A group of wonderful GW Law students (some pictured) tweaked that in an awareness- and fund-raiser, called Justache, to make it about the Equal Justice Foundation, which funds stipends for law students working in the public interest. Begun last year, Justache invites participants to register in early November clean-shaven. For the rest of the month, men have to let the upper-lip grow and keep the rest of their face relatively clean. Women participate using [...]]]> The global movement to promote men’s health issues, Movember, led GW Law students to adapt it to raise money to support public interest law service. The idea behind the Movember movement is that men grow moustaches in November to raise money and awareness for men’s health issues, especially prostate and testicular cancer.

A group of wonderful GW Law students (some pictured) tweaked that in an awareness- and fund-raiser, called Justache, to make it about the Equal Justice Foundation, which funds stipends for law students working in the public interest. Begun last year, Justache invites participants to register in early November clean-shaven. For the rest of the month, men have to let the upper-lip grow and keep the rest of their face relatively clean. Women participate using fake mustaches, glued, drawn or otherwise.

Participants must raise pledges of at least $15 weekly during the month. The participant raising the most money wins first prize in the competition. Last year, most contributions came from friends passing along a dollar or two, but there were a couple big donations. With about ten competitors in 2008, Justache raised about $3,000. The fund-raiser winner was Katie Taylor, winning a $150 prize. The honor of best mustache went to Jeremy Abbott. 

This year, more funds are expected. There are 35 participants signed up, including 4 women and 3 professors, with pledges raised and photographs appearing here (and rules are here).  There is also a gala dinner this year, tomorrow night, where a couple dozen guests, mostly GW Law students, are paying $75 each to attend.

I was the lucky recipient of an invitation and look forward to a delightful evening with this group. (I wasn’t asked to pay the entrée fee but how can I resist contributing at least that for this wonderful cause?)  Rumor is other guests may include Members of American Mustache Institute and selected Members of Congress sympathetic to the cause.

The only other school GW Law’s Justache promoters are aware of that’s done anything similar is Georgetown, although it seems to have been abandoned.   An old post on mustaches from the WSJ Law Blog has a defunct link to their competition. Also, as GW Law student Dan Martin put it to me, “they apparently did it in the spring, rather than the sacred month of Movember.”

Kudos to all GW Law students behind this, with special thanks to Dan Martin (on the right in the photo here) and Greg Crespo (in the center) for the leadership and Dan for the information and dinner invite!

I am happy to have this opportunity to reconsider my earlier post, which generated a lot of comments.  So let’s go over Spencer’s ideas as well as some of the comments on my previous post.

The basic idea of my previous post was that the amount of time devoted to a subject in a law school course does not have to be proportional to the amount of time students will spend on that topic in their actual practice — if that was required, civil procedure would be primarily [...]]]> Another Concurring Opinions visitor, Spencer Waller, yesterday offered this post in response to my recent post on curricular reform.  Spencer agrees with my basic idea while challenging the usefulness of spending quite so much time on personal jurisdiction in civil procedure.

I am happy to have this opportunity to reconsider my earlier post, which generated a lot of comments.  So let’s go over Spencer’s ideas as well as some of the comments on my previous post.

The basic idea of my previous post was that the amount of time devoted to a subject in a law school course does not have to be proportional to the amount of time students will spend on that topic in their actual practice — if that was required, civil procedure would be primarily about discovery practice with much less time devoted to personal jurisdiction and Erie.  My reason was that law school is not so much about learning particular skills and knowledge as it is about acquiring the ability to acquire skills and knowledge.

This basic thesis came in for a lot of critical comments.  “Mike” and “shg” kicked things off by suggesting that I was in the wrong job and that I was making my students suffer by teaching a philosophy of law course instead of giving students the skills they need to become lawyers.  Mike said that “In Civil Procedure, we should have learned the Federal Rules of Civil Procedure as they are actually applied,” which means “a lot of mundane memorization and synthesi[s] of many inter-related rules. That’s it.”

I disagree with these comments, particularly with the suggestion that students only need a lot of mundane memorization of rules and “that’s it.”  There are many reasons for this.

Real practice is not just about mundanely applying rules.  In my own practice of law, prior to entering academia, I was constantly amazed at how frequently, in routine situations that must arise every day, the law was utterly unclear.  As a real practicing lawyer, I was constantly called upon to sort through conflicting opinions as to what the applicable rule was.  No amount of memorization could have helped me.  It was up to me to discern the rule from, and argue for the rule based on, conflicting authorities.  That is the skill students acquire from considering matters from a more doctrinal, policy-oriented, and theoretical perspective.

