Our 2012 Symposium Issue, The Privacy Paradox: Privacy and Its Conflicting Values, is now available online:

Essays

It seems to me that those making these critiques assume that the primary value of legal scholarship should be to (1) describe current legal doctrine to make legal research easier for practitioners; or (2) influence an immediate and direct change in the law.  In an earlier post, I argued that #2 above is an unreasonable standard.  Legal change is slow, and rarely will one article have a direct [...]]]> The longstanding attacks on legal scholarship all seem to assume a particular relationship between theory and practice, one that I believe is flawed.  Recently, I responded to one such critique.  There are others, with Justice Roberts and many other judges and practitioners claiming that legal scholarship isn’t worth their attention and isn’t useful to the practice of law.

It seems to me that those making these critiques assume that the primary value of legal scholarship should be to (1) describe current legal doctrine to make legal research easier for practitioners; or (2) influence an immediate and direct change in the law.  In an earlier post, I argued that #2 above is an unreasonable standard.  Legal change is slow, and rarely will one article have a direct influence.  Rarely does one thing have a direct influence — change typically occurs more through an indirect influence by numerous sources.  Only in the movies or in simplistic historical accounts will we see one article or book lead to dramatic changes.  Of course, it occasionally happens, but rarely.

In this post, I want to tackle claim #1.  The treatise writers and doctrinal legal scholarship of yesteryear has diminished, though it isn’t gone.  Last I checked, there were quite a lot of treatises written by quite a lot of law professors.  But there is today a lot more theoretical scholarship.  Is this scholarship valuable if it doesn’t help in legal research?

The answer is yes for many reasons:

1. As with all humanities, the value of any particular work is hard to quantify.  What’s the value of Kafka’s The Trial or works by Shakespeare?  What’s the value of reading history?  What’s the value of learning things that don’t have direct application to one’s career?  I believe there’s a lot of value.  Reading these works opens up new ways of thinking, sparks new ideas, and helps people understand the world differently.  This can indirectly affect one’s legal practice skills by enhancing creativity, improving one’s writing style, or making one see the facts of a case in a different light. It is interesting that many of the great jurists were also avid readers of literature.  Indeed, many of the great thinkers and writers throughout history had wide-ranging intellectual interests and reading habits.  Would people like Benjamin Franklin or Thomas Jefferson be as creative if they had more narrow and workmanlike intellectual exploration?  Probably not.  Would Justice Holmes have been as great without his love of the humanities?  I doubt it.

2. There is a value in critiquing legal decisions and laws, even if the critique winds up remaining in dissent.  Why do justices bother to write dissents?  After all, it often takes decades if not 40-50 years for the Supreme Court to change the law.  They write dissents in the hope that one day the Court will see things differently.  They write them to make a record.  There is a value in criticizing legal opinions and laws even if it doesn’t immediately result in a change.  Indeed, many of the critiques of legal decisions and laws that I read in legal scholarship are very powerful ones.  Courts and lawmakers should pay more attention, as the scholarship often reveals logical flaws in reasoning, clear errors in applying precedent, assumptions that are based on faulty facts, assumptions that are wrong based on empirical evidence, or assumptions that are contrary to widely-accepted conclusions in science or social science.   Courts and legislatures may hide their heads in the sand, but that shouldn’t be a justification for criticizing legal scholarship — it should be a basis for criticizing courts and lawmakers.

3. Pointing out errors is valuable even if those errors are uncorrected.  For example, it seems to me that if a court relied upon an assumption that is clearly wrong according to empirical evidence or other evidence, and a law review article points this out, but the court doesn’t change its opinion, then shame on the court!  I don’t think the appropriate reaction should be to denigrate the law review article, calling it “useless” because the court chose to maintain its error.

4. Much of the law is based in faulty logic and assumptions contravened by empirical evidence.    Consider the law of evidence, which has countless rules that run totally against modern understandings of psychology and empirical evidence.  Consider the M’Naughten rule for insanity, which is based on obsolete nineteenth century understandings of mental illness.  Consider the way courts handle technology issues, showing a lack of a basic understanding of how technology works.  It is important to point these problems out.

5. Legal scholarship can also reveal inconsistencies in a judge or justice’s jurisprudence.  Countless articles, for example, have been written about Justice Scalia’s inconsistencies.  Many people love Scalia for his colorful language and the fact he has articulated comprehensive theories for the way he interprets the Constitution.  In many articles, Scalia’s views have been critiqued, and major inconsistencies have been pointed out.  I think that’s a good thing.  Are these articles valuable if Scalia doesn’t read them and doesn’t resolve his inconsistencies?  Absolutely.  They are valuable to show others that there are problems with Scalia’s jurisprudence.  Please note that I’m not just picking on Scalia — many thinkers and jurists have some inconsistencies in their thinking.  The value of scholarship is to identify these inconsistencies and work to resolve them.  Until we somehow reach the “truth” about interpreting the Constitution or the law, having more analysis of the issues is valuable as we evolve our positions and ideas.  Indeed, I like to think that my views aren’t fixed, but are evolving — I believe I’m constantly learning and growing as a thinker, and to do this, I think it is good to have criticism and new perspectives.

6. It seems to me that those practitioners who attack legal scholarship often have a view that it is a waste of time to think normatively or deeply about a particular legal issue.  Their view is that all that matters is to read about the case holdings.  But in many areas of law, there is quite a dynamism.  Consider information privacy law — my field.  The law is often unsettled in many areas, with contradictory opinions being issued all the time.  New issues keep popping up.  Courts may not talk about the normative implications, but I’m certain they are thinking of them as they craft their decisions.  Being able to understand the normative implications of taking the law in different directions is very helpful for an attorney — at least in my field.  For example, consider the recent GPS surveillance case before the Supreme Court — United States v. Jones.  Here, the precedent appears to point to the conclusion that the Fourth Amendment doesn’t protect against GPS surveillance.  A narrow-minded lawyer might have given up, but fortunately, the lawyers in this case didn’t and convinced the D.C. Circuit to adopt a new approach.  The Supreme Court may reject this approach, but that doesn’t mean the effort to argue for it was worthless.  All this involves normative and more theoretical views of the law.  Of course, lawyers can act like plumbers, and many do, but the really good lawyers are thinkers and understand that policy infuses law and influences it, sometimes directly but often subtly.  They understand that courts are more comfortable changing the law if they understand the policy implications of the change.  They also know how to use normative arguments to shape the way courts interpret precedent.  Even in the GPS surveillance example, there are good arguments to support the Fourth Amendment’s applicability based in precedent.  That’s often the case with law — there are decent arguments on both sides of many issues.

