Every lawsuit is a potential drama: a story of conflict, often with victims and villains, leading to justice done or denied. Yet a great deal, if not all, that we learn about the most noteworthy of lawsuits — the truly great cases — comes from reading the opinion of an appellate court, written by a judge who never saw the parties of the case, who worked at a time and a place far removed from the [...]]]> Paul A. Lombardo published an essay “Legal Archaeology: Recovering the Stories behind the Cases” in the Fall 2008 issue of the Journal of Law, Medicine, and Ethics.  It reminded me of the wonderful chapters in this volume of “health law stories.”  Here are some excerpts that may be of interest: 

 Every lawsuit is a potential drama: a story of conflict, often with victims and villains, leading to justice done or denied. Yet a great deal, if not all, that we learn about the most noteworthy of lawsuits — the truly great cases — comes from reading the opinion of an appellate court, written by a judge who never saw the parties of the case, who worked at a time and a place far removed from the events that gave rise to litigation.

Rarely do we admit that the official factual account contained in an appellate opinion may have only the most tenuous relationship to the events that actually led the parties to court. The complex stories — turning on small facts, seemingly trivial circumstances, and inter-contingent events — fade away as the “case” takes on a life of its own as it leaves the court of appeals.

How can a law professor correct this bias?  Here are some of Lombardo’s suggestions: 

The best starting point for doing legal archaeology is the case record itself. We all begin our investigation of cases by reading an appellate opinion. With some extra effort, we can retrieve the records and briefs that the judges relied on as they wrote that opinion. Of course, the case record that is printed for submission to an appellate tribunal will include only a small portion of the documents that make up the lawsuit’s paper trail.

Much of the material contained in the case record is now filed electronically, and for recent cases, may be available on the Web. But even for most pre-Internet cases, finding the proper repository for all these records is not difficult. A visit to your school’s reference librarian with copies of the articles referenced here should get you started.

Lombardo also suggests consulting newspapers and magazines, professional journals, and material generated by the parties and their lawyers.  Though some students may complain of “reading overload,” skillful editing can make the effort to contextualize the cases well worth everyone’s while.  I also anticipate that internet archives of particular helpful case studies will accumulate over time.

Selected References from Lombardo:

P. Brooks and P. Gewirtz, eds., Law’s Stories: Narrative and Rhetoric in the Law (New Haven: Yale University Press, 1997).

J. L. Maute, “The Value of Legal Archaeology,” Utah Law Review 2000, no. 2 (2000).

D. L. Threedy, “Legal Archaeology: Excavating Cases, Reconstructing Context,” Tulane Law Review 80, no. 4 (2006)

C. Geertz, “Thick Description: Toward an Interpretive Theory of Culture,” in The Interpretation of Cultures: Selected Essays.

X-Posted: Health Law Profs.

Here, I want to share an (arguably) interesting video with this blog’s readers.  As background, my Criminal Procedure course reader begins with the seminal Katz v. United States case.   The Katz case involved the government’s warrantless eavesdropping on an occupant of a phone booth situated along Sunset Boulevard in Hollywood.  As those of you who teach Crim Pro, or who took this course [...]]]> I’ve chipped away at the K2-esque stack of Crim Pro and Torts exams that sit on my desk. Plus, if I grade another examination right now, my margin comments will consist solely of “all work and no play makes Jack a dull boy.” So, notwithstanding my earlier prediction that grading would prevent further posts, I am allowing myself this entry as a reward and respite.

Here, I want to share an (arguably) interesting video with this blog’s readers.  As background, my Criminal Procedure course reader begins with the seminal Katz v. United States case.   The Katz case involved the government’s warrantless eavesdropping on an occupant of a phone booth situated along Sunset Boulevard in Hollywood.  As those of you who teach Crim Pro, or who took this course in law school already know, Katz is the wellspring of the “reasonable expectation of privacy” standard that has become the touchstone for Fourth Amendment analysis.

I use PowerPoints in my classes, and I’ve been searching fruitlessly for good visuals for the Katz v. United States case for some time. Stock photos of 1950s college-age kids stuffing themselves into telephone booths, movie posters for the Colin Farrell vehicle “Phone Booth,” and my simple line drawings don’t really convey the scene quite as well as I would like.

Toward this purpose, while procrastinating from grading examinations today, I came across a website that hosts several scrolling videos of the Sunset Strip in Los Angeles,  circa the mid-1960s.  I thought that one of these videos might show the fateful bank of phone booths, and in any event, continuing my search for same would provide an extremely valid excuse not to grade more exams.

According to the Ninth Circuit’s opinion below in Katz, the bank of three phone booths that Katz used was on the 8200 block of Sunset Boulevard.  And, sure enough, if one scrolls down to the fourth video on the page—the one that’s 2:48 in length—about 49 seconds in, one can see a bank of three phone booths on the 8200 block. (How do I know which block this is?  The Jay Ward studios—home of Bullwinkle the Moose, and featuring a conspicuous Bullwinkle statue in front—were located at 8217 Sunset Boulevard, quite close to the phone booths.)

I don’t know for certain that these are the phone booths involved in Katz (the caption for the video indicates it was recorded in 1967, whereas the facts in Katz took place in 1965; plus, I don’t know whether there was another set of phone booths on the [unfilmed] north side of the street), but they might well be.  Just thought I’d pass it along; even if these aren’t the same phone booths, the video conveys a nice sense of time and place for the case.

1. Criminal Procedure DVD Offer

First, this spring I hope to get around to an oft-delayed project of mine. I teach Criminal Procedure, and in that class I find it useful to show my students video clips of traffic stops, arrests, and other scenes to help illustrate some of the concepts we cover, and to press students about whether the officers’ actions, as shown, were appropriate under the circumstances.

I mostly rely on television shows (both scripted and reality) and YouTube clips for this purpose. These snippets can be entertaining. (My favorite online clip in this genre can be found at http://www.youtube.com/watch?v=lmnUx_wNqRE. I don’t use this clip, however, [...]]]> D’oh. I said that my preceding post would be the last for my guest-blogging stint, but I forgot about two things:

1. Criminal Procedure DVD Offer

First, this spring I hope to get around to an oft-delayed project of mine. I teach Criminal Procedure, and in that class I find it useful to show my students video clips of traffic stops, arrests, and other scenes to help illustrate some of the concepts we cover, and to press students about whether the officers’ actions, as shown, were appropriate under the circumstances.

I mostly rely on television shows (both scripted and reality) and YouTube clips for this purpose. These snippets can be entertaining. (My favorite online clip in this genre can be found at http://www.youtube.com/watch?v=lmnUx_wNqRE. I don’t use this clip, however, because I haven’t quite figured out how to tee it up for students, such that it has significant pedagogical value. Perhaps I should introduce it as the world’s worst search incident to arrest?) Yet the available selection leaves some gaps in my repertoire.

