Author: Dave Hoffman

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Introducing Guest Blogger Katie Eyer

We’re delighted to welcome Katie Eyer, of Rutgers-Camden Law School, as a guest for the month.

Katie joined the Rutgers Camden law faculty as an Assistant Professor in June 2012.  Her work, which takes multidisciplinary approaches to questions of contemporary anti-discrimination law, has appeared or is forthcoming in journals such as the University of Pennsylvania Law Review, the Minnesota Law Review and the Yale Law & Policy Review.  Her most recent work-in-progress, titled “Constitutional Colorblindness and the Family,” was recently awarded Honorable Mention in the 2013 AALS Scholarly Papers Competition, where it was described by the selection committee as “saying something new and compelling about constitutional colorblindness.”

Prior to coming to Rutgers, Katie was a Research Scholar and Lecturer at the University of Pennsylvania, where she conducted research in conjunction with the Alice Paul Center for Research on Women, Gender and Sexuality and taught Disability Law.  Katie also litigated civil rights cases prior to entering academia full time, and secured a number of precedents in the Third Circuit expanding the legal rights of LGBT and disabled employees, including Prowel v. Wise Business Forms, 579 F.3d 285 (3d Cir. 2009) and Miller v. American Airlines, 632 F.3d 837 (3d Cir. 2011).

Katie clerked for the Hon. Guido Calabresi in 2004-2005, and was a Skadden Fellow at Equality Advocates Pennsylvania from 2005-2007.  She was a litigator with the private firm of Salmanson Goldshaw, PC until April 2012.

Her recent work includes:

Constitutional Colorbindness and the Family, 162 U. Pa. L. Rev. __ (2013) (forthcoming, selected as Honorable Mention in the 2013 AALS Scholarly Papers Competition).

Essay, Marriage This Term: On Liberty and the “New Equal Protection”, 60 UCLA L. Rev. Disc. 2 (2012) 

That’s Not Discrimination: American Beliefs and the Limits of Anti-Discrimination Law, 96 Minn. L. Rev. 1275 (2012) (reviewed here by Charles Sullivan on JOTWELL).

 

 

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Contract Evolution

There’s a fantastic symposium issue out of NYU this month, devoted to evolution and innovation in contract terms.  There are articles by the ridiculously productive trinity of Choi/Gulati/Posner, a wild piece by Kevin Davis on Contracts as Technology, and a very cool empirical paper by Marotta-Wurgler and Taylor on evolving terms in standard form contracting online.  I’m obviously biased toward empirical work on this exact topic, so I’m a sucker for this stuff.  But I do think that this kind of empirical and theoretical work is where contract scholarship should be heading in the next 10-20 years.  Check it out.

 

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Is it better for one student to get a job than n students to fail the bar?

A student’s final law school GPA predicts bar passage better than other independent variables. But the relationship isn’t causal: raising the mean GPA of all students does not promote bar passage.  Indeed, some investigators have suggested that the inverse is more likely to be true. When GPA rises for all students, individuals at the bottom of the class aren’t sufficiently signaled that their grades are really and truly bad, and consequently such badly-warned students don’t approach bar study with the requisite degree of seriousness. That is, if a school has a mean of a 3.3 at graduation, the bottom 20% of the class probably has GPA of around a B-.  B- students may well say to themselves “sure, I’m at the bottom of the class, but I’m not a C student!  I’m not in danger of failing the bar!”  But they are.  In this perverse way, raising the mean increases the rate at which weaker students fail the bar, even as overall, grades are positively correlated with passing!

The puzzle deepens. Students often argue that employers focus on mean GPA to the exclusion of class rank.  Given that students are competing with other schools (nationally and regionally), there are race-to-the-bottom pressures on each law school’s curve generated by employment markets.  A school that produces students at the 50th percentile with a 3.5 mean will obtain better employment outcomes than one that produces students at the 50th percentile with a 3.0 mean. All else equal, schools should reduce barriers to employment.  (Of course this result depends on employers indeed acting in the irrational manner described – ignoring or downplaying class rank and focusing on absolute GPA.  This would be very, very difficult to test empirically, though I imagine someone could give it a shot using nifty studies.)

