Michigan (Kamisar retired from Michigan), among others.  In addition, he solidified ties with some of the excellent faculties at UC San Diego, adding leading philosophers, economists, and political scientists from UCSD to part-time posts at the Law School, as well as enjoying good success at retaining top faculty talent against raids by other schools (e.g., Frank Partnoy turned down Emory and Tom Smith turned down Ohio State during Rodriguez's tenure).

That San Diego came out 22nd in the nation in the faculty quality survey conducted in 2003 is hardly surprising, in light of these striking recruitments.

One "nut" that remains to be cracked for San Diego is how to get the corrupt U.S. News rankings to better reflect the school's accomplishments and merits.  Mark Grady, another successful Dean (at George Mason University), cracked that nut for GMU, with the result that a school with at least a top 40 faculty is now ranked in the top 40 by U.S. News (even though its academic reputation scores still lag preposterously).  San Diego, as a much larger school, has found it harder to mark progress in U.S. News (and its academic reputation scores are, like GMU's, also much too low).   But that will be a task for the next Dean, who will inherit some great opportunities thanks to Dean Rodriguez's skillful leadership.

TONGUE-IN-CHEEK UPDATE:  As a reader pointed out, I should add that Dean Rodriguez achieved all this despite the public revelation that San Diego has a small but vocal contingent of everyone's favorite right-wing kooks on the faculty!

"Top Legal Thinkers"

Various folks have called to my attention the Legal Affairs on-line poll whose aim is to identify the "top 20 legal thinkers" in America.  The list of candidates is--to put the matter gently--absurd, not because there aren't substantial "legal thinkers" on the list (there are some), but because there are far too many on the list who aren't leading legal thinkers by anyone's lights, and some who aren't even capable of thinking based on any evidence I've seen.  Since some of my own ranking material is invoked, misleadingly, as a basis for drawing up the list, I am glad to see someone documenting quite clearly that there were clearly far different criteria at work, given both the inclusions and omissions on the list.  (Many of the academic omissions would have been avoided by using another set of data points, also on my law school ranking site.)  The answer to the "mystery" of these inclusions and exclusions may also be fairly simple:  Legal Affairs is the house organ of the Yale Law School, and so may simply reflect the parochial biases and infatuations of New Haven at the moment.

I would urge my readers not to participate in this meaningless publicity stunt, whose main significance may be that it is a warning sign that Legal Affairs is on the verge of becoming defunct.  It deserves to be for offering up silliness like this.

UPDATE:  Just to be absolutely clear: Legal Affairs did not consult me on this meaningless on-line poll.  They mention my ranking site, but their list of candidates is manifestly not based on my ranking data.

ANOTHER UPDATE:  Since the posting of the criticisms here and elsewhere, Legal Affairs has added the following tepid disclaimer of sorts to the site:

Since this poll went up on Thursday, December 8^th, it has drawn wide attention and some criticism. While it's already accomplishing its mission of stirring conversation about legal thinkers, we want to emphasize that it's not a ranking, but a poll—what Webster's defines as "a voting or expression of opinions by individuals." For more about how we came up with the list, click here. We've fleshed out our explanation and we're the first to admit that this is a magazine opinion poll, not a scientific endeavor.

Our hope is that the poll will be something fun for the legal community and others interested in it and that the results will help us, and readers, identify interesting thinkers whose work deserves wider attention. We won't take the results too seriously and trust you won't either, but we hope that you'll participate and vote. 

This rather sorry post-hoc rationalization for their meaningless publicity stunt doesn't merit further comment.  (And as Paul Caron [Law, Cincinnati] points out to me, these folks sure seem to be taking it deadly seriously, which, of course, was predictable.)

Northwestern Law Makes Bid for San Diego's Prakash

Northwestern University School of Law has made an offer to Sai Prakash (securities regulation, public law) at the University of San Diego School of Law.  San Diego (which has beaten Northwestern before, when both were competing for leading law of religious liberty scholar Steven Smith when he was leaving Notre Dame) is apparently making a strong bid to retain Prakash, as it continues its upward climb in to the ranks of the top 20 law faculties in the nation.

Law Schools Whose Graduates are "Most Hired" by Major Firms

Here is The National Law Journal list of the ten schools whose graduates were hired "most" based on a survey of the 250 largest firms in the country (the ranking does not appear to be on-line, but I picked it up from this press release):

1.  Harvard University

2.  Georgetown University

3.  Columbia University

4.  New York University

5.  University of Virginia

6.  University of Michigan, Ann Arbor

7.  University of Pennsylvania

8.  University of Texas, Austin

9.  Northwestern University

10. University of California, Berkeley

The study did not adjust for size of school (an advantage for big schools like Harvard, Georgetown [the biggest], Columbia, NYU, Virginia, and Texas), but it also was not a geographically balanced survey (surveys of "large" firms invariably favor the two coasts) (an advantage for those schools that place heavily in the Northeast corridor like Harvard, Georgetown, Columbia, NYU, Virginia, and Penn).

While the top ten contains the usual suspects for the top law schools, there are two striking absences:  Yale and Chicago!  My guess is Yale fares poorly here because it is very small and because so many of its graduates go in to law teaching, rather than big firm practice.  Chicago is harder to explain--it is small, but so is Northwestern.  And Chicago has a bigger presence in New York and D.C. than Northwestern, yet Northwestern made the list and Chicago did not.  Perhaps pursuit of academic careers again explains the absence of Chicago from this list, but Chicago grads go in to law teaching at a much lower rate than Yale grads.  In any case, it's an odd omission, and I'm not sure what explains it.