So, I plan on doing some filming of my own this year, to put together a more robust set of video clips to show to students. If any of you out there (1) teach Criminal Procedure and (2) would like a free copy of the DVD I hope to put together, please contact me via e-mail. I’ll put your name on a list and send you a copy once it’s done, which hopefully will occur sometime prior to the start of the fall semester.  (Emphasis here on “hopefully.”)

2. Criminal Procedure < 1965 Interview Subjects Wanted

Fifty years ago, Lawrence Ritter responded to the death of Ty Cobb by traveling around the country to collect oral histories from old-time baseball players before they, too, passed along. The resulting work, The Glory of Their Times, remains among my favorite books.

In the same vein, it recently struck me that we are now losing the last generation of criminal-law attorneys who practiced in the pre-Miranda, pre-exclusionary rule, pre-Gideon era. Someone who was 30 years old in 1960—the year before Mapp v. Ohio—is now 81 years of age. While we have a sense as to what the practice of criminal law was like back before the Rights Revolution of the 1960s, it nevertheless might be useful to speak with some of the remaining practitioners from that period to better understand the similarities and differences between that period, and ours. I’m aware of some oral history projects in a similar vein, but none that ask quite the questions I’d like to ask.

I already have started to identify these practitioners, but here, I ask for your help. If any of you know someone who used to practice criminal law back in the 1950s and early 1960s—be it a prosecutor or defense attorney (or judge)—who wouldn’t mind speaking with me, I would greatly appreciate it if you would e-mail me with their contact information. Better yet, if you are such a person yourself, please feel free to e-mail me directly.

In any event, happy holidays to you all.

I recently picked up 120 Torts and Criminal Procedure examinations, which I must grade before the holidays.  In a related story, this will be my last guest-blogger post on the site.  Thanks to Gerard, Frank, and my other hosts for their hospitality, and to the readers of this blog for their patience.  It’s been fun, at least for me.

I’ll wrap up with another Paul Harvey “here’s the rest of the story” narrative, which may be useful to those of you who teach Torts. (The rest of you will probably want to skip this one.)  This entry will discuss Hammontree v. Jenner, a 1971 California Court of Appeal decision.

The Hammontree court rejected the plaintiffs’ contention that strict liability, instead of negligence, should [...]]]>

Schoolhouse Ruins, Metropolis, NV

I recently picked up 120 Torts and Criminal Procedure examinations, which I must grade before the holidays.  In a related story, this will be my last guest-blogger post on the site.  Thanks to Gerard, Frank, and my other hosts for their hospitality, and to the readers of this blog for their patience.  It’s been fun, at least for me.

I’ll wrap up with another Paul Harvey “here’s the rest of the story” narrative, which may be useful to those of you who teach Torts. (The rest of you will probably want to skip this one.)  This entry will discuss Hammontree v. Jenner, a 1971 California Court of Appeal decision.

The Hammontree court rejected the plaintiffs’ contention that strict liability, instead of negligence, should govern a tort suit stemming from a driver’s unanticipated seizure behind the wheel.  Unlike Summers v. Tice, which I discussed in a previous post, Hammontree has not cast a substantial precedential shadow. The appellate opinion is short, and gives little sign that the court considered the issue presented to be especially difficult.

The significance of the Hammontree decision derives from its leadoff spot in Franklin, Rabin & Green’s casebook Tort Law and Alternatives, which I use in my Torts class.  (I’ve spoken to both the defense attorney at trial in Hammontree and the defense attorney on appeal; both were quite surprised that the case found its way into a textbook.)  The authors leverage the case in a variety of ways, using it to introduce the distinction between strict liability and negligence, along with themes such as legal ethics, the mechanics of a tort case, and the nature of precedent.

Last year, I went down to Los Angeles court archives and dug up copies of the original court filings in Hammontree for the use of my students, and others.   If anyone is interested in these documents (I find it quite helpful to show novice one-L students what a complaint, answer, motion for summary judgment, etc., look like, which goes a long way toward demystifying these documents), I’ve given them to Christopher Robinette over at the TortsProf blog, who kindly has posted them here.

The documents didn’t contain any big surprises, but they did harbor a few facts that may be interesting and useful to those of you who teach the case.  Now that I’ve scared off (or bored to death) 99 percent of this blog’s readers, I’ll explain to the hardy few who remain, after the jump.

The Scene

First, using information in the court documents, you can track down pictures of the site of the accident in Hammontree, to help students visualize what happened.  The crash occurred at Dale and Maxine Hammontree’s Sun Valley Bike and Hobby Shop, which the complaint reveals was located at 7563 Tujunga Avenue in the Sun Valley neighborhood of Los Angeles.

The building that presently stands at that address can be located using the Google Maps function; given its appearance, it may well be the same structure that Jenner crashed into back in 1967.  (Just type in the 7563 Tujunga Avenue address, then use the direction arrows to scroll down the street to the intersection of Tujunga Avenue and Saticoy Street; 7563 Tujunga Avenue is a building with many windows, at the intersection.  As of December 14, 2011, Google Maps shows the address as being occupied by a Video Hut store.)

The Attorneys

For their attorney, the Hammontrees hired Joseph Hurley, a well-respected personal injury attorney from nearby North Hollywood. Hurley passed away in 2009, after a lengthy career in which, among other honors, he served on the Board of Governors of the California State Bar.

Jenner’s insurance agency retained the law firm of LaFollette & Johnson to defend the suit. Shortly after an answer was filed, the case was assigned to a junior attorney at the firm, Patrick Hast. Hast had just been admitted to the bar in January 1969; Hurley, by comparison, had been practicing law since 1953. (I stress to my first-year students that they, too, could be trying a case like Hammontree one year out of law school. It’s unlikely these days, but possible.)

The Trial

The August 1970 trial lasted three days. Maxine and Dale Hammontree testified on their own behalf; Thomas Jenner and Dr. Benson Hyatt testified for the defense. Only three exhibits (medical and hospital bills, and a cancelled check) were admitted into evidence, all by the plaintiffs. When it came time to decide upon jury instructions, the judge rejected a plaintiffs’ instruction on strict liability, as discussed in the appellate opinion. The court also rejected a defense instruction to the effect that “The mere fact, standing alone, that he defendant had a history of an epileptic condition does not create any inference that he was negligent at the time of this accident.” Instead, on its own motion the court instructed the jury with a standard res ipsa loquitur instruction. Hurley waived argument, Hast did not, and the jury of four women and eight men retired to deliberate at 1:35 p.m. Thirty-nine minutes later, the jury came back with a unanimous defense verdict.

For insight into perhaps the most perplexing aspect of the Hammontree case—the plaintiffs’ decision to withdraw their negligence theory and proceed solely on strict liability—I contacted, and traded e-mails with Patrick Hast (who has provided me with permission to republish our communications).

