Author Archive for david-zaring
Adieu and Thanks
posted by David Zaring
Its been a pleasure guest-blogging for the past month, and an honor to get to write on a site whose posts I’ve been reading since the beginning. All good things must come to an end, though. Or at least, sort an end: this guest-blogging is apparently addictive! In a week or two, you will find me at the international law blog Opinio Juris, which is the kind of thing you might like, if, as they say, you like that kind of thing. And after that, having hit for the guest-blogger cycle, I will look forward to returning to a consumption-based, rather than provision-based, approach to digital content.
April 7, 2006 at 1:31 pm
Posted in: Administrative Announcements
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Modeling to the Ignorant
posted by David Zaring
The very brilliant Matthew Stephenson has recently published a positive political theory paper on the choice for Congress between delegation to agencies and delegation to courts. He thinks that a rational Congress will delegate decisions to agencies if it wants to create a regime that will be ideologically consistent across issues but variable over time (he studiously avoids examples, but perhaps agricultural subsidies – which could be changed in the future but in the present Congress wants done in a particular way – are the idea). And that Congress will delegate decisions to courts if it wants temporal consistency but ideological variability (perhaps a regulation requiring the alternating, as opposed to direct, current, or maybe rules that affect long-term government contracts, are cases where Congress would roll the dice on the content of the choice – delegate it to the courts – but hope that whatever choice is made becomes a predictable precedent that future courts follow).
The second part of Stephenson’s paper, though, is, quite literally, Greek to me:
Modeling is upon us. You see it in the Journal of Empirical Legal Studies – though empiricism is conventionally thought to be a form of social science that might be practiced without sophisticated modeling – and now you see it in the Harvard Law Review. Stephenson develops eight such formulas in the formal proof portion of his piece on legislative delegations.
What is the upside of this sort of modeling for lawyers and political scientists? God knows the latter do plenty of it, but there’s an audience cost – I expect that most of the legal scholars sympathetic to positive political theory apply its insights without even being close to being able to model like McNollgasts can. And I’ve been at conferences where law professors assessed models more with fear and trembling than with confidence in the clarity of the modeled insights. I am, after all, semi-like Stephenson, an eager and promising administrative law scholar [ed. – hoo boy. Might be a good time to disable comments.]. But I doubt that Stephenson was writing part II of his paper for my benefit, or if he was, he certainly won’t enjoy my incisive critique of it – I simply skipped it.
So other than noting, gentle reader, that perhaps you ought to try to learn the basics of modeling if you expect to be reading a lot of legal scholarship in the future, I wonder if I might trouble those of you who do enjoy reading modeling pieces to recommend legal scholarship (I guess I’ll leave economists and mathematicians out for now – I’ll assume without deciding that their modeling presents different concerns than does modeling in public law subjects) in which the thesis was inexpressible without the model. I’d also like advice on meta-scholarship – that is, good resources on how to read models. In short, I’d like to hear advice for a inexperienced consumer of formally modeled scholarship. I suspect you’d be doing more of the Co-Op’s readers a service than you might think.
April 6, 2006 at 3:39 pm
Posted in: Articles and Books
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As the Law Blog Prospers, Whither the Law School?
posted by David Zaring
Prawfsblawg is 1 year old today, Concurring Opinions just turned six months old. I’ve guested on both, and I thought that a post honoring my two generous hosts might usefully be combined with what I hope will be the least essential analysis of the US News law school rankings yet.
In the past year, what has happened to the rankings of the schools who have provided the Co-Op and Prawfs with their full-time staff?
Concurring Opinions (GW, TJ, Temple, AL) net +6
Prawfsblawg (FSU, Hastings, MI, SW, ND, Hofstra, Miami) net +4
Let’s not think too hard about the methodology, shall we? Instead correlative congratulations are due to both staffs!
April 5, 2006 at 3:48 pm
Posted in: Blogging
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Fiction for Truth About Law Firms
posted by David Zaring
The academics and the message boards can only tell us so much about law firms. Lost illusion is the undisclosed title of every novel, so surely the fictionalists have something to add. But if you’re not up for the latest Turow or Auchinloss, where should you turn? Chick lit has provided us with insight into the cultures of magazines, movie studios, nannies, and bounty hunters – but, though In Her Shoes makes a bow in that direction, I’m unaware of a really good law firm entrant in the genre.
