Author Archive for dave-hoffman

The Increased Cost of Distance Education

posted by Dave Hoffman

For uninteresting reasons, I just read Indiana University’s Strategic Plan for Online Education.  Here’s a fact I didn’t know, and haven’t seen well-advertised in the blog discussion on the cost transformative effects of distance learning:

IU (and the remainder of higher education) needs to educate policy makers and the public that online education generally is more, not less, expensive than on‐campus education at both undergraduate and graduate levels. The biggest reason for this is that a universal experience is that equivalent quality online education requires greater individual student attention than on‐campus education at all levels. Units deal with this either by decreasing class sizes, increasing the credit given to faculty teaching online in calculating their teaching load, or providing additional instructional assistants; all of these increase cost per student.

Additional factors that increase the cost of online instruction are the technological infrastructure needed to support it, the need to support student access 24/7, and the greater costs to develop and maintain course materials. The main factor that generally is cited for a decreased cost of online instruction relative to on‐campus is that it doesn’t require classroom space. This is valid; a careful computation by Associate Vice President Steve Keucher calculates this savings at $8.68 per credit hour, or roughly $26 per three credit course. While significant, this savings is not enough to offset the additional costs of online education, such as class sizes that often are 20‐35% smaller.

As pointed out by IU Vice President and Chief Financial Officer Neil Theobald, an important factor in pricing online education is pricing by peers in this market. As shown by the pricing summary for other universities in Appendix B, this pricing offers some guidance but is highly variable.

This seems to pose a challenge to those who would say that distance learning will drive costs out of higher education, no?

  October 3, 2012 at 2:48 pm   Posted in: Teaching, Technology   Print This Post   4 Comments

The Price of Bankruptcy

posted by Dave Hoffman

Credit Slips highlights a very cool new paper, Bankruptcy Spillovers: Distance, Public Disclosure, and Opaque Information.  In the paper, Barry Scholnick examines bankruptcy filings in Canada at a micro level.  Looking at the postal code of every filer – which code is a much more precise geographic identifier than our zip codes – Scholnick concludes:

“The punch line of my study is that there is indeed a significant impact from the past bankruptcies of neighbors (as defined by the very small Canadian Post Codes) to the probability that an individual in the neighborhood will file . . . I propose, and provide evidence for, the hypothesis that if a defaulter lives in a neighborhood with a large number of previous bankruptcies among the neighbors, then that individual will choose to default via bankruptcy rather than charge-off. This is because more neighborhood bankruptcies will lower stigma or provide more information about the process of bankruptcy.

On the other hand, I show that defaulters who live in low bankruptcy neighborhoods choose to default via charge-off rather than bankruptcy. This is consistent with the argument that low bankruptcy neighborhoods have higher levels of bankruptcy stigma, thus individual defaulters choose to default via charge-off in order to maintain more privacy about their default.”

This paper not only fits within a literature on bankruptcy, but also is a nice match to work by my co-author Tess Wilkinson-Ryan on how mortgage foreclosure and other forms of breach are socially mediated events.  Abiding by onerous contracts is unpleasant, but we do it so long as it is socially validated. When it stops being socially normal to stick with terrible deals, we exit them.

  October 1, 2012 at 7:15 pm   Posted in: Behavioral Law and Economics   Print This Post   5 Comments

The Unenforceability of Contracts to Abort

posted by Dave Hoffman

TMZ has a scoop.  (Yes, I read TMZ.  Every day.)  Tagg Romney (son of Mitt) and his wife Jen entered into a surrogacy contract which contained a clause purporting to require the surrogate to abort on demand given a particular set of contingencies:

We’ve learned Tagg and his wife Jen, along with the surrogate and her husband, signed a Gestational Carrier Agreement dated July 28, 2011.  Paragraph 13 of the agreement reads as follows:

“If in the opinion of the treating physician or her independent obstetrician there is potential physical harm to the surrogate, the decision to abort or not abort is to be made by the surrogate . . . In the event the child is determined to be physiologically, genetically or chromosomally abnormal, the decision to abort or not to abort is to be made by the intended parents.  In such a case the surrogate agrees to abort, or not to abort, in accordance with the intended parents’ decision . . . Any decision to abort because of potential harm to the child, or to reduce the number of fetuses, is to be made by the intended parents.”

