Category: Law School (Scholarship)

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“Be careful of those that meet you at the train…”

Every now and then, a fortune cookie dispenses with advice that is so spot-on you just have to keep the little sliver of paper tucked away.  Here is my fortune cookie keeper of all time:

“Be careful of those that meet you at the train for they know where they want you to go…”

It was 2007 and I had just accepted my first job teaching.   And the faculty at the time was in a bit of turmoil.  The dean had recently resigned and it was unknown who the future dean would be.  As a visitor setting foot on campus I was a bit blurry eyed and knee deep in figuring out how to teach, be productive and all the things you do to start yourself off right.  Many of the faculty who remain very good friends today reached out to me to be reassuring about the the stability of the faculty etc….  But one person reached out to me to tell me who on the faculty not to trust.  What was particularly interesting was they named names!  This person was actually one of the first people to reach out to me when I arrived.  So when about six months later I read this fortune cookie sliver, I took the waitress’s pen and wrote their name on the back.

In my experience, the people on a faculty who you should be most leery of are those that will tell you either the people or the kinds of people you should be careful of.  What sounds as if it comes from experience and insight most often comes from places of fear, mistrust, manipulation, and insecurity.  What it can tell you, if you did not already know it, is that there are fault lines on the faculty for which a subterranean battle for the institution’s soul may be playing out.  As a young faculty member, don’t choose sides without carefully understanding what is at stake.

When you are new to a faculty, there are some traits to be “eyes wide open” on.  One is the “do not trust” this person or group of people conversation.  Most of time, when people offer this advice it is rarely for your own well-being, but rather because of their own motives.  Likewise, advice about faculty members that reduces them down to one quality or another or suggests that they are one dimensional in their views of the world (i.e., this person only cares about scholarship, so you should talk to them about your work often; or this person is only a teaching faculty member and doesn’t really care about scholarship) is rarely accurate and should be taken with equal caution.  I recall, being told at one stop “this professor doesn’t do scholarship so you shouldn’t waste your time talking to them about yours.”  As I found out, that was some of the worst advice I had received.  That person did not write, true, but they were very interested in the scholarship I was working on.   Had I not been willing to talk about my passions to this faculty member, I would have missed the chance to build a great relationship with this person — who frankly was glad that people like me were interested in writing our voice into scholarship and wanted to be supportive of that for the good of the college.

Anyone that suggests that faculty members are one dimensional and will only care about X, whether X is how you teach or what you write, means that the person dispensing with the advice doesn’t know the faculty member they are dispensing advice about well at all.  If we know anything about people — whether they are faculty members, scholars or administrators — it is that they are rarely one dimensional and regularly surprise us with the way they see the world if we open our eyes to see from time to time.

The people that make the best mentors on faculties are those that do not spend as much time worrying about who else you are taking advice from or attempting to characterize others, as they do about what you are up to and how your year or writing is shaping up.  In other words, when you find someone that is spending far more time offering comments about others on the faculty (particularly when you are new) understand that you are not their primary interest.  Their interest is to shape you to be aligned in their view of what the law school should be doing.  And most often, after you have served your purpose, they will dispense with you as well.

A final anecdote on this line — at one of my many stops (I have had four)  a colleague had the “do not trust this colleague,” conversation with me.  Fortunately I had experience in these matters and took the advice with a heavy dose of caution (of the advise dispensing colleague) and with eyes wide open. As it turned out, the person I was told not to trust was also told not to trust me by the same colleague.  Had I listened, I would have been deprived of a person who has become one of my greatest friends in the academy, but also a really great mentor.

So now, my little Chinese fortune cookie sliver, has two names written on the back, and still sits in my office today..

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The Role Law and Literature Should Play in a Law School

Some may ask what role should liberal arts style courses play in law school where we are increasingly focused on bar exams and practice ready skills.   It may take me a while to unravel that answer with the gusto and the framing it deserves.  I think anyone that regularly teaches Law and Literature has been asked some variant of this question.  The course doesn’t have the safe luxury of “well its on the bar exam,” or even the more sardonic return of “well, but of course it underlies much of legal thought and practice.”  See, e.g., Law and Econ, Law and Social Theory, and Legal History.