UPDATE:  A student at a top law school writes:

I wanted to comment on a possible reason as to why Chicago did not make the list you posted today, but Northwestern did (a comparison you yourself pursued). I think that the combined effect that Northwestern admits about 50 more students a year, and that Chicago students are not only more likely to go into teaching, but also non-profit jobs (remember, NU prides itself on admitting students who have work experience, usually code for experience in the corporate world) may explain the difference.

Sounds plausible.  Certainly it would be a mistake to choose Northwestern over Chicago based on this particular "top ten" list.

Wash U Law Dean Seligman to Become President of Rochester

Joel Seligman, Dean of Washington University School of Law in St. Louis (and before that Dean at the University of Arizona College of Law), will become the next President of the University of Rochester.  Below is the announcement forwarded to me from someone at Wash U:

To: The Law School Community

From: Joel Seligman

Date: December 1, 2004

Subject: Announcement

On July 1, 2005, I will become the 10th president of the University of Rochester. I am excited about the opportunity to lead the University of Rochester during a period in which it will seek to make significant progress.

I will remain Dean here through the Spring Commencement Ceremony in late May. I am very fortunate to have been Dean of this wonderful School of Law during the past five and one half years. The School has made remarkable progress and it has been a great joy to work with you.

I am proud that I will leave an already strong School still stronger.

I will always cherish the support of Mark Wrighton, the faculty, the administrators and staff, the students and the alumni. This is a great School because of the mutual support we provide one another.

Chancellor Wrighton will meet with the faculty and the senior administrators during our December 8th faculty meeting to discuss plans for a Dean search.

The University of Rochester press release is here.

The Military Resorts to Spam

The military is now so short of new recruits, that they have resorted to e-mail and phone spam, some of which is directed at University of Texas School of Law students.  When the students complain, the military recruiters threaten physical harm and become verbally abusive.  The pathetic details are here.  (Thanks to Doug Barnes for the pointer.)

Becker-Posner Blog

The economist Gary Becker and the legal scholar and jurist Richard Posner will have their own blog here.  Dick has assured me, however, that despite his official entrance in to the blogosphere, he will still be guest-blogging here the week beginning Monday, December 27.  (He and Becker won't be tackling jurisprudential topics, which will be the primary focus of the postings here.)

Why does the Dean of Stanford Law School Have Such a Low Opinion of Lawyers?

Ciceronian Review has a rather good point here.  (And I suspect Dean Kramer will be grateful for Professor Tribe's review once he sees that by my colleague Professor Powe!)

Citations to Political Science Profs in Law Reviews

Keith Whittington, a well-known public law scholar in the Politics Department at Princeton, has prepared an interesting study of the frequency of citation to political science professors who study law and courts.   The study confirms that law professors pay relatively scant attention to the quite interesting work on law that goes on in Political Science Departments.  Indeed, the top three faculty on the list--Chicago's Cass Sunstein, Yale's Bruce Ackerman, and Texas's Sanford Levinson--are all scholars whose primary appointment is in the law school at their university.  Indeed, half the top ten are faculty who spent most of their academic careers in law schools.  The five in the top ten who have spent their academic careers outside law schools are Austin Sarat at Amherst College, Michael Sandel at Harvard University, Jon Elster at Columbia University, Robert George at Princeton University, and Gerald Rosenberg at the University of Chicago.  None of these latter five, strikingly, would have made it on to a list of the 75 most cited legal scholars, and only one might have made it (just barely!) on to a list of the 100 most cited scholars in law reviews.

Only those on the Left are reasonable...

...according to this article about the growing number of new, overtly religious law schools (such as Regent, Ava Maria, St. Thomas in Minnesota, and Liberty):

"The prevailing orthodoxy at the elite law schools is an extreme rationalism that draws a strong distinction between faith and reason," said Bruce W. Green, Liberty's dean.

The claim that professors at the leading law schools tilt to the left is supported by statistics....

Interesting juxtaposition of points, isn't it? 

Four Major (Part-Time) Appointments for USD Law

The University of San Diego School of Law has made four quarter-time appointments of leading scholars from the University of California at San Diego (which does not have a law school):  Richard Arneson (political philosophy), David Brink (moral, political, & legal philosophy), Matthew McCubbins (positive political theory), and Michelle White (law & economics).

Impact of Tuition Increases on Canadian Law Students

American law students will likely find this recent Ontario study of interest too, though it is obviously of most interest to Canadians (note, however, that the University of Toronto, which charges the highest tuition, did not participate--though even tuition at Toronto is still well below American private school levels).  An excerpt:

Fifty per cent of students entering law school have zero debt, and at graduation 20 per cent of law graduates have zero debt. Sixty per cent of law graduates complete law school with a cumulative debt from university studies of under $40,000. However, 27 per cent expect to have accumulated debt of $40,000 to $70,000 over the course of their entire university career, and 13 per cent expect to graduate with more than $70,000 of student debt incurred while in university;

In part because universities are required by law to direct 30% of deregulated tuition towards needs-based financial assistance, there has been a dramatic increase in the total amount of bursary money awarded to students in financial need since tuition deregulation. Forty per cent of current students report that university/law school bursaries are a moderate source of funding for them, and one-half of those students report that these bursaries are a major source of funding;

Students are more likely to rely on banks for financial support than were students enrolled in law prior to tuition deregulation.

Although many students report that their articling decisions have been affected by their debt, their patterns of choice have not changed significantly over the period since tuition has increased, with the vast majority of students expecting to article in their “preferred” settings.

