Wrath versus envy
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In commentary on Bliss, an anonymous but wise reader observed:
I am a recovering lawyer working at the law school where I took my degree (I am staff, not faculty). I couldn't help but think how one makes a law school more like Iceland and less like Moldova. At the end of the day overcoming envy is probably the biggest hurdle (intra and interschool envy — darn those USNWR rankings!) for a discipline/profession that worships at the altar of elitism.(Emphasis added; misspelling of altar corrected.)
Ah, envy. Saint Paul said that the love of money is the root of all evil, I Timothy 6:10, but he didn't work in academia. Around here, envy claims that distinction. Odious faculty behavior, in some cases so extreme as to turn someone into the worst law professor in America, often if not invariably begins with envy.
A baker's dozen years ago, the movie Se7en delivered the definitive statement on the wages of all seven deadly sins: gluttony, greed, sloth, pride, lust, envy, and wrath. As the theatrical trailer suggests, Se7en is the perfect cinematic expression of the ominous, foreboding atmosphere that pervades the envy-laden world of higher education. (Technical tip: if your browser can't play the media embedded in this paragraph, download the latest version of Apple QuickTime or watch a lower-resolution version on YouTube.)
Those of you who have seen Se7en know that movie's answer to envy. Deadly though it is in its own right, wrath has the virtue of being able to defeat envy. The dramatic conclusion to Se7en (spoiler alert!) shows how:
The upshot? If envy of others — at your own school or elsewhere — is consuming you, consider yourself forewarned. Don't piss us off. We'll get mad, and then we'll get even.
The cathedral, the bazaar, and the School of Law
Welcome to January, the month named for the two-faced Roman god of gates and doors, beginnings and endings. It represents the perfect time for looking backward and looking forward, at Law 1.0 as we knew it and at Law 2.0 as we hope it will be.Read the rest of this post . . . .
Law 2.0
Law 2.0 refers transparently to Web 2.0, a term expressing the sentiment that a second generation of Internet-based communities and services, all designed to facilitate collaboration and sharing between users, has transformed the social meaning and impact of the World Wide Web. My allusion to Web 2.0 is very loose. I am less interested in specific components of Web 2.0 such as social-networking sites, wikis, and folksonomies than in the broad concept of law, legal education, and legally mediated social change in a world of democratized technology. In addition, invoking a notion of Law 2.0 implies the erstwhile and perhaps ongoing existence of an older model, called Law 1.0.Legal education today is operating in a technological environment that is cheaper, more widely distributed, and far more efficient than the setting in which all but the recent law school graduates experienced over the course of their own professional training. I am mindful that the legal academy is arguably the most hidebound wing of a temperamentally conservative profession. Law school faculties, for instance, spend extraordinary amounts of time debating (and, in some instances, implementing) policies that effectively disable wireless networks whose very raison d'être is to enable broadband access across an entire university campus.
All that said, the students we teach today, to say nothing of their successors and their future clients, are all wired — and wireless — in ways most of their instructors are not. The Law School has taken aggressive steps to prepare its students for success in the world of Law 2.0. Our renovated classrooms all include state-of-the-art technology. They are unrecognizable, in the best sense of that word, to graduates who learned the law in far more modest settings. The modal method for exam-taking today is not the handwritten exam booklet, but the laptop computer. At my express direction, the Law School's technology staff has comprehensively revamped our website not once but twice since January 2007. Every faculty member and every student organization enjoys access to a weblog of her, his, or its own.These items, combined with the content streaming forth from a revitalized Law School communications department, are available in a dazzling array of RSS feeds. We offer both a consolidated faculty blog and a broader news and events page. Faculty scholarship, once a mysterious process discernible only by those willing to pay exorbitant subscription fees to proprietary online research networks, is now available, free of charge, through the University of Louisville Legal Studies Research Paper Series and the University of Louisville's BEPress/Selected Works site. We syndicate these series as part of the faculty directory. For my own part, I have endeavored to post new content on a regular basis on The Cardinal Lawyer.
The cathedral and the bazaar
Among many ways to explain the differences between Law 1.0 and Law 2.0, I draw great inspiration from Eric Raymond's pathbreaking 2001 book, The Cathedral and the Bazaar. Raymond wrote specifically about the rise of Linux and open source software, but his observations have revolutionary implications far beyond software development. Law 2.0, powered as it is by the democratization and diffusion of technology and legal expertise, is rapidly driving law and legal education from a centralized "cathedral" model of development to a decentralized "bazaar" model.
The power of Eric Raymond's metaphor, the cathedral and the bazaar, is best appreciated in real rather than virtual space. A single glance at real-world cathedrals and real-world bazaars captures the essential difference between these models of creativity. In the airways of your imagination, travel with me to Istanbul. On one side of your mind, envision the dome of the great Byzantine cathedral, Hagia Sophia. And then envision, on the other side, Istanbul's Grand Bazaar.
Hagia Sophia is the product of centralized, carefully coordinated planning. It is the pinnacle of Byzantine architecture, arguably the most enduring physical manifestation of a regime that held sway in Asia Minor for a thousand years. By contrast, the Grand Bazaar arose as the result of millions of market transactions over the ages. Each has its place; each has enormous cultural value. But if you are looking for the next great idea, the next innovation, the engine of social change and personal transformation. the bazaar is the place for you.
As it is in software development and in Istanbul, so it is in law.
The rise of the law school bazaar
In the very distant past, legal education emphatically followed a bazaar-like approach. Young people aspiring to the legal profession "read the law" under the tutelage of established lawyers. Christopher Columbus Langdell's invention of the case method at Harvard, over time, conferred supremacy on the cathedral-like approach. By treating law as a scientific enterprise, Langdell helped give the upper hand to those institutions wealthy enough to fund the laboratories and lab scientists of law: the law library and a professional, full-time university faculty. Not surprisingly, the content of the legal curriculum followed suit. The same courses Langdell thought essential to the practice of law — contracts, torts, property, criminal law, civil procedure — still dominate in the first-year curriculum of every American law school. Some also teach constitutional law; others have tried, with variable success, to add courses addressing the rise of the administrative state. But the cathedral, from the institutional primacy of the so-called elite schools to the stranglehold of the Langdellian curriculum, holds firm.
Modern legal education, however, is beginning to trend back toward a bazaar-like approach. Legal education has experienced some of the decentralization, democratization, and diffusion that characterizes technology markets. There are nearly 200 accredited law schools in the United States. Flagship state universities, comprehensive or metropolitan public universities, private universities (some scandalously rich and others scandalously poor), stand-alone law schools, and even for-profit law schools all take part in the fray. Every school publishes at least one law review of its own, and the proliferation of online journals, blogs, and other electronic media has eroded the influence of casebook publishers and proprietary databases.Neither the cathedral nor the bazaar has prevailed outright in today's legal academy. Despite its methodological flaws, the U.S. News & World Report survey still drives students and employers toward elite schools. Law schools place disproportionate weight on the laws of the United States (especially the federal system, whenever it is possible to teach a federal variant on a given legal theme) and on judge-made law (especially if the judges in question are the Justices of the Supreme Court of the United States).
But bazaar-style pressures loom. Anyone who cares about law students and the educational system they sustain must pay close attention to the emergence of a bimodally distributed market for starting salaries. For a strikingly large plurality of law students, the cathedral-style approach to legal education makes no sense. The mismatch between (immense) educational debt loads and (modest) starting salaries will surely strain the existing system. And this is to say nothing of curricular and programmatic priorities to which diverse law school constituencies — faculty, students, alumni, surrounding legal community — may assign different weight.
From Web 2.0 to Law 2.0
Let me sum up. Here are some of the salient characteristics of Web 2.0:
- Separation of content from its form, perhaps most vividly illustrated by the transition from HTML to XML
- "Cheap speech": The democratization and diffusion of communications technology
- The empowerment of individual consumers of content and their transformation into producers of content in their own right
- The emergence of a creative environment where all "bugs" are "shallow," given the availability of enough "eyes" devoted to solving collective problems
- Separation of legal knowledge from the institutions traditionally entrusted with its creation and dissemination
- The democratization and diffusion of legal knowledge and authority to speak on legal matters
- The empowerment of students and nonacademic lawyers and their transformation into producers of content in their own right
- The emergence of a creative environment where all "bugs" are "shallow," given the availability of enough "eyes" devoted to solving collective problems
It's happening here
It's happening here, courtesy of the University of Louisville's new branding campaign. Come see how a university-wide marketing campaign looks on the official weblog of a law school dean.
Introducing MoneyLawyer
And so a practicing lawyer joins the ranks of MoneyLaw. I practice in a litigation boutique where I represent a broad range of clients. Frequently my firm is local counsel for major companies, which gives me the benefit of working against and with law firms of all sizes on a daily basis. Many of my opponents and co-counsel are graduates of upper tier law schools.I read Moneyball last year and it fascinated me. Then I found this blog discussing how legal academe may systematically undervalue certain types of high-performing law professors, the same way that professional baseball systematically undervalued certain high-performing players. From this vantage point I started thinking about how Moneyball principles might apply to the practice of law. In my experience, the legal market significantly undervalues some of its participants and overvalues others. We are beginning to see some market corrections, such as Nancy's ongoing discussion on the death of the billable hour and Mike Dillon (general counsel for Sun Microsystems)'s preference for boutique law firms over Big Law.