It is a common error to think that contract terms are specifically enforceable as written.  I believe that there is literally not one judge in the country who would require a surrogate to abort on demand against her wishes notwithstanding this clause.  In part, this results from the law’s traditional reluctance to enforce specific performance of personal services contracts.  Here, that’s coupled with the constitutional interests in bodily integrity that the Baby M court discussed.  Thus, while TMZ translates the agreement as “Tagg and his wife, Jen, had the right to abort the fetuses if they felt they would not be healthy,” the better line would be “Tagg and his wife, Jen, have an exit right which they can exercise if the surrogate fails to abort.”

That is, failure to abort on demand would be a material breach by the surrogate, relieving the Romneys from their duty to pay.  Whether it would additionally then lead the Romneys to be able to sue – for costs incurred, probably – is unclear to me, as I think some judges would find an abort-on-demand clause against public policy.

  September 21, 2012 at 7:50 am   Posted in: Contract Law & Beyond   Print This Post   11 Comments

The Penn State Disaster Pool

posted by Dave Hoffman

So this is interesting:

“The mediator who managed the Sept. 11 victims-compensation fund and settlements with those affected by the 2010 BP Gulf oil spill has been hired by Pennsylvania State University in the hope of settling the civil claims of Jerry Sandusky’s victims.

The university announced Thursday that it had hired Kenneth R. Feinberg to facilitate negotiations for the four current lawsuits and more expected to be filed by those sexually abused by the former assistant football coach.”

One way to read this is that PSU is going to make available a large pool of money to a diverse victim class, and has hired Feinberg for his expertise dividing complex pies in ways that leave most folks relatively satisfied.  But there’s another reading that seems at least plausible.  Associating with Feinberg transmutes the human errors which enabled Sandusky’s crimes into a “disaster”, implying less particularized responsibility.  Plaintiffs refusing to partake in the common pool can potentially be framed as selfish, grasping, etc.  That so even though almost by definition, these disaster pools allocate less money to every plaintiff than their individual claims are “worth”.

  September 20, 2012 at 10:57 pm   Posted in: Bankruptcy, Economic Analysis of Law   Print This Post   5 Comments

When is a Horse a Vehicle?

posted by Dave Hoffman

In Kentucky. Lowering the Bar explains:

WKYT reported on Monday that a 55-year-old Jessamine County man had been cited for riding while intoxicated. The man said he was trail-riding with some friends and had stopped to have something to eat “when the deputy arrived and told me to get off my horse.” He explained that he is severely diabetic and hadn’t eaten, and that is why he staggered after dismounting, not because he was intoxicated . . .

The report says the man was charged with a violation of Section 189.520, “Operating a vehicle not a motor vehicle while under influence of intoxicants or substance which may impair driving ability prohibited.”  . . .  The statutory language is better than the title: “No person under the influence of intoxicating beverages or any substance which may impair one’s driving ability shall operate a vehicle that is not a motor vehicle anywhere in this state.”

[A]ren’t there often statutes that define certain legal terms? Yes, and there’s one here. And sadly for Rooster Cogburn, it defines “vehicle” as including “All agencies for the transportation of persons or property over or upon the public highways of the Commonwealth.…” So while I still like my “animal is not a vehicle” argument, Kentucky has precluded it.”

Seems like a good example to use in a class on statutory interpretation.  Isn’t the obvious question what an “agency” is for the purposes of Kentucky law?

  September 20, 2012 at 11:04 am   Posted in: Weird   Print This Post   8 Comments

Quote Approval

posted by Dave Hoffman

Our platonic media guardians worry about the increasingly common practice of giving sources “quote approval”.  At the NYT’s public editor explains,

“Some parts of the practice, I believe, do fall into a black-and-white realm. The idea that a reporter must send a written version of a quotation to a source or his press representation for approval or tweaking is the extreme version of the “quote approval” practice and it ought to be banned in a written rule.”

This is nonsense.  There’s a simple reason that most sources (including me) ask for quote approval: we don’t trust reporters to avoid making a hash out of our comments, pulling quotes selectively to fit a pre-existing narrative, and consequently turning the source into the reporter’s sock puppet.  It’s a no brainer that anyone who has to regularly deal with the press should try to get quote approval. You’ll succeed with some reporters – generally the better ones, in my experience. If you fail to get quote approval, you should remember to think three times before saying anything, including your name.