The law also changes all the time.  Suppose, in teaching civ pro ten years ago, I had avoided all theory and had just required my students to memorize the rules and requirements for complaint drafting as they existed at that time.  The Supreme Court recently blasted those requirements to smithereens in Twombly and Iqbal.   Now what?  Oh, you say, the student (now the lawyer) will now just rote-memorize the new rules.  But how is the lawyer to know what the new rules are?  Everyone’s still struggling to interpret the Supreme Court’s pronouncements.  The lawyers who will gain an advantage by knowing the new rules are not going to be rote rule memorizers, but those who are best able to discern the new rules, which requires not just reading them from the opinions (because there is widespread disagreement as to what the opinions means) but a fine sense of how the opinions fit with the whole subject of civil procedure and what the trend is.  It requires skills not available to rote rule-memorizers.

A student who has done nothing more than memorize a set of rules is not going to be well positioned to understand and memorize new rules.  That takes the skill of knowing how to acquire knowledge.  The student who has the latter skill can learn the rules that become relevant in the student’s actual practice after graduation, but someone who has done nothing but memorize rules will be ill suited to handle the changes that constantly come up.

This point also addresses another commentor’s question, about why I thought it important for students to understand how legal change interacts with social change (I observed that personal jurisdiction provides an excellent illustration of this point).  Lawyers need to know this because the law is not static.  A lawyer’s duty to the client includes anticipating where the law is going, because it might be going there right now.  A lawyer needs to understand how legal change interacts with social change because that process might be occurring right now in connection with a matter the lawyer is handling.

Of course, this whole discussion is somewhat unrealistic, just as the comments on my post were unrealistic to imagine that I don’t teach my students rules.  It is unrealistic to imagine that anyone is either solely a rule-memorizer or solely a theoretician.  A class must include both.  As my old civil procedure professor, Harold Koh (now legal adviser to the Department of State), used to say, you have to consider the law on multiple levels — five levels, in his view.  You need to have actual clinical practice skills, you need to know the black-letter rules, you need the doctrine and policy that underlie the rules, you need a theoretical and interdisciplinary perspective, and you need a critical perspective.  All of these come into play in actual  legal practice, and I teach all of them in my course, including a lot of black-letter rules and practice pointers.  But theory is an essential part of the picture.

Finally, as any teacher can tell you, a successful teacher must inspire interest in and love for the subject.  Some commenters on my previous post complained about those who have never practiced law but who imagine they can teach it.  Well, I have practiced law quite a bit, but let me complain about those who have never taught law and who imagine that they could teach it.  Let’s have one of you come in and teach a class that consists of nothing but having students memorize mundane rules about civil procedure, and I’ll teach my class, which inspires students to love civil procedure.  We’ll see whose students actually learn more.  I predict that all of the other class’s students will be asleep and won’t learn much of anything except how to hate civil procedure.

Now, with all of that under our belts, let’s turn to Spencer Waller’s post.  Spencer makes the good point that a focus on litigation procedure (not, as I understand him, a mundane rule-memoriazation focus, but more emphasis on that part of the course) rather than personal jurisdiction might be better tied to actual litigation today and might lead to a better understanding of the litigation process.  I am not wholly wedded to our customary fascination with personal jurisdiction and Erie and would be open to rethinking things.  (Although actually, at my law school, Civ Pro is divided into Civ Pro I and Civ Pro II and we have to adhere to general understandings of what goes in which part, because students may have different professors for the different parts of the course.)  But even if I altered my overall time allocations, I wouldn’t alter my overall approach, which would still devote time to policies, doctrines, and critical and theoretical perspectives, rather than having nothing but rule memorization.  Even if I increased my focus on discovery, the course wouldn’t be about memorizing every facet of every discovery rule.  There would be some of that, but more doctrinal and theoretical analysis of discovery rules.

In my view, a course that was nothing but rote memorization of discovery rules would be the course that would really make the students suffer.

If people don’t like something, the solution is often as simple as a name change.  Consider fish.  Some of the most popular fish today are renamed versions of less desirable fish.  Orange Roughy used to be called slimehead.  Chilean sea bass used to be called toothfish.  Monkfish used to be goosefish. The result of these name changes has been a dramatic increase in popularity, so much so that many renamed fish are now overfished and endangered.

The renaming trend is now spreading to academic courses. From the Boston Globe:

Boston College German studies professor Michael Resler went searching for a way to boost flagging interest in his “German Literature of the High Middle Ages’’ class a few years ago, and settled on the [...]]]>

Chilean sea bass

If people don’t like something, the solution is often as simple as a name change.  Consider fish.  Some of the most popular fish today are renamed versions of less desirable fish.  Orange Roughy used to be called slimehead.  Chilean sea bass used to be called toothfish.  Monkfish used to be goosefish. The result of these name changes has been a dramatic increase in popularity, so much so that many renamed fish are now overfished and endangered.