My purpose here is to bring some practical insights on how Moneyball principles apply to the practice of law, particularly litigation. I want to begin by examining what is evaluated in the legal market and who performs the evaluation. The "what" consists of legal talent (lawyers and law students) and litigation tactics. The "who" is more complex, consisting of five market evaluators:(1) Lawyers evaluating litigation tactics
(2) Clients evaluating lawyers
(3) Law firms evaluating potential hires
(4) Law schools evaluating law students; and
(5) Services that "rank" lawyers and law schools.
These market evaluators often base their decisions on traditional metrics, but these metrics do not move in step with what makes an effective advocate. For example, the ability to write clearly and persuasively does not follow firm size, class rank, law school, or the other proxy measurements of lawyer talent nearly as well as the evaluators seem to think it does. As a result, legal talent and litigation tactics become overvalued and undervalued in the market, as the case may be.
I will discuss these market failures in future posts. My goal is to determine what makes an effective advocate and find methods to identify effective advocates. After all, this is the central goal of legal market participants--an effective advocate is what lawyers want to be, clients want to hire, and law schools want to produce.
Shaq O'Neal Divorce Reveals He's A Big Spender
I just saw this post by Jeffrey Lalloway at the California Divorce and Family Law Blog: Shaq's Expenses Revealed In Divorce Court...$26,560 a month in babysitters??.
Miami Heat center Shaq O'Neal, in the middle of a divorce with his wife of five years, Shaunie, has reported expenses of $1.3 million a month, including $26,560 per month just for babysitters (Shaq and Shaunie have four kids together and two kids of previous relationships), according to the blog which cites the following Miami CBS4 report: cbs4.com - Shaq's Expenses Revealed In Divorce Court.
Here's the complete list of O'Neal's monthly expenses, as reported in the CBS4 article and in the California Divorce and Family Law Blog:
• $156,116 on mortgages.
• $110,505 on vacations.
• $60,417 on gifts.
• $26,560 on baby-sitters.
• $24,300 on gasoline.
• $22,190 on maids.
• $17,220 on clothes.
• $12,775 on food.
And the tax man gets about $500,000 a month in income taxes.
At that rate of spending, and even with Shaq's $20 million yearly income (an income second among NBA players only to our own Kevin Garnett of the Boston Celtics) there doesn't seem to be enough room in his budget for savings and investment. I've heard it said about us Americans that the answer to the question "What is your cost of living?" is exactly the same as the answer to the question "How much do you make?" Certainly seems to be true for Shaq.
At that rate of spending, he only has about $4 million left each year to invest or save (not including that which he saves through his mortgage payments).
Aren't you feeling sorry for him now?
For information about Massachusetts divorce and family law, see the Massachusetts Divorce & Family Law Page of my law firm website.
Miami Heat center Shaq O'Neal, in the middle of a divorce with his wife of five years, Shaunie, has reported expenses of $1.3 million a month, including $26,560 per month just for babysitters (Shaq and Shaunie have four kids together and two kids of previous relationships), according to the blog which cites the following Miami CBS4 report: cbs4.com - Shaq's Expenses Revealed In Divorce Court.
Here's the complete list of O'Neal's monthly expenses, as reported in the CBS4 article and in the California Divorce and Family Law Blog:
• $156,116 on mortgages.
• $110,505 on vacations.
• $60,417 on gifts.
• $26,560 on baby-sitters.
• $24,300 on gasoline.
• $22,190 on maids.
• $17,220 on clothes.
• $12,775 on food.
And the tax man gets about $500,000 a month in income taxes.
At that rate of spending, and even with Shaq's $20 million yearly income (an income second among NBA players only to our own Kevin Garnett of the Boston Celtics) there doesn't seem to be enough room in his budget for savings and investment. I've heard it said about us Americans that the answer to the question "What is your cost of living?" is exactly the same as the answer to the question "How much do you make?" Certainly seems to be true for Shaq.
At that rate of spending, he only has about $4 million left each year to invest or save (not including that which he saves through his mortgage payments).
Aren't you feeling sorry for him now?
For information about Massachusetts divorce and family law, see the Massachusetts Divorce & Family Law Page of my law firm website.
Interview Questions Employers Shouldn't Ask Job Applicants
SAN FRANCISCO (MarketWatch) -- "Why aren't you married yet?" "Would you join a church to get a job?" Those are just two examples of questions job seekers said hiring managers asked them in a job interview, according to a new survey of more than 3,000 job seekers and 1,000 hiring managers worldwide by Development Dimensions International and Monster, the career-resource arm of Monster Worldwide.Don't ask, don't tell: Questions employers shouldn't ask -- and job seekers should avoid answering, Andrea Coombes, CBS Marketwatch, January 28, 2008
Others included "Are you happy in your relationship?" "Who is your favorite Beatle?" and "What is your perception of the painting in our lobby?"
The survey findings are "a wake-up call for organizations that this is happening behind closed doors when the applicant is face to face with their potential boss," said Scott Erker, DDI's senior vice president of selection solutions. DDI is a human-resource consulting company in Pittsburgh.
Questions pertaining to family status or religion can easily venture into illegal territory under antidiscrimination laws. That means potentially exposing the company to litigation -- and hindering the firm's efforts to find talented workers....
Bliss
Bliss, by Eric Weiner, is the title of a book about happiness. It is the pop psychology version of the much more serious work being done by economists, psychologists and neurologists.Reading it reminds me of the recent discussion about unhappy law professors. There were several comments but no unhappy professors weighed in and the discussion ended. Maybe the discussion would have been longer if it had been about unhappy law schools. It's one think to love your job but another to work in a happy place. I know of many law professors who tell me they work in unhappy places. And I suspect many of those who claim to work in happy places are affected by some kind of relative deprivation that has led them to begin viewing what they have has happy.
In Bliss, the author visits some of the happiest and unhappiest places on earth. It is not entirely useful to generalize, but happy places are places where people trust each other, where there is a lack of envy, cooperation is common, and the people have meaningful control over their lives. Putting aside the problem of whether these factors cause happiness or are caused by happiness, the question is whether you can apply the generalizations to law schools? I think so.
Trust is big, no doubt. Administrator and colleagues should say what they mean and, if they change their minds say, so rather than reconstructing the past or claiming to have been misunderstood. This means saying "I got that wrong," or "I've thought more about that and changed my mind." When is the last time you heard a Dean or colleague say either of those?
As for envy, I am not sure. Does unhappiness lead to envy or does envy lead to unhappiness. In any case, to the extent envy undermines law faculty happiness, I am not sure how it can be addressed. "Hey, everyone, stop that envy stuff," somehow seems unlikely to make a dent. Of course, if no one has anything there would be little to be envious about. I do not like that solution either.Cooperation is important and the lack of it probably feeds into distrust and unhappiness. Members of some faculties seem to go out of their was to encourage a lack of cooperation. New faculty are recruited when they arrive to be with one faction or another. They get an earful about who is not to be trusted and who should not be a mentor or a draft reader. The people who thrive on decreasing cooperation are like polluting factories.
The control point makes sense to me. In the context of the book it means being part of a community or country that is small enough to actually undergo change. All other things constant, does this mean that smaller faculties are happier? "All other things" swallows quite a bit. For example, I like the free-flowing nature, diversity, and relative anonymity of a large faculty and will happily accept some dysfunctionality to have that. Still, I would think that having a sense that institutional change could take place and one might be a part of it means greater happiness.
Oh yea, some of the happy places do quite a bit of drinking. This would favor a requirement that all faculty have a couple of shots of vodka before being allowed in the building. Unfortunately, unhappy places also do a fair amount of drinking. So, on this one, I suggest experimenting before committing either way.
Mission: Impossible?
Cinematic experience notwithstanding, Bill Henderson is far, far hotter than Tom Cruise. In a thoughtful and persuasive blog post, Benchmarking Law School Performance: Why Law Professors and Deans Should Care, Bill makes a compelling case that law schools should use the Law School Survey of Student Engagement (LSSSE) as a key tool in educational administration.
He rests his case on two distinct grounds. The first is a variation on one of the ELS Blog's leading themes, that the world can almost always be understood in terms of quantifiable data, and that smart people are well advised to pay attention to those data:
[In] a typical for-profit business, a CEO with standard MBA training would be ecstatic if over 50 percent of her customers — all college educated with relatively high analytical aptitudes — had taken 15 minutes of their time to evaluate their experience with the school/company during the last year. Even more potent is the availability of aggregate-level data for key industry rivals. This information enables the school/company to identify ways to be better/faster/stronger than rivals with comparable inputs.As Bill says, this is straightforward managerial wisdom: "this is all just Six Sigma, or TQM 101 — i.e., an iterative data- and theory-driven focus on quality outputs."
This particular post draws most of its persuasive power from a qualitative rather than quantitative source: Bill's statement of the basic mission of legal education — including his identification of the mental and temperamental barriers that keep many (if not most) law professors from grasping that mission:
Do it now: read Bill Henderson's case for using law school benchmarks.Law professors are the most skeptical and argumentative lot imaginable. When empirical data is presented that challenges a well entrenched view, law professors query whether the sample or methodology can really be trusted — lack of statistical knowledge is rarely an impediment to this line of objection. This is a great mindset if we are engaged in a winner-take-all adversarial contest. But it not the right approach for building a great institution. . . .