Mr. Hast advised me that “Joe Hurley, a very fine lawyer and former State Bar president, no doubt felt that he would have a tough sell on a negligence count because Jenner was an honest and upstanding guy who the jury could relate to . . . . Beyond that, I think that Joe saw an opportunity to make new law. When the court declined to give strict liability instructions Joe figured on an appeal and secured his clients’ agreement to proceed as he did. I was a neophyte lawyer at the time and was startled by his decision to waive argument. Having refused to give the strict liability instructions, the Judge felt that he [had to] give the negligence instructions from an abundance of caution.”

It’s worth mentioning here that Hurley had moved for summary judgment on the issue of liability, advancing a strict-liability argument at that time, as well (the motion was denied, of course); furthermore, his complaint alleged a strict liability theory of recovery.   (As I write this, I see that I did not send Christopher Robinette Hurley’s MSJ.  Oops.  I’ll get it posted somewhere online shortly, and reference the link in a comment below.)

8. Frequent integration of trendy words and phrases like “jeggings,” “Winning!” and “Tebowing” into article titles

7. Legally changing my name to “Eddie Murphy” for one month prior to, and following, the posting of each new piece, because if Eddie Murphy were to write a law-review article, that would really be something else

6. Ill-fated promise to students that if I get up to 5,000 total downloads, A+ grades for everyone, unless I don’t like them

5. Offering Charlie Sheen $2,500 to rave about latest article on Twitter

4. Having article titles painted on the sides of the turkeys thrown from the WKRP helicopter pursuant to their Thanksgiving giveaway

3. Extensive unsuccessful efforts to have Oprah name “Why Torts [...]]]> 9. Offering Justin Bieber $2,500 to rave about latest article on Twitter

8. Frequent integration of trendy words and phrases like “jeggings,” “Winning!” and “Tebowing” into article titles

7. Legally changing my name to “Eddie Murphy” for one month prior to, and following, the posting of each new piece, because if Eddie Murphy were to write a law-review article, that would really be something else

6. Ill-fated promise to students that if I get up to 5,000 total downloads, A+ grades for everyone, unless I don’t like them

5. Offering Charlie Sheen $2,500 to rave about latest article on Twitter

4. Having article titles painted on the sides of the turkeys thrown from the WKRP helicopter pursuant to their Thanksgiving giveaway

3. Extensive unsuccessful efforts to have Oprah name “Why Torts Die” as her Book of the Month

2. “Rick-Rolling” people over from Cass Sunstein’s latest article on SSRN

1. Prominent advertisements that each article is guaranteed to be “100 percent Kardashian-Free”

There was no one else about; the hour was late, the staff and students had left. As I wandered about the stacks, one tome caught my eye. The gold lettering on its spine twinkled in the candlelight. I reached out for it – or did it reach out for me? – and, I swear [...]]]> Shortly after I joined the faculty at Santa Clara Law, I wandered into the area of our library dedicated to a collection of Arcana and Occult texts. (Disclaimer: This section of the library does not, in fact, exist.) My goal: to find advice for drafting my first set of law-school examinations. I was concerned about making my exams too easy, and wanted some tips on how to construct tough, but fair, tests.

There was no one else about; the hour was late, the staff and students had left. As I wandered about the stacks, one tome caught my eye. The gold lettering on its spine twinkled in the candlelight. I reached out for it – or did it reach out for me? – and, I swear to this day, it leapt off the shelf and sprung open in my hand.

The page that revealed itself bore the image of a man dressed in ancient professor’s garb; of what precise vintage I could not tell, and there was no caption to disclose his identity. Instead, next to the portrait on the yellowed, crumbling page lay this text, written in what I hoped beyond hope was simply reddish-brown ink: “Ye Olde Professor’s Guide to Building an Exam Curve.”

Eureka! This was precisely what I had been looking for, so I read on. I will spare the reader a full recitation of the text that followed, save to say that H.P. Lovecraft himself might have claimed its contents. To ensure that my eyes, and my eyes alone, are the only ones scarred by what these pages revealed, I will simply summarize the advice it conferred, for professors and students to do with what they will. Much of this counsel concerned the concoction of Torts examinations, but may cast its dark shadow elsewhere.

The Guide related five tips:

1. Divide and Conquer

First, the accursed manual advised me to space the facts pertinent to a given issue far apart in a fact pattern. Are you a Torts professor, testing negligence per se? If so, relate the statute or ordinance in question at the very start or very end of the fact pattern, several paragraphs away from your discussion of the conduct that might implicate the measure. Or are you a Criminal Procedure professor, testing the good-faith exception to the exclusionary rule? Reference the date of the incident―say, November 2008―in passing in your introductory sentence, along with several other foundational facts; hold back on mentioning any search of the passenger compartment of a vehicle incident to arrest until a few paragraphs later; and, a few paragraphs after that, finally mention, in as offhand a manner as possible, that the resulting case is being tried in December 2011.  Voila—only the most careful exam connoisseurs will detect that you have laced their drink with a Belton/Gant/Davis good-faith issue.

2. Overlapping Theories, and Peripheral Plaintiffs and Defendants

Here, the guide recommended that I incorporate multiple theories of liability against a potential defendant; students may lock in on only one, and neglect the others. Likewise, defendants such as retailers in a strict products liability hypothetical, employers in a respondeat superior fact pattern, and landowners when intentional tortfeasors are afoot often prove difficult for students to spot, if only because their culpability seems so much less than that of other potential parties.  In the same vein, in a passage I cannot help but quote directly (for I could not have written it myself), the Guide advised, ”You will find that passing references to husbands and wives, who might have easily-overlooked wrongful-death or consortium claims, will oil the slope of your curve with student tears.”

3. Dogs that Don’t Bark

The Guide instructed that the best issues, from the standpoint of creating a curve, are those that do not require extensive factual build-up, or peculiar words or phrases that will blow their “disguise” (cf. any reference to “dynamiting” in a Torts examination), but which have a huge impact on the correct answer nevertheless. With Criminal Procedure, standing (in a situation involving multiple defendants) is just this sort of issue; with Torts, but-for causation can have a similar effect―so long as one avoids the word “caused.”

4. Sleight of Hand

Here, the Guide told me, begin by writing your fact pattern such that a particular issue looks like a slam-dunk, with a particular party getting his or her just desserts. Have a drunk driver blow through a stop sign and mow down a nun; he’s guilty of negligence, at least, of course. Or, notwithstanding Rule Three, supra, use variants of the word “conspiracy” to describe a cabal, e.g., “A and B conspired to rob a bank”; they’re clearly guilty, right? Feel free to employ adverbs liberally toward this purpose, e.g., “C cruelly drove drunk and cruelly blew through a stop sign and cruelly mowed down a nun.”

Then, Step Two: Subtly structure the facts such that A, B, and C in fact cannot be found liable. Maybe the nun was pushed in front of the drunk driver, such that even a sober driver who obeyed all traffic laws would have struck her. You get the idea. This way, a student’s moral intuition may cause them to overlook the more subtle reason why, in fact, the defendant can’t be found liable, or successfully prosecuted for a crime.