The renaming trend is now spreading to academic courses. From the Boston Globe:

Boston College German studies professor Michael Resler went searching for a way to boost flagging interest in his “German Literature of the High Middle Ages’’ class a few years ago, and settled on the idea of simply giving the course a sexier name. The resulting “Knights, Castles, and Dragons’’ nearly tripled enrollment.

Resler then replaced his class on “The Songs of Walter von der Vogelweide,’’ a great German lyric poet, with “Passion, Politics, and Poetry in the Middle Ages.’’ Again, enrollment swelled.

“I suppose the moral of the story is that we live in an age where everything has to be marketed in order to find a willing audience,’’ Resler mused.

Maybe it’s time to rename law school classes:

Torts –> Crashes and Accidents

Criminal Law –> Murder Most Foul and Other Dastardly Crimes

Trusts & Estates –> Dead Hands: Power After Death

Corporate Law –> Gold and Parachutes

Property –> The Story of a Whale and a Fox

Hat tip: Inside Higher Ed

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 [...]]]> 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!

You panic. In the words of the great Douglas Adams and [...]]]> So there you sit in the first year class. You have tracked down the assignment and read it in a vacuum. You thought you understood it. The professor seems to drone and then surprises the class with a question. Hands fly up. Bodies sink into seats. Anxiety sits next you. That was the question? That is what I should be thinking about? Someone answers. Sounds like gibberish. They are right?!? What the heck was that? How did that person know any of that? Anxiety smiles at you and sits in your lap. The class continues. You follow along and find that little makes sense. This mad, mad world scenario recurs in class after class.

You panic. In the words of the great Douglas Adams and the Hitchhiker’s Guide to the Galaxy, Don’t Panic.

Honestly, some folks may have family members who are lawyers; some may have worked around the law; some may have read extra material (often a professor’s articles but be careful about that tactic); some may have jumped in to see what happens; and some may just be that on it…for now. No matter where you are in law, you will be learning. At least I hope so. Law is not that static. In law school, you are tackling new language and a subculture. Hang in there. If you are feeling lost, work harder to find out what seems to be lacking. If folks throw words and concepts at you as if you should know them, realize that you may not yet, but you will. Although law school is not a war zone, it can resemble the book Dispatches which drops the reader into Vietnam and a world of jargon and confusion. One reads words and phrases and watches as others react while all of it is opaque. As the book progresses, undefined words and strings of acronyms are unlocked and the world is a bit more clear. Law school can be scary. Don’t let that get you down.

And if the panic takes hold (or not) try the song below, “Panic Switch” (lyrics here) by Silversun Pickups (I recommend going to 11). If you like it, play it a few times, revel in the way it captures how panic can take over and (to me at least) the suggestion that you have a choice in overcoming it or letting it swallow you up. After you have wallowed and flung about in the sensation, let it pass. Then get back to work. After all there’s always more reading to be done.

Panic Switch – Silversun Pickups

Furr – Blitzen Trapper

Hat Tip: Chuck as the show played the song in one of the episodes, Chuck vs. the Delorean. Ah synyergy! This link has the list of songs in each episode too.

Assuming the economy bounces back, law firms will need to ramp up hiring to cope with the increased workload, particularly after laying off many associates, but it seems likely that law firm hiring at law schools will be very different. The economic downturn is a shock to [...]]]> On-campus interviewing is already underway at many law schools, and law students are obviously worried about their job prospects this fall. According to NALP, law firms had already cut back their hiring dramatically last year compared to the year before. Based on early feedback from law students and firms so far, as well as the number of firms that are forgoing summer programs altogether for 2010, it doesn’t look good for 2Ls interviewing on campus right now.

Assuming the economy bounces back, law firms will need to ramp up hiring to cope with the increased workload, particularly after laying off many associates, but it seems likely that law firm hiring at law schools will be very different. The economic downturn is a shock to the hiring system that has been in place for decades now—heavy recruiting of 2L students into lavish summer programs, with a high percentage of those students receiving permanent offers during the following fall of their 3L year. Right now, some firms are simply doing away with summer programs for the time being and freezing entry-level hiring out of law schools. Almost all big law firms are limiting the size and duration of their summer programs, and many are deferring the start date by six months to a year for new permanent associates who receive offers out of their summer programs.

I wonder how many of the new changes to law firm recruiting and summer programs will be permanent and remain after the economy bounces back.

On the more dramatic end, law firms that have frozen recruiting at law schools at the moment might decide not to run summer programs even after they begin to ramp up hiring once again. Hiring 3Ls, or recent graduates on the spot market, would offer law firms a longer track record for each student on which base hiring decisions and save the expense of sponsoring a summer program. Summer programs were a way for law students to acclimate to a firm’s culture and practices, while allowing the firm a chance to observe and get to know law students without formally committing a permanent offer to them. However, summer programs were famously expensive, produced less real work than firms might have liked, and as a practical matter, resulted in most or all summer associates receiving permanent offers anyway. If enough law firms decide summer programs aren’t worthwhile anymore, then firms that try to hire all or most of their entry-level associates as 3Ls or recent graduates, without running them first through a summer program, won’t suffer a competitive disadvantage in recruiting talent.

