Archive for the ‘Law School (Scholarship)’ Category

Welcome to the Blogosphere: 20th & H Blog by Dean Fred Lawrence

posted by Daniel Solove

My dean, Fred Lawrence of George Washington University Law School, has started a new blog called 20th & H.  He writes:

20th and H was conceived as a place for me, as dean, to share with the GW Law community occasional thoughts about the Law School, legal education, and the legal profession, and to talk with you about some of the perspectives and insights I’ve gained through my work on campus and on the road.

Great idea!  Welcome to the blogosphere.

Fred has a recent post about laptops in the classroom:

For many of our students, the laptop has become almost an extension of their selves.  It’s how they take notes, research, write, and communicate; like it or not, those of us who were students in a pre-computer age simply can’t roll back the clock to a time when faculty members enjoyed the sight of rows of rapt faces and suffered at worse some inattentive doodling, note passing and an occasional nodding head.

Read more over at 20th & H.

  March 15, 2010 at 5:59 am   Posted in: Blogging, Law School, Law School (Hiring & Laterals), Law School (Rankings), Law School (Scholarship), Law School (Teaching)   Print This Post   No Comments

An Overdue Thank You and a Resource for IP Folks

posted by Deven Desai

Mike Madison is a great friend. Don’t take my word for it. Just take a look at one example of his generosity. Mike has always been a wonderful resource for anyone looking to improve their scholarship. I know I have benefited from his time and advice. We have talked a few times about a concern that Mike had raised: “younger IP scholars either have lost the knack of knowing something about the history of the discipline – or never acquired it in the first place.” A month ago Mike took action to help remedy the concern. I, for one, am most grateful to have the resource (and Mike might be happy that I contact him less often about such matters). I hope it helps anyone in the field. In addition, I hope others who perceive similar possible gaps in knowledge take the time to construct and share analogous lists in their fields. Until then, here are links to Mike’s gifts.

Lost Classics of Intellectual Property Law – Background and Introduction
Lost Classics of Intellectual Property Law – Copyright
Lost Classics of Intellectual Property Law – Trademark
Lost Classics of Intellectual Property Law – Patent

  February 3, 2010 at 3:49 pm   Posted in: History of Law, Intellectual Property, Law School (Scholarship), Legal Theory   Print This Post   No Comments

New Journal: Accounting, Economics, and Law

posted by Lawrence Cunningham

Scholars like me interested in law as it interacts with accounting and economics will be excited to learn of a new joural offering to link these three fields and many others. Called the Journal of Accounting, Economics and Law, this is a welcome new forum to celebrate study of the relation, too often under-appreciated, among these subjects. The journal’s founding editors are three scholars I’ve come to know and admire, Michigan law prof Reuven Avi-Yonah, Yale accounting prof Shyam Sunder and University of Paris business economics prof Yuri Biondi.  

I’m flattered to have  been asked to serve on the Advisory Board, which boasts many luminous scholars from around the world, including, from the US, Sudipta Basu (Temple, accounting); Jonathan Glover (Carnegie Mellon, accounting); David Kennedy (Harvard, law); my colleague Larry Mitchell (GW, law); Roberta Romano (Yale, law); Martin Shubik (Yale, economics); and Lynn Stout (UCLA, law).

Following is a description of the journal.   Manuscript submissions are encouraged!

“The Journal of Accounting, Economics, and Law aims to encourage a comprehensive understanding of the relationship between individuals, organizations, and institutions in economy and society.

Financial, economic and legal techniques and languages play an influential and neglected role in this relationship. Concerns of finance, control, accountability, responsibility, valuation, regulation, and governance will be raised in their connection with accounting, economics, law, sociology, anthropology, history, finance, political science, and the management and policy sciences.

The journal encourages works that seek to recombine disciplinary domains in response to practically relevant issues, while encouraging theoretical advances and insights, and comparative historical perspectives.”

  January 18, 2010 at 5:50 pm   Posted in: Accounting, Economic Analysis of Law, Education, Law School (Scholarship)   Print This Post   One Comment

Junior Faculty Workshops: GW in Business Law

posted by Lawrence Cunningham

For ages, academic institutions have promoted scholarly inquiry by younger faculty members, especially through the junior faculty workshop. Scores of US law schools host these regularly during terms; both the AALS and Law & Society run programs at their annual meetings; the Yale/Stanford junior faculty forum boasts wonderful annual draws; and now regional junior faculty workshops are rising, like that in the southwest next term, hosted by Arizona State.

