Category: Law School (Scholarship)

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Contracts Casebook Survey Results

The frightful stress gripping legal education is one reason why all law professors may be interested in the newly-released results of the Washington Law Review survey of law teachers of Contracts conducted in mid-2013.

Available here, the results from 138 respondents consist of numerical summaries of multiple choice questions and synthesis of their written comments that I culled.  A sampling from the latter appears below.

The results are of inherent interest to those teaching Contracts and speak to broader questions of legal pedagogy of value to others, including the allocation of time in the first year, the utility of the case method of instruction, and desire for change versus the tug of tradition.

(The survey was done in connection with a symposium inspired by my recent book, Contracts in the Real World, which has also just been published, here, featuring contributions from Aditi Bagchi, Brian Bix, Larry DiMatteo, Erik Gerding, Charles Knapp, Jake Linford, and Jennifer Taub.)

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7

Law Reviews and Blogs

I have a somewhat different take on Adam Liptak’s critique of law reviews that was published earlier this week.  My view is that law reviews are suffering from the same problem that all print media face–they are less relevant in a world of blogs and social media.  The difference is that with respect to newspapers and magazines, those market and technological forces have caused a contraction in “old media.”  When it comes to law reviews, though, there has been no contraction because they are subsidized by the schools.

This leads me to ask the following question:  If there are fewer law students, fewer law professors, and more opportunities to publish outside of law reviews, shouldn’t there also be fewer law reviews?  Now I understand why schools have not cut funding to journals (there would be angry students and alumni), but perhaps deans and faculties ought to reexamine how many journals a school ought to support.

11

In Defense of Law Reviews

Criticizing law reviews has been in fashion for quite a while, and in the New York Times there’s a new article with a similar refrain of attacks on law reviews.  In essence, the criticisms boil down to: (1) law reviews should be peer review and articles not selected by law students; (2) many law review articles aren’t cited; (3) practitioners don’t read law review articles.  We’ve heard all these before, and I’m growing very tired of these stale arguments.

Although law reviews are on odd system for publishing, I think that the model is actually not as crazy as it might seem.

1. Is the grass really greener with peer review?

For all their imperfections, students do a fairly decent job. I don’t think that articles in other academic disciplines in the social sciences are any less obscure or are cited more. Peer review is filled with cronyism and with way too much “I don’t like this article because I disagree with it” or “I don’t like this article because I’m not cited enough.”

Although law review editors can get bogged down in silly footnote citation formalities, for the most part, I’ve been pleased with my editing and have received some really excellent editing that has sometimes been more extensive than the editing I’ve received when publishing with academic book publishers.

2. Do we really want to bother with peer review?  Is it still needed in today’s age where there’s no longer a scarcity in publishing opportunities?

Peer review is a “front end” evaluation (prior to publication).  It is designed to determine which scholarship is worthy of publication.  That made sense when there was a scarcity of publishing opportunities.  We wanted good scholarship to be published because being published was something not anyone could do, and it distributed and publicized scholarship.

Today, there isn’t a scarcity of publishing opportunities.  Anyone can publish.  Most articles make it on Westlaw.  Hardly anyone reads the print journals anymore.

Peer review can readily occur on the “back end,” with professors evaluating articles post-publication.

Of course, professors will use law review placement as a proxy rather than read the article and decide its merits for themselves. But this is laziness that professors should blame themselves for. If we want to make things more fair, then professors can be more fair in how they evaluate scholarship and stop using law review placement as a proxy if it isn’t a good proxy.

One reason why professors use law review placement as a proxy is that despite a number of misplaced articles, law review placement isn’t completely random.  It’s not a perfect proxy, but for the most part, the top law reviews publish more articles I that I find to be of quality than lower ranked ones.  Not always, but I don’t need a perfect proxy in today’s age where it is so easy to search for and find scholarship.   It’s a kind of weak proxy that can sometimes be helpful, but it shouldn’t replace making one’s own evaluation.

In the end, if we don’t think law reviews do a good job evaluating scholarship, nothing is stopping us from reading it and deciding for ourselves!

3. Should we be alarmed that so few articles are cited?

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UCLA Law Review Volume 60 Symposium: Volume 60, Issue 6 (September 2013) and Discourse

UCLA Law Review, Volume 60 Symposium

Twenty-First Century Litigation: Pathologies and Possibilities

A Symposium in Honor of Stephen Yeazell

 