At minimum, even law firms that continue to recruit 2Ls into summer programs will curtail the lavishness, size, and duration of those programs on a permanent basis compared to what they were during the past twenty years. Boston firms have long limited the duration of their summer programs from May through July, but firms in other big cities, at least when I was a law student, typically didn’t cap the number of weeks that summer associates could work. During my 2L summer (in 1998), I worked and was paid for seventeen weeks as a summer associate, almost to the end of September. This summer, however, I understand that at least one major firm closed its program by July 4. I would be shocked if limits on when and how long summer associates can work aren’t made permanent at big firms across the country, in addition to lower summer salaries and higher expectations going forward.

1.  I remain baffled about what benefit the plaintiffs (graduates of out-of-state law schools)  expect to receive from this suit.  They have asked for an injunctive order striking a few words from the Wisconsin Supreme Court rule on bar admission.  The result of this proposed edit is that Wisconsin would offer the diploma privilege to all graduates of ABA-accredited law schools.  But as Judge Posner pointed out in his opinion, the state could also remedy a commerce clause violation by requiring graduates of Wisconsin law schools to take the bar exam.  Does [...]]]> Yesterday the Seventh Circuit reversed the dismissal of the class action challenging Wisconsin’s diploma privilege as a violation of the commerce clause.  (I previously posted about the case here. ) A few thoughts about this latest development:

1.  I remain baffled about what benefit the plaintiffs (graduates of out-of-state law schools)  expect to receive from this suit.  They have asked for an injunctive order striking a few words from the Wisconsin Supreme Court rule on bar admission.  The result of this proposed edit is that Wisconsin would offer the diploma privilege to all graduates of ABA-accredited law schools.  But as Judge Posner pointed out in his opinion, the state could also remedy a commerce clause violation by requiring graduates of Wisconsin law schools to take the bar exam.  Does anyone really believe that Wisconsin would do anything other than what Judge Posner has suggested?  Talk about the potential for a quick race to the bottom!  Even if they are victorious, the plaintiffs will be in the same position as when they started:  they will have to take a bar exam to practice in Wisconsin (or practice in another state for five years).

2. Judge Posner referred to the diploma privilege as favoring the economic interests of Wisconsin law schools, because prospective students who want to practice in Wisconsin have an incentive to attend the University of Wisconsin-Madison or Marquette.  This is undoubtedly true in theory, but I wonder how many applicants this incentive actually yields.   First, how many people dream of practicing law in Wisconsin who don’t already have a connection to the state?  I suspect that most people who plan to practice in Wisconsin are already living there or grew up there and would like to return.  This would make an application to Madison or Marquette likely in any event (particularly an application to Madison, which offers an in-state tuition discount).   Second, prospective law students tend to be extraordinarily optimistic about their potential for academic success and, by extension, their ability to pass a bar exam.  The exam is also more than three years removed from the decision about where to attend law school.  While the diploma privilege may occasionally tip the scale, I suspect most applicants make their decision based on more immediate factors:  prestige, physical plant, cost,  location, etc.  I doubt that the diploma privilege attracts many additional applicants to Wisconsin law schools or discourages many applicants who would like to eventually practice in Wisconsin from attending an out-of-state school.

3.  As the case returns to the district court, the most important question is whether the state can prove that Madison and Marquette offer courses that teach Wisconsin law and are therefore different than courses offered at other ABA-approved law schools.  At oral argument, Judges Posner and Wood were quite skeptical that the state would be able to offer this proof.  (Gordon Smith, a former Madison professor, blogged about this here.)  While I cannot speak about Marquette or about the current state of affairs at Madison, I am confident that 12 years ago (when I was a law student) Madison would have been able to satisfy the court.  Were my antitrust or federal courts courses different than what was offered at other schools?  No.  But in the courses that were necessary to qualify for the diploma privilege, I learned a lot of Wisconsin law, even when my professors chose to use national textbooks instead of their own materials.  Gordon Smith wrote that the faculty at Madison have “an unusually strong attachment to the home state’s law.”  When I was a student, I would have described it a bit differently:  I thought the faculty perceived itself as having an obligation to teach Wisconsin law because it knew that students who remained in the state would not take the bar exam.

One possibility, of course, is that students who are thinking about law school will start wondering whether it’s a good investment. Incurring huge debts when there is doubt about the availability of jobs at the end of the rainbow is risky.  If there is a decline in law school applicants (or a shift to less expensive schools) that might put [...]]]> As many of you know all too well, times are tough in the legal market.  Abovethelaw.com continues to track a steady stream of layoffs, salary reductions, and deferrals at major firms.  While this may be a temporary phenomenon caused by the severity of the Great Recession, some people are starting to ask deeper questions about what this might mean for the current model of legal education.