Though these ventures focus on career stage, not field, more recent, school-sponsored forums add substantive focus.  Junior faculty workshops appeared recently in environmental law (arranged jointly by Harvard, Berkeley and UCLA); family law (at Washington & Lee); national security law (at Texas); and federal courts (hosted alternately by American University and Michigan State).

You can soon add to that list business/financial law (including corporate, securities and banking) at George Washington.  Next year, GW will inaugurate a series of Junior Faculty Workshops and Junior Faculty Prizes, seeking submission of papers in Fall 2010, for a celebratory academic event to be held in Spring 2011. This is one part of GW’s forthcoming Center for Law, Economics and Finance (C-LEAF), which also includes GWNY (posted about here).

While further details about these C-LEAF programs and descriptions of others must await a formal grand announcement, these Junior Scholar endeavors are ripe and time-sensitive enough to warrant advance notice.   

Read the rest of this post »

  December 18, 2009 at 11:12 am   Posted in: Corporate Finance, Corporate Law, Law School, Law School (Scholarship), Securities, Securities Regulation   Print This Post   One Comment

PhD/JDs: Fads or Future?

posted by Dave Hoffman

My post on the value of having a PhD in the academic hiring market of 2015 has gotten a surprising amount of attention. I thought I’d respond to some of that feedback here.

By email and by blog, I’ve gotten pushback from those who continue to contest that we’re in an empirical “bubble.”  I take that to mean a fad – a passing interest –rather than an empirical claim that we are valuing work or candidates at more than their intrinsic worth. (How could we get any handle on either side of that equation!) My point about the economics of supply-side data is that it’s a trend that is only going to get stronger in the future. Larry Ribstein certainly is correct to observe that this creates a “looking-under-the-lampost” problem. But of course, legal academics have been in a century-long crouch under a lamppost of their very own. As Llewellyn said:

“I am a prey, as is every may who tries to work with law, to the apperceptive mass . . . [T]he appellate courts make access to their work convenient. They issue reports, printed, bound, to be had all gathered for me in libraries. The convenient source of information lures.” (Bramble Bush)

Looking at newly cheap data about legal institutions encourages people to run fast regressions without thinking. But reading opinions, which are free, has encouraged thousands of legal articles about a dataset which is biased & shaped by selection. (Irrational behavior in response to a “radical price“? Nah.)  Truly sophisticated empirical work doesn’t discount the role of opinions in shaping legal norms, but it does conclude that opinions are skewed and rhetorically hot versions of what judges do, and thus unrepresentative of how practically-grounded lawyers make judgments about how to litigate their cases. Making that insight concrete is but one of the many projects undertaken by the New Legal Realists. Others – law and psychology, law and criminology, cultural cognition, etc. – together convince me that the future of the empirical revolution is pretty bright. And having a PhD/JD is an increasingly important entry credential in the field.

Read the rest of this post »

  December 9, 2009 at 9:32 am   Posted in: Economic Analysis of Law, Law School (Hiring & Laterals), Law School (Scholarship), Law School (Teaching), Law and Psychology, Legal Theory, Philosophy of Social Science   Print This Post   4 Comments

Must Law Practice and Scholarship be Exciting?

posted by Lawrence Cunningham

Causes of the worldwide credit crisis include, perhaps dominantly, the proliferation of innovative financial contracts, purportedly devices that would reduce financial risk but that instead backfired to concentrate and intensify it on a galactic scale. What role did corporate law culture play in this part of the cause? Was it too exciting? Should it be duller?

Beginning in the late 1980s, when I was in practice, I and other lawyers participated in incubating the market for financial derivatives and securitization transactions. In the beginning, these deals were nowhere near as exciting as the same period’s newly-exciting mergers and acquisitions and finance practices. We would prepare one-off interest rate swap form contracts on a small scale. We would package credit card accounts receivable into pools for sale to investors. But this practice area became increasingly exciting through the 1990s and 2000s as derivatives and securitization deals proliferated and came to form whole departments in law firms, rivaling mergers and acquisitions groups in glamour and revenue.