Volume 60, Issue 6 (September 2013)
Articles

Complexity, the Generation of Legal Knowledge, and the Future of Litigation Ronald J. Allen 1384
Regulation by Liability Insurance: From Auto to Lawyers Professional Liability Tom Baker & Rick Swedloff 1412
When Courts Determine Fees in a System With a Loser Pays Norm: Fee Award Denials to Winning Plaintiffs and Defendants Theodore Eisenberg, Talia Fisher, and Issi Rosen-Zvi 1452
Symmetry and Class Action Litigation Alexandra D. Lahav 1494
Atomism, Holism, and the Judicial Assessment of Evidence Jennifer L. Mnookin 1524
Altering Attention in Adjudication Jeffrey J. Rachlinski, Andrew J. Wistrich, and Chris Guthrie 1586
Wolves and Sheep, Predators and Scavengers, or Why I Left Civil Procedure (Not With a Bang, but a Whimper) D. Michael Risinger 1620
Gateways and Pathways in Civil Procedure Joanna C. Schwartz 1652
Pleading and Access to Civil Justice: A Response to Twiqbal Apologists A. Benjamin Spencer 1710
Teaching Twombly and Iqbal: Elements Analysis and the Ghost of Charles Clark Clyde Spillenger 1740
Unspoken Truths and Misaligned Interests: Political Parties and the Two Cultures of Civil Litigation Stephen C. Yeazell 1752

 

 

Volume 61, Discourse

Discourse

Re-Re-Financing Civil Litigation: How Lawyer Lending Might Remake the American Litigation Landscape, Again Nora Freeman Engstrom 110
Of Groups, Class Actions, and Social Change: Reflections on From Medieval Group Litigation to the Modern Class Action Deborah R. Hensler 126
Procedure and Society: An Essay for Steve Yeazell William B. Rubenstein 136
What Evidence Scholars Can Learn From the Work of Stephen Yeazell: History, Rulemaking, and the Lawyer’s Fundamental Conflict David Alan Sklansky 150
Procedure, Substance, and Power: Collective Litigation and Arbitration Under the Labor Law Katherine V. W. Stone 164
6

ABA Task Force on Legal Education: Down with Status

aba status merceGood news for law professors now submitting articles seeking offers from high-status journals: the importance of status in American law schools is over-rated and is about to be reduced. At least that is the urging of an American Bar Association Task Force Working Paper released last Friday addressing contemporary challenges in U.S. legal education.

Obsession with status is a culprit in the woes of today’s American law schools and faculty, the Working Paper finds.  It charges law professors with pitching in to redress prevailing woes by working to reduce the role of status as a measure of personal and institutional success.  The group’s only other specific recommendation for law faculty is to become informed about the topics the 34-page Working Paper chronicles so we might help out as needed by our schoools. 

Much of the rest of the Working Paper is admirable, however, making the two specific recommendations to law faculty not only patently absurd but strange in context.   After all, the Working Paper urges reform of ABA/AALS and state regulations with a view toward increasing the variety of law schools. It calls for serious changes in the way legal education is funded, though it admits that the complex system of education finance in the U.S. is deeply and broadly problematic and well beyond the influence of a single professional task force.

The Task Force urges US News to stop counting expenditure levels as a positive factor in its rankings.  It stresses problems arising from a cost-based rather than market-based method of setting tuition. It notes a lack of business mind-sets among many in legal education.  It questions the prevailing structure of professorial tenure; degree of scholarship orientation; professors having institutional leadership roles; and, yes, faculty culture that makes status an important measure of individual and institutional success.

But amid all that, law professors have just two tasks: becoming informed and demoting status.  So there must be some hidden meaning to this idea of status as a culprit and the prescription for prawfs to reduce the importance of status as a measure of success.  I am not sure what it is. The Working Paper does not explain or illustrate the concept of status or how to reduce its importance.

I’ll to try to be concrete about what it might mean.   Given the other problems the Task Force sees with today’s law faculty culture (tenure, scholarship and leadership roles), I guess they are suggesting that faculty stop making it important whether: Read More

5

Unintended Consequences of Scholarship

unintended.consequencesSteven Davidoff, Barbara Black and Eric Chaffee gave me the honor of delivering the keynote address at the fourth annual National Business Law Scholars Conference at Ohio State University last week.

Now, Gordon Gee, president of Ohio State, had just announced his retirement. This followed several bad jokes he’d made that had become public—about Notre Dame, Catholic priests and relative literacy across the Southeastern Conference.  Besides encouraging his retirement, I understand that the board of trustees have now banned attempts at public joke telling on the OSU campus, including at conferences.  Which was a relief, because I didn’t have any good jokes to start with, I told the audience.

After that obligatory bit of humor, it was on to remarks based on one of my recent books, The AIG Story, which I wrote along with the company’s long-time chairman Hank Greenberg. One of the book’s themes that I wanted to highlight is the dangers of a one-size-fits-all approach to corporate governance.  For the assembled audience of young business law scholars, moreover, I wanted to intersect that with some thoughts on scholarly life, my notes on which follow.

It is wonderful to be able to write law review articles that other scholars respect as well as books for a general audience, I said.  They are connected.  Both require networks. I felt little need to tell those assembled about the value of participating in conferences; they were there. It takes work and is worthwhile.

Frank Partnoy reminds me of my advice to him when he entered teaching: hit on all cylinders. Teach well, help your students, write articles, books, op-eds, essays, white papers; give workshops and lectures; testify and run host conferences; meet the press; today I extol blogging as well—as I do here at Concurring Opinions. Read More

2

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.