5. The Ghost

Perhaps most diabolically, the Guide advised me that the best cause of action is sometimes no cause of action at all. Students, it instructed, want to find causes of action, crimes, or other violations of the law within an issue-spotter; an exam that implicates innumerable theories, all of which fail for some reason or another, will prove especially vexing to all but the most confident students.

***

The reader will have to accept my account of this text’s existence, for as soon as I read the last words above the book shuddered and shook in my hands, then crumbled into dust.  Whether the text yielded wisdom, or only heartbreak, I cannot say; I recount this story solely for posterity, and desire not to be seen as an advocate of its mayhap baleful words.

1. The Repository of Hope

“As the single-word title connotes, I am very disappointed that this article did not place in a T14 journal.”

2. The Strained Debunker

“In Part I, I will characterize a 1974 Pace Law Review note and a 2007 MySpace entry as embodying ‘conventional wisdom.’ ”

3. The Old-Wine-In-New-Bottles

“No one has evaluated the rule against perpetuities from an animal-rights perspective before, so, you know, what the hell.”

4. The One-Off

“In my previous article, I made a significant contribution to the literature. In this piece, I will coast on the vapors of that article.”

5. The Something Is Unconstitutional

“This article would make a fairly solid student [...]]]> This is simply my list of the eight most suspect types of articles; I appreciate that others may suggest different, or additional, entries.

1. The Repository of Hope

“As the single-word title connotes, I am very disappointed that this article did not place in a T14 journal.”

2. The Strained Debunker

“In Part I, I will characterize a 1974 Pace Law Review note and a 2007 MySpace entry as embodying ‘conventional wisdom.’ ”

3. The Old-Wine-In-New-Bottles

“No one has evaluated the rule against perpetuities from an animal-rights perspective before, so, you know, what the hell.”

4. The One-Off

“In my previous article, I made a significant contribution to the literature. In this piece, I will coast on the vapors of that article.”

5. The Something Is Unconstitutional

“This article would make a fairly solid student note. It is my tenure piece.”

6. The Turf Staker

“My pre-emption check discovered no articles that cover this territory. I pretty much worked backward from there.”

7. The Half-Hearted Symposium Submission

“We would have tried harder, but hey, we’re talking about a symposium here.”

8. The Torn from the Headlines

“Few would recognize that the United States Supreme Court’s recent decision in ___ vs. ___ would fundamentally alter ___ law. Yet it did, or at least, you won’t be able to prove that it didn’t until this article is already well on its way to publication.”

Law professors qua law professors have become engaged in topical public controversies since the early 1900s. Some law professors spoke out about the Sacco-Vanzetti trial, and many professors took well-publicized positions on Franklin Roosevelt’s court-packing plan. I am unfamiliar with any widely distributed petition as to either event, however. (Although the AALS did initiate, only to abandon, a poll of law faculties designed to gauge their support or opposition to FDR’s plan.)

The first petition I have found that specifically requested the support of American law faculties circulated almost exactly 73 [...]]]> Not long ago, I was asked to sign a petition, circulating among law professors, that condemns the recent pepper-spraying of protesters at the University of California-Davis. This invitation rekindled my interest in the origins of these petitions.

Law professors qua law professors have become engaged in topical public controversies since the early 1900s. Some law professors spoke out about the Sacco-Vanzetti trial, and many professors took well-publicized positions on Franklin Roosevelt’s court-packing plan. I am unfamiliar with any widely distributed petition as to either event, however. (Although the AALS did initiate, only to abandon, a poll of law faculties designed to gauge their support or opposition to FDR’s plan.)

The first petition I have found that specifically requested the support of American law faculties circulated almost exactly 73 years ago, in early December 1938. This petition was prepared and distributed by telegram shortly after the Kristallnacht pogroms, and read as follows:

Faculty of Law [Institution, Location]

The Faculty of Law of the University of Amsterdam invites you kindly to inform them by telegram before December ten whether your Faculty of Law would be willing to second the following resolution. The invitation being wired today to all Faculties of Law in the British Empire, United States of America, France, Netherlands, Belgium, Switzerland, Finland, Denmark, Sweden, Norway, Iceland. The Faculties of Law of the Universities mentioned below noting with sorrow and dismay that in some countries innumerable people are being persecuted and tormented on account of their faith, race or political convictions and that particularly in the so called Concentration Camps innocent people are without legal procedure subjected to inhuman treatment considering that the basic principles of justice are thus insufferably violated voice their protest against this violation in view of their duty to uphold the principles of justice and the rights of man appeal to the conscience of mankind to support them in this protest and decide to publish this resolution and to communicate it to their respective governments.

The telegram, which on its face requested the support of each contacted institution (as opposed to the endorsement of individual professors) met with a range of responses. Some American law faculties (including those at Yale, the University of Chicago, the University of Michigan, the University of California-Berkeley, and the University of Colorado) signed on to the petition. At Harvard, it was agreed that individual professors could endorse the petition, if they so chose, but that no such backing would come from the general faculty, speaking as a whole and for the institution generally.

Today, it’s assumed that individual professors, as opposed to the institutions where they work, represent the proper signatories of a petition such at the one circulated by the University of Amsterdam law faculty. Were assumptions different, one presumes that there would be a lot fewer petitions in circulation. Plus faculty meetings would become much longer.

If you pair the basic message of Segal’s piece (“law students and professors aren’t doing enough to raise corporate profits”) with that of Ed Glaeser’s anti-retirement musings in the same pages (“work into your 90s”), the ideology starts to emerge. Labor economist Mark Price pithily suggested it:

Law schools couldn’t possibly teach the wide range of firm specific skills that law firms need . . . . And yet you have a writer [pushing] propaganda that the big law firms are tired [...]]]> Jason Mazzone has already addressed the main shortcomings of the latest N.Y. Times article by David Segal on law schools. I’d like to situate it as part of a neo-liberal ideology developing at the Times and other scriveners for the powerful.

If you pair the basic message of Segal’s piece (“law students and professors aren’t doing enough to raise corporate profits”) with that of Ed Glaeser’s anti-retirement musings in the same pages (“work into your 90s”), the ideology starts to emerge. Labor economist Mark Price pithily suggested it:

Law schools couldn’t possibly teach the wide range of firm specific skills that law firms need . . . . And yet you have a writer [pushing] propaganda that the big law firms are tired of paying for on the job training.

On the other hand it is at least comforting to know that law firms are not that different from firms in Manufacturing or Health Care[;] that is[,] they would prefer that somebody else pay for the skills that make them profitable.

This is a classic problem of uneven bargaining power familiar since the 1920s.* Why are wages falling while productivity is rising? Because firms realize they can fire current workers, shift their duties (unpaid) to frightened current employees, and reap the profits of having one person do the work of many. It’s another form of “shadow work” that contributes to the time bind so many Americans find themselves in. When 65% of economic gains go to the top 1% of the population, it’s not too hard to discern this dynamic.