Why?  Well, most reporters who call me have a particular thing they’d like me to say.  Sometimes they’ve told me what that thing is: I can then proceed to either say it or not.  Other times they ask a ton of questions, but it’s quite obvious that it’s all just filler time until I can manage to produce the right words in response to the right stimuli. (Foolishly, when I began my career, I foolishly thought that these conversations were a preface to the real question that they were going to ask!)  Often reporters will pastiche quotes from different parts of the interview to create a comment which bears no relationship to what you think.  Basically: reporters aren’t writing the first draft of an objective narrative (“history”): they have already written that narrative, and your role is to be the footnotes locking it all down.  Don’t be a sucker.  Ensure that your name is attached to things you actually think.

  September 17, 2012 at 8:55 pm   Posted in: Law School, Media Law   Print This Post   19 Comments

Laws Regulating PII

posted by Dave Hoffman

My co-author Sasha Romanosky asks me to post the following:

I am involved in a research project that examines state laws affecting the flow of personal information in some way. This information could relate to patients, employees, financial or retail customers, or even just individuals. And by “flow” we are interested in laws that affect the collection, use, storage, sale, sharing, disclosure, or even destruction of this information.

For example, some state laws require that companies notify you when your personal information has been hacked, while other state laws require notice if the firm plans to sell your information. In addition, laws in other
states restrict the sale of personal health information; enable law enforcement to track cell phone usage without a warrant; or prohibit the collection of a customer’s zip code during a credit card purchase.

Given the huge variation among states in their information laws, we would like to ask readers of Concurring Opinions to help us collect examples of such laws. You are welcome to either post a response to this blog entry or
reply to me directly at sromanos at cmu dot edu.

Thank you!

Sasha is a good guy, and a really careful researcher. Let’s help him!

  September 10, 2012 at 9:58 am   Posted in: Privacy, Privacy (Consumer Privacy), Privacy (Electronic Surveillance), Privacy (ID Theft), Privacy (Law Enforcement), Privacy (Medical), Privacy (National Security)   Print This Post   3 Comments

AALS Panel on Student Scholarship

posted by Dave Hoffman

Joan Heminway passes this along:

  September 9, 2012 at 5:47 pm   Posted in: Law School (Scholarship)   Print This Post   One Comment

Legal Peer Review Journals: Time to Reject/Accept/R&R?

posted by Dave Hoffman

One of the advantages of student-edited law journals is that the turn-around time for acceptance or rejection is typically relatively fast – if you are going to hear, you’ll know within a month or two 95% of the time.  The same can’t be said for peer review journals in other fields, which are famously very, very slow.

What about peer reviewed journals that focus on law, and which regularly publish the writings of American law professors?  After the jump, I’ve listed the the top fifty peer and referreed journals, by combined impact factor (W&L) rank.  I’d be curious to hear from readers who’ve submitted to these journals regarding how long it took to get a substantive response (whether acceptance, rejection, or R&R). I’ll participate in the comment thread if others do – I’ve submitted to JLS, JELS, and JLEO, and JLA, and have generally positive views about those journals’ ability to get back with some answer in a reasonable amount of time.

Read the rest of this post »

  September 6, 2012 at 5:52 pm   Posted in: Law School (Law Reviews), Law School (Scholarship)   Print This Post   6 Comments

Crime and Criminal Lawyers

posted by Dave Hoffman

The always blunt Scott Greenfield writes:

“I’ve spoken with many lawyers, many readers. You know who you are. You know that I know the truth. The business of criminal defense is dying. It’s awful. It sucks. And you’re hanging on by a thread, if at all.  Yet, most put on their game face, talking themselves up as if they are somehow beating the odds, knocking down the world, making a killing. Nobody wants to tell their brethren that they’re in the same boat, struggling daily to cover the nut and praying that the next phone call isn’t another nutjob or desperate defendant without a dime to his name.

It’s not that there is a shortage of criminal defendants, though crime is significantly down and serious crime even more so.  There is a shortage of criminal defendants who can afford to pay for a lawyer.  Sure, there are  some lawyers who are doing well, but you can count them on your fingers and toes, without resort to dropping trou. And there are a great many criminal defense lawyers, exceptionally good ones, who fight over crumbs these days, because that’s all they can do to survive . . .

[snipping some typical anti-law school commentary...]