Which brings us to Kermit Roosevelt’s In the Shadow of the Law and Nick Laird’s Utterly Monkey. The former – idealistic young lawyers in a powerful DC firm, and Pacey from Dawson’s Creek is working on the televised adaptation – struck me as quite authentic in the way and style of One L, though you can certainly quibble with the decision to tell the story through fifteen main characters. The latter – fish out of water Irish Proddy tries to survive Magic Circle London firm and his nogoodnik Ulster mates – is, if anything, even more writerly, though I had the same problem with it that I had with Cameron Stracher’s Double Billing, an early entrant in the genre: both match the elegant prose with a kinda grating woe-is-me-the-poor-young-associate schtick.
But these are the quibbles – I raced through the Roosevelt, and I found the Laird (fun fact!: married to Zadie Smith! she’s definitely his better half, tho) quite enjoyable, too. I hope that today’s young lawyers do a bit better in firm life than their fictional counterparts. Maybe they will do so if they find the time to read some novels – as well as plenty of law review articles.
April 4, 2006 at 12:43 pm
Posted in: Articles and Books
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Gotta Bury Them Somewhere
posted by David Zaring
The banality of crime, and small business in parts of Long Island with which you may not be familiar. Also, yet another testament to why mob trial journalism gets more movie deals than Microsoft trial journalism.
April 2, 2006 at 10:29 pm
Posted in: Criminal Law
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Let Go, Let Google
posted by David Zaring
On this most special of April days, Google has announced its discovery of the e-recipe for true love: Google Romance. How does it work? You create a profile, and then Google datamines it. Reassuringly, it does so “solely by computer algorithm, without human intervention of any kind.” What’s in it for the Goliath of Search? Advertising revenues, of course – but, fear not, “It’s important to all of us on the Google Romance team that the ads you see … be useful and enjoyable, not intrusive and annoying.”
It sounds very personal, but I’m not one to question our ascent to a brave new world. My illustrious host, however, is obsessed with privacy. He may experience Google Romance differently. Dan, is dating, in fact, a search problem?
April 1, 2006 at 4:04 pm
Posted in: Google & Search Engines
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The Most Cited Cases in Administrative Law
posted by David Zaring
Some empirical research is more blog-worthy than essay-worthy. Entering citations into Westlaw’s Allfeds database over lunch may be an example.
Others have observed that Chevron v. NRDC may become the most cited case of any kind by federal courts, displacing Erie v. Thompkins. It has garnered 7909 citations, far ahead of the next most cited case in administrative law, NLRB v. Universal Camera Corp. (substantial evidence), with 4801 citations. Following that, it’s a tight race between Matthews v. Eldridge (due process), with 4293 citations, and Citizens to Preserve Overton Park v. Volpe (hard look), with 4227. The scope-of-judicial-review case that has underperformed is MVMA v. State Farm (arbitrary and capricious), with 2276 citations, less than the sort of quaint Goldberg v. Kelly’s (due process) 2377 citations and the narrow-issue-area Abbott Labs v. Gardner’s (ripeness) 2910 citations. Chevron has also stolen a lot of Vermont Yankee v. NRDC’s (rulemaking) glory – it has 1059 citations. But my not-so-dark-horse candidate for the silver medal in the future is Lujan v. Defenders of Wildlife (standing) with 3775 cites. Not too bad for a case from 1992, and I suspect that the government has installed a shift-F4 macro for the case on every one of its attorneys’ computers.
March 29, 2006 at 1:14 pm
Posted in: Empirical Analysis of Law
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They Don’t Take Dilbert Very Seriously
posted by David Zaring
Sebastian Mallaby has an interesting column on the dominance of American firms in the global marketplace, and Daniel Drezner has an interesting comment thread reacting to it.
March 29, 2006 at 1:10 pm
Posted in: International & Comparative Law
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A Conspiracy of Paper-Pushers
posted by David Zaring
Perhaps you have wondered why the money that law school professors pull down is only obvious at certain law schools subject to state cognates of the Freedom of Information Act. Antitrust may be the culprit. Pursuant to a consent decree with the United States resolving a case brought under the Sherman Act, the ABA’s school accreditation committee has, among other things, “agreed to refrain from using law school compensation data and from adopting or enforcing any standards that have the purpose or effect of imposing requirements as to the base salary, stipends, fringe benefits or other compensation paid to law school deans, administrators, faculty, librarians or other employees.”