More on Student-Edited Law Reviews

Allen Ferrell (Law, Harvard) writes:

"I read your post on student-run law reviews and i just had to drop a line to say that i think your analysis is 100% correct.

"I think its a huge and growing problem in terms of (1) the quality of the work published in top journals; (2) length of articles; and (3) incentives created for faculty, especially junior faculty, in terms of what and how they do things. The signaling value of a securities regulation piece being published, say, in the Yale Law Journal is extremely low. In contrast, the signaling value of a piece on securities regulation being published in the Journal of Finance, to take the opposite extreme, is quite high. There is simply no way that a student-run journal, for example, can assess empirical work (or criticisms of empirical work), which will likely become more and more important in my field, corporate and securities law."

New Jersey Bars Judges from Completing US News Surveys!

15% of the U.S. News ranking of law schools is based on a survey of attorneys and judges.  But according to a colleague from Rutgers, "The New Jersey Administrative Office of the Courts has just issued a directive forbidding NJ judges from participating in the US News annual ranking survey."  It would be wonderful if other jurisdictions followed suit, since the survey is sloppily conducted and geographically skewed.  The worthlessness of the results would be made very clear if significant numbers of jurisdictions barred their judges from participating.  As it stands, of course, removing the New Jersey judges from the pool will simply penalize the New Jersey law schools, which are, presumably, rated more highly by New Jersey judges than judges in neighboring jurisdictions.

UPDATE:  Paul Caron has more details here.

Supreme Court Survivor

Anupam Chander (Law, UC Davis) has developed an on-line game (modelled, of course, on one of the popular "unreality reality TV" genres) called "Supreme Court Survivor" here. As Professor Chander writes: the game is meant "to dramatize the impact of a Bush 're-'election on our civil liberties....[I]t allows you to vote justices off the Court--each retiree to be replaced by a clone of Justice Scalia. The possible toll on our civil liberties [and other Constitutional rights] is then made painfully clear."

More on the "Socratic" Method of Teaching...from a philosopher

He writes:

"I disliked as a student the Socratic method for the same reason why I disliked group work: My fellow students generally didn't know anything about the subject in question. I wanted to hear from the person who had expertise in the area--the professor. (An assumption of Plato, of course, was that the subject being questioned already knew the answers to the questions being asked; it was just a question of getting them to see this. [This still doesn't imply that 'Socratic' teaching would be the most effective way of teaching, though.] I venture the bold empirical claim that this is just false.) Anyway, as in your case, my best teachers didn't teach Socratically. They did take questions and argue with students. But they lectured.

"When I arrived at my present school, I found that lecturing, especially to intro students, was nearly impossible. They had an attention span of 30 seconds or so. If I wasn't constantly barraging them with questions, they would lose interest and stop paying attention. As a result, I've had to cut my syllabi by 50% or so; taking a bunch of answers that aren't even in the ballpark takes a great deal of time. Do my students learn more by my teaching Socratically? I'm sure they do: Most of them have little or no intellectual curiosity, and won't listen to lectures. (Part of the problem is the mindset that students are consumers, and the goal of a class is to entertain them. Unfortunately, this mindset has a hold on most of my students.) Would my students learn more if I could lecture to them and take questions for discussion? Most certainly!

"In my case, the Socratic method is useful, but it is because of the poor quality of most of the students. I shouldn't have to use it, but I do."

The Scandal of American Law Reviews

"Socratic" teaching is one scandal of legal education; but the other is student-edited law reviews. Since arguments from authority carry a lot of weight, I'm pleased to see Dick Posner making the arguments! (Reminder: he will be guest-blogging here the last week of December.) An excerpt from Judge Posner's remarks:

"The system of student-edited law reviews, with all its built-in weaknesses, has persisted despite a change in the character of legal scholarship that has made those weaknesses both more conspicuous and more harmful to legal scholarship. Most articles by law professors today are still, as they were a century ago, rather narrowly, conventionally doctrinal. Typically, they criticize a key case or lines of cases as inconsistent with doctrine emerging from other cases. Good law students can evaluate and improve such articles today as always. But—and this is true not only at the leading law schools—many law faculty today have, for good or ill, broken the doctrinal mold.

"Their work now draws very heavily on sources other than legal doctrine, whether it is economics, history, political or moral philosophy, psychology, statistics, epistemology, anthropology, linguistics—even literary theory. The use of insights from these fields in analyzing law has given rise in recent decades to a cornucopia of interdisciplinary fields of legal studies ('law and . . .' fields), ranging from law and economics (the largest and most influential) to feminist jurisprudence and critical race theory. Except for the rarefied set of Ph.D.s who go to law school for a J.D., the disciplines on which these fields draw are generally not ones about which a law review editor will be knowledgeable, except by accident. This might not matter much if the analytical core of such fields were legal, but it is not. 'Law and economics,' for example, is the application of economic theory to law, not the application of legal reasoning to economics. So the law review editor cannot get much mileage from what he or she has learned about legal reasoning.

"Submissions in 'law and . . . ' fields magnify the bad effects of the inexperience of student editors and their failure to use peer review to separate the wheat from the chaff. Apart from acute problems of quality control, neither author nor reader is likely to benefit from the editing process. Because the students are not trained or experienced editors, the average quality of their suggested revisions is low. Many of the revisions they suggest (or impose) exacerbate the leaden, plethoric style that comes naturally to lawyers (including law professors)....