In the early 1990s, when I entered corporate law teaching, there was much exciting academic work being done, the culmination of what Yale corporate law scholar Roberta Romano heralded as a “revolution” in corporate law scholarship which, in the 1960s and 1970s, at least, had been dull. In that earlier period, the focus, in practice and the academy, was merely on positive, doctrinal law, mostly statutes, and on the old-fashioned duties managers owed to shareholders, often meaning practicing lawyers telling creative clients “no” when innovative ideas would violate longstanding duties. Read the rest of this post »

  November 19, 2009 at 5:57 am   Posted in: Corporate Law, Culture, Law School (Scholarship), Law School (Teaching)   Print This Post   6 Comments

GW Fin Reg Conference Nov. 6

posted by Lawrence Cunningham

As financial regulation reform reaches its apogee, we at GWU are delighted to host a roundtable on Friday Nov. 6 at the Law School (2000 H Street, NW, Washington, DC).   An outline of the Program, co-sponsored by the Institute for Law and Economic Policy, follows, along with how to register.  Note that participation of some panelists is subject to the legislative calendar. Read the rest of this post »

  October 26, 2009 at 11:22 am   Posted in: Current Events, Law School (Scholarship), Securities Regulation   Print This Post   No Comments

What Factors Correlate With Veil Piercing Success?

posted by Dave Hoffman

If you’ve made it through the content of complaints, some data about who gets sued, and descriptive statistics about wins and losses, you basically are pot committed to this veil piercing project. In this post, I’m going to exploit that commitment by describing the results of our statistical analysis of two different kinds of success that plaintiffs may achieve in veil piercing cases: (1) on motions; and (2) at the case level. If you don’t care to follow me beyond the jump, here’s the bottom line (from our abstract):

“Voluntary creditor causes of action promote veil piercing; LLCs are in very limited circumstances better insulated from veil piercing claims than corporations; undercapitalization is strongly associated with success while conclusory grounds like “façade” and “sham” are not; and defendants’ legal sophistication is predictive of plaintiff failure. Extra-legal factors play a more striking and counterintuitive role. Plaintiffs suing companies with few employees are much more likely to win veil piercing motions, and obtain relief in cases, than plaintiffs suing companies employing many workers. This results holds even when controlling for legally-relevant variables. Contrary to both theory and previous empirical work, we also find that judicial liberalism is inversely related to the likelihood of plaintiff success.”

Read the rest of this post »

  October 9, 2009 at 6:51 am   Posted in: Contract Law & Beyond, Corporate Law, Economic Analysis of Law, Empirical Analysis of Law, Law School (Scholarship)   Print This Post   One Comment

What Does Veil Piercing Success Mean Anyway?

posted by Dave Hoffman

If you look at opinions, winning in a veil piercing case is pretty easy to define: did the court agree to pierce the veil, reaching through an entity to its shareholders. If you were inclined, you could model success at those terminal moments in cases, asking which factors (described in the opinions) correlated with courts agreeing to pierce.

There’s value in this approach, not least because opinions shape reality. But there’s a problem too.  Not only are opinions unrepresentative, but they come late in cases.  The result is an extreme form of selection.  It’s not clear (to me, anyway) what the null hypothesis regarding the effect of independent variables  ought to be for late-stage dispositions.

Dockets offer the promise of a different approach: asking which factors correlate with success or failure early in cases.  Further, assuming that adjudicated motions teach the parties about the strength of their cases, and that they settle strategically, we can even start to learn from the timing and incidence of settlement.

In this post, I’m going to relay some descriptive statistics about the veil piercing successes that plaintiffs achieved in our data. (I’m continuing to pull the data and some text from our paper.)  To those who are getting annoyed by all of these posts, I’m sorry!  I’ve been living with this project for a long time — I’m excited to finally share it publicly.

Read the rest of this post »

  October 8, 2009 at 7:24 am   Posted in: Contract Law & Beyond, Corporate Law, Economic Analysis of Law, Empirical Analysis of Law, Law Practice, Law School (Scholarship)   Print This Post   2 Comments

This Just In: Women and Men Equally Good at Judging

posted by Lawrence Cunningham

On the last page (31) of a new empirical article by law professors concerning the role of gender among judges, the following conclusion appears: “we find that women do just as well as the men [sic] in terms of basic judging measures.”  I am not surprised and wonder: (1) what portion of the population, among laypersons or lawyers and certainly legal academics, would really be surprised by this; (2) whether we need an empirical study before drawing such a conclusion; and (3) whether any empirical study, this one included, can realistically provide evidence for (or against) such a conclusion.