For those law faculty who would dismiss . . . detailed market intel in favor of their own vision of a great law school, typically without any empirical data to assess actual progress, that path is fraught with problems. As the price of legal education rises faster than the earning power of most law school graduates, law school applicants are declining. Further, we can expect those students who do apply to be more discriminating consumers. . . .
Legal education is not about turning a profit or maximizing prestige . . . . [I]t is about educating highly competent, ethical lawyers who carry forward the highest ideals of the profession.
Senate Asks Why Colleges Earn 17.6% on Endowments But Spend Only 4.6% on Students
The Senate Finance Committee yesterday sent a letter to the 136 U.S. colleges and universities with endowments of $500 million or more, requesting the schools to respond within thirty days to more than fifty questions dealing with finances and tuition. From the press release:
Federal law requires most private foundations to pay out 5% of their assets each year toward their charitable purpose. No such requirement exists for university endowments. Donations to universities are tax-exempt, and endowment funds are tax-exempt. A Finance Committee hearing last September explored endowment growth. Since then, three colleges – Harvard, Yale, and Dartmouth – have announced increased student aid.
A new study from the National Association of College and University Business Officers (NACUBO) released today shows double-digit endowment growth at hundreds of colleges over the past year. According to the study, 136 colleges in the United States now have endowments of $500 million or more.
My school -- the University of Cincinnati -- ranked 63rd out of 785 colleges and universities with a $1.2 billion endowment.
Press and blogosphere coverage:
- Bloomberg: Harvard, Yale Are Questioned by Senators Probing College Costs, by Matthew Keenan
- Boston Globe: The Real Story on Harvard's Generosity (op-ed), by Steven Roy Goodman
- Chronicle of Higher Education: Senators' Letter Grills 136 Wealthy Colleges About Endowment-Spending and Financial-Aid Policies, by Brad Wolverton
- Inside Higher Ed: Senate Scrutinizes Well-Endowed Colleges, by Doug Lederman
- New York Times: Senate Looking at Endowments as Tuition Rises, by Karen A. Arenson
- USA Today: Senators Press for Colleges' Financial Details. by Mary Beth Marklein
- Wall Street Journal: Bulging Endowments Stir College-Aid Debate, by Robert Tomsho
Massachusetts Law Updates: Governor's Budget Recommendations and the Cellphone Bill
Massachusetts Law Updates has reported today and yesterday on two new developments in Massachusetts: 1) Governor Deval Patrick submitted his budget recommendations on Wednesday, and unlike past administrations, Patrick's administration is making his recommendations easily accessible on the governor's website, 2) the House has passed a new cellphone bill H4477, which would ban the use of hand-helds while driving, ban all text messaging while driving, and ban any use of cellphones (whether hand-held or hands-free) while driving by those under 18 years of age.
If we can get the Senate to follow the House's lead, it appears we will soon be joining nearby Connecticut and New York in banning handheld cellphones on the road, and that's a good thing. The bill appears to me to be a very wise law. However, as Massachusetts Law Updates quotes the Boston Globe, a "knowledgeable Senate source said Senate President Therese Murray is not likely to bring the measure up for a vote in the near term."
See the Massachusetts Trial Court Law Libraries' Massachusetts Law Updates blog for more details.
For information about Massachusetts divorce and family law, see Law Offices of Steven Ballard.
If we can get the Senate to follow the House's lead, it appears we will soon be joining nearby Connecticut and New York in banning handheld cellphones on the road, and that's a good thing. The bill appears to me to be a very wise law. However, as Massachusetts Law Updates quotes the Boston Globe, a "knowledgeable Senate source said Senate President Therese Murray is not likely to bring the measure up for a vote in the near term."
See the Massachusetts Trial Court Law Libraries' Massachusetts Law Updates blog for more details.
For information about Massachusetts divorce and family law, see Law Offices of Steven Ballard.
Ranking of Online Colleges
Online Education Database has released a ranking of 41 online colleges, which equally weights eight variables: Acceptance Rate, Financial Aid, Graduation Rate, Peer Web Citations, Retention Rate, Scholarly Citations, Student-Faculty Ratio, and Years Accredited. Here are the Top 25 online colleges using this methodology, along with each school's score (the sum of all of its ranks divided by the number of metrics for which data was found for that particular school):
- Upper Iowa University (10.813)
- LeTourneau University (11.960)
- Liberty University (12.540)
- Nova Southeastern University (13.323)
- California University of Pennsylvania (14.232)
- Grand Canyon University (14.709)
- Regent University (14.742)
- Champlain College (14.960)
- Westwood College (15.428)
- Tiffin University (16.700)
- Dickinson State University (17.111)
- Walden University (17.500)
- National University (17.758)
- Fisher College (19.887)
- Colorado Technical University (20.165)
- ITT Technical Institute (20.186)
- Kaplan University (20.418)
- Post University (20.467)
- Franklin University (20.547)
- Peirce College Online (20.765)
- Western International University (20.891)
- Florida Metropolitan University (21.223)
- Bellevue University (21.335)
- Capella University (21.712)
- University of Phoenix (22.722)
(Hat Tip: InstaPundit.) Cross-posted on TaxProf Blog.
Suit for tortious interference with a Bequest must be filed in Probate Court
Felix M. Garruto, et al. v. Lorraine Cannici 12-21-07
A-2447-06T1
The Court held that an action for tortious interference with a bequest, premised upon undue influence by means of fraud, is barred when plaintiffs, with knowledge of probate proceedings, have failed to file a timely challenge to the will in probate court.
Felix M. Garruto, et al. v. Lorraine Cannici 12-21-07
A-2447-06T1
The Court held that an action for tortious interference with a bequest, premised upon undue influence by means of fraud, is barred when plaintiffs, with knowledge of probate proceedings, have failed to file a timely challenge to the will in probate court.
Quarg- Long time girlfriend's share should be set by contract law, not constructive trust
In the Matter of the Estate of Robert O. Quarg,
deceased 1-23-08
A-2459-06T3
Decedent's wife, from whom he had been estranged for over forty years, appealed the Chancery Division's order imposing a constructive trust on her surviving spouse's share of decedent's intestate estate in favor of decedent's companion, with whom he had lived since shortly after the estrangement. The court held that, decedent's conduct and actions, together with the lengthy time decedent and his companion lived together, and their mutual consideration as husband and wife, was sufficient to establish a question of fact whether there was an implied promise by decedent to ensure that his companion received adequate provisions during the remainder of her life. The court determined that the Chancery Division mistakenly relied upon an equitable principle of a constructive trust and the court remanded the matter for a determination whether such an implied contractual promise
could be established.
In the Matter of the Estate of Robert O. Quarg,
deceased 1-23-08
A-2459-06T3
Decedent's wife, from whom he had been estranged for over forty years, appealed the Chancery Division's order imposing a constructive trust on her surviving spouse's share of decedent's intestate estate in favor of decedent's companion, with whom he had lived since shortly after the estrangement. The court held that, decedent's conduct and actions, together with the lengthy time decedent and his companion lived together, and their mutual consideration as husband and wife, was sufficient to establish a question of fact whether there was an implied promise by decedent to ensure that his companion received adequate provisions during the remainder of her life. The court determined that the Chancery Division mistakenly relied upon an equitable principle of a constructive trust and the court remanded the matter for a determination whether such an implied contractual promise
could be established.
The market for deans ... and two markets for deans
By way of MoneyLaw stalwart Paul Caron's home blog, I had the pleasure of reading Daniel B. Rodriguez, The Market for Deans, 16 J. Contemp. Legal Issues ___ (2007). Using "a loose admixture of anecdote, polemic, and preliminary data," Professor Rodriguez reaches the "especially vexing" conclusion "that the market for deans is — and will likely continue to be — more bear than bull."The Market for Deans is well worth a trip to SSRN, and it will probably provide fodder for future MoneyLaw posts. One particular aspect of this paper warrants immediate attention. Professor Rodriguez, who served nearly a decade as law school dean at the University of San Diego, conducted a quick and dirty survey of deans at the U.S. News survey's top 25 schools and at 25 other randomly selected schools. I agree wholeheartedly that "[t]hese data yield at least one interesting conclusion":
Law schools in the so-called top 25 are far more likely to select their deans from their own faculty; the distribution among other law schools is more balanced. We can speculate freely about . . . this difference. For my money, the principal reason for the concentration of internal deans in the top 25 is elitism; the high prestige law schools are much more skeptical of the ability of law professors not on their faculty to reflect their key values. (Harvard and Yale are particularly striking; my recollection is that neither school has had an external dean in the past century). And, insofar as these “top” schools look outside their faculty only to schools at or above their stature, the pool is obviously much smaller. By contrast, nonelite law schools have a larger pool of non-internal law professors from which to draw; moreover, their desire to ascend the law school hierarchy may make some much more accepting of law faculty at higher-ranked schools, precisely because of the perceived “luster” that a recruitment of a faculty member from such a school might provide. . . .Fascinating stuff. MoneyLaw has operated on the premise that Upstairs, Downstairs isn't just one of the most popular public television series of all time, but also a trope for daily life in American legal academia. Deeper, more rigorous analysis of the entire market for deans should expose the precise extent to which the decanal suite and access to it also reflect class divisions within legal education.[T]here does appear to be two somewhat distinct dean markets. In the world of elite law schools, the markets are more narrowly configured; we could predict rather accurately that law schools up the feeding chain will look primarily to a small group of individuals, a group that will usually be members of their own faculties; and we could predict that other law schools will be more eclectic and expansive in their searches.