7.  Theory informs practice.  It may not be a direct influence, but don’t discount its power.  Practice without theory is rudderless and unimaginative.  The law is moving forward and it is evolving.  I doubt anyone thinks today that all cases have clear answers in precedent.  Legal scholarship is the way that many new ideas can inform the development of the law.  The process is often very slow — it can take decades.  Rarely will one article have a direct and immediate impact.  But the ideas do start to take hold over time.  Consider the legal realists.  Their ideas were developed in rather theoretical scholarly articles and books, but over time, they have had an enormous influence on the law and the way we think about it and understand it.   The naysayers of today, if they lived when Llewellyn or others were writing, might have said: “This is just theory and it is useless.”  How wrong they would have been!

8. Finally, I want to acknowledge that there are many law review articles that are terrible.  Many are filled with jargon, are bloated with bad prose and uninteresting arguments, etc.  Many are indeed quite useless.  But so it is with nearly anything.   Most things that people create aren’t all that good.  For every Mona Lisa, there are more than 1000 other artworks that nobody remembers.  It often takes well over 1000 plays to get a great play, or over 1000 books to get a great book, or 1000 songs to get a great song.  And 1000 judicial opinions to get a great opinion.  It seems to me that no matter what the field, the batting average is never going to be good. In baseball, if you get a hit only 30% of the time and fail to get a hit 70% of the time, you’re a great hitter.  I don’t think legal scholarship as a .300 batting average or anything close, but neither do most creative endeavors.  Does that make them useless?  No.  Because despite a majority of “outs,”  a few home runs can be quite fabulous, and can make quite a difference!

I happen to be on the editorial board of a T14 law school’s law review, so I have to cite check and read articles regularly. Of those I’ve read, I can’t think of a single one I thought would be useful to a practicing lawyer. The problem is, in my experience, most seem to advocate a fundamental change in philosophy to an area of law that diverges from what precedent would suggest. To me, this seems extremely unhelpful, because A. Lower courts aren’t likely to accept a grand new theory that seems to contradict what SCOTUS is saying, B. As far as I can [...]]]> A reader of my post about the N.Y. Times critique of legal education writes, in regard to the value of legal scholarship:

I happen to be on the editorial board of a T14 law school’s law review, so I have to cite check and read articles regularly. Of those I’ve read, I can’t think of a single one I thought would be useful to a practicing lawyer. The problem is, in my experience, most seem to advocate a fundamental change in philosophy to an area of law that diverges from what precedent would suggest. To me, this seems extremely unhelpful, because A. Lower courts aren’t likely to accept a grand new theory that seems to contradict what SCOTUS is saying, B. As far as I can tell SCOTUS seems not to usually change its theory either, and C. I don’t think most policymakers tend to read law review articles.

This leads me to be inclined to believe that most law review articles are useless. Are you saying my sample is unrepresentative of what’s out there? Or do I simply have a narrower definition of usefulness? Could you perhaps suggest some articles from the past year that in your mind represented useful legal scholarship?

This commentator assumes that usefulness is the equivalent of being accepted by the courts.  I quarrel with this view for many reasons:

1. An article can have an influence on cases, even if difficult to demonstrate.  Many courts don’t cite law review articles even when they rely on them.  Judges are notorious for not being particularly charitable with citations.  They often copy verbatim parts of briefs, for example.  If a law professor relies on a scholarly work even in a minor way, the professor will typically cite to the work.  Not so for courts.

2. Most articles will not change the law.  Changing the law is quite difficult, and if most law review articles changed the law, the law would be ridiculously more dynamic than it currently is.

3. No matter what discipline or area, most of the things produced are not going to be great.  Most inventions are flops.  Most books, songs, movies, TV shows, art works, architecture, or anything produced are quite forgettable and will likely be forgotten.  Great lasting works only come around infrequently, no matter what the field.

4. Most people are forgettable too.  In the law, most practitioners and judges have been forgotten.  Only a few great ones are remembered.  Of the judges who are most well-known, it is interesting that many were more theoretical in nature and had a major impact in changing the law — typically in ways law professors might change the law.  Think of Benjamin Cardozo, who wrote many articles and books and who radically changed the law.  Think of Felix Frankfurter, a former law professor.  Think of Louis Brandeis.  Think of Oliver Wendell Holmes.  These were jurists who were thinkers.  They were readers.  They were literary.  They were writers of scholarship too.  Maybe the forgettable practitioners and judges are the ones who ignore legal scholarship.

5. The commentator’s remarks that I quoted above seems to be only focused on judicial decisions.  Legal change can occur legislatively as well as through administrative rulemaking.  A lot of legal scholarship that critiques the law can have influence in legislatures or with agencies.

6. The commentator writes: “I don’t think most policymakers tend to read law review articles.”  I doubt that the Congresspeople themselves read law review articles, but staffers might take a look where relevant.  They won’t likely read them cover to cover, but if there’s an article on point that is helpful, I believe they will read it.

7. In my own experience, I’ve found that some of my more theoretical writing has been read frequently by practitioners.  My book Understanding Privacy, for example, is a theoretical account of what “privacy” means and why it is valuable.  I base my theory on the ideas of Ludwig Wittgenstein and John Dewey, and I cite to a lot of social science literature.  More than some of my more so-called “practical” work, it is this book where I receive the most positive feedback from practitioners.  In particular, a lot of Chief Privacy Officers in business, government, and education find the book useful.

8. Legal change can be slow.  Samuel Warren and Louis Brandeis’s The Right to Privacy was a very influential law review article, spawning four privacy torts in a majority of states.  They published their article in 1890.  Ten years later, the article would have been viewed as a failure.  No courts had adopted their theory.  No legislatures had adopted their theory.  Finally, in 1902, the N.Y. Court of Appeals rejected Warren and Brandeis’s theory.  At this point, the legal scholarship naysayers would be saying that Warren and Brandeis’s article would have been a total flop.  A dozen years had passed, and a court declined to change its precedent based on the article.  But then the N.Y. legislature stepped in and recognized a privacy tort based on the article.  And slowly, other courts and legislatures followed.  This process was slow.  It took about 50 years to unfold.

Today in Contracts, I taught Vokes v. Arthur Murray, 212 So. 2d 906 (1968).  In Vokes, a “widow of 51 years”1 sought to be relieved from her obligation to pay for dance lessons purchased from an Arthur Murray franchise.  She claimed that the defendant had lied to her about her abilities as a dancer – and, significantly, exaggerated her improvement.  She had an account with almost 2,000 hours of unused lessons outstanding, and she owed more than $200,000 (in 2010 dollars). Surprisingly, the court permitted that argument to go to a jury, reasoning that the studio’s superior knowledge, coupled with the defendant’s bad faith as illustrated by the facts, made this [...]]]>

In law school teaching, as in dance competitions, it's important to know when to spin on a dime.

Today in Contracts, I taught Vokes v. Arthur Murray, 212 So. 2d 906 (1968).  In Vokes, a “widow of 51 years”¹ sought to be relieved from her obligation to pay for dance lessons purchased from an Arthur Murray franchise.  She claimed that the defendant had lied to her about her abilities as a dancer – and, significantly, exaggerated her improvement.  She had an account with almost 2,000 hours of unused lessons outstanding, and she owed more than $200,000 (in 2010 dollars). Surprisingly, the court permitted that argument to go to a jury, reasoning that the studio’s superior knowledge, coupled with the defendant’s bad faith as illustrated by the facts, made this the kind of exceptional misleading “opinion” which might be actionable.