The piece, reportedly stimulated by something Justice Sotomayor said about the role of gender in judging, spends the previous 30 pages: (1) reviewing literature about possible differences in attitudes and experience judges may have, according to gender; (2) summarizing data on state high court judges, 1998-2000 (and adding a smaller bit of data on federal judges), concerning numbers of opinions they write, how often they are cited by other courts, and how often they filed panel opinions disagreeing with panel judges of their own political party; (3) summarizing data about such matters as where judges went to law school and marital status; (4) reporting elaborate regression analyses of these data; and (5) testing various hypotheses, using these factors and resulting relations among the data, to tell us whether men or women are better judges (measured by things like opinions produced and citation frequency).

To be fair, the paper’s four authors acknowledge, in the end, limitations of the empirical methodology they use, emphasizing weaknesses in the inputs, and the meaning of resulting outputs.  In addition, the paper manifests requisite hallmarks of good academic work: a literature review, statistically testable hypotheses, reports of the statistical analysis plus qualifications and modesty about the entire undertaking.   

Furthermore, of course, in principle, the quest is valiant, for confirming hunch and intuition with statistical data is a vital exercise and tradition in academic research. And this paper may provide more support for its assertions than I could offer for claims I may make, like, in contract law: (1) Ellen Ash Peters was a more thorough and convincing judge than Learned Hand; (2) Judith Kaye was at least as persuasive and clear as Oliver Wendell Holmes; and (3) Benjamin Cardozo was superior to all of them on all counts. 

Even so, this paper puzzled and troubled me like few others ever have.    It led me to wonder whether all the work that went into preparing it, and my hour reading it, was worthwhile, and whether we have learned anything from it.

NB: The paper, oddly entitled Judging Women, by Stephen Choi (NYU Law), Mitu Gulati (Duke Law), Mirya Holman (Duke Law/UNC Econ/Pol), Eric Posner (Chicago Law), can be found here.

  October 5, 2009 at 8:42 pm   Posted in: Law School (Scholarship)   Print This Post   3 Comments

Fin Reg Events

posted by Lawrence Cunningham

Policy formulation benefits from academic knowledge, often showcased at timely conferences, and there have been plenty of contributions this year and last concerning financial regulation reform amid the economic crisis. Late last fall, I posted a list of conferences pending then, including GW Law’s Panic of 2008 Conference, which will result in a book to be edited by my GW Law colleagues, Larry Mitchell and Art Wilmarth.

This season, there are several noteworthy forums, including at Pitt and Seton Hall Law Schools and, just two weeks ago, an Institute for Law and Economic Policy conference in which I participated, featuring Joseph Stiglitz (Columbia), Kenneth Feinberg (US special compensation master), Lucien Bebchuk (Harvard), Charles Elson (Delaware), Jill Fisch (Penn), Harvey Goldschmid (Columba), Frank Partnoy (San Diego), and a dozen others.

At GW Law, we will host a follow-up to our Panic of 2008 conference on Friday November 6, co-sponsored by ILEP, featuring academic contributions from Jim Cox (Duke), Don Langevoort (Georgetown) and Art Wilmarth (GW), plus participants from Treasury and the SEC and Senate and House Committees having jurisdiction and from the media (including Ed Andrews, New York Times). Discussion will concentrate on the emerging legislative agenda, along with enforcement (federal, state and private).

A notable interactive on-line interchange will by hosted by Steven Davidoff (University of Connecticut), using his platform as editor of the New York Times on-line deal forum. The description suggests a provocative discussion showing skepticism about standard interpretations of the crisis and pending prescriptions for reform. Notable participants include David Zaring (Penn/Wharton, co-author of an article with me on the subject, forthcoming in GW Law Review), Joseph Grundfest (Stanford), David Skeel (Penn) and Lynn Stout (UCLA).

As the Administration and Congress write legislation, ideas and input from events like these, seeming to be on the sidelines, can be important and useful. Tune in.

  October 5, 2009 at 7:05 am   Posted in: Law School (Scholarship), Uncategorized   Print This Post   No Comments

A Dispositive Defense of Student Law Reviews

posted by Dave Hoffman

There is no way that this would happen in a student journal.  Delays?  Sure.  Bad edits?  Absolutely.  But this nonsense and collusion?  I think not.  Only non-lawyers would put up with this.

How to Publish a Scientific Comment in 1 2 3 Easy Steps

(H/T: Leiter.)