Be true to your school
After almost exactly 52 weeks in Kentucky, I've learned a few things. To be a "real" Kentuckian, you need a home county. Besides Jefferson. Boone barely counts, but Boyd is bona fide. And to be a Louisvillian, you need the "right" answer to this question: "Where did you go to school?"
My answer doesn't appear on my curriculum vitae. That's because many Louisvillians, the vast majority of whom (hard as this may be for fellow legal academics to understand) do not work for the University of Louisville, aren't interested in my undergraduate, graduate, or professional credentials. So I answer the question exactly as it was asked: "I attended Clarkston High School, DeKalb County, Georgia."
It's an obnoxious answer, really. Not because it is untrue, but because it defeats the social purpose of asking. High school allegiances, at least in Louisville, expose a host of presumptions about race, class, religion, and every other badge of social status vel non.
In defense of my neighbors here in Jefferson County, Kentucky, the "school question" gives the asking party a quick way of assessing a new acquaintance's core allegiances. Dare I reveal that my favorite college football teams are Louisville, Georgia, and Notre Dame's opponents? If my dinner companion went to Sacred Heart Academy, I'll save that last item for some other time and probably some other conversational partner.
And here in the legal academy, or at least in that corner covered by MoneyLaw, some readers have questioned my admitted assumption that J.D./Ph.D. types, ceteris paribus, are less likely than their strictly legal counterparts to be dedicated to teaching the core law school curriculum and to teaching it well. No, I haven't conducted any rigorous empirical test of the proposition. It's based on a dangerously casual assessment of patterns I think I've observed, bolstered by this little insight drawn from the dismal science: Comparative advantage applies to people as well as countries. Sure, a moral philosopher could cover criminal law, quite well at that, and an economist might well become this recruiting year's best pick in corporate law. And for a substantial boost in salary relative to other university departments where this philosopher and this economist might find work, these scholars have every incentive to add the Model Penal Code and the Delaware Corporation Code to their bedside tables. But no shift in primary intellectual allegiance comes free of cost, either to the person reinventing herself as a law professor or to the law school that would appoint her to its faculty.
So here's the question. Imagine yourself a member of the hippest clique in today's legal academy, doubly credentialed interdisciplinarians. You are attending a conference with equal numbers of professors in law and in your nonlegal discipline. A friendly stranger approaches and asks, "Say, don't I know you? Where did you go to school?"
For the love of God, think fast. What pops up first? Your J.D. program or your Ph.D. program? Where your mind turns first is where your heart rests best. Within an academic setting where costs matter and faculty salaries cost more than anything else, this cost-conscious dean would like to offer you a little career advice:
Be true to your school.
Interdisciplinary Stuff
It's been fun reading the various posts on this topic but, for me, some of the analysis is a little fuzzy and some not fuzzy enough. Still, most of what follows may just reflect not being up to speed on what is happening in legal education at non elite schools (other than my own) so I am beginning this post with a preemptory "never mind."
If the topic is, as Brian originally put it, "offering courses from other academic disciplines (economics, statistics, anthropology, etc.) in the law school curriculum, creating law and social science institutes of various sorts within the law school, offering joint JD/PhD programs, and hiring JD/ PhD faculty," I am not sure I understand the problem. I will call this the "hard" version of Brian's thesis. (The soft version, which is not his at all but which seems to be the one to which some people are responding is that Law Schools are overly enamored of interdisciplinary faculty.) In the hard version, the programs will only succeed if students enroll. If they do, is the logic that there is an obligation to discontinue them in the interest of giving the students what they really need? I doubt it. At my school, students already flock to bar oriented courses and I doubt there would be any change if we offered a course in statistics or a law and statistics specialization. In fact, I feel certain that we could offer a statistics course till the cows come home and no one would enroll if it were an elective. If required, there would be open revolt. In any case, not a single student will believe the course will be useful on the bar exam and, thus, unwittingly sign up.
I also wonder how many of the 185 non elite schools are actually offering these courses and programs. I just do not know but I worry that this may be like last month's blogging about unhappy law professors -- no empirical backing. In any case, one's response depends on what law school is for at the non elite schools. The theme seems to be that at the non elite schools it is even more important to prepare people to pass the bar exam and practice law. I could be wrong but I am pretty sure that the number of people attending law school who view it as a natural extension of an good education has increased. They may or may not practice law in the conventional sense. And I am not sure that the increase in this number, assuming it exists, is any lower at non elite schools. It may be higher if applicants are sensitive to placement rates. In fact, if college graduates are paying attention to the market at all, they understand that going to law school for the sole purpose of becoming not just an attorney but one with a satisfying life is increasing a long shot. Hopefully, they are looking for something more. At the close of Jim Chen's post two spots below, he notes that the real threat is decrease in law school applications. I am not sure that is a threat or maybe just reality setting in but one way to meet the threat is to offer something new. Interdisciplinary responses may save legal education.
The soft version of Brian's hypothesis -- too much emphasis on interdisciplinary matters -- is a different matter altogether and comes through more in the various responses than in his orginal post. He uses law and economics as an example of an interdisciplary area in which students can learn all they need to know by reading the book. And, therefore? Does that mean the teacher of antitrust should know just enough economics to get by? Does it mean that the property law or constitutional law teacher should know just enough history to get by? It seems like the interdisciplinary issue should be approached on a course by course basis. For some areas, being an effective teacher and scholar requires a high level of interdisciplinary work. Other areas probably require less.
Somewhere in all this I "hear" the argument that a downside of the interdisciplinary route is teachers without extensive practice experience. Sorry, but I am rolling my eyes right now. Judging by my school's hiring and that of other schools, "extensive practice" is hardly prized. Plus, just how important is having practiced for 2 years 25 years ago. I mean, how many times can the same war stories be told? I am not convinced that two years of practice in a particular specialty in a single law firm that, in all likelihood, will be unlike the firms most non elite law schools grads will join means better teaching. I am not saying that schools would not do well to place more emphasis on practice. I just don't think they do. In fact, 10-15 years of practice probably works to disqualify most potential candidates. Admittedly this is off-set to some extent by the wide-spread use of adjuncts.
The scenario Brian describes can be expensive but only if a School is actually hiring people who do not teach law at all. Again, I'd like to hear just how prevalent this is. If they do teach law, it's not expensive at all. Where else can a Ph.D/J.D get a job but in law teaching? At bottom can some of the worry -- certainly not by anyone who has commented so far -- be traced to competition for jobs?
If the topic is, as Brian originally put it, "offering courses from other academic disciplines (economics, statistics, anthropology, etc.) in the law school curriculum, creating law and social science institutes of various sorts within the law school, offering joint JD/PhD programs, and hiring JD/ PhD faculty," I am not sure I understand the problem. I will call this the "hard" version of Brian's thesis. (The soft version, which is not his at all but which seems to be the one to which some people are responding is that Law Schools are overly enamored of interdisciplinary faculty.) In the hard version, the programs will only succeed if students enroll. If they do, is the logic that there is an obligation to discontinue them in the interest of giving the students what they really need? I doubt it. At my school, students already flock to bar oriented courses and I doubt there would be any change if we offered a course in statistics or a law and statistics specialization. In fact, I feel certain that we could offer a statistics course till the cows come home and no one would enroll if it were an elective. If required, there would be open revolt. In any case, not a single student will believe the course will be useful on the bar exam and, thus, unwittingly sign up.
I also wonder how many of the 185 non elite schools are actually offering these courses and programs. I just do not know but I worry that this may be like last month's blogging about unhappy law professors -- no empirical backing. In any case, one's response depends on what law school is for at the non elite schools. The theme seems to be that at the non elite schools it is even more important to prepare people to pass the bar exam and practice law. I could be wrong but I am pretty sure that the number of people attending law school who view it as a natural extension of an good education has increased. They may or may not practice law in the conventional sense. And I am not sure that the increase in this number, assuming it exists, is any lower at non elite schools. It may be higher if applicants are sensitive to placement rates. In fact, if college graduates are paying attention to the market at all, they understand that going to law school for the sole purpose of becoming not just an attorney but one with a satisfying life is increasing a long shot. Hopefully, they are looking for something more. At the close of Jim Chen's post two spots below, he notes that the real threat is decrease in law school applications. I am not sure that is a threat or maybe just reality setting in but one way to meet the threat is to offer something new. Interdisciplinary responses may save legal education.
The soft version of Brian's hypothesis -- too much emphasis on interdisciplinary matters -- is a different matter altogether and comes through more in the various responses than in his orginal post. He uses law and economics as an example of an interdisciplary area in which students can learn all they need to know by reading the book. And, therefore? Does that mean the teacher of antitrust should know just enough economics to get by? Does it mean that the property law or constitutional law teacher should know just enough history to get by? It seems like the interdisciplinary issue should be approached on a course by course basis. For some areas, being an effective teacher and scholar requires a high level of interdisciplinary work. Other areas probably require less.