It’s a good teaching case.  But it got me to wondering about an issue tangentially raised by David Segal’s embarrassingly error-ridden and ideologically charged series in the Times about legal education, and more forcefully by the equally thoughtful Paul Campos. Both argue (ironically) that law schools are contributing to the problems of the legal profession by not raising higher barriers to entry.  Those barriers might be incidentally related to other worthy goals — experiential education, a single tenure system, and a more rigorous disclosure regime are all popular reforms that are very, very expensive.²  But sometimes reformers make a more direct claim: like the Texas lawyers of the 1930s, they claim that “Our bar, already overcrowded, is held out as an asylum for the lame, and the halt, and the blind from the law schools of this country.”  Law schools are failing students by encouraging them to apply (it’s a “scam”), taking their money (it’s really a “scam!”), not preparing them to practice (“scam! scam! scam!”), and then not supporting them in getting jobs (“SCAM!”)

But how far, I mused outloud in class, does this argument run?  Let’s say a student comes to your office hours early in the Fall semester.  They are lost.  Really, desperately, lost.  They are working all the time, but they can’t see the forest, the trees, the continent, the planet.  Law’s greek to them. What to do?  One view – let’s call this the Segal/Campos view – is that the morally right thing to do at that very moment is to 1) recognize that my livelihood depends on the students; 2) this puts me, like every provider of services, in a slightly compromised position when talking to a student about whether they ought to be in school; 3) realizing this, decide pretty quickly if I think that the student is a candidate for Bar passage and employment; 4) if not, tell the student that they’d be better off leaving school and pursuing other opportunities in today’s job market, or to take the Ayes-refund offer if it comes.

I have had this discussion with a handful of students over the last seven years, though always after the first semester and usually after a pretty lengthy exploration of  their goals, resources and capabilities. But, to be honest, I am never sure if the talk is a good idea, let alone morally compelled.  Putting aside Bar passage – and at Temple, I have that luxury as almost every student passes on their first try – I know that I have very little information early in a student’s career that will meaningfully predict if they can earn a living as a lawyer.  I will know something after the first semester about if they’ll get a job at a large law firm. But that’s a narrow slice of jobs for all law school graduates outside of all but 10-15 schools (or, more precisely 5-10% of law school graduates).  What I don’t know about students is their motivation; their people skills; their social connections; their ability to bounce back.  In short, I know almost nothing about their human capital.  And nothing in my training or teaching has made me particularly good at making snap judgments about that really hard to measure set of attributes. In fact, I know that I tend to overvalue a certain set of skills – intellectual, verbal, etc. – and discount social ones.  This problem of mis-prediction is particularly acute early in the first semester. Many confused students turn it around.  Some don’t.  I have never been able to predict which will be which.3

So I encourage most students to persevere, to stick to it, to work super hard, to postpone good times and return again to the books. I tell them that the Law School’s most successful graduates got bad grades.  (True, if success means money earned.)  I tell them that I felt confused in my first semester.  (True, and it’s also true that Contracts was my least favorite, and least understood, class.)  I sometimes tell them they are improving though they aren’t – but only if they seem to me to desperately need some solace.  (I never tell them that about their practice exams, in case my current students are reading this – you’ll get only criticism from me in the service of better final performance.)  I often tell people that hard work and caring more than other lawyers is the path to success, though I know that in life, social connections, being good looking/tall, and luck probably play just as much if not a larger role.  In short, I try to be a supportive mentor as much as I can, though I know, in grim probabilistic terms, that some students would be better off cutting their losses.

Should I feel bad that I encourage people who may not succeed?  Should I start every conversation with a Vokesian disclaimer that is brutally frank about their current level of skill?  I just don’t see it.  That’s not, I think, what an educational institution is supposed to be about.  We’re selling the possibility of self-improvement, and economic and social momentum.  People need to believe in that possibility if they are to realize it: optimism actually makes people better, more competent, and more satisfied with their lives.  There’s a corrosive cynicism in the “scamblogs” which would, I think, turn that idea on its head.⁴  We owe our students more.

Notes:

1.  Is she a 51 year old widow?  Or was she 51 years a widow?  It’s not just Cardozo who can write lyrical sentences that are hard to parse.

2.  That something is expensive doesn’t mean it’s a bad idea.  But I fear that too often reformers in legal education (and elsewhere, of course) don’t think clearly or well about trade-offs.  Making law school more expensive would be good for current incumbent lawyers.  It would be bad for prospective lawyers and current clients.   I’d prefer that law schools be regulated less, and for them to compete on price, disclosure, internal governance, and educational program.  For those that say “why don’t they do so now,” the answer is “because the ABA doesn’t let them.”

3. Not knowing whether someone is going to succeed as a lawyer isn’t the same as not knowing how they are doing as a student, or the claim – obviously silly – that we can’t evaluate relative merit at some kinds of lawyer-relevant tasks.  Law school sorts students by grades, and I’m committed to making grades pretty good reflections of how well students exercise legal judgment.  The point is merely this: we ought to be humble in our predictions of how well our students will do once let loose in the world.  We provide a knowledge base. The Bar Exam licenses.  Neither guarantees success, happiness or wisdom.  Even lawyers with fantastic legal judgment might not rake in cash.

4.  Nothing in the above discussion at all approves lying about data.  Or increasing tuition above inflation yearly.  Or teaching the same thing as we did last year simply because …well…because we did it.  Or being a nitwit, a bore, an ideologue, a lazybones, or a sociopath, unable to see the pain of students who can’t find jobs.  I’m against being bad at your job, and I think that being good at your job means realizing that we are teaching people to be lawyers, and our students rightly expect that we set them up to succeed.

First, teaching.  I think that when law schools succeed at their mission they do produce graduates with skills ready for use in any legal environment.  It’s [...]]]> David Segal has a front-page, above-the-fold article in today’s New York Times, What They Don’t Teach Law Students: Lawyering.  Segal blasts legal education for failing to produce prêt-à-porter lawyers sized to fit the needs of everyone from Skadden Arps to solo practitioners.  Segal also denies the value of “pure” research — law review articles and other scholarly output that do not satisfy his requirements for immediate application to daily practice.  Gerard Magliocca and Alex Guerrero already commented on one of his examples.  As with Dick the Butcher’s suggestion in Shakespeare’s Henry VI, Part 2, Segal’s article is wrong on both teaching and research.

First, teaching.  I think that when law schools succeed at their mission they do produce graduates with skills ready for use in any legal environment.  It’s just that developing the skill set that Segal prioritizes (such as his opening example: filing a certificate of merger with a secretary of state) is not the sole, let alone primary, goal of legal education.  Those form-filling and filing skills are important, but best honed by firms that daily engage in those specialized, localized, and technical operations.  Law schools, in contrast, have the advantage in teaching the general skills and knowledge that firms of all sizes (as well as government agencies and corporations) have neither the time, inclination, nor resources to perfect.  But these organizations desperately need these things in the lawyers they hire: critical thinking, professional standards, ethical judgment, and historical perspective (to name a few).