  September 5, 2009 at 7:01 pm   Posted in: Articles and Books, Law School (Law Reviews), Law School (Scholarship)   Print This Post   12 Comments

Sabbatical Blogging

posted by Dave Hoffman

This semester, I get to take my first sabbatical. As Larry observed, law firm sabbaticals are a thing of the past, and so lawyers might see this opportunity as yet more evidence that academics are insulated, head-in-the-clouds, wastrels. Perhaps, though it might help to see the sabbatical, like tenure, as simply a form of alternative compensation for professors, rather than a serious spur to productivity. And, like tenure, the sabbatical is a relic: while many years ago, a regular sabbatical policy was commonplace, now it’s my sense that it’s somewhat more rare.

I’ve got to say, I find the prospect of a fall with no duties other than those I set for myself more than a little terrifying. Putting aside the absence of structure, and colleagues to talk to, there’s the problem of figuring out which kinds of projects are the right size. If I pick something too big, I’m not going to finish (and thus feel pretty bad about having nothing to show for the immense privilege that the Law School and its stakeholders have extended me). If I pick something too small, well, you get the idea. So I’m looking for the sabbatical goldilocks. As I’ve learned, painfully, promising goldilocks projects in the empirical world are often (forgive me) wolves in sheep’s clothing. You start collecting data, and before you know it it’s two years later and you realize you never fully specified your research question. Yikes!

Some folks use their sabbaticals to do something entirely different, e.g., hiking the Appalachian trail (no, seriously); writing fiction; constructing toasters from scratch. I fear I’m more conformist than that. Apart from some personal business, I’ll probably be spending the fall writing more articles, coding more data, thinking about how to be a better corporations teacher, and blogging a little bit more often than I did over the summer.

I do have two larger intellectual projects that I’m going go try to fold in. The first is to read (again) the works of the Situationalist project. I’ve read several of the project’s papers – in one case, multiple times – but I still don’t think I really understand many of the claims, and, more importantly, the project’s motivation. Since there are tons of brilliant folks affiliated with the group, this obviously is a situation that I’ve got to remedy.  Second, I want to read at least a large sample of the articles that Herb Kritzer identifies here as fruits of pre-1940 empirical legal studies work. One of the few abiding disadvantages to not having a PhD is is a missing sense of the intellectual history of your field. That problem is particularly acute in ELS, where (to read the dates on citations in most recent papers) nothing useful was written before 1995.

I suppose that’s it. I’m not training to climb Everest. I’m not going to reorient my scholarly path. I’m not taking on a court case (though the amici in Jones appear to be having tons of fun). I can’t imagine that I’ll pick up a new hobby. Nevertheless, I’m pretty sure I’ll be spending more hours working than I do when I’ve got classes to teach!

  September 2, 2009 at 6:16 pm   Posted in: Law School, Law School (Scholarship), Law School (Teaching), Teaching   Print This Post   7 Comments

Concurring Opinions Book Reviews

posted by Daniel Solove

Sandy Levinson has a thoughtful new essay lamenting the dwindling number of book reviews of books about the law — The Vanishing Book Review in Student Edited Law Reviews and Potential Responses, 87 Tex. L. Rev. 1205 (2009).  He discusses how the Michigan Law Review used to run 30 to 40 book reviews in its book review issue but now is running only about 10 to 15. He notes that among the top 20 law reviews, in 1987-88, they published about 125 reviews; in 2007-08, they published only 42 reviews.

Brian Leiter notes, in the title of his post about Levinson’s article, that “academic law needs more fora for serious book reviews.”

Beyond law reviews, the number of book reviews in newspapers is rapidly diminishing.

This is why we’re starting a new project at Concurring Opinions — we’ll serve as a forum for book reviews.

We will accept submissions from our readers — law professors, lawyers, law students, and academics in other fields are welcome to submit reviews.

The reviews we envision would be approximately the length of a New York Times book review — somewhere between 500 to 2000 words.

We will try to accept as many reviews as we can, but we will exercise editorial discretion if we think a review isn’t appropriate for our blog.  We’re aiming for serious reviews.

If you’re interested in writing a book review for us, we recommend that you first email us with a brief description of what book you’d like to review and your background, as we don’t want you to go through the work of writing a review only for us to think it doesn’t fit with our blog.  Emailing us in advance won’t guarantee acceptance, but we would hope to give you a good indication of whether we’d be interested in your review.