This consent decree sunsets on June 25, after a ten year run during which a number of new law schools entered the market, and salary data got enshrouded in an aura of mystery. Did the consent decree affect legal education, was it a good thing, and what will happen when it expires?
Antitrust ain’t my raison d’etre. I only wonder – and I confess I only wonder this because of a tip from a colleague – if the law reviews, with their concerted action on article length are going to be the next up against the wall. [ed. Uh, the article length thing isn’t commercial and varies from review to review. Oh really? Each of the eleven law reviews that got the ball rolling on article length signed on to a joint statement, each is “committed to rethinking and modifying its policies,” presumably at the behest of the other ten, and each is “actively exploring how to address” article length in concert with one another. So I recommend against loose talk around Thomas Barnett.]
Anyway, I farmed this one out to an expert. I asked Josh Wright, a prominent and businessey professor blogger, what he thought about the sunset of the ABA accreditation decree, in exchange for an offer to cross-post the result. Here’s what he said:
“The consent decree prohibited activity that was plainly anticompetitive: colluding with respect to faculty salaries and other benefits as well as boycotting non-ABA approved schools. Forcing existing law schools to face competition from schools, even those that offer lower salaries and fewer amenities, can only improve legal education. However, my guess is that the expiration of the decree will not tempt further collusion, because any such attempt would be both highly visible and likely to attract antitrust scrutiny.”
But Josh and I would welcome further thoughts.
March 28, 2006 at 3:01 pm
Posted in: Law School
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We Can All Say We Knew Him When
posted by David Zaring
Todd Kim, my former co-clerk, has just been appointed to be the first ever Solicitor General of the District of Columbia, and he’s part of a notable trend in state SG personnel. Two Jones Day appellate lawyers have left that firm’s schmancy appellate practice to become state SGs, as have a number of other ambitious Washingtonian types eager for Supreme Court arguments. The job offers interesting exit options as well: Greg Coleman left Texas’ post to become a commerical litigator with a Supreme Court practice at Weil Gotshal; Jeffrey Sutton went from being the Ohio SG to being a judge on the Sixth Circuit. So while everyone’s bursting with pride about Todd, we’re all wondering what’s in his future. Will Todd decide to be a judge or a millionaire? It’s something of a catch-22, and so I hope we can all sympathize with him during this no-doubt difficult time.
March 27, 2006 at 2:14 pm
Posted in: Sociology of Law
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Obit
posted by David Zaring
James O. Freedman was a law professor and dean at Penn, and a president of Iowa and Dartmouth. Those of us with roots in the hinterland remember him as an Iowan of statewide popularity, who – with the assistance of a southern-fried football coach – turned a Big Ten also-ran into a big-time college athletic powerhouse. I always suspected that Freedman was delighted to leave Iowa for someplace with a smaller football stadium. He retired from Dartmouth to Cambridge, Mass.
March 23, 2006 at 3:50 pm
Posted in: Law School
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Three Interesting Things About The New Source Review Decision
posted by David Zaring
The DC Circuit’s invalidation of EPA’s Clean Air Act regulations exempting certain equipment replacements from the new source review process led the Times last weekend, and one look at the number of lawyers who participated in the appeal tells you that a lot of parties thought the case was important. What happened and why should you care?
Very roughly, if you build a new source of air pollution, you have to get a permit to pollute – this is the so-called new source review process. However, if you’re replacing equipment on an old pollution source, you may be able to avoid new source review – or so thought EPA, which passed a rule providing that “the replacement of components with identical or functionally equivalent components that do not exceed 20% of the replacement value of the process unit and does not change its basic design parameters is not a change” triggering new source review. The court held that EPA’s reg was inconsistent with the plain language of the CAA, which, it held, requires new source review upon any modification of the old source that increases pollution. As the court held, “Congress defined ‘modification’ in terms of emission increases, but” EPA’s proposed reg “would allow equipment replacements resulting in non-de minimis emission increases to avoid” the permitting process.