Unlike medical schools and engineering programs, law schools do not set out to create technicians.  (I suspect that the best medical and engineering institutions don’t have this goal either, but this is the common comparison.)  Law schools, especially, should produce graduates comfortably inclined to question the status quo, challenge assumed truths, and think about the long-term implications of their actions as members of a learned profession.  Over time, one hopes that their training will combine with experience to produce in them judgment about when each skill should take a leading role.  Lawyers with these skills are needed in any age, but especially one that produced such colossal fails ranging from Enron to government-sanctioned torture.

Second, research.  I also reject Segal’s essentially anti-intellectual critique of research.  Last spring, I was asked by a high-level Russian official to write a report on a verdict in a criminal case.  That report explored the many departures from Russia’s obligations under the European Convention on Human Rights to be found in that verdict, but it also raised serious questions about fundamental aspects of Russian law.  The report could hardly qualify as research readily useful to the day-to-day activities of a practitioner at the bar of any American state or the present Russian one.  Nevertheless, I found that the research that I conducted, the exercise of drafting my report, and the report itself generated useful starting points for several discussions in classes that I teach on American law.  Those conversations ranged from an aspect of the famous Chenery case in my Administrative Law class to an editing exercise in a seminar on counterterrorism.  Needless to say, I hope it also makes a positive impact in Russia when it is released next month.

Those teaching moments were hard to foresee at the outset of my research.  But anyone who values knowledge for its own sake would not be surprised by the serendipity my Russian law work produced in my American law classrooms.  That the report led to invitations to speak to groups at universities and thinktanks in the U.S., U.K., Sweden, Norway, Finland, and Belgium also suggests that what counts as valuable research might benefit from a less cramped definition than Segal and company provide.

March 22-23, 2012

The workshop will explore “Objectivity in the Law” and is open to non-tenured academics whose research is interdisciplinary in nature.  The normative value of objectivity runs through the purpose for most law, though social practices influence how laws are implemented.  Submitted papers should focus on a chosen area of law and examine that law’s objective purpose and the relationship between its purpose and its actual implementation.

To ensure each presenter receives extensive feedback, only six papers will be selected for the workshop.  Senior scholars from Indiana University School of Law – Indianapolis and other law schools will be paired with presenters and serve as primary or secondary commentators on the papers.  Presenters will receive [...]]]> Junior Faculty Interdisciplinary Scholarship Workshop at Indiana University School of Law-Indianapolis

March 22-23, 2012

The workshop will explore “Objectivity in the Law” and is open to non-tenured academics whose research is interdisciplinary in nature.  The normative value of objectivity runs through the purpose for most law, though social practices influence how laws are implemented.  Submitted papers should focus on a chosen area of law and examine that law’s objective purpose and the relationship between its purpose and its actual implementation.

To ensure each presenter receives extensive feedback, only six papers will be selected for the workshop.  Senior scholars from Indiana University School of Law – Indianapolis and other law schools will be paired with presenters and serve as primary or secondary commentators on the papers.  Presenters will receive a small honorarium and will be reimbursed for their travel and hotel expenses.  The Law School will provide lunch and dinner on Friday, as well as breakfast on Saturday.

Interested participants must submit a 500 word abstract to Professor Cynthia Adams at cmadams@iupui.edu before November 15. Presenters will be notified before December 15. If selected, a participant must submit a full copy of the paper before February 17, 2011.

The program is also open to other scholars wanting to attend, read, and comment on the papers but not present. There is no registration fee.

National Novel Writing Month is a fun, seat-of-your-pants approach to novel writing. Participants begin writing on November 1. The goal is to write a 50,000 word, (approximately 175 page) novel by 11:59:59, November 30. Valuing enthusiasm and perseverance over painstaking craft, NaNoWriMo is a novel-writing program for everyone who has thought fleetingly about writing a novel but has been scared away by the time and effort involved. Because of the limited writing window, the ONLY thing that matters in NaNoWriMo is output. It’s all about quantity, not quality. This approach forces you [...]]]> It’s that time of year again. Your friends on facebook are pledging to participate in National Novel Writing Month (NaNoWriMo) starting tomorrow. The idea is pretty simple:

National Novel Writing Month is a fun, seat-of-your-pants approach to novel writing. Participants begin writing on November 1. The goal is to write a 50,000 word, (approximately 175 page) novel by 11:59:59, November 30. Valuing enthusiasm and perseverance over painstaking craft, NaNoWriMo is a novel-writing program for everyone who has thought fleetingly about writing a novel but has been scared away by the time and effort involved. Because of the limited writing window, the ONLY thing that matters in NaNoWriMo is output. It’s all about quantity, not quality. This approach forces you to lower your expectations, take risks, and write on the fly.

Perhaps the most intriguing part of NaNoWriMo is the community support aspect. Folks post their successes to Twitter and Facebook. There are constant reminders to write. And it works rather well, as tens of thousands of eager amateurs manage to write 50,000 words in a month’s time.

Of course, I’m tempted to join the fun. (NaNoWriMo would be a great time to finish that Twilight fan fiction novel!) But I also know that there is a half-finished article calling my name, occasionally reminding me of its continued existence. What if there were also a National Article Finishing Month?

Now there is.

National Article Finishing Month draws on the model of NaNoWriMo (and also on the advice of sci-fi author Neil Gaiman to finish things). For legal academics, the challenge is different. November is a doldroms (at least, it is for me). Thanksgiving is here, and recruiting season (with call-back interviews to attend), and millions of endless committee meetings. With no nearby article submission season, there’s no burning motivation to write. If you aren’t careful, you might go all month without picking up a pen. NatArtFiMo pushes back. It’s like a writing retreat, conducted online.

The rules are as follows:

1. Eligibility.

If you want to finish an article this November, you’re in. (As a practical matter this group may be most appealing to legal academics.)

2. The article.

You should start with an unfinished article. For our purposes, let’s tentatively define an unfinished article as something which is not yet posted to SSRN (or if posted, it is in very short skeletal form of less than 20 pages). (Does this work for people? Additional suggestions are welcome.)

(Is it okay to start with nothing at all? Yes. However, remember that this will put you on a very accelerated writing schedule.)

3. Deadlines and Check-in.

To participate, you should:

a. Write up a short, 1 paragraph (4-5 sentences) description of your writing goal for the month. Briefly describe your article, where you stand on it, and which parts of the article you are going to complete over the month.