 

4

SSRN Law Professor Top 50 by Downloads

SSRN Inspired by Paul Caron’s listing of the latest SSRN ranking (as of March 1) of tax law professors by number of paper downloads from the SSRN database, following are the top 50 active US-based law professors in all subject areas in the all-time downloads category.  (For the top 25 in corporate law, see here.) Please see Paul’s post for his summary of other rankings  SSRN provides, inherent limits of the meaning of such things, and links to some of his academic writings about them.  See also here for a piece I once wrote about them for a conference Paul hosted some years ago.   

 

1 Bebchuk, Lucian A. 190.698
2 Solove, Daniel J. 173,999
3 Black, Bernard S. 135,130
4 Sunstein, Cass R. 134,109
5 Lemley, Mark A. 125,150
6 Bainbridge, Stephen M. 92,448
7 Landes, William M. 76,844
8 Leiter, Brian 75,362
9 Posner, Eric A. 73,136
10 Kerr, Orin S. 64,538
11 Coffee, John C. 62,631
12 Reynolds, Glenn H. 61,868
13 Parisi, Francesco 58,217
14 Sidak, Gregory G. 55,643
15 Kraakman, Reinier H. 53,194
16 Kahan, Dan M. 52,607
17 Partnoy, Frank 52,038
18 Gilson, Ronald J. 49,677
19 Vermeule, Adrian 49,616
20 Schwarcz, Steven L. 48,356
21 Solum, Lawrence B. 45,760
22 Gulati, G. M. 45,635
23 Evans, David S. 45,188
24 Wu, Tim 44,779
25 Hovenkamp, Herbert J. 44,257
26 Ferrell, Allen 41,830
27 Cohen, Alma 41,311
28 Fried, Jesse M. 39,737
29 Shavell, Steven 38,669
30 Yu, Peter K. 38,635
31 Bratton, William W. 38,457
32 Hansmann, Henry 37,322
33 Braman, Donald 36,976
34 Thomas, Randall S. 36,058
35 Stout, Lynn A. 36,001
36 Romano, Roberta 35,760
37 Roe, Mark J. 34,742
38 Fairman, Christopher M. 34,427
39 Barnett, Randy E. 34,383
40 Hopt, Klaus J. 33,581
41 Cunningham, Lawrence A. 32,320
42 Donohue, John J. 32,273
43 Choi, Stephen J. 30,812
44 Avi-Yonah, Reuven S. 30,012
45 Robinson, Paul H. 28,888
46 Burk, Dan L. 28,871
47 Skeel, David A. 28,565
48 Blair, Margaret M. 28,126
49  Bix, Brian 27,373
50  Tamanaha, Brian Z. 27,270
0

SSRN Corporate Law Professor Top 25 by Downloads

SSRNInspired by Paul Caron’s listing of the latest SSRN ranking (as of March 1) of tax law professors by number of paper downloads from the SSRN database, following are the top 25 active US-based corporate law professors in the all-time downloads category.  For some qualifications and a listing of the top 50 prawfs overall, see here.
Corporate Law 
1 Bebchuk, Lucian A. (Harvard) 190.698
2 Black, Bernard S. (Northwestern) 135,130
3 Bainbridge, Stephen M. (UCLA) 92,448
4 Coffee, John C. (Columbia) 62,631
5 Kraakman, Reinier H. (Harvard) 53,194
6 Partnoy, Frank (San Diego) 52,038
7 Gilson, Ronald J. (Colum/Stan) 49,677
8 Schwarcz, Steven L. (Duke) 48,356
9 Gulati, G. M. (Duke) 45,635
10 Ferrell, Allen (Harvard) 41,830
11 Cohen, Alma (Harvard) 41,311
12 Fried, Jesse M. (Harvard) 39,737
13 Bratton, William W. (Penn) 38,457
14 Hansmann, Henry (Yale) 37,322
15 Thomas, Randall S. (Vandy) 36,058
16 Stout, Lynn A. (Cornell) 36,001
17 Romano, Roberta (Yale) 35,760
18 Roe, Mark J. (Harvard) 34,742
19 Cunningham, Lawrence A. (GW) 32,320
20 Choi, Stephen J. (NYU) 30,812
21 Skeel, David A. (Penn) 28,565
22 Blair, Margaret M. (Vandy) 28,126
23 Gordon, Jeffrey N. (Columbia) 26,241
24 Clarke, Donald C. (GW) 22,961
25 Kahan, Marcel (NYU) 21,824

 

A dozen schools are represented on this list, with the following densities:

Harvard leads by a wide margin with 6;

Columbia edges out with 2.5 the next 6 schools, all of which are represented 2x:  Duke, GW, NYU, Penn, Vandy and Yale; and

those represented 1x are Cornell, Northwestern, San Diego and UCLA.

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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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