One possibility, of course, is that students who are thinking about law school will start wondering whether it’s a good investment. Incurring huge debts when there is doubt about the availability of jobs at the end of the rainbow is risky.  If there is a decline in law school applicants (or a shift to less expensive schools) that might put some institutions out of business.  Others suggest that the ABA should consider a two-year degree program to reduce costs, or should emphasize externships or apprenticeship relationships to help students get jobs after they graduate.

At a minimum, we should try to set a positive example of cost containment.  In this respect, I was disappointed to learn that the Maurer Law School of IU- Bloomington (which is the sister of my school) has received preliminary approval for a 24.5% tuition increase for in-state students.  This increase is curious because the Maurer School has received over $100 million in gifts during the past two years. You would think that some of this largesse could be used to help students out in these difficult times.

Columbia Law Review, Volume 109 Issue 4 (May 2009)

Articles

An Aggregate Approach to Antitrust:  Using New Data and Rulemaking to Preserve Drug Competition

C. Scott Hemphill

Revealing Choices:  Using Taxpayer Choice to Target Tax Enforcement

Alex Raskolnikov

Notes

Between Healthy and Hartman:  Probable Cause in Retaliatory Arrest Cases

The Lorax State:  Parens Patriae and the Provision of Public Goods

Essay

Federalization Snowballs:  The Need for National Action in Medical Malpractice Reform

Abigail R. Moncrieff

Back in May, Gail Collins editorialized on “the epicenter of the college loan strangeness,” guaranteed student loans. For such loans, she says, the following holds:

We the taxpayers pay the banks to make loans to students.

We the taxpayers then guarantee the loans so the banks won’t lose money if the students don’t pay.

We the taxpayers then buy back the loans from the banks so they can make more loans to students, for which [...]]]> I know, you’re expecting a post on the new compensation czar. But before commenting on that, I want to think a bit about the way in which Sallie Mae–once a GSE, now “fully privatized”–may amount to a de facto end-run around the usual pay scales for government work.

Back in May, Gail Collins editorialized on “the epicenter of the college loan strangeness,” guaranteed student loans. For such loans, she says, the following holds:

We the taxpayers pay the banks to make loans to students.

We the taxpayers then guarantee the loans so the banks won’t lose money if the students don’t pay.

We the taxpayers then buy back the loans from the banks so they can make more loans to students, for which we will then pay them more rewards.

As she noted in another column, “The White House believes that if it cuts out the middlemen, and just gives the loans to the students directly, it can save $94 billion over 10 years.”

Predictably, the middlemen have furiously lobbied to preserve their prerogatives. Sallie Mae has “hired two prominent lobbyists, Tony Podesta, whose brother, John, led the Obama transition, and Jamie S. Gorelick, a former deputy attorney general in the Clinton administration.” The lobbyists are to press the case that private lenders create value via “marketing, customer relations, billing, default prevention and collection of delinquent loans.” Collins counters that “The real competition among the lenders is not to win over students so much as the school financial aid officers . . . [leading to] thinly disguised bribes and kickbacks.” The Wall Streeting of higher education encourages such shenanigans.

I only have a couple of comments on the situation.

First, I have to wonder if we really can say that Sallie Mae has been fully privatized. All the guarantees it enjoys suggest a great deal of government intervention here. It spent $2,758,700 for lobbying “in the first half of 2007, and gave $572,000 to federal candidates in the 2006 election.” Though perhaps it’ll never be a state actor under what Michael Froomkin calls “our deeply twisted and narrow state action jurisprudence,” it seems more like an agency of the government (or perhaps a QUANGO?) than a contractor. Stephan Padfield gives several compelling reasons to think of such entities in this way.

So while Sallie Mae has many of the prerogatives of an agency, it can pay very high salaries to executives–such as the $13.2 million earned by its vice chair last year. Perhaps the ultimate rationale for keeping Sallie Mae around is to break the Procrustean bed of the Government Pay Scale. Do readers have any other rationales to offer? If it is superior to direct federal lending in “marketing, customer relations, billing, default prevention and collection of delinquent loans,” is that superiority worth $94 billion over 10 years? I think Chris Sagers’ article “The Myth of Privatization” (59 Admin. L. Rev. 37) suggests an answer to that question:

the basic choice in the organization of society is not between organization by government bureaucracy on one hand, and markets on the other–a choice that is assumed in the privatization literature. Rather, the basic choice is between two kinds of bureaucracy, which really do not differ much at all. Indeed, the chief difference seems to be that one of them lacks even a nominal obligation toward the public interest.