Somewhere in all this I "hear" the argument that a downside of the interdisciplinary route is teachers without extensive practice experience. Sorry, but I am rolling my eyes right now. Judging by my school's hiring and that of other schools, "extensive practice" is hardly prized. Plus, just how important is having practiced for 2 years 25 years ago. I mean, how many times can the same war stories be told? I am not convinced that two years of practice in a particular specialty in a single law firm that, in all likelihood, will be unlike the firms most non elite law schools grads will join means better teaching. I am not saying that schools would not do well to place more emphasis on practice. I just don't think they do. In fact, 10-15 years of practice probably works to disqualify most potential candidates. Admittedly this is off-set to some extent by the wide-spread use of adjuncts.
The scenario Brian describes can be expensive but only if a School is actually hiring people who do not teach law at all. Again, I'd like to hear just how prevalent this is. If they do teach law, it's not expensive at all. Where else can a Ph.D/J.D get a job but in law teaching? At bottom can some of the worry -- certainly not by anyone who has commented so far -- be traced to competition for jobs?
Everything You Ever Wanted to Know/Read on Interdisciplinary Legal Scholarship
(Posts in bold are the "must read" posts)
1. Original Post by Brian Tamanaha at Balkinization.
2. Brian Leiter asks for comments . Read Matt Lister's and John Oberdiek's comments and Tamanaha's response.
3. Dan Solove has a thoughtful response at Concurring Opinions about the benefits that do accrue to students from having interdisciplinary teachers.
4. Ethan Leib comments at PrawfsBlawg, giving a good argument that non-elite schools ignore this trend at their peril.
5. I think that the trend just goes to show how much more it takes nowadays to join the legal academy, but also how many different paths you can take, which is a good thing.
6. Josh Wright at Truth on the Market says that Tamanaha's question of whether interdisciplinary legal scholars produce better lawyers is an empirical one, and says that it does at least with respect to the study of economics. So what about sociology or philosophy?
7. Tamanaha clarifies what he means by "bad for non-elite law schools," that is the exhorbitant cost of legal education--shouldn't non-elite law schools be training lawyers who can pass the bar and repay their loans? Are interdisciplinary scholars, most of whom are not practitioner-oriented, the best people for the job?
8. Solove re-replies to Tamanaha's clarification, conceding this point, but still arguing that interdisciplinary scholarship has a place at some, if not all, non-elite law schools.
9. Larry Solum writes the definitive essay on interdisciplinarity, multi-disciplinarity and the future of legal education. It is a long essay, but well worth the read and is a must read. I want to print it out and tack it onto my wall.
10. Larry Ribstein at Ideoblog says that the real question is "whether the current system of lawyer licensing is a good thing, or if we should have narrower licensing requirements that allow for cheaper legal training."
11. Jeff Lipshaw of Legal Profession Blog chimes in at Concurring Opinions. He can't resist.
12. Mark Graber at Balkination highlights the red herrings in the debate, comparing interdisciplinary legal scholars to Aesop's Bat.
13. Jim Chen has a thoughtful essay on MoneyLaw, and his dean's perspective is valuable.
Craig MacFarlane of Theoria: Blog and York University collects all of links, and connects them to previous debates over interdisciplinary legal scholarship.
1. Original Post by Brian Tamanaha at Balkinization.
2. Brian Leiter asks for comments . Read Matt Lister's and John Oberdiek's comments and Tamanaha's response.
3. Dan Solove has a thoughtful response at Concurring Opinions about the benefits that do accrue to students from having interdisciplinary teachers.
4. Ethan Leib comments at PrawfsBlawg, giving a good argument that non-elite schools ignore this trend at their peril.
5. I think that the trend just goes to show how much more it takes nowadays to join the legal academy, but also how many different paths you can take, which is a good thing.
6. Josh Wright at Truth on the Market says that Tamanaha's question of whether interdisciplinary legal scholars produce better lawyers is an empirical one, and says that it does at least with respect to the study of economics. So what about sociology or philosophy?
7. Tamanaha clarifies what he means by "bad for non-elite law schools," that is the exhorbitant cost of legal education--shouldn't non-elite law schools be training lawyers who can pass the bar and repay their loans? Are interdisciplinary scholars, most of whom are not practitioner-oriented, the best people for the job?
8. Solove re-replies to Tamanaha's clarification, conceding this point, but still arguing that interdisciplinary scholarship has a place at some, if not all, non-elite law schools.
9. Larry Solum writes the definitive essay on interdisciplinarity, multi-disciplinarity and the future of legal education. It is a long essay, but well worth the read and is a must read. I want to print it out and tack it onto my wall.
10. Larry Ribstein at Ideoblog says that the real question is "whether the current system of lawyer licensing is a good thing, or if we should have narrower licensing requirements that allow for cheaper legal training."
11. Jeff Lipshaw of Legal Profession Blog chimes in at Concurring Opinions. He can't resist.
12. Mark Graber at Balkination highlights the red herrings in the debate, comparing interdisciplinary legal scholars to Aesop's Bat.
13. Jim Chen has a thoughtful essay on MoneyLaw, and his dean's perspective is valuable.
Craig MacFarlane of Theoria: Blog and York University collects all of links, and connects them to previous debates over interdisciplinary legal scholarship.
Interdisciplinary legal education: the overt costs
Brian Tamanaha's Balkinization post, Why the Interdisciplinary Movement in Legal Academia Might Be a Bad Idea (For Most Law Schools), is an instant classic. I sincerely wish I had written it. Since I didn't, I'll be content (if only for the moment) to join the chorus of commentators who have chimed in. (I also think it's worth an aside to express my view that Larry Solum's response is the most thoughtful and thorough of the bunch.)
Among those who have expressed an opinion about the desirability of interdisciplinary legal education, at least at so-called nonelite schools, Brian and I share something that most of the other writers do not. We have both been law school deans. Deans know what it costs to build a faculty. Not in political capital, not in hours spent on recruiting. In hard, cold cash. Deans, at any rate, should know these things, at least better than rank-and-file faculty members throughout the legal academy. And to the extent that much of the criticism of Brian Tamanaha's position assumes that interdisciplinary legal education doesn't "cost that much," I suppose that the task of explaining this economic model was bound to fall on a dean. Especially one who has gone to the trouble of establishing an "Interdisciplinary Circle" at his school.
One more caveat: Deans do not advance their career prospects — at their current institutions or in the academy at large — by revealing too much information about law school finances or, for that matter, their mastery of a subject most law professors are all too happy to treat as mysterious. Even though I'm undermining my own self-interest by addressing this subject at all, I still have every incentive to obfuscate. You are forewarned.
Very well, then. Recall the crucial passage in Brian Tamanaha's critique:
In the non-elite law school universe — with schools almost entirely dependent upon tuition, with a majority of graduates who do not get corporate law jobs and only rarely become law professors — the interdisciplinary movement cannot be so easily justified.I hasten to add my previously stated (and frequently repeated) point that the set of "nonelite" law schools may be the entire AALS roster, minus fifteen schools. If your law school has to argue whether it's at least as good as Vanderbilt or Southern California, you need to listen.
Let me just give three reasons . . . . First and foremost . . . there is no evidence that it will make their students better lawyers. Second, it costs a lot of money to go interdisciplinary, and (because non-elite schools are tuition driven) this money will come out of the pockets of the students. Third, their education might suffer if their faculties emulate the elite law school trend toward hiring JD/PhDs with little or no practice experience . . . .
The single costliest component of any law school budget is skilled labor. Translation: professors cost money. Once you give them tenure, you can't (readily) fire them, and you are equally crippled in motivating them to do more work. So spend wisely, and be prepared if you make the wrong choice to endure another three or four decades of overpaid mediocrity (or, worse still, overpaid and socially insufferable mediocrity). This is crassly stated, but not falsely so.
Of course, the vast majority of professors represent money very well spent. Without them, you don't have a law school. You need good professors to cover a law school curriculum. I'll illustrate the point with a thought experiment.Let's say you'd like to start a very small law school. You have only ten faculty slots to fill. Yours is a financially shabby shop — your host university is chartered by a historically poor state that doesn't value education, and there is no naming opportunity that would harness a private donor's generosity. How do you propose to hire your first and — for all you know — only colleagues?
Given the constraints on your budget, I strongly recommend that you start by hiring people who can cover the standard first year curriculum, plus the professional responsibility course that every bar examiner considers a prerequisite. Don't overlook the highest-enrollment upper level "electives." They are electives to you, but de facto requirements for students who genuinely fret about their ability to pass the bar. (Don't forget — you aren't running a law school that resembles the one you attended.) Here are some of those "electives": constitutional law, administrative law, evidence, corporations, tax, family law, the entire battery of UCC courses. Hmmm. How about remedies and labor and employment? Oh, before I forget, you might consider spending a tenure-track position on a writing and skills specialist, since nothing else you teach in law school will be visited on your head as miserably — if you teach it badly — as writing and skills.
Let's count the number of essential faculty members and see whether you have space left for anyone else:
- A utility infielder specializing in all areas of commercial law.
- A corporate and securities law specialist. That's right — though many public law and "law and" professors don't know this, business organizations and commercial law are rarely taught by the same people.
- A tax specialist.
- A proceduralist — good for everything from civil procedure to federal courts to conflict of laws.
- Public law from the "rights" side, probably including a smattering of federal employment and labor law.
- Public law from the "structure" side. Want to economize with a single public law specialist who covers rights and structure with equal skill and enthusiasm? Happy hunting!