"The author is also likely to suffer, because the student editors, having a great deal of time and manpower to devote to each article, often torment the author with stylistic revisions. (These are to be distinguished from correcting erroneous citations; that is a genuine though modest service to scholarship.) To student editors, the cost of an author's time is zero, and the author is usually subjected not to one, but to two or three rounds of editing. And the editors do not limit their suggestions to style. On the side of substance, their especial preoccupation is with trying to maximize the number of footnotes, citations, and cross-references in order to create the impression that everything in the article is proven fact. The student editors also insist on inserting parenthetical summaries of cited references, even when the reference is to an entire book (e.g., Plato, The Republic (sketch of proto-communist society ruled by philosophers); Sophocles, Oedipus (play about mother-son incest)).

"THE RESULT OF THE SYSTEM OF SCHOLARLY PUBLICATION IN LAW is that too many articles are too long, too dull, and too heavily annotated, and that many interdisciplinary articles are published that have no merit at all. Worse is the effect of these characteristics of law reviews in marginalizing the kind of legal scholarship that student editors can handle well—articles that criticize judicial decisions or, more constructively, discern new directions in law by careful analysis of decisions. Such articles are of great value to the profession, including its judicial branch, but they are becoming rare, in part because of the fascination of the legal academy with constitutional law, which in fact plays only a small role in the decisions of the lower courts...."

===============

We may go further: student-edited law reviews have been crucial for many of the most intellectually insubstantial developments in "legal scholarship" over the past thirty years: from Critical Legal Studies to postmodern legal theory; from the rise of armchair social science in connection with the "social norms" fad in legal scholarship to the new fascination with evolutionary biology in legal scholarship. Without the benefit of editors who had no pertinent disciplinary expertise, and no real scholarly or intellectual skills, none of these developments would have been as successful as they have been in the American legal academy. One still hears colleagues who should know better say of a teaching candidate, "His article will appear in the Yale Law Journal," as though that signified anything other than that the article will be visible, regardless of its quality. (In fact, as everyone knows, the majority of the articles that the Yale Law Journal and Harvard Law Review publish in a given year are intellectually worthless.)

In their honest moments, everyone in the legal academy knows that the real purposes of student-edited law reviews are the following:

(1) To provide a further sorting mechanism for legal employers trying to ascertain who the brighest law students are beyond the quality of the school and student grades (caveat: the best students are not always on Law Review);

(2) To provide slave labor to law professors too lazy to properly cite-check and document their articles;

(3) To provide some experiences of very, very modest educational value to students with respect to writing, editing and legal scholarship. (The bright students would be far better served by working with faculty on sustained writing projects--something Northwestern's law school has done better than just about anyone else.)

(4) To save the faculty the trouble of editing and producing a legitimate scholarly journal, in which some useful pieces of legal scholarship can still appear--though, these days the most useful scholarly work (most useful for practitioners, that is) appear in the less prestigious law reviews.

At the same time, the best interdisciplinary work now appears in one of the proliferating faculty-edited journals. The "elite" law reviews are largely left with the dross: mostly bad interdisciplinary work (some good stuff at the law schools where the law reviews consult the faculty), and an occasional useful article in constitutional law or some doctrinal topic vexing the courts. Is this really worth consuming hundreds of thousands of hours of time of the nation's best law students? Hardly.

Supreme Court Clerkship Placement, 1991 Term through 2004 Term (2004-05)

I finally got the missing data for the 2002 and 2003 terms, so here is a new listing of the law schools who produced Supreme Court clerks since 1991 through the current (2004-05) term. I'll transfer this information soon to my law school ranking site. Next to each school name is the total number of Supreme Court clerks during this period who graduated from the school; the number in parentheses is the number of clerks as of 2001, followed by the school's rank as of 2001.

NYU has made the most dramatic improvement in its clerkship placement in the last few years, and is now closing in on UVA. Berkeley has also had a noticeable improvement. Notre Dame continues to benefit from the loyalty of Justice Scalia to its best graduates (though Justice Thomas has taken at least one Notre Dame clerk as well). Among top law schools, Penn and Cornell still underperform strikingly in Supreme Court clerkships.

1. Harvard University 118 (93, 1st)
2. Yale University 94 (75, 2nd)
3. University of Chicago 62 (50, 3rd)
4. Stanford University 38 (29, 4th)
5. Columbia University 30 (25, 5th)
6. University of Michigan, Ann Arbor 20 (16, 6th)
7. University of Virginia 17 (14, 7th)
8. New York University 16 (9, 8th)
9. University of California, Berkeley 11 (7, 10th)
9. University of Texas, Austin 11 (9, 8th)
11. Northwestern University 9 (7, 10th)
12. Duke University 7 (7, 10th)
12. Georgetown University 7 (5, 13th)
14. University of Notre Dame 6 (4, 15th)
15. University of Pennsylvania 5 (5, 13th)
16. University of California, Los Angeles 4 (3, 16th)
17. Brigham Young University 3 (2, 17th)
17. University of Kansas 3 (2, 17th)
19. University of Illinois 2 (0, not ranked)
19. University of North Carolina, Chapel Hill 2 (1, 20th)
19. Vanderbilt University 2 (2, 17th)
22. Boston College 1 (0, not ranked)
22. Cornell University 1 (1, 20th)
22. George Washington University 1 (0, not ranked)
22. Ohio State University 1 (0, not ranked)
22. Pepperdine University 1 (1, 20th)
22. Rutgers University, Newark 1 (1, 20th)
22. State University of New York, Buffalo 1 (1, 20th)
22. University of Arizona 1 (1, 20th)
22. University of Minnesota, Twin Cities 1 (1, 20th)
22. University of Missouri, Columbia 1 (1, 20th)
22. University of Southern California 1 (1, 20th)

Corporate & Securities Law Expert Choi from Berkeley to NYU

Stephen Choi, a leading young corporate and securities law expert at Boalt Hall School of Law at the University of California at Berkeley, has accepted a permanent offer from the law school at New York University, where he is presently visiting. When word got out last Spring that Choi might be moveable, several top law schools expressed interest. That NYU prevailed must be particularly welcome news in Washington Square, given the hit their corporate faculty took last year when Henry Hansmann returned to Yale after only a year and Robert Daines moved to Stanford.