1. This panel included Judge Janice Rogers Brown, the controversial and only recently confirmed libertarian. Perhaps Brown’s hostility to regulators in general explained her hostility to this business friendly interpretation of a congressional directive … but perhaps also this was an easy textual case, or she was persuaded by the brilliant judge who wrote the opinion, Judith Rogers (a judge who has, in the past, hired some law clerks I greatly admire).
2. As is often the case these days, the lineup was states + environmental groups v. federal regulators + industry. I’ve been impressed for a while by the number of legal foot soldiers that environmental groups have gotten out of state attorney general offices.
3. The Times notes that the arena of Clean Air Act combat has shifted from Congress, which wrote an incredibly detailed and quite constraining statute (a very different statute than those with New Deal era broad grants of regulatory authority) to EPA and the courts, who are interpreting that statute in a context where legislative review is unlikely – “there has been no real movement in that direction in recent years.”
March 22, 2006 at 2:19 pm
Posted in: Consumer Protection Law
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Reading List
posted by David Zaring
There’s a lot of information out there, but lots to learn. As Judge Posner reminds us, “intelligence data are collected” among other ways, “by scrutiny of publicly available … materials such as newspapers, magazines, the Web, and scientific and technical journals.” We already know about Liptak, Glater, Lithwick, and Leiter. Who else can provide us with crucial open source intel? I’m reading this and this, to keep up with the kids. I’m enjoying the new law beat lady’s work in the Observer. And jd2b is my one stop source for a random collection of press releases from law schools. When they get an editor, that site is gonna be huge.
March 21, 2006 at 1:08 pm
Posted in: Sociology of Law
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The East Meets Easterly
posted by David Zaring
The Times yesterday, per the extremely generous Virginia Postrel, reviewed the latest critique of international development assistance, White Man’s Burden, by William Easterly. The genre isn’t a new one – writers have long savaged the World Bank for being bureaucratic, the West for being stingy, and political leaders of the developing world for being corrupt. If you define the whither-development genre broadly enough, you could throw in the much-noticed recent work of economists like Glaeser & Shleifer, and perhaps even law professors like Hansmann & Kraakman, on the keys for the development of prosperity-creating markets in the west, as opposed to elsewhere (to oversimplify, it’s independent courts and asset shielding aspects of the corporate form, respectively).
In international trade, a subject that I teach, the so-called Doha round of talks is explicitly focused on creating a trade deal that will help to spur development. Easterly appears to be sympathetic to a “trade not aid” approach to international development; he thinks that development assistance must be paired with incentives – that anti-malarial drugs should be sold, rather than given away. But he also seems to be enamored of business jargon: aid givers should be “searchers,” and not “planners,” and should avoid one-size-fits-all recommendations.
I don’t precisely know what “searching” means, but I do know recognizing the complexity of difficult problems can, if done too vigorously, deprive the people who want to solve those problems of the intellectual means – simplification, extrapolation, and theory – that they may need to solve them. As Postrel says, “extracting lessons from experience is quite compatible with decentralized searching. Businesses in radically different industries learn from one another. Searching includes discovering the day’s best practices. Not every situation is unique.”
March 20, 2006 at 9:26 am
Posted in: International & Comparative Law
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Moussaoui and the Government Litigator
posted by David Zaring
I don’t claim insight on the criminal laws involving terrorism. But terrorists prosecutions, as far as I can tell, tend to reveal that terrorists, or at least the ones who hope to attack America, don’t exactly operate like SPECTRE does in the movies. The massive government effort against them accordingly tends to look unbalanced, a major bureaucratic initiative against a tiny number of marginal outcasts who live in a twisted fantasyland. It’s Max Weber against a particularly vile Charles Bukowski novel.
This may be appropriate criminal law enforcement. But in the Moussaoui case, it has made for a very weird trial, where an unhinged defendant has been paired with a well-resourced and experienced team of defense lawyers. To push the analogy some more, it’s Weberian order against the half-crazy and half-slick. The trial only got weirder when a TSA lawyer helping out on the case got much of the government’s sentencing phase evidence suppressed by prepping a number of witnesses.
I do know something about civil litigation on behalf of the government, but criminal law must be very different. Here’s my takeaway on what the TSA lawyer did:
- she appears to have violated a court order relating to witness prep by emailing a transcript of the opening statement to witnesses, and by briefly summarizing the testimony of another government witness.