- A criminal justice specialist.
- Someone who can absorb all sections of professional responsibility, because no one else can or will do this.
You'll notice that I haven't had an opportunity to cover some areas that law schools like to cover, even in the absence of pressure to teach law on an interdisciplinary basis. These are little things like international law (in whatever flavor), intellectual property, environmental law, and some of the areas of advanced business law on which I've spent most of my scholarly energy. Insurance, media law, banking, public utilities, antitrust, labor law, trial practice? A clinic? Ha. You should live so long.
Here's the bottom line. Not every law school is this constrained, and my hypothetical is admittedly extreme. But every faculty position committed to a professor whose primarily intellectual allegiance lies far afield from the core law school curriculum, who is unwilling or unable to absorb large numbers of mostly frightened, uninterested, and/or unprepared students — that faculty salary represents precious financial resources that all but fifteen law schools in the United States must consider very, very carefully before committing.
And with that, and a vague promise that I will eventually address the "revenue" side of this question, at least as expressed in the impact of interdisciplinary legal education on alumni relations and law school fundraising, perhaps we law school bloggers can train our attention on the real threat looming in last week's hot topics: Kirsten Wolf's campaign to dissuade people from going to law school in the first place.
Responses to Tamanaha on Interdisciplinary Legal Studies
1. Original Post by Brian Tamanaha at Balkinization.
2. Brian Leiter asks for comments . Read Matt Lister's and John Oberdiek's comments and Tamanaha's response.
3. Dan Solove has a thoughtful response at Concurring Opinions about the benefits that do accrue to students from having interdisciplinary teachers.
4. Ethan Leib comments at PrawfsBlawg, giving a good argument that non-elite schools ignore this trend at their peril.
5. I think that the trend just goes to show how much more it takes nowadays to join the legal academy, but also how many different paths you can take, which is a good thing.
I hope that Larry Solum will comment next.
2. Brian Leiter asks for comments . Read Matt Lister's and John Oberdiek's comments and Tamanaha's response.
3. Dan Solove has a thoughtful response at Concurring Opinions about the benefits that do accrue to students from having interdisciplinary teachers.
4. Ethan Leib comments at PrawfsBlawg, giving a good argument that non-elite schools ignore this trend at their peril.
5. I think that the trend just goes to show how much more it takes nowadays to join the legal academy, but also how many different paths you can take, which is a good thing.
I hope that Larry Solum will comment next.
New England Patriots' Randy Moss Hit With Restraining Order
This just in from Ned Holstein, of the Fathers and Families Blog, and as reported just several hours ago by various news sources in Florida: Randy Moss, our star wide receiver on the New England Patriots, has just been hit with a restraining order by a Florida woman: Fathers & Families Blog: New England Patriots’ Super Bowl Chances Imperiled by Restraining Order.
Ned Holstein, the tireless advocate for fathers' rights both here in Massachusetts and elsewhere, expresses an understandable skepticism regarding the claims, based on his knowledge that restraining orders are often fraudulently brought. Holstein recognizes that the allegations might be true as well, but puts the odds that they are true at 50-50. I wouldn't dare speculate without knowing the facts, which we can never expect to know just from the media's reports of what he said and what she said.
Certainly, as we might expect, Randy Moss himself has already proclaimed that these allegations are just an attempt at extortion, but then says he wishes no harm for his accuser, a woman whom he has known for 11 years.
"I don't wish anything bad on this woman. That's the love I have for her as a friend," he is quoted as saying in Canada's National Post. "Even though these allegations are false, or whatever she is claiming, I really can't be mad at that. If she's hurting and she needs money, that's on her."
But if this woman has really brought a false claim against him and is shaking him down for money, as he claims, why does he sound like he wants to placate her? Shouldn't he be really angry with her? I wonder.
Sports stars, like other celebrities, probably have more than the average temptations to stray and misbehave, but on the other hand, they are also much more likely to be victimized by greedy opportunists.
Maybe we will eventually know the truth about this. But more likely, as in many cases involving accusations of domestic violence, the case will be settled, dropped, or will otherwise "go away" and we will never get the real story. Only the two people involved will know.
See my law firm website for information about Massachusetts criminal law, and for the Massachusetts restraining order law. (Of course, where Randy Moss is concerned, it is Florida law, not Massachusetts law, that applies.)
Tamanaha on Interdisciplinary Scholarship
I'm an avid reader of Balkinization, which offers such incredible legal analysis that I wonder if I should be paying for the privilege.
But while I would have eventually caught this on my RSS feed, Brian Tamanaha was nice enough to alert me to his post expressing skepticism about the current trend of interdisciplinary legal scholarship, at least with respect to the benefits that would accrue to non-elite law schools and their students (and thus the future legal profession).
This was generous of him to share, and especially generous of him to point out (not that I would have taken offense, understanding his meaning) that this isn't a criticism of the movement in general, the work, or people who do the work. That was very nice of him.
I hope you read his post, which will offer a nice counterbalance and perspective to the posts here (and elsewhere, e.g. on ELSBlog ) that aggressively push for interdisciplinary scholarship as the new Valhalla for legal scholarship. Heck, I just posted on the fact that I'm taking statistics again, first basic, and then later advanced modeling courses. Why the Valhalla metaphor? Because the common critique of traditional doctrinal legal scholarship is that it's "not rigorous," i.e. "empirical." Admittedly, social scientists (not that I'm really one of them! I have no formal training...yet!) turn up their noses at case-crunching, theorizing, doctrinaire legal scholarship with its insane footnotes and bizarre citation system. I know this for a fact. I am taught by J.D./Ph.Ds who say such things out loud.
So it's as if the valiant warriors, having demonstrated their rigor and vigor on the battlefield of scholarship (look! data! math! tables!) think of their work as a way into Odin's Hall, and that empirical legal studies is the future pinnacle of legal scholarship.
I am not a fan of false dichotomies or fightin' words like "more rigorous" or "experientially grounded" or "at least we have a theory." Whatever. The stuff I'm doing is technically empirical, being a qualitative study, and my future work might be more statistical. Even within the social sciences there's a schism between the qualitative and quantitative types. There seems to be many more paths to legal scholarship now than just a few years ago, and I'm grateful about that. It's no longer only Top 5 + law review + clerkship.
There is no single way into Valhalla, and there's no best method of legal scholarship. Be wary of any intellectual movement that proclaims as much, whether it's old school or new school. That there are so many different types of legal scholarship speak to the fact that there are more paths ot legal academia now.What this portends for students and future lawyers at non-elite law schools, I don't know. Perhaps social scientists will tell us 25 years from now.
I hope that you read Tamanaha's post, which offers much to think about.
But while I would have eventually caught this on my RSS feed, Brian Tamanaha was nice enough to alert me to his post expressing skepticism about the current trend of interdisciplinary legal scholarship, at least with respect to the benefits that would accrue to non-elite law schools and their students (and thus the future legal profession).
This was generous of him to share, and especially generous of him to point out (not that I would have taken offense, understanding his meaning) that this isn't a criticism of the movement in general, the work, or people who do the work. That was very nice of him.
I hope you read his post, which will offer a nice counterbalance and perspective to the posts here (and elsewhere, e.g. on ELSBlog ) that aggressively push for interdisciplinary scholarship as the new Valhalla for legal scholarship. Heck, I just posted on the fact that I'm taking statistics again, first basic, and then later advanced modeling courses. Why the Valhalla metaphor? Because the common critique of traditional doctrinal legal scholarship is that it's "not rigorous," i.e. "empirical." Admittedly, social scientists (not that I'm really one of them! I have no formal training...yet!) turn up their noses at case-crunching, theorizing, doctrinaire legal scholarship with its insane footnotes and bizarre citation system. I know this for a fact. I am taught by J.D./Ph.Ds who say such things out loud.
So it's as if the valiant warriors, having demonstrated their rigor and vigor on the battlefield of scholarship (look! data! math! tables!) think of their work as a way into Odin's Hall, and that empirical legal studies is the future pinnacle of legal scholarship.
I am not a fan of false dichotomies or fightin' words like "more rigorous" or "experientially grounded" or "at least we have a theory." Whatever. The stuff I'm doing is technically empirical, being a qualitative study, and my future work might be more statistical. Even within the social sciences there's a schism between the qualitative and quantitative types. There seems to be many more paths to legal scholarship now than just a few years ago, and I'm grateful about that. It's no longer only Top 5 + law review + clerkship.
There is no single way into Valhalla, and there's no best method of legal scholarship. Be wary of any intellectual movement that proclaims as much, whether it's old school or new school. That there are so many different types of legal scholarship speak to the fact that there are more paths ot legal academia now.What this portends for students and future lawyers at non-elite law schools, I don't know. Perhaps social scientists will tell us 25 years from now.
I hope that you read Tamanaha's post, which offers much to think about.
Stats For Poets
I have decided to take a refresher course in quantitative methods, designed for legal academics and lawyers. It's designed to be a basic intro to multiple regression analysis and to teach me how to use STATA.
The last time I took a statistics course I did pretty well, but it was seven years ago, from Fall 2000-Spring 2001. I was a junior in college, and while I could have taken three quarters of linguistics to satisfy the math requirement had I only been an English literature major, as a double political science major I had to at least take statistics. So, that I did. And it was good and interesting, and I learned how to use SPSS. And because I have forgotten how to do statistical analysis, it is time for a refresher.