If the student loan status quo continues, Sagers’ pessimistic conclusion may well be warranted.*

*The pessimistic conclusion: “We have evolved to a state in which neither the individual franchise nor individual buying and selling decisions have any real significance at all, and all individual decisions are constrained by an astonishing array of restrictions set in ways that are neither democratic nor efficiently incentivized.”

Celia Barnes’ ex-boyfriend created fake profiles in her name on Yahoo.  Moreover, as the court relates:

The profiles contained nude photographs of Barnes and her boyfriend, taken without her knowledge, and some kind of open solicitation, whether express or implied is unclear, to engage in sexual intercourse. The ex-boyfriend then conducted discussions in Yahoo’s online “chat rooms,” posing as Barnes and directing male correspondents to the fraudulent profiles he had created. The profiles also included the [...]]]> The Ninth Circuit recently decided Barnes v. Yahoo!, a case with some very interesting holdings relating to the Communications Decency Act § 230 as well as promissory estoppel.  I wrote about this case briefly in my book, The Future of Reputation, long before it made it up to the Ninth Circuit.

Celia Barnes’ ex-boyfriend created fake profiles in her name on Yahoo.  Moreover, as the court relates:

The profiles contained nude photographs of Barnes and her boyfriend, taken without her knowledge, and some kind of open solicitation, whether express or implied is unclear, to engage in sexual intercourse. The ex-boyfriend then conducted discussions in Yahoo’s online “chat rooms,” posing as Barnes and directing male correspondents to the fraudulent profiles he had created. The profiles also included the addresses, real and electronic, and telephone number at Barnes’ place of employment. Before long, men whom Barnes did not know were peppering her office with emails, phone calls, and personal visits, all in the expectation of sex.

Barnes contacted Yahoo to get the profiles taken down:

In accordance with Yahoo policy, Barnes mailed Yahoo a copy of her photo ID and a signed statement denying her involvement with the profiles and requesting their removal. One month later, Yahoo had not responded but the undesired advances from unknown men continued; Barnes again asked Yahoo by mail to remove the profiles. Nothing happened. The following month, Barnes sent Yahoo two more mailings. During the same period, a local news program was preparing to broadcast a report on the incident. A day before the initial air date of the broadcast, Yahoo broke its silence; its Director of Communications, a Ms. Osako, called Barnes and asked her to fax directly the previous statements she had mailed. Ms. Osako told Barnes that she would “personally walk the statements over to the division responsible for stopping unauthorized profiles and they would take care of it.” Barnes claims to have relied on this statement and took no further action regarding the profiles and the trouble they had caused. Approximately two months passed without word from Yahoo, at which point Barnes filed this lawsuit against Yahoo in Oregon state court. Shortly thereafter, the profiles disappeared from Yahoo’s website, apparently never to return.

The court held, as expected, that Section 230 immunizes Yahoo from Barnes’s claim that it was negligent in removing the content.   This is in line with many courts that have interpreted the scope of Section 230 immunity.

The interesting part of the court’s holding involves Barnes’s promissory estoppel claim.  For non-lawyers, promissory estoppel is a doctrine that provides that when one makes a promise to another person, and that person relies on that promise, then the promise will be treated akin to a contract.  Ordinarily a contract requires bargaining and consideration, which are often lacking with mere promises.

Barnes contended that she relied on Yahoo’s promise to take down the tortious profiles and did not pursue other avenues of relief because of her belief that Yahoo would fulfill its promise.  The court held that Section 230 didn’t immunize Yahoo against the promissory estoppel claim as it had against Barnes’s tort claims:

Subsection 230(c)(1) creates a baseline rule: no liability for publishing or speaking the content of other information service providers. Insofar as Yahoo made a promise with the constructive intent that it be enforceable, it has implicitly agreed to an alteration in such baseline.

I agree with this conclusion.  Promissory estoppel and contract claims differ from tort claims such as negligence, defamation, or invasion of privacy.  Indeed, such claims are treated very differently under the First Amendment, with tort claims receiving full scrutiny and contract/promissory estoppel claims receiving virtually no scrutiny.  In a recent paper, Neil Richards and I discuss why First Amendment law takes such wildly divergent approaches: Rethinking Free Speech and Civil Liability, 109 Columbia Law Review (forthcoming 2009).  We also argue that the line shouldn’t be drawn based on the formalist distinction between tort and contract, as this distinction readily breaks down.  For example, we conclude that the tort of breach of confidentiality should be treated akin to contract/promissory estoppel claims rather than tort claims such as defamation and public disclosure of private facts.

Back to the case.  One of the potential problems with the court’s holding is that it may deter ISPs and other sites from having an explicit policy for removing tortious material.  Yahoo could be penalized with potential liability and a loss of its immunity by having a removal policy.  An ISP or site that has no such removal policy and that would say “get lost” to people who request takedowns would not be subject to promissory estoppel liability.  Is it fair to penalize those who have such policies?