We strongly encouraged participants to set ambitious but reachable goals. For an already-started, research-begun, half-written project, “having this ready to post to SSRN” might be a reasonable goal for a month’s of focused writing. But obviously, it will vary from article to article. If your goal is simply to figure out a Meereenese Knot, that’s fine too.

b. Post that paragraph in comments here, or on our new Facebook group (or both). Note that the group is “open,” so please don’t disclose trade secrets. You can keep your description as vague as you need. However, it is generally preferable to post more detail. (“I will finish Part 3, add research from Hoffman, and come up with a better conclusion” rather than just “I’ll finish the article”) so that your supporters can encourage you or suggest ideas.

c. Post an update once a week (suggested time: over the weekend). This includes a final update (either the weekend of the 26th, or on November 30th, or whenever works best.

d. Participate in conversation in comments or at the Facebook group, as often as you’d like (though not to the detriment of article writing!). There is no minimum or maximum, but the project will likely be more successful the more that people participate.

4. Benefits.

a. Publicity. Concurring Opinions is a top-ten legal blog by traffic. Our readers include legal academics, practicing lawyers, and law students (including those ever-elusive law review editors!). That’s a lot of eyeballs looking at and thinking about your article, and NatArtFiMo provides a central location for discussion.

Next Sunday, I’ll post a kickoff summary of people’s descriptions, citing a few sentences. I’ll post short follow-up summaries each following Sunday, drawing on participants’ updates. I will also highlight one randomly selected participant’s work in more depth each week.

b. More publicity. At the end of the month, I’ll host an SSRN party (complete with links) to highlight all articles which were part of NatArtFiMo and which have been uploaded to SSRN by November 30th.

c. And even more publicity. At the end of the month, I will also ask one randomly selected participant to participate in a mini-interview about her article, in a stand-alone post.

d. Support. Finally, I hope that the project will result in broader community support. Some of this may be simply encouragement. (We can all use reminders from time to time!) Beyond that, I think that participants might also receive substantive support from readers and other participants. Readers, if you have a suggestion about someone’s article, please let her know.

5. Amendment.

I welcome any suggestions or feedback. This is a new project, and I’m still figuring out all of the details. (Please bear with me!)

I will try to maintain as much continuity as possible. However, if someone suggests an excellent tweak to the structure (especially in the first day or two), I may amend these rules. (Any amendment will be clearly noted.)

Those are the rules as I’ve got them set out for now. If you have any questions, please let me know. I look forward to participating with many of you in the inaugural NatArtFiMo!

All are invited to submit paper proposals for these panels. There is no single topic or theme to which paper submissions must conform: they should simply relate to feminist legal theory in some shape or form. CRN particularly welcomes proposals which would permit it to collaborate with other research networks, which have organized around topics such as Critical Research on Race and the Law, or Gender, Sexuality and the Law. Also, because the [...]]]> The Feminist Legal Theory Collaborative Research Network (CRN) is a newly-constituted group that seeks to bring together scholars across a range of fields who are interested in feminist legal theory.  This year CRN is hoping to organize a number of panels at Law and Society (LSA), which will take place in Honolulu, Hawaii from June 5-8, 2012. 

All are invited to submit paper proposals for these panels. There is no single topic or theme to which paper submissions must conform: they should simply relate to feminist legal theory in some shape or form. CRN particularly welcomes proposals which would permit it to collaborate with other research networks, which have organized around topics such as Critical Research on Race and the Law, or Gender, Sexuality and the Law. Also, because the LSA meeting attracts scholars from other disciplines, multidisciplinary proposals are welcome. CRN’s goal in organizing these panels is to stimulate focused discussion on papers on which scholars are currently working. Thus, while proposals may reference work which is well on the way to publication, CRN is particularly eager to solicit proposals for works-in-progress which are at an earlier stage, and which will benefit from the discussion that the panels will provide.

Paper proposals are due by November 14, 2011.  Instructions for submitting proposals are after the jump.

If you would like to submit a paper for one of the CRN panels, please do so by using the Feminist Legal Theory CRN TWEN page. TWEN is an online resource administered by Westlaw. If you haven’t yet registered for the TWEN page, signing up is easy. Just sign onto Westlaw, hit the tab on the top for “TWEN,” then click “Add Course,” and choose the “Feminist Legal Theory” CRN from the drop-down list of National TWEN Courses. Or, if you have a Westlaw OnePass as a faculty member, you can enter from this Easy Course Access.  If you enter through this link, you will immediately see a link to the Feminist Legal Theory CRN TWEN page, and you should click on it.

Once you arrive at the Feminist Legal Theory CRN TWEN page, look to the left hand margin for a tab to “June 2012 Law and Society – Sign-Ups and Paper Proposals.” When you click on it, you will see two threads under “topics.” Click on the thread that permits you to post a paper proposal.  You will then get a new screen that locates you within that thread: hit “reply” to post a reply to it. When posting a paper proposal, you should include your name, a title, and an abstract of 400-500 words.

Please submit all proposals for paper presentations by November 14, 2011. This will permit CRN to organize panels and submit them prior to the LSA’s deadline of December 6, 2011. If CRN receives too many proposals and cannot accept all of them, it will notify you by November 28, 2011, so that you can submit an independent proposal to LSA.

After recently conversations with colleagues who seem enamored of one or more of the citation-management programs available, I’m dipping my toe into this area. I’m also wondering how widely used these programs are. Some law library and other websites have collected links and information on some of the available programs, or [...]]]> For most of my academic career, my research and citation model has been relatively low-tech: I’ve simply typed my citations into Word documents (or sometimes found a research assistant to type them for me). And sometimes I paste in common sources from the footnotes in my older articles. That’s it. It’s pretty basic — not quite writing-it-out-longhand, but probably not a particularly effective method, given advances in technology.

After recently conversations with colleagues who seem enamored of one or more of the citation-management programs available, I’m dipping my toe into this area. I’m also wondering how widely used these programs are. Some law library and other websites have collected links and information on some of the available programs, or offer specific tips on how to use them. I’m still a neophyte, but some of these programs look intriguing — provided I can figure out how to use them.

For this poll, please indicate whether you use Zotero, RefWorks, Mendeley, EndNote, or some other citation-management program in your own legal scholarship. And please weigh in in comments with any thoughts on the merits of your own prefered system.

(Image: Wikicommons)

Sorry for the blogging hiatus.  I’ve been writing.  I’m sorry also to have missed the latest NYT attack on legal education — in the form of a misleading hatchet job on NYLS.  The article – one of a shoddy series by David Segal – struck an academic nerve already made sensitive by Justice Roberts’ dismissal of legal scholarship.

Of course, arguments about law school’s worth and scholarship’s consequence are evergreen – they drive blogging traffic and comments & promise to motivate engagement between blogs by practicing lawyers and the academy.  But quite often, unfortunately, these discussions go nowhere.

On law professor blogs, there’s a tone of tetchy defensiveness: “the market tells us that we’re worthwhile – [...]]]>

This guy has seen the same debate so many times it broke his back

Sorry for the blogging hiatus.  I’ve been writing.  I’m sorry also to have missed the latest NYT attack on legal education — in the form of a misleading hatchet job on NYLS.  The article – one of a shoddy series by David Segal – struck an academic nerve already made sensitive by Justice Roberts’ dismissal of legal scholarship.