We believe that there’s a need for serious yet short book reviews, ones that aren’t as long as those published in law reviews.  That’s why we’re starting this project.  We expect it to be ongoing, so if you’ve read a law-related book recently and want a forum to publish your views about it, please think about doing a review for us.

If you publish a book review here, you keep copyright in your work, so you can use it, publish it, and disseminate it later in whatever way you desire.

So please email us if you’re interested.

  August 18, 2009 at 7:21 pm   Posted in: Administrative Announcements, Articles and Books, Book Reviews, Law School (Law Reviews), Law School (Scholarship)   Print This Post   One Comment

Sample Law Review Submission Cover Letters

posted by Lawrence Cunningham

Following this post are four sample law review submission cover letters I have used in recent seasons.   I provide them after detecting an absence of any samples existing on the Internet and reviewing various posts and comment threads addressing the subject that leave readers conflicted about what a cover letter might accomplish. 

There is considerable Web commentary on many aspects of the law journal submission process, which Dan Solove helpfully collects here.  Few address cover letters directly, and those are humorous, sarcastic, or questions without comments.There is a  sample cover letter on page 288 of Eugene Volokh, Academic Legal Writing, but I could not find a single one on the Web.

When discussed, there are conflicting impressions and advice. Co-op guest blogger Elizabeth Nowicki urges writing “a crisp one-page cover letter” though Trevor Morrison and my GW colleague Orin Kerr, disagreed, opining they are useless.   Scott Dodson opined that, if a famous professor read and admired a piece, to say so in the cover letter, but an articles editor said that will not be believed unless the famous professor communicates that directly.   (Some other conflicting views appear in this thread addressing more general issues.)

What should a cover letter say? All the wrangling aside, some consensus appears as follows:

Basics. Obviously, submissions must indicate author’s name and contact information (mailing address, phone, email) and article title. Unless submitted in an electronic format that transmits this information, the cover letter is the place.

Word Count. Many journals request stating the piece’s word count, including footnotes. In addition, many journals since 2005 have express word count limits or preferences, and request cover letter explanations for approaching or exceeding the guidance.

Brevity. Keep it short, usually a single page of three paragraphs, never more than two, and then only if justified by background research and context otherwise not evident from the piece.

Main Point. State the piece’s thesis, explain its uniqueness and importance.

Prior Work. Reference your prior works, when relevant, not necessarily journal prestige, although not holding this back when relevant. (Those without prior publications may need to explain a bit more why they are pursuing scholarship, perhaps even referencing relevant credentials.)

You. Mention brief biographical data only if relevant to the piece, such as your role in the relevant discourse (or the foregoing caveat for new scholars).

Style. The cover letter should be thoughtful and sober.  You can try to entertain, but beware that attempted humor can backfire. Above all, avoid gimmicks, including strong sales pitches, exaggerated statements of importance or things unrelated to the piece. Read the rest of this post »

  August 4, 2009 at 9:07 am   Posted in: Law School (Law Reviews), Law School (Scholarship)   Print This Post   8 Comments

A Half-Baked Idea on the Evolution of Legal Scholarship

posted by Nate Oman

Having fallen into a black hole of writing for the last couple of months, I am now trying to emerge to do a bit of blogging. Over the summer I’ve had the good fortune to be part of an interdisciplinary reading group at William & Mary on the financial crisis. Yesterday one of the economists in the group, Till Schreiber, gave a fascinating presentation on the current state of macroeconomics and fiscal policy. One of the striking things to me was to see how little research has been done for the last generation or so on fiscal policy. An enormous intellectual effort has gone into thinking about monetary policy. I was frankly a bit shocked, however, not just at the amount of disagreement there was about such basic questions as the size of the fiscal multiplier, but even more at how thin the research on the topic was. One theory we batted around as to why this was so is a simple matter of the incentives that economists face. Those writing papers on monetary policy had a ready and sophisticated audience among central bankers. Indeed, those doing good work in monetary policy could hope to actually do monetary policy someday. On the other hand, the chances that the average congressman making fiscal policy could read, understand, or even be interested in sophisticated work on fiscal policy was minimal to zilch. Likewise for the chances that an academic expert on fiscal policy would be come a congressman or Senator.