Here's one for the Annals of Pettiness

ORIGINALLY POSTED APRIL 28, 2004: These rumors just won't die...sigh. Worth posting again.

===============================

It is inevitable that if one produces rankings and comments on the scholarly fortunes of different faculties that ad hominem attacks and speculations will abound. Yet even though my rankings of philosophy departments dominate the philosophy world, I've never encountered unprofessional behavior on a par with what my law school rankings--far less influential than U.S. News, to be sure, but perhaps more influential among the top students--have generated among law schools. In the annals of pettiness, the University of Michigan Law School (my alma mater, no less!) and Northwestern University School of Law may be in a class by themselves.

Regarding Michigan, I have pointed out, on various occasions, what everyone in the legal academy knows: namely, that Michigan lost its super elite status during the 1990s, that it went from being a clear "top five" law school in every respect, to competing with the top dozen (Penn, Virginia, Texas, Georgetown, Boalt, etc.). This is not even remotely controversial among insiders: Michigan's senior faculty was decimated over the last dozen years, though, as I've noted, they've done very well in recruiting younger scholars.

Given the banality of these observations, I was quite astonished when someone forwarded me a posting on a prelaw discussion site by someone claiming to be on the admissions staff at Michigan explaining that I had been "rejected" for a faculty position at Michigan as a way of explaining my reporting the facts about Michigan's faculty retention problems. [Edit: see Update, below.]

Yes, I kid you not: on a discussion site for prelaw students, someone claiming to be an admissions staffer at a reputable law school posted this smear. Wow!

The smear is not without its amusing aspects. For one, my wife would divorce me if I ever suggested we live in Ann Arbor, which is small, cold, and Midwestern (which aren't her three favorite attributes--or mine!--in a place to live). But more seriously, the fact that Michigan Law even interviewed me in 1992-93 (when I first sought teaching jobs) was both a surprise (they were already overloaded with law-and-philosophy faculty) and a blessing (it gave me instant credibility on the teaching market). Finally--and this is really the oddest part of this whole episode--the list of law schools that didn't offer me faculty positions during my career is quite a bit longer than the list of law schools that did--and it includes lots of schools about which, last time I looked, I've written positive things or which have fared quite well in my various law school rankings (for example: Chicago, Boalt, BU, NYU, USC, Hastings, and so on). (And Penn, which made me an offer several years ago, only came in 11th in last year's faculty quality survey, noticeably below their 7th-place ranking in US News. So I'm plainly doing a terrible job responding to the marketplace incentives properly!)

Selling Votes...

in the U.S. News law school rankings. Professor Caron has exactly the right idea. If this idea catches on, the whole charade will self-destruct.

Foreign Affairs Law Expert Bradley from Virginia to Duke

Virginia's Curtis Bradley--who has written widely and influetially at the intersection of constitutional and foreign affairs law, including some controversial work with Jack Goldsmith, who recently left Virginia for Harvard--has accepted an offer from the law school at Duke. That's a real blow, together with Goldsmith's departure, to international and foreign affairs law at UVA, and another bit of good news for the much-rejuvenated Duke faculty.

Long-time observers of legal academia will, of course, recall my black-humor exercise after the 2001 U.S. News rankings came out, when I asked not quite two dozen very eminent legal scholars (folks every reader from the legal academy would know) to look at the U.S. News top 25 law schools, and report which three schools they considered to be the most "overrated." Here's what I found:

"The hands-down winner (named by 13 out of 20 respondents, i.e., 65%!) was Duke, which has been ranked 10th by U.S. News the past two years, and higher in some prior years. 'Sleepy, unproductive faculty' commented one famed scholar at a law school always ranked well ahead of Duke. 'A [faculty] star there would be middle of the pack at Penn and elsewhere,' said another prominent figure who has taught at numerous top ten schools. 'I regard Duke's consistent ranking in the top ten as the single most egregious error in the annual rankings,' commented a third scholar, who added, 'I give an A+ to whatever firm prepares their promotional literature.' An eminent senior scholar said he would rank 'Duke as somewhere around 15th or lower' (a sentiment echoed by several others)..." and on and on.

Pretty rough stuff, to be sure, but it was also borne out by the 2003 survey of 150+ legal scholars, where Duke came in 17th in faculty quality, significantly behind the other traditional "elite" schools.

But credit where credit is due: Duke has really turned things around the last few years. Although, since 2001, several senior heavyweights have retired or left (Paul Carrington, Clark Havighurst, William van Alstyne), the school has made a string of good hires, partly by pursuing couples (e.g., Stuart Benjamin and Arti Rai, Erwin Chemerinsky and Catherine Fisk), partly by poaching very good, underplaced scholars (e.g., James Salzman), and partly by getting lucky (luck always helps in faculty hiring!). I wouldn't be surprised, when we conduct new surveys of law faculty early next year, to see Duke squarely in the top 15 for faculty quality, especially given recent losses at Cornell and Northwestern.

So kudos to whomever is leading the faculty recruitment effort at Duke: it certainly seems to be paying off!