The fact is that the vast majority of criminal defense lawyers are starving.  Because of this, lawyers are cannibalizing themselves, stealing cases in the hallway and undercutting each other at every turn.  Websites create the expectation that people can get $1000 of legal representation for $12,97. They teach that lawyers desperately want to give away their advice for free.  The message is lawyers are fungible, or that no one wins anyway, so why bother paying money when you can lose just as well for free.”

I don’t know if the trend that Scott describes is local (NY) or national.  (The students I know in criminal practice are either PDs or too fresh to know the regional market well.)  If it is a national trend, it’s disturbing.  Scott asserts that the decline in the criminal defense bar is unrelated to the decline in crime.  Presumably, it could be related to the overall slowdown in the economy. But the primary mechanism I’d posit for such a relationship would be an increase in the supply of criminals, which isn’t evident in the crime data.  The decline in BigLaw results from outsourcing, client-billing pressure, and digitization.  None of that is present here.  What’s going on?  Is this mostly about the collapse of the more lucrative side of the drug trade? The commodification of practice (driven by internet advertising)?

Knowledgeable and signed comments will be welcome.

  September 5, 2012 at 5:50 pm   Posted in: Criminal Law, Criminal Procedure   Print This Post   7 Comments

Is Stuttering the Tribute Cynics Pay to Sentiment?

posted by Dave Hoffman

A Gawker article about the fakeness of the DNC resonated with me.  But the author makes the following puzzling claim:

“Michelle Obama stutters. She does not have a stutter. She stutters on purpose. “I-I-I, I’ve seen it in our men and women in uniform.” “Fr-from the young person with so much promise.” “And-and, even as a kid…”

It is a studied stutter, deployed in order to build sincerity. It is not so much a rhetorical device as an acting device. The same could be said for the presentation of almost all political convention speeches. And it is, at its core, sad.”

I too am turned off by the conventions of our conventions, and believe the RNC (and now the DNC) to be manipulative, peacocking displays. It an excellent trend that Americans increasingly agree with me and turn off their TVs rather than watch the pageantry.  However, I’m puzzled by the claim that false-stuttering will make listeners more, not less, convinced of the First Lady’s sincerity.  The research I’ve seen tends to the opposite conclusion.  Indeed, this paper claims that even mild stuttering would be a serious impediment for a politician, let alone his or her spouse.  Is there actually evidence that a mild stutter makes speakers seem more sincere?

 

[Update: edited for clarity.]

  September 5, 2012 at 5:04 pm   Posted in: Weird   Print This Post   5 Comments

Workshop on Empirical Approaches to Access to Justice

posted by Dave Hoffman

Symposiast Jim Greiner passes along the following call for applications:

Working together across the lines of scholarship and practice, a group of researchers and field professionals in access to civil justice (A2J) in the United States is soliciting applications to attend a two-day Workshop to be held in Chicago, Illinois on December 7-8, 2012. The Workshop opens with a poster session and town hall meeting on the afternoon of Friday, December 7. This open session, held in conjunction with the National Legal Aid and Defender Association annual meetings, will bring together scholars and practitioners from many perspectives to identify and explore access to justice research needs. On the following day, Saturday, December 8, the Workshop will convene a smaller, closed session to push forward the work of revitalizing A2J research. We are grateful to the National Science Foundation Law and Social Sciences Program (SES-1237958) for recommending financial support.

The application materials are here: NSF Workshop Application.  Jim encourages all interested parties – which should include anyone who is interested in empirically examining access to justice issues – to apply.

  September 5, 2012 at 4:27 pm   Posted in: Empirical Analysis of Law   Print This Post   No Comments

The Legitimacy Crisis in Federal Law Clerk Hiring

posted by Dave Hoffman

This week, law professors are encouraged to call federal judges and ask them to pull from an enormous pile of clerkship candidates particular students whose merits might be otherwise obscured.  (Applications were delivered Tuesday to those Judges who are still “on plan“, and interviewing calls are supposed to go out Friday.) Unfortunately, the plan has entirely fallen apart, as wealthy law schools now are more than willing to package applications in the spring and summer.  This unravelling, long-predicted in some quarters, has two pernicious consequences – apart from encouraging judges to take applicants earlier in their law school careers, and consequently increasing the importance of first-year grades.