I wonder if there is a similar bias at work in the legal academy. One story that you might tell is that relative to legislators judges are going to be more intellectually sophisticated when it comes to the law. Accordingly, one would expect to see more pieces explicitly addressed to judges than to legislatures. Hence, doctrinal scholarship would dominate over more straight forward law reform proposals. I think that there may have been a point in time at which this was true, but it seems to me that the trend in legal scholarship has been to move away from work that is explicitly addressed to either judges or legislatures. One way of understanding this might be simply in terms of the rising sophistication of interdisciplinary legal scholarship. Sticking with the analogy to economists, however, I wonder if the turn away from work more explicitly aimed at judges might be a result of the ideological divergence of the judiciary and the legal academy since the early 1980s. The academy, of course, has always steered left and given that since 1968 only three of the ten presidential terms have been served by Democrats the federal judiciary at least has been moving to the right. Hence, one might tell a story of the rise of “law and ….” scholarship as the academy’s response to their increasing awareness of their ideological irrelevance to what was going on in the courts.

Just a thought.

  July 31, 2009 at 8:59 am   Posted in: Law School (Scholarship), Politics   Print This Post   No Comments

Does Law and Economics Destroy Law Students’ Sense of Justice?

posted by Dave Hoffman

A draft paper by Raymond Fisman (Columbia Business),  Shachar Kariv (Berkeley Economics) and Daniel Markovits (Yale Law) has gotten surprisingly little attention given its potentially radical implications.  Maybe it’s the title: Exposure to Ideology and Distributional Preferences. I would have gone with something different.  Perhaps “Law and Economics Eats Law Students’ Hearts.”

The authors looked at first-year students at Yale Law School taking contracts and torts.  They labeled the students’ professors by their purported tendency to emphasize economic and “humanist” rhetoric in class.*  They then used the natural experiment of law school sorting to determine the effect that exposure to economic ideology had on law students’ distributional preferences in the dictator game. That is, did students taught by economically-minded professors behave differently than those taught by professors disposed toward humanism or critical-legal studies?

The bottom line: students taught by economically-minded professors were both more selfish and more likely to see fairness as a form of kaldor-hicks efficiency.  By contrast, students taught by humanists were more generous and also  likely to see fairness as a matter of equity.

These are important results for those interested in legal education.

• First, and most obviously, it suggests that our preferences for altruism and the content of fairness are highly manipulable — one semester of teaching by a professor – at Yale, no less – can affect them.  I admit to being a bit surprised by the size of the effect, given the mixed results from earlier work on the relationship between economics and altruism.  It’s also surprising that Yalies are so impressionable!  I wonder whether the effect persists past a semester, and whether better coding of actual classroom discussion would have changed the results.
• Second, it suggests yet more reasons for researchers to think hard about the effect that law school teaching has on the content of legal doctrine.  As I’ve argued, it’s quite likely that some law school professors who never published a lick have had more effect on substantive legal doctrine than those who’ve written reams, simply by influencing how their students (who went on to be lawyers and judges) thought about the content of rules and the byways of arguments.  We should do more work like this!
• Third, and most personally, this makes me nervous.  I’m a highly socratic teacher who places lots (and lots) of emphasis in the first-year on efficiency-arguments and on the need to look beyond questions about distributional equality in the present case.  I thought that by doing so I was helping students to think critically about the dynamic nature of contract law – the relationship between contract rules and market price; the usefulness of an intelligent system of defaults; the importance of getting beyond gut intuitions.  But maybe I’m also indoctrinating the students to grab more of the pie for themselves.  Nuts.

*The method they used to code economic preferences was, to be frank, a little mystifying.  They gave points for PhD’s in economics, but had to make exceptions for Alan Schwartz, PhDless but L&E to the bone, Guido, for obvious reasons, and both Robert Gordon and Carol Rose, who are similarly off-set.  Why not simply ask the professors themselves how much they emphasized economic rhetoric in class?  Or the students?

  May 18, 2009 at 6:17 pm   Posted in: Behavioral Law and Economics, Contract Law & Beyond, Economic Analysis of Law, Empirical Analysis of Law, Law School, Law School (Scholarship), Law School (Teaching), Law Student Discussions   Print This Post   4 Comments

On Showing Up

posted by Michael Madison

My post on the challenges facing the law school Research Dean contained an implicit and unexamined assumption regarding a gap between the interest of the individual faculty member in producing and distributing research and scholarship, on the one hand, and the interest of that faculty member’s law school in the research and scholarly activities of its faculty, on the other hand.

I’m convinced that these interests are distinct, though they overlap. Here’s a possible example of the gap in action: At your law school, do faculty members regularly attend and participate in workshops presented by speakers who specialize in fields other than their own? Do they make, in other words, what might be characterized as “karmic” contributions to the intellectual life of the school? Are they good scholarly citizens?