- having an agency lawyer advise agency witnesses on the government’s theory of the case and on what they should expect when they go in to testify in court is, as a general matter, essential to government litigation (unproblematically, in my view, this lawyer also theorized about the kinds of questions defense counsel would ask and suggested how to handle them). In fact, I can’t imagine any person going to testify in any civil case without checking with their in-house counsel in this way first. Others disagree.
- I’m surprised that the prosecutors the TSA lawyer was trying to help called her witness prep “reprehensible” and “unfathomable.” Those words will appear in every defense brief related to this issue.
- I recommend sympathy for the bureaucrat; this lawyer’s career is over, there’s talk of not just disbarment, but jail time, she’s been sold out by her co-counsel (and rather incompetently, might I add), the judge seems eager to make her a whipping boy, the case has been affected, and all of this is because she tried to keep her clients informed, through hardly unprecedented short cuts like emailing them all at once and attaching pleadings and other publicly available court documents. She was trying to do her job, but by God, she won’t get to do it any more.
It’s all made a circus even circusier. So here’s my final, larger point: no wonder the government doesn’t want to put the Guantanamo detainees through a similar sort of public process. I doubt that prosecutors and other law enforcement officials relish the prospect of hundreds of wild-eyed Moussaouis getting sophisticated defense teams and some form of public process – and creating hundreds of opportunities for prosecutorial mistakes along the way.
March 16, 2006 at 1:40 am
Posted in: Privacy (National Security)
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Demography Ain’t Destiny
posted by David Zaring
Daniel Drezner notes the latest study in the always irritating demographic-victory-of-the-scary-is-upon-us field of empirical research. This time, instead of the Chinese or the Hasidim, it’s the conservatives of Salt Lake City who will, if the trend lines continue unabated, take over the earth.
Look, there’s no doubt that far into the future, there will be way fewer bloodline-pure Italians, or ditto-pure Iowans born into Italy or Iowa. There’s also no question that if you’re only going on the basis of children produced, Salt Lake City will grow at a faster rate than Seattle.
But what conclusions can be drawn from these facts in light of the prevalence of immigration and assimilation? I have no confidence – none – that the political ideologies of parents with big families will result in successful political movements soldiered by their children. And if I was a political consultant, I’d be more concerned with the ideological ferment in Greater Los Angeles than I would in the ten Great Plains states that might rival it in population, even if your average couple in Scotts Bluff produces more kids than your average couple in West Hollywood. Or at least I would be if we didn’t have a Senate.
March 15, 2006 at 1:29 am
Posted in: Politics
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Has the Tide Turned for Conservatives in the Academy?
posted by David Zaring
Sorry. Another hiring post. Tis the season.
Conservative academics have long moaned that they face hostility in the academy, and I imagine that this may still be true at some institutions. But since there aren’t that many conservatives in on law school faculties to begin with, I thought it might be idly worth speculating whether the few that do decide to teach are entering a land of milk and honey. Harvard invited mostly conservatives for a look at its con law position, some think the place is on a right wing hiring binge. As best as I can tell, Illinois, Minnesota, and Notre Dame have developed concentrations in Republicanism, possibly they hope to imitate schools like George Mason and San Diego, which, according to the conventional wisdom, have looked rightward for hiring, and seen a dramatic improvement in their repuations. And that’s not all: the University of St Thomas and Ave Maria are new law schools with socially conservative agendas; they need to hire faculty, too. I’ll leave other tea-leaf readers to try to figure out whether other faculties keep a particular eye out for friends of the supply side and states’ rights.
It all sounds very political and possibly a bit cynical, but, while we’re idly speculating, I’d note that there may be good reasons for these faculties to look for Federalist Society credentials. You’re likely to get yourself new colleagues who are likely to do revisionist, but hardly incomprehensible, work, who are often comfortable with economic analysis, who might be willing to teach corporate subjects, and who will not find it difficult to plug themselves into a well-resourced, energetic network of teachers at other law schools.
Indeed, many schools may want a conservative or two on their faculty for the same reason they’d like, say, an ADR specialist – so they’ve got people on all of the conference circuits, capable of participating in a field that could, as they say, blow up. Even Yale has hired a conservative or two recently. Talk about shifting the paradigm.