You see the tension, right?  A higher mean simultaneously could boost employment in the middle and higher end of the class while also depressing bar passage at the lower end of the class. These contrasting outcome effects turn on psychological biases resulting from overemphasizing raw grades over percentile rank, but simply providing class rank instead of grades would cause employers to balk. The tension may lead administrators and faculty to an uncomfortable question: when the two conflict, should we privilege bar passage over employment? What is the appropriate calculus? Could we live with one additional student failing the bar if two got a job?

My own view is that the price for bar failure is so high that the number of jobs won in this calculus would have to be unrealistically high.  Consequently lower means are to be preferred to higher ones at some schools.  What do you think?

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Ranking: Law v. Undergrad

Inspired by this 2007 Taxprof post, I decided to compare the 2013 US News undergrad ranking to the 2013 overall law school rank. This project was a bit more complicated than it was six years ago,  due both to scandal & to the proliferation of regionally rankings.  But, ignoring schools that aren’t present on both lists, the results are illuminating.  For figures, follow me after the jump.

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Free Advice to Incoming Law Review Boards

While academics angst, law journal editors toil to manage the fire hose of submissions, real and fake expedites, and the uncertainty that comes with a new job.  Many journal editors now seem to have the goal of “improving their ranking“.  Seven years ago (!) I wrote some advice on that topic.  It seems mostly right as far as it goes, but I want to revise and extend those comments below, in letter form.

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The Pacific Legal Foundation May Challenge Law Review Affirmative Action

Via Josh Blackman comes this news:

“The Pacific Legal Foundation has sent requests under the California Public Records Act (the equivalent of FOIA) to the University of California Berkeley and University of California Davis, seeking information about how they use race and gender in making decisions about what articles to publish. You can download the requests here: [UC Davis PRA requestUC Berkeley PRA request.] The letters were sent to the Dean of the law schools, and carbon copied to the Editor in Chief and the Faculty Adviser.”

The PLF demands a response by March 2.

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What is the Point of Symposia?

Over at the Faculty Lounge, the estimable Michelle Meyer argues that it’s possibly inconsistent to take account of race, gender, and sexual orientation in symposia invitations but not to do so when selecting articles in law reviews.  Her post is thoughtful and well-written, though I believe it rests on a false premise.  Go over there and read it and then come back to find out which one.

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Dodge v. Wholefoods?

Like many corporate law teachers, I have mixed views about the old chestnut of Dodge v. Ford.  On the one hand, it’s very quotable. On the other, shareholder wealth maximization is a normative goal, not a rule with teeth.  Still you go to war with the data you have.

Now we’ve more data – useful for an exam fact pattern, at least!  An alert student (thanks, C.M) found this choice quote in a recent interview of Wholefoods CEO John Mackey:

“JOHN MACKEY: I think that Whole Foods does have higher purposes. We take them very seriously. We don’t exist primarily to maximize profits.

We’re fulfilling the mission that we set for ourselves of helping people to live healthier lives, to hopefully reverse this obesity crisis we have in America. Whole Foods does feel this sense of responsibility to try to make a difference. And that filters through our team member base to our customers. We really are united around kind of our mission as an organization. That really makes a difference.”

Now, obviously this is a branding statement – which could be interpreted as a way to make money by convincing customers to pay more for fruit than they ought to.  And maybe nothing Mackey says should be taken very seriously. See, e.g., fascism & sockpuppets. Indeed, he’s certainly said CSR-like things like this before.  But it’s still striking to see a CEO say essentially what Henry Ford said (and was punished for saying) in Ford v. Dodge. In the interview, Mackey also was asked about why his perspective is rarely articulated by CEOS.  Check out his answer after the jump.

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Why Is Privatized Procedure So Rare?

For some time, I’ve been mulling over how closely parties can tailor the rules of civil procedure to their own purposes. That is: can parties write enforceable contract terms which state that if they sue each other, the ordinary procedural rules won’t apply? Do such contracts exist? For example, parties might contract to be able to take 5 depositions in a case instead of the default 10. Or they might dispose of the rules of hearsay.  The literature on this topic of private procedure arguably started with the Scott/Triantis piece, Anticipating Litigation in Contract Design, and has gotten new momentum from Bone, Kapeliuk/Klement, Dodge, and Drahozal/Rutledge. My contribution, freshly up on SSRN, ended up being slightly more empirical than I’d expected — though I guess this won’t surprise any of our long-time readers.  In Why Is Privatized Procedure So Rare?, I try to explain why there is actually so little private procedure in places we’d expect to see it:

“Increasingly we hear that civil procedure lurks in the shadow of private law. Scholars suggest that the civil rules are mere defaults, applying if the parties fail to contract around them. When judges confront terms modifying court procedures — a trend said to be explosive — they seem all-too-willing to surrender to the inevitable logic of private and efficient private ordering.