Not everyone is always available to show up, and having too many people show up could undermine the value of the workshop. Yet there are folks who don’t show up because they don’t care, or can’t be bothered, or don’t see the value in taking time to kick around the ideas of someone who can’t help them with their own work. I believe that the interest of the individual (absent) faculty member may be served by that judgment, at least in a sense, but the interest of the school is not. A lively workshop culture means an intellectually engaged faculty, which can have tangible benefits for those local faculty; which can generate reputational benefits among other law schools; and which can have payoffs in the classroom for students.

In short, I’m aware of a kernel of Chandler’s Visible Hand at work in my Research Dean-ing. Other things being equal, I’d like to get more colleagues to attend more workshops.

Am I overstating the case? Have my metaphors run roughshod over important distinctions?  I admit that I like going to workshops, even workshops in fields far removed from mine, and not just because it’s part of my role as Research Dean. It’s entirely possible that my view of the matter is colored by my own idealized vision of an academic community. I also recognize that by putting “karmic” participation in the life of an institution onto the table, I complicate the sizable expectations that already confront would-be and new professors. Institutional interests have distributional consequences.

Thoughts?

  May 15, 2009 at 5:53 am   Posted in: Law School (Scholarship)   Print This Post   3 Comments

The Heart of a Center

posted by Jacqueline Lipton

So here’s a question for people thinking about the nature of law schools and the nature of scholarship (and with thanks to Mike Madison for picking up on my invitation to blog more about his research deanship).

I’ve talked to a lot of folks at a lot of schools with different philosophies on law school centers.  Even folks within the same school often have widely divergent views about what law school centers can and should be doing for the overall law school enterprise.  And of course, it must be acknolwedged that centers can serve a variety of different functions within a law school – and different individual centers can have different individual roles.

So my question is whether there is any way to get to the heart of the center question.  Are there one or more key ideals that all centers in law schools should be able to live up to, or to contribute to the school?  And, if so, is it something other than:  “It’s a marketing device to attract faculty/students.”  (Not that there’s anything wrong with that – I’m asking the question out of legitimate interest.)

We’ve been talking about this recently at my school and the question is of particular interest here because we have a number of different centers that were set up under vastly different conditions for vastly different purposes.  Some are research focused and obtain grant funding.  At least one has a private endowment.  Some take advantage of collections of faculty who specialize in particular subject areas.  Presumably none of them are cost-neutral for the school, although none of them drain big bucks out of the budget either.

There are always political questions within faculty about centers and the role of faculty who happen to operate as center directors (I plead guilty to the charge of being a center director).  “Why does s/he get [a lighter teaching load/a director's stipend/a dedicated administrative support person/_______]?”  Pick one or fill in the blank.

But politics aside, what do centers ideally contribute/potentially detract from a school? Read the rest of this post »

  May 12, 2009 at 2:17 pm  Tags: law centers  Posted in: Education, Law School, Law School (Scholarship), Law School (Teaching)   Print This Post   One Comment

The Law School Faculty as a Commons

posted by Michael Madison

What’s the connection between law professors and stand-up comics?

My last post pointed to a recent short piece on comics and the relationship between “anti-plagiarism” social norms that encourage comic creativity and the emergence of those norms in the context of commodified comedy.  Comics sold and consumers bought LPs by the boat-load. The success of record albums had a clear if unmeasurable impact on comics’ incentives to produce and innovate.

A generalizable point is this: Record album sales are an objective and observable characteristic of this particular environment. The data is mostly external to the comics themselves. What scholars describe as social norms among comics are, by contrast, mostly subjective. Norms are personal to each comic. We “observe” the existence of social norms them by inferring their existence from regular behavior and from anecdotal reports. That interplay between observable, objective, and “external” dimensions of an innovation environment and subjective, “internal” dimensions of that environment is central to understanding its mechanics.

In fact, that interplay is probably central to understanding the mechanics of any cultural context. It’s a central theme in the work that I’ve begun on “cultural commons” with Brett Frischmann and Kathy Strandburg. And it connects stand-up comedy and law faculties. More below the fold.
Read the rest of this post »

  May 11, 2009 at 8:33 am   Posted in: Behavioral Law and Economics, Law School, Law School (Scholarship)   Print This Post   One Comment

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