1. A re-emphasis on the importance of private and expensive networks of information about what judges are up to. When judges hire at different dates, it becomes crucially important to have sources inside the courthouse who know the scoop – former clerks, for example. This will tend to make it harder for applicants from poorer and less established law schools to break into the clerkship market.  (Indirectly, this becomes yet another subsidy for wealthy schools.)
2. Because some judges don’t particularly enjoy the competitive scrum, the death of the plan will accelerate the trend to hire either permanent clerks or clerks from practice. This is,variously:
• Bad for current law students;
• Good for associates in practice who want to make a move;
• Good for researchers who will be able to collect more expansive data about law clerk influence;
• Bad for those who fear that law clerks already have too much influence – the more experienced the clerk, the more likely that his or her views are influencing the judge’s decision;
• Bad for the budget, as more experienced clerks are more expensive.  (Federal judges clearly don’t directly bear the costs of hiring more expensive clerks.)

The class, race, and gender effects insular hiring networks are well-known in general.  Basically: when it’s all-but-impossible to figure out how to get a job, only people who don’t need the job get it.

  September 5, 2012 at 2:25 pm   Posted in: Courts, Law School   Print This Post   3 Comments

Sticky Law & ORV Use

posted by Dave Hoffman

I’ve been working for some time on an article about how policymakers could and should reduce the law’s transmission costs by developing rules which stick and which are then re-transmitted and thus are passed among citizens without heavy-handed enforcement campaigns.  This is different from saying that policymakers should make rules which are merely memorable: the goal is to increase the influence of the rule by making it likely that individuals will spread knowledge of it widely with less government effort.  Recently, one of my students, Bill Scarpato, worked on this problem in a particular context: off-road vehicle use on public lands.  His draft paper, Don’t Tread on Me: Increasing Compliance with Off-Road Vehicle Use at Least Cost is up on ssrn. From the abstract:

In a world of diminished enforcement resources, how can environmental regulators get the most bang for their buck? Off-road vehicle use is the fastest growing and most contentious form of recreation on America’s public lands. Motorized recreationists have enjoyed access to National Forests and BLM land for almost a century, but regulators, property owners, and environmental groups have voiced opposition to unconstrained off-road vehicle use. Law enforcement on these lands is underfunded and ineffective, and the individualist culture of off-road vehicle users is said to foster an attitude of non-compliance — trailblazing in the literal sense. Endorsing and building upon work in law and social norms and cognate disciplines, this Article draws principally on the social psychology of effective messaging outlined in Chip and Dan Heath’s 2007 work, Made to Stick, to propose a partnership-based campaign based on the exhortatory theme, “Don’t Tread on Me.”

I think Bill did a nice job of laying out the research and applying it in a creative way to a very hard problem.  Check it out.

  September 5, 2012 at 11:31 am   Posted in: Law and Psychology   Print This Post   No Comments

What Should Law Schools Maximize, and Who Decides?

posted by Dave Hoffman

Bill Henderson, concluding an informative post on the bubble in higher education debt, writes:

“The only long term solution is cost containment imposed on higher ed by reforming the terms of federal financing.  The financing has to incentivize educational productivity — i.e., fewer tuition dollars expended to obtain better skills and learning as measured by marketplace earnings and innovation.  No more $100,000 checks from the federal government for sorting students by standardized test scores.  Our graduates will actually have to think, collaborate, communicate and problem-solve at a very high level.  How many of my fellow law professors grasp the depth of our problems?  Not enough.”

As often with Bill’s work, there is much to chew over.  In particular, I’m curious as to how Bill would operationalize the phrase “better skills and learnings as measured by marketplace earnings and innovation.” That sentence might be read to mean that we should loan money to schools that produce graduates who earn the most money and/or those whose graduates “innovate” the most. (Or maybe it is marginal returns against the graduate’s pre-enrollment baseline?)  Though teaching a graduate how to innovate and enabling them to make more money are both excellent goals, they strike me as an oddly narrow set of maximands for a professional school, let alone a university.  And it’s not obvious to me that they correlate well with social welfare.  (LLSV, after all, suggest that legal culture and the rule of law have important economic growth consequences: returns to individuals lawyers aren’t on the LLSV variable list!)

Read the rest of this post »

  August 20, 2012 at 6:02 pm   Posted in: Law School   Print This Post   8 Comments

Subsidizing Student Scholarship

posted by Dave Hoffman

In recent discussions about reforming law review submissions to decrease the burden on editors, authors have been treated more or less as a unit. The argument goes that all authors submit too many articles, creating a mountain of paperwork for poor editors to sort through.  But of course not all authors are similarly situated – letterhead bias distinguishes between professors; practitioners have little time to polish pieces and consequently rarely make it to board reviews; and many journals exclude student authors entirely.