Let me make a bold proclamation.  The law and literature course, perhaps more than any other, asks students to wrestle with their subjective views of the law.  It’s interesting, in a course that deals with Constitutional Law, for example, there is the finality of how the court approached the problem (whether we agree with the outcome or not).   In Law and Literature on the other hand, the course encompasses the views of the professor, the authors, and their fellow students as they encounter these views.  Sometimes worlds are created in which those concrete legal frameworks are disembodied (See, e.g., Margaret Atwood’s The Handmaid’s Tale).  Sometimes, the fictional worlds embrace the world as we know it, and offer stunning critique to its foundation (See, e.g., Harriet Beecher Stowe, Uncle Tom’s Cabin). That’s not to say that other courses, (take a UCC course), is not rife with highly charged emotional queries (notwithstanding my critique, my explanation for whether the disposition of collateral equates to proceeds is a highly charged event!).  It is saying that in a time where the ABA is prompting law schools to create standards that push the law school experience towards so-called objective standards of evaluation (see revision of section 302 in the ABA standards), the role of encountering, critiquing, explaining, and understanding different subjective understandings of the law is critical.   We should not be afraid to encounter nor express our subjective views in the context of critical dialogue.

My view is that Law and Literature is a course that offers students not only the opportunity to understand themselves better but to learn to dialogue about the subjective views of law.  A few years ago, Yale Law School offered a course titled “The Book of Job and Suffering.” Unfortunately, at many law schools such a class would never be taught for fear that the subject strayed too far from what law schools are suppose to do — at least not under that title.  However such a course is precisely the kind of law and literature course we should be teaching. Isolating the critical component that suffering may play in the narrative for law students, I imagine, was a powerful experience for those students and the professor.  Powerful because they all have suffered something, I’m sure, though undoubtedly it was uneven.  Students learn to dialogue about themselves and the text in a group where each other’s respective experiences help frame and isolate the way the text moved within the group.   At one and the same time, students in a law and literature class learn about themselves, as members of a group, a class and as an individual.   This is the idea of Law and Literature that James Boyd White framed so well — the engagement of the reader with the text forcing the reader to accept or not accept the writer’s framed world. [Perhaps Boyd’s best framing of this encounter is his book This Book of Starres: Learning to Read George Herbert, in which Boyd wrestles with the text as reader primarily].

This role of teaching students about themselves is critical if not necessary to shaping who they are as counselors and advocates for their clients.  Of course they are things we should care about as shaping lawyers. But should we have to isolate them into an ABA objective or standard.   In a way, it cheapens the process to do so.

I fear that courses like Law and Literature, in which students engage in thoughtful discourse, may find themselves replaced with others that fail to live up to the promise of helping students understand themselves in a legal environment and instead only focus on the particulars of interacting in the legal environment.   There is nothing wrong with a movement in legal education that attempts to focus institutional resources to critically examine whether the law school is best preparing students for the modern legal environment.  But, that doesn’t mean that our students [or our faculty] are better off without having the dialogues and communities that law and literature help promote and shape in the law school environment.

Legal Scholarship & the University

Just a quick note to make explicit something implicit in my last post: I not only agree with Dave Hoffman’s point about the enduring value of many modes of law teaching, but also think that we could do with a lot less defensiveness about the value of legal scholarship. It is not only the case that legal theories “have fundamentally changed our thinking about the law,” as Robin West and Danielle Citron argue. There are areas of social science presently adrift either because they have not adequately incorporated key legal insights, or because attorneys and legal scholars have failed to fully engage with key controversies and ideas. And there are fields–like political economy and finance theory–now being revitalized thanks to the efforts of legal academics. Legal scholarship exists not only to help the bench and bar, but to enrich the social sciences and humanities generally.

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“If you don’t like what’s being said, change the conversation.”

deathanddeclineAt high holiday services in my conservative Jewish synagogue, I reflected on the omnipresence of narratives of decline in my professional and religious life. Apparently, the approved sermon topic at many conservative pulpits this year was how to rescue the shrinking conservative movement.  The Pew Report’s stark figures on that decline, illustrated to the right, suggested the theme of the sermon (at least in my congregation): reaching out to new revenue sources applicants potential converts congregants.  As the rabbi stated, unless we find more congregants (and soon!) by opening the doors & working to engage new audiences, we will wither on the vine.

This sermon was explicitly delivered as a recruiting pitch, and I found it familiar.  Doesn’t the claim — “we’ve learned our lesson, we’re now going to innovate” — sound exactly like a thousand Law Dean speeches?   Here’s a summary of one, by an especially skillful and media-savvy Dean: Read More

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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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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.

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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
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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

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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