Of course, a firm can only pile so many unbillable hours onto existing employees. So what’s the next step? Start calling beginning work an “unpaid internship.” Complain that “kids these days” don’t know a thing; they’re “zero marginal product” workers; they don’t deserve to be paid till they’re truly experienced. (At the end of a long line of traineeships, some may find themselves discarded as “too old” or “overqualified” for what is now defined as an “entry-level” position.) This is a wonderful strategy for cutting the budgets of corporate legal departments. But it only spells doom for attorneys caught up in the corporate games once reserved for blue collar labor.

The Political Roots of Rising Un- and Underemployment in the Legal Industry

Mazzone has complained that Segal doesn’t know enough about legal education. He’s also too narrowly focused on it. There is no question that, in many sectors, there are fewer positions for attorneys. Many journalists have attributed the decline to the creeping influence of “skill-biased technological change” and outsourcing: e-discovery can be done by computer or by the asymmetrically open Indian legal market. These trends do undermine some firm business models. But James K. Galbraith has already demonstrated the weaknesses of the “skill-biased technological change story” in many contexts. Moreover, the biggest driver of legal unemployment is political: the wholesale dismantling of tort, contract, and administrative remedies for corporate wrongdoing.

As I observed back in 2008, it would be shocking if an ideological movement to shut the courthouse doors to the injured failed to threaten lawyers’ livelihood. To build on that: maybe there are less jobs for finance lawyers because the Justice Department has systematically failed to prosecute egregious white-collar crime. A “tort reform” movement has made the price of violating the law a mere cost of doing business for thousands of companies. When banks can get away with robo-signing and foreclosure fraud, why should they hire attorneys to ensure that their paperwork is actually valid? Even an ostensible regulator, the OCC, isn’t bothering to launch a serious investigation in areas where deeply troubling practices have already been documented.

Corporate promotion of tort reform, deregulation, and arbitration has saved businesses many costs, including legal fees. But it has also increased the fragility of our food and drug supply chains, accelerated a financial crisis that has already cost the US trillions in lost output, and reduced opportunities for attorneys to fight to assure that business is conducted in a fair and societally beneficial way.

To ignore the political roots of the decline of both law and the rule of law in the US (and its obvious impact on attorney employment) is to fail to even begin a serious analysis of young lawyers’ problems. Segal acts as if corporate defense is the heart and soul of legal work. He never considers how legal education works to prompt legal challenges to corporate wrongdoing. No one will have a job defending corporations if there aren’t well-trained attorneys applying old law to new corporate wrongdoing. That takes creative thought, a chance to learn the policy behind law, and engagement with current industry trends. It’s not something to be drilled into people by projecting bar prep rote back into law school.

Law as a Cost

Throughout Segal’s article, another pair of assumptions creeps in. Law is presented as a cost, a series of niggling and none-too-important hoops to jump through to get down to the real business of mergers and deals. Law professors’ research is dismissed as pure self-indulgence, as we are once again treated to Justice Roberts’ witty dig at articles devoted to Kantian Bulgarian evidence law.

Segal never stops to ask: Why might a Justice like Roberts want to discredit the legal academy? Maybe it’s because, while colleagues of mine were trying to nip the housing crisis in the bud, a phalanx of deregulators on the Supreme Court came up with a politicized preemption decision that let the good times roll for America’s most predatory banks? Maybe it’s because law professors actually have the time to document how radically Roberts and his allies have diverged from precedent? Perhaps it’s because Roberts, after long years in corporate practice, sees law profs’ efforts to reinterpret old statutes and doctrines in light of new harms (a far larger part of legal scholarship than the high theory he laments) as one more nuisance for the clients who made him a rich and powerful man?

But we need not even engage with these politically sensitive questions. Rather, we might wonder: why does philosophy stand in for Segal as archetypical legal scholarship? When I first heard Justice Roberts lament the tragic dearth of practical articles, I marveled: has he ever taken a look at Sharona Hoffman’s or Nicolas Terry’s cutting edge work on digital medical records? This emerging field raises critical questions about the balance between privacy and innovation. We cannot permit our digital health infrastructure to be constructed solely according to the corporate interests of whatever vendors and providers happen to be most powerful at the time. We desperately need more work like Hoffman’s and Terry’s to guide us through the thicket of administrative and technical issues raised by electronic medical records.

I can think of figures as eminent and important-to-practitioners as Terry and Hoffman in five areas of health law and four areas of intellectual property law off the top of my head. (Ever heard of Pam Samuelson, Mr. Segal?) Yet Segal is apparently ready to write off the entirety of legal scholarship because someone, somewhere had the temerity to write about Kant.

I can understand why a writer at the New York Times might want to lash out at maladaptive institutions. Segal is daily subjected to his paper’s opinion pages, which peddle one irrelevant or stereotypical piece after another from their tenured moderates. (You learn more from Dean Baker’s critiques of them than from the articles themselves.) Thursday Styles reports on the 0.1%’s lifestyle intently, breathlessly tracking the price of Birkin bags as if it’s news the rest of us can use. The Gray Lady is becoming less the paper of record than a chronicler of the conventional wisdom and consumption of the wealthy.

What Next?

Law students, like many others today, face a grim job market almost without precedent. But I think proposals like Segal’s—making students start corporate-type work earlier and earlier—will only exacerbate the problem by providing an ever-larger pool of free labor for firms. We need a bigger picture view of an economy where professional and rentier incomes in general must deflate to match the diminished buying power of strapped lower and middle classes.

Debt is the critical financial issue of our age. Mortgage debt, student debt, credit card debt, medical debt, sovereign debt—–all are causing social upheaval. Debt often seems like a standalone menace, a black hole sucking money (and thus time and opportunity) from the indebted. But behind every mortgage statement is a servicer, distributing those funds to buyers of income streams. Debt is the shadow side of wealth, as Margaret Atwood memorably portrayed it. You don’t have to immerse yourself in the accounting equivalences of Modern Monetary Theory to figure this out.

Congress addressed two major sources of debt recently. The credit card provisions in the 2009 CARD Act and Dodd-Frank offered some weak disclosure provisions. Look at your statements, and you’ll see exactly how many years it will take you to pay off the balance if you stick to minimum payments. Basic consumer protections are in place, but there is not much substantive relief for debtors.

However, the ACA addressed medical bills much more comprehensively. I think its provisions can be a model for balancing obligations of the individual and society in other essential areas, like housing and education. In brief: for unemployed individuals (or those who are not offered affordable insurance by their employer), health insurance exchanges will offer various health plans. Thus the notorious “individual mandate:” these persons will need to get insurance or pay a fine. But the government will offer help, in two ways.

First, to help pay for the premium, advanceable tax credits will ensure that no one pays too much of their income for insurance. How much is too much? A family of four with earnings under $40,000 should not be paying more than around 6.3% of income for premiums; for those making around $85,000, the rate rises to 9.5%. (Here is a calculator with rough estimates of how much individuals and families need to pay at certain levels of income.) This is essentially an income-based payment scheme, for people making up to 4 times the federal poverty level. Moreover, “those with incomes below 250 percent of the poverty line will also receive cost-sharing assistance” on the other side of medical bills: the copays, coinsurances, and deductibles not covered by an insurance policy. The formula is complex, but the bottom line is that the federal government assists in paying these costs based on income, as well.