Notably, excluding student authors is a foolish rule that testifies more to student editors’ insecurity than to any thoughtful judgment about the quality of scholarship produced by particular authors.  (I’ve made this argument repeatedly here and to every Law Review editor I speak to – I won’t bore you with it again.)  Assuming that this bad policy is on the way out, I wondered whether law schools ought to be in the business of subsidizing scholarship by, say, paying for submissions on expresso.

Of course, we already subsidize scholarship in a sense by creating a system of writing seminars and guided research credits. (In my view, such credits could and should be better spent). But direct subsidies are relatively rare.  When I was at Harvard, there was no money available for what was then a hard-copy mailing process. Mike O’Shea and I were lucky enough to get Olin Center funding to mail out this piece.  Later, I heard that Elena Kagan made funding generally available.  I’ve no idea how common that practice is – Temple, for example, limits its BePress account to faculty.

Some schools obviously have sufficient resources so as to make the choice anodyne.  For others, the pros and cons are worth discussing:

Pros:

1. Students who can publish at an outside journal get a resume item of some use, and not incidentally increase the likelihood that someone will actually read their work.
2. We pay for similar resume-enhancing items – like clerkship letter postage – which benefit only a few members of the class.
3. Spending law school funds on direct student services is generally a good thing!
4. The cross-subsidy argument in con #2 applies as strongly to paying for faculty scholarship. What’s good for the goose….

Cons:

1. The world doesn’t need more law review submissions –  and paying for submissions creates moral hazard for students just as it does for their professors.
2. Taking tuition dollars and giving them to students to produce scholarship, so as to produce resume credentials, effectively is a wealth transfer to students who need help the least.  Exactly like the clerkship process, schools end up pouring resources into the most credentialed members of their class.

What do you think?

  August 7, 2012 at 3:47 pm   Posted in: Law School, Law School (Law Reviews), Law School (Scholarship)   Print This Post   4 Comments

Temple Faculty Hiring

posted by Dave Hoffman

Ordinarily, CoOp isn’t the forum for hiring announcements. But as the chair of Temple’s lateral committee, I’d be remiss in not posting this here:

Temple University James E. Beasley School of Law invites applications from both entry-level and lateral candidates for full-time, tenure-track faculty positions to commence in the Fall Semester 2013.  We welcome applications from candidates with a wide variety of interests.  Although areas of need are subject to change, priority areas are likely to include securities law, family law, health law, business and commercial law, civil procedure and complex litigation, law and technology, employment law, and torts. We are also seeking to fill a clinical position.

Lateral candidates should contact Professor David Hoffman, Lateral Faculty Appointments Committee (david.hoffman@temple.edu).  Entry level candidates should contact Professor Alice Abreu, Entry Level Faculty Appointments Committee (alice.abreu@temple.edu).  Temple University is committed to a policy of equal opportunity for all in every aspect of its operations.  The University has pledged not to discriminate on the basis of an individual’s age, color, disability, marital status, national or ethnic origin, race, religion, sex (including pregnancy), sexual orientation, gender identity, genetic information or veteran status.

 

  August 2, 2012 at 11:20 am   Posted in: Law School (Hiring & Laterals)   Print This Post   No Comments

Nominal Consideration at the Olympics

posted by Dave Hoffman

This is just bizarre:

“London Olympic organizers tell the Associated Press that the former Beatle [Paul McCartney] and other famous acts who participated basically “donated their time — receiving a mere pound ($1.57) — for their performances.” And that nominal fee was offered to make the Olympics contracts binding.”

If true, I take it that British law takes the position that nominal consideration can bind obligees, but that “false” nominal consideration can’t.  Thus, the organizers had to both promise to pay McCartney a pound and actually pay it before the ex-Beatle was bound to perform.

To my  mind, this is the least good resolution of the consideration problem possible.  Look: either consideration should mean something – bargained for exchange motivating actual counter-promising – or parties should be free to dispose of the requirement of consideration entirely.  In the United States, only Pennsylvania has taken that sensible latter position.  The rest generally tend to require actual bargained for exchange, excepting only charitable subscriptions, which the Olympics are not.  The Brits, who handed us this mess in the first instance, have apparently now embraced the unfortunate, mumbo-jumbo, hybrid, which reduces the sensible formality of consideration to a bit of a magical contract theatre.  Does anyone think that that pound of consideration actually motivated McCartney’s promise to perform?