How concerned should we be? This Article casts a wide net to find examples of private contracts governing procedure, and finds a decided absence of evidence. I search a large database of agreements entered into by public firms, and a hand-coded set of credit card contracts. In both databases, clauses that craft private procedural rules are rare. This is a surprising finding given recent claims about the prevalence of these clauses, and the economic logic which makes them so compelling.

A developing literature about contract innovation helps to explain this puzzle. Parties are not rationally ignorant of the possibility of privatized procedure, nor are they simply afraid that such terms are unenforceable. Rather, evolution in the market for private procedure, like innovation in contracting generally, is subject to a familiar cycle of product innovation. Further developments in this field will not be linear, uniform and progressive; they will be punctuated, particularized and contingent.”

Download it here. I’d love your comments. It’s out in the scrum, but I’m intending to continue to revise it as data continues to come in.

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Affirmative Action for Law Scholarship

There are several issues in this unfolding story about Scholastica, law review submissions, and “diversity” preferences. Let’s break them out.

  1. I’m shocked!  Shocked!:  Over at Prawfs, Professor Mannheimer and various anonymous commentators think that Orin, Josh and I are naive.  Everyone knows that law reviews routinely take race, gender and sexual orientation into account when choosing between articles.  Indeed, Josh got an email from a former editor at the California Law Review saying that the practice “is nothing new and not exactly a secret.” Well, shucks. I guess I’m the sucker here.  Even if this had crossed my mind, I would have naively thought that law faculties would never permit law student boards to make decisions about articles based on race, gender and sexual orientation without clearly thinking through whether such practices were legal, and without setting forth an explicit and public set of guidelines vetted by university counsel’s office. Honestly, the idea that California, NYU, Boston College, and other law reviews are thinking about my sexual orientation when they go forward with a “board review” is so unbelievably offensive that I’m still having some trouble wrapping my head around it.  So, yup, I’m shocked.
  2. But everyone else is doing it: On the prawfs thread, several anonymous commentators stated that diversity preferences (however defined) are no worse than preferences that boards already express for (or against) elite school letterhead.  There are two points to make here in response. First, the best law journals already engage in blind review, and using letterhead as a proxy for quality is antiquated and embarrassing. It’s not a defense of a bad practice that another bad practice exists.  Second, though it’s not well thought out and should be abolished, at least the intuition behind letter-head bias is rationally related to what I thought the law review’s ends were: to select the best piece of scholarship. But what’s the intuition behind picking people, not papers?  That law review placement is a “good” owned by the law review that wise and benevolent boards should redistribute in the ways that seem best to them?
  3. Scholastica’s just an enabler: I can’t quite figure these folks out.  They commented yesterday that they were just giving reviews what they wanted. But then some editors wrote me to say that they didn’t want this widget – and that they only clicked on it because it was so easy to do. Indeed, Iowa appears to have de-clicked the widget yesterday in response to this thread.  In the best possible light, it seems to me that Scholastica’s developers are simply importing other disciplines’ norms and preferences into the law without thinking carefully about how you might want to have different tools for faculty editors than unsupervised student boards. But maybe that’s not the light to see Scholastica in. As I wrote yesterday, their high price, preference for a different kind of scholarship, and exclusivity campaign might suggest that far from being merely a “platform”, they are hoping to use digital architecture to change law review behavior. I’d love to hear more from them about what their goals were and are going forward for legal scholarship.
  4. Until such questions are answered, my view is that of a commentator from yesterday: vote with your feet. Don’t use Scholastica unless the journal absolutely insists, as very, very few do.  Consider also sending emails to the faculty advisors of journals that are exclusive to ask them if they are on board with this potentially radical, and radically troubling, shift in law review standards and selection processes.