Of course, arguments about law school’s worth and scholarship’s consequence are evergreen – they drive blogging traffic and comments & promise to motivate engagement between blogs by practicing lawyers and the academy.  But quite often, unfortunately, these discussions go nowhere.

On law professor blogs, there’s a tone of tetchy defensiveness: “the market tells us that we’re worthwhile – just look at the continuing number of lemmings pounding at the gate!”, or “of course our scholarship is consequential, let’s count the citations”; or, “no one ever promised that a JD was a job guarantee!”; or, “what’s their BATLS?” [The last is a truly obscure negotiation joke if there ever was one.]

For reporters, it feels like the scene in the Wire when they are talking about what to cover in the coming year. Sure, you could talk about complexity and globalization and economic markets and the changing nature of legal practice.  Or you might talk about the relationship between ABA regulation, thoughtless paternalism, and resulting distributional inequalities in education.  But that’s a set of sprawling stories – lacking an obvious villain to muckrake.  Rather, then, the news blames the dickensian aspect of law schools.  Reporters write articles that stir the pot, but aren’t recognizable to insiders, making them less likely to actually motivate change.

Last, not least, the practicing lawyers often articulate resentment toward ivory tower academics who ignore the realities of “trench lawyering”. (This happens even when the “academics” in question are actually practicing lawyers.)  Basically: impractical law professors versus practical lawyers.

Why does this “debate” feel so tired?  I have a partial hypothesis: because we ignore history. I had a great research assistant, Alex Radus, collect quotes about the ferment about legal education in the 1930s-1940s.  (Which is highlighted in Prosser’s famous 1948 speech to Temple’s law faculty, Lighthouse No Good.“)  After the jump, you’ll see some fantastic quotes from that era and before, which remind us that “what has been will be again / what has been done will be done again /there is nothing new under the sun.”

Starting pretty early, Blackstone wrote in his Commentaries that there are

“some who warmly recommend dropping all liberal education as of no use to students in the law; and placing them, in its stead, at the desk of some skilled attorney in order to initiate them early in all the depths of practice and render them more dextrous in the mechanical part of the business . . . . If practice be the whole he is taught, practice must be the whole he will ever know; if he be uninstructed in the elements and principles upon which the rule of practice is founded, the least variation from established precedents will totally distract and bewilder him . . . “

By contrast (and leading the charge) there was Jerome Frank [Why Not a Clinical Lawyer-School?, 81 U. Pa. L. Rev. 907, 909 (1932)]

“Students trained under the Langdell system are like future horticulturists confining their studies to cut flowers, like architects who study pictures of buildings and nothing else. They resemble prospective dog breeders who never see anything but stuffed dogs. And it is beginning to be suspected that there is some correlation between that kind of stuffed-dog study and the over–production of stuffed shirts in the legal profession  …

[T]he acceptance of the Langdell-Harvard method meant that the university law school teachers, with few exceptions, were those who had never practiced or practiced for only a brief interval. It is probably true that a majority of the teachers in some of our university law schools have never met or advised a client, consulted with witnesses, negotiated a settlement, drafted a complicated contract, lease or mortgage, tried a case or assisted in the trial of a case or even written a brief or argued a case in an upper court.”

What is to be done?  Harold D. Lasswell & Myres S. McDougal summarized the possibilities: [Legal Education and Public Policy: Professional Training in the Public Interest, 52 Yale L. J. 203, 206 (1943).]

“Proposals for escape from all of this confusion and inadequacy have, of course, been legion . . . . Lecture versus case; large class versus small class; seminars versus courses; group work versus individual work; specialization versus “well-rounded” training; vocational training versus cultural training; Bills and Notes (substitute any course) in the second year versus Bills and Notes in the third year; prescribed pre-legal training versus eclecticism; three-year curriculum versus four-year curriculum—these and many similar questions have been raised like quills on a startled porcupine.”

Shucks, adapting law school was all they talked about!  [Roscoe B. Turner, Changing Objectives in Legal Education, 40 Yale L. J. 576, 576 (1931)]

“It may be said without much question that there is more activity in the law school world today than there has been at any time within the last generation or two. Things are in a state of flux—the culmination of a long period of suggestion and counter-suggestion with little change. The addition of new courses to the curriculum, the general re-arrangement of existing courses to admit various types of non-legal materials, new approaches in legal thought, new ideas concerning teaching methods, the advent of fact research, and a dawning awareness of the existence of other social sciences than law, all testify to a rapidly changing world.”

But maybe there was no problem at all. [Sidney Post, Continuing Education of the Bar, 59 Harv. L. Rev. 694, 695 (1946]

“The law schools need offer no apologies for not preparing men for immediate practice … They have their own job, and should concentrate on doing it better. Academic instruction by professional teachers is the best method yet found for imparting certain kinds of knowledge.“

Or maybe there was: [Elliott E. Cheatham, Legal Education – Some Predictions, 26 Tex. L. Rev. 174, 180. (1947)]

“The United States is the only country of the Western world where a man can be admitted to the bar without having had any contact with, or any real knowledge of, the active profession.”

Finally, of course in the 1930s the job situation for graduates was pretty grim.  [Charles E. Clark & Emma Corstvet, The Lawyer and the Public: An A.A.L.S. Survey, 47 YALE L.J. 1272 (1938)]

 “At its annual meeting in 1933 the Association of American Law Schools considered at length the economic condition of the Bar . . . Among lawyers there was some difference of opinion about the present situation of the Bar. One man, himself successful, remarked that most lawyers could make a living if they were not lazy, and another that there were not too many lawyers, not enough, in fact, if conditions became better. But the general opinion indicated anxiety: lawyers were having a hard time—there was little work for the young lawyer—there were too many lawyers—a man couldn’t get started unless his forebears had been lawyers—banks and trust companies were taking away the business—and even collection agencies obtained powers of attorney to represent clients in the small claims court.  . . .  Many remedies were suggested by the lawyers interviewed. Real estate men and banks should not do so much legal work. Possibly the lawyer should be paid a certain amount by the state and do minimum work for people at large. Average earnings should be published, so the public could see they are not large. The law should be changed so that lawyers must certify that income figures are taken from records. A law might be passed that no legal instrument is legal unless a private lawyer attaches his signature. There is too much talk about crooked lawyers. It is all right to go after the crooks, but to talk and do nothing gives the public the impression that all lawyers are crooks. The Bar should keep its skirts clean, but does not. It should disbar those that need it, instead of letting them degrade the entire Bar. And finally a feeling that the public regarded lawyers as unreliable, and lumped the good with the bad, led many to be in favor of advertising, traditionally so at variance with the profession’s ethics.