But, in keeping with our recent Sextonism watch, I can not resist noting Professor Bradley's remarks in the Duke press release:

“'I am thrilled about my upcoming move to Duke,' says Bradley. 'The school’s strengths in constitutional law, international law, and national security law make this a perfect fit for me, and I am very attracted to the collegial culture and interdisciplinary focus at Duke. With its wonderful location in the Research Triangle, excellent student body, accomplished faculty, and energetic leadership under Dean Bartlett, Duke is arguably the best place in the nation to teach and study law.'”

One might raise an eyebrow at the reference to "the interdisciplinary focus at Duke," but that is trivial. What goes beyond the standards of acceptable hyperbole even for press releases--what suggests a possible Sextonism infection--is the bolded line, above. I'm certain neither Professor Bradley nor anyone on the Duke faculty thinks this is even arguable, so why say it? Preposterous hyperbole always backfires, even in press releases. (Contrast a good example of non-preposterous hyperbole, when Bernie Black joined the Texas faculty from Stanford: "I'm excited to join UT. I believe that UT law school has been steadily improving for some time, has a great dean, a wonderful and highly collegial faculty, and the potential to become one of the top handful of law schools in the country. I'm looking forward to the challenge of assisting in that process." Assuming a rather large hand, this is hyperbole not off the charts. But we've been vaccinated for Sextonism here!)

Why Law Schools Can't Ignore U.S. News...

...even though everyone who knows anything knows the magazine's ranking method is without merit. But journalists, of course, don't know anything, and they stick together. Witness this from a San Francisco paper:

"Once ranked by its peers as a top-five law school, [Berkeley's] Boalt Hall has slipped. In this year's annual rankings by U.S. News & World Report magazine, Boalt Hall tumbled to 13th place from 10th last year. Two years ago, it was ranked No. 7."

Put aside that Berkeley was never ranked in the top five by U.S. News, or anyone else, what's spooky here is the tacit assumption that a change in U.S. News rank means something, i.e., that it reflects some actual change in academic quality or value, and that it also deserves credence. (Notice the opposite way of reading this: that U.S. News ranks Berkeley 13th (behind, e.g., Duke!) shows that their ranking system is unreliable.) In the last two years, Boalt lost two leading faculty (Mark Lemley to Stanford, Robert Post to Yale), but that has nothing to do with its change in rank in U.S. News. (Consider: while NYU improved its faculty during the 1990s, its academic reputation score in US News actually declined!) Boalt is quite plainly a stronger faculty now than it was ten years ago (additions of Farber, Frickey, Edlin, Choi, and on and on), when U.S. News regularly ranked it in the top ten. Yet that fact has in no way been recorded by the U.S. News rankings; indeed, that magazine has left its readers with the opposite, and thus false, impression.

This, together with the fact that the less well-informed students take the magazine's rankings rather seriously (for example), explains, of course, why schools devote so much effort to manipulating their showing in that magazine.

Surely some journalists could educate themselves about how U.S. News ranks law schools, and draw the obvious conclusion: changes in rank in U.S. News are arbitrary, and bear no relationship to the quality of an academic institution. They could then stop referencing U.S. News as though it was a relevant measure of institutional quality, and start educating their readers on how to extract the useful information, and discard the irrelevant, from that magazine's ranking scheme.

The less they know, the more they're suckered by the US News Ranking of Law Schools

A law student e-mailed me the text of a posting from some prelaw discussion board authored by someone with the charming moniker "dogfucker." The student who sent this assures me that this reflects how some students actually think about things, and that it is not a joke. The title of the posting was

"The Top 14 Will Always Be the Same,"

apparently a reference to the fact that for about the last 8 or 9 years, the same 14 law schools have been in the top 14 of the US News rankings (which may be true, I'm not certain). (The same 16 law schools have been in the top 16 since US News made the last major change in its methodology in 1999, but for unknown reasons this escapes notice. The top 15 have also been in the top 15 in reputation since US News started ranking schools in 1987, but this is also unnoticed, it appears.) Here is the posting:

"There is simply too much of an already-existing establishment for the non-elite to ever catch up to the elite schools in terms of endowment, student-spending, research, grants, excellent faculty, and everything else that makes up an elite academic institution. Non-elites have the only hope of attracting bright students with money or other rewards in hopes that they'll matriculate, but those students will always be deviant from the norm, and by far, the best students will almost always attend an elite school. It's a cycle-- the students of the current elite schools will go on to be more successful than the average graduate of a non-elite. There is simply no way to break the cycle. The Top 14 will stay the same forever, barring a radical methodology change in US News or similar act of God."

The really weird thing here is that it is largely true that "there is simply too much of an already-existing establishment for the non-elite to ever catch up to the elite schools in terms of endowment, student-spending, research, grants, excellent faculty, and everything else that makes up an elite academic institution," but this doesn't correlate with the current (or even recent) top 14 in US News, though it correlates slightly better with the top 17 or 18. For example, USC has a better faculty than Duke (even with Chemerinsky's move, and allowing for Van Alstyne's departure from Duke), and, last time I saw the data, a much better endowment (2 or 3 years ago). Indeed, most of the US News top 17 or so have much bigger endowments than other schools, though places like Duke and Penn and Cornell trail a bit, while schools like Washington University and Mercer have much larger per capita endowments than several of the top 17. In terms of research (e.g., impact and productivity), there is not much difference between Texas and UCLA, on the one hand, and Georgetown, Duke, Penn, and Northwestern on the other--and where there is a difference, it is primarily that Texas and sometimes UCLA are stronger. There is no statistically meaningful difference in student credentials between Cornell, Berkeley, UCLA, Texas, and USC. And so on.