Income-based repayment schemes are a part of education financing now, though many have complained that they are not sensitive enough to other costs of living. Making income-based repayment more fair, and considering other legal changes in this area, are very important political issues. Housing policy should also be more open to income-based payment of mortgages, offering options ranging from “rights to rent” to direct principal modifications.

The key point here is that the owners of the income streams from student debts, mortgages, and other sources are playing a dangerous game if they think rights to payments are as sacrosanct, as, say, the AIG bonuses. They may think that they can continue to squeeze the indebted to pay 60 or 70% of their income each month for housing, insurance, and loan debts (and for the dubious right to claim as an asset something that will eventually be worth far less than what was paid for it if current debt deflation continues). But the larger economic implications are disastrous. Consider Steve Keen’s diagnosis, as related by George Monbiot. Keen believes that both the Great Depression and the current crisis “were triggered by a collapse in debt-financed demand:”

Aggregate demand in an economy like ours is composed of GDP plus the change in the level of debt. It is the sudden and extreme change in debt levels that makes demand so volatile and triggers recessions. The higher the level of private debt, relative to GDP, the more unstable the system becomes. . . . In the 1920s, private debt rose by 50%. Between 1999 and 2009, it rose by 140%. The debt-to-GDP ratio in the US is still much higher than it was when the Great Depression began.

We are in the midst of a great readjustment. For decades we’ve been told that our economic model, as persons, was to act like corporations do, accumulating assets and rights to payment. In fact, this “ownership society” was a mirage, providing great wealth to a few at the very top and precarity to the rest. There is no way to guarantee a secure future all on one’s own. Social structure, norms, and bargaining power matter.

Neither law students nor law schools can preserve their own future simply by better learning how to serve the corporate interests that would like to eliminate all profit-menacing regulation and tort claims. Economic security is an inevitably political question, which requires a coordinated political response—not one more effort to legitimize corporate wage-slashing with a simple story about “unskilled” workers. Before the Times treats us to another “what’s wrong with law schools” story, it might want to investigate the forces of deregulation and volatile financialization that kneecapped not only the legal job market, but employment prospects generally. No one needs another piece legitimizing the “young people don’t deserve to be paid” meme of the radical right, in the guise of snide snark about out-of-touch law professors.

*I’ve addressed these imbalances many times in posts on Law & Inequality. See, for instance, Power & Productivity After the Great Recession; Inequality and the Great Recession).

Image Credit: Kevin Drum.

In the past year, lawyers have poisoned three separate personal deals of mine, over matters neither I nor the other side needed to care about.  The lawyers were hurting not helping their clients. 

Lawyers need to know, and as a law professor I try to teach, the difference between legal matters and business issues. Lawyers must know the difference and stay out of the way of business matters. 

All this prompts me to reprint below a wonderful letter from the inimitable Mayor of New York, Fiorella La Guardia.  The letter, dated January 29, 1944, is addressed to the heads of various airlines, [...]]]> As a law professor and lawyer, I like law and lawyering. But I hate as much as the next guy when lawyers get in the way of people trying to do business. 

In the past year, lawyers have poisoned three separate personal deals of mine, over matters neither I nor the other side needed to care about.  The lawyers were hurting not helping their clients. 

Lawyers need to know, and as a law professor I try to teach, the difference between legal matters and business issues. Lawyers must know the difference and stay out of the way of business matters. 

All this prompts me to reprint below a wonderful letter from the inimitable Mayor of New York, Fiorella La Guardia.  The letter, dated January 29, 1944, is addressed to the heads of various airlines, including American, Eastern, PanAm, and United. 

The  letter’s ultimate paragraph and final words speak volumes to my point, and the letter as a whole is vintage piece of written communication. 

Dear Sirs:

This is the last call on the matter of the runway layout at the new airport.

Thursday, February 3rd, 1944, at my office, City Hall, at 2:30 pm o’clock, come prepared to make any suggestions or forever hold your peace. I have heard some grousing about the present layout which I know is not justified. If you have any cockeyed ideas on tangent runways that have not yet been tried out, keep them for some other time.

I am willing to hear constructive criticism and to receive helpful suggestions.  I cannot compete against white tablecloths and soft pencils. Everyone who gets two drinks under his belt is now designing runway layouts on restaurant tables.

We will have a map here, our consulting engineer will be here, and I expect to have the matter finally, completely and definitely settled.

You may bring anyone you desire from your engineering, technical and piloting staff. Lawyers cannot contribute anything. This is not a legal matter.

Very truly yours,

F.M. La Guardia

No wonder the Mayor’s name graces New York’s most efficient airport.

My sense is that many of us are interested in teaching these courses, but the practicalities are daunting.   Two years ago, I set out to create a course that would teach students how to be corporate litigators. I had visions of teaching my students an array of [...]]]> You would have to live under a rock not to know that law schools increasingly feel the pressure to teach practical skills. Law schools can no longer teach doctrine and count on law firms to teach new lawyers the skills they need.  As a result, many schools are starting to incorporate practicum-style courses into the curriculum. These courses allow students to learn litigation or transactional skills in the classroom by working on simulated cases or transactions.

My sense is that many of us are interested in teaching these courses, but the practicalities are daunting.   Two years ago, I set out to create a course that would teach students how to be corporate litigators. I had visions of teaching my students an array of practical skills, including how to untangle financial statements, read complex statutes, and draft various case materials. It looked so good in my head. Then I actually tried to put together the course. There was no textbook. There were no model exercises. There was no anything… I spent a crazy amount of time putting together a course packet, coming up with weekly drafting assignments, and thinking about how to teach the skills I thought my students would need. I hesitate to say exactly how much time out of fear of scaring away others, but I still have flashbacks of sitting at my kitchen table for days on end trying to come up with creative fact patterns and drafting exercises.

At the end of the day, I was able to put together the materials for a course called Corporate Fraud & Litigation. I have taught the course twice now, and I really love it. But the preparation continues. I still develop new graded exercises every year out of fear that last year’s students will pass on their answers to this year’s students. The end result is that I spend significantly more time preparing for this course than for my other two courses combined.  I am currently contemplating a complete overhaul of my course, but I have to admit that the massive work involved gives me pause.

I wonder whether the reality of having to prepare these materials—and then prepare many of the exercises anew every year—is holding back the development of these courses.  At some level, of course, this preparation is part of our job, and given how great the job is, we have no basis to complain. As someone who is obsessed with curricular issues, however, I have to think it is tough to roll out a new curricular model when preparing a class under the new model takes far longer than preparing to teach a traditional doctrinal course. If I went purely by my own self-interest, there is little doubt that I would opt to teach another doctrinal course rather than a practicum course. In fact, I might even opt to teach two doctrinal courses rather than a single practicum course!