The court notes how its holding is limited:

[A] general monitoring policy, or even an attempt to help a particular person, on the part of an interactive computer service such as Yahoo does not suffice for contract liability. This makes it easy for Yahoo to avoid liability: it need only disclaim any intention to be bound.

In other words, Yahoo is liable not because it had a general removal policy, but because it made specific promises to Barnes.

Eric Goldman argues that policies can readily be redrafted.  He notes that “websites can easily manage their potential exposure to this claim by picking their words carefully.”

I hope that the Ninth Circuit’s holding doesn’t result in various sites qualifying all their promises and weakening their policies in the hopes of avoiding liability.  One of the problems with situations faced by Barnes and others is that the websites and ISPs that have the offensive information posted about victims are often not in any customer relationship with the victims.   Barnes did not contact Yahoo for a regular customer complaint with its service — she was hurt by a Yahoo customer.  The removal policies at many sites and ISPs help people who are often non-customers.  There is no particularly strong incentive for such sites and ISPs to respond to such complaints as with customers who could threaten to leave.

The court’s holding, though correct, might encourage ISPs and sites to further attempt to hide under Section 230’s umbrella by weakening promises to take down harmful content.  And that’s a problem because the original goal of Section 230 was to encourage sites to monitor and take down offensive and hurtful content.  Now the law seems to be saying loudly: You have no responsibility to protect people from harmful content about them.  If you do nothing, then you’re not liable because of Section 230 immunity.  If you promise to protect people, then you might be liable.

This reminds me of Stratton Oakmont, Inc. v. Prodigy Services Co., 23 Media L. Rep. 1794 (N.Y. Sup. 1995), where the court held that an ISP could be liable for content provided by another because it had a policy of monitoring content.  This was the very case that Congress wanted to overrule when it passed the CDA 230.

Ironically, the law of Section 230 immunity seems to have moved closer to Stratton Oakmont with the Ninth Circuit’s holding (of course, very significant differences still remain).  This isn’t the fault of the Ninth Circuit’s holding, which strikes me as quite valid.  Rather, it is due to the perverse implications of the overreaching interpretations of CDA immunity that most courts have now adopted, making such immunity near absolute for tort claims.

For further discussion of some of the other issues in the case, see Paul Levi’s post at Consumer Law & Protection Blog and Eric Goldman’s post at Technology & Marketing Law Blog.

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 [...]]]>

Richard Posner. Founder. Latter-Day Apostate?

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?

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 [...]]]> 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?

Some possibilities…

- increased research synergies?

- impact on student admissions (ie strong students in specialist areas who might not be attracted to a particular school otherwise)?

- impact on faculty recruitment (but this could be positive or negative as it may attract faculty who write and teach in the area(s) of the center(s), but dissuade those who can’t see that they would fit in to a center; also hiring decisions internally could be impacted by a perceived need to “staff the centers”)

- impact on law school identity (again, pros and cons to this one – do you want to be known as a specialist school or a generalist school, and why)?

- ability for a school to attain a high ranking in a U.S. news specialty even if the school overall isn’t particularly highly ranked?

- focus for pulling together research grant or other funding (either by themselves or in concert with other institutions or other departments of the university)

- can be instrumental in pulling together specialty curriculums (again, this can be done without centers and this may add or detract from a school depending on its overall philosophy of the curriculum)

Anything else?  Are centers good or bad overall or is it institution-specific?  Are they mainly for marketing purposes or do the roots run deeper?

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 [...]]]> 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.

In a comment on my last post, Jacqui Lipton asked about the greatest challenge that I’ve faced as Research Dean at Pitt. The short answer is that it is relatively easy to design, implement, and manage objective, observable dimensions of the faculty’s research and scholarship environment. It is very difficult to change the subjective, “internal” dimensions of that environment. Much of the job reminds me of my years teaching six- and seven-year-olds to play soccer: I could teach the rules of the game. I could teach basic skills and some rudimentary strategy. These were the objective, observable pieces. I could not teach instinct or passion, and I could not teach the idea that individual investment and collective success are inextricably linked. These were the subjective, “internal” pieces. Some girls would collect the ball at their end of the field and tear toward the other goal. Some of these were more skilled than others. Many of them intuited the proposition that individual effort and team success were linked. I’d call these players the naturals, “natural” in the sense that skills would come in time but they had a nose for getting to the right place, at the right pace. Some of them were skilled but selfish, human highlight reels, at least in their own minds, but in roughly equal portions both detrimental and helpful to the team. And there were the dandelion pickers, who would stab at the ball if it happened to roll in their direction.