The lawyers’ earnings are low, and there is a great deal of legal work undone which might become what the economists call ‘effective demand’ under other conditions. “

The Texas Bar put it starkly, and blamed law schools for pumping out graduates [Bar Section, Resolution Adopted By Dallas Bar Association, 10 TEX. L. REV. 326 (1932).]:

 “We your committee on Legal Education beg leave to submit the following report:

We believe that no part of our machinery for administering justice in Texas is more urgently in need of immediate overhauling than our system of admitting new members to the bar. Under the existing laws and the rulings of our Supreme Court, the state is being flooded with young lawyers from every state in the union, many of them with little preparation for the duties that devolve upon them as the guardians of the life, the liberty, and the property of the citizen…

Before going into the details of the situation that confronts us, your committee believes it wise to lay down a few general principles and to make some observations of a general character …

There are too many lawyers in this country. That this is true is evident to anyone at all familiar with the facts. In proportion to population, there are more than twice as many lawyers in the United States as in Great Britain, and nearly five times as many as in either France, Germany or Holland. If all our lawyers were busy and rendering a useful service, there would be little reason to complain, but many of them are not busy. On the contrary, many of them are on the margin of starvation and are constantly tempted to foment litigation, to indulge in legal blackmail and to engage in other reprehensible and illegal practices. It is not merely a waste of man power. It is a prolific source of injustice and social corruption.

“Such are the standards, or the lack of standards, for admission to the bar of Texas. Our bar, already overcrowded, is held out as an asylum for the lame, and the halt, and the blind from the law schools of this country. And they are coming. ”

You gotta love those Texas lawyers!

That is best promoted when the identity of the reviewers is held strictly confidential, by editors and reviewers alike, with editors sharing only the substance of reviews to enable improving a manuscript. 

Contrary to this normative ideal, reviewers often seem to feel free to identify themselves, and even editors are sometimes sloppy in leaking identifiying data.   In just the past year, I have personally had several different unfortunate examples.  The upshot is the same: outside reviewers must stay anonymous.

In one case, I was asked to review a scholarly manuscript of an article on a subject within the field involving law and accounting.  I gave a [...]]]> Outside reviews of manuscripts are important to many publishing enterprises, from scholarly books and articles to general interest works of nonfiction.  Honest, objective and impersonal assessments are vital. 

That is best promoted when the identity of the reviewers is held strictly confidential, by editors and reviewers alike, with editors sharing only the substance of reviews to enable improving a manuscript. 

Contrary to this normative ideal, reviewers often seem to feel free to identify themselves, and even editors are sometimes sloppy in leaking identifiying data.   In just the past year, I have personally had several different unfortunate examples.  The upshot is the same: outside reviewers must stay anonymous.

In one case, I was asked to review a scholarly manuscript of an article on a subject within the field involving law and accounting.  I gave a generally favorable review, along with some quibbles and suggestions.  The editors tentatively declined the piece with an invitation to resubmit based on the quibbles and suggestions. The author somehow figured out that I was the reviewer and contacted me to say so.  It felt as if I were being accused of interfering with some one’s scholarly work.  Not pleasant.

In another case, I submitted a book proposal to a university press. The press expressed great enthusiasm and the editor told me it had to follow standard practice and have outside reviews.  It circulated the proposal, including sample chapters to several anonymous reviewers.  One of them, an old acquaintance of mine, told me he was a reviewer and that he really liked one of the chapters. 

Again, I wish he hadn’t told me this but, having told me, I followed up by asking his opinion and seeking his comments on the book.  Bizarrely, he refused to discuss any aspect of his review or the book.    Worse, the interest from the publisher went totally cold. 

The connection was hard to miss.  It seems clear the acquaintance both wanted to signal his power to interfere without providing the substantive assessment which, oddly, the press never did either.  All in all, it would have been better for this fellow to keep himself anonymous.

In a third case, a different university press, also very enthusiastic about my book proposal, supplied me with all the outside reviews it commissioned, and offered to publish the book.   In the meantime, one of the reviewers, while communicating on a different subject, mentioned that he served as such. I said I appreciated the review.  

What I didn’t say, but might have, was that I wish I had not known that he was the reviewer. The knowledge obviously did not produce the negative feelings I got when from the other two episodes. But I still would rather not know.  

The norm of anonymity for outside reviewers exists for good reasons.   It should be respected.

I’ll let this serve as an open thread for other pre-recantations.

The manuscript, now nearly complete to become a 240-page book, has been professionally edited for content and style, is trimmed to scale, and earlier chapter drafts have been read by a half dozen colleagues and several anonymous peer-reviewers. At this near-final stage, I’m looking for overall substantive evaluation, including not only correcting errors and minimizing unnecessary quibbling, but promoting the work’s utility to teachers of contracts and their students.

I would be delighted by anyone volunteering to read a few chapters to provide feedback, but am also prepared to pay a [...]]]> I’m seeking editorial assistance from a few good Contracts scholars to provide a substantive review of the manuscript for my newest book, provisionally entitled Contracts in the Real World: Stories of Popular Contracts and Why They Matter (noted here).

The manuscript, now nearly complete to become a 240-page book, has been professionally edited for content and style, is trimmed to scale, and earlier chapter drafts have been read by a half dozen colleagues and several anonymous peer-reviewers. At this near-final stage, I’m looking for overall substantive evaluation, including not only correcting errors and minimizing unnecessary quibbling, but promoting the work’s utility to teachers of contracts and their students.

I would be delighted by anyone volunteering to read a few chapters to provide feedback, but am also prepared to pay a stipend (from my advance) for a more rigorous read of the full manuscript giving specific corrections, observations and suggestions. Any Contracts professor interested in either role, please email me: lacunningham@law.gwu.edu, letting me know.

Do you want to reach students, teachers, scholars, policy-makers, the general public?  What publishers best target which groups?  Are they all equally good at marketing or are some more effective than others? 

Often it is clear where the book should  be published but sometimes a book straddles the markets, posing vexing decisions.  How do professors choose then?

Some books are clearly meant for the classroom, and should be published by the likes of Aspen, Foundation, Lexis or West.  Within that cohort, houses further distinguish between adoptables, targeted to professors who require the book, and discretionary [...]]]> Where to publish your latest book-length manuscript?  Law professors can position their books for publication in many different ways.  The target audience and a publisher’s program are the key factors in choosing a publisher. 

Do you want to reach students, teachers, scholars, policy-makers, the general public?  What publishers best target which groups?  Are they all equally good at marketing or are some more effective than others? 

Often it is clear where the book should  be published but sometimes a book straddles the markets, posing vexing decisions.  How do professors choose then?

Some books are clearly meant for the classroom, and should be published by the likes of Aspen, Foundation, Lexis or West.  Within that cohort, houses further distinguish between adoptables, targeted to professors who require the book, and discretionary student purchases, for supplemental reading.  

Other books are obviously written for a specialized academic market and should  be published by such university presses as Cambridge, Harvard, NYU or Stanford.  A small number undoubtedly show greater potential trade market appeal, and could be published by such houses as John Wiley, McGraw-Hill, Penguin or Random House.  