The lack of materials for practicum courses also impacts what courses adjuncts teach. Many adjuncts are really well-suited to teach hands-on courses where students work through simulated cases or transactions. Adjuncts could also teach ethics courses grounded in specific doctrinal areas (corporate law ethics, family law ethics, etc.) that are taught using a problem-based approach. But it is hard to recruit good lawyers to teach these courses when they would have to spend significant amounts of time creating the materials and exercises from scratch.

As a corporate law professor, I am struck by the untapped market out there. In almost every curricular area, professors who want to teach practical skills have to reinvent the wheel. Many textbooks include some practice questions and exercises, but few books are based entirely around the practicum model. There are a few exceptions, including the new Business Planning book by Therese Maynard and Dana Warren and the Environmental Law Practice book by Jerry Anderson and Dennis Hirsch, but these books are few and far between. I would love to see the major casebook publishers devote more attention to this market niche. Ideally, I would even love to see the author/publisher offer new graded exercises every year, perhaps through a password-protected website. No matter how they are put together, however, it seems that there should be a market for practicum-style materials in a wide variety of curricular areas.

In the absence of a market solution, I am going black market. If anyone is interested in my course materials, just let me know. I am happy to share them. If you have developed materials for a similar course in another area and you are willing to share them, let me know. I am happy to serve as a clearinghouse for professors who want to chart a new path in other curricular areas.

A number of schools are facing the question of how to structure their tenure calendars.  It seems that in many places within the legal academy, tenure and promotion are combined into a 5-7 year, one-time occasion where a professor goes from untenured Assistant (or initial Associate) to Tenured Full Professor.  And in many other places–often those schools following a traditional university model–like my home school of Syracuse University College of Law–the tenure process is much longer.  Promotions: Assistant–>Associate–>Full Professor.  And Untenured to Tenured, with [...]]]> Thanks to Dan and Angel for inviting me to post.  This is my first post-tenure post, and also my first guest post.  I am a perma-blogger at The Faculty Lounge, so it will be fun to see how things work around here.

A number of schools are facing the question of how to structure their tenure calendars.  It seems that in many places within the legal academy, tenure and promotion are combined into a 5-7 year, one-time occasion where a professor goes from untenured Assistant (or initial Associate) to Tenured Full Professor.  And in many other places–often those schools following a traditional university model–like my home school of Syracuse University College of Law–the tenure process is much longer.  Promotions: Assistant–>Associate–>Full Professor.  And Untenured to Tenured, with no default attachment of promotion and tenure.  Some schools may be a hybrid of the two: at promotion from Assistant to Associate, tenure is automatically granted.

What are the merits of both, and why is there such wide variations to career advancement within the legal academy?  Under the traditional model, it gives voting faculty more opportunity to review works of colleagues before achieving the rank of Full.  Meaning, by the time the candidate goes up for the last promotion, s/he will have been reviewed (externally and internally) and voted on no less than three times, not including yearly reappointments as a 1st or 2nd year professor. This same traditional model requires the candidate to submit copies of syllabi, articles, and self-evaluations almost each year–a repetitive process. Under the other model–let’s call it “Legal Model,” it looks more like a law firm, where the associate moves into the partner rank.  (This says nothing about equity v non-equity partners.)  Obviously, the process is combined. Perhaps there is less communication under the Legal Model, because the junior professor has not had enough formal review.

Having just gone through the tenure process, one year after the promotion process, and two years after the reappointment process, and 1-2 years **before** the next promotion to Full, I must say that I can see the merits of both sides.  There is much room for discussion.  What is the policy at your school?

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.

When I first began my PhD, I was keen to properly sort and define any new terms and reconcile them with my own education and experience. Three terms that always seemed to be intermingled were: Privacy, Security and Anonymity. Certainly they are related, but I wanted to be a little more specific and understand exactly when and how they overlapped.

First, let’s establish some basic definitions. For the purpose of this blog post, the following definitions will suffice (I’ll address alternative definitions later): • Privacy: having control over one’s personal information or actions • Security: freedom from risk or danger • Anonymity: being unidentifiable in one’s actions

Next, create a Venn diagram with three overlapping circles (each circle representing one term). Then, within each area, try to provide examples that reflecte those properties. That [...]]]>

When I first began my PhD, I was keen to properly sort and define any new terms and reconcile them with my own education and experience. Three terms that always seemed to be intermingled were: Privacy, Security and Anonymity. Certainly they are related, but I wanted to be a little more specific and understand exactly when and how they overlapped.

First, let’s establish some basic definitions. For the purpose of this blog post, the following definitions will suffice (I’ll address alternative definitions later):
• Privacy: having control over one’s personal information or actions
• Security: freedom from risk or danger
• Anonymity: being unidentifiable in one’s actions

Next, create a Venn diagram with three overlapping circles (each circle representing one term). Then, within each area, try to provide examples that reflecte those properties. That is, imagine some situation where you would have security without privacy, or security without anonymity. When can you have all three? When can you be anonymous but lack privacy?

This may not be as easy as it seems. Certainly it helps once the definitions are set, but if nothing else, I think it’s a useful way to separate and identify the essence of these words (at least, as each of us sees them) and the contexts in which they may or may not exist. Before you continue, take a minute, examine the diagram above, and try to think of examples to fit each area.

Here are some of my examples:

Privacy only: Two students whispering to each other in class.

Security only: Pope-mobile (he’s completely protected, but everyone knows him and can see him); Bullet-proof vests.

Anonymity only: Riding the bus during rush-hour (you have little security or privacy but no one knows who you are); Paying with cash.

Privacy and Security
- At home with the shades drawn (neighbors know you live there, though you are protected)
- Paying bills online through your bank (you communicate over an encrypted channel)

Privacy and Anonymity
- Camping in the woods with a tent (there may be no one around to identify you, but the tent’s walls offer little protection from a bear)
- Using Tor from a kiosk and not revealing any personal information

Readers will notice two things. First, I mix physical and digital (online) examples. Indeed, security, privacy and anonymity obviously apply to both physical and online domains. Next, I deliberately left a few areas blank. I welcome examples to fill the voids, or additional/better examples than I have given.

I’ve been involved with a privacy class here at CMU for a number of years and I find that getting students to think through this process is very helpful – especially those who are new to privacy and data security. Rather than having them recite the different kinds of privacy intrusions or definitions back to me, this exercise helps them internalize each term.

Here’s the next challenge: likely your definitions of privacy, security and anonymity are different than mine. If you substitute in your own definitions, would the diagram or examples change?

Let me know if they do.