Much of this maps on to the Research Dean question. (I am not the inaugural Research Dean at Pitt; one colleague held the position before I did. When I was appointed three-plus years ago, however, our (then new) Dean charged me with scaling things up.) On the objective, observable side, we have added a number of things, few of them really unique or innovative but most of them useful in one way or another: We instituted a program of regular faculty workshops, including faculty exchanges with some other law schools. We established an SSRN Research Paper Series and a program of stocking it with faculty scholarship. I built a Faculty Blog (which consists of my posting about my colleagues’ research and scholarship). I produce an annual internal report of faculty research and scholarship, including future research directions, that is independent of the information collected annually by the Dean and that is circulated to the whole faculty. I’ll save for another time, perhaps, the additional two or three paragraphs that would describe the programming and activities that I undertake or support.

All of that, however, is the relatively easy part. The challenging part is persuading the faculty dandelion pickers, as it were, to collect the ball in their own end and tear toward the other goal. The metaphor is a little overwrought, of course; I’m not misdescribing our faculty when I claim that we have no real dandelion pickers. Our faculty does, however, house a group of individuals with a broad range of subjective beliefs and expectations regarding their own research and scholarship and an equally broad range of beliefs and expectations regarding the relationship between their work and the institutional interests of the school. Changing either set of beliefs and expectations, if that is something that I’d like to do (and sometimes, it is) is very, very difficult. I can’t take for granted that every faculty member is motivated by the same goals, or that any of them necessarily subscribes to my goals, or to the Dean’s goals. Every faculty has its own range of beliefs and expectations, and its own history. There can be no assurance, as the saying goes, that lots of objective, observable programs that support research and scholarship will, in fact, produce more or better research and scholarship, or that it will produce more engaged scholars, or that the research and scholarship that a faculty produces will have greater impact in the world.

There are two obvious exceptions.  One is appointments; if a faculty (or a Dean) really wants to turn the ship, then hiring people who bring the desired set of beliefs and expectations with them is a direct way to do so. But there can be no assurance that the views of the Research Dean will have a strong bearing on the conduct of the Appointments Committee. There are always other important interests and goals at work.  Two is the scholarship of the Research Dean.  It’s important, I think, for the Research Dean to model what is expected from the rest of the faculty, and it certainly helps if the objective, observable features of the environment enrich the Research Dean’s beliefs and motivations.  For me, they certainly do.

It’s implicit in what I’ve summarized that some of the pieces of my Research Dean role are in tension with each other. It’s also implicit that if one of the things that I’m trying to do is to nurture the role of a law faculty as a kind of cultural commons (knowledge goes in to a community, gets stirred and shared, and new knowledge comes out), then measuring success – if there is such a thing in this context – requires a long-term perspective.  And it’s implicit that the Research Dean isn’t simply an appointment that any person can fill with equal success; the person who serves as Research Dean is a kind of focal or anchoring personality, a cheerleader as well as a teacher and an organizer.  A law faculty commons, like any commons (11 players, or 22, on a soccer field?), doesn’t simply happen; it’s created and managed, sometimes with greater success and sometimes with less.

In short, my biggest challenge as Research Dean — and probably an insurmountable challenge — is getting my colleagues to behave the way that I described in this older post:

I played competitive soccer until I finished high school. I played on horrible teams and magnificent teams; for coaches I had tactical masters, experienced former professionals, veterans of soccer on several continents. The best pure leader of the bunch, however, was Mark Speckman, who was my coach during my junior year of high school.

Mark was only about five years older than we were, and he was just starting his coaching career. He knew next to nothing about soccer. He had been a football player in college, earning national recognition as a linebacker at Azusa Pacific in the old NAIA. He was hanging around our school helping with the football team, when he was asked to take the reins of the soccer program for a year.

I should mention at this point that Mark Speckman was born without hands.

So picture a non-soccer playing linebacker, without hands, coaching a bunch of kids whose job it was to put a ball in the back of a net — without using their hands. He didn’t teach strategy, or tactics, or skills; he couldn’t. He was smart and a quick study, and he put 11 men on the field in mostly the right places. We did the rest. But at every practice and at every game, he was on fire. En fuego. With his energy and enthusiasm for us and for the cause, and partly simply by his own history and presence, Mark Speckman was a one-man force of nature.   One-to-one, in the group, whatever it took, Mark Speckman goaded us, cheered us, and validated us loudly and publicly whenever we made great plays and sometimes when we were merely OK but he and we all knew that better was there for the taking, with more effort. His was always the loudest, most positive, and most relentless voice on the sideline. No hands for him; no hands for us.

I honestly don’t remember our record, though we did pretty well. We were competing against schools that were five and ten times our size. Occasionally there was a college coach lurking here or there, but to my knowledge none of us went on to college careers (and a number of our opponents did). What I do remember, however, is that just about to a person, we would run through walls for Mark, and for each other.

(Yes: it’s exam-grading time in Ithaca. Expect a flurry of posts from me as I try to avoid it. If you haven’t taken your exams yet this semester, re-read Solove’s tips.)