March 14, 2006 at 12:16 am
Posted in: Law School (Hiring & Laterals)
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How to Sue: A Primer from North Country
posted by David Zaring
Some people go see courtroom movies for entertainment purposes, I go for litigation tips. Which is why I could recently be found at North Country, a flick just shown at my educational institution in serendipitous tandem with the Oscars.
I learned a lot watching North Country, not least because of a particularly bold trial strategy choice made by the defendant mining company in the climactic courtroom scene. By discussing it, I warn you, I’ll be revealing the “surprise” of the movie.
To me, the big surprise was the company’s approach. Not everyone would try to discredit a plaintiff by putting on evidence that said plaintiff was both violently and statutorily raped in high school by one of her teachers. For one thing, this fifteen years prior event might not seem that relevant to whether the plaintiff had to put up with a culture and an environment of sexual harassment at work, or was a credible witness. For another, putting on this evidence might generate sympathy for the plaintiff.
But the defendant company definitely had a lot of resources at its disposal, and certainly a very well-dressed lawyer, so I assume that it knew what it was doing. It was, however, hard to keep track with all of the speeches that the lawyers were making during this scene – including the one by plaintiffs’ counsel accusing a witness of being likely to pee on the ice at a skating rink. The judge was keeping control with rulings along the lines of: “it’s unconventional, counsel, but I’ll allow it,” which was understandable, since when he would sustain objections counsel tended to just keep talking anyway.
The best thing about this climactic courtroom scene, though, is that it wasn’t before a jury. It was a Rule 23(c) class certification hearing, definitely the most exciting class certification hearing I’ve ever seen or heard of. I bet, in fact, there’s never been a class certification hearing quite like it.
March 13, 2006 at 9:14 am
Posted in: Uncategorized
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What does Chevron deference have to do with the Appellate Body of the WTO?
posted by David Zaring
Other than that administrative law and trade law are the two subjects that my students endure from me, the connection between Chevron v. NRDC and the GMO dispute between the United States and Europe is tenuous. Perhaps we can broadly characterize them as vectors through which the federal government vindicates its policies through judicial review – be it domestic and international. But perhaps not.
How often does the United States prevail in these fora?
Orin Kerr, a terrible writer, but a perspicacious empiricist, found that in 1995 and 1996 agency interpretations received Chevron deference 73% of the time in the courts of appeals (not online, but see 15 Yale J on Reg at 30). Now Cass Sunstein and Thomas Miles are at work on a larger study of Chevron deference over a longer period of time, involving three characteristic government agencies – and even if their results show less deference to the agency interpretation, the conventional wisdom is that there’s no way that the United States could lose before anybody more than they lose in the WTO.
But that’s not how the USTR calculates it. In its view, “the Administration’s record in WTO cases involving the United States is 13 wins and 10 losses in three and a half years, a 56% success rate. From 1995-2000, the U.S. record was 18 wins and 15 losses, a 54% success rate.”
Wins – or “wins,” as Joost Pauwelyn usefully reminds us – aren’t as hard to come by for fearsome American government litigators as one might think, no matter what the fora. I find the apples and oranges comparison interesting, although not rigorous.
March 9, 2006 at 3:12 pm
Posted in: Empirical Analysis of Law
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Whether a Fellow or a Visitor Be
posted by David Zaring
The new hires news is pouring in, and already there’s been some comment on the fact that a large number of the successful applicants came from fellowships or from visits at other schools, as opposed to from practice. When I looked around for a so-you-want-to-be-a-professor gig, I applied to two schools. Each of these places were massive, lumbering beasts of the law school firmament. It now appears that visiting and fellowship opportunities cover the map, and that successful applicants can come from a wide range of institutional settings.
So which should you choose – a fellowship at a big law school, or a visiting gig somewhere else?
If you’re going into teaching for the money – and no man but a blockhead ever wrote but for money – your choice is clear. You want the visit. Possibly for US News reporting reasons, or maybe for budgetary bureaucratic reasons far above my pay grade, my spy network suggests that visitors frequently to get a salary not dissimilar than that that of new tenure track hires. If you’re thinking about a fellowship or a short-term writing job, you’ll be lucky to get more than 60 grand, and you’ll probably make much less.
Of course, if you’re entering teaching for the money, I’d encourage you to compare the salaries of first year associates at New York law firms with those of tenured professors at the University of Virginia.
March 8, 2006 at 11:23 am
Posted in: Law School (Hiring & Laterals)
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