The professors tried to kick me out of class. Me and everyone else who has taken statistics. This stats course is quite basic and introductory: while I may have a hard time remembering what a T-test is vs. a p-value, or the difference between one-tail or two-tailed test, or what a chi-square test is, at least I know these terms. Supposedly, this class is for true neophytes. This is why this post is called "Stats for Poets," you would presume that poets (cough) do not know statistics, but had I titled this "Stats for Lawyers," some of you may have been offended by the implication. You know, the implication being that the coursebook for such a course could be hazard sign yellow with a black chalkboard sign saying that you are a dummy.
Although appallingly, most law students and lawyers have never taken a statistics course, and statistics are being increasingly used in litigation and scholarship. That's my reasoning for re-taking something I'm not that much of a dummy about. I know that it'll all come flooding back to me fairly quickly, but I want to be fluent enough in basic statistics such that next Fall, when I take an advanced statistics course and maybe try to learn how to design my own models and experiments, I won't fail that course. Reading tables where the p-values are bolded for you and where they telly ou the threshhold of significance isn't that hard. Understanding what that really means doesn't require much training. But designing your own research does require training, and it's a process that requires the cumulative accretion of knowledge and skills. Understanding the purpose of such research in addition to mechanical aspects of executing such research.
So, that's why I'm staying in this intro course, and why I'll be doing problem sets and going to the lab every week to plug numbers into computers, and why I'm going back to college.
The last time I took a statistics course I did pretty well, but it was seven years ago, from Fall 2000-Spring 2001. I was a junior in college, and while I could have taken three quarters of linguistics to satisfy the math requirement had I only been an English literature major, as a double political science major I had to at least take statistics. So, that I did. And it was good and interesting, and I learned how to use SPSS. And because I have forgotten how to do statistical analysis, it is time for a refresher.
The professors tried to kick me out of class. Me and everyone else who has taken statistics. This stats course is quite basic and introductory: while I may have a hard time remembering what a T-test is vs. a p-value, or the difference between one-tail or two-tailed test, or what a chi-square test is, at least I know these terms. Supposedly, this class is for true neophytes. This is why this post is called "Stats for Poets," you would presume that poets (cough) do not know statistics, but had I titled this "Stats for Lawyers," some of you may have been offended by the implication. You know, the implication being that the coursebook for such a course could be hazard sign yellow with a black chalkboard sign saying that you are a dummy.
Although appallingly, most law students and lawyers have never taken a statistics course, and statistics are being increasingly used in litigation and scholarship. That's my reasoning for re-taking something I'm not that much of a dummy about. I know that it'll all come flooding back to me fairly quickly, but I want to be fluent enough in basic statistics such that next Fall, when I take an advanced statistics course and maybe try to learn how to design my own models and experiments, I won't fail that course. Reading tables where the p-values are bolded for you and where they telly ou the threshhold of significance isn't that hard. Understanding what that really means doesn't require much training. But designing your own research does require training, and it's a process that requires the cumulative accretion of knowledge and skills. Understanding the purpose of such research in addition to mechanical aspects of executing such research.
So, that's why I'm staying in this intro course, and why I'll be doing problem sets and going to the lab every week to plug numbers into computers, and why I'm going back to college.
The Blind Side
I just finished MoneyLaw Icon Michael Lewis's book "The Blind Side" which describes an outstanding high school left tackle and the evolution of the position for which nature has ideally suited him. It's a great and quick read for those interested in race and class in the United States, the state of intercollegiate athletics, or, most relevant to readers of this blog, the evaluation of untested talent.The most interesting thing to me about the book is that there are almost no objective criteria to measure offensive linemen like Michael Oher, the book's focus . Offensive linemen don't generate a lot of statistics; their job is to stop the quarterback from being sacked, but because quarterbacks get sacked (or not) for lots of reasons, it is very hard to measure the effectiveness of a particular member of an offensive line. While quarterbacks are measured by a fantastically arcane rating system designed to quantify their every on-field performance, there are simply no corresponding metrics to evaluate left tackles.
As a result, intuition and intangibles become paramount in evaluating offensive linemen. Although he didn't play organized football until his junior year of high school, Michael Oher became one of the most highly recruited football players in the country. He, like the young Billy Beane depicted in Money Ball, simply looks the part. He is described at least 7 times in the book as a "freak of nature" a tall, immense yet agile young man whose hips and backside are described in nearly homo-erotic detail by the college scouts who parade through his high school. Although he was only slightly more than inept in most of his 15 high school games and was nearly non-communicative with the scouts who came to watch him play, his physical characteristics made him one of the top 5 college prospects in the country.
It is not yet clear whether Michael Oher will live up to the praise lauded on him as a 15-year-old. He just finished his Junior year at Ole Miss where he has been a very-good but not world-beating offensive lineman. What struck me about this story is how different it is from Moneyball. In that book, Lewis points out the absurdity of scouts who rely on their eyes and not on proven performance to evaluate talent. Here, there are simply no statistics that will do the job; all that scouts can do is guess.
When we're evaluating talent as law professors -- whether of potential colleagues or of potential students -- we are usually somewhere in between these two extremes. We have some "measurables" -- LSAT scores, article placements, etc. -- but we also have to use our intuitions: Do we think this person has potential, do we think this person's best work is behind her, etc. Decision-making would be far easier if there were always measurable statistics that correlate well with performance; until then, we are forced to rely on our intuitions to fill the gaps.
The Unbearable Lightness of Rankings
We are all familiar with experiments in which subjects cannot tell the difference between a high priced wine and and low priced one. Now comes a study showing that knowing the price ahead of time affects the ranking. Not surprisingly, subjects rank a wine as better if it is more expensive. The is as one would expect. Price is a form of information; high price can mean high quality. What is more interesting about the newest studies is that those ranking the wine are not making it up. In reality, pleasure receptors in their brains actually did react more to the higher priced wine even though it was the same as the wine marked with a lower price.Replace high price with a candidate's law school and wouldn't you will find the same response in law school hiring and law review placement. Take the same person, send that person to one interview armed with a super resume and to another with a second level resume. Don't you think that the first interview will be perceived as having gone better than the second? Send the same article to law reviews. One submission identifies the author as from a highly ranked school with all kinds of name-dropping acknowledgements. The other submission says it is from a professor at a mid or lower level law school and delete the acknowledgements. My bet is a different set of acceptances.
I do not know of any one who has tried either of these experiments. Years ago I heard of a Houston attorney, whose name I will not disclose since this is hearsay, who provided a bartender with a super resume and sent him to interview at his very prestigious law firm. The result was an offer.
What the wine study suggests is that these feelings are real. Or as real as as, well . . . "real" can be. As many economists, including Amartya Sen, have pointed out in one way or another, good feelings can be "light" -- without an underlying foundation -- and fleeting.
Former Computer Programmer Brought Back From Canada For Huge Child Support Arrears in Massachusetts
David Fisher, a former computer programmer, who apparently made $2700 per week (about $140,000 per year) in 1999 or early 2000, when his child support order of $883 per week was established, is now facing the music for huge child support arrears which have accrued since he left for Missouri and then Canada, according to this recent article in the Worcester Telegram and Gazette, Worcester Telegram & Gazette, By Linda Bock: $500,000 bail for ‘deadbeat dad’. He was recently brought back from Canada and is now facing charges of criminal nonsupport. He is being held on $500,000 cash bail, which essentially means he is being held without bail, as that huge bail amount is just a bit over the $493,912 the state Department of Revenue Child Support Enforcement Division calculates he owes, including support, interest and penalties.
Reading over the facts of the case, as presented in the Worcester Telegram article (see relevant parts quoted below), and at the huge risk of reading between the lines, I would say Mr. Fisher appears to have had his high child support order issued based on his income at the height of the computer engineering boom in Massachusetts in the late 90s, and right before the bust that followed. His apparent salary of $140,000 was typical back then for many computer engineers, many of whom shortly thereafter made significantly less for the same work, if they even had a job after much of their work was subsequently outsourced to China and India or was otherwise restructured.
Perhaps Mr. Fisher was like many of my clients from those years since the bust, clients who ended up having to take lesser paying jobs as computer engineers or even had to find other work entirely, and yet had to struggle with the fact that the family courts were slow to recognize the economic realities in the computer engineering industry. Many judges have been skeptical and used the "attribution" doctrine, which allows them to attribute income to child support obligors based on their deemed potential income rather than their actual current income. Some men (it was always men, in my experience) had income attributed to them based on prior earnings and have had a hard time trying to convince the courts later that their actual, current earning capacity was less than it had been.
As a result, many fathers have had to pay child support orders that are far in excess of that which would be justified based on their actual incomes, and as a result, after child support and taxes are paid, they were left with little or nothing on which to live.
I don't know if that is what happened in this case, but it does seem to fit the pattern. Of course, fortunately none of my clients has run away from his obligation in the way Mr. Fisher apparently has done. If the facts in this article are correct, at the very least it is clear that Mr. Fisher failed to pay anything at all for his children for many years. If true, that is wrong and he should be held accountable for that.