So the odd thing here is that the author's supposition (that the first 14 in US News defines the category) is rather obviously non-factual, at least to anyone who knows anything. So how did this student arrive at this rather fantastic view? The author makes the answer clear: US News. Sad.

UCLA Law School Infected with Sextonism

"Sextonism," after former NYU Law School Dean John Sexton (now President of NYU), is a disease familiar to law faculty, in which a good school suddenly lapses in to uncontrolled and utterly laughable hyperbole in describing its faculty and accomplishments to its professional peers. The NYU alumni magazine, which was sent to all law faculty nationwide, was so plagued by Sextonism that a Stanford professor memorably dubbed it "law porn."

Alas, another fine school appears to be stricken now: UCLA (whose new Dean, Michael Schill, has just moved from NYU--a fact which may simply be coincidental). A brochure has just arrived in faculty mailboxes nationwide announcing UCLA's "new faculty" hires--a good set of hires, as I've noted on two different occasions (here and here)--yet the brochure then spoils this fine accomplishment by placing it under the banner of the following laugh-out-loud proclamation:

"UCLA School of Law is emerging as the strongest law faculty in the United States."

What? What about Yale, Harvard, Stanford, Chicago, Columbia, NYU? Not close. What about Michigan, Virginia, Texas, Penn, Berkeley, Georgetown? Perhaps competitive in some ways, in other ways clearly not. I will say this: it seems to me, and I expect other informed observers, that UCLA has a clear edge now over Northwestern, Cornell, and USC (as well as Duke, of course).

By a reliable measure of faculty quality UCLA ranked 14th before these appointments, and by an unreliable measure, it ranked 16th (in "reputation" among academics). The new appointments are, indeed, good ones, and together with recent losses at Cornell, Northwestern, and USC give UCLA a realistic shot at the top ten.

But "the strongest law faculty in the United States"! Yikes, that is embarrassing.

If you spot other outbreaks of Sextonism at law schools in your neighborhood, do let me know! And, happily, there is an effective treatment for Sextonism: perspective and restraint.

UPDATE: Tad Brennan (Philosophy, Northwestern) points out to me that I'm reading the UCLA brochure the wrong way:

"You don't appreciate the meaning of the word 'emerging.' 'UCLA School of Law is *emerging* as the strongest law faculty in the United States' has to be understood in line with such statements as:

"'Saddam Hussein was an *emerging* threat to the United States.'

"In other words, it's roughly a negation-operator, as in: 'Three is an *emerging* even number.'

"Now does it make better sense?"
=============

To which I add: yes! Thank goodness for philosophers.

U.S. Supreme Court Clerks, 2004 Term

Reader Nathan Lee directs me to this listing of the Supreme Court clerks for the 2004 term that begins next week. Here are the schools represented for the 2004 term:

1. Harvard (9 clerks)
2. Chicago (7 clerks)
3. Yale (5 clerks)
4. Stanford (4 clerks)
5. NYU (3 clerks)
6. Virginia (2 clerks)
7. Northwestern, Michigan, Columbia, UCLA, Boston College (1 each)

An unusual year in many respects: 3 for NYU, but only 1 for Columbia; Chicago with more clerks than Yale; a strong showing for Stanford; clerks from BC and UCLA.

I need to update my ten-year listing of Supreme Clerkships; does anyone have the data for the 2002 and 2003 terms?

Tennessee Law Professor Reynolds Wins the Goering Award...

...for his work on his blog site InstaIgnorance. (Scroll down to Friday, September 24 at the link for the details.) Richly deserved.

How does an American Law School Graduate Become Eligible to Practice Law in England?

So asks a law student. While I know various American students who have gone off to practice in London, I actually don't know the answer to this. Comments are open. Insight and links to resources welcome.

UPDATE: Bill Burke-White, a lawyer who is currently a lecturer at the Wilson School at Princeton, e-mails the following exceptionally informative response (some of which is similar, I see, to what Professor Froomkin has recently posted in the comments):

"In response to the question about US trained lawyers working in the UK, there are a couple of ways to do this. I'll try to outline the main paths here. First, both US and UK law firms hire US trained lawyers to work in their London offices. Most of this work tends to be securities and project finance. These lawyers are effectively practicing US law (generally NY law) but doing so based in London. There are no special requirements for doing this other than getting hired for a London office and then passing a US bar exam (normally NY). These positions can be quite lucrative as lawyers make an NY salary plus ex-pat benefits.

"A second option is to actually qualify as an attorney in England. As you may know, in England there are two separate routes to legal practice. Solicitors work directly with clients and do a range of corporate transactions and preparation for litigation. Barristers (the ones who wear the wigs) are then hired by solicitors to provide legal opinions or argue cases in court. Though barristers tend to work as part of a chambers, they are independent rather than salaried or part of a partnership. This is not quite the same as the corporate/litigation distinction in a US law firm as they are fundamentally different career tracks, but that can be a useful reference distinction.

"Assuming you have a US law degree, to qualify as a solicitor in the UK you must pass a US state bar exam and gain two years of common law practice experience. Then you can complete the Qualified Lawyers Transfer Test (far easier than a US bar exam). Many US trained lawyers working in London go ahead and qualify even if they do not plan to practice English law. For more information on this route visit this site. It is worth noting that most English lawyers undertake legal study as an undergraduate degree and therefore begin work at a younger age. They are therefore required to complete a 2 year traineeship at their solicitors firm before becoming fully qualified. Most firms will waive this if you qualify from abroad after 2 years of experience. As debt burdens are lower in England, solicitors firms tend to pay significantly lower salaries for English lawyers than a US firm would for a US qualified lawyer.