Dr. Knapp notes the book’s strengths: it is ”lucid, passionate and wide-ranging,” “well-structured and strongly argued,” and poses “searching and sometimes troubling questions” about today’s university operations and purposes.   Questions involve topics, some within university control some not, like the narrowness of academic specialization, the [...]]]> Research and teaching are what I do for a living, and I’m delighted to work at a university whose President, Steve Knapp, knows their value.  In a courteous review in yesterday’s N.Y. Times, Dr. Knapp demolishes the dusty themes in a new book by the curmudgeons, Andrew Hacker and Claudia Dreifus, Higher Education?  The book bears clichés and canards against the modern university, primarily denying the value of research and rehearsing laments about its opposition to teaching.  Dr. Knapp’s polite piece delightfully debunks these specious critiques. 

Dr. Knapp notes the book’s strengths: it is ”lucid, passionate and wide-ranging,” “well-structured and strongly argued,” and poses “searching and sometimes troubling questions” about today’s university operations and purposes.   Questions involve topics, some within university control some not, like the narrowness of academic specialization, the greediness of some faculty, and the frivolity of some student/parent demands for extras.   The book usefullly identifies well-known laudable goals, like reducing student debt, “engaging students,” “mak[ing] students use their minds,” and “end[ing] the exploitation of adjuncts.”

Dr. Knapp notes that the book’s primary target, though, is research.  The book makes the suggestion that, once upon a time, universities saw their role solely as education, and today they see it as all about publishing research.  The authors heap heavy scorn on the notion that research actually helps teaching or is necessary to good teaching.   Their most extreme proposals are that universities “spin off” medical schools and research centers, end paid sabbaticals, and abolish tenure.  Dr. Knapp notes that the authors, who should know what they’re talking about, Hacker being a noted academic and Dreifus a long-time adjunct professor, rely on “sometimes sweeping generalizations.” 

Among the book’s flaws, on the anti-tenure bandwagon, Dr. Knapp notes: “Like many critics of tenure, though, they have a keen eye for abuses of power but are remarkably sanguine about the capacity of the First Amendment to shield scholars from pressure exerted by those with the power to fire them.”

Most profoundly, despite other insights in the book, on the question of research, Knapp writes that the authors’ “insight and imagination appear to fail them.”  Concerning the wild idea of divesting a medical school from a university, Dr. Knapp writes how odd it is coming from these critics of the narrowness and greediness of academics:

[S]ome of the most searching inquiry — and most exciting teaching, including the teaching of undergraduates — [occurs] at the intersection of medicine and other fields, not just engineering and physics but also fields like anthropology and history.  [S]ome of our most engaged undergraduates are fascinated by fields like global health, which brings medicine and the social and human sciences together in ways more rich and subtle than students of my generation could have imagined. And where are the humanities more alive . . . than in seminars in bioethics that expose undergraduates to searing and quite possibly unanswerable questions about the beginning and end of life?

Dr. Knapp makes a similar point about the wild idea of divesting research centers from universities, wondering if the authors have:

spoken with undergraduates who have enjoyed the privilege of assisting a top investigator in an active, federally financed laboratory.  [T]he best of those students, far from shutting themselves away in a narrow specialization, are very likely spending their time outside the lab in life-expanding service activities that, again, were quite beyond the ken of undergraduates in earlier generations.

The book appears thus to belong to a category of screeds that bash research and tenure in the university.  Reading Dr. Knapp’s review reminds me of the value of the two parts of my job.  I’ll probably read the book anyway, since it appears to have some redeeming virtues and I’d like to see the argument against reserach spelled out.  But I won’t buy the book.  I’ll borrow it from George Washington University’s library, where it’ll no doubt be acquired for the sake of storing knowledge for research.

I may blog a little bit later about some other of the marvelous things I learned over these two days, but for now I wanted to concentrate on some [...]]]> Hypotheticals are a ubiquitous pedagogical tool in both the law and philosophy classrooms. I have recently been thinking about the different functions they serve and whether they are well-suited for the weight we give them. These reflections were prompted by a conference on “Moral Biology,” hosted by the Petrie-Flom Center for Health Law Policy, Biotechnology, and Bioethics at Harvard Law School (which I co-direct), in cooperation with The Project on Law and Mind Sciences at Harvard Law School, the Gruter Institute, the Harvard Program on Ethics and Health, and the MacArthur Law and Neuroscience Project.

I may blog a little bit later about some other of the marvelous things I learned over these two days, but for now I wanted to concentrate on some thoughts that stemmed from a public portion of the conference that can be seen here, involving Josh Greene from Harvard’s Psychology Department, William Fitzpatrick from the University of Rochester’s Philosophy Department, Adina Roskies from Dartmouth’s Philosophy Department, Walter Sinnott-Armstrong from Duke’s Philosophy Department, and Tim Scanlon, from Harvard’s philosophy department.

At around the 43 to 50 minute mark in the video, Josh discusses Trolley Problems (which ask participants a thought experiment about whether to divert a trolley from one track to another with many versions of the hypothetical) and an experiment done on them by Fiery Cushman (and a collaborator, Switzgable I believe, I could not find the actual paper) in Josh’s lab.  In the experiment, before being asked whether they would endorse the principle of double effect, ethicists with PhDs were asked to reason about variants of the Trolley problem (switch vs. footbridge) presented in different orders. The experiment found that if one varied the order in which the versions were presented (but always presented all of them,) ethicists reached different conclusions about whether they would endorse the principle. [This is Josh's description in the video, again if anyone can find the paper he is discussing I will try and like to that].  The result is surprising in that it appears even those with PhD training in ethics are susceptible to order effects in reasoning about a very fundamental issue.

As Josh concedes, and others (in the panel and in written pieces discussing his work emphasize) the fact that these ordering effects occur is not itself fatal to the enterprise of philosophical analysis using intuitions. It depends on further views about how one uses these kinds of intuitions in the analysis. For present purposes, though, I want to partially side-step that question in favor of thinking about the law classroom, and how this experiment might should us a little more careful about the way we use hypotheticals.

It seems to me that there are two main ways I use hypotheticals in class (in fact there are many subtler distinctions in ways, so this is admittedly crude but hopefully sufficient for present purposes). The first is of a realist or at least Hart-Kelsen/Core-Penumbra approach: I begin with what seems like a clear and defensible rule.  I then present easy cases on both sides. I then vary the facts a little at a time to produce a hard case, and the student learns how even seemingly clear and easy to apply rules breakdown in hard cases.

A second usage, though, is more coherentist. I start by asking students for a rule in one case that they are fairly sure of. I then examine whether the principle behind the rule is really one they want to defend by applying it in several new cases and testing it against their intuitions about how those cases should come out. These intuitions put pressure on their original rule, causing them to want to state it more precisely, add caveats, or perhaps chuck it altogether.

The experiment Josh discusses is perfectly consistent with the realist/hard case approach, indeed Jerome Frank would have loved it and easily assimilated it into what the judge had for breakfast.  What, however, should it mean for the more coherentist hypothetical usage?  There, the approach seems to tell student that if they reason about enough cases and compare their initial intuitions against many hypothetical cases, they will come close to what they think the “right” answer is, or at least rule out “wrong” answers.  Do results of this kind of experiment threaten that usage?  I am very curious what others think…