Now, whether he should be held on $500,000 cash bail (the kind of bail you would typically see set in the case of a very violent felon) is another story. It is interesting that in the recent case that led to criticism of a Massachusetts Superior Court judge, and former Governor Mitt Romney, who had appointed her to the bench, and the Worcester DA, in the handling of a case in which a violent felon was released on personal recognizance, after which he went to another state and allegedly carried out a double homicide, the Superior Court judge in that case had overturned a District Court's bail order, which had been set at only $50,000 each on the two separate cases, for a total of $100,000 cash bail.
So, let's see. We had $100,000 cash bail (then personal recognizance) for a man who had killed his own mother and then stood accused of assaulting two prison guards, on the one hand, and $500,000 cash bail for a person with no criminal record, but who owes child support, interest and penalties of slightly less than that amount. Admittedly, there is a risk of flight - one of the important considerations in a bail hearing - in this case, but surely $500,000 is excessive, no?
Let me be clear here. I think we need to continue to hold men, as we do, accountable for failure to pay child support. It is absolutely wrong not to support one's children. There are many men - and women - who are not adequately supporting their children right now, or are otherwise violating their court-ordered obligations, and we should do everything we can do to force them to fulfill their obligations as parents.
Those who have excessive child support orders should never run away, but instead should do their best, pay as much as they can in child support, and persist in trying to modify their child support in court. Eventually, most judges will adjust the child support once the true facts come out, if one aggressively pursues modification of support and the facts warrant a modification. It may not be easy but it can be done. There is never an excuse to run away from one's obligations to one's children.
For information and links related to Massachusetts child support, including a Massachusetts Child Support Guidlines calculator see my Massachusetts Child Support Guidelines Interactive Worksheet Page. For information about Massachusetts divorce and family law, see my family law page and for information about Massachusetts criminal law see my criminal law page.
Worcester Telegram & Gazette News, By Linda Bock: $500,000 bail for ‘deadbeat dad’:
Reading over the facts of the case, as presented in the Worcester Telegram article (see relevant parts quoted below), and at the huge risk of reading between the lines, I would say Mr. Fisher appears to have had his high child support order issued based on his income at the height of the computer engineering boom in Massachusetts in the late 90s, and right before the bust that followed. His apparent salary of $140,000 was typical back then for many computer engineers, many of whom shortly thereafter made significantly less for the same work, if they even had a job after much of their work was subsequently outsourced to China and India or was otherwise restructured.
Perhaps Mr. Fisher was like many of my clients from those years since the bust, clients who ended up having to take lesser paying jobs as computer engineers or even had to find other work entirely, and yet had to struggle with the fact that the family courts were slow to recognize the economic realities in the computer engineering industry. Many judges have been skeptical and used the "attribution" doctrine, which allows them to attribute income to child support obligors based on their deemed potential income rather than their actual current income. Some men (it was always men, in my experience) had income attributed to them based on prior earnings and have had a hard time trying to convince the courts later that their actual, current earning capacity was less than it had been.
As a result, many fathers have had to pay child support orders that are far in excess of that which would be justified based on their actual incomes, and as a result, after child support and taxes are paid, they were left with little or nothing on which to live.
I don't know if that is what happened in this case, but it does seem to fit the pattern. Of course, fortunately none of my clients has run away from his obligation in the way Mr. Fisher apparently has done. If the facts in this article are correct, at the very least it is clear that Mr. Fisher failed to pay anything at all for his children for many years. If true, that is wrong and he should be held accountable for that.
Now, whether he should be held on $500,000 cash bail (the kind of bail you would typically see set in the case of a very violent felon) is another story. It is interesting that in the recent case that led to criticism of a Massachusetts Superior Court judge, and former Governor Mitt Romney, who had appointed her to the bench, and the Worcester DA, in the handling of a case in which a violent felon was released on personal recognizance, after which he went to another state and allegedly carried out a double homicide, the Superior Court judge in that case had overturned a District Court's bail order, which had been set at only $50,000 each on the two separate cases, for a total of $100,000 cash bail.
So, let's see. We had $100,000 cash bail (then personal recognizance) for a man who had killed his own mother and then stood accused of assaulting two prison guards, on the one hand, and $500,000 cash bail for a person with no criminal record, but who owes child support, interest and penalties of slightly less than that amount. Admittedly, there is a risk of flight - one of the important considerations in a bail hearing - in this case, but surely $500,000 is excessive, no?
Let me be clear here. I think we need to continue to hold men, as we do, accountable for failure to pay child support. It is absolutely wrong not to support one's children. There are many men - and women - who are not adequately supporting their children right now, or are otherwise violating their court-ordered obligations, and we should do everything we can do to force them to fulfill their obligations as parents.
Those who have excessive child support orders should never run away, but instead should do their best, pay as much as they can in child support, and persist in trying to modify their child support in court. Eventually, most judges will adjust the child support once the true facts come out, if one aggressively pursues modification of support and the facts warrant a modification. It may not be easy but it can be done. There is never an excuse to run away from one's obligations to one's children.
For information and links related to Massachusetts child support, including a Massachusetts Child Support Guidlines calculator see my Massachusetts Child Support Guidelines Interactive Worksheet Page. For information about Massachusetts divorce and family law, see my family law page and for information about Massachusetts criminal law see my criminal law page.
Worcester Telegram & Gazette News, By Linda Bock: $500,000 bail for ‘deadbeat dad’:
"MILFORD— One of the state’s top “deadbeat dads” — who owes $493,912 in child support, interest and penalties — was recently deported from Canada, and was ordered held on $500,000 cash bail yesterday after he was charged with criminal nonsupport, according to state Department of Revenue officials and prosecutors.
David Fisher, 48, formerly of Hopkinton, appeared on the state’s 2002 Ten Most Wanted poster for failure to pay child support. He was sent back to Massachusetts by Canadian authorities three weeks ago and charged with abandoning his children without support, leaving the commonwealth without paying child support and failure to comply with a child support order. A not guilty plea was entered on his behalf at his arraignment yesterday morning in Milford District Court. Judge Robert B. Calagione continued his case to Jan. 28. Mr. Fisher was arraigned in the same Milford court in which criminal charges for failure to pay child support and a warrant for his arrest were issued against him on Dec. 2, 2002.
Mr. Fisher married his ex-wife on Aug. 16, 1980, and they lived in Hopkinton. She filed for divorce Nov. 24, 1999. According to prosecutors, Mr. Fisher agreed to pay $883 weekly child support; he earned $2,700 per week at the time. He owes $314,373 in child support, $119,692 in interest and $59,847 in penalties, according to the state Department of Revenue and prosecutors, and faces up to 10 years in jail.....
According to DOR officials and prosecutors, Mr. Fisher, who was a computer programmer at the time, agreed Jan. 28, 2000, to pay $883 weekly in child support for his three children, who were 10, 16 and 17 at the time of the divorce. After a judge denied Mr. Fisher’s request to reduce child support payments, he was found guilty of contempt for violating the terms of the existing child support order. When Mr. Fisher and Ann Fisher divorced in June 2001, the order to pay $883 weekly child support was part of the settlement.
Ms. Cunnally said Ms. Fisher was forced to sell the family home in Hopkinton after the divorce. The uprooted family moved to Upton and the three children had to change schools at the time.
....
DOR received the last child support payment from Mr. Fisher’s employer in Missouri on April 17, 2001. He worked for Helzberg Diamonds, a diamond retail company in Kansas City, Mo., according to Ms. Cunnally, and made $75,000 per year. DOR garnished a couple of thousand dollars in attached wages before he left the country.
Sometime after, he fled to Canada with his girlfriend. Mr. Fisher subsequently appeared on the state DOR’s “Ten Most Wanted” poster on Nov. 14, 2001.
Mr. Fisher allegedly married his Canadian girlfriend, according to officials, and does not have other children officials are aware of. State officials know that he worked at Quigley’s Restaurant in Toronto for a period of time. On Sept. 23, 2003, the DOR received an anonymous tip that Mr. Fisher was in Toronto....."
Still No Visitation For Brit After Today's Hearing
See the Court's Order (courtesy of TMZ.com) after today's hearing in the Britney Spears custody case. Kevin Federline and several witnesses testified, but Britney didn't see fit even to show up to court until the afternoon. Result of the hearing? Still no visitation at all for Brit with the kids until at least February 19.
TMZ.com: "No Visitation for Brit," Posted Jan 14th 2008:
"The Commissioner has just ruled that Britney will not have visitation restored, at least until the next hearing on February 19.
The order came after the testimony of several people, including two LAPD cops who responded to the craziness a week ago Thursday; Lisa Hacker, a parenting coach; Lonnie Jones, a bodyguard, and Pamela Strong, the court monitor who was present during the drama. K-Fed's attorney, Mark Vincent Kaplan, testified as well.
Story developing ..."
For information about Massachusetts divorce and family law, see my law firm website's divorce and family law page.
TMZ.com: "No Visitation for Brit," Posted Jan 14th 2008:
"The Commissioner has just ruled that Britney will not have visitation restored, at least until the next hearing on February 19.
The order came after the testimony of several people, including two LAPD cops who responded to the craziness a week ago Thursday; Lisa Hacker, a parenting coach; Lonnie Jones, a bodyguard, and Pamela Strong, the court monitor who was present during the drama. K-Fed's attorney, Mark Vincent Kaplan, testified as well.
Story developing ..."
For information about Massachusetts divorce and family law, see my law firm website's divorce and family law page.
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