But what of the book that transcends one or more of these audiences, positions, and publishing programs?  Is it possible that some houses can deliver it all, as many authors say is true of such presses as Oxford, Princeton, Yale?

In particular, I have spent this past year writing a book on contract law stories in the news during the past several years.  Readers of this blog would recognize a dozen or more of them. 

Featured subjects include the rap artist Eminem, the Golden Globe film awards, the actor Martin Sheen, cell service early termination fees, Facebook, the show “Survivor,” the HBO drama “The Sopranos,” and figures as diverse as Paris Hilton, Donald Trump, Dan Rather, Maya Angelou, Bernie Madoff, Rod Stewart, Sandra Bullock, the Los Angeles Dodgers and AIG.

Themes animate the big ideas in contracts, such as freedom, volition, bargain, and address all the topics in the standard course: formation, excuses, remedies, interpretation, and illegality, plus special treatment on the hottest topics today, including Website privacy policies and confidentiality.  

I first wrote them for posting here and to explain ancient doctrine to my students using fresh materials, which is a famously successful pedagogical form.  

My rewriting of them yielded a thematic and structural framework that would be appealing to contracts law teachers as a required or recommended book for that course, a fresh version of Marvin Chirelstein’s wonderful book of similar length and scope.  

Yet a third reworking of the materials, stressing the “pop” aspects, indicates what motivated initial blog posts: potential for a target audience within the larger group of readers of general non-fiction.

Further, I have formualted a proposal and framework for a series of the books, addressed to other fields: torts, property, criminal law, constitutional law, and so on.

I’ve proposed the book and/or series to several publishers. Most circulated the proposal for peer review, with excellent results.  Aside from kind assessments of the book, I got suggestions for improvement, and, most important, several offers to publish.   

The hard part is coming: which offer to choose and how to finally position the book/series.  It’s a vexing problem.  True, as close friends stress, this is a “high-class” problem, but still a problem.   I wonder, among readers of this blog, students, teachers, non-lawyers, would anyone want to read such a book?  How would you think about and resolve the trade-offs?

Some see the future of digital course books as a radical shift, akin to the original revolution of Langdell’s Contracts casebook. Others dismiss it as a simple marketing maneuver, the way post-Langdell addition of notes, questions or problems might be regarded.

In a new essay, I look back at casebook history to find it suggests that digital course books are more likely to be something in between, an incremental but meaningful evolution. The essay, a chapter in a new book on the subject, engages with great [...]]]> As we all migrate to the digital world, imagine the future of the law school course book by reflecting on its history, purposes, and promulgation over the seven generations since C.C. Langdell initiated our current mode of legal education in 1870.

Some see the future of digital course books as a radical shift, akin to the original revolution of Langdell’s Contracts casebook. Others dismiss it as a simple marketing maneuver, the way post-Langdell addition of notes, questions or problems might be regarded.

In a new essay, I look back at casebook history to find it suggests that digital course books are more likely to be something in between, an incremental but meaningful evolution. The essay, a chapter in a new book on the subject, engages with great innovations in law school course books over the past century-plus, highlighting historic contributions from luminaries across the century and today.

Section A’s brief excursion through the evolution of the course book for Contracts is a sober reminder of the plodding pace of change in American legal education. It prepares readers to appreciate trade-offs, opportunities, and risks associated with migration from print to digital books. These are elaborated in three ensuing Sections, all animated by the historical perspective and illuminating trade-offs, opportunities, and risks, though each stressing a different one of those three implications of the migration from print to digital law books.

Section B stresses trade-offs, especially concerning course books’ purposes and scope; Section C stresses opportunities the digital format offers, highlighting the appeal of digital methods to produce supplements, maintain a work’s currency, and facilitate skills training; and Section D discusses matters of presentation that creators of print and digital materials alike must address to promote usefulness – and calls for vigilance against associated risks. Section E synthesizes, concluding that digital course books are important and valuable, but not revolutionary.

Noted are contributions from the following, among others: from the old days: Samuel Williston, Arthur Corbin, Lon Fuller, Grant Gilmore; in more recent times: Allan Farnsworth, Charles Knapp, Karl Klare, Ian Macneil, Stewart Macaulay, Lenora Ledwon, Amy Kastely, Deborah Waire Post, Nancy Ota, Douglas Leslie, Robert Summers, Robert Hillman, Randy Barnett; and on law books and legal education generally: Paul Caron, Michael Kelly, Matthew Bodie, Bruce Kimball, Kellye Testy, Edward Rubin, and Steven Bradford.

“To Dave, we say that our enthusiasm for randomized studies is high, but perhaps not high enough to consider a duty to randomize among law school clinics or among legal services providers.  We provided an example in the paper of practice in which randomization was inappropriate because collecting outcomes might have exposed study subjects to deportation proceedings.  We also highlighted in the paper that in the case of a practice (including possibly a law school clinic) that focuses principally on systemic change, randomization of that practice is not constructive.  Instead, what should be done is a series of randomized studies of an alternative service provider’s practice in that same adjudicatory system; these alternative provider studies can help to assess whether the first provider’s efforts at systemic change have [...]]]> Jim and Cassandra write:

“To Dave, we say that our enthusiasm for randomized studies is high, but perhaps not high enough to consider a duty to randomize among law school clinics or among legal services providers.  We provided an example in the paper of practice in which randomization was inappropriate because collecting outcomes might have exposed study subjects to deportation proceedings.  We also highlighted in the paper that in the case of a practice (including possibly a law school clinic) that focuses principally on systemic change, randomization of that practice is not constructive.  Instead, what should be done is a series of randomized studies of an alternative service provider’s practice in that same adjudicatory system; these alternative provider studies can help to assess whether the first provider’s efforts at systemic change have been successful.”

I meant to cabin my argument to law school clinics.  And I do understand that there may be very rare cases where collecting outcomes will hurt clients (such as deportation).  But what about a clinic that focuses on “systemic change.” Let’s assume that subsidizing such a clinic would be a good thing for a law school to do (or, put it another way, we think it is a good idea for current law students to incur more debt so that society gets the benefit of the clinics’ social agitation).  Obviously, randomization of client outcomes would be a terrible fit for measuring the success of such a clinic.  It would be precisely the kind of lamppost/data problem that Brian Leiter thinks characterizes much empirical work.

But that doesn’t mean that randomization couldn’t be useful in measuring other kinds of clinic outcomes.  What about randomization in the allocation of law student “employees” to the clinic as a way to measure student satisfaction in the “learning outcomes“? Or randomization of intake and utilizing different client contact techniques as a way of measuring client satisfaction with their representation (or feelings about the legitimacy of the system?)  One thing that the commentators in this symposium have tried to emphasize is that winning & losing aren’t the only outputs of the market for indigent legal services.  Controlled study of the actors in the system needn’t be constrained in the way that Jim and Cassandra’s reply to my modest proposal to mandate randomization suggest.