  July 30, 2012 at 8:58 pm   Posted in: Contract Law & Beyond   Print This Post   16 Comments

What Could Law Students Do With 2 Million More Hours a Year?

posted by Dave Hoffman

If you polled a large and representative sample of law faculty and administrators, you’d observe the following rough consensus about the “flagship” law reviews and secondary journals at the typical law school.

1. Student editors do a mediocre job of picking good articles, of training each other in writing, and in producing notes and comments which matter to the world;
2. This isn’t the students’ fault: law faculty play almost no role in journal operations at most schools;
3. Law journal membership is useful primarily as a resume & signaling credential;
4. Anecdotal evidence suggests that the worth of the credential is in decline; and consequently,
5. Most members of most journals are demoralized by the experience.

Though this rough consensus prevails, the total number of law journals in the world continues to increase.  Why?  Inertia obviously matters, as do faculty politics, and fear of innovation.  But there’s something deeper going on.  I think most faculty and administrators look at journals and think that if they provide any benefit at all, they are probably worth keeping, given the costs of change and the relatively low net cost of production. But that’s a mistake.

I’m just spitballing here, but assume that roughly 20% of the 100,000 second and third year law students in this country are members of a law journal.  (This would be a conservative estimate at Temple and at most schools, given the proliferation of secondary journals.)  Further assume that those 20,000 students each spend an average of 10 hours a month for 9 months on journal work.  That would mean that students are spending almost 2 million hours a year on producing student run law journal content.  If we billed them out as cheap, $150/hour associates, that’d be around $300,000,000 of time thrown at the world-shaking problems of bluebooking and case note production.

Assume we killed all our journals tomorrow and simply published all legal scholarship on SSRN.  (There’s be enormous problems with this solution, but follow me for the sake of argument.)  What could our students do with those two million hours?  Assuming the ABA weren’t an innovation sucking force, might they actually work and reduce the cost of attending school?  Or perform pro bono service?  Obviously, students work on journals because they think they’ll get something out of the experience – or because they fear that not working on journals would be career deadening.  But it’s our fault that students are forced to that choice.  We could provide non-journal extra-curricular experiences, or better journals, that would make use of the gift of time that students are offering us.

If you could kill each and every journal at your school tomorrow, what would you replace them with?

  July 29, 2012 at 6:05 pm   Posted in: Law Rev Contents, Law School   Print This Post   22 Comments

Introducing Guest Blogger Leora Eisenstadt

posted by Dave Hoffman

I’m pleased to welcome Leora Eisenstadt as a guest blogger for the month of August.

Leora is an Abraham L. Freedman Teaching Fellow at Temple University’s Beasley School of Law.  Prior the fellowship, Leora was an associate in the Labor & Employment Group at Dechert LLP, representing and counseling companies in cases involving employment discrimination issues and general employment matters.  She also represented and advised educational institutions in cases involving Title IX and Title VII and represented pro bono clients in family law and civil rights cases.  From 2005 to 2007, Leora served as a law clerk to the Honorable R. Barclay Surrick in the Eastern District of Pennsylvania.   Leora received her J.D. from New York University School of Law and her B.A. in History from Yale University.  From 2003 to 2004, she was a Fulbright Scholar in Israel studying sex equality and the development of Israeli equal employment opportunity law.

Leora’s primary scholarship interests are in the areas of employment discrimination and employment law generally.  She focuses on the role of identity along with the varied meanings of equality in employment law. Her publications include Separation of Church and Hospital: Strategies to Protect Pro-Choice Physicians in Religiously -Affiliated Hospitals, 15 Y.J.L.F. 135, and Privileged but Equal? A Comparison of U.S. and Israeli Notions of Sex Equality in Employment Law, 40 Vand. J. Transnat’l L. 357.  She has also published articles in BNA Insights: Labor and Employment Law and Bloomberg Law Reports.  She is currently completing an article entitled The N-Word at Work: Contextualizing Language in the Workplace, which is forthcoming in the Berkeley Journal of Employment and Labor Law.

 

 

  July 27, 2012 at 2:30 pm   Posted in: Administrative Announcements   Print This Post   No Comments

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