"Becoming a barrister is far harder. The typical route for a British lawyer would be to complete their normal legal training followed by a year of Bar School (often at the Inns of Court School of Law) in which one learns the practical elements of court appearances, etc. Then you must get offered a pupilage at a barrister's chambers which are highly competitive. Some proportion of those offered a pupilage will, after a year, be given a tenancy. Once you have a tenancy at a barrister's chambers, you are formally called to bar, have an independent legal practice with rights of audience in court.

"For a foreigner to become a barrister, you have to pass a bar exam in your home jurisdiction and have 'regularly exercised rights of audience in the superior courts of a common law jurisdiction for at least 3 years,' have UK work status, and have reasonable grounds to expect that a barristers chambers will offer you a pupilage. These are fairly difficult standards for a recent US law graduate to have. Often the easiest route to being a barrister is actually to get a job at a law firm in the UK, qualify as a solicitor, get work status, and then complete bar school and then get offered a pupilage with a chambers. There is one shortcut. If you have an academic appointment as a teacher of law in England, you can automatically get called to bar and skip all the above. Useful information can be found at this site."

The Exploitation of Research Assistants by Law Professors

Gary Lawson (Law, BU)--who as readers know is always worth quoting--writes with some important observations that warrant the attention of law faculty:

"Your recent post on RAs and co-authorship deserves a thread. The failure of legal academics properly to credit co-workers (who are often relegated to polite mentions in star footnotes) is one of the great undiscussed scandals in this business – and considering the number of undiscussed scandals in this business, that is saying quite a bit. In every other discipline of which I am aware, students who work with professors receive appropriate co-authorship credit, even if they do not get mentioned as the principal researcher. But when you combine uncredited RAs with uncredited law review editors –- who, I gather, often do much of the grunt work for authors by filling in research – the situation in law schools cries out for inquiry.

"It is particularly important to raise consciousness on this issue because so many people in this business frown on appointments candidates whose articles are co-authored. In any rational discipline, co-authorship would be seen as a strong positive indicator of intellectual openness, collegiality, willingness to share ideas, and a host of other virtues that ought to be valued in academia. But how many times have you heard scholarship of candidates denigrated because it is – gasp – co-authored? I’ve heard it so many times that I want to puke, and I have gotten to the point that I am genuinely nasty every time that I hear it (it doesn’t stop people from saying it, by the way, but it gives me a lot of opportunities to vent my penchant for nastiness). I’d be curious to see if other people’s experiences on this score match mine.

"Having railed a bit, however, one ought to give due credit on this score to my old stomping grounds (and your favorite whipping boy): Northwestern. The senior research program at Northwestern, which allows third-year students to spend a good portion of their credits writing intensively with a faculty member, encourages a strong ethic of noting students as co-authors. I’ve co-authored with four different Northwestern students, and I plan to carry that over to BU; I have two student co-authors already committed to a forthcoming project. Steve Calabresi [at Northwestern] has also been exemplary, in my view, in giving co-authorship credit to students who everyone else in this business would have glossed over in star footnotes. It has no doubt hurt his career (by giving people who don’t like him on political grounds a neutral-sounding reason to diss him), but it has been the right thing to do.

"If I get riled up enough, perhaps I will write something and send it to the Journal of Legal Education. Information –anecdotal or otherwise -- from your viewers might help on this score."

Comments are open. No anonymous posts, please.

Is Harvard Law School the Plagiarism Leader in American Legal Education?

This article might lead one to think so. Although I'm no fan of the "Professor of Torture" Alan Dershowitz, my impression was that the "plagiarism" allegation against him last year lacked merit; Larry Tribe and Charles Ogletree present clearer cases, and both acknowledged improper use of the work of others.

But what does it all mean? What does it tell us about Harvard, or any other elite, law school?

One thing it does not mean is that faculty at Harvard Law School are more ethically challenged than faculty at other elite law schools (all my colleagues excepted, of course!). What this signifies is something rather different (or so it seems to me): namely, that it is very hard to manage a full-time career as a celebrity lawyer, public pontificator, and political activist, with the actual duties of one's day job: namely, teaching classes and doing scholarly research and writing. The result is extreme carelessness in the performance of some of one's duties.

The other significant story here is the extent to which faculty at elite law schools rely on their smart students to do their work. Those of us who write in jurisprudence don't make much use of research assistants, but faculty in most other areas of legal scholarship do. The Olgetree incident, in particular, sheds an unflattering light on the extent to which professors simply incorporate, sometimes wholesale, the work of their RAs. If the Association of American Law Schools were a useful professional organization, one thing it might do is try to formulate and promulgate some professional standards for the professor/RA relationship, and how work should be credited. (Perhaps the AALS or some other organization has done so--anyone know?) As things stand, my strong suspicion is that the phenomenon brough to light in the Ogletree case is very widespread and the amount of scholarship that is really co-authored is much, much higher than one would guess from viewing the by-lines of articles.

(Sidenote: some anonymous Harvard students have started an entire blog devoted to these incidents! I've not read enough of it to offer any opinion as to its accuracy or fairness, so approach with caution.)

UPDATE: Comments on the use of research assistants by faculty from Mark Tushnet (Law, Georgetown) are here.

In Memoriam

Richard Arnold (1936-2004)

The New York Times obituary of this honorable jurist is here. Sadly, he will almost surely be replaced, if Bush is reelected, by a right-wing zealot and mediocrity.

UPDATE: Rick Garnett (Law, Notre Dame), who clerked for Judge Arnold, has a more personal remembrance here. Professor Garnett also informs me that Judge Arnold had taken "senior" status awhile back, and so a replacement has already been appointed.